Elements of Negligence
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
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
i.Didn’t warn about the dangers. Here, not
negligence because decedent was coal strip
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
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)
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
c) Innocent Prior Conduct - The actor caused the harm but not
d) Reliance on a Gratuitous Promise
e) Intentional Prevention of Aid by Others
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
b. Licensee – have permission to be there but aren’t
invitees; social guest
i. Landowner not responsible for condition of
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
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
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
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
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
a) Plaintiff must be in zone of foreseeable risk of physical
b) Some courts added emotional distress be severe and there
be some physical consequences manifested by the severe
6. Bystander Emotional Harm Rule (don’t have to be personally
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
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
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
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
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
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
a) Let’s kids be kids (don’t ruin childhood)
b) Must allow kids to gain experience without punishing them
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
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
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
Probability of Risk Happening (P) | Burden (B)
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
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
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
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
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”
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
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
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)
2. Lack of Knowledge of the Need to
Comply (tail light goes out while
driving – can’t discover)
3. Inability After Reasonable Diligence
5. Compliance Involves Greater Risks
6. Otherwise Reasonable Under the
b. Presumption of Negligence
i. Once proved that defendant violated statute
and other tort elements, than defendant must
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
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
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
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
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
c. Res ipsa permits an inference of negligence that can
survive a motion to dismiss. Does not shift burden
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
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.
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.
1. Defendant had exclusive control of
instrumentality during ANA.
2. Disprove possible 3rd party
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
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
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
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.
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
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
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
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.”
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
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
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
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
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
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
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
AA. Burden-Shifting (a.ka. alternative liability theory)
1. Unable to determine which of two negligent parties caused the
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
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
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
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
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
c. Complications Rule
d. Rescuer Rule
i. Danger invites rescue and rescue is always
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
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
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
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
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
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
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
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.
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 –
NN. Contributory Negligence
1. Plaintiff’s misconduct was a substantial factor in contributing to
2. Two elements at issue under contributory negligence:
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
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.
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
a) Expanded by McPherson v. Buick beyond contract
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
5. The product was in a “defective condition unreasonably
a) Manufacturing Defect
a. Defective condition is inconsistent with the
manufacturer’s own production standards or design
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
iii. Problem – if there is an open and obvious
danger, manufacturer isn’t liable for not
redesigning even at minimal costs - hurts
iv. Problem – in complex design cases, difficult
to come up with independent standard.
v. Kutzler v. AMF Harley Davidson (Ill App
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
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
2. Holding – KS court rejected risk
utility test and stuck to consumer
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
iii. Problem – most courts require that
manufacturers have foresight of the risk to
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
2. Shift burden to defendant of showing
lack of reasonable foresight at time
3. Restrict defenses (comparative fault
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
v. Criticism – lay juries second guessing
design engineers in complex cases.
vi. Criticism – juries second-guessing market
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
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
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
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
c. Uses consumer expectations test or risk-utility test.
d. Problem – over-warning can lead to consumer
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-
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
g. Inadequate warning
i. Criteria for determining adequacy of
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
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
9. Scope of Liability - The plaintiff must have been using the
defective product for its intended purpose when s/he suffered
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
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)
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.