TORTS
Suter Fall 2000
Table of Contents
I. Negligence .............................................................................................................................. 3
A. DUTY: Can this P sue this D? ............................................................................................ 3
1. Foreseeability .................................................................................................................. 3
2. Misfeasance/Nonfeasance ............................................................................................... 3
3. “Mere” Nonfeasance, BUT ............................................................................................. 3
4. Voluntary Assistance ...................................................................................................... 4
5. Special Relationship........................................................................................................ 4
6. Duty to 3rd parties............................................................................................................ 4
7. Landowner/occupier relationships .................................................................................. 6
8. Intrafamily Immunity ...................................................................................................... 7
9. Governmental Immunity ................................................................................................. 7
10. Ruinous Liability Concerns ........................................................................................ 8
11. Emotional Distress Claims.......................................................................................... 8
12. Wrongful Birth and Wrongful Life ............................................................................. 9
B. BREACH: Has D behaved reasonably? .............................................................................. 9
1. Objective Reasonable Person Standard .......................................................................... 9
2. Custom .......................................................................................................................... 10
3. Statutes .......................................................................................................................... 11
4. Res Ipsa Loquitur .......................................................................................................... 12
5. Foreseeability ................................................................................................................ 14
6. Learned Hand Equation: B PL, then not N
United States v. Carroll Towing Co., Learned Hand (35): Barge broke away from pier and sunk due to D
negligence in shifting mooring lines. P - contributory negligence in not having bargee on board to
prevent accident. RULE: If B PL no
negligence.
ddd. Social Utility: Goes to B factor
(1) Does the risky activity have a high social utility (e.g., cars)?
Chicago, Burlington & Quincy R. Co. v. Krayenbuhl (n3, 37): Child’s leg severed while playing in train
yard. RULE: High social utility demands the use of machinery (but should have used a lock to prevent
injury).
eee. If B = PL, then party with the burden of proof loses.
Special Standard of Care
fff. MEDICAL MALPRACTICE
(1) Professional Standard of Care
National Standard
Locality Rule
(2) Success is Not Guaranteed – only requires professional to act
with the requisite amount of skill
(3) Differing Schools of Thought – Dr. can choose any reasonably
accepted school of thought
(4) Specialists – held to a higher standard than professionals
without a specialty
(5) Novices – newly licensed professionals held to the same
professional standard as experienced professionals
(6) Medical Equipment – sometimes juries can consider the
medical equipment that was available
(7) Informed Consent – Dr. must inform patients of risks that are
inherent in medical procedures, unless the treatment is given in an
emergency situation and the patient is incapable of giving consent.
Good Cases – elective surgery or experimental treatment. Bad
Cases – when patient is seriously ill or injured.
DUTY/BREACH – SCOPE OF DISCLOSURE – what Dr.
should tell
1. Professional Standard (Traditional) – set by Drs.
2. Reasonable Patient Standard (Modern)
3. Individual Patient Standard (Minority)
MATERIAL INFORMATION
1. Magnitude
2. Probability
3. Reasonable Alternatives
4. Benefits & Risks of having or not having treatment
TEST FOR MATERIALITY OF RISKS
1. Define existence and nature of risk and likelihood of its
occurrence – Expert Testimony needed.
2. Trier of fact determine if probability of risk is something
a reasonable patient would consider – would a reasonable
K. Garrett Torts (Suter) Fall 2000, Page 15 of 30
patient attach significance to the specific risk – NO
Expert Testimony needed. Would a reasonable person
have chosen differently if informed? (Minority Korman
(Alaska) would P have chosen differently if informed?)
CAUSATION
1. But for the failure to inform, patient would not have
consented
2. Proximate Cause of injury
DAMAGES
1. Courts – risks must manifest; must have physical damages
2. Scholars – lack of autonomy IS the damage; not being
able to choose based on all the information
Exceptions – Therapeutic Privilege:
1. If full disclosure would have a detrimental effect on
physical or psychological well-being of patient.
2. Patient incapable of consent – mental disability or
infancy.
3. Patient has requested not to be told.
4. Emergency.
5. Risk known to patient or so obvious as to justify
presumption of knowledge.
6. Relatively remote risks inherent in common procedures.
7. Physician does not know and should not have been aware
of risk.
Korman v. Mallin (108): Scarring after breast reduction surgery. RULE: Patient request for additional
information can be a guide to indicate whether information was adequate.
1. Consent for is presumptive evidence, but can be
rebutted.
Truman v. Thomas (112): (CA 4-3 decision) Dr. held L for consequences of patient refusing treatment
because he did not advise patient of dangers of NOT receiving treatment.
Pauscher v. Iowa Methodist Medical Center (112): P died after D performed medical procedure without
informing her of risks. RULE: Standard for Dr.’s duty to disclose is governed by what each patient
WANTS to know, so expert testimony of professional standard for disclosure of risks NOT necessary.
Dr. must assert a defense justifying the nondisclosure.
TRADITIONAL/MAJORITY MINORITY SUBJECTIVE
Professional standard set by Drs. Reasonable What THIS patient
Patient would wants to know
want to know
(8) Expert Testimony – necessary unless negligence is obvious to
a lay person (e.g., amputated the wrong leg). Can be used with Res
Ipsa in some states.
Connors v. University Associates in Obstetrics & Gynecology (103): “In an effort to become pregnant,
plaintiff underwent surgery. After the surgery she lost all function in her left leg.” RULE: Could use
expert testimony in res ipsa.
K. Garrett Torts (Suter) Fall 2000, Page 16 of 30
Purtill v. Hess (99): RULE: Expert MUST be
1. Licensed member of the school of medicine about
which he proposes to testify.
2. Familiar with the methods, procedures, and
treatments ordinarily observed by other physicians in
either D’s community or a similar community.
3. THEN – Trial Court has the discretion to determine
whether the expert is qualified and competent to
state his opinion.
4. BUT - Expert does NOT have to have same specialty as
D Dr. Jones v. O’Young (98)
ggg. COMMON CARRIERS
(1) MAJORITY VIEW: Heightened Standard of Care – B 50%
Proportional Recovery Full Recovery
Falcon v. Memorial Hospital (300): Mother died after childbirth. Loss of opportunity of 37.5% chance of
survival. RULE: Preponderance of the evidence that there was a lost chance for survival. Proportional
recovery allowed if 50% chance of
survival.
K. Garrett Torts (Suter) Fall 2000, Page 17 of 30
Enhanced Risk (Future Harm)
jjj. Enhanced Risks = Future costs of disease & Pain and Suffering,
lost earnings, medical expenses
Petriello Mauro Mariani (Two-disease)
Easiest for R, but rarely used Intermediate Hardest for P
Can recover for 50% Manifestation of disease for
recovery
Recovery proportional to risk Recovery proportional to risk Full recovery
Optimal deterrence Optimal deterrence Optimal deterrence
Under/over compensation Under/over compensation Optimal compensation
kkk.
lll. Medical Surveillance
Mauro
- Significance/Extent of Exposure
- Toxicity
- Seriousness of disease
- Relative increase in risk
- Value of early diagnosis
- Manifestation of physical injury??
- Minimum threshold of absolute (not just relative) risk??
mmm.
nnn. Emotional Distress: Use Mauro or Potter, THEN go to KAC
and Gammon analysis.
Mauro Potter
Reasonable concern based on Fear must be based on > 50% risk
enhanced risk
Exposure to toxin Exposure to toxin
Physical Injury? No physical injury required
Mauro v. Raymark Industries (311): Enhanced risk of cancer after exposure to asbestos.
Multiple Ds, Toxic Torts, etc.
ooo. Concert in Action – J&S L (all drag racers liable)
ppp. Single Indivisible Injury – J&S L (2 people cause 1 harm, e.g. 2
doctors in Ybarra v. Spangard)
qqq. Alternative Liability – J&S L (Summers v. Tice (325): both D’s
shoot negligently, but don’t know who caused injury, BUT if 1 D is
NOT negligent, then NO liability for either no recovery. Shift
of burden of proof to D’s to prove each was NOT responsible for
the harm.)
rrr. Concurrent Causes – J&S L (both D’s start fire
simultaneously)
sss. Successive Causes – Only First party liable 100%, but reduced
damages if second cause is an act of God.
ttt. Market Share
Hymowitz v. Eli Lily (329): DES case. Several Liability only based on National Market Share.
Fungible Product
Parallel Activity
K. Garrett Torts (Suter) Fall 2000, Page 18 of 30
Injury occurs years later
P can inculpate (100% Liability if P knows exact D)
(traditional)
D CANNOT exculpate (Still pays market share even
if D did not make blue pill) (nontraditional)
uuu. Problem: Most harms have many but-for causes
(1) Which are actionable?
(1) Leads to proximate cause analysis
Proximate Cause
Is harm to P sufficiently connected or related to D’s wrongdoing to impose
L (consider policies of tort law)
vvv. Question of law for Judge
www. Factors contributing to Proximate Cause (373)
But-for causation
Natural and continuous sequence of cause and effect
Direct connection without too many intervening causes
FOS: Type, Extent, Manner, Plaintiff
Nearness in time and space
Policy considerations
xxx. Directness– Closeness in time and space
In Re Polemis (352): Plank fell and sparked a fire that resulted in burning ship. RULE: If FOS general
harm, then liable for UNFOS type or extent of harm only if negligent act was the DIRECT Cause of the
damages.
yyy. Foreseeability (of what?)
(1) Type of Harm – Majority Rule: Must be FOS
Wagon Mound (353): Oil spilled from ship, then spark from P’s wharf ignited the oil on the water, which
burned the wharf. RULE: UNFOS type of harm was not the DIRECT cause.
(2) Extent of Harm (Eggshell P) – doesn’t have to be FOS
Steinhauser v. Hertz Corp. (345): Car accident caused daughter’s schizophrenia. RULE: Take victim as
you find her – Eggshell Skull Plaintiff Rule. If general harm is FOS, then D is liable for the full extent of
the damages.
Property?
(3) Manner – usually intervening causes
McLaughlin v. Mine Safety Appliances Co. (360): P suffered third degree burns from warming blocks
used by firefighter and nurse in rescue. RULE:
o Gross Negligence = Superseding cause = NO liability;
o FOS Mere Negligence = Liability;
o UNFOS mere Negligence = unclear.
Restatement View (Kush by Marsalek) § 447 & § 449(Dissent):
o FOS Mere Negligence = Liability
o Likely Gross Negligence or Criminal act = Liability
Hines v. Garrett (n4 364): Woman raped in bad neighborhood when train dropped her off 1 mile past her
stop. RULE: Followed Restatement.
K. Garrett Torts (Suter) Fall 2000, Page 19 of 30
(4) Plaintiff – Is there a duty to this P
Palsgraf v. Long Island RR Co. (366) (Dissent = Now Majority Rule): Scale fell on Palsgraf on train
platform when fireworks exploded. RULE: Duty owed to the world if MISfeasance. Duty is only a
question if NONfeasance. (Cardozo – sphere of duty)
Rescuer Doctrine (375-78): Original tortfeasor also liable for injuries sustained by rescuers if immediate
rescue. Moore v. Shah (376): donation of kidney NOT near in time and space – Not covered by rescuer
doctrine.
Personal Injury UNFOS Type of Harm Independent, Intervening Cause
Steinhauser Wagon Mound Polemis Wagon Mound Polemis
L for UNFOS Type NO Liability Liability IF Direct Liability IF FOS Unclear, probably
and Extent Cause liable
Probability of Recovery Unexpected Case
Low Type of harm Polemis & Wagon Mound
Better Extent of harm Steinhauser
Depends Manner of harm McLaughlin
Majority Victim Palsgraf (dissent = majority Rule)
Intervening Causes
RS McLaughlin Pridham
- If FOS, doesn’t cut off - Egregious intervening - Creation of special risk
Liability even if cause cuts off liability intervening cause does
intentional, reckless or not cut off liability
criminal
zzz. FOS
Hines v. Morrow (n8 365): Peg leg case. P wants to simplify facts to make causation look more direct. D
wants to show long chain of events.
aaaa. Creation of Special Risk
Pridham v. Cash & Carry Building Center (n7 351): Negligent driver liable for damages when ambulance
driver has a heart attack. RULE: Driver created a special risk. FOS that injured victim of car accident
would travel to hospital in ambulance driver liable for full extent of injuries. Must be close in time and
space. If long hospital stay, eventually too attenuated for driver to be liable.
bbbb. Level of egregiousness (gross N – criminal act)
Damages
Plaintiff MUST mitigate Damages.
cccc. Purpose of damages is to restore P to position before D’s
negligence.
Compensatory Damages
dddd. Goal is to pay for harm caused
eeee. Pecuniary Losses
(1) Medical Expenses (past and future)
K. Garrett Torts (Suter) Fall 2000, Page 20 of 30
Surgery
Medication
Therapy (physical, psychological, etc.)
For how long?
(2) Lost Income and Earnings (past and future) (factors to
determine)
Pre-injury earning capacity (current and anticipated)
Earnings at time of injury
Required capacities for pre-injury employment
Impairment of these required capacities
Earning capacity in alternative employment, if any
Expected duration of disability
Life expectancy/likely duration of career
(3) Property Damage
ffff. Non-pecuniary Losses
(1) Pain and Suffering
Need Awareness in ALL Jurisdictions
Seffert v. L.A. Transit Lines (614): P dragged by bus. RULE: Test to determine if P&S damages are too
high – Must shock the conscience and suggest passion, prejudice or corruption on the part of the jury.
(2) Loss of Enjoyment of Life (Hedonic Damages)
Need Awareness in Majority of Jurisdictions
McDougald v. Garber (632): P permanently comatose. RULE: Must be aware to receive LEL damages,
otherwise the damages would not be compensatory, but rather punitive.
(3) Emotional Distress (use KAC or Gammon)
Considerations in Assessing Compensatory Damages
gggg. Usually lump sum
hhhh. Tax Free – should jury know?
iiii. Discount to present value
jjjj. Further considerations for adjustments (depends on
Jurisdiction)
(1) Interest on investment (not tax free)
(2) Inflation
(3) Relationship between inflation and interest (cancel out?)
Survival and Wrongful Death Actions
kkkk. Almost all determined by statute
llll. Survival Actions (on behalf of decedent)
(1) Actions for personal injuries which survive death of the person
for damages decedent could have claimed before death if still alive
Pain and Suffering (up to time of death – not available in some
jurisdictions)
Loss of earnings to date of death
Loss of Enjoyment of Life
o Most states treat this as a factor in P&S
o Minority prohibit recovery for LEL
o Very small minority treat LEL as separate from P&S (dissent
in McDougald)
K. Garrett Torts (Suter) Fall 2000, Page 21 of 30
mmmm. Wrongful Death Actions
(1) Actions brought on behalf of survivors for losses suffered
because of death of decedent
Expected lifetime earnings of decedent
o Less living expenses or contributions
Loss of Consortium (many Jurisdictions)
o Housekeeping, buying necessities, gardening, etc.
o Advice, moral training education (some courts allow for
children, too)
o Emotional loss technically NOT included
Loss of Guidance or Advice
o Allowed in a few states where Loss of Consortium is NOT
allowed
Emotional Distress
o Few states allow
Punitive Damages
nnnn. In excess of compensatory damages - exemplary damages
oooo. To punish D for wrongdoing
pppp. Limited to Egregious wrongdoing
(1) Serious misconduct with bad intent or bad state of mind.
Reprehensible behavior.
Malice, Ill Will, Intent to injure
Sometimes Wanton conduct with conscious indifference to risk
(2) Higher level of wrongdoing than carelessness
Even Gross Negligence usually is not enough
(3) Sample Statutory language: “Where D has been guilty of
oppression, fraud, or malice, express or implied”
(4) Often limited to some kind of intentional or near-intentional
harm
Offensive Assault and Battery, False Imprisonment, Fraud, Defamation
qqqq. Taxable & Insurance almost never covers punitive damages
rrrr. Guideposts of Excessiveness/Reasonableness
(1) Reprehensibility of conduct
(2) Ration to compensatory damages
(3) Sanctions for comparable misconduct
BMW v. Gore (handout): BMW sold Gore a repainted car as new. RULE: Guideposts for determining
reasonableness of punitive damages. Grossly excessive and arbitrary damages violate 14th Amendment
Due Process Clause.
Defenses
Contributory Negligence
ssss. Pure Comparative Approach
(1) If P’s behavior was UNREASONABLE, then use Negligence
Analysis
(2) D has burden to prove P’s contributory negligence in most
jurisdictions
K. Garrett Torts (Suter) Fall 2000, Page 22 of 30
tttt. Uniform Comparative Fault Act
(1) Recovery is proportional to fault
Plaintiff Behavior Defendant Behavior Result
Negligent Reckless Compare Fault
Reckless Negligent Compare Fault
Some Compare & Some
Criminal Negligent
Bar Recovery
Assumption of Risk
Tunkl (Maj)
Express Valid Contract? NO Duty NO Recovery
Dalury (Min)
Implied Primary Sports The Flopper NO Duty NO Recovery
(Voluntary & UNReasonable AR Davenport Br. of Duty Comparative N
Secondary
Knowing) Reasonable AR Emergency Br. of Duty Full Recovery
uuuu. Can only assume the risk of Negligence. Cannot waive for
recklessness or criminal conduct.
vvvv. Express Assumption of Risk = No Recovery
(1) Tunkl Factors (Majority) – Invalid as Against Public Policy IF:
Suitable Public Regulation
Importance – service is a practical necessity
Open to the public
Bargaining Equality
Standard Adhesion Contract
Risks are under control of the seller
Tunkl v. Regents of Univ. of Cal. (407): Tunkl had to sign waiver for admission to hospital. RULE: not a
valid contract – against public policy.
(2) Dalury v. S-K-I, Ltd. (Minority - Vermont)
Waiver contract at ski resort void as against public policy because
o Open to public
o Higher duty of care for invitees
o Resort has ability to make safe
Too Broad – opens door for invalidating all contracts with public
businesses
Barnes v. New Hampshire Karting Ass’n (n6 411): Waiver valid for kart races. Not an essential activity
and can “vote with feet.”
wwww. Between Express and Implied
(1) Waiver printed on ticket or posted on signs can be upheld IF
brought to P’s attention
xxxx. Implied Assumption of Risk
(1) Must be Voluntary and Knowing
(2) Primary = NO Recovery
Sports participants and spectators – Implied assumption of risk
Murphy v. Steeplechase Amusement Co. (413): Cardozo, Coney Island – The Flopper case. RULE: No
recovery for assumption of FOS risk. If obscure danger, then no assumption of risk because P had no
knowledge of risk.
(3) Secondary
UNReasonable = Comparative Negligence = Reduced Recovery
K. Garrett Torts (Suter) Fall 2000, Page 23 of 30
Davenport v. Cotton Hope Plantation Horizontal Property Regime (handout): Dark stairway case. RULE:
UNReasonable Assumption of Risk because their was an alternative.
Reasonable = Full Recovery
yyyy. Firefighter’s Rule
(1) Officers cannot sue IF”
Injured in scope of job
Reasonable anticipation – FOS
Alleged tortfeasor brought officer to the scene
(2) Exceptions
Independent Tortfeasor Bars Rule – Especially if AFTER the act that
brought officer to the scene
Treated as Licensees – Duty to warn of hidden dangers
If officer is there for NON-emergency reason, officer can sue
Day v. Caslowitz (handout): Police office slipped on ice while investigating security alarm at D’s home.
RULE: Officer’s suit barred if injured while on the job.
Strict Liability
Abnormally Dangerous Activity
Restatement Second Factors (443)
zzzz. Existence of high degree of risk of some harm to the person,
land or chattels of others
aaaaa. Likelihood that the harm that results from it will be great
bbbbb. Inability to eliminate the risk with the exercise of
reasonable care
ccccc. Extent to which the activity is not a matter of common usage
ddddd. Inappropriateness of the activity to the place where it is
carried on
eeeee. Extent to which its value to the community is outweighed by its
dangerous attributes
Indiana Harbor Factors (Same as R2d)
Focused on ACTIVITY not chemical
fffff. Do NOT have to show ALL factors
ggggg. Great probability of harm
hhhhh. Magnitude
iiiii. Not preventable with due care
jjjjj. Uncommon usage
kkkkk. Location
lllll. Value to community
Indiana Harbor Belt RR v. Cyanamid (444): Posner, Chemical Leak in switchyard
Yukon Equipment v. Fireman’s Fund Ins. (n4 450): Storage of dynamite is abnormally dangerous.
MINORITY RULE: Disregards social utility and only considers risk.
K. Garrett Torts (Suter) Fall 2000, Page 24 of 30
Fletcher v. Ryland and Ryland v. Fletcher (431): Water reservoir broke and filled coal mine. COMMON
LAW RULE:
Not Naturally on land, AND
Mischievous if it escapes, OR
Non-Natural Use
Product Liability
Manufacturing Defect
mmmmm. Product clearly deviates from what manufacturer
intended
(1) Duty to ALL FOS users: (MacPherson)
Knowledge/probability P will use product
Probability of danger – latent or hidden danger
Remoteness of relation – buyer, passenger, bystander
(2) Defective IF
Seller in business of selling product
Expected to and does reach consumer/user/(bystander if FOS)
Without substantial change
Causes harm
(3) Who can be held Strictly Liable?
Ability to make product safer or influence manufacturer
Risk-spreading
How product enters chain of distribution
Who makes representations about product
Ease P’s burden
MacPherson v. Buick (473): (Cardozo, 1916) Rotten wooden wheel. RULE: Eliminated privity
requirement. Duty to ALL FOS users.
Escola v. Coca Cola Bottling Co. of Fresno (479): (Traynor, 1944) Waitress injured when bottle exploded
in her hand. RULE: Strict Liability for products that have latent defects.
(c) Elmore v. Am. Motors Corp. (n5(c) 485): FOS bystanders
can sue.
Design Defect
nnnnn. Consumer Expectation Test – Soule
(1) P wants CE Test for Hidden Risks/Latent Defects
(2) Factors
Product used as intended OR
Reasonably FOS way AND
Dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics. (Comment i, §
402A)
Cronin v. J.B.E. Olson Corp. (493): Bakery tray hits truck driver propelling him through windshield.
RULE: Eliminated “unreasonably dangerous” requirement.
K. Garrett Torts (Suter) Fall 2000, Page 25 of 30
Barker v. Lull Engineering (494): Driver injured when high-lift loader overturned on slope. RULE: Can
sue when product is used as intended OR in a reasonably FOS way.
Soule v. General Motors (495): In accident, wheel collapsed into floorboard and crushed driver’s ankles.
RULE: “Crashworthiness” defect made injuries worse.
ooooo. Risk/Utility Test – Ortho Factors (R3d)
(1) P wants R/U for Open and Obvious Risks
(2) Especially for technical issues with experts
(3) Ortho Factors (507)
Utility
Safety aspects/probability and magnitude of danger
Availability of substitutes
Manufacturer’s ability to prevent harm
User’s ability to prevent harm
User’s awareness of dangers
Feasibility of spreading the loss
Camacho v. Honda Motor Co. (504): P’s legs injuries worse because motorcycle didn’t have crash bars.
Contains R/U Test.
Dreisonstok v. Volkswagenwerk (n8 511): No good substitute for VW Bus. The feature that decreases
safety is the feature that makes it popular.
Dawson v. Chrysler (n12 514): Driver crushed when car wrapped around pole. Illustrates problem with
standards that differ in jurisdictions for nationally sold products. Manufacturer can’t predict best choice.
Warning Defect
ppppp. Instructions to Make Safe – Adequacy of Warning
Can combine with Design Defect – e.g. child-proofing medicine
bottles, the warning alone would not be enough
(1) Intensity
(2) Comprehensibility
(3) Specific Risks Identified
(4) Precautions and Consequences of not following warning
(5) Characteristics of addressee
Must reach the likely user
Hahn v. Sterling Drug (522): Four-year-old drank Campho-Phenique. RULE: Adequacy of warning is a
jury question.
Morgan v. Faberge (n3(a) 526): P tried to scent candle by pouring cologne over it. RULE: Cost of giving
warning so small, almost always will favor giving the warning.
Cotton v. Buckeye Gas Prods. Co. (n4 527): Propane tanks exploded. RULE: If all possible dangers were
listed, it would lessen the intensity of serious risks.
K. Garrett Torts (Suter) Fall 2000, Page 26 of 30
qqqqq. Addressee
(1) Learned Intermediary – addressee is Dr.
Exception: addressee is patient for mass immunization
(2) Bulk Supplier – Courts divided
Addressee is supplier and supplier has duty to warn consumer, OR
Addressee is consumer
rrrrr. Inherent Risks and No Warning
If product CANNOT be made safe, then warning saves it from being a
defective product because the consumer can choose to accept benefit
and risk OR to not use product.
(1) Known or Reasonably Scientifically knowable
(2) True Choice Judgment – Magnitude
(3) Significant Medical Evidence, NOT Speculative – Certainty
Carlin v. Superior Ct. of Sutter County (handout): FDA says manufacturer cannot warn when scientific
studies conflict. Must warn when significant medical evidence indicates serious safety hazards.
Definition of “knowable” unclear. Suter thinks it means known to someone in scientific community, but
not know to D. Could mean knowable with further research.
sssss. Causation = Heeding Presumption
(1) D must show this P would NOT have heeded even an adequate
warning
Defenses – See I(F) Above
Modification or Misuse of Product
FOS Modification or Misuse CAN Recover
Majority FOS N Modification or Misuse Reduces Recovery
UNFOS Mod, Misuse, or Neg NO Recovery
Minority (Jones) Any Modification or Misuse NO Recovery
Jones v. Ryobi, Ltd. (516): Press operator case. RULE: Majority – Modification is a defense = NO
liability. Dissent – FOS modification is not a defense = Strict Liability
Comparative Fault
ttttt. Reduces damages, NOT a complete bar to recovery
Daly v. General Motors (560): P thrown from car when door handle button punched as car hit railing. P
drunk, not wearing seat belt, and door was not locked. RULE: Extended comparative fault to products
liability cases.
K. Garrett Torts (Suter) Fall 2000, Page 27 of 30
Intentional
Assault
Elements
uuuuu. Intent to cause harmful or offensive bodily contact to
victim or a third party OR
vvvvv. Intent to cause apprehension of imminent bodily harm AND
wwwww. Reasonable apprehension or fear of imminent bodily
harm.
xxxxx. If D knows of P’s unreasonable fear/hypersensitivity, and acts
intending to cause fear = assault.
Battery
Elements
yyyyy. Intent to Cause Harmful Contact or Offensive Touching
(Purpose)
zzzzz. Intent to act in a way that is substantially certain to cause
physical contact (Knowledge)
(1) Subjective Test – What D ACTUALLY knew
aaaaaa. Does NOT have to be direct contact with physical body.
(1) E.g. touch camera, throw ball, sic dog on…
bbbbbb. Offensive to Whom
(1) Most courts – Touching or Contact without consent
(2) Objective Test – RS: Offends reasonable sense of personal
dignity
(3) Subjective Test (Many courts) – If D KNOWS P will find
contact offensive
Defenses
cccccc. Express Consent – self-defense
dddddd. Implied Consent – social understanding (e.g. crowded
subway)
Garratt v. Daly (802): P broke her hip when 5 year-old pulled chair out. RULE: Must intend to cause
harm or act in a way that is substantially certain to cause harm.
Picard v. Barry Pontiac-Buick (811): Mechanic touched TV camera. RULE: Camera is part of her
“person.” Battery does not have to be direct contact with physical body.
K. Garrett Torts (Suter) Fall 2000, Page 28 of 30
Damages
eeeeee. Mere touching without consent – Non harmful: Nominal
Damages
ffffff. Harmful Contact: Compensatory (P&S) Damages
False Imprisonment
Unlawful Restraint/Confinement
gggggg. Physical Barriers
hhhhhh. Physical Force
iiiiii. Actual or Implied Threats of Physical Force
jjjjjj. Duress
kkkkkk. Asserted Legal Authority
(1) Fear of loss of job can be enough for duress, BUT staying to
protect reputation is NOT enough.
(2) If P remains voluntarily – NOT false imprisonment
Lopez v. Winchell’s Donut House (814): P questioned in back room about alleged theft. RULE: Usually
a jury question, but P said she never feared for her physical safety, so no false imprisonment.
Mens Rea
llllll. Actual Intent
mmmmmm. Courts divided on legal intent (Suter says legal intent
should count)
Intentional Infliction of Emotional Distress
Elements
nnnnnn. Intentional or Reckless Conduct
oooooo. Outrageous conduct that offends generally accepted
standards of decency and morality
pppppp. Causation
qqqqqq. Severe emotional distress
(1) Outrageousness is a norm that changes with time
No specific act – doesn’t have to be fraud or misrepresentation
Mere insults usually not outrageous
Public Figures
rrrrrr. Cannot sue for IIED unless they could also sue for defamation.
Womack v. Eldridge (821): P’s picture brought to child molestation trial. RULE: Established Elements
above. Found for plaintiff.
NY Times v. Sullivan (830): RULE: To sue for defamation, Public figures must prove that D knew
statement was false or recklessly uttered it without caring whether it was true or false.
K. Garrett Torts (Suter) Fall 2000, Page 29 of 30
Hustler Magazine, Inc. v. Falwell (830): Jerry Falwell sued for parody ad in Hustler. RULE: Public
figures cannot sue for Intentional Infliction of Emotional Distress unless they could also sue for
Defamation. First Amendment interests exceed individual interests.
Assault & Battery False Imprisonment IIED
Actual Intent/Knowledge Actual Intent/Knowledge Actual Intent/Knowledge
Legal Intent (substantial Courts Divided on Legal Intent Legal Intent (minority)
certainty)
Defamation
Definition
ssssss. Claim about a person that causes reputational harm.
(1) Slander – oral
(2) Libel – Written
(3) Must be published
K. Garrett Torts (Suter) Fall 2000, Page 30 of 30