Elements of Negligence

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					                  Elements of Negligence
                               i. Duty
B. General Rule: “a person ordinarily has a duty to exercise reasonable care
   regarding foreseeable risks of harm that may rise from the person’s
   conduct” (Vetri)
C. “The trend over the last thirty years is one of narrowing or abolishing
   some of the limited duty rules and applying the general duty of reasonable
   care more broadly”; “We must describe the present situation as one where
   there is a presumptive duty of reasonable care for foreseeable risks arising
   from one’s conduct unless displaced by a limited duty rule.”
D. “Legal duties are not discoverable facts of nature, but merely conclusory
   expressions that, in cases of a particular type, liability should be imposed
   for damage done” (Tarasoff)
E. When determining whether or not to expand a duty, the courts balance a
   number of considerations: a) foreseeability of harm to the plaintiff; b) the
   degree of certainty that the plaintiff suffered injury: c) the closeness of the
   connection between the defendant’s conduct and the injury suffered; d) the
   moral blame attached to the defendant’s conduct; e) the policy of
   preventing future harm; f) the extent of the burden to the defendant and
   consequences to the community of imposing a duty to exercise care with
   resulting liability for breach; and g) the availability, cost and prevalence of
   insurance for the risk involved. (Tarasoff)
F. McPherson v. Buick (NY 1916 – Cardozo)
         1. Facts – Ultimate purchaser of car sues manufacturer of car when
              wheel broke and he was injured
         2. Old Rule – Sources of duty rises out of contract. Requires privity
              of contract. Problem with old rule – injured party doesn’t get
              compensation and there is no deterrence. Purchaser couldn’t
              recover under old rule from manufacturer because there was no
              privity of contract and not from dealer b/c no negligence.
         3. Holding – Source of duty is no longer in contract but now in law.
              A manufacturer owes a duty to a non-immediate purchaser if the
              nature of the thing is such that it is reasonably certain to place
              life and limb in peril when negligently made and is likely to be
              used by persons then the immediate purchaser without new tests.
G. Limited Duty to Act or Rescue
         1. General Rule: There is not a duty to act when the actor has
              not created the harm
                 a) Yania v. Bigan (1959 PA)
                         a. Plaintiff alleges three negligent acts by defendant
                            i.Encouraged decedent to jump through into pit of
                                water through words/cajoling. Here, not
                                negligence because decedent was adult with full
                                faculties
                        i.Didn’t warn about the dangers. Here, not
                            negligence because decedent was coal strip
                            miner
                        i.Didn’t rescue drowning decedent. Didn’t cause the
                            harm so he didn’t have any duty to rescue
             b) People v. Beardsley
                    a. Facts – Woman and her lover got real drunk. She
                        took some morphine and then died. He was
                        convicted of manslaughter for not helping her.
                    b. Holding - No duty because no legal relationship
                        because woman was “experienced” and thus did not
                        need protection. Wasn’t his wife – morally
                        repugnant.
             c) Schenk v. Mercury Marine
                    a. Defendant loaned waders to his friend. Boat
                        capsized and she drowned.
                    b. No duty because loaning waders was a gratuitous
                        act in which defendant did not assume an obligation
                        or render a service.
                    c. No special relationship.
                    d. Lending waders was reasonable act that didn’t
                        increase any danger accepted by defendant.
        2. Exceptions: When Actor Does Not Negligently Create the
           Harm There is Still a Duty When…
             a) There is a special relationship
                    a. Protector - Only if protector knows the person is in
                        peril, willfully or negligently fails to make
                        reasonable efforts to rescue, without jeopardizing
                        his own life (People v. Beardsley)
                    b. Parent/child
                    c. Husband/wife
                    d. Companions on a social venture
                             i. Farwell v. Keaton – friend beaten and left in
                                car to die. Owed a duty because engaged in
                                a common undertaking.
             b) Voluntary Assumption of Duty (the actor starts to help)
                    a. Farwell v. Keaton – friend beaten and left in car to
                        die
             c) Innocent Prior Conduct - The actor caused the harm but not
                 negligently.
             d) Reliance on a Gratuitous Promise
             e) Intentional Prevention of Aid by Others
             f) Statute
H. Limited Duty: Owners and Occupiers of Land
        1. Arise from historical conditions of feudalism: importance of land
           and land-owning class.
2. On or off premises?
     a) On premises, what is status?
             a. Invitee – common purpose/mutual advantage.
                      i. Economic benefit test
                     ii. Public invitation test
                    iii. Standard of reasonable care to make
                          premises safe.
             b. Licensee – have permission to be there but aren’t
                 invitees; social guest
                      i. Landowner not responsible for condition of
                          property
                             1. Unless active or willful negligence
                             2. Unless trap.
             c. Trespasser – No privilege to be there and no
                 consent from landowner.
3. Natural or artificial condition
4. Bylling v. Edwards (Cal 1961)
     a) Facts – D had P over for dinner. After dinner, P was
         voluntarily helping to clean-up. P volunteered to get paper
         plates from garage and then slipped on grease pan.
     b) Holding – She was a licensee because she was a social
         guest and not an invitee. Don’t have to warn her as licensee
         because she saw the grease pan, wasn’t concealed and thus
         wasn’t a trap.
5. Rowland v. Christian (Cal 1968)
     a) Facts – P hurt hand on D’s faucet.
     b) Holding – No duty to licensee to inspect house for traps.
         But if knowledge of concealed danger which licensee
         would likely encounter, than there is a duty to warn.
         Whether in the management of property has owner acted as
         a reasonable person in view of the probability of injury to
         others, and, although plaintiff’s status have some bearing
         on the question of liability, the status is not determinative.
6. Richardson v. Corvallis Public School Dist. (Mont 1997)
     a) Facts – Woman slipped on packed down snow path at high
         school.
     b) Holding – Status of injured party as invitee, licensee, or
         trespasser does not affect property owner’s duty, which is
         now “property owners owe a general duty of ordinary care
         to have their premises reasonably safe and to warn of any
         hidden dangers.” If a danger is open and obvious, plaintiff
         can only recover if defendant should have anticipated
         injury despite the open and obvious nature of the danger.
         Factors to consider in determining reasonable care: what
         use the property is put to, its setting, location and other
                physical characteristics, and the type of person who would
                foreseeably visit,
        7. Dobrocke v. City of Columbia Falls (Mont. 2000)
             a) Facts – woman tripped on barbed wire left by neighbor on
                city property’s land. District Court ruled that: 1) City didn’t
                owe duty because P wasn’t on highway or sidewalk; and 2)
                failure of City to have notice precluded reliability; 3) even
                if city did owe duty, it didn’t breach it; 4) City isn’t
                negligent because P caused her own harm; 5) City isn’t
                liable of negligence per se because City didn’t violate
                statute and the statute wasn’t intended to regulate
                defendant’s class
             b) Holding – 1) citing Richardson, the owner of a premises
                has a duty to use ordinary care in maintaining premises in a
                reasonably safe condition and to warn of any hidden or
                lurking damages; 2) doesn’t make sense to reward someone
                for not properly maintaining their property in order not to
                get notice of defect, so notice is not necessary; 3) this is a
                question for a jury; 4) question for the jury; 5) can’t use
                statute for negligence per se because statute applies to
                owners of barbed wire, not landowner.
I. Limited Duty to Control the Conducts of Others
        1. General rule is that a person has no duty to act for the protection
           of another person unless his conduct created the risk or there is a
           special relationship between the parties.
        2. Tarasoff v. Regents of University of California (CA 1976)
             a) Facts – man in therapy confided to therapist his intent to
                kill girl. Therapist had police detain Poddar but he was later
                released. He then killed her. Trial court said therapist had
                no duty to victim.
             b) Issue – Is the therapist in a special relationship with both
                patient and victim such that he owes a duty to warn the
                reasonably identifiable victim of the danger that patient
                poses to her?
             c) Holding – There is an exception to the general rule that a
                person does not owe a duty to control the conduct of
                another. The defendant stands in some special relationship
                to either the person whose conduct needs to be controlled
                or in a relationship to the foreseeable and readily
                identifiable victim of that conduct.
             d) Policy Considerations: 1) Therapists argue that if duty
                established, dangerous persons wouldn’t seek therapy and
                wouldn’t divulge necessary information to psychiatrists.
                Court said that when balancing needs, they were going to
                lean towards pubic safety versus damage done to patient by
                revealing information. The protected privilege ends where
                 the public peril begins. 2) Therapists argue that it is too
                 hard to predict who is going to make good on threats – too
                 much revealing of information. Court says therapist must
                 only exercise professional standard of care and do not have
                 to be perfect – psychiatry is not a science. When
                 establishing standard will look to expert testimony.
J. Limited Duty: Emotional Harm Without Physical Harm
        1. Main question: Is foreseeability enough?
        2. Are the plaintiff’s a bystander or a direct victim?
        3. Why courts wouldn’t expand old rule
             a) Couldn’t be sure of Plaintiff’s honesty
             b) Couldn’t know how deep-seated distress was
             c) How can you assign money damages?
             d) Is money the best compensation anyway?
        4. Parasitic to Physical Damages (Impact Rule) Common law
           progression: physical injury>substantial physical contact>slight
           physical contact
             a) Emotional distress damages only allowed when there was
                 some physical injury
             b) Saechao v. Matsakoun (OR 1986)
                     a. Facts – car driver backed up over curb and killed
                          two year old. One brother was injured trying to pull
                          them away, while other siblings just witnessed it.
                     b. Holding – Defendant doesn’t owe duty to witnesses
                          if they didn’t suffer physical injury.
        5. Zone of Danger (not necessarily a bystander, can be a direct
           victim)
             a) Plaintiff must be in zone of foreseeable risk of physical
                 harm
             b) Some courts added emotional distress be severe and there
                 be some physical consequences manifested by the severe
                 distress
        6. Bystander Emotional Harm Rule (don’t have to be personally
           in danger)
             a) Dillon v Legg (California 1968)
                     a. Defendant must commit negligent act
                     b. Plaintiff must be near accident
                     c. Plaintiff must have contemporaneous and sensory
                          perception of accident
                     d. Plaintiff closely related to injured person.
                     e. Emotional distress must be severe
             b) Versland v. Caron Transport (Montana 1983)
                     a. Plaintiff must have contemporaneous and sensory
                          perception of act (includes proximity to act)
                     b. Plaintiff must be closely related to injured person.
                     c. Injured person must be killed or seriously injured.
7. Zone of Foreseeable Emotional Risk
    a) Traditionally allowed when undertaker mishandles
       relative’s body and when sending telegrams negligently
       which falsely announce the death of a relative.
    b) Direct Victim (not a bystander but whose emotional
       distress was foreseeable)
           a. Duty imposed by law
           b. Duty assumed by defendant
           c. Duty created by a special relationship between
               defendant and plaintiff.
           d. Klein v. Children’s Hospital (CA 1996) Does a
               doctor treating a minor child owe that child’s
               parents a duty to reasonable diagnose the child so as
               to not cause foreseeable risk of emotional harm to
               the parents?- No. There must be a preexisting
               relationship between doctors and parents. Unlike
               Marlene, the parents were not patients. Like
               Huggins, Defendant was acting on behalf of the
               patient not the plaintiff parents. Derivative cases
               cannot allow recovery unless they meet bystander
               rule. Duty to not inflict emotional distress is limited
               to “direct victims”
    c) Sacco v. High Country Independent Press (Montana 1995)
           a. Essential elements of IIED and NIED are identical.
           b. “An independent cause of action for the tort of
               infliction of emotional distress will arise under
               circumstances where serious or severe emotional
               distress to the plaintiff was the reasonably
               foreseeable consequence of the defendant’s
               negligent or intentional act or omission.”
           c. If severe emotional distress was reasonable
               foreseeable from what defendant did negligently,
               plaintiff can recover.
           d. To combat frivolous conduct the MT Court says
               that it must be severe emotional distress. Critical
               element defined by comment J
           e. Benefit of IIED claim over NIED claim is now only
               punitive damages. Defendant’s act must be really
               bad for IIED.
           f. Abolished extreme and outrageous conduct as an
               element of claim. Only used to obtain punitive
               damages.
           g. Got rid of Versland bystander rule.
           h. Got rid of limited duty for emotional harm and
               established general standard of reasonable care.
    d) Treichel v. State Farm (Mont. 1996)
                     a. Woman saw husband get killed on bicycle by car.
                     b. Got rid of Versland bystander rule and said should
                        apply Sacho.
                     c. Witnessing injury is no longer a derivative claim, it
                        is an independent injury and thus claim.
              e) Maloney – can recover emotional damages just based on
                 economic reasons if there is a tangible connection, like
                 land.

                              i. Breach of Duty
K. Defendant’s conduct created a foreseeable chance of harm.
L. Defendant’s conduct created an unreasonable risk of harm.
M. Objective Standard of Reasonable Care
        1. We all owe a standard of care to act as a reasonable person under
            the same or similar circumstances in order not to cause harm by
            our actions.
        2. Coffey v. Hilands
              a) Issue – Was the scoutmaster’s conduct, leaving a hyper-
                  active child with an active interest in rock-climbing
                  unsupervised with a bag of easily accessible rock-climbing
                  equipment, unreasonable under the circumstances?
              b) Holding – Question for the jury. Can’t be dismissed by
                  summary judgment.
        3. Pitre v. Employers Liability Assurance Corp.
              a) Issue –Did the fair owner’s conduct, not installing ropes or
                  barriers to separate a fair patron from spectators during a
                  ball throwing game, create a foreseeable risk of harm and
                  was this conduct unreasonable under those circumstances?
              b) Holding – Although the risk was foreseeable, its probability
                  was not great enough to require precautions so D’s conduct
                  was not unreasonable.
        4. Kimbar v. Estis
              a) Issue – Did the summer camp owner’s conduct, not
                  illuminating a three foot path in the woods, create a
                  foreseeable risk of harm and did that conduct create an
                  unreasonable chance of harm?
              b) Holding – No. A reasonable person would not have
                  installed lights on a wooded path.
N. Experts - held to the standard of reasonable person with such expertise.
O. Physically Different Characteristics
        1. Reasonable person is assumed to have same disability
        2. Policy – can’t say “blind people use the street at their own risk.”
        3. Doesn’t apply to drunk person.
P. Children and the Reasonable Person Standard
        1. Standard of reasonable child with that level of age, intelligence,
            maturity, and experience.
        2. Most jurisdictions have a minimal cutoff age for negligence
        3. Policy
             a) Let’s kids be kids (don’t ruin childhood)
             b) Must allow kids to gain experience without punishing them
                 for it.
        4. Exception – when children engage in inherently dangerous
           activity or adult activities.
             a) Robinson v. Lindsay
                     a. Issue – Should an adult reasonable person standard
                          be applied to a 13 year old operator of a
                          snowmobile which is an inherently dangerous
                          activity?
                     b. Holding – Yes. Exception to child exception.
Q. Mental Disabilities
        1. Does not alter reasonable person standard
        2. Don’t want to get into person’s mental state – too subjective
        3. 400 year old rule.
        4. Counter argument – you’re not finding liability based on fault.
        5. Bashi v. Wodarz
             a) Issue – Should the objective reasonable person standard be
                 applied to a car driver who suffers a sudden onset of mental
                 illness to determine negligence?
             b) Holding – No.
R. Balancing Risks versus Untaken Precautions
        1. United States v. Carroll Towing Co.
             a) Facts – Plaintiff’s barge was sunk because of the allegedly
                 negligent conduct of the Defendant towing company.
                 There was no bargee (attendant) on the barge.
             b) Issue – Was Plaintiff’s lack of posting a bargee
                 contributory negligence.
             c) Holding – Learned Hand developed his formula here. The
                 plaintiff will not be contributorily negligent if his burden of
                 having a bargee on board 24 hours a day is more than the
                 probability of the accident happening multiplied by the
                 gravity of the resulting injury. Hand found it unreasonable
                 for bargee not to be there for 21 hours.
S. Learned Hand Formula
        1. Burden of untaken precaution = Cost and effort of Feasible,
           Safer Alternative conduct that does not unduly impair Utility of
           activity.

                   Probability of Risk Happening (P) |          Burden (B)
                                  x.                  |
                   Nature and Seriousness of Harm (L) |

         2. Plaintiff has burden of proving untaken precaution.
        3. McCarty v. Pheasant Run
              a) Facts – Plaintiff alleged five negligent acts of hotel owner
                      a. owner failed to make sure door was locked when P
                          was shown to room
                      b. failed to advise guest to keep door locked
                      c. failed to have a “fancy” lock
                      d. failed to have better security
                      e. had a walkway accessible to outside.
              b) Holding – Plaintiff failed to show that mishap could have
                  been prevent by precautions of reasonable cost and
                  efficiency. Jury didn’t believe her that she didn’t know that
                  the door was behind the drapes. Hotel’s duty to provide
                  lock, but guest’s responsibility to use it. Jury was
                  reasonable in concluding that a notice to guests to lock
                  doors wouldn’t have made any difference. “Fancy” lock
                  wouldn’t have made any difference (causation problem);
                  also no evidence introduced about cost of installing them.
                  No evidence about what it would have cost for optimum
                  security force and relevance of previous break-ins. Did not
                  take into account fire hazard of having walkway accessible
                  to door.
        4. Indiana Consolidated Insurance v. Mathew
              a) Issue – Would a reasonable person have pushed a burning
                  lawnmower out of a garage?
              b) Holding – No. Burden of pushing out the lawnmower was
                  greater than foreseeable economic harm to the garage.
        5. Pease v. Sinclair Refining Co.
              a) Issue – Would a reasonable person s
T. Role of Custom in Developing the Reasonable Person Standard
        1. Customs are specific practices widely used or accepted in a
            relevant community or culture.
        2. Not used conclusively – only to firm up standard.
        3. T.J. Hooper
              a) Issue – Does the custom on tug boats of not having a radio
                  onboard to receive weather reports excuse the omission of
                  having one and establish a standard of reasonable care?
              b) Holding – Custom does not define reasonable person
                  standard. Courts will disregard custom if standard is too
                  low and a whole industry is lagging behind.
        4. Trimarco v. Klein
              a) Issue – Was D negligent for not installing a safety glass
                  shower door because he did not follow a reasonable person
                  standard based on custom?
              b) Holding – Jury was justified in concluding that defendant
                  was negligent by not following custom and installing a
                  shatter-proof shower door. Shown by expert’s testimony,
                   admissions of defendant’s manager, government bulletins,
                   local billing industry. Also, there was modest cost in
                   installing them and the glass was readily available.
        5. Custom is the standard of care in malpractice cases.
        6. When custom is used as a sword, must show that the custom is
            safety-related.
        7. When custom is used as a shield, the defendant does not have to
            show that custom is safety related but that there is a reasonable
            justification for using the custom.
U. Alternatives to the Reasonable Person Standard
        1. Specific Judicial Standards
              a) Judges can develop minimum standards of reasonable care
                   to substitute for the reasonable care standard
              b) Competing policies: judicial efficiency v. considering
                   circumstances
              c) Baltimore & Ohio v. Goodman (US 1927)
                       a. Guy killed by train.
                       b. Justice Holmes sets law that it is breach of standard
                            of care not to make sure you don’t get hit by train.
                            If not relying on hearing or other signal, must get
                            out and look
              d) Pokora v. Wabash (US 1934)
                       a. Justice Cardozo says that it is unreasonable to get
                            out and look b/c by the time you return to car train
                            could be coming.
                       b. Standards of behavior shouldn’t be made law by
                            judges.
                       c. Reasonable person standard should be used by jury
                            in light of all circumstances.
              e) Mickel v. Haines Enterprises, Inc. (OR 1965)
                       a. Woman trips on bathroom sill in hotel room after
                            forgetting it was there.
                       b. Court applies judicial standard. She was negligent
                            as a matter of law absent a showing of mental
                            infirmity, advanced age, long time period, unusual
                            distracting occurrence, or serious preoccupation to
                            explain momentary forgetfulness.
              f) Johnson v. Hockessin Tractor (Del 1980)
                       a. Facts – Johnson, experienced with engines, chose to
                            use the “pet cock” to turn off tractor and injured his
                            fingers instead of using the safer “kill switch”
                            method.
                       b. Holding – If person has 2 alternatives and knows
                            one is riskier and then chooses the riskier, than
                            person is contributorily negligent
        2. Safety Statutes and Regulations as Standards
a) Glannon’s Policy Reasons
       a. In Favor
                i. Not using statute disregards will of people
                   embodied by legislature
               ii. Standard of conduct enforced by courts
                   should be the same as that established by
                   legislature
       b. Against
                i. Sometimes unreasonable to obey statute
                   (cross yellow line to avoid hitting kid)
               ii. Sometimes impossible to obey law
              iii. Tort law is fault-based, not strict liability
b) Relevancy Test: When will court borrow standard of care
   from criminal statute?
       a. If statute expressly grants civil remedies and cause
           of action, you do not need relevancy test – skip to
           procedural test
       b. Restatement § 286
                i. Is this a safety statute?
               ii. Was the plaintiff a member of the class of
                   persons the legislature intended to protect?
              iii. Was the hazard that came about the type of
                   hazard the legislature sought to eliminate?
              iv. Was the harm suffered the type of harm the
                   legislature sought to protect against?
       c. Montana – adds: Was the statute intended to
           regulate members of defendant’s class?
       d. Judge determines if statute is relevant. Jury
           determines if the statute was broken.
c) Procedural Effect: What is the procedural effect of finding
   that a party violated the provisions of a criminal statute?
       a. Negligence Per Se
                i. Strict – no excuses: violation = negligence.
               ii. Modern – allow some limited excuses
                   usually Restatement § 288(a)
                        1. Incapacity
                        2. Lack of Knowledge of the Need to
                            Comply (tail light goes out while
                            driving – can’t discover)
                        3. Inability After Reasonable Diligence
                            to Comply
                        4. Emergency
                        5. Compliance Involves Greater Risks
                        6. Otherwise Reasonable Under the
                            Circumstances
       b. Presumption of Negligence
                i. Once proved that defendant violated statute
                   and other tort elements, than defendant must
                   bring excuses.
               ii. Excuses not limited to Restatement excuses.
      c. Evidence of Negligence
                i. Violation of statute is just another factor to
                   consider when defining reasonable person
                   standard.
      d. If jury determines that statute wasn’t violated it can
          still apply reasonable person standard if there is a
          common law cause of action for negligence.
d) Ferrel v. Baxter (AK 1971)
      a. Facts – Baxter (car passenger); Ferrell (car driver);
          Graves (truck driver); Sea-Land (truck company).
          Truck and car collided around curve. Yellow line
          obscured. Don’t know who went over line. Ferrell
          applied brakes and slid.
      b. Holding – Jury was justified in finding that Ferrell
          is the one who violated the statute by crossing the
          line. OK to give negligence per se instructions to
          jury. Defendant didn’t offer any excuse. Affirmed.
e) Craig v. F.F. Schell (Mont. 1999)
      a. Facts - Decedent (def) swerved to avoid deer and
          then lost control striking plaintiff’s car. District
          court denied P’s SJ motion. Trial court said issue of
          material fact whether or not D had negligence per se
          excuse (emergency).
      b. Holding – Only under extremely limited
          circumstances does the violation of a motor vehicle
          statute not constitute negligence per se. Sudden
          emergency isn’t excuse if D is engaged in an
          activity where emergencies are likely to arise and
          should be anticipated. Involuntary action rule.
f) Schwabe v. Custers, Inc. (Mont. 2000)
      a. Facts – 22 year old found at bottom of motel
          swimming pool. Plaintiff argues that motel violated
          statute by not having either 1) lifeguard on duty; or
          2) posted sign and CPR trained person.
      b. Majority holding – No negligence because P
          couldn’t show causation through expert witness
          showing that P wouldn’t have drowned if CPR
          person was there.
      c. Minority holding – D shouldn’t be able to use its
          violations as withholding proof of causation.
          Because didn’t have CPR staff then it must have
          lifeguard.
V. Proof of Negligence/Breach
        1. Circumstantial Evidence
             a) When no direct evidence of breach, may be appropriate for
                 jury to infer breach through circumstantial evidence.
             b) Lea v. Gino’s Pizza Inn (OR 1975)
                     a. Facts – P fell in D’s pizza parlor. P alleged that D
                         was negligent for 1) improper lighting and 2)
                         allowing foreign substance to accumulate on floor.
                     b. Issue – Was there any evidence that the jury could
                         use to draw an inference that there was a foreign
                         substance on floor?
                     c. Majority Holding – Insufficient evidence because:
                         1) D didn’t concede knowledge of foreign
                         substance; 2) concluding stain on dress caused her
                         to slip is mere speculation or conjecture. Non-
                         existence of foreign substance is just as probable as
                         its existence. Plaintiff has burden of proof.
                     d. Dissent – Enough evidence of substance on floor to
                         go to jury but no evidence showing that it was there
                         long enough for D to know about it.
             c) Canfield v. Albertson’s (Utah 1992)
                     a. Facts – Plaintiff slipped on lettuce discarded by
                         customers using “farmer’s pack display”
                     b. Holding – There are two theories of slip and fall
                         negligence:
                               i. Transient hazard not created by D: D must
                                  then have 1) actual or constructive notice;
                                  and 2) time to remedy. Doesn’t apply here.
                              ii. D creates risk of harm: no notice needed to
                                  show negligence since D created dangerous
                                  condition. D chose to use “farmer’s pack
                                  display” where it was reasonably
                                  foreseeable that 3rd parties would throw
                                  lettuce on ground. No notice necessary
                                  since choice of operation was ANA.
        2. Res Ipsa Loquitur “the thing speaks for itself”
             a) Used for the breach element when plaintiff has suffered
                 harm but cannot point to a specific negligent act.
             b) Policy – Mere happening of an accident is not evidence of
                 negligence vs. res ipsa loquitur (exception)
             c) Byrne v. Boadle (England 1863)
                     a. Facts – Man hit on head by barrel from 2nd story
                         window of warehouse. Don’t know what specific
                         act caused the barrel to hit him.
         b. Holding – Mere fact that the accident occurred is
             evidence of negligence. A barrel could not roll out
             of a warehouse without some negligence.
d)   Eaton v. Eaton (NJ 1990)
         a. Facts – Husband of decedent (passenger) sues
             daughter (driver) for negligence. D says she wasn’t
             driving and there was a phantom car that caused the
             accident. Road was dry, car left road, went 50ft in
             air. Damage was severe on passenger side only.
             Mother died while daughter was unhurt (extent of
             injuries matching damage to car). D’s shoe found
             wedged under brake pedal. Officer concluded that
             there was no phantom car and daughter was driver.
         b. Holding – res ipsa instruction proper when: 1) the
             accident which produced a person’s injury was one
             which ordinarily does not happen unless someone
             was negligent, 2) the instrumentality or agent which
             caused the accident was under the exclusive control
             of the defendant, and 3) the circumstances indicated
             that injury not caused or contributed to by injured
             person.
         c. Res ipsa permits an inference of negligence that can
             survive a motion to dismiss. Does not shift burden
             of proof.
e)   Escola v. Coca Cola (CA 1944)
         a. Facts – Coke bottle exploded in P’s (waitress) hand
             when she was putting them in refrigerator. P said
             that either excessive pressure or bottle defect was
             responsible for her injury. Can’t point to one ANA.
             Defendant claimed res ipsa shouldn’t apply because
             it didn’t have exclusive control over instrumentality
             (bottle) at time of injury.
         b. Holding – P doesn’t have to show D had control
             over instrumentality at time of injury only during
             time of ANA. However, condition of
             instrumentality cannot be changed after it leaves
             defendant’s possession.
f)   Giles v. City of New Haven (Conn. 1994)
         a. Facts – self-service elevator fell.
         b. Holding – Don’t interpret control literally.
             Defendant has right or power of control and
             opportunity to exercise it.
g)   Mireles v. Broderick (NM 1994)
         a. Facts – after undergoing bilateral mastectomy,
             nerves injured by compression which was totally
             preventable with proper care. D’s argued: 1)
          plaintiff can argue res ipsa or expert testimony, but
          not both; and 2) attempting to explain exact medical
          cause of injury forbids res ipsa loquitur instruction.
          Common-knowledge exception to res ipsa loquitur
          prohibition in medical malpractice: only when the
          inference of negligence is within the common
          reservoir of the jurors.
      b. Holding – Foundation for an inference of
          negligence may be formed by expert testimony.
          Evidence of specific cause of injury does not
          preclude res ipsa inference as long as evidence
          doesn’t reach proximate cause.
h) Modern Interpretation of Res Ipsa Loquitur
      a. Inference that Someone was Negligent – The
          accident is of a kind which ordinarily does not
          occur in the absence of someone’s negligence.
               i. Proof
                      1. Facts of Accident
                      2. Common Knowledge
                      3. Common Sense
                      4. Experts (medical)
      b. Inference that Defendant was Negligent – The
          apparent cause of the accident is such that the
          defendant would be responsible for any negligence
          connected with it. Must be more likely than not.
               i. Proof
                      1. Defendant had exclusive control of
                          instrumentality during ANA.
                      2. Disprove possible 3rd party
                          negligence
                      3. Remove plaintiff as contributory
i) Valley Properties v. Steadman’s Hardware (Mont. 1992)
      a. Facts – Valley owned warehouse. Steadman rented
          it. It burned. Evidence pointed to Steadman’s
          employee’s placing boxes to close to light and also
          poor wiring by Valley.
      b. Holding – Not an appropriate case for res ipsa
          loquitur because fires may happen without
          negligence.
j) Clark v. Norris (Mont 1987)
      a. Facts – Plaintiff had D & C surgery and her uterus
          was ruptured. P tried to have res ipsa instruction
      b. Holding – Before res ipsa can be applied in med
          malpractice, P must prove that injury rarely occurs
          and is not inherent risk of procedure. If injury is
                          known risk and can occur despite exercise of due
                          care then no res ipsa instruction.
             k) Mets v. Ganrud (Mont. 1980)
                      a. Facts – Jalopy left road and crashed into tree. P
                          killed, D lived w/o memory. Sunny and clear day,
                          roads were dry.
                      b. Majority Holding – res ipsa not applicable because
                          can’t show Defendant’s negligence was cause; only
                          mere speculation.
                      c. Dissent (Correct) – Majority incorrectly believing
                          something else caused accident is itself speculation.
                          Majority got procedure of res ipsa wrong. P not
                          required to eliminate all possibilities but only to
                          establish basis to infer driver negligence. Jury is
                          free to reject or accept inference absent direct
                          evidence.
W. Medical Malpractice
        1. Standard of care is NOT reasonable person
        2. Standard is ordinary professional standard of care
        3. At trial, standard is only established by expert answering: what is
           the professional standard and did defendant breach it?
        4. Doctors set their own standard.
        5. Brown v. United Blood Services (Nev 1993)
             a) Facts – P received tainted HIV transfused blood from
                 defendants on June 5, 1984. March 1985 test for Aids first
                 became available. P wanted a reasonable person standard of
                 care applied; D wanted a professional standard of care
                 defined by prevailing customs and practices of reasonably
                 competent blood banks in similar circumstances.
             b) Holding – court granted professional standard
             c) Policy reasons: wanted adequate blood supply vs.
                 protecting individuals.
X. Doctrine of Informed Consent
        1. Foundation is tort law of assault and battery.
        2. Two standards
             a) Professional medical standard – physician required to
                 disclose those risks which a reasonable medical practitioner
                 of like training would disclose under the same or similar
                 circumstances: requires expert testimony
             b) Lay standard (materiality of the risk or prudent patient) –
                 duty measured by the patient’s need for information. Don’t
                 need expert testimony. Jury determines if a reasonable
                 person in the patient’s position would have considered the
                 risk significant in making decision. Physician must disclose
                 those known risks which would be material to a prudent
                 patient in determining.
        3. Two Causation Tests
            a) Subjective Standard – P must prove she wouldn’t have
                 consented to treatment if properly informed
            b) Objective Standard – P must prove that reasonably prudent
                 person wouldn’t have had surgery if properly informed
        4. Phillips v. Hull (Miss 1987)
            a) Facts – P had tubal ligation but became pregnant. P sued
                 for alleged negligent treatment in performance of tubal
                 ligation and lack of informed consent
            b) Holding – D produced evidence that he had exercised
                 professional care (custom) and P didn’t produce any expert
                 testimony, so she loses on that issue. Found material fact
                 barring SJ on informed consent.
        5. Burlingham v. Mintz (Mont 1995)
            a) MT SC rejected locality rule for non-emergency dental
                 care.
                            i. Causation
Y. But For Test
        1. But for the Defendant’s allegedly negligent conduct, Plaintiff
           would not have suffered harm. Thus Defendant’s conduct is a
           cause in fact of the harm.
             a) Nixon v. Mr. Property Management Company, Inc.
                      a. Facts – Plaintiff was dragged directly to
                         Defendant’s vacant apartment building, which
                         encouraged vagrants, and was raped.
                      b. Holding – But for Defendant’s failure to comply
                         with maintenance standards, the crime wouldn’t
                         have happened because the criminal was aware of
                         apartment’s condition.
        2. If Plaintiff would have suffered the harm had Defendant not
           acted negligently, than Defendant’s allegedly negligent conduct
           is not a cause in fact of Plaintiff’s harm.
             a) Sowles v. Moore (VT 1893)
                      a. Facts – Plaintiff’s horses fell into hole in ice.
                         Defendant was negligent in covering or blocking
                         hole.
                      b. Holding – Even though Defendant was negligent, he
                         wasn’t liable because the Plaintiff would have
                         suffered the harm anyway. “But for the negligent
                         conduct, the result would have been the same.”
             b) Salmeto
                      a. Facts – Pregnant woman argued that doctor should
                         be held liable because he failed to ask if she was
                         pregnant before giving her an X-ray which harmed
                         baby.
                       b. Holding – Court held that because the woman
                           would have answered “no” anyway, the but for test
                           fails. Plaintiff should have argued that the negligent
                           act was not requiring a pregnancy test before X-ray.
        3. Plaintiff must convince jury that different, non-negligent conduct
           by Defendant would have avoided harm to Plaintiff. What would
           have happened if Defendant had not acted negligently?
             a) New York Central R.R. Co. v. Grimstad
                       a. Facts – Guy falls off boat and drowns. Wife argues
                           boat owner was negligent by not having life-saving
                           equipment easily accessible. Court rejects
                           argument.
Z. Substantial Factor Test
        1. Defendant’s allegedly negligent conduct is a cause in fact of
           Plaintiff’s harm if it is a substantial factor contributing to
           Plaintiff’s harm.
        2. If Plaintiff would have suffered the harm had Defendant not
           acted negligently, than Defendant’s allegedly negligent conduct
           is not a substantial factor or cause in fact of Plaintiff’s harm.
             a) Phillips v. Perils of Pauline Food Production Co.
                       a. Facts – Ex-football player beat up in Defendant’s
                           parking lot, which was in bad neighborhood and
                           didn’t have any security measures (lighting,
                           attendant, camera). Defendant said it wasn’t
                           substantial factor because injuries would have
                           occurred anyway.
                       b. Holding – Court held that jury was reasonable in
                           concluding that additional security measures would
                           have likely prevented Plaintiff’s harm.
        3. Used when there are two or more parties acting independently
           and simultaneously creating a single injury and the negligent act
           of either actor alone was sufficient to cause the injury. But for
           test fails in this situation. Duplicative Cases
             a) Corey v. Havener
                       a. Facts – Defendants, both on motorcycles, scared
                           Plaintiff’s horses.
                       b. Holding – Must apply the substantial factor test
                           because the but for test fails since either actor acting
                           alone would have been sufficient (duplicative cases)
        4. When two parties are negligent and each is necessary for
           Plaintiff’s harm to occur, causation passes both the but for test
           and the substantial factor test.
             a) Smith v. J.C. Penney
                       a. Facts – Plaintiff sues gas station, J.C. Penney, and
                           maker of the fabric of the fur coat.
                    b. Holding – Both parties are each a substantial factor
                        as well as a but for when each is necessary for
                        Plaintiff’s harm to occur.
      5. Two parties are not each a substantial factor when one of the
         parties’ conduct caused the harm before the other did
         (preemptive causation) even if the second one would have been
         sufficient to cause the harm if it happened more quickly than the
         first.
           a) Mitchell v. Gonzales
                    a. Facts – Parents sued other parents for causing the
                        drowning death of their child (who couldn’t swim)
                        by not supervising him.
                    b. Holding – Court held that the “but for test”
                        shouldn’t have been given to the jury because it
                        mis-focused the jury’s attention on the closest in
                        time cause. Should have used substantial factor
                        test.
AA.     Burden-Shifting (a.ka. alternative liability theory)
      1. Unable to determine which of two negligent parties caused the
         harm.
      2. Done in few cases and applied narrowly
      3. Necessary factors for burden-shifting
           a) More than one defendant
           b) All defendants acted negligently
           c) Only one of the defendants caused the harm but don’t know
                who
           d) Plaintiff can’t prove which defendant is responsible
           e) Not acting in concert, but there is a relationship
           f) The acts of negligence are simultaneous
           g) Responsible party must be in court
           h) Defendants has better access to proof of who actually
                caused harm than Plaintiff does.
      4. Summers v. Tice
           a) Facts – Plaintiff and Defendants were hunting. Defendants
                negligently shot in direction of Plaintiff. Plaintiff was
                struck in eye by a BB from one of the Defendant’s shotgun
                shells. Since the Defendants both were using the same
                ammo and both shot simultaneously, Plaintiff could not
                determine which of the two actually caused the harm.
           b) Holding – Burden of proving causation shifts to Defendants
                (see necessary factors above)
      5. Barron v. Martin-Marietta
           a) Facts – There are two sets of Plaintiff’s – morning and
                afternoon. Morning plaintiffs got ill from toluene exposure
                from MMC. Second set of Plaintiffs also got sick but were
                  exposed to MMC and IMI canisters. MMC canisters in
                  afternoon were low.
              b) Holding – Burden shifting doesn’t apply here because
                  Plaintiff failed to bring IMI into court (missing party) and
                  didn’t provide enough evidence that MMC acted
                  negligently since the low levels of toluene in MMC
                  canisters might indicate that the IMI were dangerously
                  overfilled. They failed to bring in expert testimony.
         6. Fugere v. Pierce
              a) Facts – Plaintiff was hit negligently by one Defendant from
                  in front and second Defendant from behind. Both
                  Defendant’s caused the harm, but couldn’t apportion the
                  damages
              b) Holding – Burden of proving apportionment of damages
                  shifts to Defendants. If apportionment not possible, both
                  Defendants are equally liable, jointly and severally.
BB.        Proof of Causation
         1. Sufficiency of Evidence
         2. Preponderance standard
         3. Ingersoll v. Liberty Bank of Buffalo
              a) Facts – Plaintiff’s husband fell down Defendant’s shabby
                  steps while carrying package. There was a broken piece of
                  the step at the bottom. He died of a heart attack several
                  months later. Defendant claims he fainted and then the step
                  broke when the package dropped.
              b) Holding – No marks on package indicating it fell with
                  enough force to break step. Plaintiff must prove that his
                  causation theory was more probable and reasonable than
                  other possible ones. Plaintiff’s theory was more plausible
                  and he doesn’t have to disprove competing theories.
                              i. Scope of Liability
CC.         Doesn’t arise until plaintiff has proved other four elements.
DD.         Tool of defendant: “Yea, I was negligent and somebody was
    damaged, but plaintiff still shouldn’t recover because…”
EE. Modern trend is that scope should be expanded because it is easier to get
    manufacturers to make safer products than to change people’s behavior.
FF. Montana takes up unforeseeable consequences and unforeseeable
    plaintiffs under duty. Intervening forces under proximate cause portion of
    the causation element (other portion is cause-in-fact).
GG.         Direct Consequences
HH.         Foreseeable Consequences
          1. Most jurisdictions have adopted this standard
          2. “Not measured by what is empirically more probable than not,
               but what is likely enough in the setting of modern life that a
               reasonably thoughtful person would take account of it in guiding
               practical conduct” - Bigbee
II. When a Scope of Liability Analysis is Necessary
          1. Are there arguably unforeseeable consequences?
          2. Are there arguably unforeseeable plaintiffs?
          3. Are there arguably intervening forces that can be classified as
             superceeding?
JJ. If answer yes to above questions, than do a scope analysis:
          1. Risk Rule: Was defendant’s ANA if the
          2. Foreseeability Analysis.
          3. Three Possible Ways to Escape Foreseeablility Rule
               a) Exception to the Foresight Rule as a Matter of Law
                       a. Eggshell Skull Rule
                              i. Stoleson v. United States (7th Cir 1983)
                                      1. Facts – woman was exposed to
                                          nitroglycerin at work and was having
                                          chest pains on weekends. She quit
                                          job but continued to have health
                                          problems. They were caused for
                                          psychosomatic but not by organic
                                          reasons. Hypochondriachal damages.
                                          Gov said that her symptoms should
                                          have abated after she left plant and
                                          thus shouldn’t recover to
                                          hypochondria. Also doctor gave her
                                          wrong diagnosis.
                                      2. Holding – Doesn’t matter if you
                                          didn’t know about condition and
                                          wasn’t reasonably foreseeable. Too
                                          bad. Psychological vulnerability is
                                          equally recoverable as physical
                                          vulnerability. However, P still can’t
                                          recover because she would have
                                          undergone some other event which
                                          would have triggered hypochondria.
                       b. Medical Malpractice
                              i. If tortfeasor is liable for injury which
                                  requires medical attention and then there is
                                  malpractice, then tortfeasor is also liable for
                                  malpractice.
                       c. Complications Rule
                       d. Rescuer Rule
                              i. Danger invites rescue and rescue is always
                                  reasonably foreseeable.
                             ii. Prior Aviation Service v. New York (1979)
                                      1. Facts – Rescuer suing rescuer. P
                                          alleges State had helicopter that
                                          wasn’t properly equipped with
                   bullhorn and wench. P tried to use
                   statute.
               2. Holding – State did not breach its
                   duty of reasonable care because of
                   the emergency situation. Statute
                   doesn’t apply because it was
                   intended to encourage public
                   assistance and protect rescuers.
      iii. Oscar Klein v. Boyd (FL 1984)
               1. Facts – Wholesale jeweler sued
                   building owner when contractor
                   raised dust over P’s jewelry. P got
                   carpal tunnel cleaning night and day.
               2. Holding – Under traditional
                   foreseeability rule, P wouldn’t
                   recover because D couldn’t foresee
                   that P would work so hard and get
                   carpal tunnel because property
                   wasn’t in immediate peril.
e. Criminal Conduct of 3rd Person
        i. Price v. Blaine Kern Artista (1995)
               1. Facts – P was wearing oversize mask
                   and was pushed and injured neck.
                   Claim D manufactured defective
                   masks because they didn’t have
                   safety features.
               2. Holding – Defendant’s should have
                   foreseen the probability of attack on
                   Bush. Normally superceding factors
                   are unforeseeable, but if intervening
                   act is reasonably foreseeable.
f. Suicide Rule
        i. Stafford v. Neurological Medicine (1987)
               1. Facts – doctor told sick woman that
                   she didn’t have brain tumor, but
                   when he filed insurance claim he
                   listed diagnosis as brain tumor
                   instead of rule out. P then committed
                   suicide.
               2. Holding – Is it foreseeable that P
                   would see diagnosis and would
                   suffer harm? Yes.
               3. Rule - When person’s actions cause
                   victim to become insane and bereft
                   of reason such that the victim
                                  involuntary commits suicide,
                                  person’s actions are proximate cause.
    b) Shifting Responsibility Rule
           a. McLaughlin v. Mine Safety (1962)
                     i. Facts – P says ANA was not putting warning
                         on heat block and only package. D says that
                         firefighter was superceding cause and
                         should have known better.
                    ii. Holding – Firefighter failing to inform nurse
                         and watching it happen was gross
                         negligence and worse than any
                         manufacturing event. Manufacturer couldn’t
                         foresee that firemen would disregard
                         instructions.
    c) Matter of Policy
           a. Court deals as precedent setting as opposed to
                individual jury instruction
           b. Pitre v. Opelousas General Hospital (1988)
                     i. Facts – tubal ligation botched on mother.
                         Albino child born with vision problems.
                         Plaintiffs seeking damages for 1) pain and
                         suffering; 2) mental distress for birth of
                         child; 3) fathers consortioum; 4) expenses of
                         pregnancy. Next set of damages relate to
                         child’s disorder. No causation issue.
                    ii. Holding – Plaintiffs entitled to some of the
                         damages. All of the damages to plaintiff are
                         reasonably foreseeable, but Plaintiffs don’t
                         recover as an exception due to foresight rule
                         as a matter of policy. Plaintiffs can recover
                         for costs and emotional harm for pregnancy
                         and delivery. But it would be bad policy to
                         treat a child as damages. Don’t want to give
                         message that child shouldn’t have been
                         born. Can’t recover for damages suffered for
                         child’s abnormality b/c it wasn’t reasonably
                         foreseeable for defects as Plaintiff pleaded.
4. Foreseeability Analysis
    a) Turns on advocacy and facts.
    b) Bigbee v. Pacific Telephone (1983)
           a. Facts – P in phone booth was hit by drunk driver P
                argued bad design and bad placement of booth. D
                says that driver of cause was superceding cause and
                that it wasn’t foreseeable that car driven by drunk
                would crash into phone booth at night.
                      b. Holding – Was reasonably foreseeable.
                          Foreseeablility is not more likely than not, but
                          general character
                      c. Dissent – if we can’t put phone booths near
                          highways, what’s the point: Learned Hand’s utility.
               c) Allen v. Shiroma (OR 1973)
                      a. Facts – Defendant caused minor traffic accident.
                          Plaintiff got out to direct traffic. Plaintiff asked
                          minor to move car and hit plaintiff.
                      b. Holding – P can’t recover because getting underage
                          and incompetent driver is unforeseeable. A
                          “concatenation of highly unusual circumstances.”
               d) Cusenbary v. Mortensen (Mont 1999)
                      a. Facts – guy in wheelchair gets brought to bar by
                          family and gets drunk. Family puts guy in car and
                          then guy scoots over and drives through tavern wall.
                          P says that by violating dram shop act by serving
                          obviously intoxicated person. Defendant says that
                          driving through wall was superceding cause.
                      b. Holding – driving through wall was intervening and
                          not superceding act because it was reasonably
                          foreseeable.
                      c. If one of the reasons that makes a defendant’s act
                          negligent is a greater risk of a particular harmful
                          result occurring, and that harmful result does occur,
                          that defense is generally liable.
                      d. Montana only does a scope of liability analysis if
                          there are intervening forces in terms of causation
                          then they look at foreseeability. Was intervening
                          force reasonably foreseeable?
                      e. Montana looks at foreseeability of plaintiff under
                          the duty element.
                      f. Wheelchair doesn’t matter because statute doesn’t
                          address intoxicated person’s medical condition
               e) LaTray v. City of Havre (Mont. 2000)
                      a. Facts – Police officers failed to exercise proper
                          control over woman transported to hospital with her
                          sister.
                      b. Defendant argued that woman beating up nurse was
                          an intervening force not reasonably foreseeable.
                      c. Holding – officers had duty because they had
                          custodial control of woman.
                              i. Damages
KK.      Unlike intentional torts, Plaintiff must suffer legally recognized
  harm – no nominal damages.
LL. Old Rule – used to have to have physical injury. Emotional distress
    recovery must be parasitic to other claim like battery. Emotional distress
    alone cannot be recovered. No duty not to inflict emotional injury.
MM.        New Rule –
                               i. Defenses
NN.       Contributory Negligence
        1. Plaintiff’s misconduct was a substantial factor in contributing to
            the harm.
        2. Two elements at issue under contributory negligence:
              a) Breach
              b) Causation
        3. At common law finding of contributory negligence meant no
            recovery at all.
OO.       Comparative Negligence
        1. Pure – Plaintiff can recover no matter what his negligence
            contribution.
        2. Modified – If plaintiff’s negligence exceeds defense’s negligence
            than no recovery (MT) or if plaintiff’s negligence does not equal
            than no recovery.
PP. Assumption of the Risk
        1. Express – explicit oral or written permission to release another
            party from an obligation of reasonable care and assumes the
            chances of a known risk.
        2. Implied
        3. Primary – limited duty or no breach
              a) Secondary – same as contributory negligence.
              b) Knowledge of the Risk
              c) Appreciation of Risk
              d) Voluntary Exposure to Risk
                               i. Products Liability
QQ.         Claims against manufactures and sellers of defective products for
    harm to persons or property.
RR.         Emphasis under strict liability doctrine is upon the safety of the
    product, rather than the reasonableness of the manufacturer’s conduct.
SS. Policy reasons: deterrence; manufacturers can readily absorb or pass on
    costs of liability to consumers as a cost of doing business; injured persons
    shouldn’t have burden of proving negligence; place responsibility on
    manufacturer; place responsibility on retailer as a conduit to reach
    manufacturer; less consumer vigilance today because of advertising and
    reliance on trademark.
TT. Policy against – moving away from fault-based standard of reasonable
    care; consumers should be able to purchase its own level of safety; design
    defects are troubling (wrong people making decisions).
UU.         Pre-1960 two types of claims could be brought
          1. Breach of warranty
                a) Express – contract terms, advertising, product literature
               b) Implied warranty of merchantability
                       a. UCC “fit for the ordinary purposes for which such
                           goods are used.”
                       b. Sellers could defeat claim if:
                                i. Disclaimed warranty or limited remedies
                               ii. Injured person was not purchaser
                             iii. Buyer failed to give prompt notice
                              iv. Product considered merchantable matched
                                   customary design practices
        2. Negligence
               a) Expanded by McPherson v. Buick beyond contract
               b) Defenses/Drawbacks:
                       a. Hard to show specific negligent act
                       b. Open and obvious danger
                       c. Contributory negligence
                       d. Assumption of risk
                       e. Scope of liability limitations
VV.       If use foreseeability standard instead of hindsight or strict standard
  than encouraging companies not to go out and get more info and test
  because that could be used against them later. COUNTER: Not bringing
  experimental products to market that could be highly beneficial.
WW.       Escola v. Coca Cola (CA 1944)
        1. Justice Traynor’s concurring opinion argued for strict liability,
            but majority ruled under negligence per se.
XX.       Henningsen v. Bloomsfield Motors (NJ 1960)
        1. Facts – Guy bought car for his wife. When she was driving it the
            car lost steering and went into a brick wall. Couldn’t determine
            exact cause. Plaintiff used implied warranty of merchantability.
        2. Holding – Got rid of privity restrictions (MacPherson) for breach
            of implied warranty of merchantability, which now extended to
            purchaser, members of his family, and persons occupying or
            using the car with the owner’s consent.
YY.       Greenman v. Yuba Power Products (CA 1963)
        1. Facts – Man used power tool. When using it as lathe, piece of
            wood came out and smacked him on head. Inadequate set screws
            used to hold parts of machine together and poorly designed.
            Breach of express warranty from brochure.
        2. Holding – “A manufacturer is strictly liable in tort when an
            article he places on the market, knowing that it is to be used
            without inspection for defects, proves to have a defect that causes
            injury.” Injury must sustained while using the product “in a way
            it was intended to be used as a result of a defect in design and
            manufacture of which plaintiff was not aware that made the
            [product] unsafe for its intended use.” Got rid of contractual
            basis (breach of warranty and privity) for recovery for defective
             products. Plaintiff doesn’t need to give UCC prompt notice. Fact
             that product has a defect replaces due care element.
ZZ. Barri’s 402A elements
          1. The defendant was a seller engaged in the business of selling
             such a product.
          2. The plaintiff was a consumer or user of the product (bystander?)
          3. Sale – The defendant “sold” the product
          4. Product – The defendant sold a “product” rather than provided a
             service
          5. The product was in a “defective condition unreasonably
             dangerous”
               a) Manufacturing Defect
                      a. Defective condition is inconsistent with the
                           manufacturer’s own production standards or design
                           specifications.
                      b. Ordinary consumer expectation’s test – a design is
                           defective if product performs less safely than an
                           ordinary consumer would expect.
               b) Design Defect
                      a. When a reasonably safer design was technologically
                           feasible when the product was sold and would not
                           unduly impair the overall utility of the product.
                      b. Product can be defective even if it meets
                           manufacturer’s own specifications.
                      c. Different than manufacturing defect because
                           plaintiff is condemning an entire product line.
                      d. Consumer Expectations Test – if a product
                           performs less safely than an ordinary consumer
                           would expect. (In comment d)
                                i. Benefit – allows for using marketing and
                                   advertising materials to establish standard.
                               ii. Problem – consumers might have unrealistic
                                   standards (hold manufacturers to unrealistic
                                   standards).
                              iii. Problem – if there is an open and obvious
                                   danger, manufacturer isn’t liable for not
                                   redesigning even at minimal costs - hurts
                                   plaintiff.
                              iv. Problem – in complex design cases, difficult
                                   to come up with independent standard.
                               v. Kutzler v. AMF Harley Davidson (Ill App
                                   1990)
                                        1. Facts – Plaintiff motorcycle rider
                                           sideswiped by car. P claimed bike
                                           defective because of extra-wide gas
                                           tank and lack of crash bars.
                2. Holding – Court used consumer
                    expectations test, which bars
                    recovery for open and obvious
                    dangers. PL doesn’t make
                    manufacturer insurer.
                3. Dissent – consumer expectations test
                    is bad b/c it allows manufacturers to
                    escape liability for defects that are
                    open and obvious even when they
                    can be fixed with little burden.
                    Should also apply “crashworthiness”
                    doctrine – foreseeable use of vehicle
                    results in collisions.
      vi. Lester v. Magic Chef, Inc. (Kan 1982)
                1. Facts – Kid climbs on stove and
                    turns it on and burns. No childproof
                    knobs.
                2. Holding – KS court rejected risk
                    utility test and stuck to consumer
                    expectation test.
e. Risk Utility Test – product has a design defect at
   the time of manufacture if the risk of danger
   exceeds the burden to the manufacturer of making
   the product safer. (Not in 402A)
        i. Probability of the accident happening and
           the gravity of the harm VS costs of
           alternative safer design (feasibility, costs,
           consequences to product and society if
           alternative design is adopted)
       ii. Problem – uses a negligence analysis not
           strict liability
      iii. Problem – most courts require that
           manufacturers have foresight of the risk to
           be liable.
      iv. How to Make Less like Negligence
                1. Shift burden to the defendant to
                    show that utility of the product as
                    designed outweighs the danger (see
                    Barker below).
                2. Shift burden to defendant of showing
                    lack of reasonable foresight at time
                    of manufacture.
                3. Restrict defenses (comparative fault
                    eliminated)
                4. Hindsight test – if a risk of harm
                    becomes known by the time of trial,
                        it is presumed that the manufacturer
                        had knowledge of the risk at the time
                        of production. (Minority and MT).
                    5. Evidentiary changes – post accident
                        product design changes are
                        admissible to show what was
                        possible.
            v. Criticism – lay juries second guessing
                design engineers in complex cases.
           vi. Criticism – juries second-guessing market
                forces.
          vii. Criticism – too expensive to prove thus
                barring ordinary claims
     f. Two-prong standard in CA – both risk-utility and
        consumer expectations test.
            i. Barker v. Lull Engineering Co. (CA 1978)
                    1. Facts – P hurt by loader that didn’t
                        have seat belt or roll bar. Claimed it
                        was unstable and should have had
                        outriggers.
                    2. Holding – A product is defective if
                        (1) the product failed to perform as
                        safely as an ordinary consumer
                        would expect when used in an
                        intended or reasonably foreseeable
                        manner or (2) product proximately
                        caused injury and defendant fails to
                        prove that on balance the benefits of
                        the challenged design outweigh the
                        risk.
     g. State of the Art
            i. Not only the common practice and standards
                in the industry but also other design
                alternatives within practical and
                technological limits at the time of
                distribution
c) Warning Defects
     a. Failure to warn consumers of the material risks of
        danger in the use of the product or if the
        manufacturer fails to adequately warn.
     b. Product may be defective even if a warning is
        given.
     c. Uses consumer expectations test or risk-utility test.
     d. Problem – over-warning can lead to consumer
        complacency.
     e. Problem – no standards in many industries
            f. Failure to warn
                    i. Macrie v. SDS Biotech
                           1. Defendant must show that his failure
                               to warn was reasonable – burden-
                               shifting.
                   ii. Feldman v. Lederle Laboratories (1984 NJ)
                           1. Facts – D did not warn doctors that
                               tetracycline would cause
                               discoloration of teeth. D says it
                               didn’t know about the discoloration
                               at time of marketing.
                           2. Holding – Look at time of
                               manufacturer to see what is
                               knowable (majority).
            g. Inadequate warning
                    i. Criteria for determining adequacy of
                        warnings
                           1. explicitness
                           2. comprehensible to typical users
                           3. clarity of warning
                           4. conspicuousness of warning
                           5. means used to convey warning
                   ii. Nowak v. Faberge (1992)
                           1. Facts – P’s sister bought hairspray. P
                               tried to use it but wouldn’t come out
                               due to faulty valve. She punctured
                               hairspray bottle to try to pour it in
                               another bottle. Manufacturer
                               changed ingredients making it more
                               flammable. Marketing decided not to
                               change labeling.
                           2. Holding – Warning was insufficient
                               b/c of its size, position, and coloring
                               of lettering in comparison to
                               promotional language. Especially
                               true considering intended audience –
                               teenagers. Misuse occurred after
                               malfunction. Misuse must be
                               extraordinary and not reasonably
                               foreseeable looking back to bar
                               liability. Liability for failure to warn
                               exists when there is sufficient
                               evidence that a warning might have
                               made a difference.
6. The product was expected to and did reach the user or consumer
   without substantial change in the condition in which it was sold.
       7. Causation – The defective condition was the cause-in-fact of
          plaintiff’s physical harm
       8. Damages – only physical harm to person or property (not just
          economic)
       9. Scope of Liability - The plaintiff must have been using the
          defective product for its intended purpose when s/he suffered
          injured
AAA.
         Restatement 3rd
       1. Uses Reasonable Alternative Design standard.
                     a. Potter v. Chicago Pneumatic Tool (Conn. 1997)
                             i. Facts – Plaintiff’s used D’s pneumatic tools
                                for about 20 years whose vibrations caused
                                hand vibration syndrome. Defendants claim
                                that plaintiff had burden of showing feasible
                                alternative design available at time of
                                putting tools in stream of commerce.
                            ii. Holding – Court refused to adopt
                                Restatement 3rd requiring availability of
                                reasonable alternative design. “Ordinary
                                consumer expectation test is appropriate
                                when the everyday experience of the
                                particular product’s users permits the
                                inference that the product did not meet
                                minimum safety expectations.” Jury should
                                use risk-utility balancing “when the
                                particular facts do not reasonably permit the
                                inference that the product did not meet the
                                safety expectations of the ordinary
                                consumer.” (modified consumer expectation
                                test) RAD inadequate because: undue
                                burden on plaintiffs to retain experts;
                                manufacturer should be liable even if no
                                RAD exists. Availability of RAD is a factor
                                plaintiff may, rather than must, prove in
                                order to meet modified consumer
                                expectation test.
       2. Consumer expectations become only one factor in deciding if
          challenged design was defective in consideration of RAD.
       3. Plaintiff has burden of proof.
       4. Plaintiff has to choose between design and warning defect
          claims, can’t bring both.
BBB.     Molloy Lecture
       1. Huff’s 3 Elements: 1) structure of the norms – what we are trying
          to do (big picture) – (negligence: deterrence, compensation
          injured parties, holding person at fault responsible) (Products
          Liability – safe products and compensation); 2) Rules, Principles,
           and Doctrine (coordinating principle lacking in negligence so it
           is fact-based) (Products Liability – clearer principles); 3)
           application.
       2. Strict Liability comes from McPherson adopted in Montana by
           Brandenburger (1973). MTLA trying to protect workers.
       3. Chapman – distinction between neg and product liability: Neg
           deals with conduct of actors while PL deals with condition of
           product. If choosing neg, open up defenses. Lutz 267 Mont 368
           says no defenses to strict liability except assumption of risk
           (subjective standard – knew hazard and consequences) and
           misuse of product (which is hard to use because foreseeable
           misuse of product is not a defense)
       4. Hazard – any condition or changing set of circumstances that
           presents the potential for injury
       5. Risk – probability
       6. Danger – unacceptable combination of hazard and risk.
       7. Rule – any risk of serious injury or death is always unacceptable
           and always unreasonable if there is a reasonably economic and
           scientifically alternatives that would either eliminate risk of
           serious injury or death or reduce the probability of it occurring.
       8. Application – 1) having light automatically go on on motorcycle.
       9. 3 theories of strict liability in MT: manufacturing defect; design
           defect; failure to warn (labeling defect).
       10. Engineer Criteria for Product Design
             a) Eliminate identified hazards
             b) Guard against hazards that can’t be eliminated.
             c) Warn and instruct on proper use of product.
CCC.

				
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Description: This is an example of elements of negligence. This document is useful for conducting elements of negligence.