Elements of Negligence

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 hyperactive 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) | x. | Nature and Seriousness of Harm (L) | Burden (B) 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. Nonexistence 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. d) e) f) g) b. Holding – Mere fact that the accident occurred is evidence of negligence. A barrel could not roll out of a warehouse without some negligence. 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. 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. 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. 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. AA. 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. 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 BB. 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. 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 – burdenshifting. 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. AAA. BBB. 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 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. 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.