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INTENTIONALLY INFLICTED HARM

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INTENTIONALLY INFLICTED HARM
BATTERY
“Battery is the intentional infliction of a harmful or offensive bodily contact.”

    -    Was the contact un-consented and unprivileged?
    -    Did the defendant intend to commit the act?
              o NOT intention to do harm, intention to do act is sufficient (Vosburg v. Putney – kicking in
                   class).
              o What is the “act”?
                         A desire to cause contact
                         A desire to frighten (cause assault)
                         A desire to do anything substantially certain to cause a harmful or offensive conduct (this
                             is subjective).
                         In cases of highly egregious social conduct (purpose was for “insult” and malice) P might
                             sue for punitive damages (Alcorn v. Mitchell)
    -    Is the defendant liable for the exacerbation of a pre-existing condition? Yes.
              o Eggshell theory – when a party does harm to another that has a pre-existing condition, and that
                   harm exacerbates this pre-existing condition, the party is still responsible for the full extent of the
                   injuries.
    -    Is the defendant liable for unforeseen consequences? Yes.
              o Issue of Foreseeability: “The rule of damages in actions for torts was held…to be that the wrong-
                   doer is liable for all injuries resulting directly from the wrongful act, whether they could or could
                   not have been foreseen by him.” (Vosburg v. Putney). The defendant is liable for unforeseeable
                   harms.
    -    If D intends to make contact w/ X but strikes Y then is he still liable? Yes.
              o Transferred intent.
    -    What if the defendant is insane? Irrelevant. Basically, the insane and the sane are held to same standard of
         intent.
              o An insane person has the requisite intent to commit battery (an intentional tort). (McGuire v.
                   Almy – mentally unstable woman assaults nurse).
                         “For this case it is enough to say that where an insane person by his act does intentional
                             damage to the person or property of another he is liable for that damage in the same
                             circumstances in which a normal person would be liable.”
              o Black-letter: Where there are two innocents, the one who commits the act is liable.
    -    In this situation:
              o Intent to do act v. intent to do harm, Eggshell theory, issue of foreseeability, transferred
                   intent and “two innocents”.

TURN TO DEFENSES

FALSE IMPRISONMENT
False imprisonment is the intentional infliction of confinement.
    - When is a plaintiff confined?
             o The plaintiff is ‘confined’ when his will to leave a place within certain limits is overcome in a way
                that would overcome the will of an ordinary person in the plaintiff’s position.
    - How is this different than battery? Requires intent to confine, not just intent to do act.
             o Battery: intent to do act, not intent to create resultant harm. FI: intent to create result,
                confinement.
             o FI: cannot be committed merely by negligence or recklessness.
    - What are the methods of confinement?
             o Force
             o Threat
             o Duress
             o Arrest (force is not necessary with regards to arrest)
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    -    Were there reasonable grounds for retention, as determined by an objective test (Coblyn v. Kennedy –
         elderly man suffers heart trouble after sales associate thinks he stole and ascot).
             o reasonable manner
             o reasonable length of time
             o person authorized to make arrests
             o reasonable grounds for detaining the plaintiff
                        Shopkeeper’s privilege: “Most courts let a merchant who reasonably suspects P of
                            shoplifting to detain P for the time reasonably needed to conduct an investigation, and
                            there is no FI even if it turns out that P is innocent.”
    -    In this situation:
             o Intent to confine, confinement?, was P aware of confinement? Methods of confinement,
                   reasonable grounds for retention, Shopkeeper’s privilege.

TURN TO DEFENSES

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
“The tort of intentional infliction of emotional distress occurs whenever the defendant intentionally or recklessly
causes, through the use of extreme and outrageous conduct, severe emotional or mental distress.” (R2d §46)

    -    The intent to do an act is not sufficient. The D must have:
             o intended to bring about the distress
             o knew with substantial certainty that the distress would result, even if D didn’t desire it
             o D recklessly disregarded the possibility that distress would result.
    -    Usually a matter of fact to be determined by expert (most likely medical) testimony.
             o (Rockhill v. Pollard – doctor doesn’t treat car accident victims when they come to his office
                  following accident).

TURN TO DEFENSES

TRESPASS TO LAND
“Trespass to land is the intentional unauthorized entry onto the land of another.”

TRESPASS TO CHATTELS
“Trespass to chattels is the intentional interference with another person’s interest in a chattel, resulting in damage to
that interest.”

TURN TO DEFENSES

DEFENSES TO INTENTIONAL TORTS

CONSENT – generally if the P has consented to an intentional interference w/ his person or property, D is not liable
for that interference:
     - Consent may be explicit or implied
               o Implied – when a reasonable person in the D’s place thought there was consent.
     - Volenti non fit injuria:
               o A volunteer to dangerous activity gives implied consent by engaging in the activity. (public
                   policy may override this – Hudson v. Kraft: promoter of illegal boxing matches held liable for
                   injuries to P despite P’s consent to box).
     - When good intentions are not an excuse:
               o In a medical setting: despite good intentions, doctors can be liable for torts to persons when no
                   consent exists (Mohr v. Williams – doctor operated on ear w/o consent).
                         In these cases, D does not have to have unlawful intent.
     - When is there not a duty to Disclose?
               o There is no duty to disclose or need for consent when the patient is unable to consent (emergency
                   situation) & doctor believes that she must immediately respond to an imminent threat.
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          o    When disclosure would make patient so ill or emotionally distraught as to foreclose rational
               thinking on patient’s part.

  -   Self-defense dissolves liability where it is reasonable (objective standard).
           o In determining reasonability look at:
                    The facts of the particular case
                    Testimony by witness and the parties involved.
                             The self defense must also be proportionate to the threat presented, cannot hurt
                             the attacker in order to punish him, only to protect oneself.

  -   Defense of Property – a person can defend property with the amount of force necessary to do so. BUT:
          o It is unlawful to intentionally hurt someone unless there is a definite need;
                    protection cannot result in great physical harm to trespasser, unless he also presents threat
                       to person as well, i.e. human rights are more valuable than property rights.
                    In addition, the owner must provide a warning notice.
                             Bird v. Holbrook - Defendant owned a garden of expensive tulips and in the past
                             had been robbed. As a method of protecting his property, the owner set up spring
                             guns to “catch” robbers. Black-letter: The method of self-defense or protection of
                             property must be calibrated to the threat. The D must provide warning where there
                             is a deadly trap (distinguishes barb wire from spring gun).
                             Katko v. Briney - The owners of house used for storage had been robbed and as
                             a protective measure set up a spring gun. There is a calibrated right to self-defense,
                             meaning that the protective measure must be appropriate for imminent threat. There
                             is no way to know what threat there is when the trap is automatic.
  -   Recovery of Chattels
          o Forcible recapture of chattels is not allowed when it is not appropriate to the situation, which will
              be decided on the facts of the case
                    Kirby v. Foster- Kirby was held responsible by his employer for missing money. This
                       money was deducted from Kirby’s paycheck. On the advice of counsel, Kirby tried to
                       take this money back when his employer, Foster, gave Kirby money to pay the labor.
                       Foster attempted to physically take the money back and a battery ensues.
          o Must use a reasonable amount of force and be done in “fresh pursuit” otherwise must use the court
              system to reclaim the chattel.; i.e. life valued more than property

  -   Role of Necessity:
          o Times where, because of unusual exigency it is considered appropriate to harm a blameless
              plaintiff.
                    Usually to protect both persons and property jointly. Necessity overrides general
                         property rights, especially when attempting to preserve lives.
                    BUT necessity must be exercised w/reasonable care; necessity's existence or absence may
                         depend on contractual arrangements and presumed risks.
                              Ploof v. Putnam - Ploof needed to dock at Putnam’s property due to a storm.
                              Putnam’s servant cast off Ploof’s boat and as a result, the passengers in the boat
                              were injured. Doctrine of necessity applies with special force to the preservation of
                              human life.
                              Vincent v. Lake Erie Transportation - The steamship Reynolds was docked at a
                              port to unload when a violent storm came up. During the storm, the boat was kept
                              to dock and the dock suffered $500 in damages. If damages are suffered by a
                              defendant in a plaintiff’s reasonable attempt to protect his own property, the
                              plaintiff must pay damages.
                                       o Public necessity – necessity to prevent a disaster to the community.
                                       o Private necessity – preservation of human life.

UNINTENTIONAL TORTS
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CAUSATION

P must first demonstrate that D caused the harm.

    -   There are two distinct issues relating to causation:
            o D was the “cause in fact” of the harm to P, or “But for”
            o D was the “legal cause” or “proximate cause” of the harm to P.
                        Act as well as omissions.
Cause in Fact
   - The harm would not have happened “but for” D’s negligent act.
            o Use of Expert Testimony
            o Substantial factor: If multiple causes of accident, and each of which would have been enough by
                 itself to cause the harm, if one of the causes was a “substantial factor” in bringing about the harm,
                 it’s deemed a cause of the accident in fact, even though the others could have sufficed alone.
                 (Vesely v. Seger – alcohol vender being held liable for drunken driver).
Proximate Cause
   - P must show that the defendant “proximately” caused the injuries
   - PC is often much more difficult to prove than “cause in fact” and there are often conflicting views between
        judges and courts, the two main schools of thought are:
            o Direct causation – imposing liability for any harm directly resulting from the D’s negligence, no
                 matter how unforeseeable or unlikely it would have been when D acted.
                        This does not include events that are caused in part by superceding causes.
                        Polemis – Charterees on boat dropped plank, caused fire. As long as action may cause
                            some harm, it does not matter if the ultimate harm is not foreseeable.
                            Klinsman -
                                  Policy: Proponents  negligent actor should be liable for all events resulting
                                  from negligent act. Opponents  results in limitless liability
            o Forseeability – Opposing view that says that the defendant should be liable only for the
                 consequences which were reasonably foreseeable at the time he acted.
                            Intervening events: If the intervening act was reasonably foreseeable (natural response
                            of dog to getting hit w/ lawnmower or negligent acts of others), it doesn’t inhibit the first
                            event from being the proximate cause.
                        Superseding events: If it’s not foreseeable (intentional or criminal acts of others), it’s
                            superseding, and prevents the first act from being the proximate cause.
                        Wagon Mound 1(Aust.) – Dock destroyed by fire after furnace oil leaked from D’s ship.
                            Repudiation of Polemis. Foreseeability must be part of decision.
                                  Gotshall – SC rejects the concept of foreseeability  “You can foresee forever”.

In this situation:
     - But for, proximate cause (direct causation/foreseeability), Res ispa?, “Danger invites rescue”, multiple
           parties in medicine?

If Emotional Distress TURN TO EMOTIONAL DISTRESS
If Product Liability TURN TO PRODUCT LIABILITY
If harm was defamation, TURN TO DEFAMATION

Otherwise PROCEED TO DUTY


PRODUCTS LIABILITY

Products Liability Claims
Product liability has become the fastest-growing and probably the most economically significant branch of tort law
today.
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Evolution of products liability:
    - The use of negligence theory in product’s liability cases was limited by the concept of privity, the
        requirement that in order to file a lawsuit against a manufacturer a plaintiff must show that he contracted
        directly with the defendant
    - However, in 1916, Cardozo in the MacPherson v. Buick case overthrew the privity limitation and ruled that
        a manufacturer is responsible for an injury caused by such an article to a person that comes in lawful
        contact with it (MacPherson – wooden tire collapses as P drives. Buick knew it was the last test).
    - In Escola v. Coca Cola (exploding coke bottle, res ispa case), Judge Traynor’s concurrence urges that strict
        liability and not negligence should govern the liability of a defective product’s manufacturer.
             o Advantages:
                         the manufacturer has “deep pockets” and is in the best position to prevent the hazard
                         try to control a manufacturer’s conduct
                         manufacturers have a special responsibility to their consumers
                         correct the inherent imbalance of information weighted towards the manufacturer
                         assist the many products liability situations where negligence is hard to prove
                         increase of communication and trust in advertising, i.e. increased connection between
                            manufacturer and consumer
                         meet increased customer expectations
                         large companies can insure against these claims
                         concept of fairness (correcting the harm done and spreading the loss amongst all
                            consumers, i.e. settle/loose case, manufacturer increases price).
    -    Judge Traynor’s concurrence influenced the development of Restatement §402.
             o Restatement §402 embodies a doctrine of strict liability and says that the standard for defect is that
                   the product is unreasonably dangerous:
                         A product is defective according to 402A only if it is “unreasonably dangerous” –
                            meaning that the defect that caused the plaintiff’s injury must be something other than
                            what a reasonable person would expect in normal use (CA rejected this in Daly).
             o According to §402 there are three kinds of defects:
                         a manufacturing defect (one unit that goes bad that doesn’t perform like the others and is
                            not in the condition the manufacturer intended at the time it left the manufacturer’s
                            control).
                         a design defect (design flaw that all units of that type have; the defect presents an undue
                            risk of harm in normal use).
                         a duty to warn defect

To make a strict liability claim for defective design/manufacturing defect against the manufacturer and
retailer under Rest §402A we must prove:
             a. D sold the product in the course of its business,
             b. Product was in a defective condition and unreasonably dangerous when put to anticipated use
             c. Product was used in a manner reasonably anticipated (similar to consumer expectation test).
             d. P was injured as a direct result of such defective condition as existed when the product was sold
                  (but-for and proximate causation).
                       
    - Comparison to Restatement (3d):
             o Includes same three defects but…
                        Also includes some aspects of negligence and makes it easier for bystanders to recover.
                            §402A only uses strict liability and thus no negligence standard for recovery.
                        Restatement 3d includes distribution (selling or otherwise distributing), while 402A
                            includes only sale of goods (one who sells any product).
                        402A does not emphasize foreseeability, but Restatement 3d gives it a higher status.

    -    Most significant battle over 402A: the role of the language “unreasonably dangerous” (Barker v. Lull -
         Unreasonably dangerous does not matter. In disregarding this language, the court held that a trial court
         may properly instruct that a product is defective in design if 1) the product fails to perform in a way that an
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         ordinary consumer would expect when using it as intended or in a foreseeable manner or 2) the benefits of
         the product’s design are outweighed by the product’s risk). SEE BELOW!

    -     Effect of Daly v. GM: Strict liability has an underpinning of negligence, but exists to lessen the burden of
         proof for plaintiff. Still, because of this underpinning, there is a brooding omnipresence of negligence and
         strict liability exists in the context of negligence. Therefore, the court must bring comparative negligence
         into strict liability. (VW – drunk deceased failed to use safety features of car – court leans towards
         comparative negligence standard).
              o How does the court reconcile comparative negligence and strict liability?


STRICT PRODUCTS LIABILITY
Strict Liability (manufacturer and retailers)
    - Defects Creating Strict Liability
              o Manufacturing Defects:
                       The product is not in the condition that the manufacturer intended it to be in when it
                          leaves the defendant’s control, such as a car that leaves the factory with a few lug nuts
                          missing.
              o Design Defects:
                       The product is in the condition intended when it leaves the defendant’s control, but it was
                          designed in such a way as to present an undue risk of harm in normal use, such as a car
                          designed with only two lug nuts per wheel (the norm being four or five).
              o Warning Defects:
                       The product is in the condition intended when it leaves defendant’s control, and it does
                          not present an undue risk of danger when used normally, but its packaging or
                          accompanying literature fails to warn or unexpected dangers from foreseeable misuses,
                          such as a car that becomes unstable at speeds in excess of 90 mph and is sold w/o
                          warnings indicating this.

Approaches to Design Defects for Manufacturers
From Barker v. Lull:
    - Consumer expectation test (burden of proof on P) – Product failed to perform safely as ordinary
       consumer would expect for intended or reasonably foreseeable use.
            o (Potter v. Chicago Pneumatic – modified consumer expectation test to include element of
                 Risk/benefit test. In a case with a complex product where the consumer may not be able to form
                 reasonable expectations of safety, the consumer expectation test is used to establish the product’s
                 risks and utility. The question is rather would a reasonable consumer consider the product design
                 unreasonably dangerous?) OR
    - Risk benefit test - Under this prevailing approach, the question is whether D could have removed the
       danger w/o serious adverse impact on the product’s utility or on the price. Does risk inherent in the
       challenged design outweigh the benefits of the design? Factors include:
            o The usefulness and desirability of product to the public as a whole
            o Availability/practicality of a safer substitute (most likely through expert testimony)
            o Manufacturer’s ability to retain usefulness of product and reduce its danger inexpensively
            o Consumer’s ability to avoid danger by exercising normal care and awareness of inherent dangers
            o Likelihood that injury caused is probable and would be serious
                       If prima facie case for design defect is proven the burden shifts to D, who will then have
                          to prove how the benefits of their design outweighs the risks.

Are there any defenses to strict liability? NO (in theory)!
    - Manufacturer’s possible argument: “We used all possible care in D and M of product”.  Doesn’t matter
         that D used all possible care in designing and manufacturing the product, strict liability means strict
         liability.
    - BUT – see Daly and the introduction of comparative negligence to strict products liability.

NEGLIGENCE W/IN PRODUCTS LIABILITY
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Manufacturing defects under negligence standard
   - Manufacturer/Distributor/Retailer/Seller: Reasonable person would foresee harm if products are not
      properly made or supplied, owes duty to all foreseeable plaintiffs.
            o Supplier – liable even if only assembled component parts negligently manufactured by other is
                 liable for a defect in the components, whether or not the defect is discoverable (think Buick in
                 MacPherson).
            o Retailer – There is no duty to inspect or test products manufactured by others unless THERE IS A
                 REASON TO KNOW OF DEFECT
                       Reason to know (previous complaints, source is unreliable) – liable, but does not affect
                           manufacturer’s liability.
                       Actually knows – liable and manufacturer is off the hook for unintended harm because
                           dealer’s act is superseding cause (so no proximate cause).
   - Hire an expert to prove that the manufacturing defect existed when the product left the manufacturer’s
      plant.
            o (Pouncey v. Ford – Engine fan broke while adding anti-freeze. Clash of experts. A jury can
                 reasonably infer negligence in the manufacture of a product from circumstantial evidence when
                 there is direct evidence of an actual defect in the product).
   - Res Ispa: The injured party may invoke res ipsa simply by showing that the defect is of a kind that does
      not usually occur in the absence of negligence of the manufacturer or someone for whom the manufacturer
      is liable (like supplier of component parts).
            o (Silvestri v. GM: failure of air bag, “a plaintiff in a products liability case is not required to prove
                 a specific defect in a product, especially if that mechanism is complicated in nature”).

WARRANTY (RETAILERS)
  - Warranty of merchantability (implied warranty) – reasonably suitable for ordinary use for which it was
     sold (i.e. steering wheel must steer the car, fridge must cool). Can be implied by the existence of a
     warranty to the quality of the goods and can also be proven by showing that the retailer offered that good
     for sale as being fit for use.
          o (McCabe – Coffeemaker that exploded during second use. A sale of a product does carry an
                implied warranty that it is reasonably suitable for its intended use).
  - Fitness for particular purpose (implied warranty) – Where the seller should know buyer is purchasing for
     a particular purpose and that buyer is relying on the seller’s expertise to choose a suitable good, the product
     is warranted to be fit for that particular use.
  - Effect of breach of Warranty: Warrantors are liable regardless of fault or negligence.
  - Defenses to Warranty Actions: If P discovers a defect and unreasonably uses the product in its
     defective condition, assumption of risk is a complete defense in warranty actions.

TURN TO DUTY


DEFAMATION
   - A communication is defamatory if it tends to harm the reputation of another by lowering him in the
     estimation of the community or deterring 3rd persons from associating or dealing with him. (2nd
     Restatement).
   - Defamation only applies to small groups and individuals.
   - The necessary conditions of a defamation suit are:
          o The statement must be defamatory in nature, must be of and concerning the victim (but doesn’t
              have to name that person Sullivan v. NY Times)
          o Must be published in some form.
          o If defamation is in written form it is known as libel and if it takes place in an oral statement it is
              known as slander.

1st Amendment issues: right to free speech, but it must be "fair and accurate summary" that is reported.
     - Jurors: rational jurors as reasonable triers of fact can determine if statements are libelous per se (Brown &
        Williamson v. Jacobson)
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To decide if there is a defamation case we must first determine if the person is a public figure or a private figure:

Standards for separating public figures or officials from private ones (Gertz)
-those whose vigorously seek public attention are considered public figures
-those who have public attention through notoriety of achievements are considered public figures
-those who thrust themselves into public controversies to influence the public are considered public figures
-those who hold government office are public officials

Public officials and defamation
          (New York Times v. Sullivan – Civil Rights ad placed in NYT, alleged defamation of Montgomery AL
          police chief. Ad was factually incorrect. A public official may not recover damages for a defamatory
          falsehood concerning his official conduct unless he can prove that the statement was made with actual
          malice).
-Public officials can only sue concerning alleged defamatory material that relates to their official conduct, including
their fitness for holding their office.
-The 1st amendment requires that actual malice by the D must be demonstrated “with convincing clarity”.
          - Knowledge that the statement was false / or a reckless disregard for whether it was false.
-Alien & Sedition Acts

Private parties and defamation
          (Gertz v. Robert Welch – Attorney representing claimants against police written up as Communist.
          Defamation of a party who is neither a public figure nor an official is entitled to present constitutional
          protections).
-First amendment requires that private individuals do not have to show actual malice to recover, but must at least
show negligence (the specific level needed for private individuals can be determined by the state)
          -Exception: If the statement involves a matter of “public interest” the First amendment requires that the P
          bear the burden of proving that the statement is false, even if the plaintiff is a private figure. (Philadelphia
          Newspapers v. Hepps)
- First amendment also requires that punitive damages are only allowed when statement is false or reckless (malice).

Supreme court has provided commentary on how to direct all defamation claims procedurally except those involving
private parties concerning private matters…appears this is the only domain left over which states can adjudicate
defamation cases.

In this situation: Defamation?, Public (P prove malice) or private figure (P prove at least negligence unless matter
of public interest), Matter of public interest (P prove falsity).

Defamation                        Private Concern                         Public Concern
Private Person                    P: Allege Falsity. Show                 P: Prove falsity. Show
                                  negligence w/regard to                  actual malice w/regard to
                                  falsity.                                falsity.
                                  D: Bears burden of proving
                                  the statement is true.
Public Person                                                             P: Prove Falsity. Show
                                                                          actual malice w/ regard to
                                                                          falsity.


TURN TO DUTY


EMOTIONAL DISTRESS ("UNINTENTIONAL")
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To prove liability in a suit for unintentional emotional distress the defendant’s negligence must create an emotional
distress that is more than a reasonable person could be expected to endure.
     - Such injuries include fright at the time of injury, “pain and suffering stemming from the injury, anxiety
          about a possibility of repetition, humiliation from disfigurement, etc.
     - Under the traditional common law rule, emotional distress could not be awarded because there is no
          physical injury.
               o However, modern decisions have allowed liability for emotional distress as well.

    -    3 tests to prove emotional distress:
              o Physical Impact – common law test, person must be physically injured by the negligence
              o Zone of Danger (Gotshall) – plaintiff needs to be within the zone of danger.
                         SC in Gotshall feels Relative Bystander test is too broad.
              o Relative Bystander Rule: 3 elements
                         whether plaintiff is near the scene of the accident
                         whether he suffers shock from direct knowledge of the incident
                         whether he and the victim were closely related
                                 Dillon v. Legg

Proximate cause of the distress: always a matter for the jury to decide
Duty of defendant: always a matter for judge

TURN TO DUTY

DUTY
Is there a duty?
Whether or not there is a duty is the turf of the judge. Whether or not the defendant met the reasonable person
standard is generally turf of the jury. The court instructs the jury as to the standard of a reasonable person.

To Whom Does the Standard Apply?
   - Everyone. “Would a reasonable person of ordinary prudence, in the position of the defendant, have
      conducted himself as the defendant did?”
          o Exceptions:
                   Minors not normally held to reasonable man standard, but reasonable person of like age,
                       intelligence & experience unless he is engaging in an adult activity (Daniels v. Evans –
                       Teenager driving a motorcycle).
                   Adults with mental deficiency held to reasonable person standard without any allowance
                       for their mental deficiency. (Breunig v. American Family Insurance – woman thought
                       she was Batman and “flew” into a truck. Insanity is not a defense, unless the insanity is
                       sudden and unexpected).
                   Disabled P held to disabled standard (Fletcher v. Aberdeen – Blind man fell at city
                       construction site – not held to the same standard of care as a person with sight).
                   Expert testimony required where the reasonable person (juror) would not have knowledge
                       regarding topic (i.e. complex medical procedures).

How is the Standard Established?
   - In most tort cases, the “duty of care” owed to the plaintiff by the D is that of a reasonable person in similar
        circumstances as the defendant.
   - Courts may look at custom – way a certain activity is carried out in a trade or a community. However,
        custom evidence is not conclusive:
             o Industry Custom: “there are precautions so imperative that their universal disregard will not
                excuse their omission” (TJ Hooper – Necessity of radios in boats to hear storm warnings, etc.
                despite industry standard to not have them)
             o Medicine and standard of customary care – the standard of care in malpractice cases used to be the
                industry custom confined to locality. This has been replaced by a national standard.
                     Brune – Too much anesthesia given to woman during delivery. Court measured standard
                          by local industry standard in New Bedford.
                                                                                                     Page 10 of 16

                        Hellig – Single most notable break with “standard of customary”. Eye irritation. After
                         nine years of treatment, irreparable damage due to glaucoma.
    -   Negligence per se: Standard of care, proximate cause and the violation of statutes:
            o There is a duty to follow statutes. If an individual does not follow a statute then he may be guilty
                of negligence per se (duty of care and breach of that duty) and the judge must so instruct the jury.
                If not negligent per se the judge will let the jury decide whether D is negligent.
                      BUT: There must be a causal connection between a party’s negligence and the injury’s
                         suffered for this negligence to be a proximate cause of an accident – and therefore for the
                         D to be liable. (Martin v. Herzog- deceased did not have lights on (statutory duty),
                         defendant moved for cont. negligence, but Cardozo held that unless lack of lights was
                         cause of accident, then no instruction of contributory negligence).
                      BUT to BUT: Sometimes the statutory purpose (public safety, etc.) overrides causation.
                         (Ross v. Hartman – violated statute by leaving truck unlocked and unattended. Though
                         third party stole car and caused accident, the purpose of the statute was to preserve public
                         safety).
                      Majority of courts find that in drivers’ license and medical license cases, violation of a
                         statute is not the proximate cause of injury. A minority of courts, however, have
                         interpreted statutes differently, finding that the license establishes a specific standard of
                         competence and that those who do not comply with this standard are negligent.
                               (Brown v. Shyne – Woman is paralyzed by unlicensed chiropractor. App. ct.
                               finds that violation of licensing statute was not proximate cause of paralysis, but
                               rather court must evaluate whether or not the D used a reasonable standard of care
                               as if he was licensed).

To Whom Is the Duty of Care Owed?
   - Unforeseeable v. Foreseeable Plaintiff
          o Unforeseeable plaintiff: According to J. Andrews in his dissent in Palsgraf, there is a duty of care
               owed to anyone injured as a proximate result of the D’s conduct.
          o Foreseeable plaintiff: According to J. Cardozo in the opinion in Palsgraf, there is a duty of care
               owed only to the foreseeable plaintiff, or those in the “zone of danger”.
                     Cardozo in Palsgraf – Firecrackers went off as train employee (D) tried to help people on
                         to moving train. Roof tiles fell and injured P 25-30 feet away. Not a foreseeable
                         plaintiff, therefore no recovery.
   - “Danger invites rescue”
          o Cardozo. If a D is shown to be the proximate cause of the injuries of a potential plaintiff they are
               also liable for the damages that occur when one who attempts to rescue the P from injury.
                     (Wagner – Train doors were open, and the plaintiff’s cousin fell out. The plaintiff went
                         out to find the body and was killed. D is still liable for P’s injury).
   - Multiple parties in medicine:
          o All are held responsible, burden on each D to rebut evidence against them (Ybarra)


How do we measure whether or not the Duty of Care has been breached?
   - Conduct exposing others to unreasonable risk of harm is a breach of duty. A finding of breach includes:
           o What in fact happened?
                   May be shown by direct or circumstantial evidence.
           o Whether the facts of the case show that D acted unreasonably.
                   Utility of risk: Balance the likelihood and severity of harm to P against the social value
                      of D’s conduct (the social value of D’s conduct may be measured by the necessity of the
                      risk, i.e. did D avoid greater harm)?
                            Learned Hand economic analysis of foreseeability: (Pretty much rejected by
                             Hand later as too mathematical). B<L(P) – is the burden of avoiding the accident
                             less than the probability multiplied by the injury? (US v. Carroll Towing Co.- Barge
                             broke free and sank tanker due to barge captain’s absence).
                                                                                                      Page 11 of 16

             o   Res Ipsa Loquitur – “the thing speaks for itself”. Occurrence of a particular harm may establish
                 what happened and that D is at fault for occurrence. Places burden on D to introduce contrary
                 evidence (because evidence in is D’s control)
                      3d Restatement:
                               Accident causing the plaintiff’s physical harm is a type of accident that
                               ordinarily happens because of the negligence of the class of actors of which the
                               defendant is the relevant member. (downplays exclusive control requirement and
                               contributory negligence as bar to recovery).
                      Res Ispa Loquitur by Wigmore (Byrne v. Boadle – one of the earliest res ispa case in
                         which the plaintiff passed in front of the D’s house and was hit by a flour barrel):
                               The event must be of a kind which ordinarily does not occur in the absence of
                               someone’s negligence.
                               The event must be caused by an agency or instrumentality within the exclusive
                               control of the defendant.
                               The event must not have been due to any voluntary action or contribution on the
                               part of the plaintiff.
                                        o Colmenares Vivas v. Sun Alliance – Couple injured on escalator when
                                             it stops. Just because the airport contracts escalator maintenance out, it
                                             is still in the airport’s exclusive control because the defendant is
                                             ultimately responsible for the escalator.

Duty to Warn
    -  Medical - warning must be VERY specific to the dangers (MacDonald – woman had stroke after three
       years on pill – warning did not include stoke).
    - Learned Intermediary Doctrine – when manufacturer warns an intermediary, it does not have to warn the
       public/consumer directly
            o Exception: Doesn’t apply in pharmaceutical cases where drug is advertised directly to consumer
                 (Perez - given the fact that drug companies have gone so public, the learned intermediary doctrine
                 cannot be so rigidly enforced) or in cases like MacDonald.
                      MacDonald was exception because of the nature of the pill and the non-medical reasons a
                          woman uses the medication.
Did D meet this duty to warn?
Adequacy of Warning:
    - Once it is established that a manufacturer has a duty to warn, is the warning adequate?
            o FDA requirements are a starting point, a minimum (MacDonald).
            o Whether or not it was met is a question for the jury.
            o MacDonald - It is not what Ortho said, but how Ortho said it.

TURN TO DEFENSES / PLAINTIFF’S CONDUCT
If multiple defendants, TURN TO MULTIPLE DEFENDANTS


DEFENSES / PLAINTIFF’S CONDUCT
The defendant may use the conduct of the plaintiff to try and provide a defense for their actions. We must examine
both contributory and comparative negligence b/c it’s still possible for courts to use either.

CONTRIBUTORY NEGLIGENCE:
  - “Where the plaintiff’s action contributes to the injuries he incurs, he is necessarily barred from recovery
     from the defendant.” (Baltimore & Ohio RR v. Goodman – deceased should’ve known to stop for the train,
     and that the train wouldn’t stop for him – should’ve gotten out of the car and looked for train).
  - “The burden of proving contributory negligence is on the defendant. The plaintiff must only behave
     according to the reasonable man’s standard of care.” (Gyerman v. U.S. Line Co.)
                                                                                                       Page 12 of 16

In this situation:
     - Any bit of contributory negligence could conceivably bar recovery.
     - Rights of one v. Wrongs of another (if person is doing something w/in their rights as a reasonable person
           those rights cannot be limited by the wrongs of another) (LeRoy Fibre- placed hay on own property near
           train tracks)
     - No CN when trying to save someone’s life, except when done rashly or recklessly (Eckert – deceased killed
           while trying to save child).
     - Last Clear Chance came about as a way to combat the bar to recovery provided for by contributory
           negligence.
                o Doctrine of Last Clear Chance: If P is contributorily negligent but D has LCC to avoid harm, then
                     D is still liable.

COMPARATIVE NEGLIGENCE:
  - Contributory negligence is an “all or nothing” penalty. In recent times, courts and legislatures have felt that
     this “all or nothing” system is less fair than one which attempts to apportion damages between plaintiff and
     defendant according to their relative degrees of fault. (Li v. Yellow Cab – plaintiff cuts across three lanes of
     traffic and is it by speeding driver)

In this situation:
     - Pure Comparative Negligence: even if P is 99% negligent they can still recover 1%
               o Policy consideration: fundamental justice
     - Impure (50% rule): once P reaches 50% of liability, P is barred from recovery.

ASSUMPTION OF RISK:
     - P may be barred from recovery when an injury results from a danger of which P was aware and that P
           voluntarily encountered.
               o Note: young children don’t count, because they can’t appreciate the risk!
In this situation:
     - Primary AOR: The determination that the D has met whatever duty the court thinks appropriate to
           impose, and thus there is no basis for liability. (Knight v. Jewitt – P was playing football, D broke P’s
           finger. P assumed risk, barred from recovery, even though she requested D stop playing rough before
           accident).
               o K AOR: P’s recovery is completely barred if she signed an enforceable exculpatory clause.
     - Secondary AOR – D has duty and there is a breach, but the D asserts that P also acted unreasonably.
           Though it’s called something different, it operates as contributory negligence. Under contributory
           negligence this is a bar to recovery, and mitigates recovery under comparative negligence.
     - Volenti non fit injuria
               o One who knowingly confronts a hazard cannot recover for injuries sustained thereby. (Murphy v.
                    Steeplechase Amusement Co. - The court found for the defendant and held the plaintiff assumed
                    the risk of riding the flopper. The whole point of riding the ride was the thrill of danger!)
               o Informed Consent: P must be informed that they are giving consent, especially with adhesion
                    contracts in medical malpractice situations.
                          Murphy - Adhesion contract…Did the plaintiff assume the risk in agreeing to the
                              arbitration clause? The defendant raised defense of secondary assumption of risk. The
                              clinic had a duty to the plaintiff, but the plaintiff assumed a certain amount of risk in
                              signing arbitration clause. The Court found that she did not knowingly consent to the
                              agreement, and remanded the case.
                                    Sidenote: Adhesion contracts can be enforced if not unduly oppressive at the
                                    time of enforcement.

Defenses to Products Liability
    - Disclaimers by the manufacturer: (with the recent defeat of tobacco companies this might not be a viable
        defense).
    - Misuse of the product by the plaintiff in an unforeseen manner.
    - Not in the business of selling the product (you will not be held to the same standard as your local ford
        dealer if you sell your used car to a friend).
                                                                                                    Page 13 of 16

    -   The plaintiff knew of the defect and voluntarily continued use; assumption of risk.
    -   Cost/benefit analysis:
            o The product is highly useful to the public/ desirable, there is no safer substitute product design
                 and/ or it is prohibitively expensive to reduce the danger.

Turn to OUTER LIMITS OF TORTS (PUNITIVE, CLASS ACTION, PREEMPTION, EXPERT TESTIMONY)


MULTIPLE DEFENDANTS (JOINT & SEVERAL LIABILITY)

JOINT LIABILITY:
   - “Used when the identity of the actual/specific defendant is unclear. The individual joint tortfeasor has to
      absolve himself individually from a joint liability claim, where each defendant is equally negligent in the
      court’s eyes.”
          o (Summers v. Tice – hunting accident, unclear which defendant caused two injuries. The courts
               assigned joint liability meaning the two defendants are responsible for the entire judgment, i.e. if
               A cannot pay, B is responsible for A’s portion. It is the defendants’ burden to prove which one of
               them was responsible).
   - Thus each defendant must introduce evidence against his co-tortfeasor to go free. (D has the BOP)

EQUITABLE INDEMNITY BETWEEN CO-DEFENDANTS:
4 potential rules of shared liability (Oil Spill by Amoco):
         (1) No contribution: P can collect any part of the total from any one of the D. D’s can’t collect from each
         other. Settlement by D buys peace and P’s settlement may be augmented in process.
         (2) Contribution: P may collect any part of the award from any of the D’s. A D called on to pay more than
         its share of the award, may obtain contribution from the other D’s. Deters settlements because settling
         party can end up paying more than once (to P and to other Ds).
         (3) Contribution plus settlement bar: Similar to “contribution” in that P may obtain contribution from D
         BUT a D may obtain contribution only from another D that proceeds to judgment. By settling, a party
         escapes any liability from contribution. Because the settlement is in good faith, the P may obtain
         settlement more quickly, but the costs may be higher because the courts must determine whether or not the
         settlements are bone fide (in good faith).
         (4) Claim reduction (comparative fault rule): if P settles with any D, P forgoes claims against others D’s
         for any damages attributable to the settling D’s share of fault. The remaining D’s are not entitled to
         contribution from the settling party because after claim reduction, there is no “excess” payment for which
         contribution would be appropriate. The trial may be greatly protracted and P’s recovery may be reduced.

MARKET-SHARE LIABILITY
  - When you can only identify a defective product by type and not brand and all brands are exactly the same
     (often in drug cases), the Ds might be required to pay damages for the percentage of the market share they
     hold for that product.
          o (Sindell v. Abbott – Plaintiff’s mother took DES while pregnant, plaintiff developed cancer but
               due to passage of time could not identify drug manufacturer)
  - Market share is an alternative to joint and several liability, requiring:
          o Inability to determine manufacturere through no fault of her own.
          o Fungability of product (consistent manufacturing by all defendants).
          o All manufacturers are named in original suit.


VICARIOUS LIABILITY:
   - An employer is vicariously liable for any tortuous acts committed by its employee within the scope of the
      employment. This applies whether the acts are done in the presence of the employer or otherwise (i.e.
      whether the employer had the actual ability to control the employee’s conduct or not).”
          o “This principle is known as respondeat superior and it applies even when an employee/agent’s
              actions fall outside the scope of his/her duties if the risk was foreseeable.”
                                                                                                     Page 14 of 16

In this situation:
     - Medical:
               o Independent contractor – when a P goes to a hospital for services (NOT to a particular
                   physician) the hospital can be held VL for physician’s negligence even if the group of physicians
                   is independently contracted.
                         (Hardy- Physicians group as independent contractors at hospital and perception of
                            community).
               o BUT can’t hold a doctor liable for the failure of a medical device (sales v. service dichotomy,
                   must sue manufacturer).
     - HMO:
               o Implied authority – if the HMO is actively making decisions for the doctor they have implied
                   authority (doctor’s decisions are influenced by the HMO, quality control standards, etc.)
               o Apparent authority- HMO can be liable for doctor’s actions when
                         Hold themselves out as being in charge
                         Justifiable reliance – patient was justified in thinking they were in charge of doctors

TURN TO DEFENSES / PLAINTIFF’S CONDUCT

PUNITIVE DAMAGES (BMW v. Gore – got a slightly used car instead of a new car, originally awarded 500 time
compensatory damages).
SC can cap punitive damages under the due process clause.
Appeals courts must use a De Novo standard – examining the rule anew (if they disagree, overrule TC!)
    - De Novo Review: a court’s non-deferential review of an administrative decision, usually through a review
        of the administrative record plus any additional evidence the parties present.

Three guideposts to determine if D had adequate notice of penalty:
    - The award must match the reprehensibility of D’s actions.
    - The ratio between punitive damages and compensatory damages cannot be excessive.
    - The damages cannot be grossly excessive of other penalties/sanctions administered for the same action.

Products liability:
Punitive damages awards are rare in this area. A plaintiff might be awarded punitive damages if he can prove that
the defendant had actual knowledge of the defect and intentionally disregarded the consequences.

The Supreme Court goes further in State Farm, giving a mathematical figure for determining the reasonableness of
punitive damages.
         -The Court suggested a single-digit multiplier between compensatory and punitive damages, except in
         cases of especially egregious behavior with a low compensatory damage.
         -There must be a nexus, or actual connection, between the D’s actions and the injury.

In this situation: Does the punitive damage violated the due process clause of the 14 th Amendment? DeNovo
standard. Three guideposts from BMW. Takes it further in State Farm with single-digit multiplier and nexus.

PREEMPTION OF FEDERAL STATUTES (Drattel, King, Geier)
   - Expressed Preemption
          o If state law is not narrowly tailored (created to fit a specific purpose not included under federal
              law) then it is expressly preempted.
   - State law conflicts directly with federal law (implied preemption)
          1. If the Federal law sets a minimum standard then no conflict, tort can still be brought in state
              court (i.e. state can have a higher standard)
                    (King – suit not against choice given by Fed. Law but against safety standard used in
                       chosen safety feature).
          2. If state common law conflicts with ability of Federal agency to set standards, the conflict and
              Federal law wins.
                                                                                                       Page 15 of 16

                             (Geier – DOT’s purpose to introduce air bags slowly was in direct conflict with DC’s
                              common law awarding damages against D that did not manufacture with air bag before
                              1987).
     - State law falls within the broad scope of federal law (implied preemption)
                o However, if the state law is the same as the Federal law you can still bring the state case.
     - Savings clause: allows states to prosecute torts actions based on common law unless they go against the
           intent of Federal law.
                o (Drattel – savings clause sets forth minimum standard, does not bar recovery in state court against
                     manufacturer for lack of airbag).
In this situation: Express or Implied preemption? Implied: Conflict w/Federal (minimum standard or direct conflict
with purpose of administrative goals) – Savings clause does not necessarily preempt.

EXPERT TESTIMONY
   - Expert testimony cases on appeal use abuse of discretion standard – obligation not to apply own
     judgment, but whether trial court acted reasonably, i.e. abused its discretion.
          o This gives the trial court more discretion in deciding how the court will test the reliability of the
              expert testimony and how they will determine if the testimony is relevant.
   - The court acts as a “gatekeeper” to determine if the testimony is reliable and relevant. (Kumho Tire- expert
     testimony is not limited to scientific knowledge, may include technical knowledge also).
   - 4 Tests of Daubert –Determines whether or not expert testimony is admissible. These apply to all expert
     testimonials, and are not all required. Remember, the court acts as a “gatekeeper”.
              1. Theory’s testability?
              2. Has it ever been subject to peer review and publication?
              3. Rate of error?
              4. General acceptance?

In this situation: Don’t forget to alert your client as to the implications of Daubert. As an attorney, you must explain
what an abuse of discretion is and why it applies to expert testimony, what the judge’s role as a “gatekeeper” is, and
most importantly, decide under applicable state law if there is even a need for an expert witness.


CLASS ACTION
   - Example: asbestos claims, Congress calls for legislation (Ortiz v Fireboard)
         o Pros: Efficient vehicle in redress for many; not just few who can afford representation get to try
            case
         o Cons: Individuals deliberately denied due process (lawyers get $)

In this situation: Always THINK about this option; but don’t rush (Ortiz)

CITIZEN V. UNITES STATES
   - Federal Tort Claims Act and Discretionary Function:
          o Discretionary Function insulates the government form liability if the action challenged in the
              case involves the permissible exercise of policy judgment. The discretionary function is the
              power conferred upon a person, entity or governing body to exercise personal judgment
              when discharging their duties.
          o Berkovitz v. US: A 2-month old ingested a defective polio vaccine and contracted the disease.
              Parents sued on grounds that government had wrongfully licensed laboratories to produce vaccine
              and wrongly approve the lot’s release. Government filed motion to dismiss on subject-matter
              jurisdiction grounds. SC reversed and remanded Court of Appeals grant of motion because the
              Government had adopted a policy of testing all vaccine lots for compliance with safety standard
              and preventing distribution of any lots failing to comply. This left no room for implementing
              officials to exercise independent policy judgment. Not covered by discretionary function.
          o Ford v. American Motors Corp: SC held that the government’s decision to sell used postal office
              Jeeps to the public was protected by the discretionary exception even though the government did
              not warn the public of the jeeps’ propensity to roll over.
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