Torts Outline

Torts Brunell Fall 2006 1





1- INTENTIONAL TORTS



A. Intent

I. Don’t need to intend to harm the person, just need to intend the contact that causes the

harm

A. Garratt v Dailey: Boy pulled chair out from women. If knew with substantial

certainty that she would fall (thus causing a harmful contact) then liable, even if he

didin’t mean for her to get hurt.

B. McGuire v Almy: Insane person threw chair at nurse. Didn’t have to intend to

hurt her, just to cause that type of contact. She intended to throw a chair at a person, so

liable, even though she might not understand the harm that could result.

-Children and insane can be held liable for I. Tort

-Hyp: If insane thought she was throwing chair at butterfly, then not I.

Tort because not intending the contact (no intent to hit women with chair).

-a subjective standard. What did THAT person intend. If she was sane,

she would know it was a person she was trying to hit, but a subjective std

of what she thought (but note, doesn’t matter whether they actually

intended the harm, that is not subjective, irrelevant because not a

requirement)



II. Need knowledge (General intent) and Specific intent (purpose) OR substantial

certainty needed

A. Either have to intend the contact OR substantially certain (subjective, but can

use reasonable person to determine what their subjective knowledge likely was)

that the contact would occur.



III. Unforeseeable Harm: If have intent for I. Tort, liable for all injuries or harms, even if

they are remote or unforeseeable

A. Spivey v Battaglia: man who gave unsolicited hug to co-worker which

paralyzed face would be liable if there was substantial certainty of a harm because

liable for any damages, but not found liable for I. Tort because not substantial

certainity

1. either I. Tort or negligence, not both. If have intent, then going to be an

I. Tort.

2. Note: Court got this wrong, he knew she was shy and intended the

contact anyway, Therefore he intended an offensive contact.



IV. Mistake doctrine: Good faith mistake in identity is not a defense, just need to prove

that the act was intented

A. Ransom v Kitner: Shot dog thinking it was a wolf. Intended the harmful

contact (shooting an animal) so doesn’t matter that there was good faith

mistake in identity.

a. If dropped gun and it shot the dog, then not I tort because didn’t intend

the action (a mistake in action is a defense)







1

Torts Brunell Fall 2006 2





V. Transferred liability: If intend a harmful contact then that transfers to other

people/torts

A. So if intend to commit a battery towards one person and accidentally commit a

battery to a different person, still liable (even though don’t have the “intent’ to

harm that person). And for I. torts too, so if intended an assault, and actually

commit a battery, still liable

B. Talmage v Smith: Old man throws a stick trying to hit one boy and

accidentally hits a different one. Liable through transferred intent



B. Battery

Restatement

i. There is a harmful or offensive contact

ii. An intent to cause contact with another person [and that contact] is

harmful or offensive

1. Kick in the shin to someone wearing shin guards may be

offensive even if doesn’t cause harm

iii. The act causes the contact



I. Did defendant intend the action that caused the contact (or know with

substantial certainty that it would occur)?

a. Does not matter whether intention of actor is to actually cause harm or

offense. About whether the actor intended the contact (that is a

harmful/offensive contact), doesn’t matter if his subjective intent is not to

cause harm

b. If I open door and didn’t know you were standing behind it and hits you in

face, not battery because didn’t intend the “harmful contact.” I did intend

the action (opening the door) but not the contact (it hitting person in face)

c. Same if shut your laptop and didn’t know your hands were in there.

However if I knew that you were always typing in laptop, then probably

substantially certain that would be harmful contact when shut the laptop.

d. Conversely, if I throw a ball at your face to be a funny joke (don’t mean to

hurt you) and it does in fact cause you injury, then I am liable because I

intended the harmful contact (even though I didn’t intend the harm)

II. Was the contact harmful or offensive

a. Whether or not the contact is offensive or harmful is an objective test

(reasonable person standard, not unduly sensitive person)

i. Context specific

b. Italian guy who kisses people because it is custom in Italy does not mean

any harm. But if objective person in US finds this offensive, then still

liable. Subjective intent not to do harm doesn’t matter, intended the

contact that was objectively offensive (intended to kiss someone, did

indeed intend the contact, just didn’t intended it to be harmful)

c. Man shoots a guy in a wolf costume who he thinks is a wolf. Not a battery

because he really thought it was a wolf so the contact that he intended

would not be considered objectively offensive/harmful (shooting a wolf)









2

Torts Brunell Fall 2006 3





i. Compare Italian guy who intends the objectively offensive contact

(even if he didn’t mean it to be offensive) vs man who didn’t

intend to shoot a person (didn’t intend that type of contact at all,

and kind of contact he did intend was not objectively offensive)

ii. Note: also different from the man who thinks is shooting a wolf but

actually shooting a dog. In that case, also NO battery. But is

trespass to chattels (and identity not a mistake in Trespass to

chattels)

d. Wallace v Rosen pg 30: Wallace falls down stairs when Rosen touches her

to get her moving during a fire drill. Although she did intend the contact,

can not be said to be objectively offensive or harmful contact. Wallace is

being unduly sensitive

i. If actor knows plaintiff is unduly sensitive, then will be liable if

purposely creates contact (he is intending to cause

offensive/harmful contact now)

e. Fisher v Carrousel Motor Hotel pg 35: hotel clerk who grabbed plate from

black scientist and said racial slurs was a battery. There was contact

because holding a plate made it an extension of his body.

i. If just yelled slurs, then not battery because no contact

ii. If just grabbed plate w/out racial slurs, then fact to be determined if

reasonable person would find this offensive

f. Eggshell Plaintiff: If commit a battery, then liable for all damages that

occur, even unforeseeable ones…so even if plaintiff has an unknown prior

condition that results in a damage much worse then one would expect (i.e.

punching someone in head causes them to die because have a rare

condition with a particularly fragile skull, liable for full injury….death)

i. If didn’t intend some contact that is harmful, then doesn’t apply

(friendly handshake that crushes eggshell’s bones not battery)

ii. See Spivey where not found liable for I. Tort, so eggshell rule

doesn’t apply in that circumstance

g. Summary: Does not matter whether tortfeasor subjectively intended harm

or offense. Matters that he intended to cause contact that is objectively

harmful or offensive.

i. Was there contact?

ii. Did he intend the contact?

iii. Was the contact harmful or offensive?



C. Assault

Restatement of Torts § 21

(a) he acts intending to cause a harmful or offensive contact with the

person of the other or a third person, or an imminent apprehension of such

contact, and

(b) the other is thereby put in such imminent apprehension.



I. Intent to put someone in imminent apprehension of the risk

a. i.e. scare them by making them think you are going to commit a battery





3

Torts Brunell Fall 2006 4





b. Or substantially certain

i. Dress up as a thief and point a fake gun as a joke. Don’t intend an

assault, but objectively would put the person in apprehension

c. Or Intend to commit battery and they get scared (even though not

intending to commit apprehension, just the contact)

II. Person needs to actually be put into apprehension (subjective apprehension of

plaintiff)

a. so even if actor intended a battery but plaintiff was not fearful, then no

assault)

b. Dirty Harry exmaple

c. BUT conversely, If person has apprehension just because overly sensitive

but didn’t intend threa, then no assault

d. Unless defendant knew plaintiff was overly sensitive, then there would be

an assault because there is intent

III. Neither actual Physical harm, nor the ability to commit physical harm, is

needed for there to be an assault, just need to cause apprehension in plaintiff

of an imminent threat

a. I de S et ux. V W de S pg 37: Swung hatchet but missed

b. Western Union v Hill: Clock fixer tells women he wants her to love him

and reaches out to grab her, but couldn’t actually touch her because behind

desk

c. If have unloaded gun but plaintiff thought it was loaded, then tortuous

assualt

IV. No Assault:

a. threat of a future act. Mere preparation for future act vs imminent threat is

jury determination (needs to be more then possibility, less then a certainty)

b. Words alone, but may be in context

i. Hitman has your kids hostage and tells you on phone that he is

going to kill them right now



D. False Imprisonment

Restatement § 35. False Imprisonment

(a) he acts intending to confine the other or a third person within boundaries fixed

by the actor, and

(b) his act directly or indirectly results in such a confinement of the other, and

(c) the other is conscious of the confinement or is harmed by it.



I. There is False Imprisonment:

A. If enter situation voluntarily, then change mind and not allowed to leave

1. Big Town Nursing Home v Newman: No right to hold man at nursing

home against his will. Said he could leave when he wants, but would not

be allowed even if he signed an agreement that said he couldn’t leave.

B. No matter the size of the area, can be as big as a state

C. If only method of escape means getting harmed







4

Torts Brunell Fall 2006 5





-If try escape and get harmed, and would have been safe if stayed

imprisoned, can’t collect for damage resulting from escape

D. If threaten harm

-Debate if threat of future harm enough

-If don’t believe threat, then no FI (cause can leave)

E. Takes away person’s property, compelling them to stay

F. Abuse of authority…False detainment

1. Enright v Groves: Cop arrests women because she won’t show her

license. Not a crime not to show license, so no authority to arrest her and

bring her to station

G. Cause someone’s confinement and fail to act to get them out of confinement

1. Whittaker v Sandford p 48: Women told she could get boat ride to

America. They took her almost full way and not to shore and would not

take her. Failure to complete the action FI because they caused her

confinement

H. Even if do not physically touch



II. Not false imprisonment:

A. If not conscious of the imprisonment (unless harmed by it)

1. Parvi v City of Kingston: Drunk guy dropped off at abandoned golf

course. Doesn’t matter if doesn’t recall the FI now, if he was conscious of

it at the time of the FI. If not conscious of it, then no FI.

B. to exclude someone from an area

1.Texas congressmen article

C. If a reasonable escape exists

D. If merely feel compelled to stay but haven’t been told have to (or asked to

leave), or if threat for leaving is lawful

1. Hardy v. Labelle’s distributor: Women tricked into office to confront

her about stealing watch. Just because she felt like would lose job if left

not enough. A lawful threat.



III. No actual damages need to be proved



D. Intentional Infliction of Emotional Distress

Restatement § 46

Direct IIED- (1) One who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for such emotional

distress, and if bodily harm result to the other results from it, for such bodily harm.

Bystander IIED- (2) Where such conduct is directed to a third person, the actor is subject

to liability if he intentionally or recklessly causes severe emotional distress:

(a) to a member of such person’s immediate family who is present at the time,

whether or not such distress results in bodily harm;

(b) to any other person who is present at the time, if such distress results in bodily

harm.





5

Torts Brunell Fall 2006 6







Summary:

Direct IIED: 1) need intent/substantial certainty/recklessness of an 2) extreme and

outrageous conduct that causes 3) severe emotional distress

Bystander IIED: To third person if they are 1) present and aware of incident and 2) actor

know they are present

-3a) family member need not have physical injury

-3b) other 3rd person needs a physical injury



1- Direct IIED

I. Just having a tortuous intent, a criminal intent, intent to cause distress, or

malice not enough. Conduct has to be so extreme and outrageous.

a. An average person must think “outrageous!” An objective standard

b. Insults, and even future threats of violence usually not enough

c. Slocum v Food Fair pg 54: Store clerk telling women “she stinks to him”

not enough. Even if intended distress, and she felt some distress, the

action must be SEVERE

d. Uncontrolled power relationships will often lead to finding of IIED

II. Need intent, substantial certainty or recklessness (exception to I tort) for IIED

a. Unlikely to have situation of IIED that doesn’t satisfy intent

III. Do not need actual physical injury or intent to cause physical injury

a. State Rubbish v Siliznoff pg 50: Garbage man called in to meeting and

said he would have be beaten and truck ruined if did not sign forms.

IV. In addition to extreme and outrageous conduct, need severe emotional distress

a. Harris v Jones p57: Employee repeatedly mocked and teased about

speech impediment. Even though extreme and outrageous conduct, no

proof of severe emotional distress as a result.

V. Other Info:

a. Eggshell applies. Common carriers generally held to higher standard.

Mere fear of contracting disease (w/out getting it) not enough. Knowledge

of plaintiffs vulnerability can be a factor.



2- Indirect IIED (3rd persons)



I. To family member who is present, even if no physical harm

II. To any 3rd person if distress results in bodily harm

III. No transferred intent in IIED

a. Because not one of 5 original torts

b. So IIED to one person doesn’t transfer to another

IV. Actor needs to be aware of plaintiff’s presence (because otherwise no intent)

i. Taylor v Vallengua p 64: Witnessed defendant beat up her father.

Not liable for IIED because he didn’t know she was present.

V. Family member needs to be aware of the incident, and present at time of

incident

a. Seeing or hearing it is enough.









6

Torts Brunell Fall 2006 7





b. Finding dead body a week later doesn’t count because not there at time of

incident

c. Some exceptions, i.e. threatened to murder husband and then did



E. Trespass to Land

Restatement § 158 Liability for Intentional Intrusions on Land



-irrespective of whether he causes harm, if he intentionally

(a) enters land in the possession of the other, or causes a thing or a third person to do

so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under a duty to remove.





I. General

a. Definition: A trespass to land can occur when the defendant enters the

plaintiffs land (or causes another person or object to enter the land)

b. Has to be a voluntary entrance on to the land.

i. Not trespass if physically forced on land or fall onto land

c. Allow nominal and punitive damages in trespass to land, even without

actual showing of damage

d. If given permission and that permission is revoked, continued presence is

a trespass

II. Mistake: Doesn’t matter if entered by mistake or thought it was someone

else’s land (even if reasonable), still a trespass.

a. Dougherty v Stepp p 66: Surveyor liable for trespass even though

legitimately thought it was his land

b. Playing baseball and ball goes into neighbor’s yard, is the ball a trespass?

i. Accidents out of purposeful act is not trespass

ii. If ball keeps going into yard, maybe substantial certainty so now

trespass



§ 162 Extent Of Trespasser's Liability For Harm

A trespass on land subjects the trespasser to liability for physical harm to the

possessor of the land at the time of the trespass, or to the land or to his things, or to

members of his household or to their things, caused by any act done, activity carried on,

or condition created by the trespasser, irrespective of whether his conduct is such as

would subject him to liability were he not a trespasser.

(summary: liable for things just because a trespasser, even if normally wouldn’t be

liable for those things)



III. Failure to remove: If defendant fails to remove an object that under duty to

remove, then liable for trespass









7

Torts Brunell Fall 2006 8





a. Rogers v Board of Road pg 72: City supposed to remove all of snow fence

and accidentally left an anchor. Liable for damage to the bodily harm of

husband as a result of trespass for leaving item on property

IV. Indirect Invasion: if tangible object enters, then trespass. If less tangible

(particles/gasses) then need to prove actual damages to recover for trespass

a. Bradley v American Smelting pg 68: Smelting company causing gaseous

chemicals to build up on plaintiffs land. Is a trespass, but loses because no

proof of actual damages

i. Note: also could sue for nuisance violation which requires actual

damage but no actual invasion of property



§ 159 Intrusions Upon, Beneath, and Above the Surface of Earth

-may be committed on, beneath, or above the surface of the earth.

-Flight by aircraft in the air space above the land of another is a trespass if, but only if,

(a) it enters into the immediate reaches of the air space next to the land, and

(b) it interferes substantially with the other’s use and enjoyment of his land.



V. Airspace: Own the air space above your property

a. Herrin v Sutherland pg 70: Trespass when defendant fired gun over

plaintiffs land. Interfered with quiet enjoyment and could have caused

damage to property (i.e. cattle on plaintiffs land)





F. Trespass to Chattels



§ 217 Ways of Committing Trespass to Chattels



A trespass to chattel may be committed by intentionally

(a) dispossessing another of the chattel, or

(b) using or intermeddling with a chattel in the possession of another.



§ 218 Liability to Persons in Possession



One who commits a trespass to chattel is subject to liability to the possessor of the

chattel if, but only if,

(a) he dispossesses the other of the chattel, or

(b) the chattel is impaired as to its condition, quality, or value, or

(c) the possessor is deprived of the use of the chattel for a substantial time, or

(d) bodily harm is caused to the possessor, or harm is caused to some person or

thing in which the possessor has a legally protected interest.



I. Basic info

a. Definition: Any intentional interference with a person’s use or possession

of a chattel

i. Injury to chattel: Damage







8

Torts Brunell Fall 2006 9





ii. Substantial Deprivation of Use: Can not use the chattel for

intended purpose

iii. Dispossession: Take the chattel away so from plaintiff so they

can’t use

1. If put a locked code on my computer so that I can not

access it, you have “substantially deprived me of use” but

not “dispossessed” the chattel

b. Interference/dispossession must be for a “substantial time” to be

actionable

c. Can use reasonable force to protect interference with chattel

II. Harmless intermeddling is not a trespass to chattel (must have actual harm)

a. So must be actual harm

i. Note: not true with trespass to land, where harmless interference IS

actionable

b. Glidden v Szybiak pg 75: Little girl did not commit trespass to chattels

when played and poked with a dog on neighbors property because only

harmless intermeddling (did not harm or dispossess the dog)

1. If she injured dog by poking in eye, then trespass to chattel

(injury to chattel)

2. If took dog with her for a few minutes, probably not

dispossession for substantial time. If took it home with her,

then probably substantial dispossession

III. Non-physical damage that causes economic harm may be trespass to chattels

a. Compuserve v Cyber promotions pg 77:

i. F: Spammers sending mass mailing tie up compuserves systems

and causes them to lose customers

ii. H: The intentional electronic interference caused harm to

plaintiff’s chattel (computer system). Impaired the value (per

restatement) by reducing customers and cost in fixing problem



G. Conversion

I. Defendant so substantially interferes with the plaintiffs possession or

ownership of property that it is fair to require the defendant to pay the

property’s full value

a. Conversion (so substantial that requires full compensation) vs trespass to

chattel (damage or dispossession that deserves payment of partial

damages)

b. Need intent for action (but not intent to harm)

c. Factors to consider: Extent and duration of control, actor’s good faith,

harm done, inconvenience and expense caused to plaintiff

d. Ways to convert a chattel: Acquiring, damaging/altering, using, receiving,

disposing, misdelivering, refusing to surrender

e. Pearson v Dodd pg 81: Reporters who stole documents, photocopied them

and published them did not commit conversion because did not completely









9

Torts Brunell Fall 2006 10





deprive plaintiff of the chattel because returned it (or ruin it’s economic

value)



H. Defenses/Privileges

-Responses by defendant to accusation of a tort that if accepted, results in defendant not

being found liable



I. Consent

i. If plaintiff has consented, then no intentional tort

b. Implied Consent

i. Implied consent: If reasonable for defendant to assume consent,

then it exists, regardless of plaintiffs actual intent

ii. Dependent on what a reasonable person would think in the

circumstances and based on the relationship (an objective standard)

1. So if I say am going to punch you and you are silent, your

silence is not consent because not reasonable to assume so

(reasonable person standard)

2. If wife tells husband not to kiss her and he does anywhere,

questionable if she has consented (relationship,

circumstances)

3. Kid crosses lawn of neighbor everyday and he waves. No

trespass because reasonable to assume implied consent with

wave

iii. O’Brien v Cunard pg 91

1. F: Immigrants had to get vaccinated. Plaintiff in line and

she told him she already had one. He said she should get it

again and she stuck her arm out (but was silent). She got

sick form vaccine and claims she did not consent to it.

2. H: Implied consent from a reasonable interpretation of her

actions, so can not recover for tort damage.

iv. Custom: If plaintiff has generally been ok with the action, then can

be assumed that continues to be ok with it unless expresses

otherwise

1. Neighbor always lets kids cross his lawn. New kid tommy

doesn’t know that but crosses neighbors lawn anyway. No

trespass because general allowable custom that implies

consent.

2. Express revocation of a custom withdraws consent

c. Scope of Consent

i. Professional Sports: an athlete of a violent sport does not consent

to harm on the field that is done with the intent to injure (outside of

scope of what one is consenting to)

1. Liable if defendant has an intent to injure or reckless

disregard for player and violates a rule that is in place for

safety of players







10

Torts Brunell Fall 2006 11





a. Can not sue for a holding call, not a rule about

safety of player

2. Hackbart v Cincinnati Bengals pg 92: Defendant liable for

hitting plaintiff with his forearm out of frustration when

losing during a football game

3. Intentionally tackle player during touch football: Can be

liable for battery, beyond scope of consent

ii. Surgery: Just because consent to one type of surgery for a

particular purposes, does not mean consent to another, different

type of surgery

1. Mohr v Willaims pg 94:

a. F: Plaintiff having surgery to fix apparent problem

with right ear. While under anesthesia, doctor

realizes right ear fine but then checks left ear and

notices it needs surgery and performs surgery on

that ear

b. H: had only consented to surgery with right ear so

no express consent and no action (or inaction) that

could be interpreted as implied consent (she was

unconscious).

c. The beneficial nature of surgery is irrelevant. Can

still sue for nominal and punitive damages

2. Exception: when an emergency situation and person is

incapable of granting consent (i.e. unconscious, drunk)

a. Only if a reasonable person would give consent and

no reason to believe the plaintiff wouldn’t consent

(if wearing a Do Not Resuscitate bracelet then no

that this plaintiff would not give consent if

conscious, so no consent, even if reasonable person

would)

d. Mistake

i. Mutual Mistake: If defendant says something that is not true and

plaintiff consents in reliance on it, there still is consent if the

plaintiff really thought was telling the truth

1. Defendant tells plaintiff he has no STDs and so palitniff

consents to sex. Turns out he does have STD. Consent still

valid, so no intentional tort

a. Note: may be negligence

ii. Mistake known to defendant: If defendant tells a lie (or knows of

plaintiffs mistake) and plaintiff gives consent in reliance on this

falsity, then there is no consent (liable for intentional tort)

1. De May v Roberts pg 99:

a. F: Friend of Doctor goes with him to help deliver

baby. He knows nothing of medicine, yet helps in

the delivery, touching the pregnant woman. Family

assumed he was a medical assistant based on the







11

Torts Brunell Fall 2006 12





representation. Sue for battery when find out he

isn’t.

b. H: Women did not consent because based on false

pretences caused by deceit of defendant.

c. Even though he did not explicitly lie, if reasonable

person in defendant’s shoes knows plaintiff would

not have consented if knew the truth, then liable

i. If magic aware he has HIV, liable if doesn’t

tell sexual partner because knows she would

not have consented to sex if she knew that

fact

2. Collateral: If the misrepresentation is not related to the

harmful or offensive action, but to some collateral matter

that induced the consent, then consent is still valid.

a. So consent is only invalidated if the mistake related

to an essential part of the situation

b. Promise a girl a car if she sleeps with me. Have sex

and don’t give her the car. No battery (consent still

valid). She can sue for the car though

i. The lie did not cause the harmful or

offensive contact. It is not like getting a car

doesn’t make the sex a battery but not

getting a car does

c. Guy says water meter reader but really a thief, then

can sue for trespass

i. Here, the lie went to the essence of what

would make this a harm or not.

II. Defenses

a. Self Defense

i. Definition: Can use reasonable force to defend themselves against

any physical bodily harm or confinement

ii. Real or reasonably believed threats (objective reasonable person)

1. Defendant kicked guy out of dance, heard he was going to

get bricks to throw at him, stepped outside and saw a guy

running toward shim in the dark, so he defended himself.

Turns out it was just someone else, not brick boy,

iii. Limits:

1. Once the harm is no longer threatened, the privilege of self-

defense ceases. Can’t use force after threat is over

(retaliation)

2. Insults or verbal threats of future actions are not

justifications for self-defense

iv. Degree of force:

1. Force that is reasonable necessary to protect against the

harm









12

Torts Brunell Fall 2006 13





2. Take into consideration differences in size, age and

strengths

v. Retreat:

1. No duty to retreat, even if safe to do so, if only going to use

reasonable force (majority rule)

a. Note: If would have to use deadly force to defend

yourself, and there is ability to retreat safely, then

duty to retreat

2. No duty ever to retreat in your own home (even if it means

you must use deadly force)

3. Note: Some jurisdictions say can stay and use deadly force,

even if could easily retreat

a. So if in a car and guy comes out you with knife.

Don’t have to just drive away, can sit there and

shoot him

vi. Injury to 3rd Party

1. If reasonable in your self-defense, not liable for harm

inadvertently inflicted upon an innocent 3rd party (so long

as did not act negligently)

2. Compare to transferred intent in battery.

a. Reasoning: in battery, intentionally committing a

tortuous act and shouldn’t get off hook just because

harmed a different person. Self-defense is a

necessary action, and don’t want to discourage or

harm person acting out of necessity

b. Defense of Others

i. Can come to the aid and protection of someone else, bound to

same rules and restrictions of self-defense (i.e. reasonable force)

ii. Reasonable mistake: Actor steps into the person’s shoes, and if

believe that they would have reasonably defended themselves in

that situation then they can act in their defense, even if wrong

(restatement/minority view)

c. Defense of Property/Chattels

i. Must use reasonable force (as appropriate to situation)

1. Deadly Force:

a. Generally no right to use deadly force to protect

property

b. Exceptions:

i. Threatens safety of self(defendant)/family

ii. Prevent a serious felony

1. death, serious harm

iii. Breaking into your dwelling

iv. If reasonably just trying to frighten and

accidentally kill (if frightening was

necessary)

2. Katko v Briney pg 107







13

Torts Brunell Fall 2006 14





a. F: Set up a spring gun in his old, abandoned house.

Intruders entered and were seriously injured when

shot. They sue and he defends with defense of

property

b. H: For mechanical devices, can only use the same

reasonable force that would be allowed to use as if

he were actually present

i. Spring gun has real risk of death/serious

injury and not able to use deadly force to

protect property

ii. R: life is more valuable then property

ii. Must first make a verbal demand to cease (unless clear that it

would be useless or imminent harm)

iii. Warnings: Posting a warning will not absolve defendant from

using illegal force

1. i.e. Katko still liable even if posted sign

d. Recapture of Chattel

i. Right to use force to recapture chattel

1. More limited because the person is acting as an aggressor

instead of just defending the status quo

ii. Can use reasonable force (never allowed deadly, serious injury)

1. Hodgeden v Hubbard pg 113: Plaintiff gets stove from

store on fraudaulent credit. They chase him down and hold

him down to get back stove. Not liable since reasonable

force to recapture chattel

iii. Fresh Pursuit: Only can reclaim property if in fresh pursuit to

recover it. Can not wait in time and then attempt recovery.

iv. Detention by Merchant:

1. A merchant may have a privilege to detain someone they

have reasonable grounds/probably cause to believe

shoplifted (took their chattels)

2. Must ask them to stay 1st, must be for a short time, can’t

use coercion, can’t force confession or payment

3. Some hold that right extends beyond the immediate

premises

4. See Bonkowski v Arlan’s pg 115



I. Necessity



I. General

a. A different type of defense

b. Situation in which defendant is privileged to harm the plaintiff’s property,

even though plaintiff is completely blameless (compare to

privileges/defenses in which protecting against plaintiffs harm)

II. Public Necessity







14

Torts Brunell Fall 2006 15





a. Any person may cause damage to plaintiff’s property to prevent a disaster

(or actor’s reasonable belief of apparent disaster) to the

community/substantial amount of people

b. A complete privilege: no duty to compensate for harm

i. Note: many state statutes require compensation to victim from

government

c. Surocco v Geary pg 188:

i. F: Out of control fire. Defendant sued for blowing up plaintiff’s

house in order to stop the spread of the fire.

ii. H: defendant not liable because acted out of public necessity

iii. R: interest of society as whole take precedent. Don’t hold actor

liable for representing the goods of society

d. Note: defendant does not have to be a public official, just acting in public

good

e. City tunnels through my property for highway: Not a protection of public

from harm

f. I blow up neighbor’s house to save my own: this is private necessity, see

below

III. Private Necessity

a. Any person may prevent injury to himself/others/property by damaging

the private property of the plaintiff

i. Need a threat of “serious, imminent harm”

ii. The harm to the plaintiffs property must be weighed against the

severity and likelihood of the danger defendant is trying to avoid

iii. Only applies if preventing a more serious harm by using privilege

(harming plaintiff’s property)

1. Based on economic harm

b. A partial privilege: Defendant must pay for the actual damage caused by

their actions

i. If no actual damage, then no payment. Never nominal/punitive.

ii. Why have the defendant compensate for actual damage?

1. Between two innocents have harming party pay. Unjust

enrichment.

2. Compare to making public necessity a complete privilege:

Don’t want to deter someone from acting out of complete

selflessness for the public good. In private necessity,

weighing the worth of your property against that of

another’s.

c. How is this a privilege at all? Still have to compensate for harm caused?

i. Only have to pay actual damages (no payment if no harm caused

and no nominal, punitive damages…even though normally is for

trespass)

ii. Owner’s may not resist when exercising the privilege. They can

not use force to get you off their property (liable if they do and can

use force to prevent them)









15

Torts Brunell Fall 2006 16





d. Vincent v Lake Erie pg 121: Defendant’s boat tied on plaintiff’s dock to

keep it safe during a bad storm. Caused damage to the dock. Was

necessity, so could use dock (plaintiff couldn’t kick him out) but is liable

for the harm caused

i. Note: if had not caused any actual harm, then no damages

(opposed to normal trespass law)

e. Why have this privilege?

i. No fault for defendant so give them a privilege. Social good to

lose least economic wealth

IV. Hypos

a. Bus driver’s breaks fall and can either go over cliff and die or go onto

someone else’s property, which would include hitting someone.

i. Harm to person: public/private necessity not a defense to cause

substantial harm to a person: so can’t commit a battery against one

to save 100 people (will be liable)

ii. Harm to property: yes public necessity privilege. Public good to

save people’s lives, so no damage to property is recoverable (even

if actual damage)

1. Note: Not self defense because the people injuring are not

threatening him with a harm. They are innocent

b. Shoot a dog coming to attack you

i. Private necessity privilege. Protect yourself by killing the dog

(harming other’s property). Would have to pay for damages.

ii. Note: no self-defense privilege because dogs can’t commit battery,

so not defending against an intentional tort. If could, then

wouldn’t pay damages since self-defense is complete privilege (not

liable for damages to person/property if acting in self-defense)



J. Other Defenses



I. Authority of Law

a. If acting under the given authority, then not liable for tort

b. i.e. officer who arrests someone is not falsely imprisoning

c. Private citizens may arrest people to prevent a felony or breach of peace

form being committed in their presence

II. Discipline

a. Someone with the appropriate power to do so (parents, maybe teacher’s,

military officers) may use reasonable force to ensure discipline

III. Justification

a. A “catch all” defense for one that doesn’t fit neatly into any of other

categories

b. Sindle v New york City pg 128:

i. F: bus driver damage occurring to his bus by the students and

drove it to the police station. An innocent student sued for false

imprisonment







16

Torts Brunell Fall 2006 17





ii. H: Won’t be liable if the restraint/detention was reasonable under

the circumstance to prevent harm or injury to stuff under

defendant’s possession



2- NEGLIGENCE

A) Generally

1) Elements for Cause of Action



I. Duty of Reasonable Care

a. A legal duty to perform according to certain standard so as to avoid

unreasonable risks to others

II. Breach of Duty

a. Failure to conform to the standard of care that a reasonable person

would

III. Causation

a. Connection between conduct and the injury

b. “but for” causation and Proximate causation needed

IV. Actual Loss/Damage

a. Actual damages



2) Background



I. General Background

a. Almost any conduct can be considered negligent

b. In intentional torts, the tortfeasors mindset is important. It is irrelevant to

negligence

c. The term “negligence” often refers to a duty and a breach of duty, as well

as meeting all 4. So may say “negligent” conduct without meaning

actually liable



B) Breach of Duty

1) Unreasonable Risk

I. Unreasonable Risk - Generally

a. Plaintiff must show that defendant’s conduct created an unreasonable risk

of harm

b. Not about showing that harm was caused, (implying that action therefore

must have been unreasonable), but about the reasonableness of

defendant’s conduct at the time it occurred

i. Blyth v Birmingham Waterworks pg 134: Water pipes freeze over

and burst onto plaintiff’s lawn. Water company not responsible for

protecting against the extremely rare occurrence of this sever

winter







17

Torts Brunell Fall 2006 18





ii. Lubitz v Wells pg 133: Child plaintiff who was injured by another

child when father left golf club on lawn did not have an action

because not reasonable to think a golf club would cause injury.

c. To determine if the defendant’s risk was so great as to be unreasonable,

test is whether a reasonable person would have avoided the risk. (can use

the hand rule or just reasonable person standard)

II. Hand Rule

a. The hand rule determines whether the risks of defendant’s behavior was

an unreasonable threat to others ( breach of duty because unreasonable

risk)

i. Makes less sense when discussing an individual’s behavior and

more sense in terms of company policies. This is theoretically

what jury’s think about but usually just thinking more about what

reasonable person would do in the circumstances

b. B = Burden on defendant to avoid the risk

L = Gravity of Potential Injury

P = probability that harm will occur

c. B > PL = no negligence

i. If burden is greater then the probability of harm X gravity of harm

ii. No duty for defendant to perform a burden that is greater then the

severity of harm likely to be caused

d. PL > B = negligence

i. If the probability of harm X gravity of harm is greater than the

burden, then the defendant is not justified in their action.

e. Gulf Refining v Williams pg 135:

i. F: Refining company sold a gasoline barrel with a defective

bunghole. It sparked and caused an explosion

ii. H: Extremely grave injury possible, so liable even though

probability was relatively low. Reasonable person would have

acted.

f. Chicago, B & Q.R v Krayenbuhl pg 138: Railroad does not lock turntable

and girl gets stuck in it. Burden of putting a padlock on turntable during

non-use hours is minimal compared to the risk of harm.

i. Probably would be too big a burden to require a full time guard to

keep watch during normal business hours when lock can’t be used.

There burden is great then risk of harm

g. Davidson v Snomoish County pg 139: Putting in guard rails to prevent

cars from going off the road would be too much of a burden (prohibitively

expensive) for the likelihood of severe risk.

i. Note: 40 years later, when cost of rails went down, court reversed

saying that probability of severe harm is greater then burden

h. United State v Carroll Towing Co pg 141:

i. F: Boat comes loose and crashed into another one, causing it to

loose its cargo. Plaintiff claims that should have had someone on

the ship in case there was a problem.









18

Torts Brunell Fall 2006 19





ii. H: Magnitude of risk is great (loss of barge and cargo) and the

probability of harm is relatively high (busy harbor). Burden is

minor (his job is supposed to be on the ship and he was slacking)

i. Hypos

i. Cost water company $400 to prevent the risk. Damage will be

$500. negligence if $400 < (p) $500. Need 80% risk of harm for

them to have been negligent.

1. So even if it were a 50-50 chance of damage here, would

not be negligent

2. Note: include likelihood of harm to every potential

plaintiff, not just the likelihood of harm to the plaintiff who

was actually harmed

ii. Once a year a car hood flips up and causes an accident. Half the

time it results in death. Make a million cars a year and cost of

avoiding is $10 a car.

1. Burden = $10 Million ($10 for 1 million cars)

2. Probability = .5

3. L = ?

a. If life is worth more then $20 Million, then would

be negligent

b. Note: Could also look at numbers as Burden: $10

and probability of harm 1/million. Just looking at it

on individual scale, but same result.





2) Standard of Care

-the level of care that a reasonable person is expected to comply with. Failure to do so is

a breach of duty



a. The Reasonable Person

Objective Subjective (as to group,

objective within that group)

Intelligence X

Insane X (unless no prior notice of

sudden mental incident, In

some jurisdictions)

Physical Attributes (e.g. X

blind)

Children X (Completely Subjective)

Superior Endowments (e.g. X

extra strong or an auto

mechanic)

General Knowledge X

Specific Facts X (plus what facts a

reasonable person would

obtain)





19

Torts Brunell Fall 2006 20







I. General Objective Standard

a. Would a reasonable person in the defendant’s shoes have conducted

himself as he did?

i. If not, then have failed to perform the standard of care and

therefore breached their duty

b. An objective standard, not subjective

i. Vaughn v Menlove pg 145: Defendant decided to ignore warnings

and keep his hay in dangerous spot. It caught fire. Court said that

fact that he was using his best judgment doesn’t matter, what

would a reasonable person have done?

c. Can tailor the reasonable person to some of the characteristics of the

defendant (making it more subjective), but still an objective member of

that group; A reasonable person in that type of class (not anything about

defendant’s subjective intent)

II. Intelligence/Mental Attributes

a. Not taken into consideration

b. Defendant’s ignorance, temperament, carelessness, or poor judgment does

not absolve him of negligence

i. i.e. don’t consider what a “reasonable person” of lower intelligence

would have done. They are held to the same standard of everyone

else

c. Insanity: Held to same reasonable person standard

i. Insane really don’t know how to act as a reasonable person though.

Some courts have led into direction that they won’t be liable if

don’t understand how to avoid the danger or sudden mental attacks

(see below)

III. Physical Attributes

a. Take into consideration sudden disabilities (i.e. heart attacks, sudden

mental breakdown) and permanent physical disabilities (i.e. blindness) of

the defendant and determine what a reasonable person with those

conditions would have done

b. Roberts v State of Louisiana pg 157:

i. F: Blind men knocked over an elderly man when walking in public

place where he worked without his cane. Was using a facial

sensing technique. Expert testified that most blind people would

use facial sensing without a cane in areas they are familiar with

ii. H: Blind held to a standard of care of what a reasonable blind

person would do (more or less care then non-blind person

depending on situation). Proof that a reasonable blind person

wouldn’t use a cane in areas familiar with.

1. note: so plaintiff would have to show some other action that

was unreasonable, like walking too fast or not paying

attention

c. Breunig v American Family Insurance pg 165:









20

Torts Brunell Fall 2006 21





i. F: Women thinks she sees a white light and “let’s god take control

of her car and fly her away,” but actually hits plaintiffs car. Was a

sudden schizophrenic delusion.

ii. H: A sudden mental incapacity same as a sudden physical

incapacity, so not held to normal standard of care.

iii. Contrast with generally insane who held to normal standard of care

1. note: no claim for battery either, no intent to cause harmful

contact, she though she was going to fly.

d. Drunk person held to same standard as a sober person

IV. Children

a. Not held to reasonable person standard of an adult. What would a child of

like age, intelligence and experience under the circumstances do?

i. A subjective standard that takes into account all those factors. So

not just what a “reasonable 13 year old would do” but what a “13

yr old with like intelligence and experiences”

b. Exception: If engaging in an activity that is potentially dangerous and is

normally pursued only by adults, then held to a normal (adult) standard of

care.

i. Robins v Lindsay pg 161: 13 year old boy injures girl while using

snowmobile and held to adult standard of care since operating

motor vehicle is potentially dangerous and usually operated by

adults only.

1. R: Let kids be kids and not worry about torts normally, but

also discourage them from engaging in dangerous adult

activities

2. Note: has been applied to operating motor vehicles and

even playing golf

3. Note: Courts mixed on what standard to apply if dangerous

but not necessarily adult activity. Child standard has been

applied for skiing, bike riding and even hunting.

V. Knowledge

a. Ordinary experiences, that most people know, will be expected of

defendant (i.e. flammable objects can catch fire)

i. Delair v McAdoo pg 148: Ordinary person understands that

driving with a bald tire is dangerous.

1. note: also duty to take precautions a reasonable person

would to detect dangerous conditions. So if defendant had

just inspected his tires a few days ago and then someone

stuck a nail in tire, not liable because reasonable person has

no reason to expect anything wrong with tire

b. Community knowledge: Will be expected to have knowledge of the

reasonable person in that community

i. City dweller who goes to countryside and kicked by bull can not

claim that he didn’t know bulls dangerous (because reasonable

person in the rural community where event took place would

know)







21

Torts Brunell Fall 2006 22





c. Superior knowledge/skills: if have superior knowledge or skills beyond

the average person, need to use them

i. Auto mechanic expected to detect problems with his own car that

ordinary reasonable person might not

ii. Note: also the case (must use skills/knowledge) for superior

physical attributes and if person has specific facts about the

situation that, normally, a reasonable person wouldn’t have

VI. Emergency

a. Held to how a reasonable person would have acted under emergency

situation, not how one would have acted if had time to think properly

i. Still a test of reasonableness for the situation: man who needs to

swerve out of the way should swerve onto shoulder instead of

oncoming traffic

b. Cordas v Peerless pg 154: Taxi cab driver held up at gunpoint and decided

to yank on emergency brake and jump out of the moving car. Car hits

plaintiff

i. H: Perfectly reasonable to do what you can to save your own life,

don’t need to be particularly brave in a life and death situation.

ii. Note: if knew for sure he was going to injure women to save

himself, couldn’t do it (would be an intentional tort, not

negligence, and no necessity privilege to harm innocent people).

c. Emergencies created by defendant’s own conduct or situations that are

reasonably expected (blinding of setting sun) are held to normal standard

of care

VII. Custom (Proof)

a. In trying to prove the standard of care, either side may point to the custom

(way activity is typically carried out in the trade) to prove that the standard

of care was followed or breached

i. Customs reflect the judgment and experiences of many

b. Allow customs as evidence to try to prove was/wasn’t standard of care;

but just because prove one followed a custom doesn’t mean not liable (or

that didn’t follow custom make one liable)

i. Must decide reasonableness of custom

ii. If customary to do something unreasonable (or the custom of not

doing something is considered unreasonable), then can still be

liable for following custom

iii. Conversely, If didn’t do custom, still may not be liable if can prove

that it was reasonable not to follow the custom

c. Trimarco v Klein pg 150:

i. F: plaintiffs landlord did not install safety glass around the tub and

they were severely injured when it shattered. Customary practice

to replace shower with safety glass

ii. H: Proof of custom suggests that they did not act reasonably. Will

be liable, unless prove that the custom was unreasonable (i.e. that

they acted reasonably in not following custom).









22

Torts Brunell Fall 2006 23





b. Malpractice



I. Professional Standard of Care

a. A professional is expected to perform in accordance of the level of skill

and learning commonly possessed by members of their profession, not

subjective abilities of the individual

i. Heath v Swift pg 168: Pilot who crashes personal plane responsible

to standard of care that a reasonable pilot would exert, not about

his personal abilities

b. Three areas where conduct can be questioned:

i. Ordinary amount of knowledge/skill

ii. Best judgment performed (professional judgment)

iii. Use of due care in application of skills/knowledge (i.e. submitting

claim before statute of limitations)

c. Must perform to the minimum competency level.

i. A 1st year atty does not need to perform as well as career atty, both

just need to perform at a minimum level of competency that atty

should afford their client

ii. If specialist in a particular area, then held to a higher standard for

that area

1. i.e. tax lawyer held to a higher standard for tax related

issues then a general lawyer would be

d. Good/successful results not demanded. Not about result, about whether

actions were with minimum competency and performed in good faith

i. Hodges v Carter pg 173: Lawyer not negligent for being wrong on

a point of law that had not been settled yet by highest court and

different lawyers could have different views on.

ii. Compare to Williams v Ely: lawyers negligent when told plaintiffs

that their gift would be tax free and law changed afterwards.

Should not have been so definitive in answer.

iii. Note: don’t forget would still have to prove causation and damages

if found he was negligent (would have won case if not for

negligence and how much)

e. Need expert testimony to show that the person did not act with appropriate

standard of care

i. Not up to jury to determine what is appropriate or best method

ii. Exception: Unless the negligence is so obvious to the lay person,

that it is not needed (i.e. doctor amputates wrong leg, leaves needle

in the arm)

f. Just because one member of community would have acted differently is

not enough, must show violated what standard of profession is

i. Boyce v Brown pg 177: Doctor did not give patient x-ray when she

complained of pain and just tried to fix with splints and other

remedies. 2nd doctor takes xray and discovers the problem.

1. H: Just because one doctor testified that he would have

done differently, does not prove that he violated the







23

Torts Brunell Fall 2006 24





standard of care for the profession (must show that violated

a custom of the profession)

ii. Note: if custom of profession is unreasonable, then may not be safe

just because followed custom. Hard to prove since most follow the

custom

iii. Note: if different “schools of thought” but both are respectable,

then won’t be liable for not following the majority custom.

g. Community Standard: Rule is changing so that doctors are held to a

national standard of reasonable/customary practice

i. Traditionally held to the local standards of practice since training

and facilities varied so greatly. But as technology and education

progress, professionals are likely to be equal across country

ii. Morrison v Macnamera pg 181: Plaintiff got urethral smear while

standing up and fainted, injuring himself. Wash D.C. standard to

give it to people standing up but national standard is to do it sitting

down.

1. H: Want to encourage the best level of standards possible,

which is accomplished by holding professionals to the

national standard. Also, hard to find local doctors to testify

against defendant as to him violating local standard.

2. Note: majority rule take a middle approach of similar

community in similar circumstances (so a NYC dr could

testify to appropriate standards in LA).

3. Note: Different for lay people, where local community

standards are the appropriate standards

II. Informed Consent

a. Professional standard of care for doctors to inform patients of possible

risks and alternatives of medical procedures

i. Reasonable patient standard: Must disclose all risks that are

sufficiently material that a reasonable patient would want to take

them into account in their decision of whether or not to have

procedure

1. A decision for fact finder. No expert testimony needed

ii. Reasonable Physician Standard: Expert witness testimony on what

is customary for doctors to disclose

b. Exceptions:

i. Plaintiff already knew of risk (or should have known)

ii. Emergency

iii. Full disclosure detrimental to patient (i.e. risk is so minute but

would cause her mental distress to hear about it)

c. Causation: need to prove would not have had surgery if had been properly

informed

i. Reasonable person/objective standard: some hold what would a

reasonable person have done. Avoids lying









24

Torts Brunell Fall 2006 25





ii. Subjective standard: some say it is only matter of what individual

plaintiff would have done. Their free choice not to do medical

procedures because of a risk, even if unreasonable

d. Scott v Bradford pg 185: Plaintiff sued for failure to inform her about risks

and alternatives of a hysterectomy and suffered lots of negative effects of

surgery.

i. H: Must provide informed consent of all material risks that patient

would want to know (reasonable patient standard). Held a

subjective standard for causation: would this plaintiff have had

surgery if knew of all the risks

e. Disclosure of Financial and research interest of doctor

i. Some hold that must also disclose these

ii. Moore v Regents of California pg 191: Patient has cancer and lots

of medical procedures done. Doctor recommends he gets his

spleen removed and uses patient’s unique cells for his own

research without telling him.

1. H: Patient should be informed of doctors gains from

surgery so that plaintiff can make a decision if there is a

self-motivated reason for suggesting the surgery (maybe

consciously or unconsciously)

2. if it is only a minor and insignificant role to surgery or only

present itself after operation performed, then no need to

disclose

3. Note: what are damages? Normally would be side effects

of treatment wouldn’t have had, but everything went fine

here. Maybe percentage of research profits?



3) Negligence Per Se

-automatically negligent for violating standards set forth in criminal statute



I. Judicially created strict standards of behavior will not often be upheld

a. Too inflexible, can’t be applied in every situation

b. Pokora v Wabash pg 200: Strict rule that said driver must get out and

check for approaching train does not make sense in this situation and

should allow a flexible rule to take into consideration each circumstance

II. Negligence Per Se Generally

a. When a defendant violates a legislated safety statute, will be found

negligent (breach of duty) automatically

i. In other words, automatic proof that defendant has failed the

standard of care for a reasonable person

ii. This is an acceptance of legislatures standard of what would

necessarily be considered unreasonable behavior (violation of

standard care)

iii. Osborne v Macmasters pg 204: Drug store did not label poison

against statutory rule. Negligent per se (no need to prove what a









25

Torts Brunell Fall 2006 26





reasonable person would do, although probably would have failed

that anyway)

iv. Martin v Herzog pg 222: Failure to use headlights at night

contributed to an accident, and violated statute, was negligence per

se.

b. Requirements for it to apply:

i. Plaintiff within class protected by the statute

ii. Harm is the type statute protects against

iii. Standard is appropriate for Tort law

iv. Looking at legislative intent. Do so because they don’t like to

legislate. But really no need to. Criminal Statute is just a guide

which courts are using to apply to common law, was not actually

passed for torts. So courts don’t really need to look at intent, but

do anyway.

c. Stachniwicz v Mar-Cam pg 206: Bartender told about drunks at bar but

does nothing and a big barfight breaks out, severely injuring plaintiff.

Statute saying licensed establishment should kick out visibly drunk.

i. H: interpret legislative intent. Statute passed to prevent exactly

this type of harm (bar fights) to this type of plaintiff (bar patron)

1. If waitress injured? Probably not type of plaintiff trying to

protect against

2. If plaintiff hurt by a drunk guy who just tripped and fell on

him: not type of harm trying to protect against

d. While violating statute makes you negligent per se, following it does not

necessarily get your off the hook

i. Can still be found negligent, statute is a minimum standard

III. Protected Class

a. Plaintiffs was in class intended to be protected by the statute

IV. Type of Harm

a. Must be the type of harm that the statute was intended to protect against

b. Ney v Yellow Cab pg 210:

i. F: Cab driver left keys in car, stolen by thief who hits plaintiff’s

car. Plaintiff sues cab driver, saying negligence per se for

violating statute saying that person can’t leave a running car

unattended.

ii. H: The statute is intended as public safety measure to protect

against the type of harm that occurred (don’t agree with defense

that it is a traffic regulation issue)

V. Standard is appropriate for Tort law

a. Only appropriate to apply statute to Tort if it is defining reasonable care

b. Will not usually use a statute that imposes an entirely new commonly duty

i. Perry v S.N and S.N: Children abused at day care. Parents sue 3

friends of the care givers who witnessed the abuse and did nothing

about it. State statute that says duty of person to report suspected

abuse









26

Torts Brunell Fall 2006 27





ii. H: Will not use statute to impose a new common law duty, which

this would be requiring a duty to act in defense of a 3rd person.

iii. R: Don’t want to criminalize inaction. not going to hold the 3rd

party to a possibility of a worse economic punishment then main

culprit just because they might have more $. An overbroad statute

that might lead to a lot of tricky situations of whether they knew or

didin’t of abuse

iv. Note: did find the 1st two requirements were met: the plaintiffs

(children) were the intended protected class and was the type of

harm trying to prevent (further abuse)

VI. Excuse of Violation-rebuttal presumption

a. Some jurisdictions don’t count negligence per se as automatic liability

b. May also establish a Prima Facie case of negligence (presumed negligent

unless prevent events suggesting otherwise) or may just be evidence of

negligence (one consideration but still need to prove negligence)

c. Zeni v Anderson pg 224: Plaintiff walking on roadway instead of sidewalk

because of snow storm rendering the sidewalk too dangerous. Hit by a

car. Defendant claims contributory negligence because plaintiff violating

statute to walk on the sidewalk is negligence

i. H: Prima facie negligence against the plaintiff, but an excuse that it

was a greater risk of harm to walk in the sidewalk so was not

contributory negligence (rebutted the presumption)

d. Other possible excuses against negligence per se: Reasonable attempt to

comply, emergency.

4) Circumstantial Evidence – Proving breach of duty

-Rare circumstance where plaintiff can prove negligent conduct through direct proof (i.e.

eye witness). Generally going to have to prove with circumstantial evidence



I. Circumstantial evidence: Evidence of one fact in which reasonable to infer

other occurrences

a. Often used to show that the defendant has violated their duty of care

b. Important to provide as much facts as possible to show that there has been

a violation of reasonable care

i. Compare Goddard v Boston and Maine R.R. (Plaintiff falls on

banana and circumstantial evidence not enough because could have

just been dropped there by one of the passengers getting off) with

Anjou v Boston Elevated (Plaintiff slipped on banana and evidence

that it was dirty and black suggested it had been there awhile)

1. In Goddard, banana might have recently fallen (so not

unreasonable that station hadn’t picked it up yet). In

Anjou, evidence was that had been there for awhile so had

breached duty of care.

ii. Compare Anjoy with Joye v Great Atlantic (Brown banana and dirt

around it): Not enough evidence in Joye, rule that a somewhat dirty

brown banana not good enough. Not much difference though

between the facts





27

Torts Brunell Fall 2006 28





1. Note: need to show that they either had dropped banana,

had noticed it’s presence or were put on constructive notice

because it was on floor so long

2. Note: If Supermarket had said only sweep once a night,

then would be a issue of fact for jury to determine if

sweeping once a day meets standard of care

c. Sometimes can show breach of duty by presence of hazard (without

needing to show had been there for a long time)

i. Ortega v Kmart pg 231: Slipped on spilt milk and was enough to

show breach of duty. Reasonable inspection would have

discovered the hazard

d. If engage in dangerous activity, then negligent even if reasonable care

couldn’t have discovered the hazard.

i. Hazard should not have occurred in the first place

ii. Jasko v F.F. Woolworth: Selling pizza on wax paper creates a

hazard and so don’t need constructive notice of the actual

circumstances of the hazard where plaintiff is injured since should

have foresaw the hazard could occur.

1. note: Evidence that mopped a lot used against them that

knew of hazard

iii. Compare to H.E. Butt v Resendez pg 234: A typical display of

grapes with mats on floor, protective railing and warning cone did

not produce an unreasonable risk of harm like the pizza case did.



5) Res Ipsa Loquitur

I. General

a. Res Ipsa Loquitur “The thing speaks for itself”: Point to occurrence of

accident to show that defendant was probably negligent, even without

showing precisely how they behaved

b. A type of circumstantial evidence that allows a common sense inference

i. Different then regular circumstantial because don’t know how the

negligent action happened, just that it did. Proving negligence by

occurrence of accident, as opposed to evidence (like a black

banana)

c. Why? Defendant in better position to explain accident, don’t let them

escape liability just because hard to prove exactly how accident happened

II. Provides evidence of negligence, but not conclusive (majority rule).

i. Defendant can then prove not negligent by providing

facts/evidence that explain the situation

ii. Sometimes evidence from Res ipsa can be so strong that it is a

presumption of negligence which will lead to directed verdict if not

revutted

iii. Sullivan v Crabtree pg 254: Kid killed when truck tipped over.

Nothing out of ordinary of road conditions, and parents claim Res

Ipsa since he had no explanation for accident. Court held that Res





28

Torts Brunell Fall 2006 29





Ipsa shows that evidence of negligence, but jury can reasonably

decide against it.

iv. Some jurisdictions hold Res Ipsa always provides presumption of

negligence that defendant needs to prove otherwise (minority rule).

1. Byrne v Boadle pg 237: Plaintiff hit in head by flour barrel

that came out window. Defendant, owner of building,

negligent unless can rebut and prove evidence otherwise

III. Requirements

a. Event does not usually occur without negligence

b. Defendants is likely responsible

i. In defendant’s exclusive control at relevant time (traditional view)

c. Plaintiff not contributorily negligent

i. In some jurisdictions.

d. No direct evidence of defendant’s conduct

i. If know the defendant’s conduct, then no need to use Res Ipsa, just

determine if they used reasonable care or not. Res Ipsa is for

inferring conduct

IV. Req 1: Event does not usually occur without negligence

a. Must be a rare occurrence that would not have happened unless there was

negligence (i.e could have been prevented with reasonable care)

i. So lightning strike is a rare occurrence, but not result of negligence

b. Jury uses common experience/knowledge to decide if occurrence typically

doesn’t happen without negligence

i. Examples

1. Situations that Would not have Res Ipsa applied because

common accidents that don’t necessarily result from

negligence: Falling down stairs, flat tire.

2. Situations that Would have Res Ipsa apply because doesn’t

occur without some sort of negligence: Falling of elevator,

electricity escape from wire, stuff falling from premises

ii. Note: sometimes expert might need to testify in something like

medical malpractice, because lay person can’t tell if fact present an

inference of negligence (but might be inferable by doctor)

c. McDougald v Perry pg 240: Defendants spare tire fell out of car and hit

plaintiffs car. Had been held in place with a chain for 30 years.

Defendant claims to have inspected chain

i. H: a spare tire coming off truck is something that common

knowledge/experience tells us would not have occurred unless

there was a failure of reasonable care by the defendant

ii. What if brand new car? Presumption that car would work right so

reasonable care on part of defendant (likely a manufacture defect)

d. Plaintiff does not need to rule out all other possible causes of accident, just

that it was more likely then not the result of negligence

V. Req 2: Defendant is likely responsible

a. Traditional view: plaintiff must demonstrate that the instrumentality that

caused the harm was in the exclusive control of the defendant







29

Torts Brunell Fall 2006 30





i. Larson v St. Frances Hotel pg 246: Plaintiff hit by chair thrown out

window of hotel during V Day celebration.

1. H: Hotel did not have exclusive control of the furniture, so

no res ipsa, because likely a guest who threw it out

2. R: Can not hold hotel responsible for guests behavior

because ordinary care could not have prevented the chair

throwing (can’t expect them to have guards in every room

regulating behavior)

ii. Sudden halt of escalator not store’s fault because other’s had

control of emergency switch

b. Modern View: Just show more likely than not negligence was fault of

defendants and not someone else

i. Allows for res ipsa in situations where instrumentality in plaintiff’s

or 3rd party’s control but negligence due to defendant

1. can recover for metal in tuna that eat at home. Even though

not in exclusive control of defendant

ii. Rule out other likely possible persons who could have caused the

negligence (not all, just show more likely the defendant’s

negligence)

1. Tv catches fire at your house: Show you didn’t do anything

out of ordinary and Best Buy handled with care so

negligence likely came from manufacturer.

c. Multiple Defendants

i. Ybarra v Spangard pg 250: Plaintiff suffers paralysis from

appendix removal. Sues everyone involved, not sure who was

actually responsible for the negligent conduct.

1. H: Can apply Res ipsa against all of the defendants, even

know not sure which one specifically caused the injury,

because each had a duty to make sure no harm fell on them

2. R: Innocent victim has no way of proving who did it and

the defendants are in position to explain what happened.

Put burden on them so truth comes out.

ii. Note: Unique situation where all own a joint duty to the plaintiff

and were working together as colleagues.

1. Res not generally applied to multiple defendants that are

strangers. i.e. 2 cars crash into him and one must have bee

negligent, but not sure which. Can’t use res to presume

both were negligent

2. 9 people separately cook turkey and plaintiff gets sick from

mixed turkey salad: Here people working individually and

can separate out the harm as opposed to group operation

which makes it difficult to tell who caused the negligence.

VI. Summary Hypo

a. If Plaintiff just shows that was a passenger on train crash = Res Ipsa

b. If shows crash caused by open switch = prove in court that this was

negligence (breach of duty)







30

Torts Brunell Fall 2006 31





c. If shows drunk train operator caused accident = directed verdict (clear

negligence)

d. If shows random convict came up and pulled switch at last second = lose

case against train company (no reasonable care could have prevented)



C) Causation

1) “But For” Causation – Causation in Fact

I. General

a. Causation in fact:“but for” the defendant’s negligence, the injury/harm

would not have occurred

b. Perkins v Texas pg 259: Car hit wile crossing the railroad tracks. A

warehouse blocked the views of both the driver and the train engineer,

resulting in the train crashing into the car. The train was speeding.

i. H: Although the train operator was negligent in speeding, there

was no causation because even if he had been going at a normal

speed he would not have been able to stop in time and the crash

would have occurred. So it is not true that “but for” the engineers

negligent speed the accident wouldn’t have happened. The visual

obstruction was the cause of the accident

1. Note: Plaintiff needs to show more then a chance that his

negligence resulted in the accident, needs to show more

likely then not that it did (see below)

II. Probability negligence caused harm (proof of causation)

a. Need to show more likely then not that the negligence was the “but

for” cause of the injury (does not need to rule out every other possibility)

i. Reynolds v Texas pg 262: Overweight women falls down stairs

when running to catch a train. The stairs were not lit and were no

handrails. Company negligent in condition of stairway, but was

that the cause of her accident?

1. H: The mere fact that it might have occurred another way is

not enough to dismiss case. The negligent condition

greatly multiplied the chance of an accident and thus more

likely then not to have caused the accident (issue for trier of

fact)

ii. Compare Reynolds to Gentry v Douglass pg 263: Plaintiff shot

when a 3rd party trips on stairs maintained by the defendant

resulting in him pulling the trigger. Stairs were negligently

maintained. Did that cause the accident?

1. H: Not enough evidence that the negligent maintenance of

stairs resulted in the accident. Could have just tripped on

the stairs in any event (even if they were fine). Need more

evidence of causation.

2. R: Need to show some evidence that proves it was more

likely then not. Can’t just infer it.





31

Torts Brunell Fall 2006 32





3. Note: In Reynolds, women who fell down stairs said that

the negligent maintenance caused her accident (dark, no

handrail caused her to fall). In Gentry, the guy who tripped

said he had no idea why he fell and might have just been

because he tripped, so no evidence of causation for the

triers of fact to determine. If he had said that he tripped

because the stairs were crooked, then could be an issue for

jury.

iii. Kramer Services v Wilkins pg 267: Pieces of glass falls on

plaintiff’s head due to negligent maintenance of hotel. Years later

develops cancer on the exact same spot. Claims causation between

glass fall and cancer. Has one doctor that testifies one in 100

chance cancer caused by injury.

1. H: 1 in 100 chance not more likely then not. Therefore, not

enough evidence of “but for” causation.

2. Note: needed expert testimony because medical issue that

laymen wouldn’t know answer to. Judge dismissed case

because jury can’t make there own inference about whether

more likely or not cancer caused by injury in direct

opposition of expert testimony (medical knowledge only

can know answer)

b. Indirect Causation through increased probability

i. Daubert v Merrel Dow Pharmaceuticals pg 274:

1. F: Claim drug companies medication caused limb defects in

their child. In normal occurrences, limb defects happen

1/1000 children.

2. H: If could prove that the medication caused their birth

defect directly, then would (impossible here). So have to

prove that it is more likely then not that the medicine

caused their baby’s birth defect. Must show that the

medicine more then doubled the chance of limb defect,

because that would mean greater then 50% chance that it

was cause of injury.

a. So must show that more then 2/1000 of baby’s that

were on medicine got the limb defect. In that

circumstance, 1 in 1000 get from chance and 1.1 get

it from the drug, so more then 50% chance that drug

caused baby’s defect

b. Note: Did not prove this increased likelihood, so

lost the case

c. “loss of chance”: If negligence increases chance of injury, may be held

liable even if not more likely then not the cause of the harm

i. Usually unique to medical malpractice

ii. Basic idea: If plaintiff had a 30% chance of not dieing and cut that

down to 10% chance, then have increased likelihood of death by









32

Torts Brunell Fall 2006 33





20%. Can be held to be causation even though not more likely

then not that doctor’s negligence caused his death (20% < 51%)

iii. Herkovitz v Group Health Cooperative pg 270: Doctor fails to

timely diagnose lung cancer. He had 40% chance of living if

found in time and now has 26% chance (reduced chances by 14%).

1. H: proving a diminished chance of survival is enough for a

claim. Don’t need to show more likely then not that

defendant’s negligence caused the harm

2. Note: so a unique and contrary holding then most cases. If

60% chance that going to fall down the stairs anyway (even

without negligence) then defendant normally not liable

because not more likely then not that injury was caused by

the negligence.

d. Scientific Evidence

i. Daubert: In order to permit scientific evidence, must show that the

evidence:

1. 1)reflects scientific knowledge though use of scientific

method and amounts to good science

a. Show scientific publications or pre-litigation

experimentation

2. 2) is relevant to the task at hand

a. It must advance a material aspect of the case

III. Concurrent Causes – Multiple causes of one injury

i. Note: also discussed under joint tortfeasors in terms of proportion

and which harms liable for. Discussing here in terms of but for

causation only

a. Two “but for” causes

ii. May not defend your negligence by claiming someone else was

also negligent. Will still be liable

iii. Hill v Edmunds pg 282: Car negligently parked in middle of road

and another car negligently hits it because was not paying

attention. Passenger of car can sue either since both were “but for”

causes.

iv. Telephone box on poll negligently put on so loose, but will stay up

without any sort of interference. Driver negligently crashes into

pole, causing box to drop on passerby’s head.

1. Both are “but for” causes. “but for” the driver’s neglgient

crash, the person wouldn’t have been injured (box would

have stayed put) and “but for” the loose box, the box would

have stayed on the pole. Both have causation in fact and

can be held liable

b. Neither are “but for causes”

v. If damage would have resulted even without defendant’s

negligence, can hold them liable if their negligence was a

“substantial factor” in the harm









33

Torts Brunell Fall 2006 34





1. note: may be situation where two negligent actions join

together or one negligent action and one unknown action.

vi. Anderson v Minneapolis: Bog fire caused by defendant joins up

with another fire of unknown origin. The combined fire destroys

plaintiff’s house.

1. H: Even though not true that defendant’s fire was a “but for

cause” (unknown fire would have destroyed house

anyway), still liable because was a substantial factor in

bringing about the harm (it did burn down the house).

2. Both contributed to burning down the house and each

would have burnt down the house even if the other was not

present, so each can be held jointly/severely liable.

a. Note: if one of the concurring causes would not

have been sufficient to cause the harm on it’s own,

then not liable for causation (i.e. if bog fire would

not have burnt down house if it hadn’t joined up

with unknown fire).

b. Note: if the “innocent” fire got their 1st, then no

causation by negligent fire

c. Note: argument that this is wrong policy because

house would have burnt down anyway

vii. Car company rents out car with negligently maintained breaks that

don’t work and driver hits someone with his car because

negligently wasn’t paying attention.

1. Neither is a “but for” cause (not true that wouldn’t have

crashed “but for” the negligent breaks because would

have…wasn’t paying attention. Can’t say wouldn’t have

crashed “but for” him not paying attention because would

have…breaks would have failed.

2. Both can be held liable because shouldn’t get off hook just

because also another act of negligence. Would have been a

“but for” cause if wasn’t a 2nd negligence (i.e. if only

negligent breaks, then would have been “but for”)

3. Each were a substantial factor in bringing about the harm

IV. Determining Defendant – which negligent action caused the harm (one cause

of injury but not sure who did it)

a. Summers v Tice pg 285: 3 guys hunting and two negligently shoot without

looking. Hits the third guy. Not sure which defendant’s negligent action

caused the injury.

i. H: If both parties are negligent and just question of causation, hold

both parties liable and burden shift to defendants to prove which

one did/did not cause injury. The actual culprit must be one of the

parties being sued.

ii. R: not going to let two negligent defendants get off and an

innocent victim go without compensation just because can’t tell

who actually caused the injury







34

Torts Brunell Fall 2006 35





iii. What if plaintiff knows taxi hit her and only 5 taxis in town, can

she hold them all liable and shift burden on them?

1. No, weren’t all negligent parties as were in Summers.

2. What if all 5 shown to have negligent breaks? Probably

could since reasonable that it oculd have been anyone of

them. On the other hand, not true that each one’s

negligence caused a risk to the plaintiff directly (as in

Summers)

b. “Market Share Liability”: If show that a defective type of product exists

and caused an injury, but can’t prove which of the many manufacture’s of

the product was the culprit (which negligent defendant caused the harm),

then can bring a suit against a significant market share of the product.

i. Burden shifts onto defendants to prove they couldn’t have been the

manufacturer of the specific product that caused the injury

1. note: all negligent, just trying to show whether or not their

negligent product was the direct cause of the plaintiff’s

injury.

ii. All that do not produce evidence that they did not cause the

specific injury will be responsible for the “market share” of the

product (what percentage of the product market did they make up)

iii. Sindell v Abbott Lab pg 287: Plaintiff gets cancer from DES drug.

Doesn’t know which manufacturer produced the specific DES drug

given to her. She dues 5 of 195 manufacturers, but make up 90%

of the market share.

1. H: (See above)

2. R: Defendants better able to bear the costs and will hold

them to safer standard. Likely one of them was responsible

since significant market share. Only will be liable for their

market share.

3. Note: Different from Summers because don’t need to sue

all possible tortfeasors, possible the guilty party will escape

liability. Would be impossible for her to sue all 195

companies (some don’t even exists anymore)

4. Note: Distinguish from Daubert, which was a causation

issue (needed to establish that defendant’s drug actually

caused a harm to that plaintiff) and in Sindell, we know

there is a harm caused to the plaintiff by the drug and just

trying to determine which defendant caused it.









35

Torts Brunell Fall 2006 36





2) Proximate/Legal Causation

Foreseeability Counts (need it to be liable) Does Not Matter (liable anyway)

Extent of the Injury X

(Eggshell Skull Rule)



Type of Injury X (majority view now, WM1) X (if direct, Polemis)



Manner of Injury X



Foreseeable Plaintiff X (either under duty or p. cause)





I. General

a. A policy determination determining whether one should be liable for

negligent conduct

i. About how far to extend liability

ii. Ryan v New York Central pg 294: Will not hold railroad liable for

fires that spread to other houses because “too remote”

b. Even if have “but for” causation, not liable if no proximate cause

i. Lots of things can be framed in “but for” causation “But for

plaintiff being born then negligent action would not have

occurred.” Proximate cause puts a limit on this

ii. If park in front of fire hydrant, proximate cause of house burning

down (negligent to park in front of hydrants because don’t want

precisely that type on injury to occur) but not liable if car skids

into your car. Your negligent action of parking in front of hydrant

was a “but for” cause (“but for your car being there crash wouldn’t

have happened) but not the type of harm that makes your actions

negligent. Same accident could have occurred if car was 10 feet

forward and was not negligently parked.

c. Type of Injury

i. Direct Causation view: hold the defendant liable for any harm that

is the direct consequences of his action, no matter how

unforeseeable the harm is

1. Minority View

ii. Foreseeability/Scope of Risk test: Defendant is only liable if it is

the type of harm that made the defendant’s action negligent,

the type of harm that society is trying to avoid and is therefore

a foreseeable harm

1. Majority View

d. Manner of Injury

i. Does not matter if manner of injury is foreseeable or not. Will be

proximate cause if it is the type of harm that one could foresee, no

matter the actual manner in which the harm manifests









36

Torts Brunell Fall 2006 37





ii. Sept 11 article: One type of harm that is foreseeable from negligent

airline safety is injuring victims on the ground. Therefore, the

manner in which it occurred (hijackers crashing into building) does

not matter (need not be foreseeable)

iii. If I jump out of a moving car, it is reasonably foreseeable that I

could injure a pedestrian (type of injury). Doesn’t matter if the

manner is not foreseeable (so instead of typical manner of it just

striking a pedestrian, it hits a pole which falls over and hits him.

Unforeseeable manner has no effect. Was the type of harm that

was foreseeable, so that what matters).

1. Would not be foreseeable that jumping out of car would

cause a plane to come down (type of injury), so would not

be liable for that (under majority view)

II. Direct Causation View

a. Hold one liable for any direct result of the harm, no matter how

unforeseeable.

b. In Re Polemis and Funess pg 300: Plaintiffs chartered ship to defendants.

Defendant negligently dropped a blank, which caused a spark, which

ignited the petrol and burnt down the ship

i. H: The fact that it is the type of injury/damage that one would not

foresee is immaterial, so long as it is the direct cause of the

defendants actions.

c. Note: again, not majority rule

III. Foreseeability/Scope of Risk view:

a. Liable only for the reasonably foreseeable consequences of their negligent

conduct: the type of harm that makes the conduct negligent

b. Not liable for unforeseeable injuries

i. Wagon Mound 1 pg 302: Defendant’s ship negligently spilled oil

into the water (not causing any damage). The oil caught fire when

worker’s molten metal dropped into the water, and the plaintiff’s

dock burnt down.

1. H: Reject the direct consequences rule and only liable for

harms that are foreseeable, the types of harms that make the

risk negligent. (court says fire not the type of harm trying to

protect against by being negligent to dump oil)

2. R: how can one guard against harms that one can’t predict?

a. Note: Almost like pretending there is a statue and

determining if these would be the type of harms that

the statute would intend to protect against

(negligence per se)

ii. Yun v Ford Motor: Court says that having a defective securement

of spare tire is not the proximate cause when person killed trying to

retrieve lost tire form the highway. Not the type of harm trying to

prevent (dissent says that jury might well find that it is one of the

foreseeable types of harms)









37

Torts Brunell Fall 2006 38





c. Not liable for foreseeable injuries that wouldn’t have occurred “but for”

your negligence but are not the result of your negligence

i. If driving in a rain storm, foreseeable injury that could be hit by a

falling tree, injuring passenger. If you are speeding, true that “but

for” your negligent act of speeding, would not have been hit at that

moment by the tree. But, the negligent act of speeding is not the

proximate cause of the injury; Speeding does not increase the risk

of being hit by a falling tree. Speeding does increase the risk of

hitting a pedestrian or another car, so would be proximate cause for

those.

IV. Unforeseen plaintiff

a. Palsgraf v Long Island R.R. pg 308:

i. F: Man late trying to catch a train. Two railroad workers push/pull

him into the train. Causes a non-descript package to drop. Turns

out is is friewaorks, which explode. Cause scales to tip over,

injuring the plaintiff.

ii. Definitely negligent in their pushing of the man, but was there

causation for women’s injuries?

1. Note: If man had something valuable in package, would

have been liable for damage to that

iii. Cardozo: Said workers owed no duty to her. Only owe a duty to a

foreseeable plaintiff. Can’t expect to protect against unforeseeable

harms that would result in a harm to someone outside of range of

consideration. Only harms that one would foresee from pushing

plaintiff are the harms to the man and maybe people in immediate

vicinity (say if the man fell onto them). Could not foresee a type

of harm that would injure a passenger 30 feet away.

iv. Andrew’s dissent: Owe a duty to everyone, even people you aren’t

thinking might be harmed. But, still issue of proximate cause. Up

to jury to decide if this was a foreseeable (type of harm trying to

prevent, any intervening causes?)

1. note: both talk about foreseeability, but Cardozo talks in

terms of duty (so can decide on pre-trial motion as matter

of law) and Andrews in terms of causation (so issue of fact

for jury)

b. Palsgraf Hypos

i. Random man tries to steal package instead of it just negligently

being knocked loose:

1. Intentional Tort, so transferred intent.

2. so no transfer intent to unknown plaintiffs in negligence

(since about foreseeability), but yes in intentional torts

ii. Injured women was actually standing right next to guards

1. Could argue that an injury to surrounding passengers was a

reasonably foreseeable harm (i.e. maybe he falls on them or

package hits them) so doesn’t matter the manner in which

she was actually harmed (scale tipping)







38

Torts Brunell Fall 2006 39





iii. Women slips on banana peel. Couldn’t they argue she was an

unforeseen plaintiff because didn’t know she would slip on it?

1. not about specific identities. About whether the are the

type of person one has a duty to protect

2. So palsgraf was issue of whether they had a duty to protect

passengers 30 feet away in that circumstance, not whether

they had a duty to palsgraf specifically (could have been

anyone) or generally in other situations (would owe her a

duty in situations where she could foreseeably be injured).

V. Extent of Injury (Eggshell plaintiff)

a. Do not have to foresee the extent of the injury, will be liable for eggshell

plaintiffs (so exception to foreseeability)

b. Bartolone v Jeckovich pg 297: Man in car accident. Had controlled his

schizophrenia by working out, and when accident resulted in him not

being able to work out, became full blown schizophrenic

i. H: Will be liable for all the harm that results, even if to a further

extent then would have imagined. So wouldn’t think would cause

someone to go schizophrenic by getting into a car accident, but

doesn’t matter.



3) Intervening Causes



Intervening Causes



Usually Superseding (no liability)?

3rd Party’s negligence No

-initial injury

-aggravated injury

-or new injury (so long as not gross negligence)

3rd party criminal Act Generally Yes

Plaintiffs negligence No

Force of Nature Maybe

Plaintiff’s suicide No (if uncontrollable), yes if not

Rescue No





I. Generally

a. A force that takes effect after the defendant’s negligence and contributes

to the injury of the plaintiff

i. If it cancels the defendant’s liability, then a Superseding cause

b. A foreseeability test: same principal as proximate cause. If the intervening

cause is foreseeable then defendant still liable

i. Note: Can fit intervening causes right into proximate cause. Is the

intervening cause one of the types of foreseeable harms one is

negligent for not protecting against?







39

Torts Brunell Fall 2006 40





c. The risk of harm caused by a foreseeable intervening cause must be

increased by defendant’s negligence

i. I.e. was the harm that occurred the type that defendant’s

negligence increased likelihood of (same idea as branch falling on

car due to defendant’s negligence. This type of harm is a

foreseeable intervening cause, but not liable since not the type of

harm that was increased as a result of defendant’s negligence)

d. Most cases can go either way, issue of fact whether or not was foreseeable

II. 3rd Party’s negligence

a. Not a superseding cause if the negligent 3rd party’s actions were

foreseeable, because it was a foreseeable intervening cause/harm that

should have protected against

i. Dediarian v Felix Contracting Corp pg 325: Man has seizure

because not taking meds and runs into a work site which splatters

hot acid all over the plaintiff. Plaintiff sues construction site for

improper safeguards

1. H: One of the reasonably foreseeable harms is that a driver

might crash into sight. So the fact that it happened is not a

superseding cause. Point of being negligent for not

maintaining barriers is because this is exact type of harm

that can happen

a. Doesn’t matter that the manner (epileptic driver) is

not foreseeable, type of harm is

b. Doesn’t matter that the driver might have been

negligent for not taking meds, they are still liable

too

b. Aggravated Injury

i. If defendant injures plaintiff, will be liable for any negligent

conduct of doctor who aggravates the injury or any other

negligence (i.e. ambulance crashes on way to hospital)

1. Seems ridiculous to say it is reasonably foreseeable that

doctors will aggravate injury or ambulance would crash

2. note: Doctor still liable for his negligence too

c. Shifting Responsibility

i. If defendant liable for an action and 3rd person negligent in fixing

action, original defendant still liable

1. defendant negligently spills soda all over the floor. Store

negligently doesn’t pick it up in time. Person who

negligently spilled still on the hook.

rd

III. 3 Party’s criminal act or intentional tort

a. May be that defendant still liable if should reasonably have foresaw a

criminal or intentional tort

b. Generally, will be hard to prove that defendant should have guarded

against such acts (that such a danger was foreseeable)









40

Torts Brunell Fall 2006 41





i. Watson v Kentucky & Indian Bridge pg 329: Train tips over and

flammable gas leaks. 3rd party lights match (on purpose) and gas

explodes

ii. H: A superseding cause because can’t foresee someone was going

to intentionally cause an explosion

1. note: Could argue that risk of explosion is foreseeable and

must guard against all possibilities of explosion occurring,

even intentional ones

iii. Firestone tires not liable when tire negligently broke and women

stuck in bad neighborhood and got raped (not foreseeable harm

trying to protect against). Liquid fire manufacturer not liable for

negligent warnings on product when product used as a weapon.

c. If duty is to protect from criminal activity, then 3rd party criminal act will

not relieve one of negligence

i. Cops duty to protect people form criminal activity, so if he

negligently does his job, then of course liable. The exact reason

why don’t want them to be negligent is to protect against

foreseeable criminal activity of 3rd parties

IV. Acts of God

a. unforeseeable forces of nature will by a superseding cause.

b. However, if the harm caused by the force of nature is the type of harm that

would be negligent for anyway, then still liable

i. i.e. if negligently maintain roof so that it may cave in at any

moment, and high winds come and blow it in, still liable because

type of harm trying to avoid by not negligently maintaining roof

V. Suicide

a. If plaintiff’s injuries resulting from the defendant’s negligence cause him

to commit suicide, this is usually a superseding act and defendant is not

liable

b. However, if plaintiff was not control of himself (i.e. due to insanity) then

not consider a superseding cause and defendant liable for causing the

suicide

i. See Fuller v Preis pg 335

ii. Note: less about foreseeability here and more about justice

iii. Note: Direct injuries as result of accident and even other conditions

that develop as a result (i.e. depression) would clearly be liable for.

Question is whether a self-inflicted injury is a superseding cause

VI. Rescue Doctrine

a. McCoy v American Suzuki pg 338: Man injured when car negligently

produced causes an accident. Plaintiff comes to his rescue and helps in

clean up effort. Hit by a car. Sues Suzuki for their negligence in

producing car

i. H: Danger necessarily invites rescue. So foreseeable that negligent

action will invoke rescuers. If rescuer acted reasonably in rescue,

then defendant who caused original accident will be liable for harm

ii. Still need Proximate cause to the plaintiff.







41

Torts Brunell Fall 2006 42





1. Tough call and question for jury.

a. One case where wasn’t: Rescue helicopter tries to

rescue an injured party and crash on way to

hospital. Not foreseeable type of harm (note:

would be liable for aggravated injury to actual

injured party)

iii. Note: Under palsgraf, rescuer probably unforeseeable plaintiff.

Doctrine says differently





4) Public Policy

I. Kelly v Gwinell pg 344: Gwinell has drink’s at defendant’s house and then

drives home drunk, hitting plaintiff. Plaintiff sues person who served him the

drinks.

a. H: A host who served liquor to a social guest, knowing that the guest is

intoxicated and that he will thereafter drive a motor vehicle, is liable for

injuries inflicted on a third person as a result of the negligent operation of

the vehicle by the intoxicated driver (So long as the negligence is a result

of being drunk)

i. Proximate cause: Reasonable foreseeable that trying to avoid harm

of letting a drunk driver on road and injuring someone

ii. Duty of care: the more controversial issue, imposes a duty on

private citizens to act affirmatively and be responsible for 3rd

person’s behavior

b. Dissent: Puts strain on relations, private citizens don’t know when

someone is drunk, don’t have insurance, less control over serving of

alcohol then commercial establishment

II. Enright v Eli Lilly: DES Case, in which granddaughter of person inflicted

with drug sues for defects. (2 generations away)

a. H: not liable because need to place limits on causation. Slippery slope of

how far to extend (even though may have foreseeability here)

i. Maybe argument that granddaughter is unforeseeable plaintiff (no

duty or no proximate cause)

b. Public Policy not to extend liability so doesn’t discourage drug makers

III. Boyfriend infected with AIDS has case against doctor who negligently doesn’t

tell his girlfriend she has AIDS. Conversely, wife who has to go to fertility

clinic due to doctor negligently decreasing husbands sperm count does not

have a claim against the doctor



D) Duty of Care

I. Generally

a. Owe the plaintiff the degree of care that a reasonable person would

exercise in the circumstances







42

Torts Brunell Fall 2006 43





i. Pretty basic, so courts spend less time on this and more on whether

defendant’s conduct breached the duty.

b. May be special circumstances where defendant owes the plaintiff more or

less duty

i. i.e. no duty to someone who is outside the scope of harm from

negligence (palsgraf) and common carriers owe plaintiffs higher

duty of care.

c. Examine circumstance where the duty is different because of the nature of

the plaintiff, type of harm suffered or plaintiff’s relation to an occurrence.

i. Generally going to owe a duty of reasonable care to almost

everyone

ii. Note: In palsgraf, Cardozo says only owe a duty to foreseeable

plaintiffs. Andrews says you owe a duty to everyone, and look at

proximate cause for determining if should be liable to particular

individual

II. Duty (failure) to Act

a. There is no common law duty for to affirmatively act

i. Hurely: Doctor did not have to come help a person in life or death

situation. Could just choose not to.

ii. James v Wislon: no tort duty imposed on kid to tell authorities that

columbine shooters had talked about killing people

b. Exception: There exists a special relationship that charges defendant with

duty to act for the plaintiff

i. Danger or injury to plaintiff due to an instrumentality under their

control (or just simple invitor-invitee relationship)

1. L.S. Ayres & Co. v Hicks pg 420: Finger gets stuck in

defendant’s escalator and defendant is unreasonably slow

in helping.

a. H: if plaintiff hurt using your instrumentality, have

duty to help them avoid danger, even if in harms

way under no fault of your own.

ii. Other Special relationships:

1. Common Carrier/passenger

2. Legal Custodian/Charge

3. Employer/Employee

4. Inkeeper/Guest

c. Exception: Have begun duty to rescue, must continue effort if have

increased risk by efforts or plaintiff has relied on your rescue

i. Either expressed action or promise to assist



Duty to Act: § 324A Liability to Third Person for Negligent Performance of

Undertaking



One who undertakes, gratuitously or for consideration, to render services to another

which he should recognize as necessary for the protection of a third person or his things,









43

Torts Brunell Fall 2006 44





is subject to liability to the third person for physical harm resulting from his failure to

exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

...

(c) the harm is suffered because of reliance of the other or the third person upon the

undertaking.



d. Exception: Plaintiff in harms way due to the defendant’s actions (even if

not negligent action)

e. Hypos:

i. See someone in lake, duty to throw them life preserver? NO

ii. Lake is on your property? Yes, special relationship-

instrumentality

iii. Person drowning is camper and you are counselor? Yes,

custodian/charge relationship

iv. What if throw them life preserver and then decide to stop for no

reason? Yes if person has relied on rescue or you have increased

the risk of harm to plaintiff

v. Run over someone trespassing on property? Yes, caused the harm

f. Duty to act to Control other’s behavior

i. General rule is no duty to control third person’s criminal conduct

against plaintiff

ii. Exceptions: Special relationship between the plaintiff and

defendant or Special relationship between the defendant and the

criminal

iii. Special Relationship- Plaintiff and Defendant

1. Plaintiff is in a relationship with person suing that

necessitates that the defendant protect them from 3rd party

harms

2. Innkeeper-guest, common-carrier-passenger, hospital-

patient, school-pupil, parent-child

3. Hotel owes duty to customers to provide security from

attacks. Train operators owe protection to customers to

affirmatively protect them from robbers.

iv. Special Relationship – Defendant and Criminal 3rd party

1. The defendant is in such a relationship with the criminal

that they owe a duty to protect the plaintiff from harm from

the criminal

2. J.S. and M.S. v R.T.H. pg 426: Two girls are molested by

their neighbor. They sue his wife, saying she had a duty to

protect against his harms (a duty to act)

a. H: When a spouse has actual knowledge or should

know of sexual abuse by their spouse on others,

have a duty to take reasonable steps to prevent or







44

Torts Brunell Fall 2006 45





warm against the harm. Issue is whether harm was

foreseeable based on husband’s actions.

b. R: Public policy and fairness to impose the duty

c. Note: just because a duty doesn’t mean liable, can

take steps to avoid a breach of duty, such as

confronting husband, insist girls don’t come over,

keep watchful eye, ask girl’s parent’s to chaperone.

d. Note: compare to other abuse case. Here, limits it

to spouses who have a special relationship which

makes it more likely for them to have knowledge.

e. Pro – should be duty: will decrease child abuse

(social utility), between two innocents the one who

could have prevented crime should pay (moral

fairness)

f. Con - should not be duty: decrease benefits to

spousal relationship (Social utility),

Disproportionate liability (moral fairness), spouses

won’t know about rule (administrability), fear of

abusive husband

3. Tarasoff v Regents of U of Cali pg 432: Patient told

psychiatrist that he was going to kill his ex-girlfriend.

Detain him temporarily but nothing else. Two months later

he kills her.

a. H: If reasonable determination made (or should

have made) that a patient poses a serious danger of

violence, duty to exercise reasonable care to protect

foreseeable victims (foreseeable plaintiff issue)

b. R: Patient-doctor relationship is special relationship

in which doctor has a duty to control the behavior of

the criminal patient against foreseeable plaintiffs

c. Pro- should be duty: Save lives/prevents harm

(social utility), between two innocent parties the one

who had ability to prevent should pay (moral

fairness), psychiatrists likely to know about the rule

(administrabiliuty)

d. Con – should not be a duty: strain on confidential

relationship (social utility), lead to false warnings

(social utility), hard to show doctor should have

predicted dangerousness (administrability),

disproportionate liability (moral fairness)

III. Privity of Contract

a. Nonfeasence: A promise to affirmatively act and a breach of that promise

(no action) results in injury

i. A person a party to the contract can sue for nonfeasance in

contract claim. No tort claim for nonfeasance (because no duty to

act)







45

Torts Brunell Fall 2006 46





1. So if contract between city and water company to provide

water for hydrants, then failure to provide that water which

causes city hall to burn down can be a breach of contract

suit for the city, but not a tort action (See H.R. Moch

below)

ii. A 3rd person not a party to the contract can not sue at all. No tort

action (same as person party to contract) and no contract action

(not a party to contract so can’t sue, unless of course a 3rd party

beneficiary)

1. Winterbottom v Wright pg 406: Plaintiff, driver of post

vehicle, injured when defendant did not perform contracted

obligation to repair car.

a. H: Plaintiff has no action because not a party to

contract (so no contract claim) and defendant owes

no affirmative duty to act for the safety of the

plaintiff (no tort action)

b. Note: performance of an affirmative duty to fix cars

only exists because of contract. Normally,

company has no duty to fix automobiles, and duty

only imposed because of contract formed. That is

why non-action is not a tort, because no common

law tort duty to affirmatively act.

i. if had acted though and did so negligently,

resulting in harm to plaintiff, then is

different because action of defendant caused

the harm and that is issue of tort and nothing

to do with contract (see misfeasance below)

c. Note: Postmaster would have a breach of contract

claim against the company though for their

nonfeasance

2. H.R. Moch v Rensselear Water pg 412: Defendant

contracted with city to supply water to hydrants.

Defendants did not supply the water and plaintiff’s house

burnt down.

a. H: Plaintiff can’t sue because not a party to the

contract and was merely nonfeasance, not

misfeasence

b. Misfeasence: Defendant undertakes performs and acts negligently,

resulting in injury

i. A person party to the contract may sue under tort or contract for

misfeasance

1. A doctor who negligently performs operation may be sued

for a breach of contract or for tort for negligent action

under common law duty breach (like Hawkins v Mcgee)

2. Note: sometimes courts impose which action to sue under

instead of giving a choice “graveman”







46

Torts Brunell Fall 2006 47





ii. A person not party to the contract will likely have an action in tort

for misfeasance by the defendant

1. Once defendant has started to perform, has a duty to those

who rely on performance to do so with care and not act

negligently

2. MacPherson v Buick pg 409: Defendant buick in contract

with retailer who sell car to plaintiff. Plaintiff injured due

to negligent production of steering wheel.

a. H: Defendant liable in tort if misfeasent in action

and causes a foreseeable harm

3. Defendant mechanic negligently fixes car that hits a 3rd

person.

c. Modern Changes

i. Distinction between misfeasance and nonfeasance can be a very

fine line

ii. Modern view (restatement) gets rid of distinction and allows for

tort liability if plaintiff shows detrimental reliance on promise to

act (no matter if nonfeasance or misfeasance on part of defendant)

1. Crossing guard doesn’t show up for work and child hit.

This was an act of nonfeasance (didn’t act) but child still

has claim even though no contract because relied on the

presence of the guard

a. Note: would be stupid to only allow action only if

misfeasance (showed up and didn’t perform job

well vs no action for not showing up at all

iii. Still hold privity of contract requirement for economic harm. Have

to be a party to the contract (or 3rd party beneficiary), because can

only sue for a contract breach, no tort action in pure economic loss

(Why is this not in pure economic loss section?)

1. Clargett v Dacy pg 414: Attys of foreclosure deal represent

the bank and fail to do proper procedures and deal falls

through twice (misfeasance). Potential buyers get screwed

by defendant atty’s actions and sue for costing them the

deal.

2. H: Plaintiff only owe a duty to person in contract with (or

3rd party beneficiaries). Plaintiffs therefore can not sue.

3. This is a case of misfeasance where plaintiffs do not have

contract with the defendant lawyers. Uphold privity

requirement. (contrary to rule that allows tort recovery for

physical harm in misfeasance cases, even if not privity to

contract)

4. Only can recover if they were intended beneficiary of the

contract (because then they are essentially a party to the

contract).

a. i.e. heirs in a will









47

Torts Brunell Fall 2006 48





IV. Pure Economic Loss without physical impact (negligence)

a. Plaintiff may not recover for purely economic loss if the tortfeasor only

caused property/personal damage to a 3rd party and not directly to the

plaintiff, even if the harm was foreseeable.

i. Note: normally, a person who suffers physical damage by

tortfeasor may sue for their economic losses. This is if a 3rd party

is affected by the tort action, but only indirectly

ii. Note: Do not owe a duty.

b. State of Louisiana ex rel Guste v M/V pg 439: Large ships crashes and

dumps PCP into water, causing the area to be shut down. All the people

who use the water (fisherman, delivery ships, stores near the harbor) sue.

i. H: Will not allow recovery if no physical injury. Would lead to a

never ending line of recovery…extends liability too far. Do not

owe a duty to those you do not physically harm.

ii. Dissent: Should owe a duty. Apply traditional standard. If

foreseeable harm, then liable (so won’t be extended forever, only

foreseeable harms will be compensated)

iii. Pro – good rule: will not create safer standard by holding them to

more liability (social utility)

iv. Con – bad rule: Can cover cost through increased prices, hurting

industries people rely on

v. Boat has a little chemicals spill on it

1. Can recover for all economic losses as a result of the entire

spill (i.e. lost wages). Even if the actual physical damage is

small. Boat that has no physical damage has no claim.

vi. If ship intentionally discharges PCP: can recover for pure

economic loss

c. Spiderman hypo- guy climbs poll dressed as spiderman and streets close

as a result. People who have stores on street sue for lost wages because

can’t use street.

1. No, because economic loss without physical damage

2. Also, could argue that the damages were not foreseeable

since wouldn’t think they would close down street

d. Attys and accountants can be liable for pure economic loss since special

case where they deal with money

V. Negligent Infliction of Emotional Distress (with no tortuous impact)

i. Note: Can be looked at in terms of duty (does defendant always a

duty to guard against mental suffering that results from no tortuous

impact) or proximate cause (is it foreseeable that the emotional

distress would occur, even when no contact)

a. If there is impact, can always recover for emotional suffering that results.

b. Modern rule of negligence is the same, no contact required; Can recover

with or without direct contact

c. NIED- Direct victim (Fear of one’s own safety)

ii. Daley v Lacroix pg 450: Defendant negligently drove car off road

and into plaintiff’s house. They sue for all sorts of mental distress







48

Torts Brunell Fall 2006 49





1. H: No impact required to recover for NIED. But do need a

physical manifestation of the mental distress

a. note: determining physical manifestation is tough.

Count things such as nightmares or acute

schizophrenia as physical manifestations.

d. NIED-Bystander (fear for safety of another)

i. Traditional rule was a “zone of danger” standard

1. must be within the zone of danger so that there is an actual

direct fear of harm to oneself.

ii. “Zone of danger requirement” been thrown out in most

jurisdictions

1. Stupid that mother and sister saw girl run over and only the

sister had a suit because close enough that she could also

get hit and mother didn’t because far enough away not to

be in zone of danger

iii. Thing v La Chusa pg 456: Defendant negligently runs over and

kills plaintiffs child. Sees her son bloodied and sues for mental

distress resulting in physical damage to nervous system

1. H: Throw out zone of danger requirement and establish a 3

part test

a. Closely related to victim (immediate family)

b. Present at scene and aware that event caused injury

to victim

c. Suffered serious emotional distress (beyond normal

grief)

2. Lost in this case because not present at the scene of the

injury.

b. Compare NIED with IIED

i. Intentional IED

1. direct victim: Intent, Extreme and Outrageous Conduct,

Severe Distress (no physical injury needed)

2. bystander: plaintiff needs to be at the scene, non-family

members can recover if have physical injury and family

members can recover even without physical reaction

ii. Negligent IED

1. direct victim: Duty, Breach, Causation. Emotional distress

and physical injury. Normal reaction to circumstances

2. bystander: plaintiff must be close family member, be at

scene and aware of injury, and suffer serious emotional

distress (and physical injury)

iii. the difference between IIED and NIED (to a direct victim):

1. need to prove intentional conduct standard for IIED and

negligence for NIED

2. Don’t need physical suffering in IIED, do need a physical

injury in NIED (can be mental breakdown, nightmares,

etc.)







49

Torts Brunell Fall 2006 50





iv. The difference between the two (For a bystander):

1. non-family members can recover in IIED

2. Family members need severe emotional distress in NIED

(not necessarily as stringent in IIED)



E) Policy Arguments

Rights-based arguments. These arguments typically involve claims that liability

should not be imposed because the defendant has a “right” to freedom of action (and

hence any injury to the plaintiff is damnun absque injuria) versus the claim that liability

should be extended since the plaintiff has a “right” to security against the kind of injury

the defendant has inflicted.



Moral arguments. These arguments appeal to notions of fault, fairness, or

corrective justice. A common argument in favor of limiting liability is that “there should

be no liability without fault.” A common counterargument in favor of extending liability

is “as between two innocents, the person who caused the harm should bear the loss.”

Other variants either favor personal autonomy (“people should take care of themselves”)

versus community (“people should look out for one another”).



Social utility (“economic”) arguments. These arguments involve claims about

how the legal rule will affect behavior. For example, a common argument is that

extending (or limiting) liability in a class of cases will encourage certain desirable

behavior or deter certain undesirable behavior. Sometimes the argument is made that a

rule (e.g., the Hand rule or strict liability) ensures that the “optimal” amount of

precautions will be taken. Other types of economic arguments involve issues relating to

insurance (e.g., whether a particular rule will minimize the cost of unavoidable accidents

because one party can more cheaply obtain insurance or spread the loss).



Administrability arguments. These arguments involve claims that allowing

liability (for example recognizing a duty) is impractical because it cannot be precisely

defined and hence will lead to uncertainty and a proliferation of litigation versus the

claim that courts draw lines all the time and that “vague” standards allow courts to do

justice in each case.



Institutional competence arguments. These arguments involve claims that courts

are not equipped to resolve the matter because it involves a “political” judgment that the

legislature should make or requires information that the courts cannot obtain in a lawsuit

versus claims that it is the province and duty of the courts to make the common law









50

Torts Brunell Fall 2006 51





3- DEFENSES TO NEGLIGENCE

A) Plaintiff’s Conduct

I. Contributory Negligence

a. If Plaintiff was negligent and the negligence proximately contributes to

their injury, then they can not collect at all from the defendants

i. Even if their negligence was less of a contributor than the

defendants, completely barred from recovery.

ii. Reasoning: Plaintiff should have clean hands, plaintiff’s

negligence a superseding cause

b. Common law defense

i. Not a defense to an intentional tort or reckless conduct

c. Butterfield v Forrester pg 586: Defendant negligently puts a pole across

the road. Plaintiff negligently speeding on his horse and trips over pole.

If he had been going normal speed, could have avoided the pole.

i. H: Plaintiff can not recover because had he used ordinary care he

would not have had an accident, thus his negligence was a

substantial factor and proximately contributed to the accident

d. Defendant must prove the same negligence elements against the plaintiff

i. Failed duty of care that a reasonable person in his shoes would

take, causation.

ii. Plaintiff speeding in car and defendant’s plane crashes into car

1. Plaintiff breached duty of care (speeding) and was a but for

cause of accident (if not speeding plane wouldn’t have

landed on him at that moment) but no proximate causation

(not the type of harm trying to avoid by speeding)

e. “Last Clear Chance” doctrine: If defendant has the last opportunity to

avoid the harm right before the accident(and the plaintiff has no ability to)

then the plaintiff is no longer contributorily negligent and the defendant is

on the hook completely (a limit on contributory negligence)

i. Davies v Mann pg 591: Plaintiff negligently leaves donkey in road

and defendant speeds and hits it. Defendant had less chance to

avoid the collision and nothing plaintiff can do so he is completely

liable.

f. Most jurisdictions do not follow anymore, instead follow comparative

negligence

II. Comparative Negligence

a. Divides liability between plaintiff and defendant in proportion to their

relative fault

i. Plaintiff’s recovery reduced by his own proportion of fault

b. Different Limit points to Plaintiff’s ability to recover

i. “Pure” form: Plaintiff may recover no matter how much he is at

fault

1. So if plaintiff at 85% at fault, still can recover for the 15%

defendant’s negligence contributed to the harm





51

Torts Brunell Fall 2006 52





ii. Modified forms:

1. 50% system: Plaintiff can recover so long as he doesn’t

exceed defendant’s negligence

a. Note: still comparative for anything 50%. Plaintiff

just can’t bring a claim at all if more then 50%

responsible

2. 49% system: Plaintiff can recover so long as less negligent

then defendant (so allowed only if plaintiff is 49%

negligent or less)

c. Multiple defendants

i. In pure system, still recovers percentage he is not at fault

ii. In modified form, just needs to be less then the combined liability

of the defendant’s, doesn’t matter if he is more at fault than an

individual defendant

d. Still not a defense to intentional tort, defendant completely liable

(restatement says otherwise)

i. Willfull and reckless conduct will be taken into consideration of

relative fault, but defendant can still argue comparative negligence

e. Last clear chance doctrine abolished (majority view)

f. What is rationale for keeping contributory negligence?

i. Tough to determine percentages of fault causing an unclear

standard

III. Assumption of Risk

a. When plaintiff voluntarily accepts to take a chance of harm, then

(traditionally) can not recover for harm caused by defendant’s negligence

i. Modern rule: jurisdictions that adopt comparative negligence just

take the assumption of risk into consideration when appropriating

proportional liability

ii. Note: Comparative negligence only has an effect for IMPLIED

assumption, complete bar still on express assumption

b. Express

i. Express A of R: the plaintiff explicitly agrees that they will not

hold the defendant liable for any negligent harm caused to them

ii. So long as the negligent harm is within the scope of the agreed

upon possible risks that plaintiff assumed, and no public policy

against the agreement, then plaintiff is completely barred from any

recovery

iii. Public Policy

1. Factors to consider in determining if not to enforce express

A of R agreement based on public policy:

a. Bargaining power, Fine Print, if allows intentional

and willful misconduct, public interest (essential

public service)

2. Seigneur v National Fitness pg 601: Women signs up for

health club membership and signs a contract that says she

will not hold them liable for negligence. Injured due to







52

Torts Brunell Fall 2006 53





trainers negligence. Clearly expressly agreed to A of R, but

should it not be enforced due to public policy?

a. H: Could have gone to other providers of this non-

essential service who did not have this clause or

bought her own equipment. No public policy to

disregard express A of R because not an essential

public service

iv. Other notes

1. Scope of clause seems to cover any negligent action by the

gym in Seigneur, even slipping on banana (wouldn’t hold

true under implied)

2. Plaintiff must be aware of the A of R Exculpatory clause.

So questionable if fine print or printed on back of lift ticket

count.

3. Common carriers typically can not have these clauses



§ 496C Implied Assumption of Risk



(1) Except as stated in Subsection (2), a plaintiff who fully understands a risk of harm to

himself or his things caused by the defendant's conduct or by the condition of the

defendant's land or chattels, and who nevertheless voluntarily chooses to enter or remain,

or to permit his things to enter or remain within the area of that risk, under circumstances

that manifest his willingness to accept it, is not entitled to recover for harm within that

risk.

(2) The rule stated in Subsection (1) does not apply in any situation in which an express

agreement to accept the risk would be invalid as contrary to public policy.



c. Implied

i. An assumption of risk may be implied by the plaintiff’s conduct

1. Defendant must show that the plaintiff:

a. Knew of the risk

b. Appreciated the magnitude of the risk

c. Voluntarily encounter the risk (the way thought it

would)

ii. Plaintiff Knew of Risk

1. can use circumstantial evidence to show plaintiff knew of

risk

2. Must be a subjectively known risk

3. note: if in writing, then it is express A of R

iii. Appreciated magnitude of risk

1. If go into elevator that is past inspection, Assume risk that

it might breakdown and I would get stuck, but not thinking

it might snap and crash and kill me. Don’t know and

voluntarily appreciate the magnitude of harm

iv. Voluntarily encounter risk









53

Torts Brunell Fall 2006 54





1. Rush v Commercial Reality pg 607: Plaintiff knew the

outhouse negligently maintained but used it anyway. Not

“voluntary” because had to go to the bathroom.

2. note: Still possible claim for comparative negligence

defense

3. note: If two outhouses and choose the bad one because

closer, then A of R because voluntarily choose the bad one.

v. Compare Implied A of R to Contributory negligence

1. Plaintiff may make a reasonable assumption of risk, so is

not negligent at all, yet still barred from recovery.

2. For example, know that your rental car’s break have been

negligently maintained but decide to assume the risk

because wife needs to get to hospital and that is the only

method of getting her there. Here, are not negligent

because a reasonable person would do the same, but have

Assumed a risk

a. Note: In contributory negligence jurisdiction that

still has A of R, this would be a complete bar. If

you assume the risk, you can not recover at all, even

if it was a reasonable, non-negligent assumption.

b. Note: For discussion on how this changes with

comparative negligence, see below

3. In contributory negligence, plaintiff’s carelessness

(negligence) is a partial cause of their injury

a. Don’t subjectively know of actual danger, but

subjects himself to the harm because of carelessness

(i.e. don’t know that your speeding will result in

accident because defendant has negligently layed a

pole on the street) – an objective reasonable person

standard of foreseeability of harm

b. In A of R, you subjectively know (are personally

aware) there is a risk, and voluntarily decide to

chance it.

i. Note: Someone who assumes a risk may not

be negligent at all (if reasonable assumption)

or ALSO negligent (if unreasonable A of R)

ii. Note: whether negligent or not makes a

difference, since that is all that is looked at

now in comparative, see below.

vi. Implied A of R in a comparative negligence jurisdiction

1. A of R is essentially abolished and just considered under a

competitive negligence standard.

a. See Blackburn and Dorta pg 610

2. If one assumes a risk that a reasonable person would do,

then they were not negligent (did not breach standard of

care) and so plaintiff’s recovery is not reduced







54

Torts Brunell Fall 2006 55





a. Defendant negligently causes a fire, plaintiff goes

into fire to save his baby.

i. Under traditional A of R, this would be a

complete ban on recovery because it was an

A of R, even though it is reasonable

ii. Under Comparative negligence, forget that it

is A of R and just look at the reasonableness

of the action. Since a reasonable person

would do this, then there is no breach of

duty and can fully recover

3. If one assumes a risk that a reasonable person would not do,

then they are also negligent and can look at it in these terms

instead of A of R

a. Defendant negligently causes a fire, plaintiff goes

into fire to save his hat

i. Again, under traditional A of R, this would

be a complete bar on recovery since

assumed a risk

ii. Under comparative negligence, the plaintiff

was negligent since took an unreasonable

risk (breach standard of care of reasonable

person) and so take that into consideration

and apply proportionate liability to plaintiff

and defendant

4. Primary assumption of risk still survives as an absolute bar

to recovery…simply because these are cases that can be

looked at in terms that the defendant was not negligent at

all.

a. Look at the defendant’s conduct, if they weren’t

negligent at all, then there is obviously no issue of

plaintiff’s recovery, can’t recover at all.

b. On a train, a person knows there will be usual jerks

of train motion and so the plaintiff can not recover

for an injury for one of these because the defendant

was not negligent in regular jerks (or can say

plaintiff assumes risk of normal jerks)

vii. Plaintiff illegally crosses the street at a busy light and his hit by a

car

1. Plaintiff is both contributory/comparatively negligent

(unreasonable risk) and has assumed a risk (voluntarily

encountered a known risk).

2. In contributory negligence jurisdiction: can look at based

on either contributory negligence or A of R theory.

a. Under contributory negligence, complete bar to

recovery since was partially negligent









55

Torts Brunell Fall 2006 56





b. Under A of R, would say that he only assumes risk

of being hit by non-negligent drivers (that is risk he

is voluntarily encountering) but does not assume a

risk of negligent drivers (i.e driving wrong way on

one way street)

3. In comparative negligence jurisdiction:

a. If hit by a driver that was not driving negligently,

then Plaintiff can not recover. Defendant is not

negligent and so did not breach his duty at all

(plaintiff was the only negligent party)

b. If hit by a driver who was also negligent, then only

look at plaintiff’s conduct in terms of negligence.

Was this a reasonable or unreasonable standard of

care? Clearly unreasonable and so proportion

liability to plaintiff and defendant (subtract amount

plaintiff was liable for)

i. Note: if crossing the street illegally because

his wife being held up at gun point, then not

an unreasonable risk (no breach of standard

of care) and so likely not negligent at all and

no reduction of recovery (fact finding issue

if breached duty, and even if did, then have

to consider what percentage at fault he was

in apply comparative negligence)





B) Statute of Limitations and Repose

I. Statute of Limitations

a. Plaintiffs can not bring recovery after the statute of limitations has passed

b. When there is medical malpractice and the injury may not be discovered

until after the date the injury was inflicted, the statute of limitations starts

when there is some legally cognizable injury

i. Statute of limitations does not begin until the injury is (or should

have reasonably been) discovered

ii. Teeters v Currey pg 614: Plaintiff’s tube tying procedure was

negligently performed. Doesn’t actually find out until 3 years

later, when she gets pregnant and then goes into a 2nd surgery who

tells her it was negligently done. All these events were past the

Statute of limitations date.

1. Statute of limitations starts from when she got pregnant, a

cognizable form that there was an injury

2. note: Did not start from date that she had surgery that told

her it was actually negligent, was just date when the injury

was cognizable (having a baby the harm because surgery







56

Torts Brunell Fall 2006 57





supposed to prevent this)…the date that a reasonable

person would be put on notice to investigate.

3. note: she was actually suing for a problem with the baby’s

health. But date of SofL starts when there is an injury that

is present, not necessarily the injury they are suing for. So

as soon as any sort of sign of negligence, SofL starts, even

if discover a much worse form of injury at a later point

4. note: if she had sued right after negligent surgery, might

not have won because no proof of a harm

iii. note: has been applied to other latent (non medical) injuries in

some jurisdictions)

II. Statute of Repose

a. A time period in which defendant can be exposed to liability. No

exceptions. Injury must occur within the time frame of liability.

b. S of L is about time frame can bring a claim for an injury, S of R is about

time frame in which defendant can be held to liability for an injury.



4- JOINT TORTFEASORS



A) Joint Liability

-Discussion of what proportion (and which harms) defendant can be liable for, as

opposed to whether there is causation at all (which was looked at under concurrent

causes, “but for” causes)



Can each defendant be liable for the full amout?

Joint and Several Liability (common Law) J and S Abolished



Independent

Divisible Harm NO NO



Acting in Concert YES YES



Indivisible Harm YES NO



Common Duty (Vicarious Liability) YES YES





I. Divisible Harms (independent tortfeasors)

a. Each defendant is only liable for the harm that is attributable to their

actions.

i. if Defendant A crashes into me and I break my wrist and then

when getting out of car, defendant B runs over my foot. A is liable

for wrist and B for foot.









57

Torts Brunell Fall 2006 58





ii. Note: Does not matter if have Joint and several liability or not,

always the rule that each defendant liable for their own harm if can

break it out

b. If theoretically divisible harm but hard for plaintiff to prove who caused

what, burden may shift onto defendants to prove what they are/aren’t

responsible for

i. Each will be liable for the harm that they caused (unless no one

can prove the divisible harm, in which case it is considered

indivisible and there will be join/several liability)

ii. Michie v Great Lakes Steel pg 395: 7 chemical plants are polluting

into the air and harming plaintiffs’ land. Impossible to tell which

plants is causing what proportion of damage since pollution is

mixing in the air

1. H: When very hard to distinguish the injuries caused by the

defendants, burden may shift on them to prove what portion

they are liable for.

c. Successive injuries

i. If there are two tortuous injuries, separated by time, burden on the

plaintiff to prove which defendant caused which injury

ii. Bruckman v Pena pg 392: Plaintiff injured in car accident due to

negligent defendant 1. a year later, same injury worsened by

neglgient defendant 2.

1. H: Plaintiff needs to prove which tortfeasor caused which

injuries or he is out of luck

2. R: Not fair to hold the 1st negligent defendant liable for

harms he didn’t cause

3. note: this seems to be a strict holding, and other

jurisdictions may allow a “rough estimate” of

apportionment and allow recovery

4. note: compare to Summers, where it was a concurrent tort,

there was one injury and weren’t sure who caused it. Here

there are two separate injuries over time and not sure who

is liable for which. Also, there is a passage of time here so

give plaintiff ability to prove divisibility of damages,

plaintiff in Summers didn’t have this ability.

II. Indivisible Harm

a. In Joint and Several Liability Jurisdictions: If more then one defendant’s

negligence is the proximate cause of the plaintiff’s harm, and can not tell

who contributed to what injuries, then each can be liable for the entire

harm.

i. So plaintiff may recover the full amount (not more then what is

due) from either or both of the defendants, even though one may

be more at fault then the other.

ii. if two cars negligently crash into plaintiff, plaintiff may recover for

both a broken wrist and broken foot from either defendant.









58

Torts Brunell Fall 2006 59





iii. Coney v J.L.G Industries pg 364: Plaintiff injured on negligently

made hydraulic lift and employer also negligent in training him.

Sues the manufacturer for full amount

1. H: Keep J/S liability (even though have comparative

negligence) and can hold manufacturer liable for full

amount of damage even though only partially liable

2. Note: in this case, if had abolished J/S, plaintiff would not

have been able to recover full amount because employer is

immune under workers compensation

iv. Pro – Should keep Joint and several liability and hold each liable

for entire amount: just because less at fault for accident doesn’t

mean wouldn’t have caused 100% of the damages, plaintiff should

not bear the cost of an insolvent defendant (between two parties,

the one who is tortuous should pay for the unknown party), don’t

want to limit plaintiff’s ability to recover

b. In jurisdictions with no Joint and Several Liability (have adopted

comparative negligence/fault standard): Each defendant is liable only for

the percent of damage caused based on the comparative percentage they

were at fault (comparative fault). not liable for the entire amount

i. Defendant A was 70% at fault for accident and Defendant B was

20% at fault (and plaintiff was 10% at fault). Plaintiff can collect

70% of her total damages from A and 20% from B (can not sue for

the full amount from either)

ii. Bartlett v New Mexico pg 366: Car driven by unknown driver

negligently pulls out causing plaintiff to slam on breaks and

defendant to negligently crash into her (following too close)

Plaintiff sues rear-ending driver since couldn’t find other person.

1. H: Defendant was found to be 30% responsible and

unknown driver was 70% responsible. Can only collect

30% from the defendant because abandoned J/S liability so

defendant liable only for comparative fault

iii. Pro – Get rid of Joint and Several Liability and hold liable only for

proportion: if defendant is only 1% at fault shouldn’t be liable for

100% of damages, if only the insolvent party in the picture then

plaintiff wouldn’t be able to collect at all so not fair to make a 2nd

defendant who comes into the picture pay for the entire insolvency

when only a little bit at fault

III. Acting in Concert

a. When defendants have acted together to cause a harm, then each will be

liable for the entire amount, even if the harms are divisible

i. So always joint and several liability when acting in concert, each

defendant can be held liable for entire amount.

ii. Note: Sort of opposite theory of independent divisible harms

iii. Bierczynski v Rogers pg 361: two defendants street racing and

Defendant A hits plaintiff while defendant B comes to a safe stop.









59

Torts Brunell Fall 2006 60





1. H: Since the two acted in concert, defendant B is liable for

the full amount of damage to plaintiff, even though he did

not actually cause any of the damage.

2. R: even though did not physically impact car, still caused

the damage by being involved and encouraging it. It was

one negligent act with multiple participants

3. Even if a 3rd friend had just helped in race but did not race,

he also could be liable for full amount



B) Satisfaction and Release

I. Satisfaction

a. Satisfaction: Plaintiff is entitled only to one complete payment of the total

amount of her damages, not any more.

b. If plaintiff goes after multiple defendants, can only collect up to the total

amount of her damages

i. An issue more so in joint/several liability cases since each is liable

for full amount. If get full amount from one defendant, then claim

is satisfied and can’t sue the other defendants.

c. Bundt v Embro pg 371: Plaintiff in car crash and sues negligent driver in

one suit and the state for negligence in another. Wins all of damages in

suit against state, so suit against the driver needs to be dropped

i. Note: if she had only received partial amount from state against

suit, then can sue negligent driver for the rest.

II. Release

a. Release is when a defendant is granted freedom from a lawsuit by the

plaintiff, either expressly or constructively (usually in exchange for

settlement figure).

i. If one settles with one of the defendants and is silent on the issue

of release, then it is presumed that all of the other joint defendants

are released as well (even if not the true intention of plaintiff)

ii. But if one settles with one of the defendants and explicitly reserves

the right to sue the others, then they have not been released.

b. Cox v Pearl Investment pg 374: Plaintiff injured when falls on property.

Settles with tenant of property for set amount and signs explicit agreement

(covenant not to sue) that says don’t release other defendants. Then sues

the landlord. Court says that this is ok because had explicitly reserved the

right to sue others (not granted a release)

i. Note: If it was silent on “release” then other defendants get an

implicit/constructive release and plaintiff has no longer any claims

c. “Mary Carter Agreements”: an agreement not to sue (release) in exchange

for help with the case and a reduction in their settlement amount if

plaintiff wins a certain amount

i. Note: obviously explicitly reserves the right not to release other

defendants







60

Torts Brunell Fall 2006 61





ii. Elbaor v Smith pg 378: Plaintiff injured by the negligence of

multiple doctors. Enters into a mary carter agreement with a few

of them. They give her some settlement figure and help her with

her case against the other doctors. Other doctors found 88% liable

1. H: Mary Carter agreements are against public policy

because it 1) “sham” to act like they are just equal

defendants that have no interest in the outcome and 2) does

not promote settlements (promotes lawsuits against the

remaining parties)

2. note: Dissent and other jurisdictions say that should just tell

the jury about the agreement and let them make up their

own mind about credibility of testimony.



C) Contribution

I. Contribution Generally

a. In a jurisdiction with joint and several liability, one of the defendants may

have to pay more then his “fair share” of the damages because can be held

completely liable even if partially at fault. May collect the share that the

other defendants are at fault through Contribution.

i. Note: if no J/S liability (comparative fault only), then defendant

will only ever be held responsible for their share of fault anyway

so never an issue of paying too much and needing contribution

form the other defendants

b. Knell v Feltman pg 383: Plaintiff injured when a car she was riding in

with her friends X negligently collides with taxi cab that was also

negligent. Jury finds both friends X and taxi cab driver were equally at

fault. Plaintiff wins suit against taxi cab driver for all of ther damages,

$10K. Taxi cab driver then sues Friends X for the $5K that they were at

fault (50%)

i. H: Even though plaintiff choose not to sue the friends, the

defendant who has paid more then his fare share is allowed to seek

contribution from the other liable defendants

ii. So why even still have joint and several liability if each defendant

is going to end up paying their own shares anyway? Because If

one of the defendants can’t be found or can’t pay, then the one

defendant is going to be responsible for the other’s insolvency

c. Contribution claim may be brought into original suit or as a second case

d. No contribution for an intentional tortfeasor

II. Contribution Claim Proof

a. The Defendant seeking contribution has the burden of proving that the

defendant they are seeking contribution from would be liable to the

plaintiff.

b. Yellow Cab Co v Dreslin pg 386: Wife a passenger in a car driven by her

husband that collides with a cab. Both the husband and the cab driver

were found to be equally at fault for the accident. Granted full settlement





61

Torts Brunell Fall 2006 62





against the cab company (J/S liability). Cab company sues the husband

for contribution of his 50% share

i. H: Cab company can not collect contribution from husband,

because the wife (plaintiff) would have no claim against the

husband since there is spousal immunity to torts. Therefore, if

plaintiff would have no claim to collect $, the defendant has no

claim for contribution.

c. Note: If plaintiff would be barred from bringing a suit against one of the

defendants due to Statute of limitations, defendant can still seek

contribution from that person

III. Settlement

a. Settling parties: A settling defendant can not seek contribution from non-

settling defendants unless he has paid the entire amount of the plaintiff’s

damages

b. Non Settling parties:

i. Traditional rule: a non-settling defendant can sue a settling

defendant for contribution

1. Criticized because gives defendant no advantage or reason

to settle if can just be sued later

ii. Modern rule: a non-settling defendant can not get contribution

from a settling defendant, but the plaintiff’s recovery against the

non-settling party is reduced to account for the prior settlement

(since plaintiff shouldn’t get more then the satisfaction of their

claim anyway)

iii. Determining how to reduce plaintiff’s recovery by amount settled:

1. “Pro Tanto”: Reduce recovery by the dollar amount of the

settlement

2. “Comparative Share”: Subtract the percentage liability that

settling defendant would be liable for

3. Plaintiff passenger of a car and injured by negligence of

Defendant 1 and Defendant 2. Court finds plaintiff 20%

responsible for his own damage, Def. 1 45% responsible

and Def. 2 35% responsible. Plaintiff’s total damage is

$100K. Prior to trial, had settled with Def 1 for $20K.

a. Pro Tanto: Subtract the exact dollar figure of

settlement, $20K, (and amount plaintiff is at fault,

$20K) and defendant is liable up to the full amount

that remains $60K

i. Note: remember, we are in a J/S liable

jurisdiction so each defendants is liable for

the full amount and not just their share

b. Comparative Share: Subtract what D1 would have

had to pay from the settlement ($45K, 45% of

$100K) and plaintiff’s own percentage of liability

($20K, 20% of $100K). So Plaintiff can recover

$35K from D2, the amount left.







62

Torts Brunell Fall 2006 63





i. Note: comparative share is essentially like

putting them into a comparative fault

jurisdiction (if only 2 defendants) since will

subtracts the settling party’s proportion of

liability and plaintiff’s contribution so end

up paying only their share. However, if had

more then 2 defendants, then you would still

subtract the settling party’s share (and

plaintiff’s own contribution of negligence),

but each of the non-settling party’s can be

liable for the full amount that is left, even if

more then their fair share (because in a J/S

liable jurisdiction if talking about

contribution)…and then they can sue for

contribution of course.

c. What happens if plaintiff makes a good negotiation

deal with one of the defendants, who gets the

windfall?

i. If plaintiff settles with Def 1 for $85K, they

have recovered $40K more then they would

have gotten form them in court. In a

comparative share standard, Does the

plaintiff still get to collect the 35% that Def

2 is liable (therefore giving plaintiff windfall

since more then total damages/satisfaction)

or does defendant get a windfall since now

has to pay less then he is at fault for due to

good negotiating by the plaintiff?

iv. Good Faith requirement

1. Settlements must be made in good faith and not in

collusion, or else courts will allow the non-settling party to

seek contribution form a settling party

2. A small settlement amount is not evidence enough of bad

faith settlement

3. Slocum v Donahue pg 388: Donahue drinking and driving

and backs over kid. Ford also possible negligent party.

Plaintiffs settles with Ford for $150K. Donahue sues them

for contribution

a. H: Can not bring a claim against a settling party

unless settlement was in bad faith. No evidence that

this was a bad faith settlement, low figure is not

enough.

b. Note: Donahue says they settled because wanted to

use Ford’s witnesses to testify against him and force

Donahue to pay all the damages by himself (by









63

Torts Brunell Fall 2006 64





releasing Ford) because the plaintiffs were angry at

Donahue and wanted him to pay

c. If Damage determined to be $2 Million and

Donahue was 60% at fault and Ford 40% at fault:

i. Pro Tanto: Donahue liable for $1.85

ii. Comp Chance: Donahue liable for $1.2

1. note: plaintiff loses $650K by

settling in this scenario



D) Indemnity

I. Indemnity: like contribution, but instead of the tortfeasor who is found liable

getting the relative share from defendants who were not a party to the case,

the other defendants have to pay the FULL amount

a. So instead of getting the 25% that the other defendant was found liable

for, they have to pay the full 100%.

b. Is a shifting of liability completely on the party who was not in the

lawsuit.

c. Seen often in vicarious liability

i. i.e. employer who has had to pay for his employees negligence can

indemnify the employee and receive 100% compensation from that

employee



5- VICARIOUS LIABILITY



Vicarious Liability-

-“Servants”

-Employees: W/in scope of employment

-“Coming/going” and “Frolic/detour” distinctions/rules.

-Non-employee servants

-joint enterprise



No Vicarious Liability-

Independent Contractors no vicarious liability

-Exceptions: Apparent agency, nondelegable duty

Bailor-Bailee (Some exceptions for permission to drive cars)



A) Vicarious Liability Relationships

I. Vicarious Liability Generally

a. A negligently injures B. Because of some sort of special relationship

between A and C, C is liable for injuries to B. (A’s negligence is Imputed

on C)

i. Even though C may not have been negligent at all, completely

blameless (maybe even tried to avoid the harm)





64

Torts Brunell Fall 2006 65





b. Vicariously liable defendant may indemnify the original negligent party

that they are responsible for

II. Respondeat Superior – Employer/Employee relationships

a. If an employee commits a tort during his scope of employment, then his

employer will also be held liable

i. Note: Distinguish from when an employer is actually negligent in

hiring a bad employee. In Vicarious Liability, the employer is not

negligent

b. An attempt to allow recovery from someone who has money: Employers

can put it into cost of business and obtain insurance

c. Scope of Employment

i. A tort is considered “within the scope of employment” if the

tortfeasor is acting with an intent to further his employer’s business

purpose.

1. Even if it is coupled with a personal purpose and is a

forbidden practice

2. Mcdonald’s employee spills coffee on plaintiff because

negligently put cap on.

a. McDonald’s vicariously liable. Doesn’t matter if

they provided extremely adequate training. Not

about McDonald’s actual negligence but simply

being responsible for employees’ negligence

because of relationship

ii. “Coming and going” rule: an employee who is coming to or

leaving from work is not considered to be within the scope of

employment (so employer will not be vicariously liable)

1. Exception: if the negligence of the tortfeasor on way home

was foreseeable as a result of some sort of conduct by the

employer (even if conduct wasn’t negligent)

2. Bussard v Minimed pg 661: Employer sprayed for insects

and caused employee to feel sick. She went home early

(employers repeatedly asked if she was ok) and crashed

into plaintiff. Plaintiff sues employer. Court rules they can

be held vicariously liable as an exception to coming and

going rule since her negligence was foreseeable

consequence of their action.

iii. Frolic vs Detour: A frolic is a completely personal side trip and a

detour is a slight venture that is related to work.

1. If on a frolic, then employer not vicariously liable and if on

a detour then they are

2. O’Shea v Welch pg 663: Store manager using company car

on a business related trip and decides to take a stop at a

service station and crashes into plaintiff.

a. H: If only a slight deviation that is related to

employment (even if personal) then it is a detour

and company liable. Jury could find this to be a







65

Torts Brunell Fall 2006 66





detour because getting a work car fixed, just turning

off so had not left business route, expect some

personal freedom from manager

d. Can even be for intentional torts

i. Motive of employee is important:

1. If furthering a business objective, then employer liable,

even if does not condone conduct

a. Beating up a guy because hasn’t paid check is

within scope of employment

2. completely personal motives are note considered to be

within scope of employment

a. Beating up guy because he said you were ugly is not

within scope of employment, even if done at work

e. Summary: Employer vicariously liable for any negligent action of

employee made within the scope of his employment. Only liable for

intentional torts of employee if tort is committed with a motive to benefit

the company.

i. Delivery Driver crashes into another driver = yes, vicariously

liable (negligence)

ii. If delivery driver shoots someone who calls him ugly = not

vicariously liable (intentional tort)

iii. If delivery driver shoots someone who wouldn’t pay bill = yes,

vicariously liable (intentional tort)

III. Independent Contractors

a. Employers are not liable for the torts of independent contractors

b. Employee is distinguished form Independent contractor in that contractors

have a right to control the physical details of their work (control their own

work)

i. Murrell v Goerts pg 667: Newspaper man gets into physical

altercation with customer. She sues newspaper company and they

say not vicariously liable because he is an indep. contractor

1. H: Delivery man an independent contractor- hired by

another independent contractor without company’s

knowledge, only reports and collects money for the other

contractor, do not control his every day activities

a. Note: plaintiff contended that they had a high

degree of control over his job by all these

restrictions and guidelines they impose on their

delivery men

ii. Exception: Apparent agency- If plaintiff reasonably relies that

defendant was an agent of the company, then employer may be

vicariously liable. An objective test.

1. i.e. if newspaper delivery man wears a shirt and hat that

says “New York Times”









66

Torts Brunell Fall 2006 67





iii. Exception: nondelegable duties and inherently dangerous

activities: Duties that are particularly important or dangerous can

not be delegated out to others (still responsible for them)

1. Maloney v Rath pg 669: Defendant hires independent

contractor (mechanic) to fix her breaks. He is negligent

and she crashes into plaintiff. Plaintiff sues the owner.

a. H: Normally not responsible for negligence of

independent contractor, but the duty to keep car safe

(breaks maintained) is so important that you can not

delegate it out.

IV. Joint Enterprise

a. A partnership for a very limited, specific purpose (i.e. a trip)

i. Each is responsible for each other’s actions

b. Four requirements:

i. An agreement (express or implied)

ii. Common Purpose

iii. Common pecuniary interest

iv. Equal right of control

c. A mere social trip or a trip without a mutual pecuniary interest is not a

joint enterprise (so no vicarious liability)

i. Popejoy v Stenlle pg 673: Mother and daughter going to pick up a

cow for daughter. Negligently crash, mother dies and other driver

injured. Sue the father.

1. H: not a joint enterprise because daughter was solely

receiving the profits from cow (not a family business cow)

so no common pecuniary interest between her and the

negligent mother in making the trip

V. Bailment

a. General rule is that no vicarious liability in bailor/bailee relationship

i. If negligent in loaning someone an object (i.e. know they have a

propensity for harm) then liable for negligence. But no vicarious

liability (so if not negligent)

b. Exception for people who voluntarily loan their car to another (Consent

statues)

i. Owner of car vicariously liable for the driver’s negligence

ii. Some courts hold this so long as the person driving has some sort

of consent, even if not the consent of the original owner (even

against the express wishes of the original owner)

1. Shuck v Means pg 678: Hertz rents car to Codling. Hertz

agreement says only Codling can drive and no one else is

allowed to drive the car. Nevertheless, Codling lets Means

use the car and Means negligently crashes into plaintiff.

Plaintiff sues Hertz

a. H: Hertz is vicariously liable. Need not consent to

the specific driver, just that someone else could use

the car. So long as the person got permission from







67

Torts Brunell Fall 2006 68





someone (coddling) who had permission form the

owner (Hertz) then can hold owner liable

b. R: Need to allow certainty in recovery. Hold Hertz

liable even though Codling let someone else drive

against the express agreement

c. Automobile Insurance Omnibus Clauses make the need for consent

statutes less important because insurance company will pay for anyone

who uses the insurers car, so no issues of vicarious liability to the owner



B) Imputed Contributory Negligence



I. In contributorily negligent jurisdictions, Imputed negligence means that if the

actual negligent party is barred from recovery because of contributory

negligence, so is the vicariously liable party

a. So if employee crashes with third party, and the employee is partially at

fault, in a normal contributory negligent jurisdiction, employee couldn’t

collect anything. Therefore, the party who is vicariously liable for their

employees actions is also completely barred from recovery.

i. Sounds odd because employer, who owns the car, can not collect

for damage of the car at all because of his employees slight

negligence. Even though the employer was not negligent at all

(just imputed on him)

ii. Smalich v Westfall pg 681: Owner of car is riding in car. Driver

crashes. Both the driver and 3rd party are negligent. Issue is

whether the passenger (owner of the car) can collect against the 3rd

party since the driver was contribtorily negligent and the owner is

vicariously liable. So does the contributory negligence of the

driver pass to the owner due to the vicarious liability relationship?

1. under traditional rule, yes. Therefore the plaintiff (owner

of vehicle and driver) can’t collect because the contributory

negligence of person they are responsible for is imputed on

them

2. In this case, held that it was not imputed because no

vicarious liability in this situation (in Penn, no automobile

consent statute)

b. In Comparative Negligence jurisdictions: Won’t be as big an issue in

because will still be able to collect for the proportion not caused by the

negligent party that you are responsible for.

c. “both ways” test: if vicarious liability relationship, contributory

negligence must be imputed









68

Torts Brunell Fall 2006 69





6 – STRICT LIABILITY

A) Strict Liability Generally

I. No requirement of intent or negligence (failure to use reasonable standard of

care)

II. Four areas

a. Animals

b. Land Use

c. Abnormally Dangerous activities

d. Products Liability

III. Policy Arguments

a. Social utility arguments:

i. Does it cause people to be more cautious?

1. No, because defendant won’t try and avoid liability if it is

not cost effective (same would do for negligence)

ii. Proof problem

1. Easier to hold people liable if strict negligence. Don’t

have to prove their negligence. More incentive to be safe

since more likely to be held liable (probability higher)

iii. Activity level

1. Might try to avoid activities that will be held strictly liable

for. So will lead to less use of the dangerous activity (or

complete withdrawal, look for alternatives)

iv. Risk Spreading

1. Insurance for plaintiff to be compensated for losses and the

person held strictly liable can spread out the cost by getting

insurance or raising prices of products (all the consumers

pay a little) instead of individual

b. Fairness

i. Between two innocents…vs adding damages to another rpossible

innocent party



B) Animals



I. Trespassing Animals

a. Strictly liable for the types of animals that are likely to roam and do

damage

i. Limited to “barnyard” animals, not cats/dogs.

b. “Fencing in” statute: if fence in animals, then not strictly liable (i.e. if

they break out) but is if he does not fence them in

c. “Fencing Out” statute: If properly fence land, have claim against someone

if the animals break in

II. Wild Animals – Injury claims

a. Strict liability if wild animal injures anyone







69

Torts Brunell Fall 2006 70





b. Customs of community determines what is domesticated. Typically a

species that “by custom is devoted to mankind”

III. Domestic animals – injury claims

a. Owner generally not strictly liable for domesticated animal injuries, only

liable if negligent

b. Exception: If know (or should know) that the domestic animal has a

vicious propensity

IV. Hypos – Strictly liable if…?

a. Horses escape and trespasses on neighbors land

i. Yes, barnyard animal

b. Dog gets loose and trespasses on neighbors land

i. No, not barnyard animal

c. Horse gets loose and knocks someone over

i. No, domesticated animal. Only if dangerous propensity

d. Zebra knocks someone over

i. Yes, wild animal



C) Land Use

I. Rylands v Fletcher pg 692:

a. F: Defendant owns mill and hires company to construct a reservoir on his

property to bring water to the mill. The reservoir collapses and the water

floods the plaintiff’s mine shaft. Sues the mill owner

b. Lower Court Holding: Anyone who brings something onto his land which

can do harm if escapes is liable for any harm it does to neighboring land if

it does escape

c. Appeals holding: If defendant uses land for a “non-natural” use then they

are liable for any damage that results

i. R: If the harm results from a natural use of land, then the plaintiff

should foresee this harm and protect against it. But a plaintiff

can’t expect to protect against unforeseeable harms

ii. Weird to put the responsibility on the plaintiff to protect against

harms from defendant

d. Note: Defendants had no vicarious liability for negligent actions of

workers (since workers were independent contractors), no trespass

because no intent and no nuisance violation because was a reasonable use

of land

II. American courts slow to adopt Rylands. Eventually adopt the “non-natural

use” standard and reject the “any escaping forces” lower court ruling

a. Brown v Collins: Too broad too hold anything that can escape and do

damage one is strictly liable for (in this case, horses)









70

Torts Brunell Fall 2006 71





D) Abnormally Dangerous Activity

Restatement 519

(1) One who carries on an abnormally dangerous activity is subject to liability for

harm to the person, land or chattels of another resulting from the activity, although he has

exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes

the activity abnormally dangerous.



Restatement 520

In determining whether an activity is abnormally dangerous, the following factors are

to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of

others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous

attributes.



I. Strict liability for one who engages in Abnormally dangerous activity

a. Does not matter if use the utmost care (not negligent)

II. Determining abnormal activity is dependent on the 6 factor test listed in the

restatement

a. Key requirement is the “unavoidable danger” factor

III. Miller v Civil Contractions pg 699: Defendant police officers partaking in

target practice and a stray bullet ricochets and hits plaintiff. Plaintiff sues

bases on strict liability

a. H: under restatement guidelines and public policy, shooting gun in this

circumstance was not an ultrahazardous/abnormally dangerous activity

b. R: Activity is socially useful. One important factor was that a high degree

of care could have possibly prevented the harm

i. If could be preventable with care, than can hold people liable under

negligence standard, so don’t hold them to strict liability (harm

from firearms comes from misuse, not inherent nature)

ii. note: so may be liable for negligence if didn’t’ exercise reasonable

care, but no strict liability holding

IV. Indiana Harbor Belt v American Cyanamid pg 702:

a. F: Defendant manufacturers a toxic chemical. Transported on train by a

different company. While on plaintiff’s railroad station, the container

leaked. EPA made plaintiffs pay to fix land and they sue the chemical

manufacturers for strict liability.

b. H: Manufacturing a dangerous chemical is not enough to impose strict

liability









71

Torts Brunell Fall 2006 72





i. Note, this is about whether should be held to strict liability for

manufacturing the chemical, not transporting it. Toxic chemicals

can be used safely. Court does apply standard to the

transportation, and then says not even the issue.

c. R: Look at the 6 factors

i. Someone could have eliminated accident by reasonable care (so

someone negligent). No strict liability if reasonable care can avoid

ii. Also, different then storing dangerous material (strict liability)

because they have less control of the material here

V. Strict liability (general) development:

a. 1st restatement- Ultrahazardous activity: Risk of serious harm, Can not be

performed without serious harm, must not be commonly engaged in

b. 2nd restatement: 6 factors in section 520

c. 3rd restatement: only 2 factors- Activity creates a foreseeable risk of

physical harm, even with reasonable care. Activity is not one of common

usage. (because people can avoid commonly known dangers and also

would be a lot of lawsuits)

i. lumps 1st 3 factors into one umbrella, and combines others.



E) Limitations on Strict Liability (Defenses)

I. Scope of Risk

a. Only liable for the types of harms that is the reason for imposing strict

liability

i. Foster v Preston pg 710: Plaintiffs mink killed her mink children

because went crazy from blasting vibrations of nearby dynamite

blasting (a strictly liable activity)

ii. H: Only hold them liable for harms trying to avoid by imposing

strict liability. Plaintiffs mink is an abnormally sensitive use, so it

is an unforeseeable harm.

iii. Note: if negligence case (defendant aware of the harm) then maybe

could impose a hand rule analysis

II. Acts of God

a. Will not hold one liable for unforeseeable acts of god that cause the

damage

i. Golden v Emry pg 712: Hydroelectric plant flooded as a result of

hurricane and damages plaintiffs property. Not liable since

unforeseeable act of god

1. Debatable that he shouldn’t have foreseen possibility of a

hurricane

rd

b. Note: If 3 party intervenes in an uforeseebale manner, they will be a

superseding cause to the strict liability

III. Contributory/Comparitive negligence

a. Plaintiff’s contributory negligence not a defense against strict liability

unless unreasonably assumes a risk (implied A of R that is unreasonable)









72

Torts Brunell Fall 2006 73





i. Sandy v Bushey pg 714: Plaintiff injured when defendant’s horse

kicked him (assume wild animal so strict liability)

ii. H: Contributory negligence not a defense, needs to have knowingly

assumed an unreasonable risk of harm to bar recovery.

1. So just being careless or inattentive is not a bar from

recovery. Need to know there is a harm and subject

yourself to it for no good reason

b. In comparative negligence jurisdictions, can diminish plaintiffs recovery

by the proportion they were at fault

i. How do you determine defendant’s percentage of “fault” when

there is not necessarily any “fault” in strict liability (dangerousness

of activity, causal contribution to the harm)

c. Man goes into neighbor’s yard and pet’s their Siberian tiger through a

fence and arm is ripped off

i. If consider it an unreasonable A of R, then plaintiff can’t collect

(knowledge of magnitude of risk?)

ii. In comparative negligence, would attribute some fault to plaintiff

and subtract that from claim



7– PRODUCTS LIABILITY

I. Liability of a manufacturer, seller or other supplier of chattel to one who is harmed by

the chattel

-No privity of contract

II. Can be liability on Negligence, warranty or strict liability theories



A. Negligence: Product harm was reasonably foreseeable and lack of care in preventing

the harm

-i.e. Failure to inspect tire that would have caught defect

B. Express warranty: An expressed statement of product representation that fails

-i.e. advertises shatterproof glass windshield that shatters

C. Implied warranty: Implied warranty that product is reasonably suitable for use

-i.e. even if not expressly stated that steering gear will work well, person relies

that product fit for purpose sold

D. Strict Liability: Any defect in manufacturing, design or failure to warn. Don’t need

negligence or warranty

-More expansive then implied warranty (covers implied warranty)



A) Negligence

I. May sue a product manufacturer, retailer, supplier based on regular negligence

standard

a. Any company that negligently manufacturers a products is liable for any

personal injuries proximately caused by their negligence

i. Note: no privity requirement anymore







73

Torts Brunell Fall 2006 74





b. MacPherson v Buick pg 409: Plaintiff injured when manufacture

negligent in inspecting wheel. Plaintiff injured when his car crashed due

to the wheel. Wins suit

i. What if defect caused an accident that hit a pedestrian? Yes, have

causation. Foreseeable harm and foreseeable plaintiff.

ii. Note: under negligent standard, he would have to be negligent. So

if he reasonably inspected the wheel (followed standard of care)

and did not find defect, would not be liable under negligence

theory.

c. Damage can be to person or property. Does not have to be immediate

purchaser. Doesn’t matter if manufacturer produced all or part



B) Warranty



I. Generally

a. If seller makes a promise, then failure to perform would be a contract issue

for breach of warranty

b. Tort action arises when damage occurs as a result of this express or

implied promise of product performance

i. No negligence need be shown, just a breach of express/implied

warranty (Contract theory for express and consumer expectation

test for Implied)

II. Express

a. Express warranty: Seller expressly represents good to have certain

qualities which it does not

b. Baxter v Ford Motor pg 722: Plaintiff buys Ford car that is purported in

the brochures to have “shatter proof glass” and will not shatter on the

hardest of impact. The windshield does shatter and injures his eye.

i. H: Liable to consumer for making express representations that are

false and plaintiff may recover for harm resulting from falsity

1. the false representation must not be easily detected by the

consumer (i.e. knew this was wrong before bought it

because saw the test car had chipped glass)

2. Note: only held to this standard since expressly stated this

guaranty. If he had not expressly claimed shatter proof

glass, there would be no breach of warranty issue (no

implied warranty). Possible strict liability claim (discussed

later)

c. must have actually relied on the false representation

1. if brochures had made the claim but he never saw them,

then no reliance and no claim

ii. If purchaser relies, doesn’t matter if actual owner does not

1. Guy buys car for wife and relies on shatterproof glass, but

she doesn’t. There is a claim since he bout it as gift relying

on that characterization.







74

Torts Brunell Fall 2006 75





2. Bystander injured has no warranty claim since he did not

rely on any sort of protection (and no one did for his

benefit)

d. privity of contract not required

e. Property damage recoverable, need not be personal injury

i. So if glass just shatters with no injury, can sue for recovery of

windshield

f. Needs to be a specific promise of safety or a material fact that can be

proved false

i. If just said glass was particularly strong and engineered for modern

life, would not have a claim

g. Even if seller thinks it is true, liable if representation is false. A sort of

“strict liability”.

h. No comparative negligence defense to breach of warranty

III. Implied

a. Implied warranty: product general qualities can be implied form the fact

that is being sold

b. Most commonly follow the standards set forth in the UCC

i. “Warranty of merchantability”: A product will be fit for the

ordinary purposes for which such good are used

1. If something goes wrong with product when using it in a

reasonable manner for intended purpose, then breach of this

implied warranty

2. a car that has a steering wheel that doesn’t work. Can sue

because car not fit for intended purpose

ii. “warranty of fitness for a particular purpose”: implicitly states that

the product has a particular purpose that it can be used for

1. Ask to recommend a good shoe for running and store clerk

gives a particular product. It is actually a hiking shoe and

horrible for running. Sue on the implied warranty that it

was good for running

c. Modern rule abolishes privity of contract requirement: warranty extends to

remote purchasers and those who may reasonably be expected to use the

goods

i. Hennsingsen v Bloomsfield Motors pg 726: Husband buys wife a

Chrysler. Had signed a contract saying only a 90 day warranty.

She crashes due to the wheel not working, under a breach warranty

of merchantability

1. H: privity of contract not necessary, wife was a reasonably

foreseeable user.

a. Also, implied warranty of merchantability trumps

an express withdrawal (adhesion contract buried in

fine print that he had no knowledge of)

ii. Note: don’t need either vertical privity (down the chain of line, so

still action against manufacturer even if sold through dealer) nor









75

Torts Brunell Fall 2006 76





horizontal privity (passed between consumers, so the wife got the

gift from husband who purchased does not bar her from an action).



C) Strict Liability – Product Defect

I. Strict Liability- Product Defect (2nd restatement)

a. Greenmen v Yuba Power pg 732: Husband uses power tool gift and piece

breaks off seriously injuring him. Allow for strict liability in product

defect cases. Don’t need to base off warranty standard

i. Note: no real need for a distinction of implied warranty with strict

liability, because all of implied warranty issues are covered by a

strict liability action

b. Pro Strict Liability: Acts as a check and safeguard which makes products

safer. deterrence: Defendant bear costs of non-negligent accidents so that

they will raise prices and thus reduce consumption of products. Risk

spreading: costs will be spread to everyone (raise price of products)

instead on just one. Moral fairness; As between two innocents, allow one

injured to recover. Pg 737 for all rationales

c. Con Strict Liability: keeps good products off the market, inhibits product

development and creates an unreasonable “tort tax”

d. 2nd Restatement: Anyone who sells a product in a defective condition that

is unreasonably dangerous to the user is subject to liability for

injury/damage

i. So long as it reaches consumer without substantial change in the

condition it was sold

ii. A “consumer expectations” standard

iii. Do NOT need privity of contract and does NOT matter that seller

has exercised all reasonable care

nd

2 Restatement 402A

(1) One who sells any product in a defective condition unreasonably dangerous to the

user or consumer or to his property is subject to liability for physical harm thereby caused

to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial

change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his

product, and

(b) the user or consumer has not bought the product from or entered into any

contractual relation with the seller.



e. Third Restatement: Breaks liability into three categories, Manufacturing

defect, design defect, and inadequate warnings.



Restatement 3rd









76

Torts Brunell Fall 2006 77





One engaged in the business of selling or otherwise distributing products who sells or

distributes a defective product is subject to liability for harm to persons or property

caused by the defect.



A product is defective when, at the time of sale or distribution, it contains a

manufacturing defect, is defective in design, or is defective because of inadequate

instructions or warnings. A product:

(a) contains a manufacturing defect when the product departs from its intended design

even though all possible care was exercised in the preparation and marketing of the

product;

(b) 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 other distributor, or a predecessor in the commercial chain of distribution,

and the omission of the alternative design renders the product not reasonably safe;

(c) is defective because of inadequate instructions or warnings when the foreseeable

risks of harm posed by the product could have been reduced or avoided by the provision

of reasonable instructions or warnings by the seller or other distributor, or a predecessor

in the commercial chain of distribution, and the omission of the instructions or warnings

renders the product not reasonably safe.

Restatement (Second) of Restatement (Third) of Torts

Torts § 402A

§ 402A

“defect” definition “unreasonably dangerous” “defective”

Basis/theories to bring Negligence, warranty, strict Unified theory; categorical

claims liability claims: manufacturing,

design, failure to warn



Negligence, Warranty and

Categories allowed

Test for design defect Consumer expectations Risk/utility

claims

RAD (reasonable No Yes

alternative design)

requirement?

Widely accepted? yes No?

Contributory negligence No Yes = plaintiff’s negligence

an allowable defense can be asserted as a defense

(comparative or contributory

 whichever that jurisdiction

applies to negligence cases in

general)

Strict liability for used No – unless sold as “nearly

goods? new” because buyer would

be justified believing risk of

danger no greater than if

product was new





77

Torts Brunell Fall 2006 78





II. Manufacturing Defect

a. A problem with production of a product, such that usually a single

occurrence

i. i.e. a bad part inserted into one product due to assembly line error

ii. Compare to design defect: A problem with they way the product

was designed such that it malfunctions during intended use, all the

products in the line are problematic

b. Test: manufacturing defect if the product doesn’t conform to the intended

design and other products on the line (an error in the specific product that

causes injury during manufacturing)

i. Compare to the same product and see if this one varies in

performance from those

ii. No need for the plaintiff to show that the product is

inherently/unreasonably dangerous generally, just that the 1)

defective product caused their harm and 2) that defect was present

when left manufacture and did not occur at some point later

c. Rix v General Motors pg 740: Plaintiff’s GMC truck had a water tank with

a defective part. Sues based on strict liability for manufacturing defect

i. H: Held to strict liability for manufacturing defect. Do not need to

show a lack of care (negligence) just that there is a defect that

occurred during manufacturing and that it caused the injury

ii. What if had the highest quality control to detect defects and just

impossible to catch this one, 1 in a million occurence?

1. Still liable under strict liability theory (even though not

negligent)

iii. What if not abnormally dangerous?

1. Still liable

iv. What if accident still would have occurred anyway because

plaintiff was speeding?

1. Need causation. If no “but for” then not liable

v. Tube breaks causing him to go through light and branch randomly

falls on care?

1. No proximate causation. Not the harm trying to avoid

III. Design Defect

a. All the products in a particular line were designed in such a way to make

them unreasonably dangerous (defective)

b. Preferred Test: Risk-utility standard- Liable if a foreseeable risk of harm

posed by the product could have been reduced or avoided by the adoption

of a reasonable alternative design

i. Decide if the utility outweighs the risks: was the product as safe as

it should be

1. Essentially a negligence type test, did they depart from

standard of care by looking at the risks vs. benefits (hand

rule type analysis)

2. Prentis v Yale Mfg pg 743: Plaintiff using hand-operated

forklift manufactured by defendant. Gets injured when it







78

Torts Brunell Fall 2006 79





rolls over him. Says it should have been designed with a

seat so there is a design defect.

a. Risk: $10Mill (50% chance of causing $20 mill in

damage). If install seat, risk reduced by $2 Mill. $8

Mill benefit

b. Utility: Sales of $150 Mill. New design will have

$145 Mill in profits due to costs. Lose $5 Mill.

c. $3 Mill in benefits gained with alternative design,

so liable for design defect

ii. Pro – Risk-Utility test (negligence based): A deliberate design

decision made that plaintiff can provide evidence against (unlike

manufacturing which have no idea how it happened), higher

standard of proof since entire product line is at risk, less liability to

careful manufactures?

iii. O’Brien Factors to consider in risk-utility analysis:

1. Usefulness and desirability of product

2. Safety aspects of the product

a. Must protect against reasonable misuses of product

too

3. Availability of substitute product (RAD below)

4. Ability to reasonably eliminate the unsafe character (costs,

usefulness)

5. Users ability to avoid danger by the exercise of care

a. So if user exercises care and still injured then

evidence of products negligence

6. User’s anticipated awareness of danger

7. Feasibility of spreading the loss

c. Reasonable Alternative:

i. If a reasonable alternative exists, then the defendant is liable for

not using it (considered in the risk-utility analysis)

ii. Generally plaintiff must prove a Reasonable alternative, either by

evidence of other manufacturers uses or possibly through “state of

the art” showing that a safer approach was scientifically

understood and could have been adopted.

1. Restatement standards in looking at reasonable alternatives:

a. Advantages/disadvantages of current and proposed

alternative design

b. magnitude and probability of the foreseeable risks

of harm

c. the instructions and warnings accompanying the

product

d. the nature and strength of consumer expectations

regarding the product including expectations arising

from product portrayal and marketing

2. Note: If the Alternative design would have a higher cost

without a sufficient reduction in risk, or if the purpose of







79

Torts Brunell Fall 2006 80





the product is lost by the alternative design, then obviously

not a reasonable alternative and manufacturer not liable for

not adopting the alternative.

iii. Conversely, some hold that plaintiff does not need to show a

reasonable alternative. If no reasonable alternative exists, but the

risks still outweigh the benefits of the product, then still liable (an

unavoidably unsafe product)

1. So if such a dangerous product that should not be on the

market because of the abnormally high risk, then going to

be liable for any damage

a. Exploding cigar

2. O’Brien v Muskin pg 750: Plaintiff injured when dove into

above ground pool and hit head on bottom. Plaintiff says

that using vinyl is unsafe, risks outweigh the utility, and

that should be held liable even though no known

(reasonable) alternative exists.

a. H: Plaintiff does not need to show a reasonable

alternative. If shows that the risk outweighs the

utility, then whole product is unnecessary and will

be held liable.

iv. Note: Products such as liquor and guns are not considered design

defects because making them “safer” would materially change the

product and make them less appealing to the consumer (no

“reasonable” alternative in terms of products intended use)

d. Also exists a Consumer expectations standard (2nd Restatement): Product

must conform to consumers’ expectations. More like strict liability

(foreseability of harm not needed).

i. Issues is whether or not products performs to a consumer’s

expectations of how it is supposed to perform

ii. Used for implied warranty and sometimes for design defect (those

following 2nd restatement)

iii. Cyanide poison slipped in Tylenol

1. Consumer expectation: liable since don’t expect cyanide in

tylenol

2. Risk-Utility: Not liable since the risk is so sleight and

burden (harm to utility) is large

IV. Warning Defect

a. All products (even properly designed, manufactured ones) must warn

against all non-obvious risks of use and foreseeable risks of misuse that

may occur

i. Must warn against inherent risks that one would reasonably

consider as material in their decision whether or not to use the

product

1. consider: extent of risk, likelihood that it will arise, users

understanding of the danger, the means available to convey

warning







80

Torts Brunell Fall 2006 81





a. So a balancing of those factors to determine if the

risks should or should not be warned against. A

weighing of the factors, essentially a hand rule that

manufactures decide whether or not to warn against

risk based on likelihood and severity (so whether or

not user would want to know).

b. In other words, must warn or give instructions

against reasonably foreseeable harms (a negligence

based risk-utility standard). Weigh the risks of

harm (severity, likelihood) with the utility (cost of

giving warning and likelihood it will be heeded)

2. Do not need to warn against open and obvious dangers

a. But plaintiff can still show that should have adopted

a reasonable alternative (design defect)

3. Note: longer warnings are not necessarily better

ii. Note: Some use more of a strict liability standard: warn against all

knowable risks, no matter how slight, and let the consumer decide

whether the risk is worth use (as opposed to the risk-utility

standard in which the responsibility is on the manufacturer to

reasonably decide what risks need to be warned against)

b. If the harm was not known, and should not reasonably have been known,

then no warning defect (“State of the art”)

i. Anderson v Owens-Corning pg 757: Plaintiff an electrician and got

lung problems when exposed to defendants asbestos. Sues Owens

corning for failure to warn of harm.

1. H: Was not a harm they knew about (or should have) since

the whole scientific community did not know about the

harm of asbestos at that point

2. R: Unfair to hold them liable for harms/risks can’t know

about. Would lead to companies warning about everything

imaginable and would burry true, foreseeable risks (lessen

impact to consumer). Also, if could be held liable for any

harm they didn’t warn about (even unforeseeable ones)

then plaintiff would always win a suit, no matter the injury

3. Note: could still sue under a defective design theory (risks

outweigh utility)

c. An adequate warning does not protect against design or manufacturing

defects

d. Determining adequacy of warning is a jury question

i. Must be adequate. Look at content, intensity of expression and

comprehensibility. No easy answer

e. Defense can argue that an adequate warning would have been ignored

anyway by plaintiff (i.e. no causation)

i. But a legal presumption that an adequate warning would have been

heeded by plaintiff and defense has burden of proving otherwise









81

Torts Brunell Fall 2006 82





f. Pelman v Mcdonald’s: Sue Mcdonald’s for making them fat on failure to

warning and defective design theories

i. Failure to warn: Danger was open and obvious

ii. Design Defect:

1. applies a consumer expectation standard: consumers expect

that these attributes exist in the products (know they are

bad for them) and choose to eat them anyway. Not being

forced to eat it. Any product can be bad for you if used

inappropriately (butter, whisky) so will not hold them liable

for using product for unintended purpose

a. IF can show that it was intended to be eaten that

much, then may have a case

b. Also argument that not really “consumer

expectation” because expect a regular friend

chicken piece and really getting a “mcFrankenstein”

of ingredients

2. If applied a risk-utility analysis, could argue that the risk

outweighs the utility completely and so products should not

be used at all

a. Or that they should use a reasonable alternative (i.e.

healthier choices, healthier cooking methods)

b. McDonald’s could counter by saying that would get

rid of the “intended purpose” of product…people

want the unhealthy food

3. no proof of proximate causation (that the food made them

fat)



D) Other Product Defect Issues

I. Proof

a. Circumstantial evidence can be used to prove product defect

i. Friedman v General Motors: Plaintiff car started and went out of

control. Indicator was in the “drive” position.

1. H: can show the fact that it was in “drive” position after the

crash that it was during the crash too.

b. Res Ipsa can be applied to prove product defects if:

i. Incident was of kind that ordinarily occurs as a result of defect

ii. Other possible causes ruled out as unlikely

1. non-defect causes

2. Defects arising after sale

II. Defenses – Plaintiff’s actions

a. Failure to discover the risk: will not be held against the plaintiff

i. Plaintiff does not have a duty of care to look for and discover

defective products (reasonable to assume products are not

defective)









82

Torts Brunell Fall 2006 83





1. i.e. no reduction in recovery if plaintiff doesn’t discover the

piece of glass negligently placed in his tuna

b. Contributory/comparative negligence

i. Plaintiff’s negligent conduct will generally be taken into

consideration (and reduced from plaintiff’s recovery) if 1)

negligently activity increases risk or 2) plaintiff assumes the risk

or 3) ignores safety precautions

1. Plaintiff negligently engages in a high risk activity that

combines with the defect to create the accident (or make it

worse)

a. Daly v General motors: Plaintiff injured when falls

out of car due to defective door latch. He was also

drunk and not wearing his seat belt

i. H: Plaintiff’s comparative negligence will

be considered and reduce recovery

dependent on what percentage it contributed

to the accident. Plaintiff still doesn’t need to

prove negligence of manufacturer (strict

liability for manufacture defect)

ii. R: Will not reduce incentive of manufacturer

to produce safe products cause can’t predict

when injury will result from comparative

negligence and when occurs form no

negligence at all

2. If know of defectiveness and unreasonably assume risk

anyway, then will hold the plaintiff

comparatively/contributorily at fault

a. Plaintiff sees his car smoke, stops and looks under

hood and sees water hose has ruptured (assume

defect). Knows that this is bad and is dangerous,

but decides to keep driving for 100 miles on a

joyride for no reason

3. Plaintiff who consciously fails to use an available safety

device will have his recovery reduced

a. Slicer comes with hand guard that is detachable for

easy cleaning. Clearly says not to use without

guard, but he does anyway because finds it easier.

Injures hand and sues under defective design to

allow for removal of safety feature.

i. Note: This might be considered “misuse” of

the product and bar his recovery completely.

See below

c. Misuse of the product

i. Misuse is just a description of facts and may lead to one of 3 legal

consequences:

1. comparative negligence: reduction in recovery







83

Torts Brunell Fall 2006 84





a. See above examples

2. product not defective at all and plaintiff just used it wrong:

no recovery

a. If plaintiff’s misuse is unforeseeable, then not going

to be liable for a design defect (must not protect

against unforeseeable misuses)

b. But, products must be safe against foreseeable

misuses (so plaintiff would be able to recover)

i. Ford Motor v Matthews: Manufacturer must

protect against reasonably foreseeable

misues, as when tractor operator negligently

misstarted tractor in gear (or that a car

owner might use car to speed)

3. defect was not the proximate cause of the injury: no

recovery

a. Plaintiffs or someone else’s misuse may cause it to

be a superseding cause

III. Third party liability

a. Other Suppliers (not manufacturer, direct seller)

i. Can sue any one in the direct chain of sale (i.e. middlemen and

retailers)

1. Middlemen will put pressure on manufacturer to make safer

product

ii. Will not hold suppliers who have no responsibility for the defect or

ability to affect safer products liable for product defects

1. Peterson v Lou Bachrodt Chevy: Plaintiff hit by a used car

with defective breaks. Sues the used car dealer who sold

the car. Not held to strict liability of defect since not the

cause of the defect and no relation to original manufacture

(no deterrence)

a. Note: could be held to a negligence claim if the

defect would have been discovered by a reasonable

inspection

b. Services

i. If product incorporated into service, and charge separately for

product, then may be strictly liable

1. Uses a defective hair care product during salon service

ii. More it is in essence a sale of a product (as oppose to service)

more likely will be held liable for product defect

iii. Not held to be the case for health professionals; they won’t be held

strictly liable for product defect

1. Hector v Cedars-Sinai: Defendant not strictly liable for the

defect of an inserted pacemaker because do not play an

integral role in production/marketing and no ability to

pressure for safer products. Selling a service, not the

product.







84

Torts Brunell Fall 2006 85





a. Disagree with no ability to make it safer





PRODUCTS LIABILITY CAUSES OF ACTION



Negligence Express Implied Strict Liability

Warranty Warranty

Negligence Yes No No Depends

required?

Test for liability Reasonable False Not fit for "Defective"

manufacturer/ representation purpose sold (Consumer

Hand rule (Contract) (consumer Expectations)

expectations)

(manufacturing,

design, warning)

Privity w/ mfg. No No No No

required?

Reliance No Yes Assumed Warning defect?

required?

Bystander If foreseeable No Depends on If foreseeable

plaintiff? version of UCC-



Generally no

Disclaimer of No If known Prima facie No

personal unconscionable

injuries under UCC (No)

allowed?

Property Yes Yes Depends on Yes

damages UCC

available?

Notice No Generally yes Generally yes No

requirements?

Comparative Yes No No Yes

negligence

defense









85

Torts Brunell Fall 2006 86





8– DAMAGES

A) Generally



I. Three types of damages

a. Nominal: Small sum to vindicate rights, cover costs and make it a matter

of record. Trivial amount

b. Compensatory: Represent closes approximation to actual harm suffered;

make the plaintiff whole

i. Can only reward monetary sums, even for non economic losses

c. Punitive: To punish and deter

i. Look at characteristics of the defendants behavior (not anything to

do with plaintiff)

II. Damages are same for Intentional torts, negligence, strict liability

III. Must have some sort of physical harm

a. But then can recover for all sorts of damages may be recovered

(economic, pain and suffering, loss of bodily functions)





B) Personal Injury



I. Actual injury required – No Nominal Damages

a. Therefore no nominal damages (compare to trespass, no actual damage

need be proven)

II. Compensatory Damages for Personal Injury

a. Breakdown of recoverable compensatory damages

i. Non-Economic losses

1. Past physical/mental pain

a. Amount of pain suffered directly as a result of the

tort

2. Future physical/mental pain

a. Pain will suffer in future

b. note: loss of enjoyment of life sometimes figured

separately, sometimes in here

3. Permanent disability and disfigurement

a. Put into monetary terms the compensation due for

disfigurements and disabilities (actual

handicap/lowered functionality due to bodily loss)

ii. Economic Losses

1. Past and future medical expenses

a. Cost of actual medical procedures/expenses

2. Lost wages

a. Work had to miss as a result of injury (temporary

injury)

3. Loss of future earnings







86

Torts Brunell Fall 2006 87





a. Work will not be able to do over lifetime due to

permanent disability

iii. Note: are tax free and jury doesn’t know this so a windfall to

plaintiff

b. Determining non-economic damages

i. Jury can not use passion or prejudice in determination

ii. Judge decides reasonableness of verdict

1. Maximum recovery rule: Judge goes through each type of

recovery (even economic factors) and determines the

maximum amount a reasonable jury could have found. If

the total is greater then what jury found, then will keep the

jury verdict.

a. See Anderson v Sears pg 520

2. “fair range of reasonable compensation” or “Shocks

judicial conscience” test: A general reasonableness

standard

a. See Richardson v Chapman pg 524

iii. Not appropriate to look at past cases to compare damage amounts

iv. May rule an error if jury does not give non-economic damages

v. Reduced life expectancy is generally not compensable (reduced

enjoyment of life is)

vi. Per-diem: Break down suffering to amount per set time frame and

multiply

vii. Why have non-economic losses? Not actually going towards any

economic harm.

1. Probably deterrence rationale and a way for plaintiff to

recover for lawyer fees

c. Determining economic losses (“objective”)

i. Future income: average earning capacity over average working

lifetime

ii. Has some leeway in listening to expert figures (not a precise

mathematical science)

1. Future income: maybe take into consideration some special

talent/ability that would make them likely earn more

2. Medical expenses: can take into account that may be

unplanned expenses due to complications

iii. Get present value of future earnings/medical bills; discount for

interest/inflation rates

1. Inflation-discount method: Inflation rate discounted by

market interest rate

2. Real interest method: Discount by “real interest rate”

3. Total offset method: Assume interest and inflation are

equal (ignore the issue and give full amount)

a. Obviously Plaintiff’s favorite method

iv. Remittitur: Allow choice of plaintiff to accept lesser amount or

will make a new trial







87

Torts Brunell Fall 2006 88





v. Additur: Give defense choice to accept higher amount or be forced

to a new trial

1. Additur has been disallowed federally and in some states

d. Collateral-Source Rule: Court excludes evidence that the injured party has

received benefits/payments from a 3rd party to mitigate damages

i. i.e. insurance payments, government benefits

ii. Tortfeasor is responsible for all damage/harm caused, not the “net

loss” plaintiff suffered.

iii. Therefore, any payment does not reduce the amount a tortfeasor

owes, sometimes resulting in a “windfall” for plaintiff

1. note: however, plaintiff has usually paid or sacrificed in

some way for this 3rd party benefit, so not really windfall.

Also the reason why it is unfair to admit as evidence

2. Montgomery Ward v Anderson pg 540: Plaintiff injured

due to Montgomery Ward’s negligence. She secures a 50%

discount on medical bill but still wants to recover the full

amount.

a. H: She can collect whole amount. Medical bill

discounts recovered by no effort of defendant falls

under collateral source rule

b. R: Innocent plaintiff deserves any windfall, not

negligent party

3. Maybe more about deterrence then a windfall for

defendant. Plaintiff who skillfully avoids negligent action

doesn’t deserve to still recover damages.

4. note: Essentially opposite to contract rule of mitigation of

damages. No moral culpability in contract breach, is in

torts

iv. Does not apply to 3rd party payments made on behalf of the

defendant

e. Duty to Mitigate

i. The plaintiff can not recover for permanent damages if there was a

surgical operation that she could have performed to fix it, if a

reasonable person would have done the surgery

1. factors to consider:

a. Risk involved

b. Probability of success

c. Expenditure of money or effort required

d. Pain in surgery (some jurisdictions)

2. Promotes economic efficiency (maximization of social

wealth)

3. See Zimmerman v Ausland pg 545









88

Torts Brunell Fall 2006 89





C) Property Harm



I. Complete destruction of property/chattel

a. Replace what the property is worth at the time of damage/time of wrong

i. Some exceptions, where can get some recovery for subsequent

value increase: Exchanges (stocks) and commodities (grain)

1. “Rule of highest intermediate value”: Highest value it

increased to from harm to trial (criticized because assume

would have sold it at highest value and rewards delaying

trial)

2. “Highest replacement value rule”: Difference between

value at time learns of conversion and that of could have

replaced it in a reasonable time frame.

b. Find the financial equivalent; what would damaged good have been worth

on open market before injured

i. What it could probably have been sold for, the reasonably highest.

Not what could have sold it for (how low) but how high could he

reasonably have expected to get)

1. Exception to items with special personal value: i.e. family

heirlooms, pictures, clothing, furniture

2. Consider original cost of property, use made of it and

condition at time of wrong

II. Property is Damaged

a. Difference in value from before to after the harm

b. Cost of repairing is admissible but not the determinative factor

i. Can not recover the cost to repair in excess of the worth of the item

III. Temporary deprivation

a. Value of the use by Plaintiff that was deprived

b. Figure out what rental value for period used would be worth



Note: Consequential damages may be recovered if proximately caused (i.e. cost to

repossess possession)





D) Punitive Damages

I. Punitive Damages: Recovery of an additional sum, beyond compensation for

harm plaintiff suffered, awarded to punish and deter defendant (and others)

from committing the same action

a. Issue of fact based on defendant’s motive and conduct

i. Consider defendant’s acts, nature/extent of harm, duration of

conduct, deterrence and even wealth of the defendant (which can’t

be uses in compensatory damage calculations)

b. Need to prove by clear and convincing evidence (higher standard)

c. Should there be civil punitive damages?







89

Torts Brunell Fall 2006 90





i. Yes: Criminal fines not enough, discourages evil motives, allows

recovery for plaintiffs legal fees, channels revenge in peaceful

manner, allows cases with low monetary damage but extreme

outrageous conduct to go to trial and it limits defendants ability to

profit from fraud that escaped detection (Serves as deterrence since

need to consider that cost) (i.e. don’t know how many people hotel

lied to about the bedbug bites and didn’t have to refund but got $)

ii. No: Should be paid to the gov (if anyone), take care of it by

criminal fines and should have procedural safeguards of criminal

trials

d. Should corporations be liable for punitive damages?

i. Stockholders end up paying. Corporation not the wrongdoer,

individuals are (hold them liable). Maybe still deterrence

argument

II. No right for plaintiff to collect punitive damages

a. States have free range to relocate punitive damage funds or completely

abolish

i. Punitive damages are there to deter/punish defendant and no actual

reason why plaintiff should get the windfall benefit

1. Seems particular unfair since subsequent lawsuits have to

take into consideration punitive damages already paid, so

the 1st to sue gets the windfall and others don’t

b. Cheathem v Pohle pg 551: State statute grants plaintiff only 25% of

punitive damages and rest go to government victim’s fund. Court upholds

because punitive damages are just a windfall and no reason why plaintiff

should be the one to get them

i. Why not have 100% go to state then? No incentive for plaintiff to

bring a punitive damage claim then, no incentive to bring claims

with really low actual (compensatory) damage but extremely

outrageous conduct, give plaintiff way to recover atty fees

III. Some states say need finding of compensatory damages to recover punitive

damages, some say only need nominal damages (but need some sort of harm)

a. Malicious activity that does not result in comprehensible harm is not

recoverable

IV. Determining Reasonableness of Punitive Damages

a. Three part test

i. Degree of reprehensibility conduct of the defendant

1. consider: physical vs economic, indifference and careless

disregard, financially vulnerable plaintiff, if repeated

action, intentional/malice/fraud vs mere accident.

2. Only about defendant’s culpability and moral

reprehensibility

ii. Disparity between actual or potential harm suffered by the plaintiff

and the punitive damage award

1. Would likely strike down a 10-1 (or greater) ratio to

comparative damages







90

Torts Brunell Fall 2006 91





2. Would only allow higher if there was little actual

compensatory damages but extremely outrageous conduct

(and should be lower ratio if high compensatory)

iii. Disparity between the punitive damages awarded by the jury and

the civil penalties authorized/imposed by comparable cases

1. Compare to criminal penalties

b. State Farm v Campbell pg 556: Due process of constitution allows for

overturning of state’s finding of punitive damages (defendants have a right

to be subjected to fair punishment and have prior knowledge of amount

can be liable for). Also do not allow the state to award punitive damages

for the defendant’s actions to plaintiffs in other states

V. Vicariously liable for punitive damages: only if the principal

authorized/ratified the act, was reckless in employing the agent or the agent

was employed in managerial position and acting in the scope of employment



E) Wrongful Death and Survivor Actions

I. Wrongful Death: Payment to beneficiaries for their loss due to the death of a

financial supporter

a. Economic (pecuniary) losses:

i. financial support lost

1. Consider how much decedent would have earned and

subtract how much would have spent on self

ii. monetary value of services provided (education, training,

housewife)

b. Non-economic (non-pecuniary) losses: loss of consortium (care,

companionship, affection, sex)

i. Note: Can defend against loss of consortium claims by proving

things such as decedent being a poor parent in a loveless/sexless

marriage

c. Proper beneficiaries: Only proper beneficiaries may receive compensation

for wrongful death (Spouses, children, sometimes parents of dead child)

II. Survival Action: The harm (pain and suffering) that the deceased felt before

he died

a. Consciuous pain and suffering of the deceased before died, medical bills

before death

i. Note: so if dies quickly, then will be less (if any) survival action

III. Controversial system that makes economic sense to kill the poorer, family-less

person

a. Jeff : $500K/yr and has no family

b. Bill: $500K/yr and has wife. Has life insurance

c. Secretary: $40K/yr and lots of dependents (including disabled child). No

life insurance

d. Housewife: no income

i. Jeff-no one gets $









91

Torts Brunell Fall 2006 92





ii. Bill: $500K/yr for bill’s estimated lifetime (minus what he would

have spent on himself), life insurance money, loss of consortium

and services provided

iii. Secretary: $40K/yr (minus spent on herself), no life insurance

money, loss of consortium and services provided

iv. Housewife: husband gets economic value of service performed and

loss of consortium

v. Note: so killing Jeff or Secretary as opposed to Bill leads to a huge

difference in payment. Secretary’s beneficiaries actually needs the

most $ but does not get it

th

IV. Sept 11 victim compensation fund

a. Fixed amount for non-pecuniary wrongful death and for survival action

pain and suffering

b. Determine economic losses after collateral sources and taxes (as opposed

to common law, since this is a gov. payout)

i. Required a special appeal to recover income over 98th percentile

ii. Schneider case argues that this is an unfair cap and should be able

to recover the full amount of husband’s salary, eventhough was

extremely high

1. is point to keep people as rich as they would have been

(through a tort standard of recovery) or to give them

enough to not hit financial hardships

c. Why not funds for victims of other disasters?;`

i. Popular thing with voters?

ii. Public Demand?

iii. Quick and easy way to respond to a massive tragedy?

iv. Shielding a major industry?

1. But would they have actually collected anyway? Airlines

would have been shielded through bankruptcy









92

Torts Brunell Fall 2006 93





Table of Contents

I. Intentional Torts

a. Intent…1

b. Battery…2

c. Assault…3

d. False Imprisonment…4

e. Intentional Infliction of Emotional Distress…5

i. Direct IIED…6

ii. Indirect (bystander) IIED…6

f. Trespass To Land…7

g. Trespass To Chattels…8

h. Conversion…9

i. Defenses/Privileges

i. Consent…10

1. Implied…10

2. Scope…10

3. Mistake…11

ii. Self Defense…12

iii. Defense of Others…13

iv. Defense of property/Chattels…13

1. Recapture of Chattels…13

v. Necessity…14

1. Public necessity…14

2. Private Necessity…15

vi. Other Defenses

1. Authority of law…16

2. Discipline…16

3. Justification…16

II. Negligence

a. Generally

i. Elements for Cause of Action…17

ii. Background…17

b. Breach of Duty

i. Unreasonable Risk…17

1. Generally…17

2. Hand Rule…18

ii. Standard of Care…19

1. The Reasonable Person…19

a. CHART…19

b.Physical/Mental Attributes…20, …20

c. Children…21

d.Knowledge…21

e. Emergency …22

f. Proof: Customs…22

2. Malpractice (pro standard)…23





93

Torts Brunell Fall 2006 94





a. Informed Consent…24

iii. Negligence Per Se…25

iv. Circumstantial Evidence (proof)…27

v. Res Ipsa Loquitur (proof)…28

1. multiple defendants….30

c. Causation

i. “But For” Causation…31

1. Proof of Causation…31

a. Increased Probability…32

b. Loss of Chance…32

c. Scientific Evidence…33

2. Concurrent Causes…33

a. Two “but for”…33

b.Neither “but for”…33

3. Determining Defendant…34

a. Market Share Liability…35

ii. Proximate Causation…36

1. CHART…36

2. Type/Manner…36

3. Direct Causation View…37

4. Foreseeability view…37

5. Unforeseen Plaintiff….38

6. Extent of Injury…39

iii. Intervening Causes…39

1. CHART…39

2. 3rd party’s negligence…40

3. 3rd Party’s Criminal Act/I tort…40

4. Acts of God…41

5. Suicide…41

6. Rescue Doctrine…41

iv. Public Policy…42

d. Duty of Care…42

i. Duty/Failure to Act…43

1. Duty to control 3rd persons…44

ii. Privity of Contract

1. Nonfeasence…45

2. Misfeasence…46

3. Modern Trend…47

iii. Pure Economic Loss (no impact)…48

iv. Negligent Infliction of Emotional Distress…48

1. Direct…48

2. Bystander…49

3. Compare to IIED…49

e. Policy arguments…50

III. Defenses to Negligence

a. Plaintiff’s Conduct







94

Torts Brunell Fall 2006 95





i. Contributory Negligence…51

ii. Comparative Negligence…51

1. Pure vs Modified…51

iii. Assumption of Risk…52

1. Express…52

2. Implied…53

a. Compare to Contributory Negligence…54

b. In Comparative jurisdictions…54

b. Statute Of Limitations/Repose

i. Statute of Limitations…56

ii. Statute of Repose…57

IV. Joint Tortfeasors

a. Joint Liability…57

i. CHART…57

ii. Divisible harms (Indep. toertfeasors)…57

1. Successive Injuries…58

iii. Indivisible Harm…58

iv. Acting In concert…59

b. Satisfaction and Release

i. Satisfaction…60

ii. Release…60

c. Contribution…61

i. Settlement…62

d. Indemnity…64

V. Vicarious Liability…64

a. Relationships…64

i. CHART…64

ii. Employer/Employee…65

iii. Independent Contractors…66

iv. Joint Enterprise…67

v. Bailment…67

b. Imputed Contributory Negligence…68

VI. Strict Liability

a. Generally…69

b. Animals…69

c. Land Use…70

d. Abnormally Dangerous Activity…71

i. Strict Liability Development…72

e. Limitations/Defenses…72

i. Scope…72

ii. Acts of God…72

iii. Contributory/Comparative Negligence…72

VII. Products Liability…73

a. Negligence…73

b. Warranty…74

i. Express…74







95

Torts Brunell Fall 2006 96





ii. Implied…75

c. Strict Liability/Product Defect…76

1. 2nd/3rd Restatement/Chart…77

ii. Manufacturing Defect…78

iii. Design Defect…78

1. Reasonable Alternative…79

iv. Warning Defect…80

v. Other Issues

1. Proof…82

2. Defenses…82

a. Failure to discover risk…82

b.Contributory/comparative negligence…83

c. Misuse of product…83

3. Third Party Liability…84

d. CHART…85

VIII. Damages…86

a. Personal Injury…86

i. Nominal…86

ii. Compensatory…86

1. Economic and non-economic

iii. Collateral Source Rule…88

iv. Duty to mitigate…88

b. Property Harm…89

c. Punitive Damages…89

d. Wrongful Death and Survivor Actions…91

IX. Products Liability Review Questions





Sections



Case Names



Restatements



Legal Words



Hypos/Examples:



Pros/Cons/Policy:



Holding/Rule/Important:



Personal Opinion:



Unsure if correct









96

Torts Brunell Fall 2006 97





Product Liability:

2nd restatement: Unreasonably Dangerous

Negligence: Hand Rule (std 4 parts: duty, breach, causation, Damages)

Express Warranty: Contract Theory

Implied Warranty: Consumer Expectations (Strict liability)

Strict Liability: Consumer Expectations



3rd restatement:

-Manufacturer: Strict Liability

-Design: Risk Utility

-Warning: Negligence



Under 3rd, would have to choose one of those types (manuf, design, warning) and the

theory behind them and not the 2nd’s theories of neg, war, cons expec tests.







Products Liability Study Questions

1. What are the rationales for strict liability for injuries caused by “defective”

products?



-spread the risk to who can better bear the cost (in insurance type

argument), substitute for negligence when hard to prove how it happened

(sort of like res ipsa), activity level argument (lowers bad products being

on market: either will reduce the amount that they act or pass cost on to

consumer), greater accuracy, Research incentives, between two innocents

the one who caused the harm should be liable…



Probably not deterrence (because wouldn’t take a greater burden then risk)



2. Under what theories may a products liability claim be brought other than

strict products liability in tort? What are the elements of such theories?

How do they differ from requirements of strict liability claim?



Negligence (standard), warranties (implied, express)



3. What is the test for determining whether a product is “defective” under the

Second Restatement? How does this test differ from the approach of the

Third Restatement?



2nd Consumer expectations test (whether it is unreasonably dangerous),

warranty or negligence, 3rd breaks into categories based on defect type.



4. To what extent is products liability actually strict? For manufacturing

defects? For design defects? For warning defects?







97

Torts Brunell Fall 2006 98





Completely for the manuf and not for design and warning



5. What is the test for determining whether a product has a manufacturing

defect?



Strict Liability (different from the other products of the same type)



6. What are the tests for determining whether a product has a design defect?



Risk-Utility (with or w/out RAD) and old way was consumer expectations



7. What factors go into the “risk utility” analysis?



O”brien Test



8. What does “reasonable alternative design” mean and is it an absolute

requirement for proving a defective design?



According to 3rd restatement it is (Need RAD), but most don’t (don’t need

to show RAD to prove case if it is manifestly unreaosnable). A better

design that would be effective



9. How is the “obviousness of the danger” relevant to whether a design is

defective? To whether a warning is defective?



CE test: If a product is inherently dangerous, then consumer expectation is

that it will be dangerous so not a design defect (not unreasonably

dangerous). Under 3rd restatement, design defect would fit into consumer-

utility test. For warning, if open and obvious then don’t need to warn

against it.



10. To what extent does an adequate warning preclude a design defect claim?

can’t get out of design defect by warning against it



11. How is “state of the art” relevant to design defect or warning defect claim?



Proof (evidence) either way of claim (that there was or was not an

alternative design in design defect). about knowledge in warning defect,

the foreseeability of the risk. If have knowledge of harm then should have

warned about it and if it wasn’t a known harm in scientific community,

than can’t be expected to warn about it.



12. Can a design defect or warning defect claim be brought with respect to

risks that were not foreseeable by the manufacturer?









98

Torts Brunell Fall 2006 99





Definitely not for warning. Probably not for design either since it is

unforeseeable makes it not negligent (no duty)



13. What are the factors for determining whether a warning is defective (or

adequate)?



Packaging/literature Fails to warn of unexpected dangers (risks) from

foreseeable misuses or non obvious uses

When is warning necessary? Extent of risk, likelihood that too many will

decrease effectiveness, likelihood of risk, means available to convey

warning



Things to consider if it is adequate: Scope of danger/Specifity, Clarity,

physical aspects of warning, intensity, degree of harm, likely

understanding of danger,



14. Does the doctrine of res ipsa loquitur apply to strict products liability? If

so, how?



Yes. If the incident is the kind that normally does not occurs without a

defect and other likely causes are ruled out (more likely then not) (i.e. my

brand new tv blew up). Will go to jury (it’s evidence but not complete

proof). For Manufacturing and design defects.



15. What must a plaintiff prove to recover under strict products liability in

addition to the fact that the product was defective when purchased?



(Sale and Defect), Defect existed when sold, Causation, Damages



16. How does a plaintiff prove causation in a warning defect case?



But for the warning, the injury would not have occurred. Presumption that

plaintiff would heed warning if given (not have used/misued product if

warned)



17. To what extent can a manufacturer disclaim liability for personal injuries

caused by a product defect?



No, except for maybe express warranties somehow



18. What are the affirmative defenses to a strict products liability claim?



Comparative Negligence, Unforeseeable Misuse of product, it is a service

(not a product), just a 3rd party outside of distribution chain (didn’t cause a

defect)

-3rd parties like used car dealers do not have ability to affect







99

Torts Brunell Fall 2006 100





pressure on manufacture



19. What is the rationale for allowing a comparative negligence defense?

How does it work in practice? Is comparative negligence a defense to

breach of warranty claim?



Won’t undermine purpose of strict liability (still going to be held liable for

people who aren’t negligent). Plaintiff’s recovery will be reduced by

amount at fault. NO to breach of warranty



20. What is product misuse and how does it relate to the elements of

plaintiff’s claim or the defendant’s defenses? Does product misuse by the

plaintiff preclude the claim?



Liable for foreseeable misuses of the products. Only if the misuses is

unforeseeable is it a defense



21. To what extent does the manufacturer’s compliance with a state or federal

safety standard bar plaintiff’s claim? Does non-compliance prove that the

product is defective?





22. To what extent are retailers and other distributors strictly liable for defects

that they do not cause? What is the justification for holding them strictly

liable?



Those within distribution chain are liable



23. To what extent are sellers of used products subject to strict products

liability?



Not liable (Peterson case)



24. To what extent are sellers of services subject to strict products liability?



More liable if substantially the sale of a product and more likely if billed

separately









100