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Introduction - Penn Law

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Introduction - Penn Law Powered By Docstoc
					                                                              Torts
                                               Professor Allen-Castellitto
                                                       Fall 2002


                                                   Table of Contents
Introduction ......................................................................................................................... 2
      When Unintended Injury Should Result in Liability - ................................................ 5
Negligence .......................................................................................................................... 7
      The Standard of Care – ............................................................................................... 7
      The Reasonable Person Standard: ............................................................................... 8
   The Roles of Judge and Jury ......................................................................................... 10
      Custom in Negligence Cases – ................................................................................. 10
      Role of Statutes – ...................................................................................................... 11
   Proof of Negligence ...................................................................................................... 12
      Concept of Res Ipsa Loquitur - ................................................................................. 13
   Medical Malpractice ..................................................................................................... 14
      Expert Witnesses - .................................................................................................... 14
      Informed Consent –................................................................................................... 16
The Duty Requirement: Physical Injuries ......................................................................... 16
   Obligations to Others .................................................................................................... 17
   Obligations to Protect a Third Party ............................................................................. 20
      Negligent Entrustment - ............................................................................................ 21
      Alcohol-Related Injuries -......................................................................................... 22
   Landowners and Occupiers ........................................................................................... 22
   Intrafamily Duties ......................................................................................................... 25
   Duty of Governmental Entities ..................................................................................... 26
      Federal Immunity: ..................................................................................................... 26
      Municipal and State Liability: .................................................................................. 28
The Duty Requirement: Nonphysical Harm ..................................................................... 30
   Emotional Harm (Negligent Infliction of) .................................................................... 30
   Economic Harm (Negligent Infliction of)..................................................................... 33
   Interference With Procreation and End-of-Life Decisions ........................................... 35
Causation .......................................................................................................................... 36
   Cause in Fact ................................................................................................................. 36
      Loss-of-Chance Theory: ........................................................................................... 38
      Introduction to Joint and Several Liability: .............................................................. 38
      Multiple Causes: ....................................................................................................... 41
      The Special Case of Toxic Harms: ........................................................................... 41
   Proximate Cause ........................................................................................................... 42
      Unexpected Harm: .................................................................................................... 42
      Unexpected Manner: ................................................................................................. 43
      Unexpected Victim: .................................................................................................. 44
Defenses ............................................................................................................................ 44
   The Plaintiff’s Fault ...................................................................................................... 44
      Contributory Negligence:.......................................................................................... 45


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      Comparative Negligence:.......................................................................................... 46
      Avoidable Consequences: ......................................................................................... 46
   Assumption of Risk....................................................................................................... 47
      Express Agreements: ................................................................................................ 47
      Implied Assumption of Risk: .................................................................................... 48
      Preemption Defense: ................................................................................................. 49
Intentional Torts ................................................................................................................ 49
   Intent ............................................................................................................................. 50
   Battery ........................................................................................................................... 50
   Assault........................................................................................................................... 52
   False Imprisonment ....................................................................................................... 52
   Intentional Infliction of Emotional Distress ................................................................. 53
   Defenses to Intentional Torts ........................................................................................ 55
Strict Liability ................................................................................................................... 57
   Animals ......................................................................................................................... 57
   Abnormally Dangerous Activities ................................................................................ 58
   Five Major Arguments for Strict Liability (King article) ............................................. 60
Liability for Defective Products ....................................................................................... 60
   Negligence .................................................................................................................... 60
   Breach of Warranty ....................................................................................................... 61
   Strict Tort Liability ....................................................................................................... 62
      Establishment of Strict Liability: .............................................................................. 62
      Codification of Strict Liability: ................................................................................. 62
      Limitations of Strict Liability: .................................................................................. 64
      Manufacturing Defects: ............................................................................................ 64
      Design Defects: ......................................................................................................... 64
      Safety Instructions and Warnings: ............................................................................ 66
   Defenses to Defective Product Liability ....................................................................... 68
   Work-related Injuries .................................................................................................... 68
   Only Economic Harm ................................................................................................... 70
Trespass and Nuisance ...................................................................................................... 71
   Trespass......................................................................................................................... 71
   Nuisance ........................................................................................................................ 72
Damages............................................................................................................................ 73
   Compensatory Damages ............................................................................................... 73
   Punitive Damages ......................................................................................................... 74
   Insurance ....................................................................................................................... 74
Alternatives to Tort Liability ............................................................................................ 76


                                                        Introduction

    The primary concern of tort law is whether one whose actions harm another should be
     required to pay compensation for the harm done.
    Tort law helps reimburse people for damages who otherwise would not have otherwise
     received reimbursement.



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Three Areas of Tort Law:
1. Intentional Torts – the person has knowingly caused the injury
        One must plead the predetermined sort of injury (battery, assault, trespass, emotional
            distress, etc…). Must use the prescribed categories to prevail.
        Covers physical injuries, mental injuries, injuries to property are just as tortuous as
            bodily harm. Defamation also (telling lie about someone, written slander). Can
            claim as many as you like. No limit.
        Some things are not torts – calling a race by a slanderous name is not a tort. Perhaps
            they create emotional distress, but the courts have not upheld this view. Other
            countries treat them more seriously.
        Ex: dynamite was thrown at a person
2. Negligence –
       its own tort, much time spent as what counts as injury, etc…
       Ex: person left dynamite while going to bathroom
3. Strict Liability –
       Product liability was a major source of strict liability
       Also strict liability for animal causing injuries to person
       People who knowingly undertake high risk are held to strict liability (dynamite)
       Airplane crashes – liable for people killed on ground by falling airplane
       Ex: lighted dynamite caught house on fire and caused neighbor’s house to burn, causing
            injury (not intentional)
*Can combine all these types.

Historical Areas of Tort Law:
        1. Trespass: an intentional tort; trespass with force
        2. Trespass on the Case: Unintentional injury; person did not mean to injure you

U.S. Tort History:
We kept strict liability from common law England.
Trespass on the case doctrine allowed recovery for injury not intentionally done
By 1873, a lot of courts were abandoning the English rule of strict liability, b/c these decisions
    were made at an immature stage of English society. This was when the negligence
    framework was adopted.
Negligence law is premised on the assumption that a certain amount of reasonable risk is good for
    society – too much risk is bad and must be deterred, recompensed, punished.
The American courts have been trying to find what kinds of risk are going to promote values that
    we find important.
Although the courts did shift to a negligence-based regime, they did retain strict liability for some
    activities
        ultra-hazardous like dynamite
        We got really good at making stuff…the average consumer could not figure out how the
             product was made. To protect consumers, strict liability could be used, or res ipsa
             could be used do that manufacturers would have the burden to prove that they made
             their product well.
                 Strict liability was enforced instead of res ipsa, where the manufacturer has the
                      responsibility to be held strictly liable for their products. The burden is on
                      the manufacturer to show that the product was not designed improperly.
                 BUT, this is not complete strict liability because there are defenses…the
                      company can show that the risk that was imposed was reasonable, or that the




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                      consumer misused the product. In a complete strict liability regime, there
                      would be no defense.
        Also there were a few problems where there were a lot of claims…automobile and work-
             related accidents.
                 The blue-collar sector is very vulnerable to accidents.
                 Workers Comp statutes and insurance requirements were adopted so that when
                      you get injured on the job or in an auto accident, insurance or the government
                      pays for your damages. Workers Comp is very predictable…you get
                      compensated for each type of injury
First ½ of 20th century was associated with transition to negligence. Second ½ is associated with
    a more egalitarian standard.
        Gender Equality: Courts are shifting now towards reasonable “person” standards, not
             reasonable “man” standards. Loss of consortium standard has been extended to
             women and children.
        Many torts were eliminated over the past couple decades – you used to be able to sue
             someone for rivaling your love for wife.
        Departure from status as a source of duty: your recovery for damages no longer is
             determined by your status as a person (invitee, etc…), now people are treated more
             equally
        The common carrier rule was abandoned, now these industries are just treated under the
             reasonableness standard.
Tort law is an effort of an evolving society that wants to capitalize on the modern achievements
    of science, but wants to protect those that are harmed by this movement.
Tort law scholarship areas:
        Lots of writing about negligence vs. strict liability and justice vs. efficiency
        Tort reform – punitive damages, capping pain and suffering damage awards
        Administration of mass tort litigation (asbestos, tobacco, agent orange)
        Do we need tort law? Perhaps people could file claims with the government.
        Gender issues – are women as likely to succeed in tort actions than a man?


Goals of Tort Law:
1. Compensation – paying back the plaintiff (lost wages, medical expenses, pain and suffering)
2. Deterrence – paying damages helps to protect consumers and discourages risky conduct.
3. Punishment/Retribution – tort law is a punishment, people feel as though they have done
   something wrong, the plaintiff feels that the defendant has been punished for the wrong they
   have committed
4. Shifts Costs – tort law functions to shift costs to those who should and/or can pay; also can
   spread costs to all contributors to the insurance pool

Proximate Cause, Radius of Danger –
Rule:
   1. Negligence is not actionable unless it involves the invasion of a legally protected interest,
       the violation of a right.
   2. If the defendant would have observed a duty to the plaintiff that was owed to the plaintiff
       and thus prevented the accident, the defendant would be negligent.
   3. The “eye of vigilance” must perceive the risk of damage.
   4. Dissent: There must be a direct connection between the injury and the cause - damages
       can be so connected to the negligence that the latter are said to be the proximate cause of
       the former



                                                -4-
        Helen Palsgraf (respondent) v. The Long Island Railroad Company (appellant), Court
           of Appeals of New York, May 1928
               Facts: Plaintiff passenger waiting for train on platform when another train came
                   into station. Two men were running for train while it was in motion, one
                   made the train and the other appeared unsteady, so the RR employees helped
                   the passenger get on the train. While being helped, the passenger dropped a
                   nondescript bundle he was carrying under his arm. Although unknowing to
                   anyone just looking at the bundle, the bundle contained explosive fireworks
                   which exploded when dropped. The explosion caused a large scale to fall
                   onto the plaintiff causing severe injuries and hence her suit for recovery of
                   damages.
               Dissent (Andrews): Because the act of the defendant’s employees was in itself
                   negligent, then all the actions caused by the action are the responsibility of
                   the wrongdoer. The action is wrongful towards not only those within the
                   radius of danger but also those with the possibility of being there, the public
                   at large. In this case the damages are so connected to the negligence that the
                   latter are said to be the proximate cause of the former. There must be a
                   direct connection, which does exist in this case. Injury in some form was
                   most probable.

When Unintended Injury Should Result in Liability -
Rule: People with known mental and physical illnesses are generally held liable for their actions –
   to prevent some from doing unsafe things.
        Liability Standards Through Time:
                 18th Century: Common-law based
                 19th Century: Negligence-based
                 20th Century: Strict Product Liability Standards
        Hammontree (appellant, plaintiff) v. Jenner (defendant, respondent), Court of Appeal of
            CA, 1971
                 Facts: Plaintiff owns a bicycle shop with her husband. A car driven by the
                      defendant is driven into the shop causing injuries to the plaintiff and damage
                      to shop. Defendant claims to be unconscious during wreck due to epileptic
                      seizure. He does not recall any of the events of the wreck until he was being
                      removed from the car afterwards. Defendant knows no other reason for
                      accident other than seizure, which he was taking medication for and was
                      regularly seeing a physician. The driver was cleared to be able to drive
                      doctor who thought the medication would be able to control the seizures.
                 D Application of Product Liability: New product liability standards allow strict
                      liability to be imposed against a manufacturer when a product defect harms a
                      purchaser of the product. This is analogous to the automobile accident in
                      that the driver was the only person who could know what his ailment could
                      have done while driving a car (they are the only ones that know the risk),
                      thus the liability should be predicated on strict liability. For a product, one
                      should not have to inspect the product before usage, and the common
                      bystander should not always be worried about a random car hitting them.
                 Rule: People with known mental and physical illnesses are generally held liable
                      for their actions – to prevent some from doing unsafe things
                           18th Century: Common-law based
                           19th Century: Negligence-based
                           20th Century: Strict Product Liability Standards



                                                -5-
Vicarious Liability: Respondeat Superior –

   Rule: Birkner criteria for determining whether an employee is acting within or outside the
    objectives of employment:
    1. the employee must be engaged in activities for which the employer has hired the
        employee, not for personal endeavors.
    2. the employee’s conduct must occur within the hours and spatial boundaries of the
        employment.
    3. the employee’s conduct must be motivated, at least in part, by the purpose of serving the
        employer’s interest.
        Christensen (plaintiff, appellant) v. Swanson et al (defendant, respondent), Supreme
            Court of Utah, 1994
                Facts: Swenson is an employee for the Burns corporation (defendant) and was
                    working at the Geneva Steel Plant as a security gate guard. The guards at the
                    gates work continuous 8-hour shifts but occasionally need to take 10-15
                    minute breaks for the restroom and to get meals, which are always eaten on
                    the job. Swenson left her post to get a cup of soup she ordered from the
                    Frontier Café (a local restaurant no more than 250 yards from her gate) via a
                    phone inside her post, alongside which a menu from the restaurant was
                    posted. She intended to return to her post within the 10-15 minute break time
                    that was permitted as a paid break. However, after leaving the Frontier Café,
                    the defendant hit the plaintiff’s motorcycle injuring several people.
                Holding: Reasonable minds could differ as to if Swanson was operating within
                    the scope of her job when the accident occurred, thus summary judgment of
                    the lower court is inappropriate.

   Rule for Independent Contractors:
       o Generally the parent company hiring an independent contractor is not vicariously
            liable for the misdeeds of who it contracts, unless ostensible agency is established.
            Rules for determining ostensible agency (independent contractor situations);
            Restatement (second) of Agency §267: The party asserting ostensible agency must
            prove that:
            The principal, by its conduct
            Caused him or her to reasonably believe that the putative agent was an employee or
                agent of the principal
            That he or she justifiably relied on the appearance of agency
       o Thus one who employs an independent contractor to perform services for another
            which are being accepted in the reasonable belief that the services are being rendered
            by the employer or by his servants, is subject to liability for physical harm caused by
            the negligence o the contractor in supplying such services, to the same extent as
            though the employer were supplying them himself or by his servants.
       o Baptist Memorial Hospital System (defendant, appellant) v. Sampson (plaintiff,
            respondent), Supreme Court of Texas, 1998
                 Facts: Plaintiff sent to ER where she was seen by ER physician, Dr. Zakula.
                     Zakula was negligent in his treatment to plaintiff and she suffered permanent
                     injuries. Signs were also posted in the ER notifying patients that the ER
                     physicians were independent contractors. ER docs bill separately from
                     hospital charges. Sampson also signed a form stating that all physicians at
                     the Hospital are independent contractors.




                                               -6-
                   Holding: P did not produce enough evidence to prove that the Hospital
                    would lead a reasonable person would believe that the ER physicians were
                    hospital employees.


                                          Negligence

Elements of Negligence:
defendant has duty of care to plaintiff
         what duty of care applies? is there a special duty?
         Always apply the default standard (reasonable person standard) when no heightened or
             lessened duty arises
this duty of care has been breached
causation (negligence caused injury)
         cause in fact – actual person creating the damage, can be controversial also
         proximate cause – no intervening cause (another person’s negligence, for example), hard
             to decide
injury was inflicted

Negligence Defined:
   The doing of something which a reasonably prudent person would not do, or the failure to do
        something which a reasonably prudent person would do, under circumstances similar to
        those shown by the evidence.
   It is the failure to use ordinary or reasonable care.


The Standard of Care –
 Ordinary care: the kind and degree of care which prudent and cautious men would use, such
   as is required by the exigency of the case, and such as is necessary to guard against probable
   danger. Burden of proof lies on the P to show the D did not practice ordinary care
        o Holmes: the defendant should have made a choice, if the evil cannot be foreseen,
            then he cannot be held liable. More about the morally right choice to make.
        o Posner: cost-benefit analysis governs negligence – if the cost of accident prevention
            is more than the possible accident, then the precaution should not be taken.
        o Brown (plaintiff, respondent) v. Kendall (defendant, appellant), Supreme Judicial
            Court of MA, 1850
                 Facts: Defendant was amidst the act of breaking up dogs, belonging to both
                    the D and P who were fighting. He was doing this by hitting the hounds with
                    a large stick. While hitting the dogs with the stick, the D hit the P in the eye
                    with the stick, causing severe injury. The D is suing for damages.
                 Holding: The act of breaking up the dogs was a lawful act. In doing so the D
                    did practice ordinary care and unintentionally hit the P in the eye – he did
                    exhibit prudent and cautious behavior
 Duty to adopt all reasonable precautions against injury: There was a duty to adopt all
   reasonable precautions. Only a precaution “not fairly within the area of ordinary provision”
   would not be required. However, facility of protection may impose a duty to protect (if there
   is a way to make the danger less dangerous, then the tortfeasor has a duty to provide that
   precaution).
        o Adams (plaintiff, respondent) v. Bullock (defendant, appellant), Court of Appeals of
            NY, 1919


                                                -7-
                    Facts: The defendant operates a trolley line that utilizes overhead wires. A
                     bridge over the trolley tracks was often used by the community as a shortcut
                     between streets. The plaintiff was playing on the bridge and swinging a long
                     wire that came into contact with the trolley wire which carry electrical
                     current. The boy was burned and shocked.
                    Holding: Bullock practiced reasonable precaution against such accidents.
                     This accident was beyond what ordinary caution would have prevented, and
                     there was no facility of protection available (insulating the wires). Bullock
                     not at fault.

   Learned Hand Rule: (burden of adequate precautions)<(Probability of Injury)*(severity of
    resulting injury)=party should take precautions
        o Rationale: If the cost of safety measures or of curtailment – whichever cost is lower
             – exceeds the benefit in accident avoidance to be gained by incurring that cost,
             society would be better off, in economic terms, to forgo accident prevention. A rule
             making the enterprise liable for the accidents that occur in such cases cannot be
             justified on the ground that it will induct the enterprise to increase the safety of its
             operations.
        o United States (plaintiff, appellant) v. Carroll Towing Company (defendant,
             respondent), US Court of Appeals, Second Circuit, 1947
                   Facts: The Connors company had a tugboat that was fastening the lines
                      aboard the Anna C, a barge owned by Connors what was carrying US
                      property. The lines broke free and the barge drifted and hit a tanker whose
                      propeller punctured the Anna C and made it sink. Connors was wanting to
                      recapture the value of its cargo from Carroll. Carroll wanted to reduce
                      damages pursuant to admiralty law because the plaintiff’s bargee was not
                      aboard the ship at the time of the accident. The bargee could have stopped
                      the accident had he been there.
                   Holding: burden of precaution should have been taken. Barge attendant
                      should have been there due to the busy port.



The Reasonable Person Standard:
 Definition: the reasonable man must exercise care in proportion to the danger involved in his
   act.
        o If the person is undertaking a dangerous instrumentality, then the highest care should
             be taken to prevent injury (Wood v. Groh: a boy accidentally shot P with gun from
             his dad’s gun cabinet)
        o Ordinarily measured by what the reasonably prudent person would do in the
             circumstances.
        o Conduct is to be measured against external, objective norms, rather than subjective
             ability.
 Application of Reasonable Person Standard for Common Carriers: The reasonable person
   standard of basic negligence should replace the duty of highest care standard for common
   carriers.
        o Restatement (2) of Torts § 283 – “The reasonable person standard provides sufficient
             flexibility and leeway, to permit due allowance to be made for all of the particular
             circumstances of the case which may reasonably affect the conduct required.”




                                                 -8-
        o   Bethel (plaintiff, respondent) v. New York City Transit Authority (defendant,
            appellant), Court of Appeals of New York, 1998
                  Facts: Plaintiff sitting on defendant’s bus. The wheelchair accessible seat
                     collapsed causing injury. Defendant made a repair to the “lift wheelchair” 11
                     days before the accident. Duty of highest care for common carriers was
                     widely adopted in 19th century America when the industrial age was
                     producing many railroad injuries due to personal injuries.
                  Holding: remanded for new trial using reasonable person standard
   Exceptions to default reasonable person standard (but ALWAYS apply reasonable person
    standard when there is no exception):
        o Mental Ability: objective standard is used that does not take into account mental
            capacity of person (to avoid slippery slope; from Vaughn v. Menlove)
        o Physical Illness/Disability:
                  General Physical Disability: If the actor is ill or otherwise physically
                     disabled, the standard of conduct to which he must conform to avoid being
                     negligent is that of a reasonable man under like disability (§283C).
                  Sudden Physical Disability: must be suddenly completely unable to exhibit
                     control of actions to be exempt from liability (suddenly unconscious, but
                     NOT a stroke) (Roberts v. Ramsbottom)
                  Mental Illness: Unless the actor is a child, his insanity or other mental
                     deficiency does not relieve the actor of liability for conduct that does not
                     conform to the standard of a reasonable person under like circumstances
                     (§283B); EXCEPT if the onset of illness is sudden and unforeseeable
        o Superior Attributes: in addition to exercising the attention, perception of the
            circumstances, memory, knowledge or other pertinent matters, intelligence, and
            judgment as would a reasonable person, one must also exercise such superior
            attributes on the listed items as the actor himself has (§289b)
        o Children: held to the standard of conduct reasonable for persons of their age,
            intelligence and experience (Mastland v. Evans Furniture); EXCEPT when they
            engage in adult activities (Dellwo v. Pearson)
        o Emergency Doctrine: a person confronting an emergency not of his or her own
            making is required to exhibit only an honest exercise of judgment b/c of the short
            time frame to react within
        o Two-Innocence Rule: Tortfeasor (person who caused the accident) ought to pay if
            there are two morally innocent parties. Strict liability with causation in this case.
        o Activities Requiring Skill: If D chooses to engage in an activity requiring learned
            skills or certain knowledge, his conduct is measured against the hypothetical person
            who is reasonably skilled and knowledgeable in that activity
                  This is applicable regardless if the person is licensed in the activity or not.
        o Physician: held to the standards of care set by his profession (see medical
            malpractice section)
   To determine what reasonable person would do:
        o Apply Learned Hand formula
        o Just think of what a reasonable person would do in the situation → foreseeability:
            would a reasonable person foresee such an accident?)




                                               -9-
The Roles of Judge and Jury
    Question of due care should be left to jury; but the standard of conduct, should be laid
      out before the court (directed verdict) if it is clear
           o Baltimore & Ohio Railroad (defendant, appellant) v. Goodman (plaintiff,
               respondent), Supreme Court of the US, 1927
                    Facts: P was approaching a RR track that was partially blocked from
                       view. He was approaching the track slowly, but did not see the train and
                       was hit at a train going more than 60 mph and was killed. Widow sues
                       for damages due to negligence.
                    Holding: this is a standard of conduct that is obvious and should be
                       directed to jury. When a man crosses a RR track, he should be aware of
                       the possibility of a train coming, even if he does not hear it or has only
                       partial vision of it.
    Jury should decide where negligence lies when ordinary reasonable care fails to prevent
      an accident
           o Pokora (plaintiff, appellant) v. Wabash Railway Company (defendant,
               respondent), Supreme Court of the US, 1934
                    Facts: P was driving across four RR tracks, the first of which was
                       occupied by standing boxcars. These boxcars blocked the view of the
                       second track to the North, and prevented Pokora from seeing anything
                       coming from the North on the track. A train hit Pokora at a speed of 25-
                       30 mph and made no noise to alert others of its presence. Pokora sued
                       for damages due to negligence by the railroad.
                    Holding: Pokora took the ordinary amount of safeguards and no one can
                       expect someone to actually step out of his car to check for hidden
                       approaching trains. This kind of precaution is out of the ordinary.
    Summary judgment not appropriate where satisfaction of reasonable care standard is
      ambiguous
           o Andrews (plaintiff, appellant) v. United Airlines (defendant, respondent), US
               Court of Appeals, Ninth Circuit, 1994
                    Facts: P was hit by a falling piece of luggage when a passenger opened
                       an overhead bin after the aircraft landed. No one knows who opened the
                       compartment, but it was not airline personnel. P claims her injury was
                       foreseeable and thus preventable.
                    Holding: Jury could have found reason to decide in favor or against
                       United, the facts are not clear as to one way or the other – judge should
                       not be the one deciding, thus summary judgment used in district court is
                       unjustified. United must prove that adding luggage nets is cost
                       prohibitive and will grossly interfere with convenience of passengers



Custom in Negligence Cases –
    Custom and Usage. In determining whether conduct is negligent, the customary conduct
      of the community, industry, profession, or other relevant group in similar circumstances
      is relevant but not conclusive. Exception: In professional negligence cases involving
      physicians and certain other professionals, customary conduct usually is conclusive as to
      the standard of care. §295A




                                              - 10 -
       When certain dangers have been removed by a customary way of doing things safely, this
        custom may be proved to show that the one charged with dereliction has fallen below the
        required standard
       When proof of a customary practice is coupled with a showing that it was ignored and
        that this departure was a proximate cause of the accident, it may serve to establish
        liability
       Proof of custom may show what ought to be done, but reasonableness should always be
        applied
             o Trimarco (plaintiff, appellant) v. Klein (defendant, respondent), Court of
                  Appeals of NY, 1982
                      Facts: P badly cut himself when he fell through a glass door that
                         enclosed his tub in the D’s apartment building. The door was made out
                         of thin glass that looked the same as tempered glass that the P thought it
                         was. P presented evidence that since the 1950s the practice had been to
                         use shatterproof glass for these showers.
                      Holding: jury had enough evidence to prove that custom of shatterproof
                         glass existed and that it was reasonable to adhere to the custom.


Role of Statutes –
    Legislative Purpose: Legislation is relevant on the standard of care in a negligence case
        only if the statute was intended, at least in part, to protect a class of persons which
        includes P against the particular hazard and kind of harm which resulted. §286
    Majority View: Most courts hold that violation of a relevant statute is prima facie
        negligence or negligence per se. This means that if no evidence is introduced by D to
        excuse the violation, D's negligence is conclusively established. §288B
    Minority View. In some jurisdictions, violation is merely evidence of negligence, which
        the jury can consider along with all other evidence in determining whether D was
        negligent.

       Juries cannot relax statutes as they please, and cannot completely excuse someone for
        violating these statutes. You can’t leave out state statutes when assigning negligence –
        they can be conclusive of what is negligent behavior and can prove negligence per se.
        Court can adopt as the standard of care a statute that was designed to protect the injury
        that is at hand (§286)
             o Martin (plaintiff, appellant) v. Herzog (defendant, respondent), Court of
                  Appeals of NY, 1920
                       Facts: P and husband were traveling in a buggy when the D hit them
                          while traveling in his car. It was rather dark and buggy had no lights, the
                          car did have lights on. P charged D with negligence for not staying to
                          the right of the highway. D charges P with contributory negligence for
                          not traveling with lights on the buggy. There was a statute in NY state
                          Highway Law requiring lights for the safety of others and yourself.
                       Holding: Trial court should have upheld D request a ruling that absence
                          of light on P’s vehicle is prima facie evidence of contributory negligence

       A statute may accomplish its purpose under usual conditions, but when the unusual
        occurs, strict observance of the rule of conduct may further endanger the person. There
        are exceptions to statutes when good cause can be presented, hence not following a
        statute does not automatically assign negligence. The legislature made the statute to


                                               - 11 -
       protect life and limb, but following the statute to the letter of the law in this case would
       defeat the purpose of the statute. The statute was made out of common-law that carried
       with it exceptions and limitations. §288A
           o Tedla (plaintiff, respondent) v. Ellman (defendant, appellant), Court of Appeals
                of NY, 1939
                      Facts: Two junk collectors were walking eastward along a highway.
                         They could not use the sides or grassy middle because their cart of junk
                         would have sunk. The D hit them while he was traveling eastward. A
                         1933 statute laid out guidelines stating that pedestrians should always
                         walk against traffic with all traffic passing on their right. The Ps were
                         walking with the traffic along the side of the road. They did this because
                         the traffic traveling westbound was very heavy, hence they walked with
                         traffic along the side of the road, contrary to statute.
                      Holding: following the statute would have caused more danger than it
                         was designed to prevent, thus not following the statute is reasonable


Proof of Negligence
How to Prove Negligence:
 Prove there was a duty of care that was breeched
 Direct Evidence:
       o bring in witnesses: expert witnesses, eye witnesses
       o documents/papers/records/files
       o physical evidence
       o photos, objects of relevance, videotape, audiotape
 Indirect Evidence:
       o res ipsa loquitur


      Constructive Notice: although a defendant may not have actual notice of a hazardous
       condition, the defendant could have constructive notice of the condition because they
       should have had discovered the notice. To constitute constructive notice, a defect must
       be visible and apparent and must be there for a sufficient time for the D to notice the
       condition.
      P has the burden to prove negligence of the D.
           o Negri (plaintiff, appellant) v. Stop and Shop (defendant, respondent), Court of
               Appeals of NY, 1985
                     Facts: P slipped and fell on baby food that had splattered on the floor and
                        thus caused a slippery situation. A witness contends that she didn’t hear
                        any jars break in the 15-20 minutes prior to the accident, and that the
                        aisle had not been cleaned or inspected for up to 50 minutes prior to the
                        accident…some evidence thought it was up to 2 hours.
                     Holding: Even after viewing the evidence in favor of the P, in cannot be
                        said that the circumstantial evidence was insufficient to permit the jury to
                        draw the necessary inference that a slippery condition was created by the
                        baby food, thus P made a prima facie case and the case should not have
                        been dismissed.
           o Gordon (plaintiff, respondent) v. American Museum of Natural History
               (defendant, appellant), Court of Appeals of NY, 1986




                                              - 12 -
                        Facts: P fell when he slipped on the front entrance steps of D’s museum.
                         The P claims to have slipped on a piece of waxed paper that came from
                         vendor D had contracted to sell food. P claims that the D should have
                         noticed paper and picked it up before someone fell on it.
                       Holding: Problem with P’s case is not proving that the paper caused the
                         fall (causation), but rather the lack of proving constructive notice of the
                         condition.
       If a risk of harm to business invitees can be foreseen, then reasonable measures should be
        taken to obviate the danger (with regard to self-service method and requirement of
        shopkeepers to have a higher standard of care for these operations, Randall v. K-Mart
        Corporation)


Concept of Res Ipsa Loquitur -
    P usually has to prove by the preponderance of the evidence that D was negligent. Res
      ipsa loquitur inverts this burden upon the D (usually because the D is the only one that
      can prove non-negligence). This does not mean that the D automatically is liable, just
      that the burden is upon him now. If P can establish a prima facie res ipsa loquitur case,
      he need not prove by direct or other evidence the specific conduct of D which was
      negligent.
           o Byrne (plaintiff) v. Boadle (defendant), Court of Exchequer, 1863
                    Facts: P was walking by the D’s flour factory and was hit from above by
                       a barrel of flour causing serious injuries. No one warned the P of the
                       impending accident, and P brought two witness that saw the accident to
                       prove the barrel came from D’s factory.
                    Holding: P not bound to show that this is negligence, it is D’s job to
                       prove that he isn’t negligent.
                    created Res Ipsa Loquitur
    Restatement states that res ipsa loquitur is based on “a basis of past experience which
      reasonably permits the conclusion that such events do not ordinarily occur unless
      someone has been negligent.”
           o McDougald (plaintiff, appellant) v. Perry (defendant, respondent), Supreme
               Court of Florida, 1998
                    Facts: In 1990 the P was driving behind a tractor-trailer that was
                       carrying a spare tire underneath its trailer. The spare was held to the
                       trailer by a cage that was slanted at an angle, and was chained by a chain
                       that was originally latched to the trailer but was bolted at the present
                       time. D did a check of the trailer prior to the trip, and checked the chain,
                       but did not check each link of the chain.
                    Holding: Tire escaping from under truck is not an ordinary occurrence,
                       and it could not have occurred without the negligence of the D.
                        Rule.

       Res ipsa loquitur has three conditions (Prosser):
        1. accident must be of a kind that does not ordinarily occur in absence of one’s
            negligence
        2. it must be caused by an agency or instrumentality within the exclusive control of the
            D
        3. it must have not been done out of any voluntary action by the P




                                               - 13 -
            o    Ybarra (plaintiff, appellant) v. Spangard (defendant, respondent), Supreme
                 Court of CA, 1944
                      Facts: Plaintiff entered hospital for a surgical operation for an
                          appendectomy. The procedure was to be performed by Dr. Spangard at a
                          hospital owned by Dr. Swift. The P was generally anesthetized, and
                          woke up from the surgery with pain in his right shoulder that was later
                          paralyzed. This injury was caused by some injury or trauma to his
                          shoulder, most likely during the operation itself.
                      Holding: Res ipsa loquitur applies in this case, and when a P receives
                          unusual injuries while unconscious, all Ds who had control over his body
                          should be called upon to meet the inference of negligence by giving an
                          explanation of their conduct. Res ipsa loquitur applies in this case
                          because:
                               The number or relationship of the Ds does not alone determine if
                                   res ipsa loquitur applies.
                               It is enough that the plaintiff can show an injury resulting from
                                   an external force applied to him while he was unconscious on the
                                   table…he shouldn’t have to prove what instrumentality caused
                                   the injury.
       RST §328D Conditions for Res Ipsa: If P makes a prima facie showing that (1) his injury
        was caused by an instrumentality or condition which was under D's exclusive
        management or control at the relevant time(s), and (2) in the ordinary course of events,
        P's harm would not have occurred unless D was then and there negligent, then the jury is
        instructed on res ipsa loquitur and may infer that D was negligent.
             o At one time, P was required to prove that his injury was not due to any
                 "voluntary act" by P, or that P's own conduct was not a significant causative
                 factor, or, most recently, that P was not contributorily negligent. However, with
                 the adoption of comparative negligence, this requirement has been eliminated in
                 most jurisdictions.



Medical Malpractice
 Standard: In most jurisdictions, the standard of care of medical doctors (and sometimes other
  professionals) is conclusively established by the customary or usual practice of reasonably
  well-qualified practitioners in that field.
 Specialists Physicians or others who are certified specialists, or who hold themselves out as
  specialists, are held to the standards of that specialty, but again, in most cases the customary
  conduct of reasonably well-qualified specialists conclusively sets the standard of care.
 Burden of Proof: falls on the P to prove as part of his prima facie case that the D departed
  from the recognized standard of medical care exercised by other physicians via testimony
  from expert witnesses. The profession has set its own standards for conduct.
 Hospitals can be held liable for not having the basic level of care available for foreseeable
  patients (Welsh v. Bulger)
 Courts require that the specialized skill of the defendant must be taken into account


Expert Witnesses -
 Requirements for Expert Witnesses:



                                              - 14 -
         1. The expert does not have to be in the same specialty as the defendant, they just must
             be knowledgeable about the procedure at hand and of the knowledge the accused
             physician should be aware of
         2. Used to have a “same or similar locality” rule that states that experts must be of the
             same type of setting; this no longer applies in the present-day national network of
             communication that gives doctors contemporary standards that are national in scope
         3. If the profession has not changed significantly over the past 30 years, then it does not
             matter if the expert has not practiced recently.
         o Sheeley (plaintiff, appellant) v. Memorial Hospital (defendant, respondent),
             Supreme Court of RI, 1998
                  Facts: P was giving birth and required a episiotomy. Dr. Ryder, a second-
                      year family practice resident, did the procedure. The P suffered
                      complications from this procedure, thus suing the hospital and resident. At
                      trial, the P tried to bring in testimony from Dr. Leslie, a board certified
                      OB/GYN, that was a professor of medicine, and served on many boards that
                      set standards of care for hospitals. The D filed a motion in limine to exclude
                      this testimony on the basis of a rule stating that “only those person who by
                      knowledge, skill, experience, training or education qualify as experts in the
                      field of the alleged malpractice shall be permitted to give expert testimony as
                      to the alleged malpractice” because the family practice resident was not of
                      the same specialty as Dr. Leslie (an OB/GYN). Sheeley did not have any
                      other experts prepared to testify and could not procure any (she only had two
                      days to find another expert witness that fit the many qualifications listed in
                      Arguments). Thus the P did not Thus D’s motion for a directed verdict was
                      granted. P appeals.
                  Holding: case remanded to the lower court for new trial because of the above
                      criteria that will allow the P to use Dr. Leslie as an expert witness
   MedMal and Res Ipsa: Expert testimony is encouraged in medical malpractice cases
    involving res ipsa loquitur (in medical malpractice cases there is no common knowledge that
    juries can use to base their inferences upon to judge if res ipsa loquitur can be applied)
         o Connors (plaintiff) v. University Associates in Obstetrics & Gynecology, Inc.
             (defendant), US Court of Appeals, Second Circuit, 1993
                  Facts: P underwent surgery in an attempt to become pregnant. After surgery,
                      the P lost all function of left leg. This was assumed to be from a retractor
                      used to keep the incision open that impinged on a nerve thus causing the
                      pain. It was agreed that the retractor had to be used with care. P argued that
                      even if P’s nerve was abnormally placed, the retractor should not have
                      caused this injury; moved for res ipsa loquitur. D responded by saying that
                      nerve injuries of this type are sometimes unavoidable and are resulting from
                      no negligence of the parties; said that res ipsa loquitur cannot be applied b/c
                      the D used expert testimony.
                  Holding:
                            expert testimony was necessary in medical malpractice cases
                                involving res ipsa loquitur because the P was unconscious and is in
                                no position to be able to testify about what happened during the
                                surgery
                            Conners was in a Catch 22 if expert witnesses and res ipsa loquitur
                                could not be used simultaneously:




                                                - 15 -
                                 o   if expert testimony was not used and res ipsa loquitur
                                     applied, then the jury would be unable to determine if the
                                     D’s negligence is the only reason for the injury
                                 o   alternatively, if the expert testimony was used and res ipsa
                                     loquitur not applied, then the jury would not be instructed
                                     that they can infer negligence based on the fact of the injury


Informed Consent –
     Old Professional Rule: In medical cases, at one time the prevailing standard only
      required the doctor to inform the patient of those risks and alternatives that doctors
      customarily chose to disclose. This has become known as the "professional rule."
     Reasonable Patient or "Material Risks" Rule: The professional rule is being replaced by
      one which gives greater autonomy to the patient: the doctor must disclose those risks and
      alternatives of which a reasonable patient would want to be informed so as to be able to
      make an intelligent choice in other words, all risks material to the decision of the ordinary
      patient in the plaintiff's position.
     The informed consent doctrine applies to noninvasive procedures as well as invasive
      procedures.
     This doctrine was rooted in the patient’s right to reject nonconsensual touching required
      for invasive procedures, but now the real question is whether the patient has the
      information needed to make an informed decision as to the appropriate plan of care.
     A substantial change in circumstances requires a new informed consent discussion
     An informed consent can be revoked if it is still time to adopt an alternative course of
      action
     The doctor may recommend a plan of care, but he must inform the patient as to the
      options available, even those that he does not recommend. The decision of the plan of
      care should be a joint decision b/t the patient and doctor.
      o Matthies (plaintiff, respondent) v. Mastromonaco (defendant, appellant), Supreme
           Court of NJ, 1999
                Facts: P fell in her apartment and broke her hip. The D orthopedic surgeon
                   ordered that she have bed rest rather than surgery to insert hip pins. He
                   thought this was best given her age, the fragility of her bones and her past
                   medical problems rendering her right leg disabled. After the surgery, the D
                   suffered a hip displacement, a complication that was probable given her
                   treatment. This complication shortened her leg and caused her to not be able
                   to walk. The other option the D did not tell the P about was pinning her hip,
                   which, according to the P’s expert witness, would have left the P a better
                   chance at walking because the risk of displacement was less. P charges that
                   she never would have consented to the procedure if she had known the
                   consequences.
                Holding: Patient should have given informed consent to the procedure with
                   all the available options presented to her, even those the doctor does not
                   recommend


                     The Duty Requirement: Physical Injuries




                                               - 16 -
       Duty - if a person is in a situation where he knows that if he doesn’t use ordinary care he
        will cause injury to others, he has a duty to use ordinary care (rough definition, from
        Brett in Heaven v. Pender)
       Privity Doctrine – only those that purchase an item from a manufacturer are entitled to
        relief from faulty workmanship, not remote buyers or users.


Obligations to Others
 Requirement of Special Relationship: Duty to act requires a special relationship b/t parties
   (Delgado v. Lohmar). The fact that an actor realizes or should realize that action on his part
   is necessary for another’s aid or protection does not of itself impose upon him a duty to take
   such action unless a special relationship exists which gives the other right to protection. A
   special relationship generally is found with:
       o Common carriers
       o Innkeepers
       o Possessors of land who hold it open to the public
       o Persons who have custody of another person who is deprived of normal opportunities
            of self-protection
 Actual knowledge of a dangerous condition tends to impose a special duty to do something
   about that condition (Andrade v. Ellefson) – BUT, you first must have a duty to provide
   protection
 Restatement: there are many dangers, such as those of fire and water, which under ordinary
   circumstances may reasonably be expected to be fully understood by any child, thus no duty
   to warn.
       o Harper (plaintiff, respondent) v. Herman (defendant, appellant), SC of MN, 1993
                 Facts: P was a guest on the boat of the D – the two had no prior relationship.
                     P was 20 years old and had only been to the area of water of the accident
                     once and D was 64 years old and had been to the area of water many times
                     and was an experienced boater. D sailed boat to island and anchored 100-
                     200 yards from the edge of the land where the water was deep enough to
                     swim but still shallow enough to use the ladder. You could not see the
                     bottom from the boat. P, without warning, dove off of the boat into 2-3 feet
                     of water and suffered a spinal severance that resulted in paralysis.
                 Holdings: No special relationship existed b/t parties. Nothing in record
                     stating that P expected any protection from D. P did not lack ability to
                     protect himself.

   Non-negligent injury – if someone knows that his conduct, innocent or tortuous, has caused
    bodily harm to another that renders him helpless and in danger of further harm, the person has
    a duty to prevent further harm (restatement)

   Non-negligent creation of risk – someone who has created an unreasonable risk of causing
    physical harm to another is under a duty to prevent the risk from occurring even if at the time
    the person had no idea that his act would create such a risk

   Regardless if there is a duty to aid a person in distress, there is clearly a recognized duty of
    every person to avoid any affirmative acts which may make a situation worse.
   Good Samaritan Rule: If one can save someone from death or great bodily harm without
    causing inconvenience or harm to yourself, one can be held liable for not aiding the other
    person ONLY if a special relationship exists b/t the two parties


                                                - 17 -
   If a party begins performance to take care of an injured person, they have the duty to take
    reasonably good care of them
         o Farwell (plaintiff, appellant) v. Keaton (defendant, respondent), SC of MI, 1976
                  Facts: [Keaton=Siegrist(D)] D and P’s son were driving around and went to
                     a place of work of a friend. While waiting for the friend to get off work, they
                     began drinking beer. 2 girls walked by the establishment and the two boys
                     went after the girls to a restaurant. At the restaurant, the girls told a group of
                     6 boys who were friends of theirs that P’s and D son were following them.
                     They chased P’s and D son. D got away, while P’s son was severely beaten.
                     D applied an ice pack to P’s son’s forehead, then drove around for another
                     two hours, during which time P’s son crawled in the back and passed out.
                     When D drove P’s son home and dropped he and his car off, he tried to arose
                     his friend but could not so he just left him. P’s son’s grandparents found him
                     the next morning and took him to the hospital. P’s son died three days later
                     of a epidural hematoma. P sues for wrongful death of his son. D testified
                     that he knew that he should have done something, but failed to do so.
                  Holding: Duty of care rests on three reasons:
                           D took control of the situation by beginning to administer care the
                              P’s son, thus he established a responsibility to take care of this
                              person.
                           A special relationship existed: the two were on a social adventure
                              together…implicit within this relationship is a mutual duty of care
                           Because D could have helped P’s son more without endangering
                              himself, he had an affirmative duty to aid his friend

Voluntarily Assumed Duty:
    Rescue: Absent a pre-existing relationship between P and D or a duty to act arising from
       some other source, D has no duty to protect or aid P, who D realizes is in a position of
       danger. §314
    First Aid: Absent a pre-existing relationship between P and D, or unless D was
       responsible for P's injury, D has no duty to render aid or assistance to an injured or
       otherwise needy P.
    Duty of Person Taking Care of Someone When No Special Relationship Exists - if
       someone who takes charge, though no duty to do so, of the care of a person who is
       injured is subject to liability caused by (a) the failure of the actor to exercise reasonable
       care to secure the safety of the other while within the actor’s charge, or (b) the person
       discontinuing the aid or protection, if he leaves the person in a worse off position than
       before. (§324)

Intentionally Preventing Aid -
     One who intentionally prevents a third party from giving another aid necessary to prevent
        physical harm to him is subject to liability (§326)
     A person is liable for negligently preventing aid (§327)

Public Policy Concerns Limiting Liability:
    It is the responsibility of courts to limit the legal consequences of wrongs to a
        controllable degree and protect against crushing exposure to liability…thus public policy
        maintains a central role (Moch Co. v. Rensslaer Water Co.)
            o Strauss (plaintiff, appellant) v. Belle Realty Co. (defendant, respondent), NY
                Court of Appeals, 1985


                                                - 18 -
                         Facts: D (Consolidated Electric) had a power outage which affected
                          millions of residents in NYC in 1977. The P was walking to the
                          basement to get water when he fell down stairs injuring himself because
                          of the darkness and poor quality of the stairs, thus he sues realty
                          company and electric company. P did not have a contract with D to
                          supply power in common areas, just in his own apartment. D did have a
                          contract with apartment company to provide power in common areas.
                         Holding: Can’t let Con Ed be overwhelmed by all the litigation that
                          would result from judgment in favor of P
                         Dissent: Shouldn’t limit negligence just because of the vastness of the
                          incident. Con Ed could increase rates or devalue stocks to cover costs of
                          liability.

       Legal Principles:
                     Positivism (W): go back in time to preexisting times and norms and
                        apply these rules today
                     Realism (E): looking forward to how our decisions will affect policy
                        implications in the future
                     Upward (N): looking to overarching natural law reasoning to make court
                        decisions
                     Downward (S): courts look to public opinion as to how the case should
                        come out; base holding on what people would want

Private right to action –
 The fact that a statute exists does not mean that violating the statute will be punished. The
    statute must create a right for public to sue. They often do not give the public an enforcement
    mechanism on their own…usually the governing organization has a right to sue the violator,
    but rarely does the public have this job. If it is not stated, the court must infer if the public
    has a right to sue. You can perhaps be given the right to sue under common law.
 For determining if a private right of action may be implied in a statute; three-part test:
    1. Whether the P is one of the class for shoes particular benefit the statute was enacted
    2. Whether recognition of a private right of action would promote the legislative purpose
    3. Whether creation of such a right would be consistent with the legislative scheme
             o Uhr (plaintiff, appellant) v. Greenbush School District (defendant, respondent),
                  NY Court of Appeals, 1999
             o Facts: P sues D because they failed to perform a scoliosis test on infant P during
                  the 1993-1994 school year. P later developed scoliosis and would not have
                  undergone surgery had the disease been caught earlier. D must perform scoliosis
                  tests annually pursuant to Education Law §901-911. One section states that the
                  D shall not be held liable for any action resulting from the test, and another
                  charges the Commissioner of Education with the enforcement of the law.
             o Holding:
                   On the creation of a private right to action:
                       1. Yes: P does belong to class in which the statute was enacted for
                       2. Yes: private right of action would promote the purpose of the screening
                           because it would further compliance with the law and thus benefit the
                           public in the long-run
                       3. No: the statute carries with it its own enforcement (through the
                           Commissioner of Ed that can revoke funds from schools that don’t
                           comply); also, the state legislative intent was that the districts should not



                                                 - 19 -
                        be held liable and that the screening would cost the school districts a
                        minimal amount of money
                   On common-law negligence: P claims that a special relationship was formed
                    and the district breached its duty…nope, P failed to state as a matter of law a
                    claim for common-law negligence

       Child Abuse and Crime: People generally have a duty to report these to proper
        authorities


Obligations to Protect a Third Party

   To establish duty, the incident must be foreseeable…is the risk is foreseeable, then all
    persons who are endangered by his conduct should be given a duty of care by the person who
    foresees the incident only if they bear some special relationship with the D
   A physician may not reveal the confidence entrusted to him in the course of medical
    attendance unless he is required to do so my law or unless it becomes necessary in order to
    protect the welfare of the individual or of the community (AMA Principles of Medical
    Ethics)
   Wrongful Death Statute: Certain people that are close to you are harmed by your death, they
    can sue and have been wronged by the actions and negligence of those who contributed to the
    accidents.
        o Tarasoff (plaintiff, appellant) v. Regents of Univ. of CA (defendant, respondent),
             Supreme Court of CA, 1976
                  Facts:
                          Dr. Moore, a psychiatrist employed by the U of CA, was treating
                             Poddar, who later killed Tatiana Tarasoff. Her parents (P) brings suit
                             against Dr. Moore because be knew of this plot but did not disclose
                             the information.
                          P appeals to amend cause of action to state the D was negligent in
                             not informing others of Tatiana’s predicted actions
                  Holding:
                          D and Fodder had a special relationship, and thus this must be
                             extended to the third party to warn them of danger
                          D did predict what Poddar would do, and he was negligent in failing
                             to warn; the benefit to society of warning of danger is greater than
                             harm from false alarms
                          Confidential nature of relationship b/t patient and medical provider
                             must yield when disclosure is essential to avert danger. The
                             protective privilege ends where the public peril begins.

   Knowledge of Future Harm – §319: One who takes charge of a third person whom he knows
    or should know to be likely to cause bodily harm to others if not controlled is under a duty to
    exercise reasonable care to control the third person to prevent him from doing such harm.

   Liability may be imposed if a recommendation letter amounts to an affirmative representation
    presenting a foreseeable and substantial risk of physical harm to a third person
   §310 and §311: the writer of a letter of recommendation owes to third persons a duty not to
    misrepresent the facts in describing the qualification and character of a former employee, if



                                               - 20 -
    making these representations would present a substantial, foreseeable risk of physical injury
    to the third persons.
         o Randi W. (plaintiff, appellant) v. Muroc Joint Unified School District (defendant,
             respondent), SC of CA, 1997
                   Facts:
                           Ds hired Gadams as vice principal after reading four letters of rec for
                            him from the 4 defendants (school districts). These letters were very
                            praising of Gadams.
                           After hiring Gadams, the P sexually assaulted by him. The P claims
                            that the D negligently gave Gadams good receommendations,
                            charging them with negligent misrepresentation, fraud, and
                            negligence per se.
                   Holding:
                           Duty to P: the assault was reasonably foreseeable, and the P’s school
                            would not have hired Gadams if they knew about the prior sexual
                            misconduct
                           Ds did present misleading misrepresentation by not disclosing the
                            full truth of Gadams’ history with the schools…they told half-truths
                            by only telling the positive qualities of him



Negligent Entrustment -

   §390 – One who supplies directly or through a third person a chattel for the use of another
    whom the supplier knows or has reason to know to be likely because of his youth or
    inexperience to use it in a manner involving unreasonable risk of physical harm to himself
    and other is subject to liability for harm resulting to them.
        o §390 Continued: One who supplies chattels to another is not entitled to assume that
            it will be used carefully if the supplier knows or has reason to know that the other is
            likely to use it dangerously, as where the other belongs to a class which is notoriously
            incompetent to use the chattel safely, or lacks the training and experience necessary
            for such use (Kitchen v. K-Mart Corp)
        o The negligent entrustment theory requires a showing that the entrustor knew or
            should have known some reasons why entrusting the item to another was foolish or
            negligent
        o Vince (plaintiff, appellant) v. Wilson (defendant, appellant), SC of Vermont, 1989
                  Facts:
                           P was severely injured in an auto accident where car was driven by
                               Ds grandnephew. D paid for a car for her grandnephew where she
                               purchased from Ace Auto Sales and dealer Gardner, later added as
                               co-defendants.
                           D knew her grandnephew had alcohol and drug problems, and did
                               not have a drivers license. These issues were communicated to Ace
                               and Gardner.
                  Holding:
                           Ps case made out a prima facie case of negligent entrustment since
                               the D knew about the hazards, and it should have gone to the jury




                                               - 21 -
                            Ace and Gardner also knew about the inexperience and problems of
                             the young driver, thus the claim against them should have gone to the
                             jury.


Alcohol-Related Injuries -
 Common Law Liability: The common law rule in most jurisdictions is that one who sells
   intoxicating beverages is not liable to third persons injured by the person thereby intoxicated,
   even when the sale is in violation of a statute or ordinance or is negligent.
 Dram Shop Statutes: A number of states have enacted these statutes which impose civil
   liability on commercial sellers in favor of third persons injured by an intoxicated person.
   Some statutes require that the sale have been illegal, others merely that the beverage sold
   have caused or contributed to the intoxication.
 Social Hosts: So far, most courts have refused to impose negligence liability on persons who
   are not licensed dram shops for serving alcohol or for failing to control their intoxicated
   guests. A few jurisdictions have, based on (1) violation of a liquor control statute as
   negligence per se, or (2) common law negligence principles such as negligent entrustment or
   negligent supervision or ordinary duty rules (thus bars are held to a higher standard than
   social hosts for the behavior of their patrons after leaving the establishment/event).


Landowners and Occupiers
 Traditional View: Premise liability cases recognize three broad classes of plaintiffs and the
   host owes each a different duty of care:
   1. Trespassers: D is under no duty to exercise reasonable care (1) to make the premises
       reasonably safe for T (or to warn T of hidden dangers) or (2) to carry on activities on the
       premises so as not to endanger T.
            Exception: Intentional and Reckless Misconduct - D's immunity from liability to
               T does not extend to intentional torts. And many jurisdictions hold that D is
               liable to T for harm caused by D's reckless ("willful and wanton") misconduct.
               Others (and the Restatement) do not recognize this latter rule, but achieve
               somewhat the same result by the following two exceptions.
            Exception: Frequent Trespassers on Limited Area - When D knows or should
               know that trespassers constantly intrude upon a limited area of his premises, D
               owes a duty of reasonable care to such a T (1) in the conduct of active operations
               on the premises (§334), and (2) to warn T of a dangerous artificial condition on
               the land (created or maintained by D) which D has reason to believe T will not
               discover, provided the risk to T is one of serious bodily harm (§335)
            Exception: Discovered Trespassers - Once D discovers the presence of a T on
               his land, D must exercise reasonable care to (1) conduct his activities with regard
               to T's safety (§336), (2) warn T of an artificial condition which poses a risk of
               serious bodily harm, if D knows or has reason to know that T is in dangerous
               proximity to it and that T will probably not discover the danger or realize the risk
               (§337), and (3) control those forces within his control which threaten T's safety,
               or give T an adequate warning of them (§338).
            Exception: Attractive Nuisance Doctrine for Trespassing Children - A possessor
               of land is subject to liability for physical harm to trespassing children caused by
               an artificial condition upon the land if the following requirements are met, and D
               fails to exercise reasonable care to eliminate the danger to such children or
               otherwise to protect them.


                                               - 22 -
                  i. Knowledge of Child Trespassers: D must know or have reason to know
                     that the place where the condition exists is one where children are likely
                     to trespass.
                 ii. Attraction of Condition: The child need not be attracted onto the
                     premises by the condition that injures him. It is enough that children
                     who do foreseeably trespass can be expected to encounter the condition.
                iii. Knowledge of Condition: D must know or have reason to know of the
                     condition, and D must realize or should realize that it involves an
                     unreasonable risk of death or serious bodily harm to such children. D
                     need not have created the condition, but merely maintain it or permit it to
                     exist.
                iv. Type of Condition: The doctrine applies only to artificial conditions (not
                     activities or natural conditions) upon the land. In addition, some courts
                     have created categories of "common hazards" as to which D is not liable,
                     such as fire, falling from a height, drowning in water, visible machinery
                     in motion, piles of lumber, etc. However, the better view is that whether
                     the risk is unreasonable depends on the facts and circumstances of each
                     case.
                 v. Risk of Harm: The condition must create a risk of serious bodily harm or
                     death; but if it does, D is subject to liability for any lesser injury.
                vi. Child's Awareness of Risk: The child, because of his youth, did not (a)
                     discover the condition or (b) realize the risk.
               vii. Reasonableness of D's Conduct: The utility to D of maintaining the
                     condition and the burden of eliminating the danger were outweighed by
                     the risk to the children.
              *Other courts adopted the RST §339 approach that landowners only owe a duty
              of reasonable care to child trespassers they can foresee
2. Licensees: host does not expect to receive any material benefit from the licensee’s visit
   (including social guests); owes the duty to exercise reasonable care to make safe dangers
   the host is aware of (host does not need to take precautions more than you would if you
   were just at home with your family)
3. Invitee: a person is an invitee if the host has a material benefit motive for inviting the
   person onto his property OR if the premises are thrown open to the public and the person
   enters for the reason the doors are opened; owes a duty to exercise reasonable care to
   protect invitees against both known dangers and those that would be reveled by
   inspection (except if the danger is open and obvious and the possessor does not anticipate
   such an accident)
   o Carter (plaintiff, appellant) v. Kinney (defendant, respondent), Supreme Court of
       Missouri, 1995
             Facts:
                      D held bible study at their home and members from their church
                          signed up at the church to attend the study.
                      D shoveled snow on their driveway the night before, but ice had
                          developed on the driveway throughout the night.
                      When the P arrived at the bible study the morning after the ice
                          developed, he fell and broke his leg.
                      Parties agree that D received no financial benefit from having the
                          bible study at their home, and that no other social interaction
                          occurred outside the meeting.




                                           - 23 -
                   Holding: P a licensee b/c D did not receive any material benefit from him,
                    thus only duty to make safe dangers which host is aware, and it was not
                    reasonable to assume that ice had developed overnight

   Contemporary View: A standard of reasonable care should be applied for all lawful visitors
    (invitees and licensees; trespassers should be held to a lower standard) – focus is on the
    foreseeability of the accident
        o Heins (plaintiff, appellant) v. Webster County (defendant, respondent), Supreme
             Court of NE, 1996
                  Facts:
                           P was visiting Ds hospital to see his daughter who worked there (P
                              also claims he was there to see if he was going to be Santa Claus at
                              the hospital holiday party).
                           While exiting, P fell on accumulated ice and hurt his hip.
                           P sues for negligence on behalf of hospital for creating a dangerous
                              public entrance and failing to warn the public about the hazard.
                  Arguments:
                           For keeping the common law doctrine:
                              1. Very predictable
                              2. Landowners would be less able to guard against risks b/c each
                              case would be decided on its facts and it would be less predictable
                           For abandoning the common law doctrine:
                              1. In modern society, reasonable people do not distinguish b/t
                              invitees and licensees in preparation of their visit. The common law
                              doctrine was for sparsely populated areas where it was unreasonable
                              to ask landowners to change the duty of care for people who used the
                              land for their own purposes.
                              2. Today, you can’t distinguish b/t customers and people using a
                              commercial establishment for their own use (their purpose should not
                              be relevant)
                              3. Instead, the foreseeability of injury and reasonable care should be
                              used in all cases of lawful usage of another’s land.
                  Dissent: the common law doctrine should not be abandoned b/c the
                     landowner should not be held liable for someone who becomes injured by
                     conducting activities without the landowner’s express permission or
                     knowledge. Unknown, uninvited visitors should not be able to hold the
                     landowner liable for their injury.
                  Holding: the common law classifications should not be able to shield those
                     who would be held to a standard of reasonable care but for the arbitrary
                     classification of the visitor as a licensee.
        o In jurisdictions retaining the traditional categories, there is a trend to expand the
             scope of invitee status. In some, all social guests are invitees.
   Class Discussion:
             o Pro-Forms (reasons for classification):
                      Lubricant for social life
                      Predictability/foreseeability
                      The three categories reflect what society morally values
             o Anti-Forms (reasons for abolishing common law classifications):
                      Foreseeable trespassers: should be held to standard of others
                      Forms can be arbitrary


                                               - 24 -
                        Outmoded, no longer reflect social norms (long ago it mattered if the
                         person was invited or just their for their own purposes)
                        Prof thinks the classifications should be abolished; foreseeability is
                         enough to determine if liability should exist

   Liability of landowner for third party criminal offences –
        o Balancing Test: balances interests of both business proprietors and their customers
             by balancing the foreseeability of harm against the burden imposed on the business to
             protect against that harm – if a high degree of foreseeability is present, then the
             owner has a higher burden to provide security measures, and visa-versa. The most
             important factor in foreseeability is the incidence of prior crimes on the premises, but
             also the nature, location and condition of the land should be considered. (Similar to
             Hand’s test in Carroll Towing that reasonable care should be taken if B<PL.)
        o Posecai (plaintiff, respondent) v. Wal-Mart (defendant, appellant), Supreme Court
             of Louisiana, 1999
                  Facts:
                           The P was putting her items bought at a Sam’s Club into her car
                               when a man robbed her from underneath her vehicle.
                           A security guard was stationed inside the store to protect the cash
                               office, but could not see outside. No other security measures were
                               taken to protect customers in the parking lot. Only one other similar
                               incident had occurred in the past six years at Sam’s.
                           P sues because Sam’s was negligent in not providing enough security
                               outside given that it is in a high crime area.
                  Holding: because only one real prior incident occurred on Sam’s property,
                      Sam’s could not foresee the accident occurring and was not under an
                      obligation to provide additional outside security to prevent third party crime.
                  Rationale: Four possible methods to determine if Sam’s should take
                      precautions to determine if more security is necessary:
                      1. Specific Harm Rule: owner does not have to protect patrons from third
                          party crime unless owner knows of specific, imminent harm (outdated)
                      2. Prior Similar Incidents Test: foreseeability is established by evidence of
                          previous crimes on the property
                      3. Totality of the Circumstances Test (most common): takes into account
                          nature, condition, and location of the land and any other relevant factual
                          circumstances bearing of foreseeability. Seen as putting too high a
                          burden on business owners to protect against third party crime.
                      4. Balancing Test: see rule – it is the test used by the court



Intrafamily Duties

   Spousal Suits – All remnants of spousal immunity have disappeared for both intentional and
    negligent harms, and departed from the common law doctrine if refusing to allow spouses to
    sue one another.

   Parent-Child Suits – Parents used to be immune from child-originated lawsuits, but now
    claims by children for intentional harm are almost universally permitted today.




                                               - 25 -
   Parents: Parents generally not held vicariously liable for actions of children, but may be
    held liable for own negligence in permitting children to do something beyond their ability or
    in failing to exercise control over a dangerous child.
             o RST §316: A parent must exercise reasonable care to prevent tortious conduct by
                  his child, provided the parent knows or has reason to know he has the ability, and
                  knows or should know of the necessity and opportunity to exercise such control.
          Reasonable Parent Test: a parent’s conduct is judged by whether that parent’s
             conduct comported with that of a reasonable and prudent parent in a similar situation.
                  o Broadbent (child’s father suing on his behalf, plaintiff, appellant) v.
                      Broadbent (mother, defendant, respondent), Supreme Court of Arizona,
                      1995
                            Facts:
                                    Two-year-old son was playing near the family pool when his
                                       mother left him there to answer a phone call. The boy fell
                                       into the pool and the mother found him at the bottom of the
                                       pool, but he suffered severe brain injury from oxygen
                                       deprivation that left him unable to voluntarily move.
                                    Father sues on his son’s behalf, and claims that the parental
                                       immunity rule does not apply in this case.
                                    Mom’s insurance company will pay for daughter’s injuries,
                                       thus even though Mom does not want to contest claim, the
                                       insurance company is going to contest it for her so perhaps
                                       they won’t have to pay.
                            Holding: The trier of fact may find that the mother did not act as a
                               reasonable parent would in a similar situation, thus a new trial must
                               determine that fact.


Duty of Governmental Entities

   Whenever the D in a tort action is a government entity, you should ask if sovereign immunity
    bars the suit in the first place? The traditional doctrine of sovereign immunity has been
    waived, but statutes often govern sovereign immunity.
   Arguments for sovereign immunity:
        o Hobbes would say that the sovereign has been given compete control over your life,
             thus you can’t sue.
        o It’s not logical to sue yourself because you are part of the government
        o It is not fair to ask the government to pay out liability because they have limited
             resources for the common good.


Federal Immunity:
 Unless Congress has specifically given the right to sue the government, then you can’t sue
   them.
       o Main Federal Statute Waiving Immunity: Federal Tort Claims Act: The United
          States has waived its tort immunity for damages "caused by the negligent or wrongful
          act or omission of any employee of the Government while acting within the scope of
          his office or employment, under circumstances where the United States, if a private
          person, would be liable to the claimant in accordance with the law of the place where
          the act or omission occurred." 28 U.S.C.A. § 1346(b).


                                               - 26 -
   Exceptions: In addition to exceptions for specified activities (war, mail
    delivery, tax collection), there are two important general exceptions:
    1. Specified Torts: The U.S. is not liable for (1) assault, battery, false
        imprisonment, false arrest, or malicious prosecution, except in the case
        of investigative or law enforcement officers; or (2) abuse of process,
        libel, slander, misrepresentation, deceit, or interference with contract
        rights. Nor is it subject to strict tort liability in any form.
    2. Discretionary Acts: The U.S. is not liable for acts done with due care in
        the execution of a statute or regulation (even though invalid), or for "an
        act or omission ... based upon the exercise or performance or the failure
        to exercise or perform a discretionary function or duty ..., whether or not
        the discretion be abused." This prevents the courts from “second
        guessing” through tort action how the government balances economic,
        social and political factors as they carry out their official duties.
         Supreme Court developed a 2-tiered test to determine if an act is
             discretionary:
             1. Does any federal statute, regulation or policy specifically
                  prescribe a course of action for an employee to follow. If the
                  employee followed the directive, then the government is not
                  liable. If the employee did not follow the directive, then the
                  government can be held accountable.
             2. if the challenged acts of a government employee “are of the
                  nature and quality that Congress intended to shield from tort
                  liability.” Decisions that require choice are exempt from suit
                  under the FTCA only if they are susceptible to policy judgment
                  and involve an exercise of political, social, or economic
                  judgment.
         Cope (plaintiff, appellant) v. Scott (defendant, respondent), US
             Court of Appeals, DC District, 1995
                   Facts:
                             Cope was driving along Beach Drive in Rock Creek
                                Park in DC. A southbound vehicle driven by Scott
                                slid into the northbound lane and hit Cope’s car.
                                Cope alleges he suffered back and neck injuries.
                             The roadway was maintained by the National Park
                                Service. Cope sued Scott and the Park Service for
                                failing for maintain the roadway of Beach Drive and
                                failing to maintain appropriate warning signs along
                                the roadway.
                             Cope discovered an engineering study and found
                                that this stretch of road as one of nine “high accident
                                areas” and that the surface falls below acceptable
                                skid-resistance levels. The project was listed 33rd on
                                a priority list of 80 sections of park road to be fixed.
                   Holding:
                             Road Maintenance: Simply “maintaining” the
                                roadway would not have prevented the accident.
                                The Park Service was balancing many factors in its
                                decision to not repave or limit the traffic on Beach
                                Drive, including financial, inconvenience to other



                                - 27 -
                                               drivers, and other project demands. This court is not
                                               going to “second guess” these decisions.
                                            Maintenance of Warning Signs: although there was a
                                               manual for placing signs on a roadway, this manual
                                               told how to install the signs and was not focused on
                                               placement of signs. Thus, the Park Service DID
                                               exercise discretion in the placement of the signs.
                                               However, this kind of discretion is not the kind that
                                               is protected by the FTCA because the decision is not
                                               fraught with political, economic or social concerns
                                               that the discretionary function exception protects
                                               from suit under the FTCA.
   Official Immunities: Judges and government prosecutors are immune from civil action,
    unconditionally, when acting within their official duty (Falls v. Superior Court)
   Rationale for Immunity:
        o Historical Rationale: totalitarian view of government; government like a monarch
        o If we body of politic, you are suing yourself, thus not logical
        o Public purse is subject to raiding
        o Immunity protects government from chill from having its power restrained…don’t
             want the government timid or over-investment in safety
   Two ways in which sovereign immunity was lifted:
        o Voluntary: Statute – voluntary waiver allowing tort actions (federal tort claim act:
             US wanted to allow its citizens to sue it); however, unless the legislation allows you
             to recover, then you cannot bring suit
        o Judicial abrogation of power/authorization– courts timid to allow waiver of immunity
             because this is usually job of legislature

Municipal and State Liability:
 Riss (plaintiff, respondent) v. City of NY (defendant, appellant), NY Court of Appeals, 1968
      o Facts:
                Riss terrorized by ex-boyfriend. She called on numerous occasions for the
                    police to protect her, but was denied protection.
                Received call one night that “this was her last chance.” She called police,
                    but they would not come. Next day the ex-boyfriend threw lye in her face
                    and partially blinded her with scars.
                P sues City for failure to protect.
      o Holding:
                Courts should not determine how the municipality allocates its money – this
                    is a legislative job
                There is no predictable limits to potential liability for failure to provide
                    adequate police protection – different than other municipal services.
                It would be different if the police undertook responsibilities to protect
                    particular members of the public and then losses occurred due to inadequate
                    protection.
      o Dissent (Keating):
                The fear of financial disaster is a myth that is not true. When municipal
                    employees were held liable in other communities for tortious negligence, the
                    cities did not go bankrupt. Riss should not have to pay for the damages due
                    to her for lack of police protection!
                Reasonable limits are in place to limit the liability of the police



                                               - 28 -
                    Courts are doing two things when intervening in municipal negligence cases:
                     1. apply principles of vicarious liability to the operations of government –
                          police should be held to same standard as negligent members of highway
                          dept.
                     2. public officials can either appropriate enough funds to properly protect
                          the public, or face the costs of compensating injured individuals. The
                          intervention of the courts puts this choice before municipalities – forces
                          officials to weigh the costs of their decisions
   Police Protection Rule: No tort duty to provide police protection, except in cases where a
    “special relationship” exists (Cuffy v. City of New York):
        1. a promise or action that the municipality has a duty to act on behalf of the injured
        2. knowledge by the municipality that inaction could lead to harm
        3. some form of direct contact b/t police and injured party
        4. party’s justifiable reliance on the municipality’s undertaking
        *In a 911 call, a special relationship is made when the victim has direct communication
        with 911 and relies on the call for help.

   Municipal Transport: A public transportation authority owes no duty to protect a person on
    its premises from assault by a third person without a special relationship b/t the authority and
    the person assaulted (doesn’t matter if nongovernmental common carrier would be held
    liable) – it would cause too much an impact on the transit authority’s resources. (Weiner v.
    Metropolitan Transportation Authority)

   Ministerial Governmental Acts: conduct requiring adherence to a governing rule, with a
    compulsory result – municipal employer can be held negligent. BUT, a ministerial wrong
    just removes governmental immunity, it does not automatically make the government liable
    for the injury
   To sustain liability against a municipality, the duty breached must be more than that owed the
    public at large.
   Violation of a statute resulting in injury gives rise to tort action only if the intent of the statute
    is to protect an individual against an invasion of a property or personal interest.
         o Lauer (plaintiff, respondent) v. City of New York (defendant, appellant), NY Court
             of Appeals, 2000
                   Facts:
                           3 year-old Andrew Lauer died on Aug. 7 1993. Lilavois, a NYC
                              medical examiner, did an autopsy and discovered that the child’s
                              brain injury was from blunt injuries to the head and was a homicide.
                              The death certificate said this was the cause of death, and the child’s
                              father was pursued as a suspect.
                           Weeks later another autopsy by the same examiner found the cause
                              of death a brain aneurysm caused the child’s death. He did nothing
                              to correct the death certificate or notify the police.
                           17 months later, a newspaper expose revealed the true death of the
                              boy, and the death certificate was amended – the examiner resigned.
                           Cause of Action: emotional distress caused by negligence of D

   Municipality owes to the public the absolute duty of keeping its streets in a reasonably safe
    condition.
   In traffic design, the State is given qualified immunity – a governmental body is always given
    deference to the safety plan for its highways b/c they are experts


                                                  - 29 -
   Once the state is made aware of a dangerous traffic condition it must undertake reasonable
    study thereof with an eye toward alleviating the danger and must continually review this plan.
   If the State is made aware of a dangerous highway condition and does not fix the problem
    within a reasonable amount of time, they can be held liable for injuries resulting from the
    lack of attention.
         o Friedman (plaintiff, respondent) v. State of New York (defendant, appellant), NY
             Court of Appeals, 1986
             o Freidman v. State:
                     1. P was hurt when his car veered into the oncoming lane of traffic, which
                          would have been prevented if their was a median in the highway.
                     2. The highway department did a study five years prior to the accident and
                          found that a barrier would be effective in reducing accidents, but did not
                          implement the plan by the time of the Freidman accident.
                     3. State claims that funding priorities and project revisions were reason for
                          the delay.
                     4. Trial and Appellate Courts found for Freidman b/c 5 years was an
                          unreasonable delay in constructing the median
             o Cataldo v. NY State Thruway Authority:
                     1. On Tappen See bridge, accident occurred b/c of no median. Highway
                          dept. studies b/t 1962 and 1972 found that the construction of a median
                          would have caused more accidents than it would have presented.
                     2. Trial and Appellate Courts found for State.
             o Muller v. State of New York:
                     1. Same as in Cataldo, but later.
                     2. State had by this time determined that a median should be installed, but
                          only three years had passed since this decision and this was not an
                          unreasonable delay.
                     3. Trial and Appellate Courts found for State.
         o Holding:
                   Freidman: the State did not construct the median within a reasonable amount
                     of time, thus is negligent – State did not present adequate evidence stating
                     why the delay occurred
                   Muller: unreasonable delay; State should be held accountable, appellate
                     decision reversed
                   Cataldo: State not liable b/c safety plans determined that a barrier would not
                     be safe




                   The Duty Requirement: Nonphysical Harm

Emotional Harm (Negligent Infliction of)
 There is no questions about liability for physical harms, or for mental/emotional harms that
  are a direct result of physical harms.
 Traditionally, in cases where there was no physical injury, there could be no recovery for
  emotional injury, due to fear of fake claims. But if there was any physical manifestation,
  however slight, P could recover on an emotional impact claim.



                                               - 30 -
   These cases have emotional harm as the primary harm without physical harm, hence why
    there is disagreement over if the claims are legitimate.

The first step away from direct physical requirement:
 Fright:
        o Great emotion, may, and sometimes does, produce physical effects. A physical
             injury may be directly traceable to fright, and so may be caused by it
        o Where negligence causes fright from a reasonable fear of immediate personal injury,
             which fright is adequately demonstrated to have resulted in substantial bodily injury
             or sickness, the injured person may recover if such bodily injury or sickness would be
             regarded as proper elements of damage had they occurred as a consequence of direct
             physical injury rather than fright.
        o Falzone (plaintiff, appellant) v. Busch (defendant, respondent), SC of NJ, 1965
                   Facts:
                      Ps husband, Charles Falzone, was standing on the side of a highway
                          when he was struck by a car that was negligently being driven by the D.
                      P watched the accident happen and feared for her safety (was frightened),
                          which later caused her illness and required medical attention.
                   Holding: D is liable for injury resulting from fright of the negligent act
                   This case is only a modest departure from the original requirement of
                     physical harm, because a physical manifestation must result from emotional
                     harm – still grounded in bias of requiring physical harm
 Common law of torts: does not permit recovery for negligently inflicted emotional distress
   unless the distress falls within certain categories that amount to recovery-permitting
   exceptions, such as when emotional distress accompanies a physical injury.
 The Federal Employer Liability Act sometimes permits recovery for damages for negligent
   infliction of emotional distress and the P falls within the “zone of danger”: those Ps who
   sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in
   immediate risk of physical harm by that conduct (Gottshall).
        o Metro-North Commuter RR (defendant, appellant) v. Buckley (plaintiff,
             respondent), US Supreme Court, 1997
                   Facts:
                           Buckley worked as a pipe-fitter for the RR and was exposed to
                               asbestos for one hour per day for three years. Since 1987, when
                               Buckley attended an asbestos awareness class, he has feared that he
                               would develop cancer.
                           Since 1989, Buckley has had periodic medical checkups that have
                               not revealed any evidence of cancer or other asbestos-related disease.
                           Buckley sued under the FELA, a statute that permits a RR worker to
                               recover from an injury resulting from this employer’s negligence.
                           Buckley sues for emotional distress and for future medical checkups.
                               D argues that Buckley is not covered under the FELA because no
                               physical injuries have resulted.
                   Holding:
                           Because he has not suffered any physical impact as a result of the
                               asbestos removal, he is not covered under the FELA and thus not
                               entitled to relief.
                           Common law precedent does not favor Buckley – common law
                               courts have denied recovery to those who, like Buckley, are disease
                               and symptom free.


                                               - 31 -
   HIV Cases: courts tend to require the plaintiff to show that the needle in question actually
    contained the HIV virus for relief in cases where P develops fear of HIV

Physical Impact no Longer Required:
 Reform of Requirement of Physical Impact: A defendant is bound to foresee psychic harm
   only when such psychic harm reasonably could be expected to befall the ordinary sensitive
   person (ordinary foreseeability test)
        o Previously have required that Ps show physical injury resulting from emotional
            distress, thus preventing spurious claims – this arbitrary requirement should not bar
            legitimate claims from compensation; this standard should be used instead
        o Use the traditional tort principles of reasonable person and foreseeability to provide
            protection against spurious claims.
        o Gammon (plaintiff, appellant) v. Osteopathic Hospital of Maine (defendant,
            respondent), Supreme Judicial Court of Maine, 1987
                  Facts: P’s father died in Ds hospital. When asked by the P to send the
                     personal effects of the deceased home, the D mistakenly sent a severed leg
                     from another body. The P thought it was the leg of his father and suffered
                     severe emotional distress that caused his relationship with his wife and
                     children to suffer.
                  Holding:
                          D should have foreseen that mental distress would result from their
                              actions, and a jury might find that the D did not exercise reasonable
                              care to prevent this distress.
                          A person’s psychic well-being is just as important as his physical
                              well-being.
 Factors to determine if the emotional injury would be compensable because it was
   foreseeable:
   1. Whether P was near the scene of the accident
   2. Whether shock resulted from a direct emotional impact from sensory and
        contemporaneous observance of the accident
   3. Whether P and the victim were closely related (most crucial)
   4. Severity of the physical injury causing emotional distress
 Cause of action for the negligent infliction of emotional distress requires proof of the
   following elements:
   1. death or serious physical injury of another caused by Ds negligence
   2. a marital or intimate familial relationship b/t P and the injured person
   3. observation of the death or injury at the scene of the accident
   4. resulting severe emotional distress
        o Portee (plaintiff, appellant) v. Jaffee (defendant, respondent), SC of New Jersey,
            1980
                  Facts:
                          P’s son became trapped in the elevator between the elevator doors
                              and the walls of the shaft. The elevator began operating, and
                              dragged the boy to the third floor. The mother watched as the police
                              tried to free the boy. The boy suffered internal injuries and multiple
                              fractures, and died before he could be extracted.
                          The mother attempted suicide and became severely depressed. She
                              required extensive psychotherapy and counseling.




                                               - 32 -
                           Holding: P should be allowed compensation because of the above
                            factors

Zone of Danger Requirement:
 To recover for negligent emotional distress, the P must be within the zone of danger and
   prove their injuries resulted from contemporaneous observation of serious physical injury or
   death caused by Ds negligence.
 Hospitals do not owe a direct duty the parents of hospitalized children, only to the
   hospitalized children themselves (Kalina v. General Hospital). Parents in this case are
   interested bystanders. Everyone who has been damaged by an interruption in the expected
   tenor of his life does not have a cause of action.
        o Johnson (plaintiff, respondent) v. Jamaica Hospital (defendant, appellant), Court of
            Appeals of NY, 1984
                 Facts:
                          Ps daughter, Kawana, was born in Ds hospital. When P returned to
                             the hospital a week later, her daughter had been abducted. Police
                             located and returned the baby 4.5 months later. P sued for emotional
                             distress she underwent while the police were searching for her
                             daughter. A separate suit was filed on behalf of Kawana.
                          Holding: Ps parents cannot sue for emotional distress they have
                             suffered as a result of direct injury inflicted upon their daughter

   Emotional Distress Due to Loss of Property: Persons who underwent emotional distress due
    to negligently inflicted damage to property are generally not awarded relief for their mental
    suffering (including damage to pets). [Lubner v. City of LA]
   Loss of Consortium: Virtually all states have recognized the loss of consortium (loss of the
    benefits that one spouse is entitled to receive from the other, including companionship,
    cooperation, aid, affection and sexual relations) action for both spouses. But you generally
    must be married. This has been extended to parents for the loss of consortium from an
    injured child (but not visa-versa). This claim will be hindered if the injured party does not
    going along with the claim.



Economic Harm (Negligent Infliction of)
 In General: Tort law has been reluctant to extend liability for negligent conduct that results
   solely in economic harm to P (in contrast to the freedom with which economic losses are
   recoverable in tort actions based on physical harm to P). Keeps contract law and tort law
   separate.
 Economic Loss Caused by Physical Harm to Another: In general, P cannot recover in
   negligence for economic loss resulting from physical harm to another or to property in which
   P has no proprietary interest. A fortiori, unless there is some specific tort cause of action
   allowing recovery, P cannot recover for any other negligent conduct that results solely in
   economic loss.
 Exceptions:
       o Exercise of Public Right - In a few cases, a plaintiff whose business is based on the
            exercise of a public right has been allowed to recover for economic loss caused by
            D's negligent interference with that right.
       o Negligent Performance of a Service - In the case of negligence in the rendition of
            certain professional or business services (accountants and auditors, surveyors, termite


                                               - 33 -
            inspectors, engineers, attorneys, notaries public, architects, weighers, and telegraph
            companies), liability has been extended in favor of clients (and sometimes others)
            who foreseeably relied on the service or who were its intended beneficiaries.
            Liability extends only to the person (or one of a limited, specific and identifiable
            group of persons) for whose benefit and guidance the furnisher intends to supply the
            information, or where the furnisher knows that the recipient intends to rely on it. If
            D has a public duty to furnish the information, D's liability extends to pecuniary loss
            suffered by any member of the class of persons for whose benefit the duty is created.
                 Restatement §552: limits the potential liability to accountants that have
                     actual knowledge of the limited, though unnamed, group of potential third
                     parties that will rely upon the report, as well as actual knowledge of the
                     particular financial transaction that such information is designed to influence.
                     The foreseeability is determined at the time the report is published, not years
                     down the road.
        o   Nycal Corporation (plaintiff, appellant) v. KPMG (defendant, respondent),
            Supreme Judicial Court of MA, 1998
                 Facts:
                          D completed an audit of Gulf which was included in its 1990 annual
                              report which became public on February 22, 1991.
                          P used this annual report in its decision to enter into negotiations
                              with Gulf in March 1991 for the purchase of $34 million of Gulf
                              stock
                          D did not know if the transaction until a few days prior to the July
                              12, 1991 closing of the deal. The binding agreements were signed
                              before the D knew of the transaction.
                 There are 3 tests for determining if accountants should be held liable to
                     noncontractual third parties:
                          Foreseeability test: From Palsgraf, the accountant should be held
                              liable to any known or unknown person who reasonably could have
                              been foreseen to obtain the document and rely upon it; declined b/c
                              opened up accountants to lots of liability
                          Near-privity test: limits accountant’s exposure to those in privity or a
                              relationship approaching privity. It requires that for the accountant
                              to be held liable, there must be reliance by the third party, knowledge
                              by the accountant that the third party will rely, and conduct by the
                              accountant providing a direct linkage to the third party; declined
                              because it was not restrictive enough
                          Restatement §552: applied

   D owes a duty of care to take reasonable measures to avoid the risk of causing economic
    damages, aside some physical injury, to particular plaintiffs or plaintiffs comprising an
    identifiable class whom D knows or is likely to know will suffer such damages from its
    conduct. The D can be held liable for damages proximately caused by its breach of duty.
        o The class of possible plaintiffs is not just known plaintiffs, but also plaintiffs that the
             D may not personally know but fall within the foreseeability of harm’s path.
        o People Express Airlines (plaintiff, appellant) v. Consolidated Rail Corporation
             (defendant, respondent), SC of NJ, 1985
                  Facts:
                          A fire began in the freight yard of Conrail. P asserted at oral
                             argument that as least some of the Ds were aware that ethylene oxide



                                                - 34 -
                             was a volatile substance and that emergency plans had been
                             prepared.
                            Municipal authorities evacuated the area within a 1-mile radius
                             surrounding the fire. This are included the North Terminal of the
                             Newark International Airport, where People’s Express business is
                             located. P is suing for business-interruption losses as a result of the
                             explosion
                            No physical injuries or property damages occurred as a result
       Rationale:
            o Rationale for nonrecovery without physical injuries or property damage:
                    Requiring damage or injury is able to limit the foreseeable consequences
                      of negligent conduct
                    Acts as a clamp on otherwise boundless liability because it proves the
                      link between the negligent act and the plaintiff
            o Rationale for recovery without physical injuries or property damage:
                    The above fear of limitless liability is only a limitation on, not denial of,
                      liability.
                    The physical harm requirement needlessly showers compensation along
                      the path of destruction, despite the fact that the rule prohibits
                      compensation for meritorious claims.
                    Contemporary tort doctrine says that wronged persons should be
                      compensated for their injuries, and those that made the incident happen
                      should bear the cost of their tortious conduct.



Interference With Procreation and End-of-Life Decisions

Many Types of Cases Under This Category:
   1. Wrongful Death – most states allow this
   2. Wrongful Pregnancy/Conception – most states allow this
   3. Wrongful Birth – division of opinion (not in PA…birth is always good) (NJ says that you
      have been denied the right of abortion)
   4. Wrongful Life – child doesn’t like to be alive and sues doctor (NJ allows this, but not PA
      or DE)
   5. Wrongful Adoption – adoption agency knew child was from incestuous relationship, but
      didn’t tell adopting parents (no consensus on this issue…but PA probably would not
      because they are generally more conservative)

Prenatal Harm:
 Child Born Alive: One who tortiously causes harm to an unborn child is subject to liability to
    the child for such harm if the child is subsequently born alive. The prevailing view is that the
    fetus need not have been viable at the time of the injury. If the child is born alive but then
    dies from the injury, a wrongful death action can be maintained.
 Child Not Born Alive: As to the wrongful death of an unborn child, most courts allow the
    action if the fetus was viable at the time of the injury.

Wrongful Pregnancy/Contraception → Wrongful Birth:
 Most jurisdictions have considered negligent sterilization a tort for which recovery would be
   allowed under state law. When D's negligence fails to prevent conception resulting in the


                                               - 35 -
    birth of an unwanted but healthy child, most courts allow the parents to recover, but their
    damages are limited to the cost of pre-natal care and delivery and the associated pain and
    other general damages. Some courts have allowed, in addition, child-rearing expenses, most
    (but not all) requiring that such expenses be offset by the accompanying financial and
    emotional benefits to the parents (see below for Benefit to Offset Harm Rule)
   Damages: Modified Limited-recovery Rule - same as limited-recovery rule except for no
    compensation for emotional distress out of having a healthy child. If the child is mentally or
    physically handicapped, special medical and educational expenses beyond normal rearing
    costs should be allowed (and would not stop when the child reaches majority), as well as
    compensation for emotional distress of having the disabled child.
        o Rationale for modified limited-recovery rule:
                   No compensation for emotional damages for healthy child because not sure if
                      this is a loss to parents
                   No rearing costs because the parents did decide to keep the child instead of
                      putting it up for adoption.
        o Emerson (plaintiff) v. Magendantz (defendant), SC of Rhode Island, 1997
                   Facts:
                            After the birth of their first child, the Emersons decided to prevent
                                future births for economic reasons by the wife getting sterilized.
                                They hired the D to do the surgical tubal ligation.
                            Five months later, the wife was confirmed pregnant and gave birth 9
                                months later to a daughter, Kristen, who suffers from congenital
                                birth defects.
   Benefit to Offset Harm Rule: When the Ds tortious conduct has caused harm to the P and in
    so doing has created a special benefit to the P harmed, the value of benefit is considered in
    mitigation of damages, to the extent that is equitable (Restatement §920)
   Most courts now allow recovery for wrongful birth. Some courts limit damages to the
    parents' pecuniary losses, but others now award damages for their emotional distress as well.

Wrongful Life Claims: Courts generally do not recognize cause of action for wrongful life claims
(child claims it would be better off to have not lived than be born) b/c you can’t value
nonexistence. A few courts have allowed such claims, the damages being limited to the child's
extraordinary medical expenses (to the extent not recovered by the parents).

Wrongful Living (negligently kept alive against wishes): US Supreme Court has generally
protected the liberty interest in refusing unwanted medical treatment, but has recognized that
states have an interest in preserving life, and may require a high standard of proof before
imputing refusal to an incompetent person (Cruzan); but courts sill usually will not recognize this
cause of action



                                           Causation

Cause in Fact
- two types: substantial factor and “but for”




                                                - 36 -
Definition: seeks to tie D’s conduct to P’s harm in an almost physical or scientific way; the event
without which an injury would not have been incurred. Cause in fact exists when the "cause-and-
effect" chain of events leading to P's injury includes D's tortious conduct.

   If the P can show with reasonable certainty that the cause of the injury was the responsibility
    of the D, P need not disprove all other possible causes of the injury
         o Stubbs (plaintiff, appellant) v. City of Rochester (defendant, respondent), NY Court
             of Appeals, 1919
                  Facts:
                          D negligently mixed the Hemlock (drinking water) and Holly (non-
                             potable water) together, which contaminated the drinking water.
                             City in charge of both systems. P claims to have contracted typhoid
                             fever from the drinking water.
                          D claims that there are seven possible sources of typhoid fever, and P
                             must prove that none of these are the true cause of his illness.
                          P provided much evidence that the drinking water was the cause in
                             fact of his illness
                  Holding: Ps case should not be dismissed as a matter of law for failure to
                    show proof of causation – a jury should be able to decide the liability from
                    the facts

   Probabilistic Recovery for Harm in the Future: Litigants exposed to a harmful agent rarely
    will recover damages for the mere risk of future harm, unless there is a “better-than-even”
    chance they will suffer from the exposure. The exposed person must wait until the disease
    manifests itself.
        o Problems: ignores discouraging effect of tort law; company may be unable to pay for
            loss when the disease manifests; hard to show causation from a distant occurrence
            when many other things have happened since
        o Benefits: don’t want to pay someone who never contracts a disease; what if they
            blow all the money before the medical costs of future illness start accruing?

   To meet the requirement that Ds behavior was a substantial factor in Ps injury, P must show:
        o Ds negligent act or omission was a but for cause of the injury
        o The negligence was causally linked to the harm, and
        o Ds negligent act or omission was proximate to the resulting injury
   To support a finding by a trier of fact that the negligent behavior caused the harm, it must be
    shown that:
        o a negligent act was deemed wrongful because that act increased the chances that a
             particular type of accident would occur
        o a mishap of that very sort did happen
        *If this is proven, the negligent party must disprove the “but for” cause and prove that the
        wrongful conduct was not a substantial factor.
        o Zuchowicz (plaintiff, respondent) v. United States (defendant, appellant), 140 F.3d
             381, US Court of Appeals, 2nd Circuit, 1998
                   Facts:
                           D gave P double the normal dosage of Danocrine, and the P took this
                              dosage for one month, then decreased the dosage to the maximum
                              dosage for two more months.
                           4 months after stopping the medication, P diagnosed with Primary
                              Pulmonary Hypertension (PPH), a lethal disease.



                                               - 37 -
                           P needed a lung transplant, but became pregnant, thus making her
                            ineligible. P died a month after giving birth to a boy. Ps estate sues
                            for negligently giving the wrong dosage of medication and thus
                            causing the injury.
                    Holding:
                         The admissibility of expert witnesses is up to the trial judge unless it
                            is clearly erroneous – appellate court defers to judgment of trial
                            judge.
                         Ds negligent overdose of Danocrine caused the PPH

   Appellate Review of Trial Court Expert Testimony: Daubert set forth the deference to the
    trial judge on issues of expert testimony admissibility, and this has been extended to include
    not only testimony based on scientific knowledge, but also testimony based on technical and
    other specialized knowledge.


Loss-of-Chance Theory:
       o Prior to the negligence by D, there was a chance that the P would have been better off
          with adequate care. B/c of the negligence, this chance has been lost.
       o The health provider’s malpractice reduced the chance of recovery.
       o The harm is the lost chance of recovery, not the initial injury.
       o There must be proof of a causal link between the negligence and the lost chance.
       o Damages: proportional to the percentage value of the patient’s chance for a better
          outcome prior to negligent act
       o Note: Cannot extend loss-of-damage to other types of cases (attorney, etc…)
         o Alberts (plaintiff, appellant) v. Schultz (defendant, respondent), SC of NM, 1999
               Facts:
                        Dee Alberts suffered from leg pain, sought the advice of Dr. Schultz.
                          Dr. Schultz saw the patient and did not administer any tests but only
                          referred patient to see a vascular specialist, Dr. Reddy.
                        Dr. Reddy performed some tests and determined that Dee needed a
                          bypass, but the bypass produced no improvement and Dee’s leg was
                          amputated two weeks after he first saw Dr. Schultz.
               Holding: The expert witnesses brought by P did not show proof to a
                  reasonable degree of medical probability that the negligence of D caused the
                  lost chance of recovery. P did not show that timely and proper medical
                  intervention would have saved Dee’s leg.
               Criticism of Loss of Chance: Defies principles of tort law; if the acts of the
                  D sis not actually cause Ps injury, then there is no rational justification for
                  requiring D to bear the cost of Ps damages.


Introduction to Joint and Several Liability:

Definitions:
   - Joint and Several Liability: plaintiffs receive full recovery b/c all defendants are held
        equally fully liable for the resulting injury
   - Several Liability: defendants are only responsible for their proportional share of damages,
        and if a responsible party is not joined in the action, then the plaintiff may not receive full
        recovery


                                                - 38 -
   Basic Doctrine:
        o P may sue two or more Ds that acted concurrently or in concert to produce a single
            injury (joint-tortfeasors) – there is joint enterprise and mutual agency; the act of one
            is the act of all and liability for all that is done is visited upon each.
        o P may recover fully from each of the Ds, depending on which one may be solvent.
        o Essentially depends if the damages can be separated as to what D caused what injury
            – if not, then they are held to be jointly and severally liable – if so, then the wrongs
            are independent and successive, and damages was be apportioned accordingly.
   Recent Changes: Five major changes that different states have made with this policy -
        1. Abolished the doctrine, leaving a solvent D only responsible for his percentage of
            fault
        2. Abolished doctrine if a D is less than a certain percentage of fault – usually 50%
        3. Kept joint and several liability for economic damages, but abolished it for non-
            economic damages
        4. Abolished doctrine is P is partially at fault, but kept it if P not at all at fault
        5. Abolished the doctrine in some tort areas and kept it in others (usually toxic and
            environmental torts)
   When Crime and Negligence Are Mixed:
        o Sometimes someone who is negligent is held liable for only their share of the injury,
            with the criminal responsible for the majority of the fault
   Immune Tortfeasors:
        o If one party is immune from liability (government workers, possibly), but the other
            Ds can be held liable, the liability can still be apportioned partially or fully to the
            immune parties, with them not paying any damages
   Contribution and Indemnity:
        o Sometimes a master, held liable under respondeat superior, can be indemnified from
            the negligent acts of his servant
   Restatement Third – Apportionment of Liability Among Multiple Tortfeasors: 5
    approaches/tracks -
        o Track A: joint and several liability (common law)
        o Track B: Several liability (P has burden to recover damages from each responsible
            party)
        o Track C: joint and several with reallocation (if one party cannot pay, the damages are
            reallocated among all other parties, including P, according to comparative
            responsibility)
            Track D: if a D’s comparative responsibility falls below a certain threshold, the
            tortfeasor is only severally liable; if he exceeds threshold, he is jointly and severally
            liable)
        o Track E: Kept joint and several liability for economic damages, but only severally for
            non-economic damages
        *Comparative fault is most often used, and allow P to recover even if he was contributory
        negligent.

   Alternative Liability: If the P proves a prima facie case proving that each D was negligent,
    the burden shifts to each D to prove that the other one is completely at fault (similar to res
    ipsa loquitur)
        o Summers (plaintiff, respondent) v. Tice (co-defendant, appellant), SC of CA, 1948




                                               - 39 -
                    Facts: Summers, Tice and Simonson were all quail hunting. Tice and
                     Simonson negligently shot Summers, unable to determine which actually
                     caused the injury to Summers.
                    Holding: Both Ds are responsible - it is not fair to have the P not get any
                     recovery if he was in no way responsible for the injury and both Ds were
                     negligent in their acts

   Market Share Concept (originally in Sindell v. Abbott Labs): liability will be proportional to
    the national market share of the defendants, and the liability will be several only, thus a P
    may not receive the full damage recovery if a manufacturer is not a party in the case
        o limiting a Ds liability to its market share will result, over the sum of cases, in liability
             on the part of a D roughly equal to the injuries the D actually caused
        o Hymowitz (plaintiff, respondent) v. Eli Lily & Co. (co-defendant, appellant), Court
             of Appeals of NY, 1989
                  Facts: Defendants are 300 drug manufacturers who produced DES, a drug
                     taken in the mid 20th century by pregnant women to avoid miscarriages. The
                     drug was found to cause cancer in daughters born to mothers who took DES
                     during pregnancy. P sues b/c her mother took DES during pregnancy, and
                     now she has cancer. There was a large identification problem because of so
                     many manufacturers, long latency of injuries, and identical chemical
                     composition of drug.
                  Holding: Ds only liable for their national market share (Problems applying
                     alternative liability to present case: far more defendants, many years elapse
                     b/t cause and injury, thus Ds are in no better position to prove who is liable
                     and who isn’t)

Comparison of Exceptions to Causation Requirement:
    Joint and Several Liability: Person acting individually or in concert with someone who
      was negligent (Summers v. Tice); impossible to tell which person actually caused the
      injury, thus both are held liable. Also, even if someone was proved to not be the actual
      cause of the injury, the other person acting in concert can be held liable for acting
      negligent
          o Problem: If one D cannot pay their share of the damages, the other D must pay
               the entire amount, even though both were negligent. This was seen as not fair.
    Enterprise Liability Rule: en entire enterprise has a standard practice that is harmful to
      the public, thus if a person cannot show which company actually caused the injury, the
      whole enterprise can be held liable (similar to Hymowitz case with market share liability)
    Plaintiff Threshold Liability Rule: If the Ps negligence is responsible for above a certain
      threshold, he is held responsible for his injury.

Comparison of Damages:
    Joint and Several Liability: The damages are divided among the number of Ds. If there
      are five Ds, then each pays 1/5 of the damages. If one D cannot pay their share of the
      damages, the other D must pay the entire amount, even though both were negligent. The
      D that paid all the damages can then sue the insolvent D for his share of damages.
    Comparative Fault without Joint and Several Liability: each D is responsible for only
      their share of liability. (If you add on joint and several with comparative fault, as some
      states do, if one D cannot pay his share of the damages, then the others must cover his
      share according to their respective shares of liability.)




                                                - 40 -
       Market Share Liability: when it is undeterminable who created the product that injured
        the P, the whole market may be held liable in proportion to each company’s market share.
        Thus a company is held generally liable for creating a product that was negligently
        produced.
    *Even if the P is responsible for a portion of the fault, he can recover for the portion of the
    fault that was caused by the D(s).

Multiple Causes:
 Concurrent Tortfeasors, Indivisible Injury: If the tortious conduct of D1 and D2 concur and
  both are causes in fact of P's injury, either or both are subject to liability in full for all of P's
  damages. It does not matter that D1 and D2 did not act in concert, or that neither's conduct
  by itself would have caused P's injury.
 Concurrent Tortfeasors, Divisible Injury: General Rule - If D1 and D2 each cause separate
  parts of P's harm, each will be liable only for the part he caused if it is even theoretically
  possible to determine who caused which part.
 Exceptions:
       o Concert of Action: Both D1 and D2 are liable for all of P's damages, even though
           divisible, if they were acting in concert or engaged in a joint enterprise.
       o Risk of Further Injury: If D's tortious conduct injures P and also foreseeably exposes
           P to the risk of further injury by another, D is liable both for the injury he caused and
           also for such further injury.
 Burden of Proof: Traditionally, the burden was on P to prove which part of his injury was
  attributable to which defendant, at the risk of failing to recover against any. Today, in some
  circumstances defendants may have the burden of proof on apportionment.


The Special Case of Toxic Harms:

   Differences between Toxic and Environmental Torts and Classic Torts:
    1. Problems of Identification: Toxins often breed disease rather than immediate injury, thus
        there are serious time lag issues. Causation in toxic tort cases relies heavily on evidence
        and probability judgments.
    2. Problems of Boundaries: the claims are potentially unbounded – generations not yet
        conceived could suffer genetic damage (Hymowitz case). The aggregate exposure can be
        hard to define in advance
    3. Problems of Source: environmental harm is a consequence of the aggregate risk created
        by a considerable number of independently acting enterprises – the injury-causing toxin
        may soon be mixed into a common pool. Environmental harm is very often collective
        harm.

   Three sizes of Environmental Torts:
       o Individualized harm
       o Multiple party harm
       o Mass tort claims – here, class members must show similar problems in order to be
            classified into the same class
   Medical Monitoring Costs:
       o Generally, these costs are given b/c (Potter v. Firestone):
                 It serves an important public health interest
                 Deterrence value



                                                 - 41 -
                   Prevent or mitigate future illness, thus reducing the overall costs to the
                    responsible parties
                It is fair and just
        o   Even if the resulting disease is invariable fatal, monitoring costs should still be
            awarded b/c it improves the Q of L of injured party to know when his life will end


Proximate Cause

o   Must have both cause in fact AND proximate cause. Sometimes cause in fact exists (the
    dropping of the package did cause Palsgraf’s injury), but this was not foreseeable and thus
    was not the proximate cause of the injury. Thus there was no causation and case fails.
o   Polemis, Wagonmound, and Palsgraf are obvious cases of cause in fact, but not proximate
    cause.
o   To establish proximate causation, must have direct causation, foreseeability (that the D could
    foresee Ps injury), and proximate time and location.
o   To establish Proximate Causation, prove:
    1. a direct causation b/t injured party and proposed cause
    2. that the D could foresee Ps injury
    3. that the injury was in proximate time and location to the proposed cause
o   Divergent Views:
        o Majority View: Under the majority view, D's liability is limited (1) to those
            consequences, the foreseeability of which made D's conduct tortious in the first place,
            and (2) to persons within that foreseeable zone of danger. This is sometimes known
            as the "risk principle."
        o Minority View: Under the minority view, D is subject to liability for consequences
            which are a direct result of his tortious conduct, whether or not foreseeable. The
            result is direct if it follows in an unbroken natural sequence from the effect of D's act
            upon conditions existing and forces already in operation at the time, without the
            intervention of any external forces which were not then in active operation.
        o Restatement View: The Restatement (§435) adopts a middle view. D is subject to
            liability if he could have foreseen any harm from his tortious conduct, even though
            the manner or extent of the harm was unforeseeable, unless the court finds it "highly
            extraordinary" that the conduct should have brought about the harm.
        o Current Status of the Risk Principle: Although most courts follow Cardozo's
            approach in the Palsgraf case and limit D's liability to the foreseeable risks which
            made his conduct negligent, they tend to allow juries to determine when the harm
            realized is too remote from D's negligence. They tend to see all causation issues as
            for the jury, and questions as to whether the risk realized is too disproportionate or
            different from the risk which made D's conduct tortious as questions of duty for the
            court.
o   Why do we try to link person that caused the injury to the injured party?
        - Fairness
        - Deterrence and incentives for future behavior
        - Administrative necessity
        - Predictability/Consistency
        - Efficiency/Cost Internalizing

Unexpected Harm:




                                               - 42 -
   Eggshell Plaintiff Rule: requires the D to take his P as he finds him, even if that means that
    the defendant must compensate the P for harm an ordinary person would not have suffered
    (unforeseeable consequences). The injury, not the dormant condition, is the proximate cause
    of Ps harm. (Dulieu v. White & Sons)
        o Eggshell Plaintiff Theory can be applied to preexisting mental illness as well
            (Bartolone v. Jeckovich)
        o Benn (plaintiff, appellant) v. Thomas (defendant, respondent), SC of IA, 1994
                 Facts: D rear-ended P, who suffered from a history of coronary disease. P
                     died six days after the accident as a result of complications resulting from the
                     accident (per testimony of medical expert). Estate of P sues D.
                 Holding: Ds negligence may have proximately caused Ps death, thus jury
                     should have been instructed on Eggshell Plaintiff Theory

   Foreseeability of Harm: (Overturning Polemis) a man must be considered to be responsible
    only for the probable direct or indirect consequences of his act that are reasonably
    foreseeable.
   Causal Link Requirement: even if Ds wrong was a but for cause of the injury in a given case,
    no liability ensues unless Ds wrong increases the chances of such harm occurring in general.
   But For Requirement: even if what the D did greatly increased the risk of certain injuries
    occurring, unless it was a but for cause of the specific harm that actually came about, no
    liability will be assessed.
        o Overseas Tankship (U.K.) Ltd. (plaintiff, respondent) v. Morts Dock &
              Engineering Co. (The Wagon Mound) (defendant, appellant), Privy Council, 1961
                  Facts: P owned a wharf in Sydney, Australia. The Wagon Mound ship was 600
                  feet away from the wharf and taking on furnace oil. A large quantity of furnace
                  oil spilled into the bay and some of it concentrated near wharf. P stopped all
                  welding and burning until he could assess the danger, but then was advised by
                  the D that it was okay to resume business activities. For 2 days all was OK, but
                  then the oil ignited near the wharf causing serious damage to wharf and Ps
                  equipment. A spark ignited a piece of cotton on a floating piece of wood, which
                  started the oil to burn.
                   Holding: the damage caused is not reasonably foreseeable, thus D should not
                       be held liable


Unexpected Manner:

   The negligence of an intervening third party may relieve a person of liability for his own
    negligence.
        o McLaughlin (plaintiff, respondent) v. Mine Safety Appliances (defendant,
            appellant), Court of Appeals of NY, 1962
                 Facts: Fire department came and rescued a small unconscious girl who has
                    nearly drowned. To warm her, a fireman instructed a nurse nearby to put
                    heat blocks on the girl. The nurse applied the heat blocks, but they needed to
                    be insulated to prevent burns. P sues for burns she received as a result of the
                    heat blocks.
                 Holding: because it was not foreseeable that the fireman, who had training
                    with the blocks, would give them to a third person without instruction, the
                    manufacturer is not held liable.




                                               - 43 -
Unexpected Victim:
 Negligence is not actionable unless it involves the invasion of a legally protected interest, the
   violation of a right.
 If the defendant would have observed a duty to the plaintiff that was owed to the plaintiff and
   thus prevented the accident, the defendant would be negligent.
 The “eye of vigilance” must perceive the risk of damage.
       o Helen Palsgraf (plaintiff, respondent) v. The Long Island Railroad Company
           (defendant, appellant), Court of Appeals of New York, 1928
                 Facts: Plaintiff passenger waiting for train on platform when another train
                     came into station. Two men were running for train while it was in motion,
                     one made the train and the other was having a bit more difficulty getting on
                     the train, appeared unsteady, so the conductor on the train as well as another
                     employee helped the passenger get on the train. While being helped, the
                     passenger dropped a nondescript bundle he was carrying under his arm.
                     Although unknowing to anyone just looking at the bundle, the bundle
                     contained explosive fireworks which exploded when dropped. The explosion
                     caused a large scale to fall onto the plaintiff causing severe injuries and
                     hence her suit for recovery of damages.
                 Holding:
                           Plaintiff’s rights were not violated because one’s bodily injury is
                              only protected against some acts. If the violation of security is not
                              willful, then the possibility of danger must be apparent even though
                              the harm was unintended.
                           The hazard was not apparent to the defendant’s employees (the guard
                              could have thrown the package down and not expected the explosion
                              to ensue).
                 Dissent (Andrews): It is the act itself, not the intent of the actor, that is
                     important. Everyone has a duty to the world around him or her. Because the
                     act of the defendant’s employees was in itself negligent, then all the actions
                     caused by the action are the responsibility of the wrongdoer. In this case the
                     damages are so connected to the negligence that the latter are said to be the
                     proximate cause of the former. There must be a direct connection, which
                     does exist in this case. Injury in some form was most probable.

   Rescue: A man rescuing his cousin was hurt due to D RR Co.’s negligence, but was denied
    recovery in trial court b/c the RR Co. did not invite him to rescue his cousin, thus his injury
    was not foreseeable. (Wagner) Cardozo reversed, stating that danger invited rescue.
   Distance: A D negligently hit a box controlling the traffic signals for several intersections. It
    made a traffic signal go out two miles away, and P was hurt in a collision. Liability was
    enforced (Ferroggiaro).
   Fire: the spread of fire caused by Ds negligently maintained engine caused Ps building to
    burn – court held that it was not foreseeable that the other building would burn, only that the
    nearby buildings would burn. (Ryan v. NY Central RR) This rule still holds today.



                                            Defenses
The Plaintiff’s Fault



                                                - 44 -
Hypo: Don v. Carl
 Don owns a donkey and parks it on a road that is frequently traveled by automobiles. Carl
   comes along, sees donkey, buts hits the donkey.
 Don sues Carl for negligently hitting the donkey.
 Carl could assert contributory negligence/comparative negligence that Don should not have
   parked his donkey on a road with lots of traffic:
       o If contrib. negligence bars recovery, then Don could not recover any damages, and it
           doesn’t matter that Carl was also negligent. Contrib. negligence was a complete
           defense.
                But, Don could assert the last clear chance doctrine: Carl had the last clear
                   chance to not hit the donkey, even though Don had negligently put the
                   donkey in the road. The real proximate cause of the injury was Carl.
                Discover Peril Doctrine: Don is pinned by donkey in road, and Carl comes
                   negligently speeding down the road, and saw Don pinned, and didn’t do
                   anything about Don’s situation


Contributory Negligence:
 Contributory negligence is conduct by P which creates an unreasonable risk of harm to P, and
   which combines with D's negligence to cause P's injury.
 The conduct of P must be an actual cause of Ps harm
 Ps negligence must also be a proximate cause of Ps harm
 Burden of Proof: P or D may have burden of proof
 Statutes will occasionally limit contributory negligence if the statute was meant to protect
   some group against that group’s own inability to protect itself
 Limitations of Contributory Negligence:
       o Recklessness: contrib. negligence only applies in cases of negligence, not
           recklessness
       o Last Clear Chance Theory: P did put himself in a dangerous situation that led to
           injury, but D failed to utilize the “last clear chance” to avoid the injury to P
                The doctrine of "last clear chance" is now primarily of historical interest; it
                    survives in a dwindling minority of jurisdictions.
                The doctrine applies only when D's negligence is later in time than P's
                    contributory negligence. In essence, P (or P's property) is in a zone of danger
                    from which he cannot escape in time, leaving D with the last opportunity to
                    do something to prevent the harm which otherwise will occur. If D then
                    negligently fails to act to prevent the harm, he is not permitted to use P's
                    prior negligence as a defense.
                Seems to absolve any assertion of contrib. negligence (?)
       o Discover Peril Doctrine: If you discover peril while being negligent and do nothing
           about it, then your negligence can trump contrib. negligence of P.
       o Refusal to Impute Contributory Negligence: all imputed contributory negligence has
           been eliminated over the years
       o Jury’s Role: Jury can decide better if P was contributory negligent and will reduce
           his damage awards accordingly
 If P is AT ALL contributory negligent, then recovery is barred
 Only a few states still have this strict doctrine (AL, MD, NC, VA)




                                               - 45 -
Comparative Negligence:
 All but four states have finally accepted the doctrine of comparative negligence. Under this
  rule, P's contributory negligence is not a complete bar to his recovery. Instead, P's damages
  are calculated and then reduced by the proportion which P's fault bears to the total causative
  fault of P's harm.
 Three varieties:
      o Pure Comparative Negligence: no matter how contributory negligent D is, he can
           recover for the portion that D was negligent (even 1%)
      o Modified System #1: P who is at fault can recover under pure system as long as their
           negligence is not as great as D’s negligence
      o Modified System #2: P who is at fault can recover under pure system as long as their
           negligence is no greater than D’s negligence
 Reckless conduct should be compared to negligence (except when P is reckless in modified
  system states)
 The fault of multiple Ds is usually combined
 Usually is applied in economic cases
 Uniform Comparative Fault Act:
      o Not an official law, just a model statute drafted by lawyers
      o The fault is apportioned so that P and D are held liable – it is up to jury to decide
           percentages
      o Multiple D are asked to pay their apportioned shares, and must make up an insolvent
           D according to their proportional share, and has a right of contribution against
           insolvent D

   Under a guise of contrib. negligence, a physician cannot avoid responsibility for negligent
    treatment by asserting that the patient’s injuries were caused by the patient’s own negligence
   In medical malpractice cases, a patient’s own negligence is only contrib. negligence when it
    hinders proper care by the negligent physician – falsifying medical records, for example
        o Fritts (plaintiff, appellant) v. McKinne (defendant, respondent), Court of Civil
            Appeals of OK, 1996
                 Facts: Fritts (deceased husband to P) was driving with his friend Manus after
                    they had been drinking (not sure which was driving). Truck hit tree,
                    overturned. Fritts suffered facial injuries that required surgery, which was
                    performed by D, but during surgery D ruptured an artery in Fritts’ neck that
                    later caused death. P brings wrongful death case. In trial court, D asserted
                    contributory negligence – that D was driving drunk and also his history of
                    alcohol and substance abuse would have shortened his life anyway. P
                    objected to this use of her deceased husband’s past alcohol and drug use.
                 Holding: A court cannot interject Fritt’s negligence in the automobile
                    accident b/c it was unrelated to his medical procedures – this led the jury to
                    the wrong result. Ps past use of alcohol and drug use is only admissible
                    when analyzing expected life length and future earnings.


Avoidable Consequences:
 Even if the accident was Ds fault, P is partly to blame for his injuries b/c he failed to exercise
   sue care to mitigate the harm done after the accident
 Courts generally refuse to award damages for injuries that, although resulted from Ds
   negligence, could have been prevented through due care by the P
 Examples:


                                               - 46 -
        o   Person advised to quit smoking after being exposed to lung cancer, but doesn’t quit
            smoking
   Anticipatory Avoidable Consequences: when a P does not take reasonable care (like wearing
    a helmet when riding a motorcycle) and thus is partly to blame for the injuries caused by Ds
    negligence. Courts usually will reduce the damage award for this behavior by Ps. Other
    states who require use of seat belts or helmets have laws that ban evidence of person not
    wearing safety device as evidence.



Assumption of Risk

Express Agreements:
 Parties can create a contract that D need not exercise due care for the safety of the P
 Rule: If P, by contract or otherwise, expressly agrees to accept a risk of harm arising from D's
   negligent conduct, P cannot recover for such harm, unless the agreement is invalid as
   contrary to public policy (§496B)

   Requirements of an Exculpatory Agreement: An exculpatory agreement should be upheld if
    it is (1) freely and fairly made, (2) between parties who are in an equal bargaining position,
    and (3) there is no social interest with which it interferes. (Restatement §496B, comment b).
   Tunkl criteria for determining if an exculpatory agreement violates public policy:
    1. It concerns a business of a type generally thought suitable for public regulation.
    2. The party seeking exculpation is engaged in performing a service of great importance to
          the public, which is often a matter of practical necessity for some members of the public.
    3. The party holds itself out as willing to perform this service for any member of the public
          who seeks it, or at least for any member coming within certain established standards.
    4. As a result of the essential nature of the service, in the economic setting of the
          transaction, the party invoking exculpation possesses a decisive advantage of bargaining
          strength against any member of the public who seeks [the party's] services.
    5. In exercising a superior bargaining power the party confronts the public with a
          standardized adhesion contract of exculpation, and makes no provision whereby a
          purchaser may pay additional reasonable fees and obtain protection against negligence.
    6. Finally, as a result of the transaction, the person or property of the purchaser is placed
          under the control of the seller, subject to the risk of carelessness by the seller or [the
          seller's] agents.
   This court’s determination of what exculpatory agreements violate public policy: Ultimately
    the determination of what constitutes the public interest must be made considering the totality
    of the circumstances of any given case against the backdrop of current societal expectations.
   Landowners who hold their property open to the public have a duty to the public that comes
    in: for business invitees, the ski area has the duty to warn or correct dangers which in the
    exercise of reasonable prudence in the circumstances could have been foreseen and corrected
          o Dalury (plaintiff, appellant) v. S-K-I, Ltd. (defendant, respondent), SC of VT, 1995
                     Facts: While skiing at Ds ski area, P was hurt as he skied into a metal pole
                       designed to control ski life line. P signed two waivers that waives D form all
                       liability from personal injury or property damage. P agreed to accept full
                       responsibility for his actions.
                     Holding: agreement is a violation of public policy




                                               - 47 -
Implied Assumption of Risk:
 An affirmative defense to a negligence suit by the D contending that the P knowingly and
   voluntarily subjected himself to the hazardous condition wholly absolving D of liability for
   resulting injuries
 Rule: If P knows, appreciates, and understands the risk of harm created by D's negligent or
   reckless conduct, and nevertheless voluntarily subjects himself to the risk by conduct which
   impliedly manifests his consent to accept the risk, then he is subject to the assumption of risk
   defense. The effect of the defense varies.
 Modern Status of the Defense: There is a strong trend to abolish the defense of implied
   assumption of risk as a separate defense in negligence cases on the ground that it overlaps
   completely with the doctrine of contributory negligence. In particular, jurisdictions adopting
   comparative negligence frequently merge the defenses of contributory negligence and
   assumption of risk under a general "comparative fault" concept.

   Volenti non fit injuria (no wrong is done to one who is willing): one who takes part in such a
    sport accepts the dangers that inhere in it so far as they are obvious and necessary. However,
    it would be a different case if:
                 There were dangers that were obscure or unobserved by P
                 There were dangers that were so serious as to justify the belief that
                      precautions of some kind must be taken to avert them
                 If there were many more prior similar accidents and that something must be
                      changed to prevent future accidents
        o Murphy (plaintiff, respondent) v. Steeplechase Amusement Co. (defendant,
            appellant), Court of Appeals of NY, 1929
                 Facts: P was with future wife and friends and went to Coney Island
                      Amusement Park. He stepped upon the Flopper, which according to P
                      suddenly jerked and caused him to fall, which resulted in him breaking his
                      knee cap. In addition to jerk, P claims that it was operated at a fast speed,
                      was without proper railing to prevent a fall, and that he fell upon wood, not
                      canvas (disputed by witnesses for D). D claims that power was run smoothly,
                      and there would be no other reason for the jerk, if there was one. Also, there
                      was no history of falls on the Flopper according to President of D.
                 Holding: D could not have been aware or could have prevented this
                      accident, and P should have been aware that he was running a risk by
                      stepping onto the Flopper

   Amateur Sports: there are assumed risks that come with playing amateur sports – any injury
    that comes within the normal play of the game and is not intentional or reckless is not
    negligent (if it would be actionable, it would chill participation in these sports and invite a
    flood of litigation)
         o In Sports, you DO have a duty to not increase the risk of injury (like not drinking
            alcohol while skiing)
   Baseball Games:
         o NY Law: if the baseball park has supplied screening sufficient to provide adequate
            protection for as many spectators that may be reasonably expected to desire seating at
            a game, then it has fulfilled its duty of care and cannot be held negligent
         o IL Law: stadiums not liable unless someone was sitting behind a defective screen or
            was hurt due to willful or wanton conduct
         o Many states adopted statutes that limit stadium liability because it would be
            prohibitive to put a screen b/t every visitor and the players, and ticket prices would


                                               - 48 -
            have to go up if the ballpark was held negligent in every situation (can’t price people
            out of baseball games)

   P is not barred from recovery by the assumption of risk, unless the degree of fault arising
    therefrom is greater than the negligence of the defendant. Assumption of risk does not bar a
    P from recovery unless he was more negligent than D.
         o Davenport (plaintiff) v. Cotton Hope Plantation Horizontal Property Regime
             (defendant), SC of SC, 1998
                  Facts: Cotton Hope failed to replace flood light even though told that the P
                     needed to be repaired. P was injured while using a stairwell where the flood
                     light was burned out, but D claims that P assumed the risk of this danger by
                     still using the stairwell and was comparatively negligent b/c he was more
                     negligent than D.
                  Holding: use of comparative fault 50% standard: P’s negligence/assumption
                     of risk was greater than that of D, thus judgment for D

   If a firefighter is hurt while on the job, he cannot sue the person who was negligent in
    creating the risk – but this rule does not apply to volunteer firefighters
         o Roberts (plaintiff) v. Vaughn (defendant), SC of MI, 1998
                   Facts: P was a volunteer firefighter who was hurt when he went to rescue a
                       minor woman (D) who was driving w/o a license who got in an accident
                       when she kicked him knocking him to the ground. P sues for battery, but D
                       says that he is barred from suing b/c of the firefighters rule
                   Holding: A firefighter is compensated through tax revenues for the risk that
                       he is undertaking in the normal operation of his job. Since a volunteer is not
                       paid by the taxpayers, he is not getting compensated for the increased risk of
                       the job, thus the rule doesn’t apply.


Preemption Defense:
 Preemption doctrine: states may not regulate areas that are regulated by the federal
   government in such a way that federal policy is overridden by state policy – just b/c there is a
   federal policy, it doesn’t mean that there is an intent to preempt state regulation (a federal
   policy can sometimes allow states to make their own law or allow people to sue)
       o Ex: there was a federal act that stated the boats did not need to have the safety shield
           b/c it would create a safety hazard by inhibiting steering




                                      Intentional Torts

Three levels of culpability (from most culpable to less culpable):
 Negligence: conduct which falls below the standard established by law for the protection of
   others against unreasonable risk of harm
 Recklessness: a risk that is substantially greater than that which is necessary to make his
   conduct negligent
 Intent: Requires that the actor desires to cause consequences of his act, or that he believes
   that consequences are substantially certain to result from it



                                                - 49 -
∑: If harm is intended, the tort is intentional. If not, and D's conduct merely creates a foreseeable
risk of harm, then D's conduct is either negligent or reckless depending upon the magnitude and
probability of the risk and D's consciousness of it.

In General:
 Intentional torts do not allow contributory negligence or contributory recklessness as defenses
 Although liability for negligently inflicted harm may be discharged in bankruptcy, this does
    not apply for willful and malicious injury.
 Punitive damages may be available
 Immunity Issues with Intentional Torts: Government is less likely to be able to claim
    immunity from intentional torts than with negligence

Four Intentional Torts:
   1. Battery
   2. Assault
   3. Intentional Infliction of Emotional Distress
   4. False Imprisonment

Intent
 In tort law, conduct is intentional if the actor (a) desires to cause the consequences of his act
    (purposeful), or (b) believes that the consequences are certain to result from it (knows with
    substantial certainty that harmful contact will occur; that a reasonable person would know
    with substantial certainty that harm would result)
 Children: Generally, when a minor has committed a tort with force, he is liable to be
    proceeded against as any other person would be (except that his age may be a factor in
    determining what the minor should have known, his experience, capacity, and understanding)
 Intent for Battery: when a person knows that when they commit an act they know with
    substantial certainty that another person would be harmed – the person committing the act
    need not actually have the intent to injure the P, the person just have knowledge that their
    actions, with substantial certainty, will cause harm to another person
        o Garratt (plaintiff, appellant) v. Daily (defendant, respondent), SC of WA, 1955
                  Facts: Brian Daily was visiting with Naomi Garrett (sister of P), when Ruth
                     Garrett (P) came outside and was about to sit down when Brian pulled the
                     chair from underneath her. Naomi was the only person to give testimony at
                     trial, but the trail court believed Brian’s version of what happened. Brian
                     contested that he moved the chair so he could sit down in it, and when he
                     realized that P was about to sit down in it, he tried to move it back but was
                     unable to get it back in time
                  Holding: cannot determine what Brian’s intentions were, thus should be
                     remanded for new trial to determine if he was aware of purpose or knowing
                     with substantial certainty that harm will result


Battery
 Elements to prove a prima facie case of Battery:
   1. Person must prove the act was volitional (?)
   2. Must prove intent: two senses of intent
          a. the person has the purpose of harming the other person, or
          b. the person knows with substantial certainty that harm will occur



                                               - 50 -
    3. Injury – harmful or offensive contact (based on a reasonable person standard of what is
        offensive conduct; see Wishnatsky) – this can be proximate contact (like pulling a chair
        out from under someone, or a bullet – just something that causes a harm upon the P)
                     A harmful contact is one which produces bodily harm. An offensive
                        contact is one which offends a reasonable sense of personal dignity, as
                        by being hostile, insulting, loathsome, or unduly personal.
    4. Nonconsensual; nonprivileged (a parent has the privilege to spank their child); privilege
        or consent can approve a battery
              Under old common law, a man could not sue her husband if he beat her or had no
                consensual sex…now this is not the case
    5. Causation –P caused the injury
    *The motive does not matter…you can have a good motive or bad motive (a kiss is battery
    even though it is with good motive – a doctor who does not get consent can be charged for
    battery even though he has good intentions)

o   An intent to injure P is unnecessary where D willfully sets in motion a force that in its
    ordinary course causes the injury. It is not so much physical harm, but unpermitted and
    intentional invasion of the inviolability of his person.
         This includes contract with anything so connected with the body as to be customarily
            regarded as part of the other’s person – anything grasped by the hand
         A bodily contact is offensive if it offends a reasonable sense of personal dignity
o   Picard (plaintiff, respondent) v. Barry Pontiac-Buick, Inc. (defendant, appellant), SC of
    Rhode Island, 1995
         Facts: During a brake inspection, Picard became upset and contacted a local TV
            news “troubleshooter” reporter. P says he touched her spun her around, threatening
            her, causing substantial injuries to her back. D says that he just asked why she took
            the picture and then placed his fore-finger on the camera
         Holding: P was assaulted and battered, but damages should be reviewed by lower
            court
         Tort law of privacy –going into someone’s home or personal belongings is an
            intrusion tort. D could have stated that he was invaded by someone taking his
            picture.

   Bodily contract is offensive if it offends a reasonable sense of personal dignity – it cannot
    offend a person who is unduly sensitive as to his personal dignity. It must be contract which
    is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
    There need not be a physical injury.
        o Wishnatsky (plaintiff, appellant) v. Huey (defendant, respondent), Court of Appeals
            of ND, 1998
                 Facts: P tried to enter a private meeting b/t D and another attorney, when D
                    slammed the door shut and shouted for P to get out. P sues for battery,
                    claiming that he is a born-again Christian and is very sensitive to evil spirits
                 Holding: P is unduly sensitive as to his personal dignity – a reasonable
                    person would not be offended by Ds conduct
                 The thin-skulled P rule does not apply to non-physical injury b/c some
                    objective standard is needed to prevent hyper-sensitive people from bringing
                    all sorts of claims that are trivial




                                               - 51 -
Assault
 a physical act of a threatening nature or an offer of corporal injury which puts an individual in
   reasonable fear of imminent bodily harm.
 It is Ps apprehension of injury which renders a Ds act compensable. This apprehension muse
   be the type of fear normally aroused in the mind of a reasonable person.
 Elements of a prima facie case of assault:
   1. Must prove intent: two senses of intent
            a. the person has the purpose of harming the other person
            b. the person knows with substantial certainty that harm will occur
   2. The act must place another person in apprehension of fear of imminent harm
   3. In assault, there must be no conditionality – you must not be able to have a way out
        (person in a room waving a gun saying get out or I’ll shoot you – there is an out)
   4. Causation of fear or apprehension
   5. No consent or privilege



False Imprisonment
 False imprisonment occurs when D, intending to confine P (or another) within boundaries
    fixed by D, so confines P, and P is conscious of the confinement or is harmed by it.
 The requisite intent is merely the intent to confine. A mistake of identity is no excuse, nor is
    a good faith belief that the confinement is justified.
 Confinement: Confinement occurs when P is prevented from leaving a given area, even
    when that area is relatively large. The confinement must be complete, and P must have no
    reasonable or safe exit or escape known to him. The confinement may be by means of actual
    or apparent physical barriers, physical force, or credible threats of physical force, or duress
    sufficient to vitiate P's consent, as where D threatens to harm another or P's valuable
    property, or restrains such property. However, merely moral or social pressure is not
    sufficient.
        o Confinement by color of legal authority is sometimes called false arrest. If D has or
             purports to have legal authority to take P into custody, exercises it, P believes that D
             has or may have such authority, and P submits against his will, there is confinement.
 Elements of False Imprisonment:
    1. Actual or Legal Intent to Restrain (the person knew or should have known that their
        actions would restrain the plaintiff)
    2. Unlawful restraint:
         may be effected by words alone, by acts alone or both; actual force is unnecessary to
             an action in false imprisonment. The ways in which an actor may bring about the
             confinement required as an element of false imprisonment include (1) actual or
             apparent physical barriers; (2) overpowering physical force, or by submission to
             physical force; (3) threats of physical force; (4) other duress; and (5) asserted legal
             authority.
         within a reasonably small bounded area, a city is too large
         The restraint must be against the plaintiff's will, and if a person voluntarily consents
             to the confinement there can be no false imprisonment. Moral pressure, as where the
             plaintiff remains with the defendant to clear himself of suspicion of theft is not
             enough; nor, as in the case of assault, are threats for the future. Any remedy for such
             wrongs must lie with the more modern tort of the intentional infliction of mental
             distress.



                                                - 52 -
   The common law tort of false imprisonment is defined as an unlawful restraint of an
    individual's personal liberty or freedom of locomotion.
        o Imprisonment - any unlawful exercise or show of force by which a person is
            compelled to remain where he does not wish to remain or to go where he does not
            wish to go. In order for a false imprisonment to be present, there must be actual or
            legal intent to restrain.
        o Lopez (plaintiff, appellant) v. Winchell’s Donut House (defendant, respondent), IL
            App. Ct., 1984
                  Facts: P was accused by D of stealing profits and detained in a back room
                     for questioning. P remained in the room for questioning to prove that she
                     was not stealing and to prove her reputation – there was no force to restrain
                     her or threat to keep her there.
                  Holding: P stayed in the interrogation room voluntarily, thus no false
                     imprisonment

   Malicious Prosecution – permits the original D, after exoneration, to bring an action for
    expenses and humiliation sustained in the first case, but this is NOT false imprisonment b/c
    the process of detainment, if any, was legal
   Citizen’s/Shoplifter Arrest – the misdemeanor must have been committed in the presence of
    the citizen and the arrested person must be proven guilty


Intentional Infliction of Emotional Distress
 Relatively recent tort (in 1940s these acts were okay, not now)
 One who by extreme and outrageous conduct intentionally or recklessly cause severe
    emotional distress to another is subject to liability; When D, by extreme and outrageous
    conduct, intentionally or recklessly causes severe emotional distress to P, D is subject to
    liability to P for that emotional distress and for any resulting bodily harm (§46)
 Elements for cause of action for emotional distress absent physical injury when:
    1. Wrongdoer’s conduct was intentional or reckless (either if D has the intent to cause this
        distress or should have known that such distress would result)
    2. The conduct was outrageous and intolerable in that it offends against the generally
        accepted standards of decency and morality. D's conduct must be extreme, outrageous,
        intolerable, and not merely insulting, profane, abusive, annoying, or even threatening.
        Unless D knows of some special sensitivity of P, mere verbal abuse, name-calling,
        rudeness, insolence, and threats to do what D has a legal right to do are generally not
        actionable, absent circumstances of aggravation.
    3. There is a causal connection b/t the wrongdoer’s conduct and the emotional distress
    4. The emotional distress was severe. Only severe emotional distress is actionable. Mere
        unhappiness, humiliation, or mild despondency for a short time is not sufficient.
        However, physical manifestation of the mental suffering or resulting bodily harm is
        usually not required.
        o Womack (plaintiff, appellant) v. Eldridge (defendant, respondent)
                   Facts: P was photographed by D (at Skateland) b/c she was hired by an
                       attorney for a person alleged in a child molestation case (Seifert). The photo
                       was presented at the trial and the children were asked if P was the man who
                       molested them – they said that he was not. The pics were used only b/c the
                       molestation occurred at Skateland. P was thus summoned to appear before
                       that court several times, and thus he charges D with causing him severe
                       emotional anguish.



                                                - 53 -
                   Holding: the jury should decide if Ds conduct was outrageous and
                    intolerable and if the emotional distress was severe

   Racial Harassment –
       o can be an emotionally-inflicted distress tort; Title VII of the Civil Rights Act
            generally gives protection
       o usually these are not tort claims (also with sexual harassment)
       o generally racial slurs do not constitute a tort and are not actionable (in other
            countries, racial slurs are actionable); there has been a scholarly movement for racial
            slurs to be actionable
       o the cases where courts held liability occurred in the workplace
   Sexual Harassment –
       o Violence Against Women Act gives private federal right of action for injury resulting
            from gender motive
       o Movement here also that these harassment cases should be torts (must prove
            outrageousness, that the conduct was highly offensive to a reasonable person)

   Intentional Interference with Family Relationships and the Resulting Emotional Distress:
        o Between Husband and Wife: two historical torts based on intention infliction of
            emotional distress –
            1. Adultery: this has been extended to wives as well; many states have abolished
                 this action b/c it is revengeful
            2. Alienation of Affection: behavior by which outsiders through any means drive a
                 wedge b/t family members – many states have abolished this also; this is also
                 applied to parent-child relationships
        o P cannot shroud an alienation of affection tort in a veil of intentional infliction of
            emotional distress if state statute bars alienation of affection actions
        o Many states now bar alienation of affection claims b/c it is not outrageous behavior
        o Other courts have held that when the infliction of emotional distress is not only
            towards the wife, but if the action disrupts a relationship with children as well, the
            action is not barred by a state statute barring alienation of affection (which is just
            alienation from wife…not children)
        o McDermott (plaintiff, appellant) v. Reynolds (defendant, respondent), SC of VA,
            2000
                  Facts: P alleges that D held an adulterous affair with his wife, and flaunted
                      this affair in front of P and his 3 children. This caused severe emotional
                      distress and P sues under this cause of action. D says that this action is
                      barred by VA statute that bars “alienation of affection”
                  Holding: this is the type of affair whose action was barred by the VA statute
                      stating that alienation from affection is not a tort in VA

   A tort has been created for a fiancé to recover for the expenses he/she incurs before the other
    fiancé breaks off the wedding – this is a purely economic tort

   Public officials are not guaranteed against publication of information criticizing them through
    defamation or libel – they can be freely criticized
   However, Public figures and public officials may not recover for intentional infliction of
    emotional distress by reason of publication of caricatures and cartoons without showing that
    the statement was both false and made with actual malice (with knowledge that the statement
    was false of with reckless disregard as to whether or not it was true)



                                               - 54 -
            o Parody is a protected First Amendment right – a cartoon is art
        o   Hustler Magazine (defendant, appellant) v. Falwell (plaintiff, respondent), US
            Supreme Court, 1988
                Facts: Inside the front cover of D was a cartoon that made fun of P’s first
                   time, a parody on an ad run by Campari liquor. P was a Christian
                   televangelist, and was portrayed at having sex the first time while drunk with
                   his mother. P sued for libel, invasion of privacy, and intentional infliction of
                   emotional distress. D claims that this is free speech guaranteed by the 1st
                   Amendment
                Holding: Protection of public figures from emotional distress is not enough
                   to deny free speech to cartoonists – the First Amendment was designed to
                   allow criticism, but not false accusations
                Falwell’s privacy might also have been invaded:
                        Appropriation of person’s name or likeness for commercial interest:
                            this misappropriation should be recoverable, and this increases the
                            more famous you are
                        False Light Tort: someone publishes something that puts you in a
                            false light – the publication can be technically true but false in
                            context


Defenses to Intentional Torts
   1. Consent
   2. Self Defense
   3. Protection of Property
   4. Private Necessity

Consent:
- plaintiff consented to the defendant’s invasive or offensive contact; There is consent when
   one is, in fact, willing for conduct to occur. It is a matter of P's subjective state of mind. It is
   valid whether or not communicated. §892
- this is used to make a prima facie case; if you don’t prove there was no consent, then you
   won’t have a prima facie case for an intentional tort
- Apparent Consent: P's words or conduct manifesting consent are sufficient to create a
   privilege to D to act in light of the apparent consent, even if P's actual (but undisclosed) state
   of mind was to the contrary.
- Conduct can manifest consent: even silence and inaction may indicate consent when such
   conduct would ordinarily be so interpreted
- Capacity to Consent: The consent must be given by one having the capacity to do so, or one
   authorized to consent for him. Infancy, intoxication, or mental incapacity normally will
   vitiate effective consent.
- Implied Consent: When an emergency actually or apparently threatens death or serious
   bodily harm and there is no time or opportunity to obtain consent, consent will be implied.

   One who engages in prize fighting, even though prohibited by law, and sustains an injury,
    should not have a right to recover any damages that he may sustain as the result of the
    combat, which he expressly consented to and engaged in as a matter of business or sport.
       o Hart (plaintiff, appellant) v. Geysel (defendant, respondent), SC of WA, 1930




                                                 - 55 -
                   Facts: P sues as executor of a prize fighter who died during an illegal fight
                    with the D. There was no anger, malicious intent to seriously injure, or
                    excessive force

Self Defense:
 D has a privilege to use so much force as reasonably appears to be immediately necessary to
    protect himself against imminent physical harm threatened by the intentional or negligent
    conduct of another. D may use force likely to inflict death or serious bodily harm only when
    (a) he reasonably believes that he is in danger of similar harm, and (b) he is not required to
    retreat or escape.
 The privilege exists even when D reasonably but mistakenly believes that self-defense is
    necessary. The reasonableness of D's belief is judged by the objective standard of the
    reasonable person of average courage.
 Where a defendant justifies his behavior on self-defense, he must not only prove that he acted
    honestly in using force, but also that his fears were reasonable under he circumstances and
    that his reaction was reasonable – he need not actually be attacked by the plaintiff, but
    plaintiff must make the defendant reasonably fearful of bodily harm
         o Courvoisier (defendant, appellant) v. Raymond (plaintiff, respondent), SC of CO,
             1896
                  Facts: D owns a jewelry store and was invaded by two men one evening
                      after his neighbor had been broken into the previous week. D shot in the air
                      to scare them away, but the men did not retreat. P, a police officer, came up
                      to the scene and approached D, but D thought P was a thief and shot him in
                      this belief. P sues D for this harm.
                  Holding: D reasonably thought that P was an attacker, and thus is not liable

   Self-Defense of a Third Party: one who defends a third person is entitled to use the same
    means as though defending himself if he correctly and reasonably believes that the
    circumstances are such as to give the third person a privilege of self-defense, and his
    intervention is necessary for the protection of the third person (RST §76)


Protection of Property:
 Rule: A possessor is privileged to use reasonable force to expel another or a chattel
    from his land, or to prevent another's imminent intrusion upon or interference with his
    land or chattels, or to prevent his dispossession, even though such conduct would
    otherwise be a tort.
   Amount of Force: D may then use force or the threat of force, but only such actual
    force as is minimally required to prevent or terminate the intrusion. Force likely to
    cause death or great bodily harm is not privileged. The intruder is not privileged to
    resist.
   Personal Rights are more important than Property Rights:
        o One may use reasonable force to protect property, but not force that will inflict great
           bodily harm or take human life, regardless if the person is a trespasser and in
           violation of the law and the killing is necessary to prevent the trespass
        o Once cannot cause great bodily injury in the protection of property unless there is
           also a threat to personal safety to justify a self-defense
        o Spring guns unlawful unless they are sued to prevent felonies of violence where
           human life is in danger
        o Katco (plaintiff, respondent) v. Briney (defendant, appellant), SC of IA, 1971


                                               - 56 -
                   Facts: D and wife owned farmland on which their grandparents and parents
                    lived, but no one had lived there for some time. The land was trespassed
                    upon several times, so D put up signs and loaded a spring gun that would
                    shoot an intruder in the leg if he entered the bedroom. There was no notice
                    of this danger. P broke into the house with a friend to steal antique bottles
                    and jars. P went into bedroom, was shot, and suffered severe leg damage.
                   Holding: D not justified in using the spring gun b/c P did not endanger his or
                    his family’s personal safety

Public Necessity/Private Necessity:
 The privilege of necessity may be invoked when D, in the course of defending himself or his
   property (or others or their property) from some threat of imminent serious harm for which P
   is not responsible, intentionally does some act reasonably deemed necessary toward that end,
   which results in injury to P's property and which would otherwise be a trespass or conversion.
 Public Necessity:
       o If the danger affects an entire community, or so many persons that the public interest
            is involved, the privilege is complete and D's tort liability is entirely excused.
       o Sometimes private property must be ascertained for the public good
       o Ex: a fire is raging in a city, and the fire department needs to make a fire wall and
            must destroy your property to do so – it is legal
 Private Necessity:
       o private necessity, in times of war or peace, may require the taking of private property
            for private purposes; but under our system of jurisprudence, compensation must be
            made
       o If the danger threatens only harm to D or his property (or to a third person or his
            property), D is privileged to commit the act which causes the trespass or conversion,
            but he is subject to liability for compensatory damages for any resulting actual
            physical harm.
       o Vincent (plaintiff, respondent) v. Lake Erie Transportation Co. (defendant,
            appellant), SC of MN, 1910
                  Facts: The steamship Reynolds, owned by D, was moored lawfully at Ps
                     dock, and after unloading its cargo, a storm came up and caused the ship to
                     be unable to leave safely. The ship then remained at the dock through the
                     night, and caused damage to the dock due to the storm.
                  Holding: the ship was kept at the dock to prevent harm to the ship and its
                     men, thus the damage done by doing so is borne by those who wanted to
                     avoid this harm
                  Dissent: the damage was unavoidable, and the person who constructs a dock
                     assumes the liability for damage done to it by boats during a storm



                                      Strict Liability


Animals
 Trespassing Animals: Possessors of all animals, including domesticated ones (excluding cats
   and dogs), are strictly liable for harm resulting from the trespass of their animals on the
   property of another.


                                              - 57 -
   Other Harm Caused By Animals:
       o Domestic Animals: One who possesses or harbors an animal customarily
           domesticated in that region is strictly liable for other harm only if (a) he knew or had
           reason to know that the animal had a harmful or dangerous propensity or trait and (b)
           that particular trait or propensity was the cause of the harm. Otherwise he is liable
           only if he was negligent.
       o Wild Animals: One who possesses or harbors animals not customarily domesticated
           in that region is strictly liable for all harm done by the animal as a result of a harmful
           or dangerous propensity or characteristic of such animals.


Abnormally Dangerous Activities
 Released Peril Doctrine: the person who for his own purposes brings on his land and collects
   and keeps anything likely to do mischief if it escapes, must keep it in at his peril, and if he
   does not do so, is prima facie answerable (strictly liable) for all the damage which is the
   natural consequence of its escape, regardless of fault
       o Defendant can be excused only by showing that the harm was actually the plaintiff’s
            fault or that it resulted from an act of God or vis major
       o Fletcher (plaintiff, appellant) v. Rylands (defendant, respondent), Exchequer
            Chamber, 1866
                  Facts: Rylands was a tenant operating a cotton mill, Fletcher was a tenant
                      operating a coal mine. Rylands had a water reservoir built on his land by
                      competent engineers, neither of whom knew that Ryland had mine shafts
                      running near the reservoir area that were abandoned. Water escaped from the
                      reservoir and filled the mine shafts which were connected to the active shafts
                      under Fletcher’s land.
       o Fletcher II Rule: Non-natural doctrine: If a person uses his land for a non-natural
            use, then he can be held strictly liable for damage resulting therefrom without regard
            for fault.
       o America didn’t recognize these principles to begin with b/c of a fear that strict
            liability would impede industrialization – courts believed that if you were harmed
            because if you have something on your land that causes harm to someone else by its
            own volition, the person harmed is compensated through the general good produced
            by the object
 The doctrine has evolved to one of liability for harm resulting from the conduct by D of
   "abnormally dangerous activities" (formerly called "ultrahazardous" activities). It is not
   necessary that the activity be conducted on D's land, or that the harm be caused by something
   which "escapes." §519
 The safety of property is generally superior in right to a particular use of a single piece of
   property by its owner – protects people who had the same injury whether the act was
   intentional or accidental; the act must be direct
       o This rule applies only to direct, not consequential (concussion)
       o this distinction b/t consequential and direct incidents is not held anymore
       o RST §520: one who carries on an abnormally dangerous activity is subject to liability
            for harm resulting from the activity, although he had exercised the utmost care to
            prevent the harm. Six factors to determine what is abnormally dangerous:
                      1. Existence of a high degree of risk of some harm to the person, land or
                          chattels of others
                      2. Likelihood that the harm that results from it will be great
                      3. Inability to eliminate the risk by the exercise of reasonable care



                                                - 58 -
                     4. Extent to which the activity is not a matter of common usage
                     5. Inappropriateness of the activity to the place where it is carried on
                     6. Extent to which its value to the community is outweighed by its
                          dangerous attributes
                     *Not a checklist, just a variety of factors to be considered
        o   Sullivan (plaintiff, respondent) v. Dunham (defendant, appellant), Court of Appeals
            of NY, 1900
                  Facts: Dunham was blasting a tree from the ground when a piece flew 412
                     feet in the air onto a highway killing Sullivan’s decedent. Sullivan sues via
                     the wrongful death statute.
                  Holding: defendant should be held strictly liable
                  This holding is justified by the loss avoidance and fairness arguments for
                     strict liability
        o   Losee v. Buchanan – court refused to hold manufacturer of boiler that exploded liable
            for the resulting damage b/c it would hamper the progress of an industrializing
            society
                  Distinguishing from Sullivan: In Losee, the activity that proximately caused
                     the injury was not voluntary, in Sullivan the activity was voluntary

   Usually, common carriers are not subject to strict liability for the carriage of materials that
    make the transportation of them abnormally dangerous, because a common carrier cannot
    refuse service to a shipper of a lawful commodity (RST §521)
   Strict liability is only applicable when the potential for harm can be reduced only by changing
    the activity – negligence is applicable for cases when an increase in due care would reduce
    the harm
        o Indiana Harbor Belt RR (plaintiff, respondent) v. American Cyanamid Co.
              (defendant, appellant), US Court of Appeals, 7th Circuit, 1990
                    Facts: ACC was shipping 20K gallons of acrylonitrile from LA to NJ in a
                       RR car leased from the North American Car Corporation. MO Pacific RR
                       picked up the car and transported it to Chicago where it needed to be
                       switched to Conrail for the last part of the journey. The car was switched in
                       a switch station owned by P, and the car began to leak 5K gallons of the
                       hazardous chemical onto the surrounding area causing the area to be
                       evacuated and the IEPA to order a $1 million clean-up. P sues D for these
                       costs.
                    Holding: this is not a case for strict liability – it is a case of negligence. The
                       damage was caused not by the inherent properties of the chemical, but by
                       lack of due (average) care by the car company or RR company – things that
                       could be discouraged by negligence charge

   Airplanes are held strictly liable for the damage they cause if they fall from the sky (§520A)
   The government is generally immune from strict liability under the FTCA
   Defenses to Strict Liability:
        o Assumption of risk is only a defense if P ignored precautionary measures to avoid the
           harm caused by D
        o Contributory negligence is generally not a defense unless P knowingly and
           unreasonably subjects himself to the risks of harm from the activity

Main Points:




                                                - 59 -
       There was strict liability for dangerous activities – American tort law was respectful in
        giving landowners and entrepreneurs leeway in their activities
       Now, the only real strict liability involves product liability
       Keep in mind the five goals of strict liability:


Five Major Arguments for Strict Liability (King article)
     loss-spreading – allows manufacturer to spread loss to its consumers through increasing
      prices; insurance spreads losses (manufacturer pays for liability insurance and thus
      spreads liability over insurance pool)
     loss avoidance/risk reduction – reduces the severity and frequency of accidents
     loss allocation/internalization – liable firm internalizes cost; have firm realistically
      determine what the cost of their production is, including the cost of the potential damages
      the product will cause (loss spreading is one of the ways to internalize this added cost of
      production)
     administrative efficiency – less time spent in deciding strict negligence cases b/c it takes
      time and money to prove negligence cases (expert witnesses, etc…)
     fairness – b/t two innocent parties, the initiator who benefits from the ultimately injurious
      activity should be liable



                            Liability for Defective Products

Three applications of product liability:
   1. Negligence
   2. Breach of Warranty
   3. Strict Liability

Negligence
 In general, ordinary negligence principles apply to product liability actions brought on a
   negligence theory.
 Privity Limitations: At one time, the general rule was that the manufacturer or other seller of
   an unsafe product was not liable in negligence to the user or consumer absent privity of
   contract between P and D (Winterbottom v. Wright ) that is, unless P had bought the product
   directly from D. Exceptions arose and expanded, and eventually MacPherson v. Buick Motor
   Co. (N.Y.1916) held that lack of privity is not a defense when it is foreseeable that the
   product, if negligently made, can cause injury to a class of persons which includes P. This
   effectively abolished the privity limitation.
       o Thomas v. Winchester: the labeler of a bottle of poison was held liable for the end-
            user’s injury b/c it was mislabeled and the injury was foreseeable.
       o If the nature of the product will put life and limb in peril if negligently made, then its
            nature gives warning of the consequences to be expected. There must be knowledge
            of the probable (not just possible) danger.
       o If the manufacturer of a product enters his product into the stream of commerce
            knowing that it will be used without inspection by a consumer, then the manufacturer
            is liable for injury from negligent production of the product.
       o The more probable the danger, the greater the obligation to inspect the product.
       o The maker of a component part shall not be held liable for its products.



                                               - 60 -
                    MacPherson (plaintiff, respondent) v. Buick Motor Co. (defendant,
                     appellant), Court of Appeals of NY, 1916
                          Facts: P bought a car from a Buick dealer, then the wheel collapsed
                              because it was made of defective wood, and the P was thrown out
                              and injured. The wheel was made by another manufacturer, and
                              assembled by Buick. The defect could have been discovered by
                              reasonable inspection, but the inspection was omitted.
   Persons Protected: D is subject to liability not only to the ultimate purchaser or lessee of the
    product but also to all foreseeable users or consumers, and to all other persons foreseeably
    exposed to the risk. §395, 406
   Types of Negligent Conduct:
        o Manufacturers: Negligence in the manufacturing process includes negligent design
            (§398); errors or omissions during production (§395); failure to properly test or
            inspect; unsafe containers or packaging; inadequate warnings or directions for use;
            and misrepresentation. A subsequent seller's failure to inspect does not relieve the
            manufacturer of liability for his negligence (§396).
        o Subsequent Sellers: Subsequent sellers (distributors, retailers) may be negligent in
            failing to warn of the existence of an unsafe condition or otherwise protect the user
            (§401). Under the majority view, such seller is liable only for dangers of which he
            knew or had reason to know; he has no duty to inspect or test the product to discover
            latent dangers (§402).
        o Other Suppliers: Lessors and others who furnish chattels commercially are liable for
            negligence in furnishing an unsafe chattel; their duty includes a duty to inspect
            (§§391-393, 408). Other suppliers donors, gratuitous bailors are subject to liability if
            they knew or had reason to know that the product was unsafe (§388, 389, 405). And
            D may be liable for furnishing a chattel to one whom he knows or has reason to know
            is incompetent to use it safely (§390).
        o Independent Contractors: Contractors who make, rebuild, or repair a chattel are
            subject to similar rules (§403, 404).
        o Ostensible Suppliers: One who puts out as his own a chattel manufactured by
            another is subject to the same liability as though he were its manufacturer (§400).


Breach of Warranty
 Traditionally based on privity – you buy the car from a dealer and the dealer gives you a
   warranty, but privity is no longer required, and the liability is strict:
       o Warranties running with the chattel – wherever the chattel goes, the warranty follows
           despite the lack of warranty agreement b/t the parties
       o Third-party beneficiaries: suppose a friend borrows the car and then gets in a wreck –
           b/c there is a contract b/t seller and buyer, there is also a contract b/t third parties that
           use the product (very common in contract law)
       o Assignment: created a fiction of assignment when you allow a friend to use the car,
           you assign your rights to the friend
 Types of Warranties (from UCC):
       o Express (§ 2 313): Express warranties are promissory assertions of fact or
           descriptions which are part of the basis of the bargain.
       o Implied Warranty of Merchantability (§ 2 314): The implied warranty of
           merchantability implies minimum standards of quality including safety. (D must be a
           "merchant" with respect to goods of that kind); a UCC standard that warrants
           products will be safe for consumption for the general reason why its used



                                                 - 61 -
        o   Implied Warranty of Fitness for a Particular Purpose (§ 2 315): This warranty arises
            when the buyer relies on the seller to furnish goods suitable for a particular specified
            use, but the product doesn’t meet this purpose


Strict Tort Liability

Three basics objectives of strict liability in products liability (use these to determine if a products
liability theory should be applied):
    1. gets around the lack of privity b/t seller and buyer
    2. gets around the duty to prove negligence of a distant manufacturer using mass production
          techniques
    3. risk-spreading: manufacturers will spread the risk of dangerous products amongst all
          consumers


Establishment of Strict Liability:
 A manufacturer incurs strict liability when an article that he had placed on the market,
   knowing that it is to be used without inspection, proves to have a defect that causes injury to
   human beings, regardless if negligence can be found – this cost should be passed along to
   consumers as an added cost of doing business.
        o This rule essentially eliminates the need for the P to prove where the fault lies – now
            the burden is immediately on the defendant to prove that they are not responsible; it
            is circuitous for P to prove negligence
 Public policy requires that the public be insured against injury at the seller’s expense.
        o Escola (plaintiff, respondent) v. Coca Cola Bottling Co. of Fresno (defendant,
            appellant), SC of CA, 1944
                  Facts: Escola, a waitress, had a Coke bottle explode in her hand even though
                     she used due care in opening the bottle. P relied on res ipsa loquitur to
                     satisfy her judgment. Coke said that the bottles are tested and an expert
                     testified saying these tests are infallible. Coke uses used and new bottles for
                     its bottling procedure
                  Holding: Res ipsa was justified in this case b/c Coke had exclusive control
                     over the bottle during its filling
                  Rationale: Only the manufacturer can guard against some defects – thus they
                     should always be held liable – consumers buy products on the faith of their
                     trademark and do not have the knowledge necessary to make a proper
                     inspection. The manufacturer’s obligation to the consumer must keep pace
                     with the changing relationship b/t them; it cannot be escaped b/c the
                     marketing of a product has become so complicated as to require one or more
                     intermediaries
 Retailers also held strictly liable for defective products they sell (car dealers)
 Injured bystanders can also hold manufacturers strictly liable for the injury they received
   from the defect in the product they produced.
 The manufacturer must make reasonable precautions against harms caused by foreseeable
   uses of the product.


Codification of Strict Liability:
Two options for law to apply:


                                                 - 62 -
-   use the common law rules that are codified in the RST 402A (some states have used this in
    their statutes)
-   3d RST Products Liability, differs in some respects from 2d RST

Restatement (2d) of Torts, §402A -
   1. One who sells any product in a defective condition unreasonably dangerous to the user of
        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 selling that
                product is alone what he is paid for)
                        if the seller is merely providing a service, however, there is not liability
                            absent proof of a violation of a legal duty
            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 above applies although
            a. the seller has exercised all possible care in the preparation and sale of his product
                (strict liability clause)
            b. the user or consumer has not bought the product from or entered into any
                contractual relation with the seller (no privity requirement)
   Comment i: The defective condition of the product must make it unreasonably dangerous to
   the consumer or user, and must be unreasonably dangerous to an extent beyond which would
   be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
   common to the community as to its characteristics (the unreasonably dangerous requirement
   in this comment is not followed by all states, bus is followed by the majority of them).

∑: elements of a products liability claim (march through these elements when looking at a
products liability claim):
    1. seller (includes distributors along with manufacturer)
    2. product
    3. defective condition that is unreasonably dangerous – most states adopt the unreasonably
        dangerous phrase, but not all
        o legal standard to determine if a product is unreasonably dangerous:
                  consumer expectation test (most often used for manufacturing defect cases) –
                      does the product operate how a reasonable consumer would expect?
                  risk/utility test (for design defects, usually risk-utility is applied in addition to
                      consumer expectation test; for manufacturing defects, the risk-utility test is
                      used for complex products?) – balance the risk of the product against the
                      utility derived from the product → this is why you have automobiles that are
                      dangerous but are still around b/c they serve an important function in society
    4. user or consumer
    5. physical harm
    6. causation
    7. seller is engaged in the business of selling
    8. (in anticipation of a defense) the product must not be substantially altered or abused by
        the distributor

Restatement Third: Products Liability –
    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 (strict liability)



                                                 - 63 -
       3 Types of Defects:
        1. Manufacturing Defects: a product 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 (strict liability for manufacturing defects);
            the product is different from all other products, and there is a reliability that all
            consumer goods will be produced with equal care
        2. Design Defect: a product is defective in design when the foreseeable risks of harm
            could be reduced by using an alternative design, and the omission of the alternative
            design renders the product not reasonably safe (reasonable alternative design); the
            whole design of the product is dangerous and there should be strict liability for this
            defective design
        3. Warning Defect: a product is defective because of inadequate instructions or
            warnings of the foreseeable risks of harm, and the omission of the instructions or
            warnings renders the product not reasonably safe


Limitations of Strict Liability:
 Although there are strict liability dimensions of trespass and nuisance, there still is risk-
   benefit analysis that undercuts the strictness of liability
 Product Liability is not Strict Liability: Can be held liable for both manufacturing defect or
   design defect (warning defects included):
       o Manufacturing: b/c courts allow for reasonable foreseeability in consumer
             expectations tests (to determine if the manufacturing defect is dangerous enough), it
             reduces the purity of strict liability of products
       o Design Defects: the courts looks to consumer expectations and also risk-utility to
             determine safety of design – these both hinge on fault-based principles, thus they are
             defenses to products liability and thus reduces the punch of strict liability
 Animals: even if you have a dangerous animal you can not be held strictly liable if you have
   sufficient warning of the danger
 Hazardous activities: strict liability here is fairly strictly applied
 But it still makes sense to divide torts into strict liability and negligence b/c the focus in strict
   liability is on if the risk is so great that liability can be presumed. Negligence is a non-
   presumed liability principle.


Manufacturing Defects:
 A defect which occurs in a particular product unit b/c of an error or omission in
  manufacturing, assembly, or processing. The product was not marketed in the condition the
  manufacturer intended. (Escola v. Coca Cola Bottling Co. of Fresno)
 To determine if a product is unreasonably dangerous, consumer expectations test is applied
  for all products

Design Defects:
Tests to determine if the product is unreasonably dangerous:
 Reasonable Consumer Expectations Test: ordinary knowledge as to the product’s
    characteristics may permit an inference that the product did not perform as safely as it should
    – a finding of defect is warranted without more proof. The defense cannot produce expert
    testimony about the relevant benefits and risks of the design – this is up to the jury to decide
    what is ordinary knowledge of consumers. Requires:



                                                 - 64 -
        1. The manufacturer’s product failed to perform as safely as an ordinary customer
            would expect
        2. The defect existed when the product left the manufacturer’s possession
        3. The defect was a “legal cause” of plaintiff’s “enhanced injury”
        4. The product was used in a reasonably foreseeable manner
   Risk/Utility Test: for complex products, if the inherent risks of the design outweigh the
    benefits of the design, then the product is defective in design. Requires weighing of cost,
    practicality, risk, and benefit.
         Standards of ordinary consumers are irrelevant
         Must look to competitors designs to see if they are safer
         there are 7 factors laid out in Ortho to weigh in this test (p. 576)

   Reasonable Alternative Design: P can also prove that there is a reasonable alternative design
    (RAD) that would have reduced the expected harm and would have provided a similar
    function at a comparable cost (Products RST §2)
        o The alternative design must not increase the price – sometimes you pay less for a
            product that is less safe (economy cars)
        o Irreducibly unsafe products: the utility of the product must be weighed against the
            risks its usage poses – sometimes the product itself shouldn’t be allowed on the
            market (O’Brien v. Muskin)

   The supplier of a product must anticipate abnormal usage of the product it manufactures
       o Soule (plaintiff, respondent) v. General Motors Corporation (defendant, appellant),
           SC of CA, 1994
                 Facts: Soule’s ankles were broken when another car slid into her lane and hit
                    the front of her Camaro. Soule was not wearing a seatbelt, and the bracket
                    under the car gave way and the wheel caused the foot well to crumple
                    Soule’s ankles. Soule claims that the car was negligently manufactured and
                    the design caused the injury. GM claims that the lack of seatbelt is what
                    really caused the accident. The jury was given an instruction on the ordinary
                    consumer expectations test, and denied GMs request that an instruction on
                    causation be given (that the injury would have resulted even if the defect was
                    not there)
                 Holding: the consumer expectations test should not have been given b/c a
                    car is a complex product, but the error was harmless

   Crashworthiness Doctrine: a manufacturer can be held liable in negligence or strict liability
    for injuries in a motor vehicle accident where a design defect, though not the cause of the
    accident, caused or enhanced the injuries. Auto manufacturers should anticipate that
    accidents will occur and should take reasonable precautions to prevent injuries. (Larson v.
    GM)
         o This also applies to motorcycles, and just because they are dangerous vehicles does
             not absolve the manufacturers from injuries.
         o Camacho (plaintiff, appellant) v. Honda Motor Co. (defendant, respondent), SC of
             CO, 1987
                   Facts: In 1978 P was injured when he was in a motorcycle wreck. P claims
                      that the motorcycle was defective b/c it did not have crash bars that protect
                      the legs in an accident, thus their was a design defect and Honda should be
                      held strictly liable.




                                               - 65 -
                   Holding: there are factual differences from the expert witnesses, thus the
                    case should be remanded


Safety Instructions and Warnings:
 A manufacturer may be liable for placing a product on the market that bears inadequate
    warnings and instructions or that is defective in design.
 A warning only needs to be reasonable under the circumstances and need not be an
    encyclopedia and warn of every possible injury that could result.
 Too many warnings might defeat their purpose b/c they would lose their punch and effect –
    dilutive
 Manufacturer liability can exist under a failure-to-warn theory in cases in which the
    substantial modification defense might otherwise preclude a design defect claim. Exceptions:
         o If the party has general knowledge of the hazard – if the warning adds nothing to the
             user’s appreciation of the danger, then no duty to warn
         o If the party participated in the removal of the safety device whose purpose is obvious
 A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of
    its product of which it knew or should have known.
 A manufacturer also has a duty to warn of the danger of unintended uses of a product
    provided these uses are reasonably foreseeable.
 There is no duty to warn of common knowledge (no duty to warn that tequila will cause harm
    if consumed too heavily; no duty to warn that it is dangerous to ride in the back of a pick-up)
 Heeding Presumption: Requires the party responsible for the inadequate warning to show
    that the user would not have heeded an adequate warning
 Usually the cost of adding a warning would be so minimal that its justification is almost
    always made, except that too many are bad (see above)
 Sometimes pictorial warnings are needed for consumers that do not speak English
 The warning should be targeted towards the person most likely to use the product
 Interplay of design and warning:
         o Warnings will not defeat the need for a safe design
         o Consumers are entitled to choose b/t designs that are safer and designs that are less
             safe
         o Usually the design safety should include discussion of warnings – if warnings can
             provide a safe enough guard against injury, then perhaps the design is safe enough for
             use
 Misuse of a product is only a defense if the misuse was unforeseeable
 A product intended for adults need not be designed to be safe for children solely b/c it is
    possible for the product to come into a child’s hands
         o Hood (plaintiff, appellant) v. Ryobi America Corporation (defendant, respondent),
             US Court of Appeals, 4th Circuit, 1999
                   Facts: Hood purchased a miter saw for the purpose of home repairs. The
                     package had many warnings that prohibited the removal of a safety guard,
                     but Hood could not cut through a piece of wood with the guard attached, so
                     he detached it and continued to work with the blade exposed. The blade
                     detached from he saw and hurt Hood. Hood sues b/c the warnings were
                     inadequate b/c they didn’t warn of the type of danger that would result.
                   Holding: Ryobi’s warnings are clear and unequivocal




                                               - 66 -
   Learned Intermediary Doctrine: shields a manufacturer’s liability when a physician
    prescribes a medication and is given appropriate warnings of the medication – thus the doc is
    supposed to pass this information onto the consumer. Two exceptions:
        o Mass immunizations (too costly and time intensive to provide a learned intermediary)
        o When the FDA mandates that a warning be given directly to the consumer (seems to
            apply to products taken voluntarily – i.e. birth control and nicotine patches)
   Products liability law generally requires that a manufacturer warn consumers of danger
    associated with the use of its product to the extent the manufacturer knew or should have
    known of the danger – manufacturer not required to warn of obvious dangers
        o Edwards (plaintiff) v. Basel Pharmaceuticals (defendant), SC of OK, 1997
                  Facts: Edwards died of a nicotine-induced heart attack b/c he smoked a
                     cigarette while wearing two Habitrol nicotine patches. Edwards’ wide, D,
                     sued Basel on a failure of duty to warn the consumer of the potential risks of
                     too much nicotine.
                  Holding: the FDA requires that information be given directly to the
                     consumer regarding nicotine patches, thus the Learned Intermediary Doctrine
                     does not apply in this case and is not a defense for Basel

   Majority Rule: (RST 2d §402A comment j) the seller is required to give warning against a
    danger if he has knowledge of, or by the application of reasonable, developed, human skill
    and foresight should have knowledge of the danger.
   RST 3d Products Liability §2c:
        o A product is defective b/c of inadequate instructions or warnings when the
            foreseeable risks of harm posed by the product could have been reduced or avoided
            by the provision of reasonable instructions or warnings and the omission of the
            instructions or warnings renders the product not reasonably safe.
        o Unforeseeable risks arising from foreseeable product use by definition cannot
            specifically be warned against
        o The manufacturer has a duty to perform reasonable testing prior to marketing a
            product and to discover risks and risk-avoidance measures that such testing would
            reveal. A seller is charged with knowledge of what reasonable testing would reveal.
        o MA addition: a manufacturer will be held to the standard of knowledge of an expert
            in the appropriate field, and will remain subject to a continuing duty to warn
            purchasers of risks discovered following the sale of the product at issue.

   There is a duty to warn after a risk is observed after the product enters the stream of
    commerce if :
        o The seller knows or reasonably should know that the product poses a substantial risk
            of harm to persons or property
        o Those who would benefit from the warning can be identified and are likely unaware
            of the risk
        o A warning can effectively be communicated to and acted upon by recipients
        o And that the risk of harm is sufficiently great to justify the burden of providing a
            warning
   A few states hold a manufacturer liable for unforeseeable defects
        o Vassallo (plaintiff, respondent) v. Baxter Healthcare (defendant, appellant),
            Supreme Judicial Court of Massachusetts, 1998
                  Facts: P had silicone breast implants that leaked and caused severe injury to
                     her pectoral muscles – she sues for design and manufacturing defect and




                                               - 67 -
                     breach of warranty of merchantability and her husband sues for loss of
                     consortium


Defenses to Defective Product Liability

   RST 2d §402 comment n:
        o Contrib. negligence of the P is not a defense when such negligence consists merely in
              a failure to discover the defect on the product, or to guard against the possibility of its
              existence
        o If the consumer is aware of the defect but still proceeds unreasonably, then he is
              barred from recovery.
   RST 3d §17a:
        o P’s conduct should be considered to reduce a damages recovery if it fails to conform
              to applicable standards of care
   Comparative Responsibility: a court reduces a claimant’s damages recovery by the
    percentage of responsibility attributed to him by the trier of fact. Includes strict court
    liability cases. The actions by the claimant just must have violated the duty to use ordinary
    care or some other applicable legal standard. Most states do recognize some defense where
    the D conduct has contributed in some way to the harm inflicted
        o GM (defendant, appellant) v. Sanchez (plaintiff, respondent), SC of TX, 1999
                    Facts: Sanchez died while pinned b/t his GM truck and a corral gate when
                       the truck rolled backwards b/c the gear was stuck in “hydraulic neutral” b/t
                       park and reverse when Sanchez got out of the truck and then the gear popped
                       into reverse and rolled backwards, pinning Sanchez.
                    Holding: Sanchez was negligent in failing to properly secure his truck when
                       he was getting out of it, thus his negligence should be taken into
                       consideration to reduce the damage awards

   Disclaimers and waivers by product manufacturers against liability for defective products:
        o Products RST 3d §18: disclaimers and waivers do not bar otherwise valid products
             liability claims against sellers or other distributors of new products for harm to
             persons
        o RST §402A comment m: the consumer’s cause of action in tort is not affected by any
             disclaimer or other agreement
        o The majority of courts accept the RST 2d view, although it is not clear if a majority
             of the courts refuse to accept express assumption of risk as a defense in product
             liability cases
   Misuse: D is not liable for an injury caused by an unforeseeable misuse of his product. But a
    product may be found defective because it was not designed so as to be reasonably safe in
    light of an unintended but foreseeable misuse.


Work-related Injuries

   Ordinarily, claims against an employer are barred, and workers are just able to receive
    workers comp for the their claims.
   Workers can sue third parties who violated tort obligations to them – except some states don’t
    allow claims against third parties who pay into the workers comp system



                                                 - 68 -
   When a third party’s modification makes a safe product unsafe, the seller is relieved of
    liability even if the modification is foreseeable.
   In a design defect case, the claimant must prove that defect existed at the time the product
    was sold.
   If a business machine is serviced by its manufacturer and thus has actual knowledge that the
    product has been altered, it does not change their immunity from liability from defective
    design.
   Is there an obligation to let people who have already purchased a product that later is found
    defective know that the product is defective? Yes.
         o Jones (plaintiffm respondent) v. Ryobi, Ltd. (defendant, appellant), US Court of
              Appeals, 8th Cir., 1994
                  Facts: Jones was employed at Business Cards Tomorrow (BCT) and
                       operated an offset duplicator manufactured by Ryobi, Ltd. Jones brought this
                       suit against Ryobi and A.B. Dick Corporation, the distributor.Jones’
                       employer had taken off a plastic guard to allow Jones to make adjustments to
                       the machine without the machine stopping, as would happen if the guard was
                       lifted, to allow the machine to print cards faster. The removal of the guard
                       was commonplace in the industry. One day Jones was startled by something
                       and accidentally got her hand crushed in the machine, an accident that would
                       have been prevented had the guard been in place.
                  Holding: Ryobi not held liable since the equipment was modified after its
                       production
                             Jones’ employer should not have taken off the guards
                             Ryobi maintenance reps told BCT they should reinstall the guards
                                 several times
                  Dissent: Design was Unreasonably Dangerous and thus Defectively
                       Designed: the guard was made of material that would break and with the
                       guard in place it did not allow for proper ventilation of the machinery; the
                       design of the product should have allowed the operator to adjust the wheels
                       without placing their hands in close proximity to the moving parts of the
                       machine. Also, 98% of the machines had the guard removed, and a rep from
                       the distributor told buyers to remove the guard so humidity would not build
                       up inside the machine.


   Where a product is purposefully manufactured to permit its use without a safety feature, a P
    may recover for injuries suffered as a result of removing the safety feature.
   A manufacturer may be held liable for failing to warn against the dangers of foreseeable
    misuse of its product (thus no reason for them not to warn against foreseeable alterations!)
   In certain circumstances, a manufacturer may have a duty to warn of dangers associated with
    the use of its product even after it has been sold (if the manufacturer has later learned of a
    defect or danger)
   A manufacturer is not liable for injuries caused by substantial alterations to the product by a
    third party that render the product defective or unsafe – manufacturer not required to insure
    that subsequent owners and users will not adapt the product to their own unique uses. A
    manufacturer does not have to design a product that cannot have its safety measures
    circumvented – this is too much of a burden.
   Bulk suppliers are generally not under a duty to warn when their product will be used by
    many employees in the buyer’s company. But other states hold that the duty to warn does
    extend to employees of the purchaser as well as the purchaser.


                                               - 69 -
   A manufacturer is not liable when a purchaser specifically chooses to not buy a safety feature
    component.
   Assumption of Risk: an employer will have assumed to have been barred from an
    assumption of risk defense when he/she involuntarily had to use a defective product in the
    line of his/her job, but can use the defense when the employee used the defective product on
    their own free will
         o Liriano (plaintiff) v. Hobart Corp. (defendant), NY Court of Appeals, 1998
                  Facts: Liriano, a 17 year-old recent immigrant, was hurt while employed at a
                      Super grocery store when a mean grinder cut off his right hand and forearm
                      b/c a safety device had been removed by the store. Super purchased the
                      mean grinder in 1961, and Hobart began warning not to take off the safety
                      device in 1962. The accident occurred in 1993.


Only Economic Harm
 UCC v. tort remedies:
       o Three versions of UCC:
               One version has a privity doctrine where the rights only extend to the buyer
                 and relatives
               The other two versions are more tort-like in that no privity is required
       o UCC is generally stricter with privity as a requirement for liability
       o But, the contract/UCC theory does not have a requirement of injury
 Doctors and pharmacists are also not generally held strictly liable for dispensing a defective
   drug
       o Royer (plaintiff, appellant) v. Catholic Medical Center (defendant, respondent), SC
          of NH, 1999
               Facts: Royer underwent a total knee replacement at CMC (D) and has a
                 prosthetic knee implanted. The prosthetic knee was later found to be
                 defective, and a second surgery was required. Royer sues the hospital for the
                 defective product because they supplied the defective product.
               Holding: the hospital was not a seller of the prosthetic knee, but was just
                 providing a service to Royer – his primary reason for the hospital visit was
                 not to purchase a knee, but to receive medical services

Only Economic Harm from Defective Product:
 Tort law is an inappropriate context for these damages b/c there was no damage to property
   or person (as in all products liability cases). When a defective product creates purely
   economic harm, there is no product liability damage, b/c the purchaser has just bought a
   product that did not live up to its value.
       o Contract law v. Tort Law:
                Contract is based on privity
                Tort law requires no privity
                Treating contracts like torts would undermine the purpose of creating
                    contracts
                Both do deal with losses b/t parties that have a fiduciary relationship
                    (contract) or a legal relationship (tort)
 A manufacturer in a commercial relationship has no duty under either a negligence or strict
   products liability theory to prevent a product from injuring itself




                                              - 70 -
   Any economic damage resulting from malfunction of a product should be covered by contract
    law, warranty law specifically, because the parties may set the terms of their own agreements
    – the damage essentially means that the consumer has received insufficient product value.
        o East River Steamship Corp. v. Transamerica Delaval Inc., US Supreme Court,
            1986
                 Facts: Delaval made turbines that were used in four ships that were chartered
                    for 20-22 years by the four plaintiffs. On East River’s ship’s maiden voyage,
                    the turbine was found to be defective (value was installed backwards, and
                    valve ring disintegrated) and caused significant property damage to the
                    turbine itself. East River sues under strict liability although the only
                    damages were economic (lost revenues during the repair time of the ship and
                    damage to the turbine).
                 Holding: because the only harm that resulted was economic, a products
                    liability claim will not suffice b/c only economic harm resulted.
                 Notes:
                          to succeed on a negligence claim, East River would have to prove:
                                   that a duty existed to manufacture/install the product
                                       correctly.
                          When the manufacturer makes a product, it warrants that the product
                              will not be defective – this is the contract claim

Intent: purposeful actions, or actions with knowledge that harm would probably result



                                  Trespass and Nuisance

Trespass
 D trespasses on P's land when he intentionally (a) himself enters the land or causes a thing or
   third person to do so, (b) remains on the land after his privilege to be there has expired, or (c)
   fails to remove from the land a thing which he is under a duty to remove. §158
 Trespass used to have to be direct, but now non-trespassory actions are recognized that are
   indirect trespass
 RST §165: unintended intrusions, those resulting from reckless or negligent conduct or from
   abnormally dangerous activities, will be subjected to liability only if the intrusion causes
   actual damage
 RST §158: one is liable to another in trespass for an intentional intrusion, irrespective of
   harm caused – thus a mistaken, non-negligent entry can result in liability if the trespasser
   thought the property was his, even in good faith (strict liability element of trespass)
 But, if the trespass was unintentional and person did not know he was on the land, no liability
 Vertical Boundaries. The boundaries of land extend above and below the surface, and
   therefore the trespass may be by an intrusion at, above or beneath the surface.

   Trespass - any intrusion which invades the possessor’s protected interest in exclusive
    possession, whether that intrusion is by visible or invisible pieces of matter or by energy
    which can be measured only by the mathematical language of the physicist.
   The real trespass is the invasion of an owner’s feeling of ownership and feeling that his land
    shouldn’t be intruded upon (thus why actual damage is not a requirement of trespass)



                                                - 71 -
   If the owner does not feel violated or endangered, then even if Ds conduct may result in a
    physical intrusion, then he will not be liable in an action of trespass (i.e. perhaps a noise
    violation?)
         o Martin (plaintiff, respondent) v. Reynolds Metals (defendant, appellant), SC of OR,
              1959
                    Facts: D’s factory caused particulates of fluoride to fall onto the land of P,
                      making this land unsuitable for grazing. P claims nuisance and trespass.
                      Statute of limitations is less for nuisance than trespass.
                    Holding: the particles was a trespass, and it also might be a nuisance but that
                      doesn’t matter
   If you use technology to see into another’s home or land, then that is trespassory. The gov’t
    can’t use technology to see into a home unless they have a warrant.
   It is not a trespass to fly over one’s land, but it can be a nuisance or a taking to fly low over
    one’s land


Nuisance

Private Nuisance:
     A private nuisance is a thing or activity which substantially and unreasonably interferes
        with P's use and enjoyment of his land.
     Substantial Interference: Nuisance liability requires substantial harm, of a type which
        would be suffered by a normal person in the community, or by property in normal
        condition and used for a normal purpose. §821F
     RST §822: one is subject to liability for conduct that is a legal cause of an invasion of
        another’s interest in the private use and enjoyment of land if the invasion is either:
            o Intentional and unreasonable (see §826), or
            o Unintentional and arising out of negligent or reckless conduct or abnormally
                dangerous conditions or activities
     RST §826: factors involved in determining the unreasonableness of the act:
            o The gravity of the harm (see §827) outweighs the utility of the actor’s conduct
                (see §828)
            o The harm caused by the conduct is serious and the financial burden of
                compensating for this and similar harm to others would not make the
                continuation of the conduct not feasible
     RST §827: Factors involved in determining the gravity of harm of the act:
            o The extent of the harm involved
            o The character of the harm involved
            o The social value that the law attached to the type of use or enjoyment invaded to
                the character of the locality
            o The burden on the person harmed of avoiding the harm
     RST §828: Factors involved in determining the utility of the conduct:
            o The social value that the law attached to the primary purpose of the conduct
            o The suitability of the conduct to the character of the locality
            o The impracticability of preventing or avoiding the invasion
            *Sometimes the gravity of harm is so great that no matter what the utility of the
            conduct is, that compensation must be given (§829)

To prove nuisance: Show that Ds conduct was an intentional or negligent interference with the
use and enjoyment of the land


                                                - 72 -
   Where a nuisance has been found and where there has been any substantial damage shown by
    the party complaining, an injunction will be granted, but when the economic harm is large
    from an injunction, the polluter can pay permanent damages to residents in lieu of the
    injunction
        o Boomer (plaintiff, appellant) v. Atlantic Cement Co. (defendant, respondent), Court
            of Appeals of NY, 1970
                 Facts: D operates a large cement plant near Albany that caused vibration and
                    air particulates to degrade the air quality in the surrounding area and create
                    property damage, namely the property of the Ps. The plant cost $45 million
                    to build and employed 300; $185K was paid to residents in damages
                 Holding: grant an injunction that is conditional on payment to Ps of
                    permanent damage to their property

   Fletcher’s view of nuisance: a victim of harm has a right to recover for injuries caused by a
    risk greater in degree and different in order from those created by the victim and imposed on
    the D – in short, for injuries resulting from nonreciprocal risks
   Coase – “The Problem of Social Cost”: in the absence of transaction costs, it matters not who
    the legal entitlements are assigned, b/c the parties will bargain afterwards to an efficient
    outcome
         o The person inflicting a nuisance can just pay the person inconvenienced – there is a
             price the person harmed will accept for the nuisance, and there is a price the person
             harming will accept to stop the actions causing the nuisance
         o A law judgment destroys this efficient market outcome
         o Illustrates how causation works both directions

Public Nuisance:
 A public nuisance is an unreasonable interference with a right common to the general public.
   It includes interference with the public health, safety, morals, peace, comfort, or convenience.
   The right interfered with must be common to the public as a class, and not merely that of one
   person or even a group of citizens.
 Remedies: A private citizen has no civil remedy for the harm he has sustained as a result of a
   public nuisance if that harm is of the same kind as that suffered by the general public, even
   though he has been harmed to a greater degree than others. The remedy is a criminal
   prosecution or suit to enjoin or abate the nuisance by public authorities or others on behalf of
   the public. A private citizen may sue for harm caused by a public nuisance only if his harm is
   different in kind from that suffered by other members of the public.


                                           Damages
Compensatory Damages
 To put the wronged party in the same position that he/she was prior to the injury
 Loss of Consortium: the loss of companionship and sex from wife
 Creates a deterrence mechanism for the wrong party to not do that wrong again
 Pecuniary (actual) Damages: lost wages, medical bills, other medical expenses
 Pain and Suffering: compensation for past and future pain and suffering (NOT punitive)
      o calculation is usually rather arbitrary
      o how much pain would you be willing to suffer for $X?
 The judge has the discretion to reduce the damage award


                                               - 73 -
   Seffert v. LA Transit Lines:
        o Facts: woman harmed when her foot was caught in a door of a bus.
        o Damages: $187,903.75 ($54K was pecuniary, $130K was pain and suffering)
   Collateral Source Rule:
    - Ps in personal injury actions can still recover full damages even though they already have
        received compensation for their injuries from such “collateral sources” as medical
        insurance, disability benefits, names peril disability insurance, workers compensation,
        government payments, life insurance, inheritance/trust fund accessibility, special
        public/private funds (Red Cross and similar charities)
    - This rule is beneficial b/c without it there is no incentive for people to insure against
        unforeseen income loss; public policy wants to encourage people to have these policies
        (society doesn’t like to have people on welfare)


Punitive Damages
 Punitive damages awards are capped in some states
 Meant to deter future wrong behavior and to punish tortfeasors for willful and wanton actions
 Tortfeasor must have malicious, oppressive intent
 Ratio: a method to determine excessiveness of punitive damages; look at balance b/t
   compensatory and punitive damages
 Also could look to see if the punitive awards are in line with civil or criminal penalties that
   could be imposed for comparable misconduct.


Insurance
 First-Party Insurance: insurance that insures the buyer against the economic effects of a
    particular event
 Third-Party Insurance: insurance that insures a third-party against the economic effects of a
    particular event
        o The two may coexist in the same policy (as in car insurance)
 Insurable Interest: you can only insure against yourself and your own property – so that you
    can’t insure against someone else then kill them to get the insurance award
 Most insurance policies will not cover intentional acts by the insured
 Some states do not allow insurance to cover punitive damages
 Intrafamily claims are not permissible in most states based on public policy grounds – can’t
    have families colluding to get insurance premiums
 Subrogation: when an insurer pays a claim for an insured and the assumes the rights of the
    insured against the third-party who caused the harm
        o To prevent an unintended windfall to the insured by him collecting from two sources:
             insurance and the claim against the third-party
        o The right to subrogation may be express in an insurance policy, or implied as a
             matter of general law (or by statutes)
        o If the insurance company wants the plaintiff to not spend money awarded, the
             insurance company could motion to put the awarded money into escrow until the
             subrogation issue could be resolved
        o Readily implied in cases of property damage (the losses here are definite and easy to
             determine), but not in cases of “personal insurance” like medical, life or auto
             insurance (this is because duplicative compensation is not likely in these cases). In
             the absence of an explicit subrogation clause in the agreement b/t the insurer and the



                                               - 74 -
             insured, an insurer that has paid medical or hospital expense benefits has no right to
             share in the proceeds of the insured’s recovery against a tortfeasor.
                  Frost (plaintiff) v. Porter Leasing Corp. (defendant), Supreme Judicial
                      Court of MA, 1982
                           Facts: Frost was hurt in an auto accident and he and wife sued the
                               other driver for medical expenses and other expenses. They
                               recovered from the other party, but Frost’s insurance company who
                               paid his medical bills interceded in the lawsuit and wanted
                               subrogation. There was no explicit right of subrogation in the
                               contract for health insurance. The trial court awarded Frost’s insurer
                               out of the settlement the insurance money paid to Frost less the pro
                               rata share of costs Frost incurred to get the settlement. P appealed
                               this decision – wanted all the money.
                           Rationale: an implied subrogation clause does not give the insured
                               notice that subrogation will occur. Also, it is very expensive to
                               subrogate. Also b/c the insured bargained/invested in the insurance
                               account and it is his right to keep the money. Also, there really is no
                               duplicative recovery b/c the award money is really for pain and
                               suffering and not medical bills.
   Fleming Article:
        o The bad guy doesn’t really pay for the losses he causes, his insurance company does.
        o If people insure to the extreme, moral hazard will cause people to not care about their
             acts and will not guard against causing harm.
        o Reply: there
   Liability Insurance:
        o Covers the negligent acts
        o Lalomia v. Bankers & Shippers Ins. Co. (appellant court of NY, 1970) –
                  Facts: Lalomia was killed when a young boy used a motorized bike and ran
                      into her auto. Lalomia’s survivors brought the action against the insurers of
                      the child’s father:
                           D’s Bankers & Shippers (auto insurance for D, dad)
                           D’s Insurance Co. of North America (homeowners policy for D, dad)
                           D’s Liberty Mutual Insurance (uninsured motorist endorsement in
                               policy for TT)
                  Holding: the motorized bike was deemed a motor vehicle but not a private
                      passenger automobile, thus:
                           the only insurance policy that will definitely cover the accident is the
                               uninsured motorist endorsement which covers all accidents involving
                               uninsured motor vehicles
                           the auto insurance policy will not cover the accident b/c it only
                               insures private passenger automobiles
                           the homeowners policy will cover this accident b/c the child’s father
                               negligently placed a dangerous instrumentality in the hands of a
                               child, knowing that it would cause harm
                  Insurance companies could contract around this accident by holding within
                      the policy that homemade motor bikes are not covered
        o Suing the insurer:
                  Pavia v. State Farm Mutual Automobile Insurance (Court of Appeals of
                      NY, 1993) –




                                                - 75 -
                           Facts: Rosato was a minor (with learner’s permit) who took his
                            mother’s car out on a night with two friends in the car. The car got
                            into an accident, and a passenger, Pavia, was injured when the car hit
                            a double-parked car and in swerving to miss that car Rosato hit a car
                            owned by Amerosa. The car was insured by State Farm up to
                            $100K. In 1985, Pavia commenced a personal injury action against
                            Rosato and Amerosa.
                           Pavia demanded that State Farm pay the whole amount of the
                            coverage, but State Farm thought that perhaps there was an
                            alternative cause other than Rosato so they did not pay. State Farm
                            later found that they could not prove another cause, and offered to
                            pay the full amount to Pavia. Pavia refused, and the trial court
                            awarded millions to Pavia.
                           Pavia gave up his right to sue State Farm in return for his promise
                            not to sue Rosato.
                           Pavia and Rosato then brought this action against State Farm
                            alleging that State Farm acted in bad faith in denying the original
                            request for the limit of the coverage. Court held that SF was not in
                            bad faith in not settling with Pavia.
                           Pavia did receive $100K, but not the total verdict.




                             Alternatives to Tort Liability

Incremental Tort Reform:
Medical Malpractice:
 Perceived crisis in malpractice in 1970s: increased damage awards against physicians making
    physicians to pay up or insure against these losses, but insurance companies were not willing
    to do this without a high premium. The private tort system was felt to not be working b/c it
    was driving the costs of medical care up due to the large malpractice insurance premiums.
 Why increase for malpractice claims: change in society about role of physician and rights of
    patients. In the 50s and 60s, the physicians could perform a procedure without informed
    consent – the courts entrusted the docs with the paternalistic duty to provide care. Docs not
    questioned – presumed to be ethical and knowledgeable. Docs only liable if the doc was
    grossly negligent in ordering tests.
 Bioethics was formed as a result of the lack of informed consent research experiments – now
    we have informed consent!
 Approaches to cap the damage awards:
        o Capping and limiting pain and suffering awards
        o Capping and limiting total damage awards

Overall increase in tort awards against corporations:
 Now corporate America is complaining about the large damage awards (cigarettes,
   automobiles) – everyone is getting sued.
 Insurance companies were also unhappy at this time and felt threatened b/c corporate
   America did not want premiums to rise – thus insurance and corporate America joined to
   lobby for limits to damage awards.



                                              - 76 -
   Lobbyists for corporate America rampaged against laws that would allow large damage
    awards and against lawyers who were driving up damage requests to get the high commission
   Responses:
       o Comparative fault (the corporation shares fault with others)
       o Elimination of joint and several liability (if the manufacturer is only 25% liable, he
           only pays that much)
       o Caps on attorney fees (but this has not really happened in any other sector than
           medical malpractice)
       o Insurance companies were somewhat successful in getting the collateral source rule
           eliminated (such as in medical malpractice)
       o Limiting the statute of limitations to shorter periods
       o Caps on damages awards (especially pain and suffering and punitive damages)

Price-Anderson Act:
 To cover injuries from catastrophic nuclear accidents in the US

National Childhood Vaccine Injury Act:
 To limit the number of lawsuits from vaccines that children are required to have b/f entering
    school
 The gov’t set up a fund to compensate children who become sick from a vaccine
    manufactured by a private manufacturer
 Theory is that society should pay for a basic level of public health
 This keeps the cost of these vaccines down b/c manufacturers are not concerned with liability

Swine Flu Epidemic:
 In 1918 half a million Americans died by the flu, and the government in 1976 was concerned
   of this occurring again, so they developed a system whereby if someone got sick from the
   swine flu vaccine, they could sue the US and not the manufacturer.
 The epidemic never really happened and many people got sick from the vaccine.




Exam:
 Take home
 Pick up Saturday Dec. 14th after Contracts at 1pm
 Last pick-up time is Monday the 16th
 Turn in at same time as in-class exam, 1pm Tues. Dec. 17th
 5 questions, each with suggested maximum page limit and suggested time – just can’t exceed
   12 pages
 11-13 pt. font, no cover page, student number on each page
 use only textbook, outline, notes
 novel, cutting-edge issue and will have to apply tort law
 will give complaint, 8 pages of facts as P understands them, causes of action and the facts that
   pertain to each cause of action (9), 5 questions will be about these causes of action (not going
   to be tested on counts we haven’t covered), both policy and doctrinal questions
       o intentional torts, negligence, strict products liability (rely on case law, 402A, 3d RST)
 citing cases: don’t need to give names of cases, but you relying upon cases for the law



                                              - 77 -
   looking for
         o organization (how well do you set out the elements of negligence, do you separate
              out issues well); let elements of cause of action frame answer (step-by-step), always
              lay out elements of each
         o clarity, succinct writing
         o accuracy and precision
         o discuss policy issues that we have discussed in class (include creativity)
   first, state issue (the issue here is…), then get into it – don’t summarize or use introductions




                                                - 78 -

				
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