TORTS
Professor Heise
Hiral Mehta
I) INTRODUCTION
A) What is a tort?
1) Torts are lawsuits b/w private individuals and non-public entities
2) 3 types
(a) intentional
(b) negligent
(c) strict
3) Tort System’s goals
(a) corrective justice
(b) optimal deterrence
(c) loss distribution
(d) victim comp
(e) social grievance
B) Elements of Tort
1) Context Matters!
2) Flow of Information
C) One of the theoretical goals of tort system is to mirror result if parties could sit down with
counsel and discuss duties and remedies considering the tort.
D) Make victim whole, return to state before tort.
E) Three classic contexts for tort (when bad things happen), Spectrum of information flow, least to
greatest:
1) B/w Strangers (Unanticipated)
2) Highway (Strangers who are informed )
3) Intimate (People who know each other very well)
F) Inverse correlation b/w information flow and tort enforcement.
II) INTENTIONAL TORTS
A) Battery
1) Elements
(a) Intent
(i) Purpose OR
(ii) Knowledge
(b) Touch
2) Why a tort?
(a) social goal: individual autonomy
(b) victim compensation
(c) deterrence
(d) corrective justice
3) Vosberg
(a) Rule: If the intended act is unlawful, then the intention to commit the act is also
unlawful. The person commiting the unlawful act is liable for all damages resulting
from that act.
(b) Even if you intended no harm by the touch, if the touch is unlawful, then you are liable for
all harm resulting.
4) Implied License
(a) Assumption of risk helps determine liability
5) Flow of Information
6) Indirect Harms
(a) Rule: IF an act is unlawful and that unlawful act is directed at an extension of
another’s body, then that act still constitutes battery. (Legal Fiction/ Crutch Example)
7) Transferred Intent
(a) Rule: When you intend to hit A but hit B, the intent component becomes satisfied for
B as well.
B) Assault
1) Elements
(a) Imminent Apprehension- the act is capable of immediately inflicting the conflict on her
unless something further occurs
(i) Apprehension v Fear: You can believe that you can defend yourself and still
apprehend the act
(ii) Assault depends on the apprehensions in the victim‘s mind, not the secret intention of
the assaulter
(b) Intent
2) Why a tort?
(a) Societal good: Being able to perambulate w/o being threatened
(b) Victim Comp
(c) Deterrence- So damages not conditional on suffering.
3) De S
(a) Rule: No imminent apprehension requires acknowledgement of the act.
4) Tuberville
(a) Rule: There must be intent and an action to be assault. Mere words alone do not
constitute an assault.
(b) Internal v External factors
(i) Conditional assault can be substantiated if condition is internal
(ii) If external, depends on the context.
(c) Even if you intend to hit someone and miss, still an assault.
5) Other factors to consider:
(a) Body Language and Tone (affect level of apprehension)
(b) Distance (must be imminent both in space and time)
C) Offensive Battery
1) Why a tort?
(a) Societal Interest: Because dignitary harms often lead to breaches of peace
(i) Nexus b/w Insult and Fisticuffs
(b) Deterrence
(c) Victim Comp
2) Elements
(a) Intent
(b) Offensive
(c) Touch
3) Daffy Duck Exception
(a) If accidental, then no dignitary harm.
4) Alcorn
(a) Offensive- of the greatest indignity and highly provocative of retaliation by force
(b) Context matters: public v private
D) False Imprisonment
1) Why a tort?
(a) Societal Goals: Autonomy of locomotion of individuals
(b) Deterrence
2) Elements:
(a) Mere imprisonment v annoyance
3) Bird
(a) Rule: If there is a reasonable exit from the alleged confinement, then the situation
does not constitute false imprisonment.
4) Coblyn
(a) Rule: Any general restraint on the plaintiff by actual force, or demonstration of
physical strength, submitted to by the plaintiff as the only available option, or by the
instilled fear of the plaintiff of a personal dilemma, amounts to a false imprisonment.
5) Parental Exclusions:
(a) There is a parental exception to false imprisonment if the use of physical force is
reasonably necessary to maintain discipline or promote the welfare of the child.
(b) Concept is that parents are acting in good faith by legal assumption
6) Floating Bird-Cage Hypotheticals
(a) Is a floating bird cage false imprisonment? Yes even though it doesn‘t impede her
locomotion
E) IIED
1) Why a tort?
(a) Societal interest in undamaged psyches and resulting physical impediment
(b) Deterrence
2) Non-imminent harm can be IIED (difference from assault)
3) Elements
(a) Outrageous or reckless quality of the action
(b) Emotional or Bodily Harm
4) Context and Form
(a) Context informs our understanding of outrageous; test is whether average
reasonable person would believe conduct is OUTRAGEOUS
(b) Halloween example
5) Third-Party Rule
(a) Actor liable for harms to third party if
(i) third party is family member and present at the time
(ii) third party, present and physically injured
(b) Doesn‘t matter if actor knows of 3rd party
6) Wilkinson
(a) Rule: Outrageous behavior inflicting emotional and physical damages is IIED.
III) DEFENSES TO INTENTIONAL TORTS
A) Consent
1) Factors
(a) Effective/ Constructive Consent
(i) Consent must be informed.
(b) Consider scope/extent of consent.
(c) No consent under duress, fraud
(d) Nature of proof
(i) Objectively reasonable standard for inferring consent
(ii) Effective- The person
2) Why desirable
(a) To protect plaintiff‘s autonomy; so you should be able to permit violations of your bodily
3) Mohr
(a) Rule: Every person has the right to complete immunity of his person from physical
interference by others, except insofar as conduct may be necessary under the general
doctrine of privilege and any unlawful or unauthorized touching constitutes assault
and battery.
4) O‘Brien
(a) Rule: Consent can be implied through non-verbal communication for otherwise
unauthorized touching.
5) Canterbury
(a) Rule: In cases where a physician did not disclose the risks and alternatives of
treatment and where a reasonable person if so informed would have declined the
treatment, and causation between the treatment and the patient’s injuries is
established, damages may be awarded for harms sustained as a result of the
treatment, unless the patient was not able to give consent and risk of injury from
failure to treat outweighs the risk of harm by the proposed treatment; or if
disclosing the risk of proposed treatment presented threat to patient’s well being.
(b) Patient‘s right to freedom of self-decision shapes the boundary of the duty to reveal; this
right can only be exercised when patient has sufficient info; doctor
6) Substituted Consent- To get the correct info flow, the transactions cost would be too high, so
consent legally imposed
(a) Parental, emergency, incompetents
(b) Emergency
(i) When the risk of harm from the act you can‘t consent to is less than
(c) Parental
(i) Consent delegated to the parents when there is a capacity issue (b/c child can‘t make
an actual informed decision)
(ii) Legal fiction is that parents know what child would want
7) Hudson
(a) Rule: Consent does not dissolve liability where the party is promoting a criminal
action which has been specifically addressed by statutory action to protect a certain
class of people who are unable to appreciate the consequences of the action.
(b) IF a statute purports to protect a specific class from either its own inability to understand
the risks assumed or to prevent exploitation by another person, then consent to the action
is no defense from liability.
B) Insanity
1) Why not a defense?
(a) The burden of the injury must be placed on someone; least worst option is the actor
because:
(i) Incents the caretaker to take greater care.
(ii) Impracticality of judicial determination insanity.
(iii) Information gap= no notice of insanity, no assumption of risk
2) McGuire
(a) Rule: The insane are liable, if they are capable of having intent and actually had
intent, regardless of whether their condition caused the intent.
(b) For victim comp, Vosburg rules apply even if insane.
3) Hazard Pay: IF you are paid extra to assume the risk of injury inherent in your job, can‘t sue
for same injury
(a) Don‘t double dip
C) Self-defense
1) Why Defense?
(a) Deterrence
(b) Corrective Justice:
(i) Monetary damages cannot necessarily make you whole
(ii) Time-Lag: Time for cts. to act is too long
2) Elements
(a) Three situations
(i) D-P
1. Plaintiff does something that defendant has to defend themselves from
(ii) D-P-3rd
1. P causes self-defense behavior by D, who injures 3rd person accidentally in
the process. No liability if legitimate self-defense situation but injure 3rd
accidently
(iii) D-Victim-P
1. D leaps to victim‘s aid and beats up P
2. Self-defense transfers from V to D
3) Limits
(a) Proportionality and Commensurate- Defend but not punish
(b) Window- SD is dynamic and fluid, if threat dissipates, action disallowed
4) Couvoisier
(a) Rule: If reasonable person in same circumstances would believe that her life was in
danger or that serious injury would occur then lethal force is allowable.
D) Defense of Property
1) Why a defense?
(a) Deterrence
(b) Social Goal:
(i) Inviolability of property essential to social structure.
(ii) Also, concept of property as extension of inviolability of person. (Degree of
Closeness correlates to defensibility)
1. yard vs bedroom
2) Elements
(a) Ownership of Property
(b) Trespass
3) Scenario
(a) If P trespasses onto D‘s property and does not act
(i) Trespass alone does not merit physical retaliation.
(b) Trespass + Destruction of Property allows touch to remove P from property w/o injury.
(c) Trespass + Resistance= Invokes SD when he attacks you and then proportionate
escalation
4) Special Home Rules
(a) Home is legal fiction of extension of self.
(b) Precluding an easy exit, lethal force can be use.
(c) Burden of risk should not rest on
5) D not home: No more force usable than if you were there.
6) Bird
(a) Rule: Lethal force cannot be used when not present.
7) Katco
(a) Rule: Lethal force, any action that could reasonably result in a person’s death, is not
allowed when not present or if not your home.
E) Necessity
1) Why a Defense:
(a) Social Good: Life is more than property.
(i) Economic efficiency: Don‘t sacrifice more for less.
(b) Loss distribution
(i) Act of God Rule: Some things are beyond human control and so no liability.
2) Limitation: Not a defense if person engaged in tortious conduct.
(i) However, there is a window when necessity could be used in situations of risk to life
or property.
3) Tort Nugget: In an emergency, the laws of property are suspended out of necessity and all
property is held in common for the public good. (Lifeboat, Luggage)
4) Ploof:
(a) Rule: Everyone must bear loss of property to save life.
5) Vincent
(a) Rule: Rules regulating property are suspended during emergencies, and if property
is damaged as a result of the emergency, no one is liable.
(b) Rule 2: If person acts to preserve their property at the expense of another’s, they are
liable for damages to the other.
6) Theoretical- Pro Rata: IF unequal values brought in, then value taken out by each is
proportional.
F) Bilateral Monopoly
1) Prevented b/c duress
2) Contract is not valid under duress, so necessity is defense to breach of contract.
3) Dock owner can only charge reasonable fee.
4) Societal Interest in avoiding contract under duress/monopoly
IV) NEGLIGENCE
A) Elements
1) Duty of reasonable care
2) Breach of that duty
3) Causation
(a) Implied in fact +
(b) Proximate Cause
4) Harm/ Resulting Damages
B) Plaintiff has to prove and plead proper all four elements
C) The Journey to Negligence (How did I get here? This is not my beautiful torts philosophy)
1) Holmes (Negligence) v. Strict Liability
(a) There is a struggle between Neg. and Strict liability: do we want a fault based system?
(i) We decide to go for Negligence: The American Way
(b) Brown (American Decision) v. Fletcher (British Decision)
(i) Brown: Adopts a fault based (negligence system) ―Stick hitting the eye case‖
(ii) Court decided that the injury to the eye was a Tort only if D acted unreasonably.
1. Defendant is Liable if defendant acted unreasonably
2. What about when bad things happen when people act reasonably?
3. That is the realm of bad luck
(c) Fletcher
(i) P‘s mine flooded by man-made reservoir on the D‘s land; reservoir fails and water
floods onto P‘s mine shaft
(ii) Court decides in favor of P because D is strictly liable
(iii) Depending on the circumstances, an act may be unnatural but also
unreasonable.
(d) Who got it right: Brown or Fletcher?
(i) Its all about who has to bear the cost of ―bad luck.‖
(ii) How large is the subset of bad luck: when someone gets hurt, is it the case that
someone is always negligent?
2) Role of Statutes within the Strict Liability Regime
(a) Sparks from D‘s train sets fire to P‘s hay
(b) Court finds D strictly liable for the incident:
(c) Legislature had a statute that permitted the use of trains but:
(i) You can run trains
(ii) But if you run trains negligently, you will pay but in this case: Court says no
negligence but still liability: what gives?
(d) Today: If you follow a statute, it does not mean you are not negligent: However, if you
violate a statute: it is usually negligence per se.
3) Negligence: Historical and Intellectual Context
(a) Negligence System:
(i) Fault based
(ii) Pivots on reasonable person standard
(iii) Holmes is all about negligence: thinks strict liability sucks.
1. Holmes says you have to have one or the other: not true, we have both
negligence and strict liability in our system today.
2. Solid Holmes argument: Business of the law of torts is to fix the dividing
lines between those cases in which a man is liable for harm which he has
done and those he has not.
3. Defendant needs to have made a choice, the power to avoid evil in ones
choices depends if the evil could have been foreseen.
4. No case or principle can be found subjecting an individual to liability for an
act done without fault on his part.
D) The Reasonable Person: That odious character
1) Objective
(a) Discard a subjective standard for an objective one:
(i) Note: As we continually tweak reasonable person standard in light of the
circumstances: we move toward a subjective standard.
(b) Costs/ Benefits
(i) Vaughn v. Menlove (I‘m a stupid person defense: placing haystack close to P‘s
cottage when haystack D knew haystack was combustible) p. 145
1. D said he‘d chance it: not a reasonable person.
2. Rule: We don’t use a subjective standard when applying liability in
negligence: we use an objective reasonable person standard.
(ii) Problem: Can we hold such a standard to everyone?
(iii) Holmes: ―the law considers what would be blameworthy
2) Exceptions to the Objective Standard
(a) The Child Standard
(i) Children are not held to the reasonable person standard, they are held to the
reasonable X years of age standard where X is the age of the child.
(ii) Why do we have this exception:
1. We want kids to be able to experience life in a certain way: society is willing
to bear a greater burden so that kids have ―tort space to grow up.‖
(iii) Example: Roberts (Minn 1919) p. 151
1. 7 year old run in front of car of the D ( 77 year old man)
a. Court holds kid to a objective 7 year old standard
b. However, how come we don‘t cut the 77 year old man a break:
i. We have no old person standard: old people are held to a reasonable
person standard
c. Note: teenagers increasingly are put to a more adult/ reasonable person
standard
(iv) Exceptions to the Child/ Infancy Exception
1. Daniels (NH 1966) p. 153
a. 19 year old kid is driving and collides with D‘s car and dies
b. Rule
i. When kids engage in adult activities such as driving a car: they
are held to a reasonable person standard.
2. This begs the question: what makes an activity adult?
a. Activities that require licenses are almost always adult
3) Other ―special‖ reasonable people
(a) Insanity
(i) Insanity is normally not a defense against negligence, however the exception is
when the defendant is suddenly overcome without forewarning by a mental
disability which incapacitates her from conforming her conduct to the standards
of a reasonable person under like circumstances.
1. Breunig (Wis. 1970) I think I am batman driving accident case.
a. Court held that insanity is not a defense except in cases where there is a
―heart attack‖ like incapacitation that is not foreseen.
2. Why is insanity not a defense?
a. Victim Compensation
b. Make those who are close to the insane take care of them and use due
care (surrounding people deterrence)
c. Opens the floodgate to possibly false claims
(ii) Note: what about those people who work with the insane?
1. Is there a built in hazard pay for people who work with the insane: two hands
in the cookie jar dilemma
2. As for P contributory negligence: what about assumption of risk when it is
clear someone is insane?
(b) Disability
(i) Blind person
1. People with disabilities such as someone who is blind are held to the
reasonable “disability” standard so in the case of a blind person: the
reasonable blind person standard.
2. Fletcher (Wash 1959) Blind person used reasonable care and fell into a
excavation p. 162
3. Note: People who are blind (and other disabled people) have reciprocal
duties to inform those around them: such as carrying a cane or having see-
eye dog. Remember in the world of Torts: information is key!
(c) Drunk Person
(i) If the accident would have occurred if the P was sober then it does not matte if
the P was drunk.
(ii) Robinson (Cal 1855) Drunk guy falls into hole in the sidewalk p. 163
(d) Wealth
(i) Not a consideration to change the reasonable person standard
1. Should the Tort System take into account wealth?
a. hard to make it objective, would become a subjective standard.
b. Note: if all things being equal: doesn‘t a wealthy person have a lower
marginal utility of wealth than a poorer person.
(e) Beginners/ Experts
(i) Held to a reasonable person standard.
(ii) Note: Beginners should take extra precaution though
1. Beginners may have a higher duty to inform like a student driver driving a
car with a big sign on it
E) Calculus of Risk
1) The Hand Formula
(a) B = Burden (cost of preventing the harm)
(b) P = Probability of Harm
(c) L = Loss or Harm
2) If B P X L, then not negligent
(a) D cannot be held liable for harms that could not have reasonably been foreseen.
(i) Blyth (England 1856) It‘s cold outside and ice got caught in waterworks and fire
plugs p. 166
(b) As long as a rescuer trying to save another’s life does not act rash or reckless in his
actions, then he cannot be considered to be negligent.
(i) Eckert (NY 1871) Man dies while saving a child on the RR tracks
(ii) Note: was it reasonable in this situation to save the child?
1. Distinguishing Principle: Potential saving of human life
(iii) Also, in a perfect system shouldn‘t the family of the child pay the estate of the man
who died?
(c) Terry, Negligence
(i) The Reasonability of Risk depends on the circumstances
(ii) In order for their to be negligence, the risk of injurious consequences must not only
be possible, it must be possible ( goes back to the Hand formula)
1. Here are some factors:
a. Magnitude of risk
b. value or importance of the object exposed to the risk
c. Person who takes the risk of injuring the principal object
d. the utility of the risk
e. the necessity of the risk
2. Applying this to Eckert: had there been no fair chance of saving the child: the
action by the rescuer would have unreasonable and negligent (note; the child
was saved)
(d) Seavy; Negligence: objective or subjective
(i) Interests are balanced only in the sense that the purpose of the actor, the nature of his
act, and the harm that results from the action or inaction are elements to be
considered.
(e) Negligence is the want of ordinary care
(i) Ordinary care: the degree of care the great mass of mankind, the ordinarily
prudent man exercises under like or similar circumstances.
(ii) Osborne (Wis 1931) Guy opens the door to his care without looking and kid on his
bike crashes into it.
(iii) Hypothetical: What if the guy looked in the mirror and there was a blind spot?
(f) When there is a choice of duty of care, and the D is forced to make a choice to take
care for a less remote harm, then that D is not negligent as long as there was no
possible third option.
(i) Cooley (NH 1940) Power lines broken by winter storm hit a telephone cable that
causes a loud noise in a telephone a women is using and she has a nervous
breakdown which causes physical injury.
1. We must weigh the benefits against the probability of damage:
a. Circumstances may require the driver of a fire truck to take his truck
through a thickly populated district at a high rate of speed, but if he uses
reasonable care in doing so, he is not negligent.
(g) Activity level v. Care level:
(i) Should courts only look at the level of care undertaken in a given activity or examine
the level of activity the D is in?
1. Does this mean that as long as one uses due care, it does not matter the kind
of activity one engages in?
(h)
(i) Remember: The Tort system has three scenarios as to due care:
(i) Stranger
(ii) Highway
(iii) Intimate
1. As we move from stranger to intimate, what happens to the level of care?
2. Is there a relationship between what is reasonable and the circumstances:
how does information shape those circumstances?
(j) When it is not beyond reasonable expectation to take a certain level of care, there is a
duty to provide that care.
(i) One can apply the BPL formula to determine what is reasonable.
4) The Hand Formula and its impact on Law and Economics: U.S v. Carroll Towing (1947) p.
175 – bargee left and was not on barge and barge floated and away and did some damage:
Court held that the probability that the barge would break away was high and the burden of
adequate precautions (having a bargee on board) was low, and so D was negligent
(a) Gives rise to law and economics theory and that Posner guy
(b) Third Restatement § 3 takes the same balancing approach:
(i) Negligent:
1. An actor is negligent in engaging in conduct if the actor does not exercise
reasonable care under all the circumstances. Primary factors to consider in
ascertaining whether conduct lacks reasonable care are the foreseeable
likelihood that it will result in harm that may ensue and the burden that
would be borne by the actor and others if the actor takes precautions that
eliminate or reduce the possibility of harm.
(ii) Issues with the Hand Formula
1. Diminishing value of additional precautions
2. Measurement problems
3. Does human life have an estimable market value?
4. Marginal Precautions and the Hand Formula
a. The Hand formula doesn‘t take into account self-risk
i. The avoidance of harm to self reduces the incremental cost of
preventing harm to others p. 179
ii. Concluding that omitting the injurer‘s possible harm to herself
causes courts to set the legal standard of care too low
(c) Hand Formula also treats people as risk neutral
(i) This is of course is not really how people are: some are riskier than others
(d) Sudden Emergency doctrine is superfluous because we already consider that in our
“reasonable person under the circumstances” rule.
(i) Lyons v. Midnight Sun (Alaska 1996) p. 182 – D tries to save a life by swerving out
of the way while driving and ends up killing the woman. D is not found liable b/c
court says he acted as a reasonable person would have under the circumstances/
parallels Sudden emergency doctrine.
1. Note: are we reverting back to the subjective reasonable person?
a. Court has injected instability and unpredictability into reasonable person
standards.
(e) If it is possible to take due care and it would not be too burdensome to do so, then
that weighs in as an informative part of ascertaining negligence of D.
(i) Andrews v. United Airlines (Federal 1994) p. 184 – P got conked in the head by a
briefcase from the overhead compartment. Appellate Ct. reverses the lower court‘s SJ
and says that a jury should hear the case b/c other airlines have put in nets to stop
luggage from falling.
1. Note: United Airlines is a common carrier and so they are being paid to
provide safety and due care to all types of people.
F) Custom (non- medical)
1) Evidence of compliance or lack of compliance is evidentiary and admissible and informative
but it is not dispositive (determinative) as to negligence
(a) Informative and not dispositive and goes in both directions
2) Based on evolutionary theory of expertise
3) Drawn on knowledge and experience as to the extent it constitutes custom: it is providing
information to both defendants and potential plaintiffs
(a) Reasons why:
(i) Information Flow
(ii) Practice; how we do things
4) Disadvantages
(a) Runs the risk of monopolistic capture
(b) Information is not always clear
(c) Do we want future tortfeasers deciding what reasonable care is?
5) In an industry where there is an established custom, and if the P who is harmed is
aware of such a custom then the P usually cannot recover b/c there is no D negligence.
(a) Titus v. Bradford (PA 1890) – D operated a railroad track and placed rounded bottoms of
cars that did not fit exactly onto the flat trucks in order to transport them, P worked for the
D and was familiar with securing the cars to the trucks and D was killed when one of the
cars came loose and tipped over.
(b) So was there a duty? Yes, but did D use reasonable care? According to custom, D did so
no negligence.
(i) If we do a quick cost benefit analysis: replacing all the cars so they could fit them
would be too costly.
(ii) Appellate Court: No negligence
1. Custom: everyone used it, so neither dangerous or unusual
2. In addition look at cost benefit analysis (BPL)
3. P has been working there for 6 years (assumption of risk)
6) D cannot use custom as a defense when D’s action is unreasonable regardless of custom.
(a) Mayhew v. Sullivan (Me 1884) – D ordered a ladder hole to be cut and did not inform P
of the hole and P fell and was seriously injured. D wanted to submit questions to the jury
about custom: Court refused to submit them.
(i) Note: Would a verbal warning have been sufficient or would D have to put a barrier
around the hole?
1. The Key is information enough if this is a custom in the mining industry.
7) The Limits of Custom: When precautions are imperative to safety, even their universal
disregard will not excuse their lack of implementation.
(a) T.J Hooper (Federal 1931) – no radio on the tugboat to warn them of storm warnings
(i) Owners were not buying the radios for their ships but captains had been buying them
as personal items
1. Note: Captains are much more likely in this situation to use reasonable care
2. When does a trend become a custom?
(ii) A departure of custom increases evidence of D negligence, it does not require a
finding of negligence.
(iii) Should the tugboat owners duty rise because their crews have changed custom.
(b) Custom makes more sense that Cost Ben Analysis when you can assume more perfect
markets, CBA makes more sense when markets are more imperfect
(i) In a slow, staid market: custom
(ii) In a fast moving market: CBA
G) Custom (Medical)
1) General Rule: In medical context, custom is considered to be presumed reasonable care,
inconsistency with custom is considered to be presumed negligence.
(a) Non-medical: informative not dispositive
(b) Medical: Presumptive not dispositive
2) Q: What do we do when there are differences between specialties, also trends as well as
locality? Is there a national standard?
3) Step Back: Why special treatment for doctors?
(a) There is always risk
(b) Independent
(c) Based on reputation: not likely to collude
(d) Note: Doctors are liable not when they are wrong but when they are negligent (not a strict
liability system)
(i) Making a wrong decision is not considered negligent unless decision was
unreasonable
4) When a doctor does not follow custom, she is presumptively negligent.
(a) Lama v. Borras (Federal 1994) – P had herniated disc, D performed surgery and did not
use conservative treatment as was the custom.
(i) The custom in the medical profession is not charting by exception.
1. Q: does this hurt medical advancement in experimental procedures?
(ii) Ct implicitly says there is a tricky causation issue here but b/c you are presumptively
negligent, the burden is on you.
1. Let us suppose that the conservative treatment had been a secondary school
of thought would D have been liable?
2. This begs the question:
a. When does a trend become a school of thought
b. Once you have a school of thought, it satisfies custom.
(iii) Note: It does not matter if there is custom, the standards of informed consent go
beyond that.
5) Doctors are not held to local standard, but a national standard of whether the physician
has exercised a degree of care and skill of the average qualified doctor taking into
account the advances of the profession, when it comes to custom.
(a) Brune (Mass 1968) – Ct. held that doctors in New Bedford, Mass could not use the
locality rule and prescribing different dosages of medicine when big cities had adopted
different standards.
(i) No locality rule
1. Is this inherently unfair: aren‘t some hospitals better than others?
a. Aren‘t some doctors getting paid more in those better hospitals
(b) Adherence to medical custom is presumptively (but rebuttable) reasonable care.
(i) Rejection of Helling (Wash 1974) – P went to doctor and got treatment for her eye. D
thought maybe she had glaucoma and applied a pressure test: she indeed have
glaucoma. D said it was custom to not test for glaucoma for patients under 40 (P was
32) Ct. rejected custom in this case.
H) Informed Consent in the Medical Context
1) Informed consent trumps out custom considerations: in this situation, doctors get not special
breaks
(a) It is an exception (informed consent) to the exception of (medical custom) to exception of
(custom) to negligence
(b) Informed Consent Exception
(i) I don‘t need special expertise for anyone else to say that is a risk that I am willing to
take.
(ii) When it comes up to that type of information flow, where to put clamps, etc., that is
stuff for the doctors, but we can understand: these are the risks, decide for yourselves
2) By definition, to have informed consent, the doctor must disclose all material risks
(a) Begs the question: What is a material risk?
(i) Material risk = anything that would cause a patient not to have a certain procedure
(b) Informed Consent has two aspects to it:
(i) Materiality
(ii) Particularity
(c) General Proposition: There is a sliding scale of risk: as degree of harm goes up,
percentage of materiality goes down i.e chance of death is less than one percent could still
be material
1. Material: importance of information as to risk
2. Particularity: example/ type of risk or harm
3) How does Materiality in Canterbury relate to causation?
(a) Cause in fact: ―But for‖ this doctor‘s breach, would you have gone through with this
operation?
(i) What a patient should know materially has to do with causation.
4) The Brits do it differently
(a) Brits think the informed consent doctrine gets in the way of doctors doing their job
(i) Before Sidaway, doctors could even lie to their patients.
1. Sidaway (not important)
5) Materiality changes over time
(a) For example: HIV many years ago was not prevalent and doctors may not have included it
as a possible risk: now they would.
(i) See Kozup
I) Statutes and Licenses
1) General Rule:
(a) An unexcused violation is per se negligent for those plaintiffs that are the subject of
the statute/license and are harmed in the manner anticipated
(i) Subject
(ii) Harm in the manner anticipated
1. See Restatement § 14 p. 229
(b) If you violate a statue, you are negligent
(c) However, if you comply with a statute, it does not mean that you are per se reasonable
(i) No symmetry as to directionality
(d) Why are you negligent if you violate a statute?
(i) Has to do with procedural burdens of proof
1. if you violate a criminal statute: State must prove beyond reasonable doubt
higher burden than preponderance of evidence
a. Think OJ (liable but not guilty)
2. Pyramid of the Law:
a. Constitution
b. Statutes
c. Common Law
(ii) D is negligent if without excuse the D violates a statute and when the harm was
in the manner anticipated and the P was within the class of persons the statute is
designed to protect.
1. Osborne v. McMasters (Minn. 1889) – D sold to P a deadly poison without
labeling it poison as required by the statute. P drank the poison and died.
2. California Evidence Code § 669
a. Failure of a person is exercise due care is presumed if:
i. She violated a statute, ordinance or regulation
ii. The violation proximately caused harm to person or property
iii. The Harm resulted from an occurrence of the nature which the
Statute, ordinance or regulation was designed to prevent; and
iv. The person suffering the harm was one of the class of persons for
whose protection the S,O, or R was adopted.
(iii) When the D’s failure to comply with a statute results in a harm that was not the
reason why the statute was adopted, then the D is not per se negligent.
1. Gorris v. Scott (1874) – P had put his sheep on D‘s ship. D had not penned
the sheep in compliance with the Contagious Disease Act. A storm washed
away P‘s sheep. D was not negligent b/c the pens were supposed to be there
to prevent disease and not the sheep being washed away.
(iv) A statutory violation is negligence but does not necessarily make the D liable,
“we must be on guard against confusing the question of negligence with that of
the casual connection between the negligence and the injury.” (we still have to
prove causation)
1. Martin v. Herzog (N.Y 1920)p. 233 – Car and buggy accident. P died. P‘s car
did not have lights on as required by statute. Is P contributorily negligent?
2) The Excused Violation of the Statute
(a) When D violates a statute, D is not necessarily per se negligent if complying with the
statute would have been unreasonable under the circumstances.
(i) Tedla v. Ellman (NY 1939) p. 234 – P and her brother, a deaf mute were walking
along a highway, they walked so that the traffic approached them from behind. D
struck them, killing the brother and hurting the P. Statute had incorporate the
customary law saying that you should walk towards traffic. But the statute had left
out the exception: that one should walk on the other side if traffic was much lighter
as in this case. The Judge noted that the legislature‘s intent was designed to codify
the custom and in this case, it would be unreasonable to think that the Legislature
would not want people to act a prudence would dictate.
(b) How do we reconcile this decisions with Osborne and Martin?
(i) Here we have an intersection of benefit, custom and statute.
(ii) This is the proverbial highway case
(iii) Court wants Justice to be done so they have two exits
a. Legislature meant to encompass entire custom, missed this part but we‘ll
get justice done as the legislature intended.
b. Statute is a statute and trumps common law; aggressively construe a
statute and because custom is elastic, statute is there for elastic—meant
to encompass the custom.
2. Risk Calculus: Walk on the other side
3. Custom: walk on the other side
(iv) Under Common Law: these two factors would say: no negligence but we have a
statute here
1. What else would excuse one from the statute?
a. Emergency may allow excuse of violation of a statute
(c) One who says that he is qualified must meet the professional standards of skill and
care prevailing among those who do offer treatment lawfully
(i) See Brown v. Shyne (1926) p. 235
1. Medical Practice without a license
a. Most states have now passed statutes barring any such misrepresentation:
check out NY‘s statute on p. 238
2. Does the statute overrule Brown: Yes.
3) The Dram Shop Statutes
(a) Make it illegal under statute to sell alcoholic beverages to a person who thereafter injures
either a third person or himself while driving under the influence
(b) Early common Law: you drink: you responsible (Nolan v. Morelli)
(c) Now: there is a basic duty upon those who sell, furnish or give alcohol: if they sell to
a habitual or common drunkard, they can be held liable. And as to proximate
causation: third party intervention does not necessarily sever liability if such a third
party act was reasonably foreseeable at the time of negligent conduct.
(i) Vesely v. Sagar (1971)
J) Judge and Jury
1) Division between Judge and Jury
(a) Judges think that juries will be biased and decide cases contrary to established law
(b) Judges believe that unlimited jury discretion undermines the central principle of
distributive justice – that like cases should be apply the same substantive law.
(i) Power of the Court to charge the jury with instructions
(ii) Keep certain questions of fact from the jury
1. General Rules
a. Question of Law: Judge
b. Question of fact: Jury
(c) Holmes: The Common Law
(i) Juries are not so bright
(ii) Judges are experienced and know how to do stuff
1. Baltimore and Ohio RR v. Goodman (1927) – P got run over by a train at a
RR crossing. Holmes said too bad: he should have stopped, gotten out of his
car and looked.
(d) Cardozo in da house!
1. Pokora v. Wabash Ry (1934)
a. Stop, look and listen is ridiculous
i. It is an uncommon precaution and likely to be futile
ii. There are too many questions of fact: let the jury look at it
(e) Cardozo wins! Pokora is followed in the third Restatement: rejects the idea that uniform
rules can decide concrete cases.
(i) This begs the question: should tort actions be left to juries?
1. Positive
a. Represent the community and can prove decisive on the estimations of
reasonable care required under the circumstances
b. Also a check on the domination of the legal system by the government
and professionals
2. Negative
a. Expensive to run
b. Passion and prejudice
c. Unable to cope with the complex technical issues
i. Courts have cut down the number of jurors from 12 to 6 but there are
issued with that too.
K) Proof of Negligence
1) Types
(a) Burden of Production
(i) Burden to plead and prove proper
(b) Burden of Persuasion
(i) More likely than not to have taken place
(c) P has burden to prove both
(i) Forms of Proof
1. Direct
2. Indirect
a. Circumstantial - all of the evidence points toward negligence, despite
lack of affirmative proof
b. Res Ipsa Loquiter – this action could not have happened without any
negligence
2) Res Ipsa Loquiter: A phrase in Latin ―the thing speaks for itself‖
(a) Central Questions
(i) Who did it? (i.e is D the only conceivable person that could have done this?)
(ii) Could P harm have happened absent negligence
1. barrel falls on guys head
(iii) Restatement 2d: § 328D and Restatement 3d § 17:
1.
(iv) Ordinarily does not occur without negligence
(v) Exclusive control of the D
(vi) Is D part of the class of actors that engages in this conduct
(vii) It was not due to any voluntary action by the P
(b) Why have Res Ipsa Loquiter:
1. Remember the burden shifts onto the D but that does not mean that this D is
going to be liable, they can still rebut this presumption of negligence
2. In these situations – the P can never win structurally (look at Ybarra) So we
need justice to be done.
(ii) Just because a plaintiff might succeed in establishing res ipsa burden flip, that does
not mean that the defendant is going to be liable. Now she has the affirmative burden
of establishing that she is not negligent.
(c) Bryne v. Boadle (1863) p. 261
(i) Barrel of flour falls on P‘s head
1. In this case, D has access to all the information about why the barrel fell on
P‘s head
2. Major question: could this event have happened absent D‘s negligence
a. The most important point here is that D has all the control
b. Court holds that this barrel could not have rolled out of the warehouse
without some negligence
(d) Where the thing is shown to be under the management of the D and the accident
would not have occurred in the ordinary course of things then it shows that absent a
reasonable explanation by the D, there is negligence. Scott v. London and Katherine
Docks (1965) p. 262
(e) PROSSER:
(i) Ordinarily does not occur in the absence of someone‘s negligence
(ii) It must be caused by an agency within the exclusive control of the defendant.
(iii) I tmust not have been due to any voluntary action or contribution on the part of the
plaintiff.
(f) RST 2d of TORTS:
(i) § 328: RES IPSA
1. same as Prosser‘s 1
2. other responsible causes including the conduct of P an third persons are
sufficiently eliminated by the evidence; and
3. the indicated negligence is within the scope of the defendant‘s duty to the P
4. it is the function of the Court to decide if a jury should decide or if the court
should say it is so
(ii) RST 3d of TORTS:
1. It may be inferred that the D is neglgignet when the accident casuing th
plaintiffs physical harm is a type of accident that ordinarily happens because
of the negligence of the class of actors of which the defendant is the relevant
member.
(g) Res Ipsa does not usually apply if P was in D’s car and assumed the risk but does
apply if P was not in D’s car. See Gailbraith; Pfaffenbach. P. 266
(h) Res Ipsa allows P’s case to reach the jury, but usually it does not allow the P to
secure a directed verdict. Imig v. Beck (1986) p. 267
(i) Acts of God usually are a defense against Res Ipsa Loquiter. See Walston (1965) p.
266
(j) See Colmenares v. Sun Alliance (1986) p. 268
TORTS OUTLINE PART 2
Fall 2005 Course
Hiral Mehta
Professor Heise
I. Plaintiff Conduct
a. Contributory Negligence, Assumption of Risk, Comparative Negligence
b. P conduct issues operate as affirmative defenses – therefore D must plead and prove proper
c. Tort world has two actors: P and D
i. Why do we care about P conduct?
1. Moral hazard: P‘s are playing with someone else‘s money otherwise
2. We want to deter people from acting negligent even if the D has already
engaged in negligent conduct: no free passes
ii. What type of duties do P‘s owe when they engage in tortious conduct?
1. Reasonable person standard: same as D
2. Duty to mitigate harm
a. Don‘t have to take extraordinary steps but must do what is
reasonable
iii. So when we have two parties that are negligent, what do we do?
1. Old idea: two separate torts
2. Today: one tort with two moving parts
iv. The common law rule of contributory negligence:
1. if P is contributorily negligent at all, then complete bar from recovery
a. intentional tort exception
d. Contributory Negligence
i. Basic Doctrine
ii. Common Law rule: If P is contributorily negligent, then P cannot recover from
negligent D.
1. Butterfield v. Forrester (1809) p. 288
a. A pole was placed in the middle of the highway, P was riding his
horse really fast and hit the pole and was injured/
b. Q: Would he have seen the pole in time to stop and not get hurt?
i. Court says yes: ―One person being in fault will not dispense
with another using ordinary care for himself. ―
2. Beems v. Chicago, Rock Island and Peoria RR (1882) P. 289
a. P was killed while trying to uncouple moving cars on a train. He
signaled to the brakeman to slow down but they did not and he was
killed.
b. Court found that there was no contributory negligence:
c. Prof Heise thinks otherwise:
i. Employee- employer context: intimate setting
ii. Assumption of Risk: uncoupling cars
iii. He should have looked to see if they had obeyed his signal
d. Gyerman v. United States Lines Co. (1972) p. 293
i. Sack of fish falls on longshoreman
ii. Before working, P had notified the clerk that the sacks were
arranged dangerously but did not notify his supervisor
iii. No cause in fact, so even though D was negligent: no
causation
iv. This smacks of assumption of risk
3. Causation and contributory negligence:
a. RST 2nd of torts §465 – Relation between harm and plaintiff‘s
negligence
i. The P‘s negligence is a legally contributing cause of his
harm if but only if it is a substantial factor in bringing about
his harm and there is no rule restricting his responsibility for
it
ii. Apply the same rules between harm and causation as one
would with a D
4. P is held to the reasonable person standard when it comes to
contributory negligence.
5. LeRoy Fibre Co. v Chicago, Milwaukee and St. Paul Ry. (1914) p. 300
a. P placed heaps of straw on his property about seventy feet from a
railway
b. The train was passing by and a strong wind carried the sparks and
burned down P‘s straw
c. Court holds no contributory negligence
d. Contributory negligence:
i. Was the P reasonable in this scenario?
6. Custom informs us of whether or not P is contributorily negligent.
a. See Derheim p. 304
i. Seatbelts: custom?
1. most statutes require seatbelts but most states also
say that if you are driving without a seat belt, that‘s
fine – not a violation of contributory negligent.
ii. The use or non use of a seatbelt should be looked when
awarding damages not when assessing liability
1. So this begs the question: what about motorcycle
helmets and baby seats.
iii. Exception to Contributory Negligence: Last Clear Chance Doctrine
1. If the negligent D has an opportunity (last clear chance) to avoid the
harm all together, then even if the P is contributorily negligent, the P
will recover
a. Fuller v. Illinois Central RR (1911) p. 308
i. The P was riding his one horse wagon across a railroad and a
train was fast approaching: the D was driving the train much
faster than usual or appropriate.
ii. P did not stop, look and listen and did not observe the train
coming: the D sounded only a whistle some 20 seconds
before impact.
iii. D was negligent as was P: so is this a bar to recovery?:
1. The Court holds no: because D could have stopped
the train and avoided the harm: instead the train ran
over the P and killed him.
2. RST Torts: § 479 Last Clear Chance
a. Last Clear Chance : Helpless Plaintiff
i. See p. 310
b. Last Clear Chance: Inattentive Plaintiff
i. See p. 311
e. Assumption of Risk
i. When P has information and knows the risk associate with the conduct may
cause harm and continues with the conduct, then the P has assumed the risk and
the subsequent harm.
ii. Lamson v. American Axe and Tool Co.
1. P‘s job is to paint hatchets and then he would place them on a rack to dry.
The P was concerned that the new racks were put in were dangerous and
complained to his supervisor about them. Supervisor told him he could use
the racks or leave. One day the P was working and the hatchet fell on the P
and he was injured.
2. Assumption of Risk: yes
a. P was employed for many years ( intimate case rather than stranger)
b. P knew the racks were dangerous- he complained about them
c. He stayed on in his employment: he assumed the risk
iii. Fellow Servant Rule: When one employee hurts another employee, then the employer
is not liable ( old rule )
1. criticized as being a nod to the wealthy as an exception to vicarious liability
2. makes sense in a more intimate work environment (Mickey D‘s) but what
about a huge plant?
a. Intimate environment
b. Private autonomy
iv. Influence of Worker‘s Comp Statutes
1. Employee gets hurt: gets payment of a fixed amount. Employee gets instant
recovery and employer has no litigation costs. Exchanges efficiency for
amount of damages.
v. The Flopper Case: Murphy p. 322
1. Man saw that people were being flopped around on an amusement ride at
Coney Island and stepped onto it, he fell and got hurt
2. The ride was not out of order
a. Volenti non fit injuria: the willing cannot claim to be injured:
i. Assumption of Risk
b. Note: if the padding in one part of the ride was loose or if there had
been some wood that was hard at some place in the ride: different
scenario
c. But it was reasonable for the P to know what the risks associated
with this ride were: getting flopped around
vi. Assumption of Risk: Fireman‘s Rule
1. Hazard Pay idea: cost is internalized
a. When a fireman is discharging his duty – cannot sue if he gets
burned
b. Also any harm caused that is related to job: slips on sidewalk
running into a house that is on fire b/c of negligence of homeowner
to clear the ice: not recoverable
f. Comparative Negligence
i. The world of contributory negligence: led to a system of all or nothing and some
fairly harsh, inequitable results. Sometimes the Courts to cope with the system bent
the rules by implementing last clear chance and redefining assumption of risk. This
helps set up the framework of the Comparative negligence world that we now live in.
ii. Forms of Comparative Negligence:
1. Forms
a. Pure Form
i. Complete pro-rata allocation of liability: damages between P
and D
1. i.e if equal liability: then P gets 50 percent of the
damages
b. Modified
i. P receives pro-rata share as long as P is less than 50 percent
negligent
c. Advantages of CN
i. Cleans up the doctrinal aspects
ii. Assigns responsibility to a fault based system
iii. Does not totally bar recovery for a number of different P‘s
iv. Increases care level of D‘s
d. Costs of CN
i. P‘s will be less carefully b/c they can still recover even if
they are a little negligent
e. Note CN imposes a stress of differentiating and assigning
proportional liability on our negligence system which is difficult to
do.
iii. Li v. Yellow Cab Co. of California – 1975
1. Facts: P attempted to cross three lanes and D was speeding and ran a yellow
light before striking P‘s car. Under the old contributory negligent system: P
would be barred from recovery.
2. Court opts for a system of comparative negligence, which assesses liability in
direct proportion to fault.
a. The California Civil Code that codifies contributory negligence is
interpreted by the Court to be not be set in stone. The legislative
intent was to codify the common law but that does preclude judicial
evolution and changes in the common law.
b. Concerns about Comp Neg
i. May be hard for the court to examine relative negligence if
not all parties are brought before the court
ii. Hard for fact finders to figure out percentages as to liability
iii. What about last clear chance and assumption of risk?
3. From a Tort system goal perspective: comparative negligence preferences
victim compensation
4. Dilemma here is how do we allocate fault?
5. In the world of intentional torts, there is no comparative negligence.
a. See Morgan v. Johnson
II. Multiple Defendants: Joint, Several and Vicarious Liability
a. Traditionally if P sued two solvent D‘s, P would choose who would pay the full amount and
the D who paid would have to bring a separate suit of indemnity against the co-defendant
b. Conceptually related to comparative negligence
i. CN endeavors to allocate between contributory negligent P and negligent D
c. Forms of Multiple D liability
i. Several liability: Each D is on the hook for their particular pro-rata share
ii. Joint Liability: each D is on the hook for all of P‘s harms
d. Contribution
i. Traditionally: no contribution allowed. P sues 2 D‘s, only one pays
ii. Today: Contribution is allowed: so a D can cross claim or implead or sue separately
for indemnity
1. Note: no contribution for intentional torts
iii. Insolvent D Hypotheticals:
1. P Is harmed = 100 bucks
2. 3 D‘s,
3. D1 = 40, D2 = 40, D3= 20
4. Several regime: D1= 40, D2 = 40
5. Joint regime: D1 =50, D2 = 50
a. Or we can split between P and D so P gets 90
e. Vicarious Liability
i. Respondeat Superior:
1. Employers are liable for employees’ negligence when employees are
acting in the course of their employment including any foreseeable
action.
a. See Ira S. Bushey v. United States – A member of the US Coast
Guard returning from shore leave late at night ―in the condition for
which seaman are famed‖: drunk opened the valves of the drydock
and the drydock sank as well as part of the ship.
ii. Why have Vicarious liability?
1. one answer: deep pockets
2. perhaps employers are the least cost avoiders
3. Efficiency arguments:
a. Loss prevention b/c employer is superior risk bearer in terms of
insurance as well as deterrence
iii. Frolic and Detour: traditional applications
1. The general rule is that roughly, respondeat superior cover small
deviations from the employment context (detour) as opposed to large
ones (frolic)
a. Riley v. Standard Oil Co. p. 380 – Court held that driving four
blocks out of his way on a personal errand did not take him out of his
master‘s employment.
iv. When it comes to intentional torts, Vicarious liability only applies if the
employers were negligent. (p. 381)
v. The borrowed servant
1. The rule is that if the employee is furthering the business of the general
employer by the service rendered to another, then the employer can be
liable.
vi. Joint Enterprise
1. A principle of vicarious liability also holds each participant to a joint
enterprise vicariously liable for the wrongs of another partner.
a. Heick v. Bacon (1997) p. 383 – Court refused to treat a driver and a
passenger as joint participants as they want from bar to bar and
playing games.
vii. Petrovich v. Share Health Plan of Illinois (1999) p. 383 -
1. The issue is whether a P‘s HMO can be held vicariously liable for the
negligence of its independent-contractor physicians under agency law.
a. Apparent Authority:
i. HMO said that it was the provider of health care without
telling the P that the doctors were independent contractors
ii. P justifiably relied upon the conduct of the HMO by looking
to the HMO and not to a specific physician for health care
services
b. Implied Authority
i. Who has the control?
1. the right to make prospective decisions of medical
necessity
2. the right to refuse pay for health care that the HMO
perceives to be inappropriate or outside the scope of
its policy
2. This case begs the question: who is an independent contractor?
a. Does the employer exert control over the manner, means and details
of performing service?
3. Vicarious liability for independent contractors:
a. When the injury is a direct result of the work contracted for
III. Causation
a. Has two elements:
i. Cause in Fact
ii. Proximate Cause
b. They add up to the causation element in Duty, Breach, Cause and Harm
i. Both must be satisfied in order for there to be ―cause‖
c. Cause in Fact
i. ―But for‖ defendant conduct, P would not have been injured
1. Restatement 3d § 26
a. An actor‘s tortious conduct must be a factual cause of another‘s
physical harm for liability to be imposed. Conduct is a factual cause
of harm when the harm would not have occurred absent the conduct.
2. Cause in Fact Physics of the facts, did D conduct p harm?
3. Proximate Causes Legal causation
a. This is a limiting principle on cause in fact
i. Query: this might be the physical cause, but is this the type
of cause that we want to be considered tortious?
1. Foreseeability
2. Harm within the risk
4. Back to Cause in Fact:
a. If P would have been harmed even if D was not negligent, then
there is no Cause in Fact.
i. New York Central RR v. Grimstad (1920) p. 394
1. Man fell overboard into the water and did not know
how to swim. There were no life preservers on
board: If there were life preservers on board, would
his wife been able to save him in time?
2. Court says no: there is nothing to indicate that had a
life preserver been on board, that the P would have
been saved so no causation.
b. Note: in Zinnel v. US, Learned Hand thinks that these cases where
its not clear should go to a jury: ―we think it a question about which
reasonable men at least differ…‖
c. Statutory violation is negligence per se but that does not mean
that there is cause in fact, and consequently liability. A D can be
negligent and not liable if there is no cause in fact.
i. Haft v. Lone Palm Hotel (1970) p. 397
1. Father and son drown in pool. There is a statute that
says that there must either be a lifeguard or a sign
saying no lifeguard. In this case, there was neither.
2. There is negligence but P has the burden to proof to
prove causation. If they can‘t prove cause in fact,
there is no liability.
3. Res Ipsa? Was the structural situation controlled by
the D?
d. In order for there to be Cause in fact, the P must prove that
absent D’s negligence, harm would not have occurred.
i. Zuchowicz v. United States (1998) p. 398
1. P was given a prescription for Danocrine. P was
mistakenly given double the normal amount and got
Primary pulmonary hypertension.
2. Q: Was the second fifty milligrams the actual cause
in fact of the illness (is it more likely than not:
reasonable preponderance)
3. Court says yes.
5. Slip and Fall Cases
a. Note: Where the negligence of the defendant greatly multiplies
the chances of accident to the P, and is of a character naturally
leading to its occurrence, the mere possibility that it might have
happened without negligence is not sufficient to break the chain
of causation.
i. Reynolds v. Texas (1885) p. 402
6. Cause in Fact – evidence
a. In order for expert testimony to bear on Cause in Fact, it must
rise above subjected belief or unsupported speculation. (Daubert
Rule) – there must be a fit between the evidence presented and
the charge to be proved.
b. General Electric Co. v. Joiner (1997) p. 404
i. Electrician had to put his hands in the electrical fluid that the
company uses as coolant; later found this was contaminated
with PCB‘s which are hazardous to human health
ii. Got lung cancer, had been a smoker for eight years
1. narrow reading: these mice studies (not in
general) do not bear sufficiently on this
particular plaintiff‘s harm
2. Under Daubert, Court has a gate keeping
function.
c. The Court’s gate keeping function extends to technical as well as
scientific evidence
i. Kumho Tire Co. v Carmichael (1999) p.408
d. Daubert rejected the more stringent Frye Test of ―that it is generally
excepted.‖
7. Cause in Fact continued – Loss of Chance doctrine
a. If D reduced the chance of P‘s survival by negligent conduct then D
is liable even if P‘s chance of survival was below 50 percent to begin
with.
i. Hersokovitz v. Group Health Cooperative
1. Medical Negligence: failure to diagnose lung cancer.
P has a survival rate of 39 percent at the time of
nonfeasance and the negligent conduct reduced P‘s
chance of living to 25 percent.
2. Court: D‘s conduct increased the risk of death by
decreasing the chances of survival.
3. Note: loss of chance does not necessitate total
recovery against negligent party for all damages
caused by victim‘s death only those caused by
premature death, such as lost earnings and additional
med expenses.
b. The other side of the coin. Court rejects the all or nothing philosophy
of Cooper v. Sisters- but for causation and liability are taken into
account only if P had a 51 percent chance of survival going in.
8. Cause in Fact continued - more than one cause
a. There is cause in fact where two causes, each attributable to the
negligence of a responsible person concur in producing an injury
to another, either of which causes would produce it regardless of
the other.
i. Kingston v. Chicago and NW ry. (1927) p. 418
1. NE fire caused by sparking locomotion united with a
NW fire of unknown origin, and a united fire
destroyed plaintiff property
2. D has burden of proof to show that the other fire was
of natural origin, if it has been – then no liability
(Natural Fire exception)
3. Both fires independently would have taken out the
plaintiff
a. If two joint causers in fact, how do you sort
through liability?
b. Court goes for joint and several where two
people, no liability if one is natural
b. Restatement § 433 p. 421
i. If you can apportion damages, you should
ii. Seeks to avoid joint causation scenarios wherever possible
iii. When you can separate them, do it
c. Summers v. Tice (1948) p. 425
i. Note: In Kingston – D‘s one and two caused harm to P, in
Summers it is D one or D two caused the harm. Kingston
pushes analytically on cause in fact, Summers pushes even
more.
ii. P was shot on a hunting expedition when two guns
discharged concurrently
1. The shot could have come from only one gun, but it
was not possible to figure out which gun had shot
him so the two defendants are indistinguishable
2. What about the argument that P is somewhat
responsible?
a. Assumption of risk: he was in charge of the
hunting party
b. Joint Enterprise: all three of them were
together, if any of them are found negligent,
they all are
c. If P is neg: then P recovers nothing in a
contributory negligence regime
3. Court does do this analysis:
a. Court says both D‘s are liable unless they
can prove otherwise
b. Burden of proof has shifted to the D here as
to whether there was cause in fact.
c. ―we think that each is liable for the resulting
injury although no on can say definitely who
shot him, to hold otherwise would be to
exonerate both from liability although each
was negligent and the injury resulted from
such negligence.‖
9. Cause in Fact: Market Share Liability
a. Sindell MSL test:
i. All the named D’s are potential tortfeasers
ii. the allegedly harmful products are identical and fungible
iii. the P is unable to identify which D caused her injury to
no fault of her own
iv. all the manufacturers who created the defective products
during the relevant time are D’s
1. Sindell v. Abbott Labs (California 1980) p. 429
a. Involved a P who developed cancer as a
result of her mother‘s ingestion during
pregnancy of DES
b. They are all negligent and someone‘s pill
caused the harm: we have a situation of
identical makers who are negligent and its
impossible to distinguish (analogous to
Summers only in a market share
perspective)
b. Alternative test: In order to recover, the P must establish that a
particular D’s negligence is the proximate cause of her injuries.
i. Skipworth v. Lead Industries Association (1997) p. 428
1. P‘s daughter is harmed by lead poisoning in paint
chips
2. Court applies the Sindell test and the case fails it so
it sticks to the traditional common law test.
3. We cant apply Summers in shifting the burden of
proof b/c D‘s did not make the lead paint at the same
time nor are the named D‘s al the possible D‘s for
this case.
d. Proximate Cause
i. Proximate cause is a limiting principle: For example, Columbus could potentially be
the cause of everything.
1. Has two main elements:
a. Foreseeability
b. Harm within the risk
i. Is this the type of P that is foreseeable at risk flowing from
the harm generated by the defendant‘s negligence
ii. Is this the type of harm that foreseeably flows from the
nature of the defendant‘s negligent conduct?
c. Foreseeable type of harm and Unforeseeable P: Palsgraf
d. Foreseeable type of harm and foreseeable P: Yes, proximate C
e. Unforeseeable harm and UF P: No proximate cause
f. UF harm and F P: Nugent
ii. HYPO: Car violating city statute parked in front of fire hydrant. Plaintiff, not
negligent, was driving and to avoid some little kid, plaintiff moves out of the way,
catches a patch of ice, goes into a skid, and absent defendant negligence, would have
come to rest without incident, right smack where defendant had parked her car, but
because defendant parked car negligently, there was harm and plaintiff was hurt.
1. Unforeseen plaintiff, Unforeseen Harm
2. Cause-in-fact: YES: but for defendant parking car illegally, plaintiff would
not have hurt her neck
3. Proximate Cause: probably not: Statute designed to minimize social risk
from fire—that is the type of harm that statute is designed to allay
iii. Foreseeability is the nexus linking type of risk with type of P harm
1. reasonable person standard: objective
2. Note: what about intervening events?
iv. D is responsible for the damages are the ordinary and expected result of the
negligence, D is not responsible for the damages that are the remote result of the
negligence.
1. Ryan v. New York Central R.R (1866) p. 436
a. D is negligent in placing an engine in a woodshed. The woodshed
caught on fire and burned down P‘s house among others.
b. P‘s house was a hundred and thirty feet from the shed and D‘s
negligence was not considered to be the proximate cause of the P‘s
harm.
c. Note: If A B C ….Z when does it end? Civilization has to
continue. Also social good: what is more important: a bankrupt RR
or a person‘s house?
v. Ordinary and natural result includes reasonable human conduct.
1. City of Lincoln (1889) p. 439
vi. If D is responsible for placing the P in a situation which requires P to risk harm
to herself.
1. Jones v. Boyce (1816) p. 439
vii. There is a Foreseeability threshold that the P must pass in order for D to be
liable.
1. Mauney v. Gulf- Refining company (1942) p.440 – P was running with her
child in her arms and tripped over a chair when she was told D‘s truck was
about to explode. It was not foreseeable for the D to think that the P would
have tripped over a chair.
viii. Berry v. Sugar Notch Borough (1899) p. 440
1. P is speeding and tree falls on him. Speeding is a violation of the statute so P
is negligent per se but is the speeding the proximate cause of the harm? No,
the falling tree is. Did the speeding cause the tree to fall: the Court does not
think so.
2. Note: What is the one counterfactual that would hurt the Court‘s logic?
a. Stopping time
b. Damage worse when you are speeding
c. Speed of car might have generated the falling of the tree
ix. Third party intervention may sever causation but not when D’s negligence
consists of exposing the injured party to the act causing the injury.
1. Hines v. Garrett (1921) p. 442
a. A young woman who was negligently carried a mile past her stop
walked back and was raped twice on her walk back.
x. When two successive actions cause harm to the P, but the P is exposed to the
second only because of the negligence of the first so that the second action is
dependent on the first and so the D is only responsible for the incremental
damages brought about by his action.
1. Dillon v. Twin State Gas Co (1932) p. 442
a. Boy lost his balance on a bridge and grabbed wires that electrocuted
him and he died and he fell off the bridge. D not liable for the fall but
was for the electrocution.
xi. An act of a third person intervening and contributing a condition necessary to
the injurious effect of the original negligence will not excuse the first wrongdoer
if such an act ought to have been foreseen.
1. Brower v. New York Central RR
a. Train collision because of D‘s negligence exposes P‘s goods and
while P is exposed, a third party steals P‘s goods.
2. In the case of the railroad accident and thief case (Brower), court said that
there was a window where the D was still liable for third party intervention
as long as the third party intervention was foreseeable.
a. Note: D had security guards guarding the train‘s goods: speaks to
Foreseeability
3. Restatement 2d §448 and § 449
a. Generally the intentional act of a third party severs causation
between P and original D unless intentional act of third party was
foreseeable by original D.
xii. D’s negligence can be the proximate cause of P’s suicide if P’s act was an
irresistible impulse while suffering from nervous shock or mental depression
brought about by the accident caused by D’s negligence.
1. Fuller v. Preis (1974) p. 449 – After a car accident, the P suffered seizures
and nervous exhaustion and committed suicide: Court said key question was
whether P had suffered an irresistible impulse as a result of brain damage b/c
of the accident.
e. Proximate Cause: Third Party rescue
i. D is liable for harm caused to P engaged in a rescue from a danger that D has
created through D’s negligence.
ii. Wagner v. International Railway (1921) p. 430
1. D conduct; P conduct
a. P‘s cousin fell off the train car due to D‘s negligence. P then went on
a rescue mission to find cousin. P gets hurt on the rescue mission: we
say that as long as rescue is not reckless, then the danger created by
the D invites the rescue so the D is liable for P‘s harm.
b. Was the D negligent?
i. Yes
c. Is there cause in fact for P‘s harm?
i. Probably
2. Foreseeability
a. We can foresee a rescue operation arising from the danger caused by
D‘s negligence.
3. Court says: the risk of rescue, as long as it is reasonable is born of the
occasion. The emergency begets the man. There must be an unbroken
continuity between the commission of the wrong and the effort to avert its
consequences.
a. Danger invites rescue
b. Note: usually only for family members
iii. Tortfeaser owes a duty to the rescuer a duty similar to the duty he owes the
person he imperils. Rescue doctrine negates the presumption that the rescuer
assumed the risk of injury when he knowingly undertook the dangerous rescue,
as long as he did not act rash or reckless.
1. McCoy v. American Suzuki Motor Corp (1998) p. 452
iv. Rescuer must demonstrate
1. D was negligent to the person being rescued and such negligence cause the
peril
2. the peril was imminent
3. a reasonable person would have concluded that a peril existed
4. the rescuer took reasonable care in doing the rescue
v. OVERULED : Once the D is determined to be negligent, the fact that its exact
operation was not foreseen is immaterial and is liable for the consequences as
long it is the direct result of D’s negligence.
1. In re Polemis (1921) p. 452
vi. Palsgraf v. Long Island RR (1928) p. 456
1. Guy got onto a train in a station, just as train was leaving, jostled by agents
and a package he was carrying (small wrapped in newspaper) fell onto rails
and exploded because turned out fireworks inside. Explosion didn‘t directly
cause scale to fall… way down at other side of platform. Plaintiff sued train
company for negligence
2. Is there a duty owed?
3. Cardozo:
a. She was hurt because of D‘s negligence but D did not owe her a duty
of care.
b. Negligence in a relational space: negligent conduct generates risk for
a pool of plaintiffs. P is not in the pool of possible hared P‘s.
i. No duty b/c P was not foreseeable.
4. Andrews:
a. Duty is owed (to all possible P‘s that are harmed)
i. There is a breach
ii. The question is proximate cause?
iii. Proximate Cause (it is a limiting principle)
b. Remember there is Cause, and then Proximate Cause:
i. Proximate Cause can be informed in a number of ways:
1. whether there was a natural and continuous sequence
between cause and effect
2. Was the one a substantial factor of the other?
3. Is there a direct connection?
4. Is it reasonably likely to produce the result?
5. Could the result have been foreseen?
6. Is the result too remote, as in remote in time and
space?
ii. Note: Duty owed and Proximate Cause almost always
coincide with each other: Palsgraf is unique in that respect
where they lead to different conclusions.
vii. Two Important Points:
i. Cardozo‘s perspective on duty owed (harm within risk = if you are defendant and
negligent you are creating social risk, not ad infinitum, but for a zone of potential
plaintiffs, and duty owed will flow from danger zone created by negligent
conduct); picked up in Rest 2d §281
ii. Andrew‘s proximate causation (limiting principle in theory) picked up in §431
1. One can satisfy proximate causation box if defendant conduct was the
substantial factor for plaintiff harm
2. Important to see how notions of foreseeability, correctness play into each
other. Duty owed can draw notions of Foreseeability. Risk created for
specific type of harm—begin to map out contours of proximate causation
a. Proximate causation should work as a limiting principle to ―but
for‖ causation
iii. Risk created by D’s negligence that led to P’s harm can be proximately
caused by D even if the harm is not necessarily foreseeable but the type of P
is. (Foreseeable P, Unforeseeable Harm)
1. Marshall v. Nugent (1955) p. 467 – P was riding in a car and D‘s truck
pushed P‘s car onto the side of the highway. D suggests to P to ward off
incoming traffic. P is hit by a car.
2. Causation
a. Cause in fact: Yes
b. Proximate Cause:
i. D‘s negligence exposed P to risk (like the P in Brower)
c. There is a duty to mitigate and ameliorate by the D but D has
created the risk and the P is exposed: there is a window
i. When enough time has lapsed ―once the disturbed waters
have returned to a placid state‖ then the casual link
between P and D is severed.
iv. A man must be considered to be responsible for the probable consequences
of his act.
1. Wagon Mound 1
a. Carelessly discharged oil from their ship while it was
berthed in Sydney Harbor
i. Harbor owner asked if the oil was flammable: was
told no
ii. Oil caught fire and burned the harbor down
b. It was not reasonable foreseeable for the D‘s to know that
floating underneath the wharf lay some smoldering cotton rag
which had been set to fire by some molten metal which caused
the oil to catch fire and burn the harbor down.
c. P allowed his men to resume their welding operations: so we
have third party intervention here.
d. D in good faith did not foresee the harm. (not reasonably
foreseeable)
2. Thin Skull Rule endures with a wrinkle:
a. For a foreseeable P, D is liable for the unforeseen extent of P‘s
harm but not the unforeseen type of P‘s harm
b. Just because you bop someone on the head with a skin rule, and
break their skull: that‘s bad luck for D: you are liable
2. Harm within the Risk;
1. Di Ponzio v. Riordan (1997) p. 479
a. Facts
i. D left his engine on when he went to pump gas and the
car backed down and hit the P
b. Proximate Cause:
i. No, b/c turning off car engines have nothing to do with
protecting P‘s from cars backing into them, it is there to
prevent explosions
ii. So no harm within the risk:
B. Emotional Distress
1. Why is this a tort?
i. Tort System Goals: Victim Compensation
ii. Problems:
1. Easy to have fraud
2. subjective, difficult to establish
3. Evidentiary Burden:
a. False claims are more frequent
b. There could be more errors in determining the liability
iii. Prior experience: Intentional Infliction of Emotional Distress
1. intentional so more odious
2. There is some automatic causation in intentional torts for liability for
harm resulting from intentional act even if unforeseen where a
reasonable person would foresee that harm as flowing from that
intentional act (see Vosburg)
2. Negligent Infliction of Emotional Distress
i. P cannot recover for injuries occasioned by fright due to D’s negligence as
there is no immediate personal injury.
1. Mitchell v. Rochester Railway (1896) p. 480
a. A pregnant woman is trapped between two horses, suffers
emotional distress and has a miscarriage.
b. No touch: old English ―impact‖ rule
i. Any touch here would have set forth a claim for
recovery
c. Court concerned for 2 reasons:
i. Damages were too remote
ii. Emotional Distress claims would often be false
ii. This sets up the American Response with the Zone of Danger rule: If P fears
injury due to D’s negligence and is within the zone of danger and the fear
results in physical injury, then the D may be liable. (Amaya)
iii. Dillon rejects the zone of danger rule:
iv. Foreseeability Duty is determined case by case: 1) whether the P was located
near the scene of the accident 2) whether the shock resulted from direct
emotional impact upon P from sensory and contemporaneous observance of
the accident, not learnt of later 3) whether P and victim are closely related
(most likely family)
1. Dillon v. Legg (1968) p. 483
a. Mother sees daughter hit by car and suffers emotional distress
b. Court says the emotional distress to the mother was foreseeable
so the D owes a duty of care to the mother even if she is outside
―zone of danger‖
v. Reaction to Dillon rule is wildly different from state to state:
1. A D may be liable for P’s emotional distress that is reasonably
foreseeable due to D’s negligence.
a. Molien v. Kaiser Foundation Hospitals (1980) p. 489
i. Doctor mistakenly diagnosed P‘s wife with syphilis
causing P emotional distress and burdening P‘s marriage
ii. Court held that such an outcome was reasonably
foreseeable
vi. Some states use the Dillon rule, others use the zone of danger rule.
C. Pure Economic Loss
1. Nexus between K law and Tort law
i. We have to deal with the ―ripple effect‖ as in emotional distress
2. Intentional Infliction of Economic Loss
i. D may be liable for economic damages suffered by P if D intended to cause
breach, knew of the contract and interfered improperly (especially if it was
malicious). See RST 2d §766 P. 1151
1. Lumley v. Gye (1853) p. 1144
a. Lumley owns an opera house and has a K with Wagner for
exclusive service of her operatic skill. Gye, who owns a rival
opera house induces Wagner to breach her K with Lumley by
offering more money.
b. Sanctity of K v. Efficient breach: does Lumley have a tort
against Gye?
c. Court ends up giving Wagner an injunction not allowing her to
sing for the time she K‘d with Lumley for.
3. Negligent Infliction of Economic Loss
i. D is liable for economic loss they knew or should have know they could
cause to an “identifiable” class of P’s due to D’s negligence.
1. People Express Airlines v. Conrail (1985) p. 1157
a. Dangerous chemical escaped from D‘s tank car in the Port
Newark freight yard which caused a fire. Municipal authorities
had to evacuate the area within a one mile radius including the
P‘s terminal. P was unable to conduct business for 12 hours and
had to cancel flights.
b. An identifiable class of persons must be particularly
foreseeable in terms of the type of persons comprising the
class, the certainty of their presence, approximate numbers, as
well as the type of economic expectations disrupted.
c. Court remands case for a new trial.
2. Note: Limiting principle is that it places the burden of proof on the P to
prove exactly what harm occurred.
ii. People express is a departure from the common law reluctance to award damages
for pure economic loss as a result of D‘s negligence (see Byrd v. English p.
1163)
D. Affirmative Duties
1. Introduction: Tort doctrine is generally concerned with misfeasance: or positive acts that
were wrongs (hitting, or creating dangerous conditions). Affirmative duties attaches
liability to nonfeasance or failure to act because the D is under an affirmative duty to aid.
i. Prohibition is much more common than compulsory action
2. The Duty to Rescue
i. General Rule: No affirmative duty to rescue person even if no danger in
doing so. But as with every rule: there are wrinkles:
1. Special Circumstances:
a. RST § 322: To the extent that a D put a person in the situation
that requires a rescue, then D is responsible for a rescue
b. RST § 324: Where no ex ante duty to rescue exists, for a person
who has nothing to with the situation creating need for rescue,
as soon as that person has encumbered themselves with the
rescue, they have responsibility for rescue (b/c they might
dissuade other rescuers, etc) and (must act reasonably.)
2. The D is not liable because rescuing someone is a moral obligation
and not a legal duty.
a. Buch v. Armory Manufacturing Co (1897) p. 497
i. Child comes into factory where there is hazardous
machinery operating, manager tells him to leave, but
child doesn‘t know English and so goes on and gets hurt.
ii. Note: even owner/operator owe some duty to trespassers
3. In obtaining a license to practice medicine, State does not require the
doctor to practice on terms that he does not accept.
a. Hurley v. Eddingfield (1901) p. 499
i. Physician refuses to go help a person, where no one else
was available and the physician had long-relationship
with P, doctor had no other obligations
ii. Court held that the doctor did not have an affirmative
duty to leave his home to go help the patient.
4. There is no duty to rescue when the D has taunted P into placing
himself into a dangerous situation.
a. Yania v. Bigan (1959) p. 500
i. Yania was enticed by Bigan‘s taunts to jump into a hole
full of water and then did not rescue him
ii. Ct says no duty here; Bigan‘s actions could only have
caused mental predilection to jump into a hole and that is
not enough
iii. Heise thinks wrong b/c Bigan should be held negligent
for his taunting and then he created the situation causing
risk
5. Ames: Good Samaritan Rule: A D in cases of affirmative acts would be
required to take only those steps that can be done ―with little or no
inconvenience.‖
6. Epstein: Ames rule is too subjective.
7. The Vermont Exception: Vermont has a good Samaritan statute.
8. Montgomery v. National Convoy and trucking (1937) p. 507
a. Two truck coming down road and stopped on road. Car crested
hill, saw them, but unable to stop in time b/c of the situation
and hit them and injured.
b. Ct says duty of the trucks was to warn, and there was
negligence in their efforts to deal with the situation.
c. Not negligent in sliding down hill or stopping in road, just in
their efforts to mitigate situation.
d. This situation is between §322 and §324
i. Maybe once they took it upon themselves to secure the
situation by turning on lights and putting out flares, they
took it upon themselves to prevent harm in reasonable
way and reasonable in this situation would be to put
flares up at top of hill
ii. Note: If duty to rescue arises and is breached- you still have to do cause in fact,
proximate cause and harm analysis.
3. Owner/ Operator Duties
i. Traditional Three part distinction: Invitee, Licensee, Trespasser
ii. Invitee: Person that O/o has business interest in
1. O/o must investigate, repair and announce Latent risks
2. Supervise and monitor for the possibility of risks
3. Affirmative duty here for o/o to hunt out risks and fix them
4. But no duty to announce obvious/visible risks
5. O/o must only be reasonable in this duty
iii. Licensees: Social guest
1. O/o must disclose all information that they know about latent risks
2. But no affirm. duty to investigate latent defects
iv. Trespassing
1. O/o cannot be willful or wanton; (kind of a last clear chance in that just
b/c there is a trespasser, you can‘t do whatever you want to them)
2. O/o owes duty to ‗discovered‘ and ‗helpless‘ trespasser for o/o ‗known
and obvious‘ risks
3. Not a duty to rescue, but a duty to do something while they are in this
situation
v. Problems with Kids
1. Rest §339 carves out additional grounds for kids who are trespassers who
get hurt to attack the o/o
vi. When O/o makes it clear that people are not allowed on his property, then
the P (a minor) who suffers injury on D’s property is a trespasser. D is liable
to a trespasser where the P’s injury is due to some willful act involving
something more than the absence of reasonable care.
1. Robert Addie and Sons v. Dumbreck (1929) p. 513
a. Kids and adults often come into land and are told to get out by
the owners. Kid is trespasser here and gets injured. Court holds
that D is not liable.
vii. There is a willful and wanton exception to duty of care owed to trespassers.
1. Excelsior Rope v. Callan (1930) p. 516
a. Court held that D‘s were liable when two minor P‘s had their
hands caught in a machine on D‘s property. D‘s property was
next to a playground and the property was always swarming
with children.
b. D‘s had a duty to the P‘s b/c it was well known to them that
this machine was going to be of extreme interest to the children
and that the children would be exposed to grave danger.
viii. Attractive Nuisance Rule: Allows child trespassers to recover when lured
onto D’s property by some tempting condition created and maintained by
the D’s.
1. RST §339 of Torts (2d)
2. An O/o is liable if he:
a. Knows children will be trespassing and
b. The children might get hurt and
c. If he children b/c of their age do not discover the risk and
d. The cost of eliminating the risk is slight compared to the risk
involved to the children and
e. The o/o fails to exercise reasonable care in eliminating the
danger or otherwise protect the children.
3. Note: subsection C discusses the possibility of an assumption of risk
defense as in Merrill v. Central Maine Co: where a nine year old did not
recover for injuries sustained while jumping trains.
4. The difference between a licensee and an invitee:
i. RST (2d) § 332 Invitee defined:
1. public invitee or a business visitor
2. public invitee: invited or remain on the land as a member of the public
3. business visitor: person invited or remains on the land directly or
indirectly connected with business dealings with the owner of the land
ii. A social guest is not an invitee.
1) Kids and adults often come into land and are told to get out by the owners
1. Knorpp v. Hale (1998) p. 520
a. P was killed cutting down a tree in D‘s yard. P was dating D‘s
daughter and had been given the key to the house.
iii. Duties to public officials:
1. Generally, the public official working on official business gets invitee
status.
a. Mounsey v. Ellard (1973) p. 521
2. Q: What about the fireman‘s rule and assumption of risk?
5. California Court decides to abandon the threefold division in favor of basic
negligence law.
i. Rowland v. Christian (1968) p. 521
1. D knew about crack in the faucet but didn‘t tell plaintiff about it.
2. P‘s hand was severely cut.
3. Ct decides that threefold division should be abandoned in favor of basic
negligence law
a. Stranger vs highway here; level of duty owed
b. Why would we owe less info to friends than to strangers; b/c
they are in a better informational position to understand the
risks involved.
6. The reaction to Rowland has been mixed nationally. Some states abolished the licensee/
invitee distinction but kept the trespasser category.
E. Special Relationships
1. RST (2d) of Torts §315
i. There is no duty so to control the conduct of a third person as to prevent him
from causing physical harm to another unless
1. a special relationship exists between the actor and the third person which
imposes a duty to control the third person‘s conduct or
2. a special relationship exists between the actor and the other which gives
the other a right to protection .
2. What are the characteristics and circumstances that gave rise to special relationship
i. What types of Affirmative duties are owed due and to whom are they owed to?
ii. Even more difficult to derive how they are special and to what duties we have.
iii. Why have do we have this doctrine of special relationship?
3. Flow of information
i. Just because there is an asymmetry of information doe not mean that a duty
should arise here?
4. Control
i. Res Ipsa analogy: a salient aspect of the nature of the relationship is that the
Defendant controls the information
ii. Landlords have a duty to take reasonable steps to protect tenants from
foreseeable criminal acts committed by third parties.
1. Kline v. 1500 Massachusetts Apartment Co. (1970) p. 549
a. Woman tenant was assaulted and robbed in the hallway of the
apartment building that she was living in
b. First we look at the contract: lease
i. We have the instrument to figure out what was
bargained for- so what about freedom of K?
c. Has the P assumed the risk? Court holds that there is a duty and
D is liable b/c D has the control over the building and is the
only who can make it safe. There is a special relationship
between the landlord and tenant.
iii. Why can‘t risks be allocated during the bargaining of a K?
iv. There is no duty to provide security personnel on business premises because
it would shift the responsibility of policing to the private sector.
1. Nivens v. 7-11 Hoagy‘s Corner (1997) p. 555
v. A college has a duty to protect its students from foreseeable criminal
assaults on campus because of the special relationship between the college
and the student.
1. Peterson v. San Francisco Community College district (1984) p.555
vi. P can be contributorily negligent even when D was negligent and failed in
their affirmative duties.
1. Wassell v. Adams (1989) p. 558 – Woman opens door in the middle of
the night of her motel and is raped. D motel was negligent in failing to
warn her about the high crime but jury found her 97 percent CN for
opening the door.
vii. Tarasoff v. Regents Univeristy of California
1. Podder had confined his intention to kill Tatiana to Dr. Lawrence Moore,
a psychologist. The doctor notified police and he was detained. Dr.
Moore‘s superior then directed no further action. Later Podder killed
Tatiana.
2. Special relationship between psychologist and the patient
viii. There is a duty owed here.
1. There is Foreseeability
2. confidentiality already breached
ix. Rule: If the psychologist reasonably believes that the patient in such a mental
or emotional condition as to be dangerous to himself or to the person or
property of another then the disclosure of that information is necessary to
prevent the threatened danger.
1. What other relationships will give rise to Tarasoff liability?
a. There is obvious special relationship b/w psychologist-patient
b. What about student-university?
x. A limit to Tarasoff: there is a difference when the threat is specific and
identifiable v. general and to the public at large.
1. Thompson v County of Alameda (1980) p. 565
a. No liability when the county knew that a violent child had
indicated that he would kill a young child in the neighborhood.
P‘s argued that there should have been a warning issued: Court
rejected that argument.
F. STRICT LIABILTY
1. Introduction: While much of Torts adapted the Negligence regime so promoted by
Holmes, certain areas of Torts clung to a more strict liability regime. These areas are
animals, ultrahazardous activities and nuisance. Ultrahazardous developed from its
implementation in Rylands v. Fletcher.
2. Policy Q: Who should bear the costs of harms that are absent negligence (bad luck?)
i. In the world of harm caused by bad luck that harm is born by the victim. Tort law
has to make a decision as to where the liability will fall.
ii. If we think negligence is the shiznit, then why have SL?
1. Speaks to an activity level v. care level concern i.e driving is an activity
we allow so we impose a care level burden
2. while blasting and other ultrahazardous activities; we are concerned with
activity level and not care level
3. So what about deterrence: by saying you are responsible no matter how
much due care you take: are people not going to take any care?
a. Does Victim Comp here trump Deterrence and Corrective
Justice?
4. Problems with SL:
a. Taking out Cont Neg and Comp Neg: P no longer deterred
b. Moral Hazard issue – P is playing with other people‘s money
5. Benefits:
a. Victim Compensation
b. Stream lined recovery system:
i. Lower litigation costs
3. Animals:
i. Owners of wild animals are considered to be strictly liable for the animal’s
actions. (also see RST 22)
ii. In order to recover, P must show at a bare minimum that the D is the owner
or the possessor of the wild animal for there to be SL.
1. Woods- Leber v. Hyatt Hotels of Puerto Rico(1997) p. 585
a. Rabid Mongoose leaped out of the woods and bit P while she
was sunbathing: no SL b/c P failed to show that D owned or
possessed the animal.
iii. Owners of domesticated animals may also be held liable for harm caused by
the pet if the owner know or has reason to know that the animal has
abnormally dangerous tendencies. (In the case of the domesticated animal:
contributory neg and assumption of risk are available as defenses) – similar to the
common law‘s one free bite rule.(RST 23)
1. Gehrts v. Batteen (2001) p. 581
a. D owned a St. Bernard puppy that but the P in the face and
caused injury.
b. The Court held that since the D had no prior knowledge of the
dog‘s tendencies and so did not have reason to know that it
would be abnormally dangerous , then the D is not strictly
liable, and then we need to apply ordinary negligence standard
of Foreseeability.
c. Note about Batteen: P pleaded Neg and SL (pleading in the
alternative)
2. Recovery is still possible even if D did not know or had reason to
know that the animal was abnormally dangerous if the P can show
that the D failed to use reasonable care in the circumstances if the
danger could have been foreseen and a duty existed. (RST 509)
iv. Exceptions to the Animals:
1. Zoos and Natural parks where there are wild animals are held to a
negligence standard.
a. ―unrealistic to hold Zoos to a SL standard b/c it is maintained in
response to the public‘s desires: Kennedy v. City and County of
Denver (1972) p. 585
b. A national park had discharged its duty to warn and was
cleared under a negligence standard: Rubenstein v. United
States (1973) p. 585
2. Why: Because there is a public benefit to having them and so we want to
make that a priority over victim compensation:
i. Heise Hypo: What about when they are being
transported?
b. There is a provocation exception when it comes to cont neg.
v. An owner or possessor of livestock or other animals except dogs and cats are
strictly liable for any physical harm cased by the animals intruding onto the
land of another.
1. Restatement § 21 (third of Torts)
2. Public roadway exception unless the owner had prior knowledge that the
animal had vicious tendencies
4. Ultra-Hazardous Activities:
i. The Evolution of a Legal Theory: Harm within the Risk, there will be SL if the
harm that has occurred is a harm within the risk action.
ii. RST 520: Ultra-Hazardous Activities
1. existence of a high degree of risk of some harm to the person, land or
chattels of others;
2. likelihood that the harm that results from it will be great;
3. inability to eliminate the risk by the exercise of reasonable care;
4. extent to which activity is not a matter of common usage;
5. inappropriateness of the activity to the place where it is carried on and;
6. extent to which its value to the community is outweighed by its
dangerous attributed (this public value exception has been taken out of
the third RST)
iii. Purpose of Activity not restricted to where the D is making a profit ( a little nod
to Rylands)
iv. Activity not limited to the D‘ land
v. Common usage: if it is customarily carried out by the great mass of mankind or
by many people in the community. (ex. Driving cars)
vi. RST 3rd 20: (tentative draft)
1. An activity is abnormally dangerous if the activity creates a foreseeable
and highly significant risk of physical harm even when reasonable care is
taken by all actors and the activity is not a matter of common usage
vii. P conduct is still taken into account though:
1. Contributory negligence when P was both knowingly contributorily
negligent and unreasonably did so: (prevent moral hazard)
2. Two themes:
a. Dangerous
b. Commonness: speaks to information that the parties know
3. UH activities may change as they become more common and more safe:
a. Example is air travel which prior to WW2 was UH, now it is
mostly not.
i. Btw passengers and the airline: negligence applies
ii. Btw property owner and damage from stuff falling from
the sky: SL
1. difference: assumption of risk by the passengers
viii. If D engages in ultra-hazardous activities, then the D is liable for all harms
even if there is no physical touch.
1. Spano v. Perini Corp. (1969) p. 589
a. P suffers property damage by the effects of blasting nearby
b. Court overrules Booth, and says that in UH cases, physicality
requirement no longer needed
c. While blasting is important: still SL
i. We just have to internalize the costs: blasters will get
liability insurance and charge more thereby passing on
the cost of liability to those who benefit: the city, and
taxpayers
ix. When deciding whether or not to apply SL, we have to take into account the
consequences of applying it and consider the 6 factors outlined in § 520.
1. Indiana Harbor v. American Cyanamid Co. (1990) p. 599
a. Dangerous chemical leaks out while being transported just
south of Chicago. The place is evacuated and decontaminated
by the government resulting in about a million dollars in costs.
b. P seeks to recover the million dollars from the D manufacturer
of the chemical.
c. Court does not hold the manufacturer to SL because due care
could have been taken and prevented this from happening, and
because rerouting the trains through less populated areas would
be inefficient and might increase the danger of an accident b/c
the tracks on the alternative routes might be less safe.
d. The transporting of dangerous chemicals is not so ultra-
hazardous that we need to apply SL, rather it is the residential
living near these routes that is inappropriate (Posner)
e. We should use negligence and not SL here.
i. Q: if we use Negligence: should Res Ipsa be applied?
x. Goods with dangerous properties in large quantities constitute an UH
activity when being transported over public highways.
1. Siegler v. Kuhlman (1972) p. 605
a. Different from Indiana Harbor in that the action is brought
against the transporter and not the shipper.
xi. RESTATEMENTS A PLENTY:
1. § 522: Third Party Actions:
a. One carrying out UH activities is liable even if the harm is
caused by the unexpectable innocent, negligent of reckless
conduct of a third person, or animal or force of nature
2. § 523: Assumption of Risk:
a. The P‘s assumption of risk of harm from an abnormally
dangerous activity bars his recovery for the harm
3. § 524: Contributory Negligence
a. Not a defense for the D unless:
i. P‘s cont neg is knowingly and unreasonably subjecting
himself to the risk of harm from the activity
4. § 524A: P‘s abnormally sensitive activity:
a. No SL for harm caused by a UH activity if harm would not
have resulted but for P‘s abnormal sensitivity (remember the
church bell)
xii. She’s a real mink: D is only liable for the proximate cause of the UH activity
not for every occurrence following the activity which has a semblance of
connection to it. Madsen v. East Jordan Irrigation company (1942) p. 607
1. Court held that D was not liable for P‘s minks killing and their kittens
because they became frightened by D‘s explosion.
5. Nuisance (Private)
i. Nuisance: Nontrespassory invasion of another‘s interest in the private us and
enjoyment of land (RST § 821D)
ii. Note: Unlike General TORTS, in Nuisance it‘s not usually monetary
damages that the P seeks but injunctive relief.
iii. Non-intentional invasions can constitute nuisances, and these
should actionable under negligence.
iv.
v. Vogel v. Grant Lafayette Electric Cooperative
1. P‘s had an electricity agreement with GLEC to provide electricity to their
farm. Stray voltage from the electricity was harming P‘s cows. P asked D
to come in and fix the problem. D fixed the problem
2. P then sued D for harm to the cows from stray voltage.
3. What did P K for? They K for electricity but perhaps not ―stray voltage‖
4. So was the beneficial voltage invited but the stray voltage uninvited?
5. Is this an invasion? It is not physical
6. Has the P‘s lost value and enjoyment of the land?
a. Yes, the P‘s have
b. However, this is not an intentional invasion b/c had no
knowledge prior to when P’s notified of them of the
problem that there were unreasonable levels of stray
voltage
i. D would have been liable if it had continued to impose
excessive levels of stray voltage after it had knowledge
of the problem.
vi. Read together Jost and Pestey take the position that the D’s invasion crosses
me threshold level, liability becomes strict.
1. Once D crosses the threshold of unreasonableness: the Court may impose
SL.
vii. There is no legal right to the free flow of light and air from the adjoining
land, it is universally held that where a structure serves a useful purpose:
there is no cause of action even if the structure causes injury to another by
cutting off light and air even if the structure may been erected partly for
spite.
1. Foutainebleau Hotel Corp v. Forty Five Twenty Five Inc. (1959) p. 618
a. D‘s Hotel is built next to P‘s hotel that is larger and blocks
view of the Ocean and casts a shadow on P‘s property.
b. There are several options in this situation
i. Buy out property, buy property rights to get building
built in other part of lot
ii. If contract route doesn‘t work, go for the injunction on
building based on irreparable harm and the right of
property owners to uninterrupted light and air
iii. Ct rejects this argument and says no right to
uninterrupted light and air; no American right to this,
and English ancient lights doctrine has been rejected by
American cts (meant you owned land and air above it to
the sky above)
c. If the tower was constructed, and ct finds nuisance, then law
and economics doctrine would probably say give the profits
from the 14 stories to the P
i. Reasonableness here: Is benefit to D > damage/cost to P
d. There should be contract solution here, then if not that go to
tort, then if nothing else go to the legislature/ zoning board
e. Idea here is that the legislative forums are best bodies to assess
costs/benefits of public and private and decide what to use what
for
viii. Spite Fences:
1. A fence erected maliciously and with no other purpose than to shut
out the light and air from a neighbor’s window is a nuisance.
a. Flaherty v. Moran (1890) p. 621
2. If the “spite fence” has some useful purpose, then it is not a nuisance
a. Kruzniak v. Kozminski (1895)
i. Court held that although D had moved a woodshed in
part b/c of spite to block P‘s air and light, the woodshed
has some useful purpose so no nuisance.
ix. It is only considered to be a nuisance if it would have caused an injury to
people generally not upon those who are peculiarly susceptible to it, or those
who by their experience have learned to endure it w/o inconvenience.
1. Rogers v. Elliot (1888) p. 622
a. D rings bell even though P asked him not to because P is
particularly susceptible to the noise: no nuisance b/c not a
nuisance to the average person.
b. So too bad for extra-sensitive P‘s
x. RST § 821F: Liability for nuisance only if it would cause significant harm by a
normal person.
xi. Just because a business has been long established in an area, does not
necessarily mean that it is immune from nuisance liability after the
population around it has grown so that its activity is a nuisance to those
around it.
1. Ensign v. Walls (1948) p. 625
a. D has a business of raising, breeding and boarding St. Bernard
Dogs. P‘s complain that the dogs bark and bring with them rats
and flies and constitute a nuisance.
b. Court rejects D‘s I was here first and the P‘s moved here
argument.
xii. There is no defense to show that that the P came to the nuisance.
1. Campbell v. Seaman p. 626 See Ensign
xiii. Minority View: coming to the nuisance question rests on some version of
assumption of risk:
1. Bove v. Donner – Hanna Coke Corp. (1932) p. 627
a. P sought to enjoin (stop) the operation of D‘s coke oven plant.
b. Court rejected P‘s claim b/c it was an industrial area and P
knew that and that factories would increase in the future
i. Deference to Zoning Authorities since the business was
being conducted in an area where the council had
deemed appropriate
xiv. What does the RST have to say?
1. § 840D: The fact that the P acquired his land after there was already in
nuisance in existence does not bar recovery but is a factor to be
considered in determining whether the nuisance is actionable.
xv. Law and Econ Approach: Of two incompatible land uses, the one which had
but did not take the opportunity to avoid creating costs of incompatibility should
bear the costs.
xvi. General Recovery: Damages v. Injunction
1. Nuisance, P enjoins D
2. Nuisance, D pays P damages especially when there is disparity in wealth,
rich D, poor P
3. Should be a K issue but sometimes it doesn‘t work out and Court has to
enforce/ impose a K
xvii. When granting an injunction based on nuisance would have a
disproportionate economic impact, the D should be able to pay for the harm
the nuisance has caused the P’s and continue its operation/ nuisance.
1. Boomer v. Atlantic Cement Co. (1970) p. 629
a. D operates a multimillion dollar cement company that injures P
homeowners from the dirt, smoke and vibration emanating
from the plant
b. It is not the Court‘s job to fighting air pollution. The D is
creating a nuisance but it does not make sense to shut down a
multimillion dollar plant for 185,000 in permanent damages
c. Court will not grant injunction but will make D pay permanent
damages to the P‘s which will terminate this private litigation.
xviii. Court can either award permanent or temporary damages.
1. P has a duty to mitigate damages
a. Minority View: A person injured by a nuisance has no duty to
expend any effort to mitigate the damages (Wood)
xix. Huge bargaining ranges invites P‘s to hold out for a large portion of the gain as
the price for letting the D‘s resume their activities (ex: 2 million dollar mining
plant and 10,000 dollar home)
xx. Courts sometimes will enjoin D’s and allow them to continue once they have
made certain changes (conditions on the lifting of the injunction).
xxi. Purchased injunctions: P may enjoin D but only if he is prepared to
compensate the D for the loss incurred.
1. In a case where the P came to the nuisance and taken advantage of the
lesser land values to develop the land and profit off it to then make the D
stop his business because of nuisance. (two hands in the cookie jar)
G. PRODUCT LIABILITY
1. Three Categories:
i. Manufacturing Defect Strict Liability
ii. Design Defect Negligence
iii. Warning Defect/ Duty to Warn Negligence
2. Four Stages of Development of Product Liability doctrine
i. No tort doctrine: all done by K
ii. Beginning in 1916: tort law began to take over product liability using negligence
iii. 1960 – SL for public policy reasons
iv. Combine 2nd and 3rd RST: Modern era divides into three areas: Manufacturing,
Design, Duty to Warn
3. Why was there a switch over time: why not stick to K?
i. The industrial revolution and mass manufacturing resulted in a disconnect
between the producer and consumer, a relationship cut off by several K‘s
ii. New industrial world: increasing the number of stranger relationships, and so
the need for tort law emerges
iii. Why are some aspects SL and others negligent?
4. The Restatements: § 2 Categories of Product Liability:
i. There is a manufacturing defect when the product departs from its intended
design even though all possible care was used in the preparation and marketing
of the product ( SL)
ii. Is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or distributor and the omission of the alternative design
renders the product not reasonably safe
iii. Is defective b/c of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the
inclusion of reasonable instructions or warnings and the omission of the warnings
renders the product not reasonably safe
5. Manufacturing Defect:
i. First step: we move from privity and K law to the world of negligence when
it comes to product liability.
1. MacPherson v. Buick Motor Co. (1916) p. 657
a. D manufactures cars, D sells to retailer, retailer sells to P; while
driving, wheel of car collapses and P is thrown from the car,
wheel made by another manufacturer
b. Pre- Macpherson: K law governs and the D does not owe a duty
to the driver of the car
c. But in McPherson: no more K law, we got Tort law and we are
imposing duty owed and negligence
d. We all pass of the costs to victim compensation onto the public:
loss distribution and we also have the fact that the D here is a
least cost avoider
2. The four person car – you have paid for the duty owed, you are selling
tort forced insurance
ii. Second Step: we move from negligence to strict liability in Product liability
(but soon we will backtrack and do a SL/Neg split)
1. Escola v. Coca Cola Bottling Co. of Fresno (1944) p. 665
a. Coke bottle explodes in P‘s hand
b. Court applies Res Ipsa (presumptive negligence)
c. Appellate court says that we should apply SL here
2. Traynor leads the way:
a. We want to have loss minimization and loss distribution
i. least cost avoider
ii. Coke can just pass off the loss across the public Market
iii. There are gross informational equalities so it smacks of
Res Ipsa, so we are already on the road to SL
3. Not mentioned by Traynor: Corrtective Justice
a. Once P has established the causal connection to the defendant‘s
act, then prima facie the loss should be placed upon the party
who created that condition, not the party who suffered from it.
iii. Implied Warranty: UCC §2-318 see page 671
iv. Manufacturer is strictly liable in Tort when an article he places on the
market, knowing that is to be used without inspection for defects proves to
have a defect that causes injury to a human being.
1. Greenman v. Yuba Power Products (1963) p.
a. P was injured when using a shopsmith power tool, a piece of
wood suddenly flew out of the machine and inflicted serious
injury.
v. When an airplane crashed, P brought a SL suit against Lockheed and American
Airlines. Court only allowed SL against Lockheed stating that adequate
protection is put in for airplane passengers as long as the manufacturer is held
liable.
1. Goldberg v. Kollsman (1963) p. 674
6. Design Defects
i. Three views of Design Defect:
1. Open and obvious test of Campo: If a manufacturer does everything
necessary to make the machine function properly for which it is
designed, if the machine is w/o a latent defect and its functioning creates
no peril that is not know to the user, then the manufacturer has satisfied
the law‘s demands. (overruled)
2. Consumer Expectations test (Harper and James § 28.5): Just b/c the
purchaser knew of a dangerous condition does not mean there can‘t be
negligence: if it would be feasible for the marker of a product to design
the product differently, it should be a question for the jury whether
reasonable care demanded such a precaution, though its absence is
obvious.
3. Risk – Utility Test (Wade):
a. Usefulness of the product
b. Probability of injury
c. Reasonable alternative design
d. User‘s ability to avoid danger by due care
e. User‘s knowledge of the danger
f. Feasibility of the manufacturer of spreading the loss though
price or liability insurance
ii. A manufacturer is liable for a defect in design which the manufacturer could
have reasonably foreseen would cause or enhance injuries, which is not
patent or obvious to the user and which in fact leads to or enhances the
harm.
1. Volkswagen of America v. Young (1974) p. 704
a. P gets into a car accident, after impact: seat breaks away from
car and P suffers second collision which results in P‘s death
i. Decedent asserts that it is reasonably foreseeable that
cars will be in accidents and that there is another way to
build the car and that would have prevented the harm
b. The nature of design risk here is open and notorious? Debatable
c. What are consumer expectations here? Is it reasonable for
$5000 purchaser to expect seat not to move?
d. Negligence here; what is duty of care? Has it been breached?
e. VW‘s duty includes foresight that accidents will happen and
have to take those into design
i. Some consideration here of what can reasonably be
expected for this price.
f. There is some question of what advertising- if you were told it
was super safe, the manu has set their bar really high
i. Design defect bleeds into duty to warn then
iii. Compliance with the statute does not necessarily allow a D to escape liability in a
design defect case, courts must use cost-benefits test to determine the applicable
standard
iv. Crashworthiness standard: while the theory of proximate causation holds the D
liable only for the increased harm, the full loss falls on the D ―if proof does not
support a determination of the harm that would have resulted in the absence of
the product defect.
1. This has led to juries awarding verdicts to P‘s even when D‘s have
complied with statutes and regulations
a. Creating a damned if you do, damned if you don‘t attitude
i. Example: Blackenship v. GM (1991) p. 710
1. After noting the dangers of juries second
guessing the safety standards promulgated by
the National Highway Traffic Safety
Administration: why should West Virignians
have to suffer when we are all paying premiums
of GM cars for these results nationally
a. So we are jumping on the bandwagon!
v. Decline of Open and Obvious:
1. Campo is explicitly overruled in Micallef v. Miehle Corporation :
accepted the proposition that the machine could be defective in design
even when the dangerous condition was open and obvious.
a. Responsible for the danger that comes about from the
intended use of the product as well as an intended yet
reasonably foreseeable use.
2. What is reasonable care will of course vary with the surrounding
circumstances, balancing of the likelihood of harm, the gravity of
harm if it happens, against the burden of precaution
3. In food cases: consumer expectations
vi. Product is defective in design either
1. if the product has failed to perform safely as an ordinary consumer
would expect when used in an intended or reasonably foreseeable
manner OR
2. if, in light of the relevant factors discussed below, the benefits of the
challenged design do not outweigh the risk of danger inherent in
such design (reasonable alternative design)
a. so P can recover if the design falls below consumer
expectations or when products are designed as safely as
they should be
b. Barker v. Lull Engineering Company
i. P got hurt using a loader when he lifted some lumber
and the lumber fell on him
ii. Consumer expectations in an intended or reasonably
foreseeable manner
iii. Or there was a reasonably alternative design available
vii. The Resurgence of Open and Obvious?
1. Although not conclusive, the obviousness of a defect or danger is
material to the issue whether a product is unreasonably dangerous.
a. Linegar v. Armour of America (1990) p. 721
i. Trooper at a traffic stop and driver shoots him—hit by
several bullets but several of them hit his vest which
stopped them. One bullet entered between seventh and
eighth ribs where vest did not cover—pierced his heart
and sued him. Family sues manufacturer of vest
ii. Argument: not only is product effective, but it did
exactly what it was supposed to do—stopped every
bullet that it touched, but not the ones that it was not
designed to touch
iii. What does the court do with open and
notorious(obvious)?
1. Just because risks incident to this product are
open and notorious, doesn‘t mean that this
plaintiff will always lose
2. Fact that it is open and notorious informs and is
relevant but is not dispositive as to whether a
design defect exists.
iv. How does it dovetail with consumer expectation?
1. reasonable consumer who is probably in best
position to evaluate numerous tradeoffs in
functionality and protection
2. Reasonable to draw on defendant advertising—
must inform what reasonable consumer can be
expected to expect (Sheila’s class notes)
viii. Quick Summary:
1. Open and obvious
a. If a design that generates risk is both open and obvious, it
shouldn‘t generate liability. What is and is not open and
obvious is a question
b. Case law: even open and obvious risks can nevertheless still be
held to be defective
2. Consumer Expectations
a. Intended or reasonably foreseeable use
b. Foreseeability – seminal feature of American tort jurisprudence
3. Statutory/regulatory standards
a. Back to negligence analysis—asymmetrical treatment of
regulatory compliance; failure to comply or meet statutory
minimums is presumptive negligence; conversely, fact that a
product like Ford Pinto did comply is certainly germane,
admissible, and probative but does not establish the absence of
the design defect
b. Something can comply with statutory requirements but still be
deemed to be a defective product
4. Risk utility—cost benefit; (to the consumer)—not Learned Hand theorem
5. Reasonable Alternative Designs (Rest 3d)—if it could reasonably have
come to market—if design of a good, manufacturer consciously chose
design A over design B and design B was a reasonable and safer
alternative
7. Duty to Warn
i. Analytic transition: Two basic ways in tort theory to manage the risk generated
by design features and warning labels. One can either ―design out‖ risk, or blunt
risk through design and redesign, or in contrast, when engineering can‘t design
around risk, ―warn off‖ risk, and at that moment in time, ideally or in theory,
when engineering pushes itself to the wall
ii. Sometimes it is too expensive to make an alternative design so you decided to
warn instead
iii. Important Questions:
1. To whom is the duty owed?
2. What must the warning contain?
3. When must the warning be given?
iv. RST: Duty to Warn is a test of reasonableness in terms of those three Q‘s
v. Usually when it comes to pharmaceutical manufacturers and prescription
medicines, the learned intermediary (the physician) takes responsibility
1. Exception: birth control pills
2. MacDonald v. Ortho Pharmaceutical Corp. (1985) p. 731
a. Lady using birth control pills had a stroke. Only the
customer did not know that a stroke was a risk (warning
did discuss possibility of fatal abnormal blood clotting)
b. Did the D have a duty to warn: Yes
c. To whom was the duty owed: generally we have a learned
intermediary who takes charge of the duty but not this
case b/c Birth control pills—take an affirmative action to
get. Not a treatment.
d. What must the warning contain: that which is necessary
to discharge the duty
vi. D shall not be held liable for failure to warn of risk that were not reasonably
foreseeable at the time of sale or could not be discovered by way of
reasonable testing prior to marketing the product.
1. Vasallo v. Baxter Healthcare Corp (1998) p. 741
a. P‘s breast implants leaked and caused scar tissue:
b. D has a duty to reasonably test the product prior to marketing it
in order to know of reasonably foreseeable dangers
c. D was held liable under a negligence standard
vii. D is not liable for harm resulting from the unreasonable use of their product
1. Hood v. Ryobi America Corp (1999) p. 748
a. Guy with a saw removed guard despite warning and got hurt
badly.
b. Would a reasonable consumer see it as the plaintiff did?
i. No—most do not remove the guard.
c. Don‘t have to warn by predicting everything—only reasonable!
d. What do we need to know as consumers to take this risk?
e. What would a reasonable person need to know ex ante, without
hindsight, to undertake the risk?