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					                   REMEMBER TO ALWAYS MENTION                       INTENTIONAL TORTS (harm substantially certain)          WITH CAUSATION ANALYSIS,                                        what if…
                   PLAIN OLD NEGLIGENCE!!!                       offense against          offense against                      TURN OVER EVERY LEAF!!!
                   1                                1            possession      1        ownership        2                               2                                             mean joke,
                                                                                                                                                                                         gas man,
                          Battery                          Trespass                  Conversion              Offensive Battery                    Assault                                Dr./people
                                             intentional entry/substantial certainty   Conversion requires attempt by 3rd party to claim ownership                                       outside in
                     conversion: converting real P into personal        DEFENSES TO INTENTIONAL TORTS                trespass to chattels: vandalism (lesser                             rain, debt
                   P / treating someone else's P as your own                                         no changing locks, breach        offense) no intent to harm/claim owner req'd       collectors,
 ear, phlebitis,                                                                                                                                                                         sexual
  2nd vaccine, 3                     5                   5                      6                   6          of peace 7                         7                  8
                                                                                                                                                                                         harrasment,
         kidney    implied                                   self-               defense of          recapture              necessity                false            intentional        not for
   transplants,
                                       insanity
                   consent                                 defense                property          of chattels              (servant              imprison-         infliction of       parodies of
    herpes, Dr. (medicine               (not a
                                                           (even w/              (only force          (only if no           cuts rope                ment             emotional          political
       assisted & sports)             defense)                                                      claim of right)
                                                          3rd party)            necessary)                                    loose)             (awareness?)           distress         figures
     suicide/life                                                                                                                                                                        Outrageous!!
        support illegal boxing,                         Jewelry store         no spring guns                                                     shoplifting, missed train
                                                                                                   OK if force/fraud     privileged, but Ds
                   rule infractions              STRICT LIABILITY VS. NEGLIGENCE: HISTORY / ANALYTICAL IMPORTANCE                                                           READ
                                                            escape of dangerous substance                                                                        CAREFULLY!!!               all of the
                   10                                          11                                      12                                             13                                    facts
                        Early Cases (e.g.                        Modern Approach (e.g.                       American Cases                              Recent Hard Cases
                                                                                                                                                                                         flour barrel,
                        Thorns, inevitable                      dogs and stick, Rylands)                    Rylands/Cairns as                         Bolton v. Stone (low risk          hotel guests,
                     accident, lighted squib)                   ultrahazardous activities             reasonable/unreasonable                          events), epileptic driver         drunk pilot,
                   parents not vicariously liable,   is (1) intention unlawful (2)  at fault     Bramwell right to be free of foreign water Blackburn likelihood of mischief          cigarette fire,
                      but special duty? negl.?                               THE CONCEPT OF NEGLIGENCE                                 if it escapes Cairns natural vs. unnatural       rolling logs,
                   adults, elderly, children, disabled, mentally ill Batman (foreseeable)          Osborne: 1) purpose of statute 2) protected class 3) w/in type of accident            tonsil,
                                                                                                                                                                                         escalator,
                   14                15                15                17               18                  19                21                  23               23                cortisone
                    reasona-           sudden            calculus                           custom              informed          violation                             Res ipsa         shots, muscle
                                                                         customary                                                                       dram
                     bleness            emer-              of risk                             in                consent              of                                 loquitur        atrophy,
                                                                           care (TJ                                                                    statute
                    standard            gency             (B<PL)                            medical               (AIDS           criminal                              (nondele-        rongeur break
                   (haystack)
                                                                           Hooper)                                                                     liability       gable duty)       (generally all
                                       doctrine          (bargee)                            cases                blood)          statutes
                                     disfavored          including kid saved on train tracks, man dies; powerline/Tel.                                             + conditional         potential s
                   also weed                                                                                                                                                             must be
                   burning near                    PLAINTIFF'S CONDUCT (things you can do to screw up chances of recovery)                                                res ipsa       joined, but not
                   P boundary                                                                         res ipsa (1) usu. negl. (2) exclusive control (3) no  contribution
                   27                           29                           29         Bernina         30         fellow servant 31                              31                    w/rongeur)

                       contributory             last clear chance            imputed contrib.            assumption of                                              comparative          2 fires
                                                                                                                                         arbitration
                    negl. (speeding              (wagon on tracks,              negl. (but not            risk (primary,                                          negligence (e.g.,      converge;
                                                  man ran over 3x)
                                                                                                                                          clauses
                       horse, pole)                                          even fellow empl.)             secondary)                                             pure, modified)       coat on fire,
                   not empl. dangers fishmeal                           "community of interest"         vibrating hatchet rack, fellow servant, flopper, ice rink                       Summers v.
                   platform collapse no causation                     MULTIPLE DEFENDANTS (plus vicarious liability)                                                                     Tice
                                                                                                                                                                                         (alternative
                                   also not wearing seatbelts                                                                                       direct negl. theory, hostile
                   32                                     only when both definitely contributed           34                                       work environ. e.g. goosing
                                                                                                                                                                                         liability);
                                                                                                                                                                                         apportionment
                               Joint and Several Liability (differs by state)                               Vicarious Liability ("Respondeat Superior") (joint enterprise)               can be similar
                    CA – J&S with contribution – each still 100% liable                                                           incl. negl. indep. K doing dangerous work              to market
                                                                                           CAUSE IN FACT                                    HMO – apparent/implied authority             share liability
                                                                                                                                                                                         but definite
                                                                                                                   court as expert witness        also ER Dr. / newspaper boy
                                                                                                                                                                                         known
                   37                           38                           38                         38          "gatekeeper" 39                               40               41    contribution
                    Rescue at Sea                    Statutory               Slip and Fall (but        Products Liability               Lost Chance               Multiple Causes,       e.g. quantity
                     (no life buoys,                 Violations                no Ds for lesser        seat belt 2 theories,              Doctrine                 Apportionment         of pollution
                    but causation?)                Negl. per se                precaution, tub)          drugs, asbestos                (Herskovits)              market share liab      market share
                   42                 Osborne (poison, p. 21); pharmacy overdose                    Bendectin, exposure?, weird mice studies                                             liab. is when
                                                                                                                                                                  concert of action
                                                                                                                                                                                         actual cause
                     jumping to avoid accident                         PROXIMATE CAUSE AND THE SCOPE OF DUTY                                                         41/42(Sykes)        unknown
                                                        Cardozo: danger invites rescue               3 theories (1) directness (2) foreseeability (3) harm w/in risk
                   42                    43                   43                                        44                   45                    43         46        46
                                                                                                                                                                                         oil fire, molten
                    fire cases                                   foreseeable intervention                Polemis              Palsgraf –                until              Wagon
                                                                                                                                                                                         metal on lip
                                        coincidence                 train past stop, rape;              (plank hits                                  situation             Mound
     no duty to
                   (usually only
                                         tree falls on
                                                                                                                              explosives                                                 (cancer) thin
rescue unless
                    1st house it
                                        speeding train
                                                                dynamite caps; match gas                    boat)              no duty to           stabilized           (foresee-       skull  OK
                    spreads to)                                spill; things stolen from train          directness           party harmed          (e.g. wreck)           able Ds)
you create the
 situation, e.g.                           even intentional tort doesn't necessarily break causal chain                                     see also rescue              US standard:
                                                                                                                                                                                         customer?
 wreck, stalled                      ATTRACTIVE NUISANCE?                           SPECIAL DUTIES OF CARE                          RR              harm w/in risk: negl. foreseeable    parent?
  cars (even if             Important anytime someone is hurt on someone else's P implied licensee?                             watchman Ds w/in foreseeable type not degree             reasonable
not negl.) or if                                                                                                                                                                         care to protect
                   47                                           49                 foreseeable?            51              e.g. Moch, hydrant           54                (boat loose)
  you begin to                                                                                                                                                                           business
help someone             Rescue situations                         Possessors of Land                        "Gratuitous" Promises                        Special Relationships
                                                                                                                                                                                         visitors from
       e.g. sick                                  (1) invitee (2) licensee (3) trespasser                  increased harm or reliance                   psych. Tarasoff; disk jockey;
                                                                                                                                                                                         3rd persons/
     customer           Note: DO NOT apply comparative                          POCKETS OF STRICT LIABILITY                                              college, business, landlord
                                                                                                                                                                                         animals §344
                     negligence analysis to strict liability!!! assumption of risk harm w/in risk, mink                            Cyanamid                 Ds, lessor or lessee?
                   56                                           57                                         59                 judges decide             62/67                            "ancient
                                                                                                                                                                                         lights";
                      Trespass/Conversion                          Dangerous Animals                        Abnormally Dangerous ? of law                 Nuisance (Private and          fishermen, no
                      (spleen, wine barrels)                    dogs, cattle fence range                     Activities (explosives)                    Public) (unreasonable?)          public
Prospective                                                           requires actual Ds (can be caused by 3d parties, thieves)                 exception to eggshell skull rule         nuisance
Economic           Design defects/warnings negl. analysis                 PRODUCTS LIABILITY (see also causation)                                  usually any substantial harm          (econ losses)
Advantage              (some juris. allow comparative negl.)                                         components e.g. concrete                                        unreasonable        but duty;
Rule:                                                                                                                                                                                    not for natural
                   68/71                       cannot sue sub                73                      no suit against sub             76
                                                                                                                                                                                         occurrences
economic                 Restatements §402A consumer                         Manufacturing and Design Defects, e.g.                    Inadequate Warnings (birth control &              e.g. bugs,
losses must         contemplation; 3d Rest. negl. analysis                    used, second collision, obvious danger                     vaccines, sufficiency of warnings)              wind blowing
be tied to         Casa Clara – no Ds for pure econ. losses,           fan in car, VW seat, bulletproof vest, printing press                              baby oil, do not breathe       dust from
actual             e.g. D to product itself (salty concrete) –                                DAMAGES                          DUTY TO                       BE SPECIFIC IN              cleared land;
physical           only for D to other P/injury                       also % likelihood not working                            MITIGATE                    DISCUSSING Ds!!!              no liability for
injury/Ds or                                                                                                                                                                             natural
                   78             cook injured: adjust for inflation (discount rate/wages)                 79           wanton, reckless                apply accurately to facts        conditions of
no recovery               Compensatory (loss of enjoyment, per diem, taxes)                                 Punitive (1) actual knowledge (2) disregard; BMW paint case                  land §363
       JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
I.    INTENTIONAL TORTS                                                                 1
Sykes' Definition of Battery                                                            1
Battery, Trespass, Conversion where Bad Results Unintended                              1
Offensive Battery                                                                       2
Sykes' Definition of Assault                                                            2
Assault                                                                                 2
II. DEFENSES TO INTENTIONAL TORTS                                                       3
Medicine – Implied Consent / Emergency and Non-Emergency                                3
Implied Consent – Sports (also Statutory Rape)                                          4
Insanity Defense – (basically, there isn't one)                                         5
Self-Defense                                                                            5
Defense of Property                                                                     6
Recapture of Chattels                                                                   6
Necessity                                                                               7
False Imprisonment                                                                      7
Intentional Infliction of Emotional Distress                                            8
III. STRICT LIABILITY VS. NEGLIGENCE: HISTORICAL EVOLUTION AND ANALYTICAL IMPORTANCE   10
Early Cases                                                                            10
The Modern Approach Emerges                                                            11
American Cases (Frosty Towards Rylands)                                                12
Some Recent Hard Cases                                                                 13
IV. THE CONCEPT OF NEGLIGENCE                                                          14
Reasonableness Standard (Adults, Elderly, Children, Disabled)                          14
Sudden Emergency Doctrine (Disapproved – Factor in Negligence)                         15
Calculus of Risk                                                                       15
Customary Care                                                                         17
Custom in Medical Cases                                                                18
Informed Consent                                                                       19
Violation of Criminal Statutes                                                         21
Dram Statute Liability (Varies Widely by Jurisdiction)                                 23
Circumstantial Proof (Res Ipsa Loquitur) and Related Matters                           23
V. PLAINTIFF'S CONDUCT                                                                 27
Contributory Negligence                                                                27
Last Clear Chance (Disfavored in Comparative Negligence)                               29
Imputed Contributory Negligence (Only If Community of Interest)                        29
Assumption of Risk                                                                     30
Arbitration / Indemnification Clauses (Sometimes Unenforceable)                        31
Comparative Fault                                                                      31
VI. MULTIPLE DEFENDANTS                                                                32
Joint and Several Liability – Differs Widely by State                                  32
Vicarious Liability ("Respondeat Superior")                                            34
VII. CAUSATION                                                                         37
Cause in Fact – Rescue At Sea                                                          37
Cause in Fact – Statutory Violations                                                   38
Cause in Fact – Slip and Fall Cases                                                    38
Cause in Fact – Products Liability (Including Medicine)                                38
Cause in Fact – Multiple Possible Causes, Apportionment                                40
Proximate Cause and the Scope of Duty                                                  42
VIII. SPECIAL DUTIES OF CARE                                                           47
Rescue Situations                                                                      47
Possessors of Land                                                                     49
"Gratuitous" Promises                                                                  51
Special Relationships                                                                  54
IX. POCKETS OF STRICT LIABILITY                                                        56
Intentional Torts Revisited (Trespass/Conversion)                                      56
Dangerous Animals                                                                      57
Abnormally Dangerous Activities                                                        59
Nuisance – Private                                                                     62
Nuisance – Public                                                                      67
X. PRODUCTS LIABILITY                                                                  68
The Restatements                                                                       68
Manufacturing and Design Defects Conceptualized                                        73
Inadequate Warnings                                                                    76
XI. DAMAGES                                                                            78
Compensatory Damages                                                                   78
Punitive Damages                                                                       79


Jeanette L. Goldsberry
470ad5fc-16af-4f9d-85a5-e61c76e37a8a.doc
         JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS


I. INTENTIONAL TORTS .......................................................1
Sykes' Definition of Battery ..................................................................... 1
  A harmful or offensive contact with a person resulting from an act that is intended to cause the
  plaintiff or a third person to (a) suffer that contact; or (b) suffer apprehension that such a
  contact is imminent................................................................................................................................. 1

Battery, Trespass, Conversion where Bad Results Unintended ........... 1
  VOSBURG V. PUTNEY (1891) (P. 4) (WEAK BOY KICKED AT SCHOOL, MICROBES) .................... 1
    Unlawful touching intended to cause harm adequate for battery, even if harm intended is milder than
    harm that occurs. .................................................................................................................................. 1
  Garratt v. Dailey (1955) (p. 7) (arthritic lady, kid pulls chair away, she falls) ................................. 1
    Even if you do not directly contact someone and cause their injuries, if you do something which will
    cause them offensive contact there is a battery. ................................................................................... 1

  RESTATEMENT (THIRD) OF TORTS – RTT:GP §1 INTENT (P. 8) ........................................... 1
  Talmage v. Smith (1894) (p. 9) (stick thrown at trespasser, 3rd party injured) ............................... 1
    If A intends to hit B and hits C, A responsible for C's injuries – Transferred Intent. .......................... 1

  SYKES' DEFINITION OF TRESPASS ............................................................................................. 1
    Entry on property has to be intentional for trespass (not like a polluter accidentally having pollution
    seep onto your property). However, if the polluter knows with substantial certainty that the
    pollution will seep onto the property, then the polluter has trespassed. ............................................... 1
  Dougherty v. Stepp (1835) (p. 9) (generic example) ............................................................................ 1
    Any unauthorized, and therefore unlawful, entry is trespass. .............................................................. 1
  Brown v. Dellinger (1962) (p. 10) (children ignite fire in grill while trespassing in garage) ............ 1
    "Knowledge" requirement fulfilled – children trespass, start fire with matches, responsible. ............. 1
  Cleveland Park Club v. Perry (1960) (p. 10) (ball inserted in pool drain; suction; disaster) .......... 1
    Intent requirement is to commit act and not intent to cause harm. ....................................................... 1
  Maye v. Tappan (1863) (p. 11) ( tells  property is 's;  mines gold; restitution to ) ................ 1
    If trespass/conversion unintentional, restitution allowed (less labor/extraction, no punitive) ............. 1

Offensive Battery ...................................................................................... 2
  ALCORN V. MITCHELL (1872) (P. 65) ( SPITS AT CLOSE OF COURT CASE;  AWARDED DS) .. 2
     Malicious spitting is offensive battery – damages awarded for lost dignity. ....................................... 2

  RESTATEMENT (SECOND) OF TORTS – §18 BATTERY: OFFENSIVE CONTACT (P. 66) .. 2
  Respublica v. De Longchamps (1784) (p. 66) (French ambassador insulted) ................................... 2
    Strike cane – insult – battery, if intentional.......................................................................................... 2
  Richmond v. Fiske (1893) (p. 66) (Crazy milkman enters house, awakens  – battery) .................. 2
    Mad milkman – enters house, shakes  awake to present bill – trespass and battery.......................... 2




Jeanette L. Goldsberry                                                                                                                         Page i
470ad5fc-16af-4f9d-85a5-e61c76e37a8a.doc
         JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
Sykes' Definition of Assault ..................................................................... 2
  An act done with the intention to cause a battery, or apprehension of imminent battery, which
  creates such an apprehension. ............................................................................................................... 2

Assault....................................................................................................... 2
  I. DE S. AND WIFE V. W. DE S. (1349) (P. 61) (TAVERN DOOR STRUCK, THEN AX WAVED) ....... 2
       struck door of closed tavern with hatchet;  stuck head out and ordered him to stop; again swung
      hatchet in threatening manner (did not hit woman); assault but not battery. ....................................... 2

  TUBERVILLE V. SAVAGE (1669) (P. 62) (I WOULD STRIKE YOU IF THE JUDGES WEREN'T IN
  TOWN…) ..................................................................................................................................... 2
    If a condition is placed on a threat that, if taken at face value, prevents its fulfillment in the
    immediate circumstances, the act is not assault. There has to be present intent to harm. ................... 2
  Allen v. Hannaford (1926) (p. 62) (crazy landlady enforces lien on furniture w/gun – Ds) ............. 2
    Assault with unloaded gun still assault – causes apprehension. ........................................................... 2
  Brooker v. Silverthorne (1919) (p. 64) (crazy man threatens telephone operator, no Ds) ............... 2
    Even when conduct objectionable, conditional threats cannot be taken as unconditional. .................. 2

  RESTATEMENT DEFINITION OF ASSAULT – §21. ASSAULT .................................................... 2


II.          DEFENSES TO INTENTIONAL TORTS.............................3
Medicine – Implied Consent / Emergency and Non-Emergency ........... 3
  MOHR V. WILLIAMS (1905) (P. 12) (RIGHT EAR OPERATED ON INSTEAD OF LEFT – NOMINAL
  DS) .............................................................................................................................................. 3
    Generally, implied consent in surgery is only given for actions related to the specific invasion of the
    body necessitated by the surgery. You cannot operate on left ear if permission given for right,
    unless it is an emergency. .................................................................................................................... 3
  Allore v. Flower Hospital (1997) (p. 14) (generic example) ................................................................ 3
    Implied consent in emergency – a legal fiction, under assumption  would consent if able. .............. 3
  Kennedy v. Parrott (1956) (p. 16) (cysts punctured during appendectomy; phlebitis; no Ds) ........ 3
    If general surgery, minor problem noted as result of incision, implied consent given for routine
    correction, even if bad (unusual) side effect occurs. ............................................................................ 3
  O'Brien v. Cunard Steamship Co. (1891) (p. 16) (smallpox vaccination #2 for immigrant) ........... 3
    If you act as though you consent, even if you don't verbalize it consent is given. ............................... 3
  Bonner v. Moran (1941) (p. 17) (generic example) .............................................................................. 3
    Parental consent necessary for operations on children. ........................................................................ 3
  Life Support / Physician-assisted suicide.............................................................................................. 3
    OK not to use extraordinary measures to keep someone alive, but physician-assisted suicide not OK.
    (pp. 18–19) – but States have a right to regulate, and require proof that the person would have likely
    consented if able (Cruzan v. Director…, 1990) (p. 20–21). ................................................................. 3
  Lausier v. Pescinski (1975) (p. 19) (kidney not taken from incompetent to save brother, guardian
  wouldn't consent) .................................................................................................................................... 3
    Guardian must approve of damage to incompetent to save life of someone else. ................................ 3
  Strunk v. Strunk (1969) (p. 19) (kidney taken, guardian agreed) ...................................................... 3
    Court allowed transplant of kidney in similar case where guardian consented. ................................... 3
  In re A.C. (1990) (p. 19); In re Baby Boy Doe (generic example)....................................................... 3
    In parent-fetus conflict, woman's decision not to have caesarean section respected, even when it
    could result in harm to fetus. ................................................................................................................ 3

Jeanette L. Goldsberry                                                                                                                        Page ii
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         JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
  Maharam v. Maharam (1986) (p. 21) (wife gets herpes from husband, no Ds) ................................ 3
   Venereal disease transmission not actionable unless fraud involved (non-disclosure). ....................... 3

Implied Consent – Sports (also Statutory Rape) .................................... 4
  HUDSON V. CRAFT (1949) (P. 22) (ILLEGAL BOXING CASE, PROMOTER CAN BE SUED FOR DS) 4
    You cannot consent to an illegal act, and pari delicto (equally at fault) does not apply when statutory
    violation of a third party is proximate cause of injuries – third party liable. ....................................... 4
  Hart v. Geysel (1930) (p. 25) (volunteer suffers no wrong, opposite view from Hudson) ................ 4
    Dissent to above view in Hudson (Restatement adopted this dissent) – no cause of action. ............... 4
  Barton v. Bee Line, Inc. (1933) (p. 25) (underage woman seduces man) ........................................... 4
    No civil cause of action for statutory rape (suing employer for behavior of employee). ..................... 4
  Hackbart v. Cincinnati Bengals, Inc. (1979) (p. 25) (football injury due to broken rule)................ 4
    s in legal sporting events consent to injury from blows administered in accordance with rules, but
    not blows that are deliberately illegal................................................................................................... 4
  Nabozny v. Barnhill (1975) (p. 26) (goalie injured in non-professional soccer game) ...................... 4
    Same as Hackbart above also applies to non-professional sports. ....................................................... 4

  THIRD RESTATEMENT OF TORTS – §2. RECKLESSNESS ..................................................... 4
    (This is a way around the implied consent defense for willful rule violations in sports.) .................... 4
  Turcotte v. Fell (1986) (p. 27) (minor, typical rule infractions – jockey not liable).......................... 4
    Normal, typical infractions (as opposed to willful, reckless infractions) not actionable. .................... 4
  Gauvin v. Clark (1989) (p. 28) (hockey game rough – not actionable if within norm)..................... 4
    Even bad infractions, with a degree of recklessness commensurate with the nature of the sport, are
    not actionable, so long as they are not willful, wanton or reckless. ..................................................... 4
  Marchetti v. Kalish (1990) (p. 28) (kids playing kick the can, rule broken, no Ds) .......................... 4
    No liability for rule infractions in informal children's games unless reckless or intentional. .............. 4
  Ford v. Gouin (1992) (p. 29) (barefoot water skier injured by boat maneuver, no Ds) ................... 5
    In inherently risky sports, when  does something, reckless outside of the context of the risky sport,
    that causes injury to , no cause of action, so long as no intent. .......................................................... 5
  Cheong v. Antablin (1997) (p. 29) (snow skier not liable for Ds to  from rule infraction) ............. 5
    Another skiing accident (snow skiing) – again, no cause of action, without solid proof of
    recklessness (not mere rule infraction). Assumption of risk, by participating in snow skiing. ........... 5

Insanity Defense – (basically, there isn't one) ........................................ 5
  MCGUIRE V. ALMY (1937) (P. 30) (NURSE GETS DS FOR INJURIES FROM INSANE PRIVATE
  PATIENT) ..................................................................................................................................... 5
    In general, no insanity defense in intentional or unintentional torts (as long as there is some, albeit
    skewed, intent – but not generally capable of defamation and malicious prosecution). (However,
    defense in criminal law.) Also, no assumption of risk in private mental healthcare situations (not
    true in public). ...................................................................................................................................... 5
  Polmatier v. Russ (1988) (p. 33) (crazy man kills father in law – civilly liable) ................................ 5
    Another more extreme insanity case (killed father-in-law) – civil liability, but not criminal. ............. 5
  Gould v. American Family Mutual Insurance Co. (1996) (p. 33) (generic example) ....................... 5
    Party that causes loss should bear loss, when neither party guilty through intent (re insane).............. 5

Self-Defense .............................................................................................. 5
  COURVOISIER V. RAYMOND (1896) (P. 34) (JEWELRY STORE ROBBERY; COP ACCIDENTALLY
  SHOT) .......................................................................................................................................... 5
     In legitimate cases of self-defense, a defendant is not liable for unintentionally harming an innocent
     third party, so long as behavior reasonable under circumstances......................................................... 5
Jeanette L. Goldsberry                                                                                                                          Page iii
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        JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
  Morris v. Platt (1864) (p. 36) (generic example) .................................................................................. 5
   The accidental harming of an innocent bystander by force reasonably intended in self-defense to
   repel an attack by a third party is not actionable. ................................................................................. 5

  RESTATEMENT – RST §75 – HARM TO THIRD PARTIES IN SELF-DEFENSE ............... 5
  Boston v. Muncy (1951) (p. 37) (fight over automobile heater sale during WWII) .......................... 5
     does not have to be in danger of great bodily harm, only bodily harm, to use self-defense. ............ 5

Defense of Property .................................................................................. 6
  M'ILVOY V. COCKRAN (1820) (P. 38) ( TRESPASSER TEARING DOWN FENCE; FORCE NOT
  JUSTIFIED)................................................................................................................................... 6
    "[I]n defense of possession a wounding cannot be justified." .............................................................. 6
  Green v. Goddard (1795) (p. 39) (generic example) ............................................................................ 6
    Respond to force with force; respond to trespass with warning, then force. ........................................ 6

  BIRD V. HOLBROOK (1825) (P. 40) (GARDEN, BULBS BEING STOLEN, SPRING GUN SET –
  EXCESSIVE) ................................................................................................................................. 6
    You cannot booby-trap your property without warning, with the intention of wounding trespassers.
    Some kind of warning must be given, so that intention is deterrence not revenge. ............................. 6
  Katco v. Briney (1971) (p. 44) (spring gun injures trespasser in home; also excessive) ................... 6
    Reasonable force to protect property, but not to take human life or inflict great bodily injury. .......... 6

  RESTATEMENT (SECOND) OF TORTS – §85 USE OF MECHANICAL DEVICE
  THREATENING DEATH OR SERIOUS BODILY INJURY (P. 46)................................... 6
     You can use force proportionate to crime – you can booby trap your home to protect yourself, but
     you must use the minimum force called for in the situation. ............................................................... 6

Recapture of Chattels ............................................................................... 6
  KIRBY V. FOSTER (1891) (P. 46) ( UNDERPAID; TAKES $ FROM AMOUNT GIVEN TO PAY
  OTHERS; MANAGERS RECAPTURE $ BY FORCE, HURT ;  RECEIVES DS) ................................ 6
    You cannot use force to recapture chattels unless they were taken by force, fraud, or without claim
    or right; let the legal system deal with the situation. ............................................................................ 6
  Uniform Commercial Code – §9-503 .................................................................................................... 6
    Permits a secured party to repossess collateral in the event of default without a judicial proceeding
    "if this can be done without breach of the peace." (changing locks not allowed) ................................ 6
  Landlord / Tenant cases of repossession (p. 49) ................................................................................... 7

Necessity ................................................................................................... 7
  PLOOF V. PUTNAM (1908) (P. 50) (BOAT IN STORM; TIED TO DOCK; SERVANT CUTS THEM
  LOOSE, DS) .................................................................................................................................. 7
   Life more important than property; if you do not allow someone to use your property in an
   emergency to protect himself, you are liable for injuries and D to their property. Otherwise, they
   must reimburse for use of property but no punitive Ds – just restitution. ............................................ 7
  Mouse's Case (1609) (p. 52) (admiralty law, things thrown overboard in storm) ............................ 7
   You can throw property overboard on boat if necessary during storm to save life; everyone with
   property on boat contributes equally to loss – treated as joint owners. (Admiralty law). ................... 7




Jeanette L. Goldsberry                                                                                                               Page iv
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  VINCENT V. LAKE ERIE TRANSPORTATION CO. (1910) (P. 52) (STRONGER CORD; BOAT
  OWNER LIABLE) .......................................................................................................................... 7
    In a crisis, if you allow someone to use your property to save their life or property, they are liable to
    reimburse you for damages (but no criminal liability – just reimbursement). ..................................... 7
  Post v. Jones (1856) (p. 57) (generic example)...................................................................................... 7
    Professional rescuers compensated well for risk, but fees reduced if unreasonable bargain. .............. 7
  Respublica v. Sparhawk (1788) (p. 58) (government often protected from liability) ....................... 7
    Governmental privilege to destroy property in emergency to save lives, even if unsuccessful.
    Extends to natural disasters, wartime activities (both to prevent enemy access to resources and to
    house troops), and things like riots (although there is more scrutiny here).......................................... 7

False Imprisonment .................................................................................. 7
  BIRD V. JONES (1845) (P. 67) (PUBLIC WAY BLOCKED AS PAID SEATING FOR BOAT RACE; NO
  DS) .............................................................................................................................................. 7
   You really have to be confined in order to bring a false imprisonment charge. If there is an exit,
   even though not the preferred exit, there is no false imprisonment. .................................................... 7
  Whittaker v. Sandford (1912) (p. 69) (yacht imprisonment, but wide prison, Ds reduced) ............ 7
   If confinement broad enough, Ds reduced, circumstances mitigate (no humiliation, indignity). ........ 7

  RESTATEMENT OF TORTS, §36, COMMENT B – AREA OF CONFINEMENT (P. 69) ............. 8
  Griffin v. Clark (1935) (p. 70) (missed train due to friends' force, then car wreck – Ds) ................ 8
    Even well-intentioned actions can be false imprisonment if they coerce............................................. 8

  RESTATEMENT – RST §35, ILLUS. 2 – UNINTENTIONAL CONFINEMENT ..................... 8
  Herring v. Boyle (1834) (p. 70) (boarding school wouldn't release son, no Ds, not aware) ............. 8
    No false imprisonment if person imprisoned not aware, and no special restrictions. .......................... 8
  Meering v. Grahame-White Aviation Co., Ltd. (1920) (p. 71) (generic example) ............................ 8
    If you are unaware of imprisonment, you can still receive judgment, but $ Ds affected. .................... 8

  COBLYN V. KENNEDY'S, INC. (1971) (P. 71) (70 YEAR OLD, ASCOT, ACCUSED OF SHOPLIFTING
  – DS) ............................................................................................................................................ 8
     Psychological and physical intimidation can create false imprisonment even with consent................ 8
  Sindle v. New York City Transit Authority (1973) (p. 74) (bus driver drives to police station due
  to unruly conduct; student jumps, run over; no Ds) ........................................................................... 8
     No false imprisonment when reasonable in order to protect 's person and property. ........................ 8
  Peterson v. Sorlien (1980) (p. 75) (The Way Ministry cult case) ........................................................ 8
     Cult deprogrammers can be sued for false imprisonment, but not parents. ......................................... 8

Intentional Infliction of Emotional Distress ............................................ 8
  WILKINSON V. DOWNTON (1897) (P. 76) (MEAN JOKE; HUSBAND MAIMED, GO PICK HIM UP) . 8
    If you tell someone some horrible lie to cause them trauma, you are liable for harm suffered. .......... 8
  Bouillon v. Laclede Gaslight Co. (1910) (p. 77) (sensitive pregnant woman, gas reader tries to
  force way in, miscarries / health problems, Ds allowed) ..................................................................... 8
    If you commit an intentional tort and thereby cause mental distress,  can receive D. ....................... 8

  RESTATEMENT (SECOND) OF TORTS (1966) – §46 OUTRAGEOUS CONDUCT CAUSING
  SEVERE EMOTIONAL DISTRESS ...................................................................................... 9
  §46 (Definition of Extreme and Outrageous Conduct) – comments d and f (p. 79).......................... 9
  State Rubbish Collectors Association v. Siliznoff (1952) (p. 80) (mob tactics; join union or else) .. 9
    If  intentionally subjects  to fear of physical harm,  liable for mental distress Ds. ....................... 9


Jeanette L. Goldsberry                                                                                                                     Page v
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  George v. Jordan Marsh Co. (1971) (p. 81) (debt collectors cause harm to third party) ................. 9
     Bill collectors – no harassing tactics against third parties, in attempt to coerce payment.................... 9
  Rockhill v. Pollard (1971) (p. 81) (doctor left injured people outside in freezing rain; mental
  distress Ds) .............................................................................................................................................. 9
     Doctor owes greater degree of care in an emergency medical situation, irrespective of whether he is
     qualified to treat the actual injuries; he cannot be dismissive and neglectful. ..................................... 9
  Patterson v. McLean Credit Union (1986) (p. 81) (black woman insulted) ....................................... 9
     No mental distress cause of action for racial insults (but Title VII civil rights violation). .................. 9
  Harris v. Forklift Systems, Inc. (1993) (p. 82) (now mental distress allowed in relation to sexual
  harassment actions under Title VII) ................................................................................................... 10
     Mental distress for sexual harassment allowed under Title VII – employment discrimination. ........ 10
  Hustler Magazine v. Falwell (1988) (p. 83) (Hustler does obscene parody of Falwell)................... 10
     Constitutional concerns for free speech override mental distress in parody of public figures. .......... 10


III. STRICT LIABILITY VS. NEGLIGENCE: HISTORICAL
EVOLUTION AND ANALYTICAL IMPORTANCE ........................10
Early Cases ............................................................................................. 10
  THE THORNS CASE (1466) (P. 86) (HEDGE, THORNS CUT, FALL ONTO NEIGHBORING
  PROPERTY) ................................................................................................................................ 10
    If your property escapes onto neighbor's property due to your actions and you go to retrieve it, you
    are liable for trespass Ds. – old rule, strict liability ............................................................................ 10
  Millen v. Fandrye (1626) (p. 89) (sheep dog chasing sheep off property, hurts sheep) .................. 10
    If you are protecting your land from unlawful intrusion of neighbor's property, if as a result damage
    to neighbor's property occurs, no Ds so long as efforts to avoid D reasonable. ................................. 10
  Tithe Case (1506) (p. 90) (minister's corn damaged when  put it in barn to protect it) .............. 10
    Do not take measures to protect property of another, because if measures themselves cause
    unanticipated damage you will be liable. ........................................................................................... 10

  WEAVER V. WARD (1616) (P. 92) (GUNS WENT OFF; INEVITABLE ACCIDENT IN MILITARY
  EXERCISE) ................................................................................................................................. 10
    In military accidents,  not liable to  when equally at fault – inevitable accident. .......................... 10
  Definition of Inevitable Accident (not at all clear) (p. 92)................................................................. 10
    Different possible meanings: (1) backhanded way of saying  was not negligent and no intent to
    harm (2) utterly without fault: irrespective of whether  took precautions accident would have
    occurred (3) literal reading: accident had to happen (during sudden storm, boat would have crashed
    into and damaged dock irrespective of whether boat was tied to the dock). ...................................... 10
  Smith v. Stone (1647) (p. 93) (man carried onto property against his will, no trespass) ............... 10
    If someone else directly causes accident with your body, you are not liable. .................................... 10
  Gilbert v. Stone (1647) (p. 94) ( cannot claim robbery not his fault due to duress) ..................... 10
    You cannot claim that you were intimidated into committing a crime. ............................................. 10
  Gibbons v. Pepper (1695) (p. 94) ( rider of horse held responsible for injury even though 
  warned from a distance to take care).................................................................................................. 11
    If 's animal, while under 's control, reacts to something and harms ,  is liable. ........................ 11
  Comment on Inevitable Accident Doctrine ........................................................................................ 11
    Inevitable accident doctrine is now disfavored – was a way to avoid liability in strict liability regime
    – with modern negligence principles, less simplistic – more apportionment of Ds. .......................... 11




Jeanette L. Goldsberry                                                                                                                            Page vi
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  SCOTT V. SHEPHERD (1773) (P. 98) (LIGHTED SQUIB TOSSED, "HOT POTATO";  LOSES EYE)
  .................................................................................................................................................. 11
    Person initiating action is liable for consequences, not intervening actors attempting to avoid harm
    to themselves resulting in harm to a third party – unless causal chain is broken. ............................. 11
  Causes of Action – Trespass vs. Case – very confusing ..................................................................... 11
    Trespass – where harm direct, or where consequence of statutory violation Case – where harm
    consequential (but what if invasion direct, but harm consequential?) ............................................... 11
  Guille v. Swan (1822) (p. 102) (hot air balloon rider liable for Ds to garden due to predictable 3rd
  party reaction to his behavior) ............................................................................................................ 11
    Liable for actions of third parties when your actions incite them to damage property. ..................... 11
  Chart of Old System of Liability: ........................................................................................................ 11

The Modern Approach Emerges ............................................................ 11
  BROWN V. KENDALL (1850) (P. 106) (TRYING TO SEPARATE DOGS WITH STICK;  INJURED,
  NO DS) ....................................................................................................................................... 11
    For cause of action, (1) intention unlawful; or (2) defendant at fault (ordinary care standard). ........ 11
  Different arguments for evolution to negligence standard: .............................................................. 11
    (1) immunities from liability created to aid economic development (give industry an out) (2) dissent
    – more of a determination of what is fair (3) another view – negligence more evolution than
    transformation – already in English cases .......................................................................................... 11

  RYLANDS V. FLETCHER (1868) (P. 111) (ESCAPE OF WATER FROM RESERVOIR; OLD MINE
  SHAFTS) ..................................................................................................................................... 12
    Strict liability in English courts for substances escaping from your property onto another's property
    and causing damage, unless act of God. ............................................................................................. 12
  Cambridge Water Co. v. Eastern Counties Leather PLC (1994) (p. 121) (tannery not liable) ..... 12
    Natural use (on appeal) expanded to include use of chemicals not at the time known harmful......... 12
  Nichols v. Marsland (1876) (p. 122) (two-tiered mine; not liable for natural water Ds) ................ 12
     not liable for act of God in two-tiered mine – 's risk of being on second tier, not 's fault. ........ 12
  River Wear Commissioners v. Adamson (1877) (p. 130) (abandoned boat; crash into dock) ....... 12
    If  abandons boat in storm,  not liable for damage to adjacent property (public way). ................. 12

  POWELL V. FALL (1880) (P. 127) (SPARKS ESCAPE; TRAIN BUILT UP TO SPECS;  STILL
  LIABLE) ..................................................................................................................................... 12
     Strict liability affirmed in England – non-negligent train operator liable for escaping sparks. ......... 12

American Cases (Frosty Towards Rylands) ......................................... 12
  BROWN V. COLLINS (1873) (P. 123) (HORSE FRIGHTENED BY TRAIN ENGINE, HITS POST – NO
  DS) ............................................................................................................................................ 12
     not liable for reasonable behavior (Cairns reinterpreted as reasonable / unreasonable) ................. 12
  Losee v. Buchanan (1873) (p. 125) (boiler explodes, no Ds – progress, pro-industry) ................... 12
    Emphasis on giving up rights for benefit of society – shared risk for certain activities..................... 12
  Turner v. Big Lake Oil Co. (1936) (p. 126) (water escapes from cistern in Texas) ........................ 12
    Storage of water in cisterns natural use of land in dry West Texas (Cairns expanded again). ........... 12

Some Recent Hard Cases ...................................................................... 13
  BOLTON V. STONE (1950) (P. 138) (CRICKET BALL HIT OUT OF FIELD, INJURES ) ................ 13
     If harm sufficiently improbable, you are not negl. – reasonable person standard of precaution. ....... 13


Jeanette L. Goldsberry                                                                                                                   Page vii
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  Rinaldo v. McGovern (1991) (p. 143) (golfers hit ball, shatters 's windshield, no Ds) ................. 13
    No liability for stray golf ball for golfers (club not sued) – not negligent (normal stray shot). ......... 13
  Corrective Justice – another approach (favored by Epstein) ........................................................... 13
  Economic Efficiency – alternative to Corrective Justice................................................................... 13
  Pareto Superiority vs. Kaldor-Hicks Efficiency ................................................................................ 13

  HAMMONTREE V. JENNER (1971) (P. 148) (EPILEPTIC HAS SEIZURE WHILE DRIVING, NO DS)
  .................................................................................................................................................. 13
     not liable for sudden onset of physical condition causing auto accident – no strict liability. ......... 13
  Optimal Level of Care (definition from p. 151) ................................................................................. 13
    [T]he same amount of care that a person would take if he himself were the only person at risk for
    property damage or bodily injury. A single individual would prefer suffering the consequences of
    some accidents to bearing the greater costs of avoiding them. .......................................................... 13
  Sykes' arguments (and some of my garbled examples) re Strict Liability vs. Negligence ............. 13
    Strict Liability and Negligence offer the same level of incentives, but shift the burden. .................. 13


IV.          THE CONCEPT OF NEGLIGENCE ................................14
Reasonableness Standard (Adults, Elderly, Children, Disabled) ........ 14
  VAUGHAN V. MENLOVE (1860) (P. 155) (HAY STACKED WRONG, SPONTANEOUSLY IGNITES,
  DS) ............................................................................................................................................ 14
    If a reasonable person would know that 's activities are dangerous,  is liable. .............................. 14
  Tuberville v. Stamp (1697) (pp. 157, 159, 294) ( burns weeds near boundary, fire spreads) ...... 14
    If  burns weeds near boundary of 's property and causes D,  liable, D foreseeable. ................... 14
  Conway v. O'Brien (1940) (p. 160) ( rounds corner on wrong side of road, no Ds) ..................... 14
    Guest statute (most states repealed):  must prove gross negligence where  guest in 's car.......... 14

  HOLMES, THE COMMON LAW (1881) (P. 161) (PRUDENT MAN STANDARD DEFENDED) ......... 14
      Defending prudent man standard; otherwise (1) people lie – feign stupidity (2) trying to make
      individualized determination too subjective (3) we need to work around our own defects, etc. ....... 14

  ROBERTS V. RING (1919) (P. 163) (OLD MAN DRIVING 5 MPH, HITS 7-YR-OLD DARTING OUT)
  .................................................................................................................................................. 14
      Old age no excuse in negligence action; but young age is excuse. .................................................... 14

  DANIELS V. EVANS (1966) (P. 165) (19-YR-OLD DIES ON MOTORCYCLE – ADULT STANDARD)
  .................................................................................................................................................. 14
    Children held to adult standard if engaging in "adult" activity. ......................................................... 14
  Holland v. Pitocchelli (1938) (p. 164) (child not liable for injuries to adult driving teacher) ........ 14
    Exception to children being held to adult standard when adult in car teaching child to drive. .......... 14
  Goss v. Allen (1976) (p. 168) (skiing – children NOT held to adult standard) ................................ 14
    Children skiing held to lower standard; no license required to ski (distinguished)............................ 14
  Dellwo v. Pearson (1961) (p. 168) (speed boat – children held to adult standard) ......................... 14
    12-year-old held to adult standard in operating speed boat (despite no license requirement)............ 14
  Harrelson v. Whitehead (1963) (p. 168) (motorcycle – children held to adult standard) .............. 14
    15-year-old held to adult standard in operating motorcycle. .............................................................. 14
  Jackson v. McCuiston (1969) (p. 168) (tractor – children held to adult standard)......................... 14
    13-year-old farm boy held to adult standard in operating tractor. ...................................................... 14
  Purtle v. Shelton (1971) (p. 168) (gun – children NOT held to adult standard) ............................. 14
    Court refused to hold 17-year-old to adult standard in operating firearm. ......................................... 14


Jeanette L. Goldsberry                                                                                                                  Page viii
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  THIRD RESTATEMENT – RTT:GP §8 – NEGLIGENCE STANDARD FOR CHILDREN . 14
  BREUNIG V. AMERICAN FAMILY INSURANCE CO. (1970) (P. 170) (CRAZY WOMAN THOUGHT
  THAT GOD WAS DRIVING HER CAR, THAT SHE CAN FLY LIKE BATMAN; WRECKS, KNEW OF
  CONDITION  DS) ..................................................................................................................... 14
      liable for car accident due to sudden onset of delusion only if foreknowledge of condition. ......... 14

  FLETCHER V. CITY OF ABERDEEN (1959) (P. 173) ('S EMPLOYEE REMOVES BARRICADE,
  BLIND MAN FALLS INTO HOLE – DS) ......................................................................................... 15
    City obligated to protect all people from harm on public sidewalk, including blind / lame. ............. 15
  Poyner v. Loftus (1997) (p. 174) (blind man looks away, fails to notice bush removed; falls) ....... 15
    Blind person can be negligent if they do not use care (allowing distractions while walking). .......... 15

  THIRD RESTATEMENT RTT:GP §9(A) (P. 174) – RE NEGLIGENCE STANDARD FOR DISABLED
  PERSONS .................................................................................................................................... 15

Sudden Emergency Doctrine (Disapproved – Factor in Negligence).. 15
  LYONS V. MIDNIGHT SUN TRANSPORTATION SERVICES, INC. (1996) (P. 175) (WOMAN PULLS
  OUT IN FRONT OF TRUCK, TRUCK SPEEDING, BUT SPEEDING NOT CAUSATIVE) ...................... 15
     's negligence must be causative; also, different standard for emergencies. ..................................... 15

  ROBINSON V. PIOCHE, BAYERQUE & CO. (1855) (P. 177) (DRUNK MAN FELL INTO HOLE, 
  STILL LIABLE) ........................................................................................................................... 15
     Intoxication of  no excuse for  leaving dangerous hole in sidewalk uncovered. ........................... 15

  THIRD RESTATEMENT – RTT:GP §7 – UNEXPECTED EMERGENCY ............................ 15
  DENVER & RIO GRANDE R.R. V. PETERSON (1902) (P. 177) (GENERIC EXAMPLE) ............... 15
     Rich and poor have same standard of care (but perhaps not always same penalty). .......................... 15

Calculus of Risk ...................................................................................... 15
  BLYTH V. BIRMINGHAM WATER WORKS (1856) (P. 179) (PIPES BURST IN SEVERE FROST, NO
  DS) ............................................................................................................................................ 15
     Standard of reasonable man – what precautions would you take in same circumstance? .................. 15

  ECKERT V. LONG ISLAND R.R. (1871) (P. 181) (ONCOMING TRAIN, MAN SAVES CHILD & DIES)
  .................................................................................................................................................. 15
     If attempting to save human life, reasonable behavior standard for negligence is relaxed. ............... 15

  COOLEY V. PUBLIC SERVICE CO. (1940) (P. 187) (POWER LINE HITS PHONE LINE; NOISE
  HURTS ) ................................................................................................................................... 16
     Most efficient option generally precludes finding of negligence – balancing of options................... 16

  UNITED STATES V. CARROLL TOWING CO. (1947) (P. 190) (BARGEE LEAVES; COLLISION; DS)
  .................................................................................................................................................. 16
     Famous "Learned Hand" formula: B < PL (Burden < Probability x Injury (Liability)) .................... 16

  THIRD RESTATEMENT – §4 NEGLIGENT ............................................................................. 16
  Moisan v. Loftus (1949) (p. 192) (attempts to quantify injuries often illusory) .............................. 16
   Explores difficulties of quantifying some things for application of B < PL formula. ........................ 16


Jeanette L. Goldsberry                                                                                                                    Page ix
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  Paris v. Stepney Borough Council (1951) (p. 192) ( only had one good eye, loses it) ................... 16
     Sometimes if the consequences of injury for  are greater, more precautions required..................... 16
  Marginal Precautions and the Hand Formula ................................................................................... 16
     Do not compare to the do-nothing option, examine each stage to determine efficiency.................... 16
  1) Negligence vs. 2) Strict Liability with Contributory Negligence (p. 194) .................................... 16
     Same basic incentives for either method of assigning responsibility for damages. ........................... 16
  Grady – view that negligence induces higher standard of care (p. 195) .......................................... 16
  Calabresi and Hirschoff (1972) (p. 196).............................................................................................. 16
     Advocating strict liability placed on party in best position to make cost / benefit analysis. .............. 16
  H. Laurence Ross, Settled Out of Court (1980) (p. 196) ................................................................... 16

  ANDREWS V. UNITED AIRLINES (1994) (P. 197) ( INJURED, FALLING ITEM FROM OVERHEAD
  BIN) ........................................................................................................................................... 17
    Heightened standard of care for airline sufficient to overcome SJ; B < PL difficult to apply. .......... 17
  Kelley v. Manhattan Ry. (1889) (p. 199) ( fell on snow-covered stairs at train station) ............... 17
    Common carrier – heightened standard for dangerous technical aspects; otherwise ordinary........... 17
  Bethel v. New York City Transit Authority (1998) (p. 200) (bus seat collapses,  hurt)................ 17
    Rejects heightened standard entirely; factor in reasonable standard, more danger = more care ........ 17

Customary Care ...................................................................................... 17
  TITUS V. BRADFORD, B. & K. R. CO. (1890) (P. 201) (OLD RULE – STANDARD GAUGE CAR
  ON NARROW GAUGE TRUCK, NOT SECURELY FASTENED, FALLS, 'S DECEDENT KILLED – NO
  DS) ............................................................................................................................................ 17
     Custom formerly strong factor in workplace injuries (almost determinative) – pro-employer. ......... 17

  MAYHEW V. SULLIVAN MINING CO. (1884) (P. 204) ( FALLS THROUGH LADDER HOLE IN
  MINE) ........................................................................................................................................ 17
     Unpopular decision – custom not a defense on any level, not even a factor. ..................................... 17

  THE T.J. HOOPER (1931) (PP. 205–207) (NO RADIO ON TUGBOAT; BAD WEATHER; CARGO
  LOST) ......................................................................................................................................... 17
    Trial court – lack of observance of custom (90% tugs – radios on board) sign of negligence ........... 17
    Learned Hand: it wasn't custom (radios not owners'), but doesn't matter – still negligence ............. 17
  Bimberg v. Northern Pacific Ry. (1944) (p. 208) (bad engineering, customary but negligent) ..... 17
    Fact that custom not determinative allows wholesale attacks on industry policy. ............................. 17

  THIRD RESTATEMENT – RTT:GP §11 CUSTOM (A) (COMPLIANCE) (B) (DEPARTURE) ...... 17
  Learned Hand's Cost / Benefit Analysis vs. Epstein's Custom Exception ....................................... 17
     Epstein exception: put custom before cost-benefit analysis in consensual arrangements. ................ 17
  Fonda v. St. Paul City Ry. (1898) (p. 209) (private rules not admissible as evidence) ................... 17
     Private corporate rules not generally allowed as evidence of negligence (standard too high). .......... 17
  Lucy Webb Hayes National Training School v. Perotti (1969) (p. 210) (hospital rules admissible
  as evidence when insane patient dies when rules disregarded) ........................................................ 18
     Sometimes, hospital rules admissible – standards harder to determine, good evidence. ................... 18
  Trimarco v. Klein (1982) (p. 211) (shower door shatters; jury to decide if retrofit required) ...... 18
     Changes in custom can possibly require updates to older structures; jury decides. ........................... 18

Custom in Medical Cases ....................................................................... 18
  LAMA V. BORRAS (1994) (P. 211) (BOTCHED BACK SURGERY; CUSTOM IGNORED  DS) ...... 18
     Custom can be determinative in medical malpractice cases – standard harder to determine. ............ 18

Jeanette L. Goldsberry                                                                                                                    Page x
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  Kalsbeck v. Westview Clinic, P.A. (1985) (p. 216) (standard of similar community/situation)..... 18
    "[A] doctor must use that degree of skill and learning which is normally possessed and used by
    doctors in good standing in a similar practice in similar communities and under like circumstances."
     ............................................................................................................................................................ 18
  Hood v. Phillips (1977) (p. 216) (reasonable or prudent physician standard) ................................ 18
    "A physician who undertakes a mode or form of treatment which a reasonable and prudent member
    of the medical profession would undertake under the same or similar circumstances shall not be
    subject to liability for harm caused thereby to the patient." ............................................................... 18
  Jones v. Chidester (1992) (p. 216) ("small minority" agreement insufficient defense) .................. 18
    "It is…insufficient to show that there exists a "small minority" of physicians who agree with the
    defendant's questioned practice.…[T]here must be a considerable number of physicians, recognized
    and respected in their field, sufficient to create another "school of thought." .................................... 18
  Hirahara v. Tanaka (1998) (p. 217) (rectal abscess; wrong anesthetic; patient dies) ..................... 18
    Physician error not determinative of medical malpractice, unless error is unreasonable. .................. 18
  Conn. Gen. Stat. Ann. §2-184c(c) (1988) – board-certified, vs. non-board certified doctors ........ 18
  Rush v. Akron General Hospital (1957) (p. 218) (old rule – interns lower standard) .................... 18
    Early cases allowed lower standard of care for interns (generally overruled). .................................. 18
  McBride v. United States (1972) (p. 219) (new rule – interns same standard)................................ 18
    Now, uniform standard of care for interns and doctors – incentive for better oversight. ................... 18
  Morlino v. Medical Center of Ocean County (1998) (p. 219) (drug kills fetus, PDR ignored) ...... 18
    Physician's Desk Reference and drug package inserts not determinative of negligence. ................... 18
  Brune v. Belinkoff (1968) (p. 220) (more painful (inferior) method of delivering baby in New
  Bedford than Boston; requires more anesthetic;  falls out of bed;  liable) ................................. 19
    Locality rule no longer observed in some jurisdictions; move towards nationalized standard. ......... 19
  Cavallaro v. Sharp (1956) (p. 221) (mid point in evolution of rule – evidence from similar
  jurisdictions admissible – now courts apply nationalized standard) ............................................... 19
    Modified locality rule – evidence from experts in similar jurisdictions; overruled by Brune........... 19
  Buck v. St. Clair (1985) (p. 222) (board-certified doctors held to especially high standard)......... 19
    Locality rule no longer observed (OB/GYN) – especially with board-certified doctors. .................. 19
  Morreim, Cost Containment and the Standard of Medical Care (1987) ......................................... 19
    Question – should rural clinics be required to have same equipment as university hospitals? .......... 19
  Helling v. Carey (1974) (p. 223) (Washington) (eye test could have shown glaucoma) .................. 19
    Custom rejected in some medical cases, where custom is unacceptable (exception not rule). .......... 19
  Morris, Custom and Negligence (1942) (p. 225)................................................................................. 19
    Custom conclusive in determining appropriate standard of medical care. ......................................... 19
  Sullivan v. O'Connor (1973) (p. 225) (also in Contracts text) (botched nose job) .......................... 19
    Higher standard of care / expectation of results in medicine can be created by assumpsit. ............... 19
  Clevenger v. Haling (1979) (p. 226) (general statement of likely outcome not actionable) ............ 19
    No negligence for 's promise of no pregnancy after tubal ligation when  gets pregnant. .............. 19

Informed Consent ................................................................................... 19
  CANTERBURY V. SPENCE (1972) (P. 226) ( PARTIALLY PARALYZED AFTER BACK SURGERY)
  .................................................................................................................................................. 19
    Expert testimony not required to establish duty of disclosure violations; reasonable care standards
    apply as in non-medical cases (not custom); but, there must be causation. (No Ds.) ........................ 19
  Hatcher v. Black (1954); Sidaway v. Bethlem Royal Hospital (1984) (UK protects Drs) .............. 20
    Doctors much more protected in UK – no real duty to disclose – doctors can even lie! ................... 20
  Mink v. University of Chicago (1978) (p. 236) (pregnant women used in experiment) .................. 20
    Battery theory allowed when treatment administered without patient knowledge or consent. .......... 20
  Kozup v. Georgetown University (1987) (p. 237) (AIDS-contaminated blood infects child) ......... 20
    No informed consent case re AIDS-contaminated blood; omission wouldn't change outcome. ........ 20

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  United Blood Services v. Quintana (1992) (p. 237) (strict liability standard for blood banks) ..... 20
    Blood banks could be liable for inadequate screening, even before AIDS widespread. .................... 20
  Truman v. Thomas (1980) (p. 238) (failure to mention benefits of treatment is actionable) ......... 20
    Failure to fully disclose risks of NON-treatment also actionable for negligence............................... 20
  Arato v. Avedon (1993) (p. 238) (painful/unsuccessful pancreatic cancer treatments) .................. 20
    No negligence for failure to mention actual low probability of success (5 to 10%) for 70 painful
    cancer treatments – general admission by doctors of unlikely success adequate. .............................. 20
  Bly v. Rhoads (1976) (p. 239) (sometimes expert testimony helpful in informed consent) ............ 20
    Softening of Canterbury – sometimes expert testimony helpful in establishing patterns of patient
    behavior in informed consent cases – whether omission likely to affect patient choice. ................... 20
  Cobbs v. Grant (1972) (p. 239) (California; informed consent, reasonable person standard) ...... 20
    Objective causation standard (guards against 20/20 hindsight) – reasonable person standard. ......... 20
  Arena v. Gingrich (1988) (p. 239) (Oregon; informed consent tailored to each individual).......... 20
    Subjective standard – tailored to individual patient – must ask if satisfied with information............ 20
  Reaction to Canterbury v. Spence (giving doctors more outs) ......................................................... 20
  Paul C. Weiler, Medical Malpractice On Trial 14 (1991) – NEGATIVE ........................................ 20
  Frank Sloan, Suing for Medical Malpractice 9–10 (1993) – POSITIVE ......................................... 20
  Dewees & Trebilcock (1992) – considers Canada more efficient ..................................................... 20

Violation of Criminal Statutes ................................................................ 21
  OSBORNE V. MCMASTERS (1889) (P. 245) ( FAILS TO LABEL POISON;  INGESTS IT, DIES). 21
     Statutes can create new causes of action for negligence, if related to intent of statute. ..................... 21

  RESTATEMENT (THIRD) – §12 STATUTORY VIOLATIONS AS NEGLIGENCE PER SE
  .................................................................................................................................................. 21
  Fitzwater v. Sunset Empire, Inc. (1972) (p. 247) ( slips, falls on ice in front of 's property) ..... 21
     Intent of statute must be to protect 's class; statute to assist city, not protect ,  no Ds................ 21
  Stimpson v. Wellington Service Corp. (1969) (p. 247) ('s overloaded vehicle, not licensed, Ds 's
  underground pipes – Ds awarded) ...................................................................................................... 21
     Secondary purpose of statute can also create negligence cause of action. ......................................... 21
  Teal v. E.I. DuPont de Nemours & Co. (1994) (p. 248) (independent contractors hurt from 's
  OSHA noncompliance; covered as employees) .................................................................................. 21
     Negligence created by OSHA statute extended to independent contractors on employer's site. ....... 21
  Gorris v. Scott (1874) (p. 248) (sheep on ship not in pen, against statute; washed overboard) ..... 21
     Intent not related to unfortunate occurrence;  no negligence based on violation of statute. ........... 21
  Kernan v. American Dredging Co. (1958) (p. 248) (kerosene lamp ignites vapors) ....................... 21
     Statutory purpose doctrine not always followed – especially when loss of life involved. ................. 21
  Cort v. Ash (1975) (p. 249) (shareholder sues directors for election contributions violation) ....... 21
     Court hostile towards private causes of action related to federal regulations, no Ds. ........................ 21
  Lowe v. General Motors Corp. (1980) (p. 250) Alabama (recall notice violation; death) .............. 21
     Some states create private cause of action for federal violations, according to common law............ 21

  MARTIN V. HERZOG (1920) (P. 250) (DRIVING WITHOUT LIGHTS; VIOLATES STATUTE &
  CAUSATIVE) .............................................................................................................................. 21
     Disobeying statute prima facie evidence of negligence; but negligence must be causative. ............. 21
  Tedla v. Ellman (1939) (p. 251) ( and deaf-mute brother injured/killed walking on right instead
  of left side of road; no negligence in spite of statutory violation) ..................................................... 22
     If common law precedent different from statute, and good reason to disobey, not negligent. ........... 22




Jeanette L. Goldsberry                                                                                                                   Page xii
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  THIRD RESTATEMENT – RTT:GP §13(B) – STATUTORY VIOLATION EXCEPTIONS 22
  BROWN V. SHYNE (1926) (P. 253) (DECISION LATER OVERRULED; QUACK CHIROPRACTOR
  NOT NEGL) ................................................................................................................................ 22
   Quack doctor not automatically guilty of negligence for not having license – OVERRULED. ........ 22
  Mattero v. Silverman (1961) (p. 256) (generic example) ................................................................... 22
   Unlicensed drivers not necessarily negligent – depends if (1) never had license, vs. (2) lapse ......... 22

  ROSS V. HARTMAN (1943) (P. 257) (CAR LEFT UNLOCKED; THIEF GETS IN; WRECKS; OWNER
  LIABLE) ..................................................................................................................................... 22
    Statutes can create liability for third party actions enabled by statutory violation. ............................ 22
  Richards v. Stanley (1954) (p. 259) (court declined to impose general duty of care) ..................... 22
    Same fact pattern as above, but statute specifically disclaimed statutory cause of action. ................ 22
  Disagreement – are statutes against leaving keys in car for (a) antitheft or (b) safety? ................ 22
    Meihost v. Meihost (1966); Kiste v. Red Cab, Inc. – Antitheft ......................................................... 22
    Ney v. Yellow Cab Co. (1954) – safety (issue of trust of driver of yellow cab – for jury). ............... 22
  Lucy Webb Hayes National Training School v. Perotti (1969) (p. 260) (crazy man kills himself in
  's hospital; outmoded regulations violated; no negligence) ............................................................ 22
    Outmoded regulations should not be used as basis for negligence cause of action. .......................... 22

Dram Statute Liability (Varies Widely by Jurisdiction)......................... 23
  VESELY V. SAGER (1971) (P. 261) (OVERRULED BY STATUTE) (CALIFORNIA) ....................... 23
    Bar owner negligent for injuries to third party after serving already intoxicated customer. .............. 23
  Ewing v. Cloverleaf Bowl (1978) (p. 263) (also overruled by statute) .............................................. 23
    Bar owner negligent for death of patron in spite of contributory negligence. .................................... 23
  Coulter v. Superior Court (1978) (p. 263) (also overruled by statute) ............................................. 23
    Liability extended to noncommercial suppliers of alcohol, e.g. apartment manager. ........................ 23
  Cal. Bus. & Prof. Code §25602 (1997) (p. 264) STATUTE .............................................................. 23
    This statute overrules dram statute liability in California. Misdemeanor, but no civil liability. ....... 23
  Edgar v. Kajet (1975) (p. 264) (New York) ........................................................................................ 23
    NY refuses to impose liability on employers for employee intoxication at firm party. ..................... 23
  Klein v. Raysinger (1983) (p. 265) (Pennsylvania) ............................................................................. 23
    No liability for social host for serving alcohol to adults. But............................................................ 23
  Congini v. Portersville Valve Co. (1983) (Pennsylvania) .................................................................. 23
    Court allowed action against social host who served liquor to minor – statutory violation. .............. 23
  Fassett v. Delta Kappa Epsilon (1986) (Third Circuit interpreting Penn. Law) ............................ 23
    Persons substantially assisting party serving alcohol could be sued as accomplices. ........................ 23
  Kapres v. Heller (1994) (Pennsylvania) .............................................................................................. 23
    All minors are incompetent – one minor does not owe duty to another re furnishing alcohol. ......... 23

Circumstantial Proof (Res Ipsa Loquitur) and Related Matters ........... 23
  BYRNE V. BOADLE (1863) (P. 281) (BARREL OF FLOUR FALLS FROM 'S WAREHOUSE; 
  LIABLE) ..................................................................................................................................... 23
     If  damaged by something falling from 's warehouse,  responsible – res ipsa loquitur ............... 23
  Scott v. London & St. Katherine Docks Co. (1865) (p. 283) (wouldn't happen in ordinary course
  of things unless poor management by ) ............................................................................................ 23
     Standard statement of res ipsa loquitur doctrine. ............................................................................... 23
  Wakelin v. London & S.W. Ry. (1886) (p. 283) ( responsible for being on train track) .............. 23
     If you are foolish and run in front of train, and get hit, not res ipsa loquitur. .................................... 23



Jeanette L. Goldsberry                                                                                                              Page xiii
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  Prosser and Keeton at 244 – Res Ipsa Loquitur (p. 283) .................................................................. 24
    (1) The event must be of a kind which ordinarily does not occur in the absence of someone's
    negligence; ......................................................................................................................................... 24
    (2) It must be caused by an agency or instrumentality within the exclusive control of the defendant;
    and ...................................................................................................................................................... 24
    (3) It must not have been due to any voluntary action or contribution on the part of the plaintiff. ... 24

  THIRD RESTATEMENT – §15 RES IPSA LOQUITUR (P. 284) .............................................. 24
  Galbraith v. Busch (1935) (p. 284) – (partly overruled below) ( not a stranger) .......................... 24
     guest in 's car cannot use res ipsa loquitur for sudden swerve; only reasonable care required (no
    duty to discover / repair car defects; no proof that driver error caused accident). ............................. 24
  Pfaffenbach v. White Plains Express Corp. (1966) (p. 285) ( stranger, cannot get evidence) ..... 24
    's car skids across midline of highway, colliding with , no explanation – res ipsa loquitur. ......... 24
  Larson v. St. Francis Hotel (1948) (p. 286) (chair thrown out of hotel window on V-J Day) ........ 24
    Extenuating circumstances can preclude res ipsa loquitur for hotel owner – cannot foresee. ........... 24
  Connolly v. Nicollet Hotel (1959) (p. 286) (rowdy hotel party;  injured by falling object) .......... 24
    Hotel owner responsible res ipsa loquitur for guest behavior when foreseeable (rowdy party). ....... 24
  Walston v. Lambersten (1965) (p. 286) (generic example)................................................................ 24
    Acts of God preclude use of res ipsa loquitur (boat lost at sea, no proof of negligence). .................. 24
  Newing v. Cheatham (1975) (p. 287) ( drunk pilot runs out of fuel;  not drunk;  guilty) ....... 24
    Res ipsa loquitur sometimes allows for directed verdict, when case is clear. .................................... 24
  Imig v. Beck (1986) (p. 287) (car comes off tow bar on wrecker; no directed verdict) .................. 24
    High standard for directed verdict; determination of guilt must be entirely clear.............................. 24

  THIRD RESTATEMENT – RTT:GP §15, COMMENT J – RES IPSA – DIRECTED VERDICT
  .................................................................................................................................................. 24
  COLMENARES VIVAS V. SUN ALLIANCE INSURANCE CO. (1986) (P. 288) (HANDRAIL STOPS
  BUT ESCALATOR KEEPS MOVING; S INJURED;  NEGLIGENT IN SPITE OF 3RD PARTY
  MAINTENANCE K) ..................................................................................................................... 25
    Nondelegable duties exception to exclusive control requirement of res ipsa loquitur. ...................... 25
  Holzhauer v. Saks & Co. (1997) (p. 292) (escalator and handrail both stop, injure ) .................. 25
    Normal for escalator and handrail to simultaneously stop; stop button on escalator not in exclusive
    control of , necessary safety feature; no negligence based on res ipsa loquitur. .............................. 25
  Winans v. Rockwell International Corp. (1983) (p. 293) ( won't join repair Co. to suit) ............ 25
    Res ipsa loquitur cannot be applied when all negligent parties not joined (Rule 19 FRCP) (except for
    very unusual ruling, conditional res ipsa loquitur, Anderson v. Somberg). ....................................... 25
  Victory Park Apartments, Inc. v. Axelson (1985) (p. 293) (no negl. for cigarette fire) .................. 25
     not responsible for negligent behavior of guests in apartment (smoldering cigarettes). ................. 25
  Miles v. St. Regis Paper Co. (1970) (p. 294) (rolling logs from train hurt  employee of rafting co.
  – way around worker's compensation) ............................................................................................... 25
    Exclusive control can allow res ipsa loquitur suit against contractor by employees of sub. .............. 25
  Prosser, Res Ipsa Loquitur in California (1949) (p. 294) .................................................................. 25
    "[T]he plaintiff's mere possession of a chattel which injures him does not prevent a res ipsa case
    where it is made clear that he has done nothing abnormal and has used the thing only for the purpose
    for which it was intended." (A chain of custody – begins with , ends with .)............................... 25
  Benedict v. Eppley Hotel Co. (1954) (p. 295) (hotel chair collapses during bingo game)............... 25
    Res ipsa loquitur can still apply when injury-causing object has been out of control of . ............... 25




Jeanette L. Goldsberry                                                                                                                           Page xiv
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  THIRD RESTATEMENT – RTT:GP §15, COMMENT B – EXCLUSIVE CONTROL
  DISFAVORED ........................................................................................................................ 25
  McDougald v. Perry (1998) (p. 295) (spare tire escapes from cradle, bounces, hits ) .................. 25
    Res ipsa loquitur standard of what ordinarily doesn't occur without negligence is subjective. ......... 25
  Kaye, Probability Theory Meets Res Ipsa Loquitur (1979) – RES IPSA NEGLIGENCE ........... 26
    Three possible meanings for "ordinarily does not occur in the absence of negligence." ................... 26

  YBARRA V. SPANGARD (1944) (P. 297) (CASE AGAINST DOCTOR CONSPIRACY OF SILENCE – 
  PROPPED UP ON BLOCKS, RESULTING IN PARTIAL PARALYSIS/ATROPHY – EVERYONE GUILTY)
  .................................................................................................................................................. 26
     Res ipsa loquitur can apply against multiple s, when it is unclear which one is responsible. ......... 26

  THIRD RESTATEMENT – RTT:GP §15, COMMENT I. – NO CONCERN RE CONSPIRACY
  OF SILENCE........................................................................................................................... 26
     Res ipsa loquitur is simply a doctrine of circumstantial evidence. No concern about unequal
     information between the parties; shift partly due to rise of discovery and expert witnesses. ............ 26
  Medical Malpractice – when is expert testimony necessary for res ipsa loquitur? ........................ 26
  Greenberg v. Michael Reese Hospital (1980) (p. 303) (tonsil irradiation/cancer cause) ................ 26
     App. court remands case to consider res ipsa loquitur; actual negligence highly debatable. ............. 26
  Anderson v. Somberg (1975) (p. 304) (unusual ruling – tip of forcep comes out in 's back, many
  s sued, but not everyone that could have caused accident – still, one guilty)................................ 26
     Conditional res ipsa loquitur; someone screwed up, we don't know who. Uncertainty,  jury
     finds for all s; remanded by app. ct. – jury must find at least one  guilty...................................... 26
  Quin v. George Washington University (1979) (p. 305) (internal bleeding from removal of spleen
  – res ipsa only if bleeding at place of suture) ..................................................................................... 27
     If bad result in surgery either negligence or unfortunate occurrence, no res ipsa loquitur. ............... 27
  Darrah v. Bryan Memorial Hospital (1998) (p. 305) ( nerve D from IV; must join all s) ......... 27
     No application of conditional res ipsa loquitur – all potential guilty parties not joined. ................... 27
  Nevada statute (Nev. Rev. Stat. §41A.100 (1993)) (p. 305)................................................................ 27
     Res ipsa loquitur limited to specific events that reasonably couldn't occur without negligence. ....... 27
  Rise or Decline of Res Ipsa Loquitur (Epstein, Grady) .................................................................... 27


V.           PLAINTIFF'S CONDUCT .............................................27
Contributory Negligence ........................................................................ 27
  BUTTERFIELD V. FORRESTER (1809) (P. 308) (HORSE TOO FAST, TRIPS OVER POLE IN ROAD;
  NO DS) ....................................................................................................................................... 27
     Contributory negligence used to be a complete bar to recovery (ran over pole/going too fast). ........ 27

  BEEMS V. CHICAGO, ROCK ISLAND & PEORIA R.R. (1882) (P. 309) ( DIED UNCOUPLING
  RAIL CARS; WARNED  TO SLOW DOWN; WARNING IGNORED;  NOT CONTRIBUTORILY
  NEGLIGENT) .............................................................................................................................. 27
     If negligence of  not causative, contributory negligence not bar to recovery. ................................. 27

  GYERMAN V. UNITED STATES LINES CO. (1972) (P. 313) (DANGEROUS STACKING OF
  FISHMEAL) ................................................................................................................................ 27
    Negligence not causative when employee doesn't refuse to do dangerous work for employer. ........ 27
  Osborne v. Salvation Army (1939) (p. 318) (homeless man not provided w/safety equip.) ........... 27
    No contributory negligence for volunteer workers – covered as above in Gyerman. ........................ 27


Jeanette L. Goldsberry                                                                                                                    Page xv
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  Koenig v. Patrick Construction Corp. (1948) (p. 318) (generic example) ....................................... 27
    Specifically references that employees are not in position to bargain for safer equipment. .............. 27
  Padula v. State (1979) (p. 318) (narcotic rehab patients drink ditto fluid/Tang) ........................... 28
    Heightened standard for 's caring for mentally ill 's; no bar due to contributory negligence. ....... 28
  Raimondo v. Harding (1973) (p. 319) (emergency excuses reasonable errors) ............................... 28
    In emergency, if no time for deliberation, no contributory negligence for error in judgment. .......... 28

  THIRD RESTATEMENT – RTT:GP §7 – EMERGENCY CONTRIBUTORY
  NEGLIGENCE ....................................................................................................................... 28
  SECOND RESTATEMENT – §465. CAUSAL RELATION BETWEEN HARM AND
  PLAINTIFF'S NEGLIGENCE .............................................................................................. 28
  Smithwick v. Hall (1890) (p. 320) (east side of platform above icehouse door has no rail; negl. 
  on east side when building collapses; but negligence not causative;  Ds)..................................... 28
    Contributory negligence must be causative; clear negligence doesn't necessarily bar recovery. ....... 28
  Mahoney v. Beatman (1929) (p. 320) (prior to comparative negligence – 's Rolls Royce
  speeding;  veers into lane; accident regardless; but slower speed would lower Ds)..................... 28
     responsible for all D in car accident;  speeding increased extent of D, but not causative. ........... 28
  Some states used to require  to prove lack of contributory negligence / causation ...................... 28

  LEROY FIBRE CO. V. CHICAGO, MILWAUKEE & ST. PAUL RY. (1914) (P. 322) (PRO-
  PROPERTY) ................................................................................................................................ 28
    If dangerous sparks escape from train on your property onto mine, I am not contributorily negligent
    for stacking flax nearby (within reason – not black & white, Holmes concurrence). ........................ 28
  Kansas Pacific Ry. v. Brady (1877) (p. 324) ('s hay 2 mi. away, but dry grass; no Ds)................ 28
    Earlier opinion – more pro-industry – farmers should take reasonable measures. ............................. 28

  DERHEIM V. N. FIORITO CO. (1972) (P. 325) (PRIOR TO SEATBELT LAWS, BUT STILL
  MAJORITY VIEW) (WASHINGTON) ........................................................................................... 28
    Not wearing seatbelt doesn't cause accident (but increases D);  no contributory negligence. ........ 28
  Spier v. Barker (1974) (p. 328) (minority view – seatbelt defense legitimate in Ds determination)
  (NY; Illinois (+ $25 fine for statutory violation) ................................................................................ 29
    Not wearing seatbelt can mitigate Ds (but not liability) – still minority view. .................................. 29
  Dare v. Sobule (1984) (p. 330).............................................................................................................. 29
    Failure to wear helmet on motorcycle is also not contributory negligence (as in Derheim). ............. 29

Last Clear Chance (Disfavored in Comparative Negligence)............... 29
  FULLER V. ILLINOIS CENTRAL R.R. (1911) (P. 331) (WAGON HIT ON TRAIN TRACKS;  COULD
  STOP) ......................................................................................................................................... 29
      had last clear chance to stop accident;  exception to 's contributory negligence. ...................... 29

  RESTATEMENT (SECOND) OF TORTS (1966) (P. 333) – §479. LAST CLEAR CHANCE:
  HELPLESS PLAINTIFF ....................................................................................................... 29
  §480. LAST CLEAR CHANCE: INATTENTIVE PLAINTIFF ....................................... 29
  Kumkumian v. City of New York (1953) (p. 334) ( run over 3X before train stops).................... 29
    Last clear chance used when negligence so gross that 's actions insignificant in comparison. ........ 29
  Last Clear Chance a "Transitional" Doctrine; but, still a favorite in econ law. (p. 335) .............. 29
    Law and economics argument – last clear chance exception to contributory negligence places burden
    on person in best position to mitigate / avoid losses. (Strong should help weak?) ........................... 29



Jeanette L. Goldsberry                                                                                                                Page xvi
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Imputed Contributory Negligence (Only If Community of Interest)..... 29
  MILLS V. ARMSTRONG (THE BERNINA) (1888) (P. 336) (LAW EVERYWHERE, BUT
  EXCEPTIONS)............................................................................................................................. 29
    No imputed contributory negligence from boat navigators to s (also employees of boat)............... 29
  Thorogood v. Bryan (1849) (p. 336) (overruled by Mills above, and similar US cases) ................. 29
    When bus driver sets  down in middle of road (not at curb) and  run over by ,  not liable due to
    imputed contributory negligence from bus driver to ;  "employer" of bus company. .................... 29

  EXCEPTION TO MILLS V. ARMSTRONG (P. 339) – "COMMUNITY OF INTEREST" RST §491, B
  & G ............................................................................................................................................ 30
  Dashiell v. Keauhou-Kona Co. (1973) (p. 339) ( hurt husband while wife driving golf cart) ...... 30
    Hostile towards joint enterprise – not even between husband and wife (must be business). ............. 30
  Hartfield v. Roper (1839) (p. 340) (Old Rule – Overturned by Statute in NY (1935)) ................... 30
    Infant barred from recovery due to imputed contributory negligence of parents. .............................. 30

Assumption of Risk ................................................................................ 30
  LAMSON V. AMERICAN AXE & TOOL CO. (1900) (P. 341) (OVERRULED BY STATUTE – 1939)
  (VIBRATING HATCHET RACK; AX FALLS; ASSUMPTION OF RISK BECAUSE EMPLOYEE AWARE
  OF DANGER) .............................................................................................................................. 30
    Employee, aware of dangerous work environment, continues working – assumption of risk. .......... 30
  Farwell v. Boston & Worcester R.R. Corp. (1842) (p. 342) (rail employee loses right hand due to
  another employee negligently throwing wrong switch; employer not negligent) ........................... 30
    Fellow servant rule – employer not responsible for negl. of one employee towards another. ........... 30

  RESTATEMENT (SECOND) OF AGENCY – §474. STATEMENT OF [FELLOW SERVANT]
  RULE ....................................................................................................................................... 30
  MURPHY V. STEEPLECHASE AMUSEMENT CO. (1929) (P. 346) (THE "FLOPPER" AMUSEMENT
  PARK RIDE; KNEE CAP FRACTURE – BUT NOW, DUTY TO WARN) ........................................... 30
    s assume risk for amusement park ride re danger of falling (but not for unforeseen dangers) ........ 30
  Russo v. The Range, Inc. (1979) (p. 348) (water slide causes  to fly in air, injured; ticket
  warnings inadequate to preclude SJ) .................................................................................................. 30
    Warnings on tickets inadequate to prevent  from presenting case of negligence to jury. ................ 30
  Desai v. Silver Dollar City, Inc. (1997) (p. 349) ( injured helping mother out of raft) ................. 30
    If warning sign large, and  disobeys, assumption of risk – no negligence for . ............................. 30
  Moulas v. PBC Productions, Inc. (1997) (p. 349) (hockey puck flew over Plexiglas; no Ds) ......... 30
    Spectators cannot sue for injuries from flying objects at sporting events; similar for all sports. ....... 30
  Maddox v. City of New York (1985) (p. 349) (baseball player D kneecap/muddy field)................ 31
    Professional athletes assume risk of adverse playing conditions; if knowledge of defect/risk. ......... 31
  Meistrich v. Casino Arena Attractions, Inc. (1959) (p. 350) (ice too hard in rink,  continues
  skating – secondary assumption of risk/contributory negligence) ................................................... 31
    Primary assumption of risk ( did not breach, risk inherent / acceptable) vs. secondary assumption
    of risk ( did breach, but  assumed risk by continuing in face of danger). ...................................... 31
  Marshall v. Ranne (1974) (p. 351) (mad boar;  trapped in home or exposed to boar) ................. 31
    Secondary assumption of risk not applicable when 's dangerous condition unavoidable. ............... 31
  Krauth v. Geller (1960) (p. 352); Lees v. Lobosco (1993) (p. 353) (ambulance tech.) .................... 31
    Assumption of risk,  no cause of action for police officers/firemen (but not medical tech.) .......... 31




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Arbitration / Indemnification Clauses (Sometimes Unenforceable) .... 31
  OBSTETRICS & GYNECOLOGISTS LTD. V. PEPPER (1985) (P. 353) (ADVERSE REACTION TO
  BIRTH CONTROL; ADHESION K; ARBITRATION CLAUSE UNENFORCEABLE) ........................... 31
    Arbitration sometimes unenforceable if medical adhesion (take-it-or-leave-it) contract. .................. 31
  Madden v. Kaiser Foundation Hospitals (1976) (p. 357) (arbitration upheld when optional) ...... 31
    Upholds arbitration where different health plans available (some with jury trial). But: .................. 31
  Engalla v. Permanente Medical Group (1997) (p. 357) (case from Civ Pro) ................................... 31
    Does not uphold arbitration; fraud in presenting arbitration option; unconscionable delay. ............. 31
  California exceptions to indemnification clauses (Cal. Civil Code §1953(a)(5) (1985)) ................. 31
    Indemnification clauses contrary to public policy: hospital; landlord/tenant; school. ....................... 31

Comparative Fault .................................................................................. 31
  LI V. YELLOW CAB CO. OF CALIFORNIA (1975) (P. 362) ( TRIES TO CROSS 3 LANES OF
  ONCOMING TRAFFIC;  SPEEDING; BOTH NEGLIGENT – "PURE" COMPARATIVE
  NEGLIGENCE) ............................................................................................................................ 31
     Abandons contributory negligence bar; applies "pure" comparative negligence. .............................. 31
  "Pure" comparative negligence (California, New York, Michigan, Florida) ................................. 32
     Losses apportioned between victim/injurer according to fact finder's %s for each party. ................. 32
  Modified comparative negligence (Texas, Ohio, Massachusetts, Illinois) ....................................... 32
     Same, except plaintiff loses everything if fault too big. (1) Greater fault bar system, and (2) equal
     fault bar system. Modified more popular than pure comparative negligence. .................................. 32
  Slight / gross negligence system (only South Dakota / Nebraska) .................................................... 32
     Plaintiff can recover if negligence slight in comparison to defendant. .............................................. 32
      Assumption of risk, last clear chance, contributory negl. absorbed into comparative negl.  But,
     does not apply to strict liability cases (assumption of risk still affirmative defense). ........................ 32


VI.         MULTIPLE DEFENDANTS ...........................................32
Joint and Several Liability – Differs Widely by State ........................... 32
  UNION STOCK YARDS CO. OF OMAHA V. CHICAGO, BURLINGTON, & QUINCY R.R. (1905) (P.
  387) (RAIL EMPLOYEE INJURED; RAILCAR W/DEFECTIVE NUT; NEGL. LACK OF INSPECTION,
  EMPLOYER AND R.R.) ............................................................................................................... 32
    Old rule – joint and several liability – if two s A and B both negligent,  can sue both, but collect
    full amount from A; A cannot then sue B for 50% – tough luck. ...................................................... 32
  Krenz v. Medical Protective Co. of Fort Wayne (1973) (p. 389) (medical malpractice) ................ 32
    Contractual release of one party doesn't release other parties (rejects automatic release rule). ......... 32

  THIRD RESTATEMENT – RTT:AL §40, COMMENT G –  HAS BURDEN OF PROVING RELEASE
  DUE TO SETTLEMENT (P. 389)................................................................................................... 32
  California Civil Procedure Code §§875–877.5 (original 1957, rev. 1982) (p. 390) .......................... 32
    Describes California system of Joint Liability: pro rata (= div.), settlement gets you out. ............... 32

  AMERICAN MOTORCYCLE ASSOCIATION V. SUPERIOR COURT (1978) (P. 392) (MOTORCYCLE
  ACCIDENT; S ORGANIZED/RAN RACE; WANT TO JOIN PARENTS TO SUIT; USUALLY PRO RATA
  CONTRIBUTION BY STATUTE (= CONTRIBUTION FOR S); BUT COURT ALLOWS OUT UNDER
  "PARTIAL EQUITABLE INDEMNITY"......................................................................................... 33
       allowed to join other s; doctrine of "partial equitable indemnity" – lengthy explanation. ........... 33


Jeanette L. Goldsberry                                                                                                       Page xviii
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  THIRD RESTATEMENT – RTT:AL (P. 403) – JOINT AND SEVERAL VS. SEVERAL, +
  VARIATIONS .............................................................................................................................. 33
  Different approaches to Joint and Several Liability (p. 406) (from unread case) .......................... 33
    No contribution; contribution; contribution plus settlement bar; claim reduction. ............................ 33

Vicarious Liability ("Respondeat Superior") ......................................... 34
  IRA S. BUSHEY & SONS, INC. V. UNITED STATES (1968) (P. 413) (DRUNK SEAMAN
  NEGLIGENTLY OPERATES DOCKED SHIP; DS DOCK; NOT W/IN JOB DUTIES BUT FORESEEABLE
  RISK OF EMPLOYMENT) ............................................................................................................ 34
     Employer vicariously liable for foreseeable consequences of acts of employee, even if acts outside
     scope of employment.......................................................................................................................... 34
  "Respondeat Superior" (vicarious liability) universally accepted in all common law jurisdictions
  (p. 416), BUT… (Holmes against it, for individual responsibility) .................................................. 34
  Justifications for "Respondeat Superior" (p. 417) ............................................................................ 34
  Sykes' Efficiency Arguments for "Respondeat Superior" (p. 418) .................................................. 34
  Riley v. Standard Oil Co. (1921) (p. 418) (employee goes 4 blocks out of the way to run personal
  errand; employer still liable under respondeat superior) ................................................................. 34
     Respondeat superior covers small deviations from scope of employment (not large). ...................... 34
  Sykes' comments on desirability of rule in terms of increase / decrease in accidents .................... 34
  Lancaster v. Norfolk & Western Railway (1985) (p. 418) (abusive supervisors
  "goosing"/insulting employee – employer liable for failing to prevent intentional torts).............. 35
     Employers can be liable for intentional torts of employees under direct negligence theory. ............. 35
  Meritor Savings Bank v. Vinson (1986) (p. 419) (employer not automatically responsible for
  sexual harassment, but still can be liable if employee failed to deal w/problem internally) .......... 35
     No definitive rule on sexual harassment, re employer's responsibility for employee behavior. ........ 35
  Burlington Industries v. Ellerth (1998) (p. 419) (hostile work environment actionable) ............... 35
     Harassment not w/in scope of employment; but, hostile environment actionable. Affirmative
     defenses: 1) if reasonable care exercised to avoid/deal with behavior; 2) if  failed to take advantage
     of any corrective opportunities provided by employer (contributory negligence). ............................ 35
  Faragher v. City of Boca Raton (1998) (p. 420) (discriminatory environment actionable) ........... 35
     As above, analogous rules for employment discrimination cases. ..................................................... 35
  Charles v. Barrett (1922) (p. 420) (Old Rule – g.c. not responsible for sub's employee) ............... 35
     No inference of relationship between sub and general contractor for sub employee's negl. .............. 35
  Morgan v. ABC Manufacturer (1998) (p. 420) (New Rule – g.c./sub both responsible) ................ 35
     Both general and subcontractor jointly responsible for negligence of sub's employees. ................... 35
  Fireman's Fund American Insurance Co. v. Turner (1971) (p. 421) (if employer sued due to
  employee's negligence, employer can sue employee and recover Ds) .............................................. 35
     If employer's negl. passive & employee's negl. active, employer can sue employee. ........................ 35
  §388, New York Vehicle and Traffic Law (p. 421) ............................................................................ 35
     If you let another person drive your car, you are also liable for his torts in many jurisdictions. ....... 35
  Heick v. Bacon (1997) (p. 422) (bar hopping together in car; not joint enterprise) ....................... 35
     Very limited expansion of respondeat superior to joint enterprises (pleasure trip inadequate). ........ 35

  PETROVICH V. SHARE HEALTH PLAN OF ILLINOIS, INC. (1999) (P. 422) (DOCTOR FAILS TO
  DIAGNOSE 'S TONGUE CANCER; HMO JOINED TO SUIT AS ) ............................................... 36
    Independent contractors can be employees under: 1) apparent and/or 2) implied authority. ............. 36
  Gilbert v. Sycamore Municipal Hospital (1993) (p. 425) ( released from ER; heart attack) ....... 36
    Apparent authority – hospital ER physician (indep. contractor) associated with hospital. ................ 36
  Hardy v. Brantley (1985) (p. 430) (apparent authority in spite of K clause) .................................. 36
    ER physician's contract explicitly disclaims any control by hospital – still apparent authority......... 36
  HMO responsibility currently hotly debated – lots of different views (p. 429) ............................... 36
    California passed law creating nonwaivable right to certain level of care from HMO. ..................... 36
Jeanette L. Goldsberry                                                                                                                 Page xix
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    But, law possibly overruled by broad interpretation of ERISA (1974) – supersedes state laws re
    administration of employee benefit plans........................................................................................... 36
  Proposed ERISA amendments: ........................................................................................................... 36
    (1) Liability on basis of control, irrespective of whether control is "negligent" .............................. 36
    (2) Liability only for negligent control (if control has direct negative effect). ............................... 36
    (3) No liability – patients do not have the right to sue the HMO, only the doctor(s). ....................... 36
  Sanford v. Goodridge (1944) (p. 431) ( "independent contractor" on newspaper route;
  newspaper joined to suit due to retention of control) ........................................................................ 36
    Defines independent contractor and employee – related to amount of control retained. ................... 36
  Law v. Phillips (1952) (excavation); Brown v. Wisconsin Natural Gas Co. (1973) (blasting or
  cutting conduits) (p. 431) (Both inherently dangerous) .................................................................... 37
    Usually employers exempted from work of truly independent contractors – But, exception: work on
    premises of employer that employer knows could be dangerous. ...................................................... 37
  Western Stock Center v. Sevit, Inc. (1978) (p. 432) (ultrahazardous vs. inherent danger) ........... 37
    Distinguishes ultrahazardous activities (strict liability: trespass/water escaping, e.g. Rylands) from
    inherently dangerous activities (employer liable only if indep. contractor is negl.) .......................... 37

  RESTATEMENT (SECOND) OF TORTS – §427. NEGLIGENCE AS TO DANGER
  INHERENT IN THE WORK ................................................................................................. 37


VII.         CAUSATION .............................................................37
Cause in Fact – Rescue At Sea .............................................................. 37
  NEW YORK CENTRAL R.R. V. GRIMSTAD (1920) (P. 435) (NO LIFE PRESERVERS; NOT PROX.
  CAUSE) ...................................................................................................................................... 37
    OLD RULE, but basic principle still valid in terms of preponderance of evidence standard to prove
    causation: no Ds unless  proves 's negl. proximate cause, i.e. prove with certainty accident would
    not have occurred had precaution been taken (lowered risk insufficient). ......................................... 37
  Ford v. Trident Fisheries Co. (1919) (p. 436) (man overboard; rescue boat tied, not suspended, 
  harder to access; no Ds – not certain if better precaution = successful rescue) .............................. 37
    If deficient precaution taken, no Ds unless better precaution prevents accident w/ certainty. ........... 37
  Kirincich v. Standard Dredging Co. (1940) (p. 436) (man falls off dredge near shore; no SJ) ..... 37
    Issues of possible causation due to negl. sufficient to preclude SJ – fact finder weighs info. ........... 37
  Zinnel v. United States Shipping Board Emergency Fleet Corp. (1925) (p. 436) (quoted )......... 37
    Learned Hand: "There of course remains the question whether they might have also said that the
    ['s] fault caused the loss. About that we agree no certain conclusion was possible. Nobody could,
    in the nature of things, be sure that the intestate would have seized the rope, or, if he had not, that it
    would have stopped his body. But we are not dealing with a criminal case, nor are we justified,
    where certainty is impossible, in insisting upon it. … we think it a question about which reasonable
    men might at least differ whether the intestate would not have been saved, had it been there."
    [preponderance of evidence vs. beyond reasonable doubt] ............................................................... 37
  Reyes v. Vantage Steamship Co. (1980) (p. 437) (drunk  jumps overboard,  15% negl.).......... 37
    MODERN: Where 's negl. partly causative, jury has broad discretion to assign %. ...................... 37
  Haft v. Lone Palm Hotel (1970) (p. 437) (father/son drown in hotel swim pool; no lifeguard) ..... 37
    If negl. of  contributes to lack of evidence as well as increase in risk,  has burden of proof. ....... 37




Jeanette L. Goldsberry                                                                                                               Page xx
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Cause in Fact – Statutory Violations ..................................................... 38
  ZUCHOWICZ V. UNITED STATES (1998) (P. 438) (PHARMACY PRESCRIBES OVERDOSE; RARE
  DISEASE).................................................................................................................................... 38
     If act is negl. because it causes increased risk of event, and event occurs, causation can be inferred
     by trier of fact (burden of proof shifts to  to provide good alternative explanation). ...................... 38
  Stimpson v. Wellington Service Corp. (1969) (p. 442) (overweight truck; broke a pipe?) ............ 38
     When cause of action based on statutory violation (e.g. truck overweight, pipe broken), violation
     must be causative; if non-negl. truck could break pipe (w/in weight), no causation. ........................ 38

Cause in Fact – Slip and Fall Cases ...................................................... 38
  Reynolds v. Texas & Pacific Ry. (1885) (p. 443) (slip and fall case; unlit stairs;  guilty) ............ 38
    When negl. greatly increases risk of injury, and injury occurs, court doesn't allow  to put forward
    fanciful alternative explanations but examines causation in normal course of events. ...................... 38
  Fedorczyk v. Caribbean Cruise Lines, Ltd. (1996) (p. 443) (woman slips in tub, only a few
  abrasive strips (large space between), no causation (w/dissent)) ..................................................... 38
    If risk increases only slightly from smaller to larger precaution, causation not inferred. .................. 38

Cause in Fact – Products Liability (Including Medicine) ...................... 38
  Engberg v. Ford Motor Co. (1973) (p. 443) (defective seat belt; man dies; jury –  negl.) ........... 38
     When / offer competing versions of accident scenario, and both plausible, jury decides. ............ 38
  Claytor v. Owens-Corning Fiberglas Corp. (1995) (p. 444) ('s exposure to 's fiberglass not
  clearly shown (no dates, places etc.) not enough to argue possible exposure through air) ............ 38
     You must show actual exposure to dangerous substance to win on strict products liability. ............. 38

  GENERAL ELECTRIC CO. V. JOINER (1997) (P. 445) ( LUNG CANCER (SMOKER, BUT
  EXPOSURE TO PCBS; WEIRD MICE STUDIES/ITALIAN WORKERS (INCONCLUSIVE), EXPERT
  TESTIMONY EXCLUDED) ........................................................................................................... 39
    D. Ct. can exclude medical expert testimony that is w/out adequate factual basis (gatekeeper). ...... 39
  Kumho Tire Co. v. Carmichael (1999) (p. 450) (tire blowout; technical testimony excluded) ...... 39
    D. Ct. can also exclude technical expert testimony, per General Electric Co. v. Joiner. ................... 39
  Frye v. United States (1923) (p. 450) (Old Rule, only generally accepted theories allowed) ......... 39
    Old rule limited to theories that had the general acceptance of the scientific community. ................ 39
  Daubert v. Merrell Dow Pharmaceuticals, Inc. (1995) (p. 450) (Bendectin case, no Ds) ............... 39
    Revised standard allows new theories to reach the court, but within reasonable limits. .................... 39
  Oxendine v. Merrell Dow Pharmaceuticals, Inc. (1986) (p. 451) (earlier Bendectin case) ............ 39
    Career Bendectin expert witness allowed to give weak testimony because combined with other
    evidence it might amount to something – "whole greater than the sum of its parts." ........................ 39
  Richardson v. Richardson-Merrell, Inc. (1986) (p. 451) (Bendectin didn't cause deformities) ..... 39
    No reasonable jury could find that horrible deformities at birth caused by Bendectin. ..................... 39
  Agent Orange Cases (p. 452) ............................................................................................................... 39
    $180m settlement for the class action lawsuit; but when individual cases pressed, SJ for s. .......... 39
  Prof. Abraham – Three levels of causation that must be established in toxic torts (p. 452) .......... 39
    (1) substance can cause injury (2)  was source of substance (3) proven exposure. ......................... 39
    Difficult to prove case where substance causes a variety of diseases, such as Agent Orange. .......... 39

  HERSKOVITS V. GROUP HEALTH COOPERATIVE (1983) (P. 453) (NEGL. FAILURE TO
  DIAGNOSE LUNG CANCER; 14% REDUCTION IN CHANCE OF SURVIVAL; ISSUE ALLOWED TO
  GO TO JURY).............................................................................................................................. 39
     Lost chance doctrine:  can recover for reduced survival rate from negl. failure to diagnose illness
     even when  likely to die anyway but only Ds directly resulting from premature death. .................. 39

Jeanette L. Goldsberry                                                                                                             Page xxi
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     Concurrence: loss of chance of cure basis for Ds, rather than denial of cure – calculated on basis of
     long-term survival rates. (based on King article, 1981) ..................................................................... 39

  RESTATEMENT (SECOND) OF TORTS §323 (1965) (P. 454) ...................................................... 39
    "One who undertakes … to render services to another which he should recognize as necessary for
    the protection of the other's person or things, is subject to liability to the other for physical harm
    resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to
    exercise such care increases the risk of such harm, …" ..................................................................... 39
  Cooper v. Sisters of Charity, Inc. (1971) (p. 454) (Old Rule – more likely than not standard) ..... 40
    Proof of decreased chance of survival not enough to take proximate cause question to jury. ........... 40
  Judicial response to "Lost Chance Doctrine" sharply split (p. 457) ................................................ 40
    Of states that have considered it, 16 states accepted, 6 states rejected, 4 undecided. ........................ 40
  Jackson v. Johns-Manville Sales Corp. (1986) (p. 459) ( contracts asbestosis, 50% chance of
  future lung cancer – allowed anticipatory Ds in connection w/asbestosis recovery) ...................... 40
    Concerns about res judicata; court allows anticipatory Ds for chance of additional illness related to
    asbestos exposure, in spite of fact that it had not yet manifested; also Ds for fear. ........................... 40
  Mauro v. Raymark Industries, Inc. (1989) (NJ) (p. 460) (asbestos exposure, but no disease)....... 40
    No recovery for increased chance of contracting asbestos where chance less than 50% (suit can
    always be brought when injury manifests), but, Ds for costs of medical monitoring. ....................... 40

Cause in Fact – Multiple Possible Causes, Apportionment ................. 40
  KINGSTON V. CHICAGO & N.W. RY. (1927) (P. 461) (UNKNOWN FIRE + RAIL FIRE DESTROY
  PROPERTY) ................................................................................................................................ 40
     When 2 fires of human origin converge and D property, J&S liable. When 1 fire natural and 1
     human origin, no liability but possible liability implied if 's fire far greater magnitude. ................ 40

  RESTATEMENT OF TORTS, SECOND – §433A: APPORTIONMENT OF HARM TO
  CAUSES ................................................................................................................................... 40
  Smith v. J.C. Penney Co., Inc. (1974) (p. 465) (coat set afire/melts,  horrible injuries) ............... 40
    J&S liable fabricmaker/service station owner for fire setting coat ablaze, in spite of difficulty of
    apportionment – both clearly at fault, injuries impossible to separate, totality of condition. ............ 40
  Maddux v. Donaldson (1961) (p. 465) (auto accident, 2 negl. s; J&S liability, w/dissent) ........... 41
    If court cannot apportion Ds, everyone J&S liable, even if inequity to one  results. ....................... 41
  United States v. Chem-Dyne Corp. (1983) (refusal of SJ in "Superfund" case)............................. 41
    SJ refused even when Ds would have to be somehow apportioned among 289 possible s. ............ 41
  Matter of Bell Petroleum Services, Inc. (1993) (p. 466) (chromium in groundwater) .................... 41
    Apportionment of Ds based on records of activity, consequent chromium emitted into soil............. 41
  Rizzo and Arnold (1980) (p. 467) (theory for when D occurs, w/2 s, each <50% at fault) .......... 41
    If A's probability is 20%, and B's 40%, A = 0.2/(0.2+0.4), 1/3, B = 0.4/(0.2+0.4), 2/3..................... 41

  SUMMERS V. TICE (1948) (P. 468) (TWO NEGL. S SHOOT AT QUAIL, ONE BULLET HITS  –
  J&S LIABLE) ............................................................................................................................. 41
    J&S "alternative liability" when 2 parties act in concert, only one guilty but not clear which. ......... 41
  Adams v. Hall (1829) (p. 470) (Old Rule; if no proof which of 2 s did D, no recovery) ............... 41
    1 of 2 dogs responsible for death of sheep, unclear which – no recovery under old rule................... 41
  Restatement (Second) of Torts §433B: Burden of Proof .................................................................. 41
  Hall v. E. I. du Pont de Nemours & Co. (1972) (p. 471) (blasting cap Ds, 6 s – still J&S) ........... 41
    13 infant s, blasting cap injuries; burden to disprove causation shifted to each of 6 s when unclear
    which  responsible, because more than likely that one of 6 s was manufacturer. ......................... 41




Jeanette L. Goldsberry                                                                                                          Page xxii
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  SKIPWORTH V. LEAD INDUSTRIES ASSOCIATION (1997) (P. 471) (LEAD POISONING,  CHILD;
  SJ FOR S) ................................................................................................................................ 41
    Market share liability only appropriate when all of the following factors are present: (1) all the
    named s are potential tortfeasors (2) the allegedly harmful products are identical and share the
    same defective qualities (or were "fungible") (3) the  is unable to identify which  caused her
    injury through no fault of her own (4) substantially all of the manufacturers which created the
    defective products during the relevant time are named as s............................................................. 41
  Sindell v. Abbott Laboratories (1980) (p. 476) (DES case, market share liability) ........................ 42
    Apportionment based on market share in products liability case, where factors (above) met. .......... 42
    Courts are unwilling to extend the market share rulings beyond DES. Starling v. Seaboard Coast
    Line R.R. (1982) (p. 479) asbestos considered nonfungible Shackil v. Lederle Laboratories
    (1989) (p. 479) DPT vaccine nonfungible (different methods of preparation) .................................. 42

  SYKES' DEFINITION OF ACTING IN CONCERT, TAKEN FROM THE OLD PROSSER HORN BOOK:
  .................................................................................................................................................. 42
     All those who in pursuance of a common plan or design to commit a tortious act actively take part in
     it or further it by cooperation or request or who lend aid or encouragement to the wrongdoer or ratify
     or adopt wrongdoer's acts for their own benefit are equally liable..................................................... 42

Proximate Cause and the Scope of Duty .............................................. 42
  RYAN V. NEW YORK CENTRAL R.R. (1866) (P. 480) ( CAUSES FIRE TO SHED, SPREADS TO
  'S HOUSE) ................................................................................................................................ 42
    Old Rule: when actions remote rather than proximate cause of injuries, no Ds, only 1st house. ...... 42
  Kerr v. Pennsylvania R.R. (1870) (p. 482) (generic example similar to above) .............................. 42
    It is not a conclusion of law based on Ryan that victim of second fire is unable to collect Ds. ......... 42
  City of Lincoln (1889) (p. 483) (captain's ship D'ed, lost navigation equip.,  loss of ship) ......... 42
    Both primary and secondary consequences of an act are actionable, even when a human actor
    intervenes, so long as in the ordinary course of things the actions flow from the act. ....................... 42
  Jones v. Boyce (1816) (p. 483) (jump from coach to avoid crash; recovers for injuries) ............... 42
    In an emergency, Ds for actions taken to avoid injury which actually end up causing greater injury
    than would have occurred from the accident are still attributed to the negligent actor. ..................... 42
  Tuttle v. Atlantic City R.R. (1901) (p. 484) (train jumps tracks;  ran in fear, hurt knee) ........... 42
     ran for safety, but would not have been struck. Still, reasonable apprehension of injury. ............. 42
  Mauney v. Gulf Refining Co. (1942) (p. 484) (chair in the way while  flees; but in 's café) ...... 42
     not liable for  running from explosion and tripping on chair in her own café. ............................. 42

  BERRY V. SUGAR NOTCH BOROUGH (1899) (P. 484) (TREE COLLAPSES ON SPEEDING TRAIN;
   STILL PAYS) ........................................................................................................................... 43
    Coincidence resulting from negl. otherwise unrelated to Ds does not break causal chain. ................ 43
  Central of Georgia Ry. v. Price (1898) (p. 486) ( Ry. negl. fails to drop  off at train stop; 
  spends night in hotel; kerosene lamp explodes;  not liable for Ds) ................................................ 43
    When 's injuries not foreseeable consequence of negl. act, and negl. act does not give rise to
    increased risk of specific injury (coincidentally put  in position to be injured),  not liable........... 43
  Hines v. Garrett (1921) (p. 486) ( Ry. conductor negl. went past 's stop;  forced to walk home
  1 mi. in dangerous area; raped twice;  liable).................................................................................. 43
    When increased risk of injury is reasonably foreseeable as result of negl., intervening tortious
    actions of 3rd parties insufficient to break causal chain if actions were the danger anticipated. ....... 43




Jeanette L. Goldsberry                                                                                                                Page xxiii
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  Dillon v. Twin State Gas & Electric Co. (1932) (p. 487) (boy trespassing on dangerous bridge;
  fell; grabbed exposed high voltage wires;  only liable for additional Ds) ..................................... 43
     Independent vs. dependent causation – boy trespassing on bridge (independent), followed by boy
     grabbing exposed high voltage wires (dependent). Boy was electrocuted, but would have (1) died or
     (2) been maimed anyway.  only liable for increased Ds – question for jury. ................................. 43
  Pittsburg Reduction Co. v. Horton (1908) (p. 487) (discarded dynamite cap; no Ds for ) .......... 43
     Dangerous object negl. left out, then ends up in place of apparent safety, causal chain broken. ....... 43

  BROWER V. NEW YORK CENTRAL & H.R.R. (1918) (P. 489) (NEGL. TRAIN COLLISION; 'S
  HORSE/BUGGY DESTROYED; BUT ALSO THINGS STOLEN;  LIABLE FOR EVERYTHING) ......... 43
    When increased risk of injury is reasonably foreseeable as result of negl., intervening tortious
    actions of 3rd parties insufficient to break causal chain, even if danger secondary to main Ds. ....... 43
  Watson v. Kentucky & Indiana Bridge & R.R. (1910) (p. 491) (match thrown at gasoline spill;
  case turns on jury determination of arson or accident; if arson, no Ds for 's negl.) .................... 43
    Adopts position of Brower dissent:  only liable for anticipated negl. acts of 3rd parties that
    combine with 's to cause Ds, not criminal acts of 3rd parties even if facilitated by 's negl. .......... 43
  Atherton v. Devine (1979) (p. 492) ( negl. caused accident;  injured, ambulance comes;
  ambulance has accident;  sustains further injuries;  liable for all Ds) ........................................ 43
    Original wrongdoer liable for any aggravation of original injuries due to circumstances surrounding
    accident (ambulance crash in this case, in other cases negl. of treating physician) ........................... 43

  RESTATEMENT (SECOND) OF TORTS – §448. INTENTIONALLY TORTIOUS OR
  CRIMINAL ACTS DONE UNDER OPPORTUNITY AFFORDED BY ACTOR'S
  NEGLIGENCE ....................................................................................................................... 44
  §449. TORTIOUS OR CRIMINAL ACTS THE PROBABILITY OF WHICH MAKES
  THE ACTOR'S CONDUCT NEGLIGENT ......................................................................... 44
    Note: These two sections are basically the statement of the law in all US jurisdictions. ................. 44
  Scheffer v. Railroad Co. (1881) (p. 494) (old rule – suicide case (brain D) doesn't go to jury) ..... 44
    Allegations that 's negl. act hurt 's brain so that he became insane and committed suicide, did not
    survive motion to dismiss – not natural and probably consequence of negl. ..................................... 44
  Fuller v. Preis (1974) (p. 494) (new rule – suicide case (brain D) allowed to go to jury)................ 44
    Man walks away from auto accident with negl.  thinking he is OK, but has seizures, has to give up
    medical practice, 7 months later kills himself; but wife has polio, suffers "nervous exhaustion",
    mother ill with cancer. Issue of 's negl. as possible proximate cause of suicide (in spite of issues
    with wife/mother) allowed to go to jury. ............................................................................................ 44
  Edwards v. Tardif (1997) (p. 495) (new rule – suicide case (depression) goes to jury) .................. 44
    Doctor negligently prescribed large dose of Tofranil to depressed woman w/inadequate follow-up;
    woman committed suicide a week later w/overdose; suicide not unforeseeable, doctor's failure to
    render adequate care was proximate cause of suicide. ....................................................................... 44
  Wagner v. International Ry. (1921) (p. 495) (not read, but quote from Cardozo) ......................... 44
    Famous Cardozo phrase in Wagner, "Danger invites rescue." – you can be liable to rescuer. .......... 44

  IN RE POLEMIS & FURNESS, WITHY & CO. (1921) (P. 497) (PLANK HITS BOAT; SPARK; FIRE)
   .................................................................................................................................................. 44
     If act is negl. (harm foreseeable) & harm of much greater magnitude occurs, Ds for all harm. ........ 44

  PALSGRAF V. LONG ISLAND R.R. (1928) (P. 501) ( RR'S EMPL. NEGL. HELPS MAN ONTO
  MOVING TRAIN; MAN HAS EXPLOSIVES THAT FALL ONTO TRACK; EXPLOSION INJURES ; 
  NOT PROXIMATE CAUSE) .......................................................................................................... 45
     's negl. towards 3rd party (no negl. towards ) causing injury to  is not proximate cause. ........... 45


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  The Nitroglycerine Case (1872) (p. 511) ('s servants killed opening unmarked explosives) ....... 45
    Nitroglycerine package explodes when opened by 's servants; servants killed/property destroyed; 
    liable for Ds to landlord under lease, but not liable to servants because no negl.; package unmarked,
    no "notice" of contents. Some courts interpret Palsgraf as "notice" case. ......................................... 45

  SECOND RESTATEMENT §281 .................................................................................................. 45
  Interpretation of §281, no recovery when  has no duty to guard against actual class of Ds........ 45
    Seavey:  negl. leaves heavy can of nitroglycerine on table;  child knocks it off table; miracle – no
    explosion, but D to child's foot from heavy object; no recovery for ; 's only duty to guard against
    explosion, not to keep all heavy objects out of reach of children. ..................................................... 45
    Keeton:  negl. places rat poison on shelf next to food; heat from nearby stove causes poison to
    explode; no Ds for injuries since danger is of poison being ingested, not of explosion. ................... 45

  §431. WHAT CONSTITUTES LEGAL CAUSE (TAKEN FROM ANDREWS' DISSENT IN
  PALSGRAF) ................................................................................................................................ 45
  Mitchell v. Gonzales (1991) (p. 513) (adults negl. failed to supervise boy, boy drowns) ................ 46
   Proximate cause is confusing – better to consider substantial factor, because doesn't imply last in
   sequence. Substantial factor test easier to understand by juries, more intuitive................................ 46

  MARSHALL V. NUGENT (1955) (P. 514) ('S TRUCK RUNS CAR OFF ROAD; AFTER ACCIDENT, 
  OFFERS TO PULL CAR ONTO HIGHWAY, SUGGESTS  PASSENGER SIGNAL ONCOMING CARS OF
  DANGER;  HIT) ........................................................................................................................ 46
      liable for primary and secondary effects of accident prior to stabilization of the situation. ........... 46

  (WAGON MOUND NO. 1) OVERSEAS TANKSHIP (U.K.) LTD. V. MORTS DOCK & ENGINEERING
  CO., LTD. (1961) (P. 517) (OIL SPILL DRIFTS TO WHARF; CATCHES FIRE AT 'S SHIPYARD).. 46
     Opposed to Polemis: limits negl. and Ds to foreseeable events – no Ds for direct events if
     unforeseeable (could also be viewed as superseding cause due to intervening human actors). ......... 46
  Doughty v. Turner Manufacturing Co., Ltd. (1964) (p. 521) (asbestos cover knocked into hotter-
  than-boiling liquid; no splash (foreseeable) but later explosion (not foreseeable)). ....................... 46
     Wagon Mound: judgment for , consequence not reasonably foreseeable as result of 's negl. ....... 46
  Hughes v. Lord Advocate (1963) (p. 522) (kids trespass, knock over paraffin warning lamps next
  to manhole; paraffin causes explosion; foreseeable, explosion closely related to fire) ................... 46
     Also Wagon Mound, but different result – explosion considered foreseeable  Ds awarded. .......... 46
  (Wagon Mound No. 2) Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. (1967) (p.
  523) (second case based on oil spill; fire ignites boat being repaired, different finding) ............... 47
     Evidence of oil fire's foreseeability; ct. finds: (1) fire foreseeable (2) 's discharge of oil unlawful
     (distinguished from Bolton v. Stone where due to lawful nature of activities, small risk precludes
     Ds), and applies  of Hand's formula B < PL, precautions in preventing or containing oil spill
     cheap/effective compared to potential consequences, even if risk slight. .......................................... 47
  Smith v. Brain Leech & Co. Ltd. (1962) (p. 524) (molten metal splashes on lip, cancer, Ds) ........ 47
     "Thin skin rule": like Vosburg, you take your victim as you find him – in this case, a predisposition
     towards cancer exacerbates a lip injury negl. caused by  –  liable for all Ds. ............................... 47

  STEINHAUSER V. HERTZ CORP. (1970) (P. 524) (CHILD DEVELOPS SCHIZOPHRENIA AFTER
  CAR ACCIDENT)......................................................................................................................... 47
     Dormant predisposition towards schizophrenia (possibly caused by previous accident) doesn't
     preclude Ds. for actual onset of schizophrenia resulting from trauma related to car accident. .......... 47

  AMERICAN REACTION TO ABOVE ENGLISH CASES POLEMIS AND WAGON MOUND ............... 47
     The general standard applied is foreseeability for determination of negl.; liability for foreseeable Ds,
     or direct Ds limited to type of foreseeable harm, but not degree. ...................................................... 47

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  Petition of Kinsman Transit Co. (1964) (p. 525) (negl. tied boat, stops up river, flooding) ........... 47
    Applies American standard explained above. .................................................................................... 47


VIII. SPECIAL DUTIES OF CARE ........................................47
Rescue Situations ................................................................................... 47
  BUCH V. AMORY MANUFACTURING CO. (1897) (P. 548) (CHILD TRESPASSES, HURTS HAND,
  NO DS) ....................................................................................................................................... 47
    There is no duty to rescue a child trespassing on your premises near dangerous objects. ................. 47
  Mangan v. Atterton L.R. (1866) (p. 551) (child's hand crushed, 's machine on public St.)......... 47
    No liability for machine left exposed on public street by , when  child crushes hand in it. Not
    proximate cause, because boy caused his own harm (along w/his friends). ...................................... 47
  Yania v. Bigan (1959) (p. 551) (no duty to save drowning guest on property, if no negl.) ............. 48
    Even if you taunt a person into committing a dangerous act, he is liable unless incompetent. If the
    danger results from your tortious acts, duty to rescue, otherwise, you can let him die. ..................... 48

  MONTGOMERY V. NATIONAL CONVOY & TRUCKING CO. (1937) (P. 559) (TRUCKS STALL; NO
  WARNING) ................................................................................................................................. 48
    Even when you non-negl. create hazard, duty to take reasonable measures to warn of hazard. ........ 48
  Newton v. Ellis (1855) (p. 560) (hole dug in highway, no warning lights at night; negl. Ds) ......... 48
    Compound negl. acts with an active and passive component are considered active negl. ................. 48
  Louisville & Nashville R.R. v. Scruggs (1909) (p. 561) (firetruck can't pass, RR not negl.!) ........ 48
    Before statutes forcing people to move for emergency vehicles, railroad was not negl. for failing to
    move its train for a firetruck, resulting in 's home burning down due to delay. ............................... 48
  Hale, Prima Facie Torts, Combination, and Non-Feasance (1946) (p. 561) (realist view) ............. 48
    Rugged individualism and absolute rights to freedom from helping your neighbor are ridiculous
    when we consider, as in the above case, the low cost to the RR of moving the train and preventing a
    disastrous fire by allowing the fire truck to get through. B far less than PL. ................................... 48

  RESTATEMENT (SECOND) OF TORTS – §322. DUTY TO AID ANOTHER HARMED BY
  ACTOR'S CONDUCT ............................................................................................................ 48
  Summers v. Dominguez (1938) (p. 562) (pedestrian struck by truck, driver doesn't rescue)........ 48
    If you cause harm to another person & render him helpless, you have duty to aid and protect. ........ 48
  Black v. New York, N.H. & H. R.R. (1907) (p. 563) (drunk train passenger; led halfway up stairs
  by conductor/brakeman; falls; s liable for negl. assistance)........................................................... 48
    If you have not done anything to bring about another's harm, then you have no duty to protect them;
    however, if you proceed to assist them anyway, your efforts must be reasonable, and not leave them
    in a worse position than they were before you gave them assistance................................................. 48
  Zelenko v. Gimbel Bros. (1935) (p. 563) (customer sick; taken to infirmary but no Dr; dies) ...... 48
    Inadequate efforts prevent others from rendering proper assistance; meddling creates duty. ............ 48

  RESTATEMENT (SECOND) OF TORTS – §324. DUTY OF ONE WHO TAKES CHARGE OF
  ANOTHER WHO IS HELPLESS ......................................................................................... 49
  Soldano v. O'Daniels (1983) (p. 564) ("Happy Jack's Saloon" patron dies in shooting when
  nearby  restaurant refuses to allow person to call police, or to call on his behalf;  negl.)......... 49
    If you know someone is assisting another person in an emergency, you must not negl. prevent the
    person from giving aid. See RST §327 below. .................................................................................. 49
  Restatement (Second) of Torts – §327. NEGLIGENTLY PREVENTING ASSISTANCE .......... 49
  DeShaney v. Winnebago County Department of Social Services (1989) (p. 564) ........................... 49
    It is not a 14th Amend. Due Process violation for social workers to fail to detect child abuse. ........ 49


Jeanette L. Goldsberry                                                                                                             Page xxvi
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  K.H. v. Morgan (1990) (p. 565) (child abused; put in foster care; abused by foster parents) ....... 49
    State has a duty to protect a child under state foster care if the state has reason to believe that foster
    parents are abusive; but duty limited by $ constraints, limits on professional judgment. .................. 49

Possessors of Land ................................................................................ 49
  ROBERT ADDIE & SONS (COLLIERIES), LTD. V. DUMBRECK (1929) (P. 565) (CHILD KILLED
  NO DS) ....................................................................................................................................... 49
    Different duties of care for people on your property: (1) by invitation – highest duty of care, take
    reasonable care to ensure that premises are safe (2) by license, express or implied – no duty to
    ensure premises are safe, but duty not to create trap or allow concealed dangers (3) trespasser – no
    liability for dangers, apart from some willful act (deliberate intention to harm, or reckless disregard).
    Child that dies in this case considered trespasser,  no Ds. .............................................................. 49
  Excelsior Wire Rope Co., Ltd. v. Callan (1930) (p. 569) (children, hands crushed, Ds) ................ 49
    Similar scenario to case above, but court finds reckless disregard because (1) no hedge/fence (2)
    right next to playground swarming w/children (3) children chased away from machine, but s did
    not make sure no kids were on wire. Two children had hands crushed between wire rope/pulley, Ds
    based on reckless disregard, even though the children were trespassers............................................ 49
  Gould v. DeBeve (1964) (p. 569) (child falls thru defective wire screen; sub-letters; but Ds) ....... 50
    Another reckless disregard exception, liability for trespassers: Child recovers from landlord
    after falling through defective wire screen in open window, in spite of the fact that he and his mother
    were staying temporarily as sub-letters of a tenant in violation of the tenant's lease (paying half, but
    no permission). Wire screen on window defective, tenant repeatedly asks for screen to be fixed,
    statute requires repairs to defective screens (to keep out flies) but court reads in additional purpose
    that surely safe screens also keep in children. .................................................................................... 50
  Hardcastle v. South Yorkshire Ry. & River Dun Co. (1859) (p. 370) (land next to hwy.) ............. 50
    Owners of land adjacent to hwy can be held to higher standard to keep land free from hazards in
    case passersby accidentally wander onto property from the main road, out of confusion. ................ 50
  Limits of Attractive Nuisance Doctrine (p. 570) ................................................................................ 50
    Applies to railway turntables, explosives, electrical conduits, smoldering fires, and rickety
    structures. Doesn't apply to rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks. ....... 50
  Twist v. Winona & St. Peter R.R. (1888) (p. 570) (a few courts rejected attractive nuisance) ...... 50
    The fear in some 19th c. courts was of a slippery slope with attractive nuisance – children can make
    anything dangerous. It is parents' duty to supervise and ensure that children are safe...................... 50
  Sioux City & Pacific R.R. v. Stout (1873) (p. 570) (most courts allowed attractive nuisance) ...... 50
    6-yr-old 's foot caught in RR turntable; evidence allowed re construction, location, management &
    condition of machine; jury allowed to find for  if not w/in reasonable care standard. ..................... 50

  RESTATEMENT (SECOND) OF TORTS – §339. ARTIFICIAL CONDITIONS HIGHLY
  DANGEROUS TO TRESPASSING CHILDREN – LESS BROAD THAN STOUT .................. 50
  LIMITATIONS ON LIABILITY RESULTING FROM LESS BROAD RESTATEMENT ...................... 50
  Loney v. McPhillips (1974) (p. 571) (boy drowns in ocean cove while trespassing) ....................... 50
    To encourage private landowners to make land available to public for recreation, no liability when
    13-year-old boy drowned while trespassing in an ocean cove owned by . ...................................... 50
  Holland v. Baltimore & Ohio R.R. (1981) (p. 572) (boy jumping trains) ........................................ 50
    No liability when 9-yr-old  injured while jumping trains – dangers obvious even at his age. ......... 50
  Merrill v. Central Maine Power Co. (1993) (p. 572) (boy burned while cooking eel) .................... 50
    No liability when 9-yr-old  climbed fence surrounding s power plant and badly burned himself
    while trying to cook an eel against a live wire. .................................................................................. 50
  Vega v. Piedilato (1998) (p. 572) (causation argument, in spite of "attractive nuisance") ............ 50
    No liability when 14-yr-old boy, jumping from roof to roof running from police, fell down an
    airshaft and died.  could have taken greater precautions, but, boy broke causal chain. .................. 50
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  Carmona v. Hagerman Irrigation Co. (1998) (p. 572) (Exception – broad, at least no SJ) ........... 50
    2-yr-old drowned in canal; no SJ; comparative calculations required per §339 (d) (B<PL) ............. 50

  RESTATEMENT (SECOND) OR TORTS – §332. INVITEE DEFINED ..................................... 51
  Lemon v. Busey (1969) (p. 573) (child dies at church where grandmother empl./no Ds) .............. 51
    Grandmother part-time church employee; 5-yr-old child allowed to come w/her to church for
    convenience of grandmother/parents; grandmother busy at work, child wandered off, fell to death
    from roof reached via unlocked fire escape. Ct. held that she was licensee, no recovery. ................. 51
  Post v. Lunney (1972) (p. 573) (house tour run by 3rd party; house owner liable for Ds) ............ 51
     paid $5 to tour 's house ($5 to 3rd party tour operator);  tripped on transparent vinyl rug
    protector; sues ; tr. ct. says no recovery, since  only licensee (applies old standard, no econ.
    advantage to  since $5 did not go to her); app. ct. reverses, treats  as public invitee..................... 51
  Hopkins v. Fox & Lazo Realtors (1993) (p. 574) (real estate agent liable for fall in tour) ............. 51
     falls down stairs during house tour w/realtor; owner not liable, but realtor is; duty to inspect home
    for dangerous conditions – realtor a quasi-possessor of the premises. ............................................... 51
  Rules related to public officials (p. 574) ............................................................................................. 51
    Generally, when public officials arrive at a home under ordinary circumstances, to collect
    garbage/deliver mail/routine inspections, courts tend to classify them as business visitors. ............. 51
  Mounsey v. Ellard (1973) (p. 574) (policeman delivering summons is implied invitee) ................. 51
    Police officer delivering summons implied invitee; reasonably safe route of access required. ......... 51

"Gratuitous" Promises ........................................................................... 51
  COGGS V. BERNARD (1703) (P. 589) (BRANDY CASKS BREAK DUE TO S NEGL. MOVING THEM
  FOR FREE) ................................................................................................................................. 51
    If  does something for  for free, 's act of trusting  to do it is consideration, and  will be held to
    a reasonable standard of care in completing the tasks, and will be responsible for Ds. ..................... 51
  Thorne v. Deas (1809) (p. 590) (failure to insure ship as promised, no consideration, no Ds) ...... 51
    Old rule, no action for non-feasance; now overruled under promissory estoppel. ............................. 51

  SECTION 90, RESTATEMENT (SECOND) OF CONTRACTS (P. 590) (PROMISSORY ESTOPPEL) . 51
  ERIE R.R. V. STEWART (1930) (P. 591) (RR WATCHMAN DID NOT WARN OF TRAIN; 
  INJURED) ................................................................................................................................... 51
     If you create an expectation by taking a certain precaution, and you cease taking that precaution
     w/out warning, if someone is injured relying on that precaution you are liable. ............................... 51

  MARSALIS V. LASALLE (1957) (P. 594) ( GETS RABIES SHOTS DUE TO S FAILURE TO
  CONFINE CAT) ........................................................................................................................... 52
      is liable for Ds for failure to take promised precautions if in reliance  fails to take other
     precautions that would otherwise have been taken, and sustains injuries. ......................................... 52

  RESTATEMENT (SECOND) OF TORTS – §323. NEGLIGENT PERFORMANCE OF
  UNDERTAKING TO RENDER SERVICES ....................................................................... 52
  Indian Towing v. United States (1955) (p. 597) (govt. liable for failure to take precautions)........ 52
    Under Federal Tort Claims Act, govt. liable under same obligations as private party acting under
    like circumstances. Therefore, failure to maintain lighthouse when a reasonable expectation created,
    resulting in reliance by barge and Ds, is actionable. .......................................................................... 52

  MOCH CO. V. RENSSELAER WATER CO. (1928) (P. 597) (WATER CO. NOT LIABLE FOR FAILED
  HYDRANT) ................................................................................................................................. 52
     If a 3rd party is injured as a result of a breach of K duty by one party to another, the 3rd party cannot
     get Ds for that failure unless there is reckless and wanton indifference. ........................................... 52

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  Restatement (Second) of Torts – §324A. LIABILITY TO THIRD PERSON FOR NEGLIGENT
  PERFORMANCE OF UNDERTAKING ........................................................................................... 52
  Strauss v. Belle Realty Co. (1985) (p. 602) (power failure; man falls down defective stairs) ........ 53
    Court refuses to apply §324A.  falls down defective stairs due in part to  power co.'s negl. in
    allowing power failure. However,  did not have direct K relationship w/ power co. ( realty co.
    had K w/power co.;  rented).  power co. not liable for 's injuries. Court has responsibility "to
    define an orbit of duty that places controllable limits on liability." ................................................... 53
  Doyle v. South Pittsburgh Water Co. (1964) (p. 603) (generic example applying §324A) ............. 53
    "[W]here a party to a contract assumes a duty to the other party to the contract, and it is foreseeable
    that a breach of that duty will cause injury to some third person not a party to the contract, the
    contracting party owes a duty to all those falling within the foreseeable orbit of risk of harm." ....... 53
  Harris v. Board of Water & Sewer Commissioners of Mobile (1975) (p. 603) ............................... 53
    Pure negligence theory: "given the fact that the hydrant was installed, the failure to use reasonable
    care in its maintenance, including the supplying of water thereto, is a sufficient breach of duty to
    provide a party with a cause of action under the theory of simple negligence." (irrespective of K,
    installation of hydrant creates duty to maintain it). ............................................................................ 53
  Weinberg v. Dinger (1987) (p. 603) (§324A applies to hydrants if insurance inadequate) ............ 53
    Water company immune from losses for negligent failure to maintain adequate water pressure for
    fire fighting, unless claims are uninsured or underinsured, in which case they are liable for whatever
    is not covered by insurance. But what if insurance cos. insert clauses in fire insurance Ks stating
    that insurance will not cover losses as a result of negl. hydrants? ..................................................... 53
  Cullings v. Goetz (1931) (p. 604) (OVERRULED) ............................................................................ 53
    No landlord liability for injuries to third parties due to landlord's negl. failure to repair. (Tenant has
    a duty to keep third parties away until problem is fixed.) OVERRULED. ....................................... 53
  Putnam v. Stout (1976) (p. 604) (guests of tenants can sue landlords for failure to repair) .......... 53
    Justification for adoption of Restatement §357: (a) tenants financially unable to make repairs (b)
    possession for limited term, no incentive to repair (c) landlord getting $ from relationship,  he
    should assume certain obligations with respect to the safety of others. ............................................. 53
  Restatement (Second) of Torts – §357. WHERE LESSOR CONTRACTS TO REPAIR ............ 53
  Nelson v. Union Wire Rope Corp. (1964) (p. 605) (ALTERED BY STATUTE) ............................ 53
     gets around worker's comp. by suing insurance company for negl. inspection and wins Ds. ......... 53
  820 ILCS 305/5(A) (West 1993) ........................................................................................................... 53
    No common law or statutory right to recover damages from the employer, his insurer, his broker,
    any service organization retained by the employer, his insurer or his broker to provide safety service,
    advice or recommendations for the employer or the agents or employees of any of them for injury or
    death sustained by any employee while engaged in the line of his duty as such employee, other than
    the compensation herein provided, is available to any employee who is covered by the provisions of
    this Act. .............................................................................................................................................. 53
  Reid v. Employers Mutual Liability Insurance Co. (1974) (p. 605) (explains 305/5(A)) ................ 53
    Explains 820 ILCS 305/5(A) on basis of (1) disincentive to conduct inspections that you are under
    no legal obligation to perform if you can be liable for Ds if the inspections negl. fail to uncover
    some safety problem (2) benefit to workers if inspections by insurance cos. continue. .................... 53

Special Relationships ............................................................................. 54
  RESTATEMENT (SECOND) OF TORTS (1965) (P. 606) – §315. DUTY TO CONTROL
  CONDUCT OF THIRD PERSONS, GENERAL PRINCIPLE .......................................... 54
  Weirum v. RKO General Inc. (1975) (p. 607) (disk jockey, first here gets $, drag race, dead)..... 54
    liable for grossly irresponsible inducements to 3rd party negl. behavior resulting in injury. ......... 54

  KLINE V. 1500 MASSACHUSETTS AVENUE APARTMENT CORP. (1970) (P. 608) ( ATTACKED,
  APT. HALL) ................................................................................................................................ 54
     Landlord has duty to protect tenants from foreseeable criminal activity on apt. premises. ............... 54
Jeanette L. Goldsberry                                                                                                                        Page xxix
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  Restatement (Second) of Torts – §344. BUSINESS PREMISES OPEN TO PUBLIC: ACTS OF
  THIRD PERSONS OR ANIMALS ..................................................................................................... 54
  Nivens v. 7–11 Hoagy's Corner (1997) (p. 614) (applies §344 above) .............................................. 54
     Special relationship exists between business owner and invitee, allowing Ds for injuries for failing
     to shield customers from criminal attacks (in a similar manner as Kline). ........................................ 54
  Peterson v. San Francisco Community College District (1984) (p. 615) (student assaulted) ......... 54
     College district has special relationship w/student; duty to protect student from foreseeable danger
     (in this case, criminal assault on stairway in parking lot, criminal concealed by bush) ..................... 54
  Clohesy v. Food Circus Supermarkets, Inc. (1997) (p. 615) (parking lot assault as above) ........... 54
     Supermarkets also have duties to customers to protect them from hidden parking lot dangers. ........ 54
  Lopez v. Southern California Rapid Transit District (1985) (p. 615) (common carriers have duty
  to passengers to protect them from assault) ....................................................................................... 54
     Court imposes liability for passenger assaults, suggests bus drivers should (1) summon assistance, or
     eject unruly passengers (2) be trained to recognize/deal w/dangerous situations. ............................. 54
  Frances T. v. Village Green Owners Association (1986) (p. 616) (volunteer condo bd. liable) ..... 55
     Kline liability extended to volunteer condo boards ( didn't see attacker because condo board failed
     to authorize installation of bright lights which would have enabled  to see attacker)...................... 55
  Ann M. v. Pacific Plaza Shopping Center (1993) (p. 616) (rape inside store; mall not liable) ...... 55
     High degree of foreseeability required to impose liability for actions of 3rd parties; a few security
     problems at mall inadequate for owners to be liable for rape inside leased store. ............................. 55
  Kuzmicz v. Ivy Hill Park Apartments, Inc. (1997) (p. 616) (apt. not liable for vacant lot) ........... 55
     If apts. are next to vacant lot (overgrown w/weeds, garbage) owned by someone else, apt. owners
     aware people use lot as shortcut, they are still not liable for any injuries ( mugged, economic
     benefit of apts. from shortcut not enough to impose liability, owner of lot liable). ........................... 55
  Burgos v. Aqueduct Realty Corp. (1998) (p. 617) (tenant beaten/robbed; causation inferred) .... 55
     For landlord to be liable for attack,  must show causation, (e.g., inadequate security was causative,
     the assailant gained access through unlocked door). But court can infer causation from
     circumstantial evidence (men not wearing masks, no entrances had functioning locks). .................. 55
  Wassell v. Adams (1989) (p. 618) (Posner) (rape victim in hotel 97% negl. for opening door) ..... 55
     Hotel has affirmative defense of contributory negl. when , thinking it was her fiancé at the door of
     her hotel room in the middle of the night, opens it to a stranger who rapes her.  claims she should
     have been warned of dangers of high crime area, but common sense to check before opening door in
     middle of night. Ds $850k, but  97% negl.,  $25.5k Ds............................................................... 55

  TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA (1976) (P. 618) (PATIENT KILLS;
  TOLD PSYCH.) ............................................................................................................................ 55
    Psychiatrists (at public hospitals) have duty to warn potential victim of patient's threats. ................ 55
  Beauchene v. Synanon Foundation, Inc. (1979) (p. 624) (no duty, private rehab center) .............. 55
    Private rehab center owed no duty of care to members of public when it accepted people referred as
    condition of parole; improper admittance/supervision alleged. Limits Tarasoff. ............................. 55
  Thompson v. County of Alameda (1980) (p. 624) (no duty when patient's threats general) ......... 55
    No duty under Tarasoff if threats are general (in this case, I will kill a young child) vs. specific (I
    will kill X). Juvenile released, kills child, mother and community not warned. ............................... 55
  Lundgren v. Fultz (1984) (p. 625) (beyond CA – duties esp. when psych. enables behavior)........ 55
    Psychiatrist convinces police to return guns to paranoid schizophrenic; responsible for harm. ........ 55
  Estates of Morgan v. Fairfield Family Counseling Center (1997) (p. 626) ...................................... 56
    When psychiatrist has limited interactions w/patient, e.g. outpatient, harder to determine duty but
    sometimes if psychiatrist can anticipate potential problems a duty is created. .................................. 56
  Restatement (Second) of Torts – §319. DUTY OF THOSE IN CHARGE OF PERSON HAVING
  DANGEROUS PROPENSITIES ........................................................................................................ 56
  Nasser v. Parker (1995) (p. 627) (ex-boyfriend leaves mental hospital, kills girl, + suicide) ......... 56
    Psychiatric hospital had no duty to warn potential victim when abusive ex-boyfriend left hospital,
    supposedly in for long-term treatment, but admitted voluntarily; sees psych. to get more pills, 4 days
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      later he kills her, then commits suicide. No duty (frosty towards Tarasoff). "[T]akes charge" §319
      requires more than ordinary doctor/patient relationship (e.g. custody). ............................................. 56


IX.          POCKETS OF STRICT LIABILITY .................................56
Intentional Torts Revisited (Trespass/Conversion) .............................. 56
  MOORE V. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (1988, 1990) (P. 630) (SPLEEN
  TAKEN) ...................................................................................................................................... 56
      App. Ct. (later rev'd): spleen taken from patient is conversion (strict liability). Conversion requires
      (1) 's ownership/right to possession at time of conversion; (2) 's conversion by wrongful act or
      disposition of 's P rights; and (3) Ds. Knowledge/bad faith not required. ...................................... 56
      Cal. Supr. Ct.: spleen taken from patient is not conversion (no P right in removed organs/ fluids),
      but failure to obtain informed consent in relation to possible Dr. financial motives. ........................ 56

  POGGI V. SCOTT (1915) (P. 631) ( PURCHASED BUILDING, FOUND BARRELS IN BASEMENT,
  SOLD THEM AS JUNK, BUT THEY WERE FILLED W/'S WINE; NO KNOWLEDGE OR INTENT, BUT
  STILL CONVERSION).................................................................................................................. 57
    "The foundation for the action of conversion rests neither in the knowledge nor the intent of the
    defendant. It rests upon the unwarranted interference by defendant with the dominion over the
    property of the plaintiff from which injury to the latter results." ....................................................... 57
  Fouldes v. Willoughby (1841) (p. 638) (trespass to chattels v. conversion) ..................................... 57
    Forcibly removing chattels can be trespass, but is not conversion absent claim of ownership. ......... 57
  Restatement (Second) of Torts – §922. RETURN OR TENDER OF RETURN OF
  CONVERTED CHATTEL .................................................................................................................. 57
    Note: conversion/trespass often overlap, but used to have different Ds. Conversion: forced sale, 
    pays full market price (rule now relaxed, see below). Trespass, return of chattel + Ds limited to
    reduction in value – full price only awarded in cases of complete destruction. ................................. 57

Dangerous Animals ................................................................................ 57
  BAKER V. SNELL (1908) (UK) (P. 639) (MAID BITTEN BY MASTER'S FEROCIOUS DOG; STRICT
  LIABILITY) ................................................................................................................................ 57
      2 causes of action for dog bite (1) liability for negl. failure to control animal (master or his servant)
      (in US, not if you are fellow servant); (2) strict liability for having dangerous animal. .................... 57

  RESTATEMENT (SECOND) OF TORTS – §509. HARM DONE BY ABNORMALLY
  DANGEROUS DOMESTIC ANIMALS............................................................................... 58
      One bite rule not quite accurate – dangerous propensities are enough for strict liability. ................. 58

  RESTATEMENT (SECOND) OF TORTS – §504. LIABILITY FOR TRESPASS BY
  LIVESTOCK........................................................................................................................... 58
  City and County of Denver v. Kennedy (1970) (p. 644) (no strict liability for zoo zebra) ............. 58
    Although zoos are not strictly liable for harm caused by animals (public policy weighs in favor of
    allowing zoos to keep dangerous animals; this is not true for private citizens). Possible negl. cause
    of action for inadequate barriers between animals and zoo patrons. .................................................. 58
  Rubenstein v. United States (1972) (p. 644) (bear mauled camper in Yellowstone Park) ............. 58
    No strict liability for bear attack in campground (1)  warned of danger by park authorities,  s
    not negl. (2) s discharged duty to warn,  no strict liability, assumption of risk............................ 58



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  Distress Damage Feasant (p. 644) (farmers want strict liability for animals D'ing P) ................... 58
    Farmers have a self-help mechanism known as "distress damage feasant" where they will confine
    someone else's animals or P that has come onto their land and is interfering with the productive use
    of it, and will not release the P irrespective of negl. w/out pmt. of fee. ............................................. 58
  Garcia v. Sumrall (1942) (p. 645) ( responsible for fencing land to keep out 's cattle) .............. 58
    In "grazing states" ranchers using public grazing land not responsible if cattle stray onto unfenced
    private P – shifts burden from ranchers to farmers. "Open range" makes sense in sparsely populated
    areas where ranching is main land use. "Closed range" makes sense in areas of varied land use
    (fences too expensive, better to negotiate permission to trespass). .................................................... 58

Abnormally Dangerous Activities .......................................................... 59
  SPANO V. PERINI CORP. (1969) (P. 647) (S' GARAGE/CAR D'ED FROM BLASTING, STRICT
  LIABILITY) ................................................................................................................................ 59
     Strict liability for all foreseeable consequences of blasting accidents, incl. D from vibrations. ........ 59
  Yukon Equipment v. Fireman's Fund Insurance Co. (1978) (p. 660) (strict liability, owner)....... 59
     Thieves igniting explosives to cover theft, doesn't sever causal chain for owner of explosives. ....... 59
  Laird v. Nelms (1972) (p. 651) (no govt. liability for D from vibrations of sonic boom) ................ 59
     No recovery for Ds to 's P due to sonic boom from military aircraft (1) Federal Tort Claims Act,
     govt. only liable for negl./wrongful act, no proof of negl., wrongful act requires trespass................ 59
  Restatement (Second) of Torts (1977) – ABNORMALLY DANGEROUS ACTIVITIES [generally
  a categorical approach to classification] .............................................................................................. 59
     §519. GENERAL PRINCIPLE [mink farm case also in Illus. 1] ................................................. 59
     Illustration: [endorses Madsen v. East Jordan Irrigation Co. (1942) (p. 659) (minks)] ............. 59
     §520. ABNORMALLY DANGEROUS ACTIVITIES ................................................................. 60
     §522. CONTRIBUTING ACTIONS OF THIRD PERSONS, ANIMALS AND FORCES OF
     NATURE ........................................................................................................................................... 61
     §523. ASSUMPTION OF RISK ..................................................................................................... 61
     §524. CONTRIBUTORY NEGLIGENCE .................................................................................... 61
     §524A. PLAINTIFF'S ABNORMALLY SENSITIVE ACTIVITY ............................................ 62
  Strict liability for consequences of airplane accidents to people on the ground (p. 656) ............... 62
     Overrules Boyd v. White (1954) (operating airplane not dangerous); and Wood v. United Air Lines,
     Inc. (1961) (mid-air collision causes D on the ground to  and her P, no recovery). ........................ 62
  Restatement (Second) of Torts – §520A. GROUND DAMAGE FROM AIRCRAFT .................. 62

  INDIANA HARBOR BELT R.R. V. AMERICAN CYANAMID CO. (1990) (P. 660) (DANGEROUS
  CHEMICALS SPILL FROM LEAK IN RR CAR, NO STRICT LIABILITY FOR SHIPPER, BUT NEGL.
  POSSIBLE) (POSNER) ................................................................................................................. 62
    Strict liability only applies in those cases where hazard is not preventable. Chemicals stored
    properly are not dangerous (unlike explosives that cannot be stored without some danger). ............ 62
    Abnormal dangerousness is ? of law, not fact – judges review de novo, apply law w/out jury. ........ 62
  Siegler v. Kuhlman (1972) (p. 663) (exception to above, gas truck explodes kills /totals car) ..... 62
    If evidence destroyed as result of explosion while hauling dangerous substance, strict liability....... 62

Nuisance – Private .................................................................................. 62
  Sykes' Definitions of three types of nuisance ..................................................................................... 62
    Nuisance per se – things that are simply illegal (brothel, crimes, violation of zoning laws). ............ 62
    Accidental nuisance – depends on circumstances (blasting in crowded neighborhood, etc.) ............ 62
    Intentional nuisance – doesn't require actual intent to harm, just that activity is conducted with
    knowledge that harm is occurring or is substantially certain to occur. .............................................. 62



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  Vogel v. Grant-Lafayette Electric Cooperative (1996) (p. 669) (stray voltage hurts cows) ........... 62
     Physical invasion is not necessary for nuisance. Also, not necessary that action is entirely unilateral,
     e.g. someone agrees to your presence on his P but not to the nuisance. Contributory negl. is an
     affirmative defense for unintentional nuisance. (See §821D). .......................................................... 62
  Restatement (Second) of Torts §821D. PRIVATE NUISANCE ....................................................... 63
     A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment
     of land................................................................................................................................................. 63
  Restatement (Second) of Torts. §3479. NUISANCE DEFINED..................................................... 63
  Morgan v. High Penn Oil Co. (1953) (p. 674)..................................................................................... 63
     Generic example – nauseating gases are a nuisance. ......................................................................... 63
  Martin v. Reynolds Metals Co. (1959) (p. 674) .................................................................................. 63
     Fluoride gas deposits on ground in solid form, makes land unusable – trespass not nuisance. (If
     court had not considered this trespass, nuisance would have precluded Ds due to SOL.) ................. 63
  Puritan Holding Co. v. Holloschitz (1975) (p. 675) (abandoned derelict P nuisance) .................... 63
     Judge considers abandoned building a nuisance in the context of urban renewal; neglect (inaction)
     might not otherwise be nuisance – proof of lower P values required to assess Ds. ........................... 63
  Merriam v. McConnell (1961) (p. 675) ............................................................................................... 63
     Bugs infesting s trees not fault of  because  did not specifically place them there. .................... 63
  Robinson v. Whitelaw (1961) (p. 675) ( failed to develop land after clearing it) .......................... 63
     No nuisance for  removing natural vegetation from land causing dust to blow onto 's P. ............. 63
  Adkins v. Thomas Solvent Co. (1992) (p. 675) ('s P values drop, fear of contamination) ............ 63
     Negative publicity about the possibility of contamination, thereby driving house prices down, is
     insufficient for nuisance provided that fears of contamination are unfounded. ................................. 63
  Restatement (Second) of Torts, §826. UNREASONABLENESS OF INTENTIONAL INVASION
  [seems to indicate really what is practically speaking a negligence standard].................................... 63
  Copart Industries, Inc., v. Consolidated Edison Co. (1977 NY) (p. 676) (new cars ruined from
  smog; no Ds, interprets §826 as negl. standard) ................................................................................ 63
     No Ds for 's smog ruining new car finishes, forcing 's new car prep shop out of business.
     Nuisance only (1) if invasion intentional/unreasonable (2) negl./reckless (3) abnormally dangerous
     activity. None of these apply to smog from otherwise compliant factory. ........................................ 63

  RESTATEMENT (SECOND) OF TORTS, §827. GRAVITY OF HARM–FACTORS
  INVOLVED ............................................................................................................................. 64
  Jost v. Dairyland Power Coop (1969 Wis.) (p. 676) (sulfur dioxide emissions D'ed 's land; Ds on
  strict liability basis, based on higher standard from §827) ............................................................... 64
      was aware of sulfur dioxide poisoning 's land; strict liability for creating nuisance. Irrelevant if 
     was observing industry standards of care. Extent/character of harm, etc. ......................................... 64
  Limited exception for minor nuisances to absolute property rights (Epstein) (p. 677) .................. 64
     Silly to redistribute wealth for tiny nuisances, which we all engage in on some level: (1) high
     admin. costs of resolution (2) high transaction costs to reassign rights (3) low value placed on rights
     by public (4) implicit in-kind compensation (we all pollute sometimes, live & let live). .................. 64
  Bamford v. Turnley (1862) (p. 677) (Bramwell's justification for "live and let live") ................... 64
     Just compensation vs. reciprocity/substantial D vs. inconvenience or irritation. We all want to
     burn trash, spray for weeds, make noise during house repairs, etc. – only when invasion is one-sided
     does law provide remedies. Collective benefit for small invasion. ................................................... 64
  Campbell v. Seaman (1876) (p. 679) (what is a nuisance is tied to the locality, ? of degree) ......... 64
     Noise/a bit of pollution in the big city is to be expected; a big factory spewing pollutants onto
     farmland that preclude its use as farmland is not acceptable. Case by case determination of nuisance
     based on balancing of factors – huge amount of pollution inappropriate anywhere. ......................... 64




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  FOUNTAINEBLEAU HOTEL CORP. V. FORTY-FIVE TWENTY-FIVE, INC. (1959) (P. 679)
  (HOTEL ALLOWED TO BUILD 14-STORY ADDITION CAUSING SHADOW ON NEIGHBORING
  HOTEL – NOT NUISANCE) .......................................................................................................... 64
    Court rejects common law easement for light and air that pass over property – justification, would
    inhibit growth of towns/industry. (But note statutory height regulations enforceable.) .................... 64
  Prah v. Maretti (1982) (p. 682) (house needs sun, solar power; 's lawful bldg. restricted) ......... 64
    Air/light easements sometimes allowed for public policy reasons – e.g., to encourage people to make
    use of solar power, a preexisting solar powered home is protected from subsequent development that
    would interfere with efficiency and functioning of solar power system.  forced to relocate planned
    home to a part of P that would not interfere w/'s solar power. ......................................................... 64
  Tenn v. 889 Associates, Ltd. (1985) (p. 683) (tall bldg next to P line of another tall bldg OK) ..... 65
    Middle of the road position – ct. does not preclude possible easements in air/light, but does not
    apply in circumstances where it is common to allow such obstructions. ........................................... 65
  Flaherty v. Moran (1890) (p. 684) (no spite fences allowed to shut out neighbor's light/air) ........ 65
    All individuals better off if each is denied the right to construct fences solely out of malice. .......... 65
  Kuzniak v. Kozminski (1895) (p. 684) ( allowed to move wood shed partly out of malice) ......... 65
    Spite fences rule construed narrowly; shed serves useful purpose even w/malicious relocation ....... 65
  Mathewson v. Primeau (1964) (p. 684) (no hog farm, but OK to have ugly junk yard) ................ 65
    No action for visual nuisance on neighbor's P, absent zoning; but action w/olfactory invasion. ....... 65

  ROGERS V. ELLIOT (1888) (P. 684) (CHURCH BELL NOISE HURTS RECOVERING ; WARNS ,
  BUT NO DS) ................................................................................................................................ 65
   If a "nuisance" would not cause substantial ill effects to ordinary person, no Ds for nuisance. ........ 65
  Westcott v. Middleton (1887) (p. 686) (undertaker washes dead body preservation boxes) ......... 65
   Abnormally sensitive  gets no Ds for being able to view undertaker's washing of boxes. .............. 65

  RESTATEMENT (SECOND) OF TORTS. §821F. SIGNIFICANT HARM ............................... 65
    There is liability for a nuisance only to those to whom it causes significant harm, of a kind that
    would be suffered by a normal person in the community or by property in normal condition and used
    for a normal purpose........................................................................................................................... 65
  Belmar Drive-In Theater Co. v. Illinois State Toll Highway Commission (1966) (p. 687) (drive-in
  movie theater affected by light from nearby toll-road service center; no Ds) ................................ 65
    Nuisance from artificial lights in toll-road service center do not constitute nuisance in spite 's
    inability to continue operating outdoor movie theater – abnormally sensitive activity. .................... 65
  Page County Appliance Center v. Honeywell, Inc. (1984) (p. 688) (computer radiation interferes
  w/TV sets in shop next door; TV not abnormally sensitive  Ds; rejects Belmar) ........................ 65
    Interference w/TVs due to radiation leak in defective computers is actionable, TVs common. ........ 65

  ENSIGN V. WALLS (P. 688) (1948) (NASTY DOG FARM FORCED TO MOVE AFTER YEARS IN
  SAME LOCATION) ...................................................................................................................... 65
    Majority view: no prescriptive right to create nuisance in remote area due to prior use, thereby
    preventing some later uses of vacant lots; later P owners can sue to enjoin nuisance. ...................... 65
  Campbell v. Seaman (quoted in Ensign above) (brick manufacturing plant shut down) .............. 65
    Preexisting brick manufacturing plant shut down, due to nuisance to new neighbors. ...................... 65
  Bove v. Donner-Hanna Coke Corp. (coke oven allowed to continue operation) ............................ 66
    Minority view (rejects Ensign): assumption of risk when voluntarily moving to residence in
    primarily commercial area; deference to zoning (all uses permitted by zoning/regulations allowed).
    But Ensign is in remote area (larger purpose of land use not yet fully determined) whereas Bove is in
    fully developed commercial area (established commercial purpose). ................................................ 66

  RESTATEMENT (SECOND) OF TORTS. §840C. [NUISANCE] ASSUMPTION OF RISK ... 66
     In an action for a nuisance the plaintiff's assumption of risk is a defense to the same extent as in
     other tort actions. – BUT –................................................................................................................. 66
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  RESTATEMENT (SECOND) OF TORTS. §840D. COMING TO THE NUISANCE ................ 66
    The fact that the plaintiff has acquired or improved his land after a nuisance interfering with it has
    come into existence is not in itself sufficient to bar his action, but it is a factor to be considered in
    determining whether the nuisance is actionable. ................................................................................ 66
  California Code of Civil Procedure, §731a (Bove, assumption of risk in commercial areas) ........ 66
    Protects businesses operating in commercial zones from nuisance lawsuits for lawful commercial
    activities, unless they are using unnecessary/injurious methods of operation. BUT concern: zoning
    authorities might not be concerned of effects outside of jurisdiction................................................. 66
  Varjabedian v. City of Madera (1977) (p. 692) (lawful garbage dump guilty of nuisance) ........... 66
    In spite of statutory authorization, California court says statutory authorization for garbage dump is
    not authorization for a particular level of odor. (But, what if smell is unavoidable?) ....................... 66
  Econ Law Suggestion (NOT the law) (p. 693) .................................................................................... 66
    1st party to invest should be protected; any unavoidable costs that arise as a result of the 1st party's
    activity should be borne by the 2nd party if 2nd party makes incompatible use of land. To avoid 1st
    party nuisance, Ds for reduction in value of 2nd party's unimproved land. ....................................... 66

  BOOMER V. ATLANTIC CEMENT CO. (1970) (P. 694) (POLLUTING CEMENT PLANT, DS NOT
  INJUNCTION) ............................................................................................................................. 66
    When the D caused by a nuisance is substantial, but closure of the offending activity is drastic given
    that it has some benefit to society, other options are available – the injunction can be postponed, or
    Ds can be awarded in lieu of injunction (option chosen in this case). Two types of Ds: temporary
    (s sue for add'l Ds as they arise; more accurate but high admin. costs); permanent (lump sum
    payment for present/estimated future Ds – not as accurate, weaker deterrent for future polluting
    (although drastic increase in pollution still actionable)) .................................................................... 66
    Note: most courts treat injunctions as presumptive if not absolute remedy...................................... 66
  Whalen v. Union Bag & Paper Co. (1926) (p. 696) (pulp from paper pollutes stream) ................. 66
    Lower riparian sues paper mill for small D to stream from paper pulp; injunction granted. Old NY
    doctrine that nuisance will be enjoined if there is any substantial D to . (overruled) ..................... 66
  Belkus v. City of Brockton (1933) (p. 700) ('s negl floods 's basement;  raises level, Ds) ........ 66
    Duty to mitigate nuisance Ds;  ct. reimburses reasonable efforts to prevent repeated D................ 66
  Stratford Theater, Inc. v. Town of Stratford (1953) (p. 700) (theater frequently flooded) ........... 66
    Ct. even awards Ds for 's repairs to 's P (broken sewer line) to prevent further nuisance D. ........ 66
  Madison v. Ducktown Sulphur, Copper, & Iron Co. (1904) (p. 701) (OLD CASE) ....................... 67
    Ct. won't allow injunction against polluter in remote area due to larger benefit to community. ....... 67
  Nicholson v. Connecticut Half-Way House, Inc. (1966) (p. 702) (no injunction, H-W house)....... 67
    No injunction against operation of facilities for parolees, AIDS patients, wayward kids, homeless;
    mere operation of facilities is not nuisance, but actionable if nuisance occurs. ................................. 67
  Pendoley v. Ferreira (1963) (p. 703) (pig farm given time to relocate/sell assets)........................... 67
    Courts have the discretion to delay enforcement of injunction to give  time to relocate etc. .......... 67
  Injunctions are not all or nothing choice; sometimes continued operation w/restrictions ............ 67
    Quinn v. American Spiral Spring & Manufacturing Co. (1928) (forced to relocate equipment on P)
    Hansen v. Independent School District No. 1 (1939) (night baseball games only if lighting limited,
    stop at reasonable hour, neighborhood parking limited) Pritchett v. Board of Commissioners (1908)
    (prison windows shuttered/shut so profanity cannot be heard outside).............................................. 67
  Spur Industries, Inc. v. Del E. Webb Development Co. (1972) (p. 704) (developer builds houses in
  remote area, near cattle feedlot; new homeowners unhappy w/odor/flies) ..................................... 67
    Econ law case (unusual): injunction against smelly  cattle feedlot (more out of pity for new
    homeowners), but developer caused situation (purchased land cheap near feedlot, then built homes
    for $$$).  ct. orders developer to compensate  for relocation/closing expenses. ......................... 67




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Nuisance – Public ................................................................................... 67
  ANONYMOUS (Y.B. MICH. 27 HEN. 8, F. 27, PL. 10) (1535) (ROAD BLOCKED, NO ACCESS TO
  HOME) ....................................................................................................................................... 67
    If public nuisance (actionable by king/state) disproportionately harms private pty, actionable. ....... 67
    Note: Private action is always appropriate for public nuisance in the cases of (1) total loss of land
    access (2) personal injuries. Otherwise, general vs. special Ds difficult distinction. ........................ 67
  Sykes' definition of PROSPECTIVE ECONOMIC ADVANTAGE ................................................ 67
    If  causes physical harm to party A, and mere economic loss to party B, B can't recover .............. 67

  RESTATEMENT (SECOND) OF TORTS. §821B. PUBLIC NUISANCE [WIDELY DIFFUSED
  HARMS] ..................................................................................................................................... 67

  RESTATEMENT (SECOND) OF TORTS. §821B. WHO CAN RECOVER FOR PUBLIC
  NUISANCE.............................................................................................................................. 67
  Smith v. City of Boston (1851) (p. 707) (Ry. closes street near 's home, other access, no Ds) ..... 68
  Malone v. Commonwealth (1979) (p. 707) (no direct hwy. access to gift shop due to construction,
  only accessible by connector road, no Ds) .......................................................................................... 68
    Partial loss of access to P not actionable, even if D results (traffic delays also not actionable). ....... 68

  UNION OIL CO. V. OPPEN (1974) (P. 708) (FISH KILLED FROM OIL POLLUTION, NO NUISANCE
  ACTION FOR FISHERMEN, BUT COURT ALLOWS ACTION BASED ON BREACH OF DUTY,
  FORESEEABLE EFFECTS OF POLLUTION) .................................................................................. 68
    No nuisance action for mere loss of economic advantage (e.g., no Ds for fish not yet caught). But
    duty to fishermen to drill prudently offshore to avoid negl. reduction of fish population. ................ 68
  Sykes' definition of PROSPECTIVE ECONOMIC ADVANTAGE ................................................ 68
    If  causes physical harm to party A, and mere economic loss to party B, B can't recover .............. 68
  Public Regulation of Common Pool Problem – CERCLA (Superfund) (p. 711) ............................ 68
    This is some tough legislation, retroactive against polluters, liable even for pollution permitted
    under regulation, no burden of causation – if you contributed, J&S liability. ................................... 68
  United States v. Alcan Aluminum Corp. (1992) (p. 712) (treated emulsion, tiny amounts of
  residual pollutants, still J&S liable unless pollutants "divisible" from other polluters) ............... 68
    Tough rule if every effort has been made to treat waste, and yet still J&S liable for cleanup. .......... 68


X.           PRODUCTS LIABILITY ...............................................68
The Restatements ................................................................................... 68
  RESTATEMENT (SECOND) OF TORTS (1966) §402A. SPECIAL LIABILITY OF SELLER
  OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER ........................... 68
     This has been somewhat superseded by the Rest. (3d) of the Law of Products Liability (1998)
     Standard was originally designed more around food and was adapted to other products. ................. 68
     f. Business of selling. [not housewife, occasional seller] ............................................................... 69
     g. Defective condition. [consumer contemplation] ........................................................................ 69
     h. [not defective if safe for normal handling and consumption] .................................................... 69
     i. Unreasonably dangerous. [more consumer contemplation] ...................................................... 69
     j. Directions or warning. [e.g., allergies, ingredients not obvious] ............................................... 70
     k. Unavoidably unsafe products. [drugs, no strict liability for harm if no negl.] ........................ 70
     m. "Warranty." … [doesn't matter, rule still applies (cannot disclaim)] .................................... 70
     n. Contributory negligence. [not defense, but assumption of risk] ............................................... 71



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  RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998) ................................ 71
  §1. LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM
  CAUSED BY DEFECTIVE PRODUCTS ............................................................................. 71
     This supersedes (extent still undetermined) Restatement (Second) of Torts (1966) §402A. ............. 71
     No caveats re bystander liability (able to recover); specificity re what exactly constitutes a defective
     product (1) manuf. defect (2) design defect (3) inadequate warnings/instructions. ........................... 71

  §2. CATEGORIES OF PRODUCT DEFECT ..................................................................... 71
  CASA CLARA CONDOMINIUM ASSOCIATION, INC. V. CHARLEY TOPPINO & SONS, INC. (1993)
  (P. 750) (SALTY CONCRETE RUSTS STEEL/D'ED HOUSES, NO DS W/SUB, K DS POSSIBLE W/G.C.
  MAJORITY US RULE) ................................................................................................................ 72
     Majority "[E]conomic loss rule prohibits tort recovery when a product damages itself … but does
     not cause personal injury or damage to any property other than itself." (p. 751) No K Ds against sub
     (no privity) – sub made no guarantee of product's suitability to . G.C. liable to , then g.c. can sue
     sub? Dissent strict liability appropriate when defective product is cause of harm, irrespective of the
     type of losses; salty concrete not suitable for any bldg. purposes. ..................................................... 72
  East River Steamship Corp. v. Transamerica Delaval, Inc. (1986) (p. 754) (S. Ct. adopts Casa
  Clara in maritime law, re no Ds for purely economic losses under products liability) .................. 72
     Supertanker engines malfunction, no tort Ds from engine manuf., tankers sold as units. ................. 72
  Saratoga Fishing Co. v. J.M. Martinac & Co. (1997) (S. Ct. allows products liability tort Ds for D
  to components added subsequent to sale of boat (separate P, not just econ. losses)) ..................... 72
     BUT tort Ds if D to other P occurs due to defect, incl. D to improvements to original product. ....... 72
  2-J Corporation v. Tice (1997) (warehouse collapse, Ds goods inside, prod. liab. Ds allowed) ..... 72
     P stored inside a warehouse does not become part of the P itself,  Ds available in tort. ................ 72
  Peters dissent in Seely, presenting minority view (Ds for pure econ. losses from prod. liab.)....... 72
     Sees distinction between econ. and non-econ. losses for strict products liability as merely arbitrary;
     Ds for econ. losses allowed when connected to physical injury, why not otherwise? ....................... 72
     There is an intermediate view, tort Ds only for sudden P loss (not disappointing performance)....... 72

  CAFAZZO V. CENTRAL MEDICAL HEALTH SERVICES, INC. (1995) (P. 760) (NO STRICT
  PRODUCT LIABILITY AGAINST HOSPITAL/DRS. FOR NON-NEGL. SELECTION OF DEFECTIVE
  PROSTHESIS; MEDICAL SVCS NOT GOODS) ............................................................................... 72
     (1) Drs./hospital provider of services, not "seller" subject to strict liability under §402A (2) even if
     seller status existed, public policy cuts against strict liability (Drs./hospital not in best position to
     police quality of medical devices, too many devices are used, time constraints). (No looking for
     deep pockets just because manufacturer of prosthesis is bankrupt/insolvent.) .................................. 72

Manufacturing and Design Defects Conceptualized ............................ 73
  Tillman v. Vance Equipment Co. (1979) (p. 767) (used crane sold as-is, seller not liable) ............ 73
    Seller of used goods is not treated same way as seller of new goods (1) new safety standards evolve
    (2) used dealer has less relationship with manufacturer (3) only liable if dealer sells both new and
    used versions of products (e.g., used and new Buicks, familiar w/product, etc.) ............................... 73

  POUNCEY V. FORD MOTOR CO. (1972) (P. 769) (USED CAR FAN BREAKS, CUTS ,  LIABLE
  FOR DEFECT) ............................................................................................................................. 73
    Expert testimony of manufacturing defect in used car, even when adverse expert testifies failure due
    to deformations after car left manufacturer, can lead to strict product liability. ................................ 73
  Dunham v. Vaughan & Bushnell Manufacturing Co. (1969) (p. 772) (delayed manifestation of
  defect OK, recovery still available under product liability) ............................................................. 73
     recovers even though he used 's hammer for 11 mos. before it chipped and injured him. ........... 73


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  Welge v. Planters Lifesavers Co. (1994) (p. 772) (peanut butter jar breaks, res ipsa Ds) ............. 73
     When other causes ruled out, res ipsa product liability even if no evidence of product defect.......... 73
  Jagmin v. Simonds Abrasive Co. (1973) (p. 773) (old grinding wheel breaks, hurts ) ................. 73
     Jury allowed to consider res ipsa for manufacturing defect in old grinding wheel (destroyed)......... 73
  State Farm Fire & Casualty Co. v. Chrysler Corp. (1988) (p. 773) (electrical wires in car cause
  fire, either manufacturer defect or subsequent negl. dealer repairs, no res ipsa) .......................... 73
     No res ipsa if there is another possible explanation for accident besides product defect. .................. 73

  RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998) §3.
  CIRCUMSTANTIAL EVIDENCE SUPPORTING INFERENCE OF PRODUCT
  DEFECT .................................................................................................................................. 73
  VOLKSWAGEN OF AMERICA, INC. V. YOUNG (1974) (P. 774) (CAR DEFECT IN CRASH LEADS
  TO DEATH) ................................................................................................................................ 73
    Car manufacturers are liable for negl. product design if they do not take reasonable steps to ensure
    that, in the event of a crash, the car won't add to injuries by causing a "second collision" of parts of
    car that come loose, or are positioned to increase likelihood of injury. ............................................. 73
  Evans v. General Motors Corporation (1966) (p. 775) (quoted in Young, X-frame not negl.) ...... 74
    (Overruled/all jurisdictions) No duty to design to minimize risk of injury in event of crash. ........... 74
  Larsen v. General Motors Corporation (1968) (p. 776) (steering column possibly negl.) .............. 74
    (combines w/Young to form law) Duty to design to minimize risk (but in this case duty met). ....... 74

  RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998) §16. INCREASED
  HARM DUE TO PRODUCT DEFECT ................................................................................ 74
  Dawson v. Chrysler Corp. (1980) (p. 781) (car's frame enables pole to penetrate car; policeman
  left a quadriplegic, but rainy rd., driving fast – ct. awards Ds but w/misgivings) .......................... 74
     Misgivings about giving Ds based on negl. defective product design when fixing problem would
     cause other problems. Stiffer frame lowers harm in some instances (some side-impact collisions),
     but causes harm in others from lack of shock absorption (head-on collisions). ................................. 74
  Blankenship v. General Motors Corp. (1991) (p. 781) (WV, jury determines negl.) ...................... 74
     Ct. considers it dangerous to let juries second-guess govt. safety standards (e.g., just because
     manufacturer followed govt. safety standards is no guarantee jury won't find negl. design), but
     allows it because (1) all jurisdictions allow juries to decide,  cost built into car, a form of
     insurance (2) not allowing Ds would take from residents of WV and give to other states. ............... 74

  LINEGAR V. ARMOUR OF AMERICA (1990) (P. 782) (BULLET-PROOF VEST, NO SIDES, NO DS,
  MINORITY)................................................................................................................................. 74
     Patent danger rule: if you select product w/obvious danger, manufacturer not liable for Ds. ........... 74

  MICALLEF V. MIEHLE CO. (1976) (P. 786) (PRINTING PRESS, OBVIOUS DANGER, STILL DS,
  MAJORITY) ................................................................................................................................ 75
    If danger open/obvious, ct. rejects patent danger rule: (1) B<PL (2) customary safety devices in
    industry. Intended/reasonably foreseeable use. Manuf. in best position to cure defects. ................. 75
  Dreisonstok v. Volkswagenwerk A.G. (1974) (p. 787) (VW van not defective) ............................... 75
    VW van not defective just because it doesn't provide as much protection from head-on collision as
    passenger car; design enables van to carry cargo in small vehicle. Risks apparent. ......................... 75
  Delvaux v. Ford Motor Co. (1985) (p. 787) (convertible car not defective) ..................................... 75
    Lack of rollbar protection OK on convertible; would eliminate open top, main advantage. ............. 75
  Todd v. Societe Bic (1994) (p. 787) (1994) (girl killed from Bic lighter fire; no Ds) ....................... 75
    Consumer contemplation test. Ordinary consumer expects lighter to start fire. Dangerous, but not
    defective. (in Tennessee, paired w/B<PL test, reasonableness of sale of product). .......................... 75



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  BARKER V. LULL ENGINEERING CO. (1978) (P. 788) (FORKLIFT ACCIDENT, CT. REJECTS
  UNREAS. DANGER)..................................................................................................................... 75
    Standard for defective design, either (1) product fails to perform as ordinary consumer would
    expect, if used in intended/reasonably foreseeable manner (2) design benefits don't outweigh risks
    (Wade Risk / Utility Test) burden of proof on  (only in CA). Not "unreas. danger". ..................... 75
  Azzarello v. Black Bros. Co., Inc. (1978) (p. 792) (manufacturer not insurer, but guarantor) ..... 75
    Ct. rejects unreasonably dangerous standard, but only for intended use (omits foreseeable). ........... 75
  Wilson v. Piper Aircraft Corp. (1978) (p. 793) (carburetor icing problems not defect, FAA) ...... 75
    (1) Regulatory compliance strong evidence in favor of manufacturer. (2) Incorrect to isolate one
    element of design that, if changed, would have prevented accident, w/out examining in context of
    other problems or additional expenses that would arise as a result of modification. ......................... 75
  Bruce v. Martin-Marietta Corp. (1976) (p. 794) (airplane seats OK in 1952, no Ds) ..................... 75
    Court measures state of art (factor) at time product enters commerce, not at time of accident. ....... 75
  Mix v. Ingersoll Candy Co. (1936) (p. 795) (OLD RULE – bones natural,  no liability) ............ 75
    Bones (meat) pits (fruit) etc. natural to product,  no manufacturer liability (overruled.) ............... 75
  Mexicali Rose v. Superior Court (1992) (p. 795) (NEW RULE – negl. standard for bones) ......... 75
    Bone in chicken enchilada judged by negl. standard, not strict liability as for foreign objects.
    Dissent argues for uniform strict liability, equal for foreign and "natural" unexpected objects. ....... 75

  RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998) §2. CATEGORIES
  OF PRODUCT DEFECT ....................................................................................................... 75
     Comment h. Consumer expectations: food products and used products. ........................................ 75

  WADE RISK / UTILITY TEST (1973) (P. 795) (APPLIED IN BARKER) ....................................... 76
     (1) usefulness/desirability of product (2) safety (probability/seriousness of injury) (3) safer substitute
     (4) possible to remove unsafe elements w/out impairing usefulness or making it too expensive (5)
     can danger be avoided by user exercising reasonable care (6) user's anticipated awareness of
     dangers, due to public awareness or product warnings/instructions (7) ability to spread loss from
     strict liability for injuries by raising price/carrying liability insurance. ............................................. 76
  O'Brien v. Muskin Corp. (1983) (p. 796) (vinyl pool slippery, but no clear alternative, still
  allowed to go to jury on Ds, OVERRULED BY STATUTE) ........................................................... 76
     On appeal, ct. allows design issues to go to jury based on Wade test – not necessary to show
     alternative above-ground pool design not using vinyl (perhaps risk outweighed utility). ................. 76

  RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998) §2. CATEGORIES
  OF PRODUCT DEFECT ....................................................................................................... 76
     Comment d. Requires "that plaintiff show a reasonable alternative design … even though the
     plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not
     have been marketed at all." ................................................................................................................ 76
     Note: later changes in design of product are generally not admissible as evidence of defect. ......... 76

Inadequate Warnings .............................................................................. 76
  MACDONALD V. ORTHO PHARMACEUTICAL CORP. (1985) (P. 805) (MANUFACTURER OF
  BIRTH CONTROL PILLS HAS DUTY TO WARN BOTH PATIENT/DR. OF POTENTIAL PROBLEMS,
  DUE TO ACTIVE PATIENT DECISION) ......................................................................................... 76
     Most prescription medicines only require manuf. warning to Dr., but in the case of birth control,
     manuf. warning req'd for patient due to (1) generally healthy young consumer (not necessary to use
     product) (2) serious possible side effects (3) active role of patient in making decision, and relatively
     passive role of Dr. (4) Dr. only sees patient once a year to renew prescription, not enough for
     adequate warning. Also, FDA compliance does not preclude Ds. .................................................... 76



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  McKee v. American Home Products Corp. (1989) (p. 812) (pharmacist – no duty to warn) ........ 76
    Pharmacist does not have duty to warn patient of risks unless pharmacist has personal knowledge
    that drug is contraindicated for patient (e.g., aware of alcoholism). .................................................. 76
  Davis v. Wyeth Laboratories, Inc. (1968) (p. 812) (manuf. has duty to warn patient of dangers of
  vaccination, esp. when w/manuf. knows administered by pharmacist w/out Dr.) .......................... 76
    Manuf. of vaccine has direct duty to warn patient of risks, even if chances of risk occurring are
    small, but consequences great. Esp. true when manuf. promotes vaccine and knows it will be
    administered w/out a Dr. present to warn – warnings on bottle never seen by patient. ..................... 76
  Reyes v. Wyeth Laboratories, Inc. (1974) (p. 812) (same situation, goes to jury) ........................... 76
    Jury entitled to decide if lack of warning caused injury, but w/rebuttable presumption it did. ......... 76
  Problems with large damage awards paid by manufacturers in failure to warn patients ............. 76
    (1) doesn't factor in reduced risk from use of vaccine ( manuf. pays all Ds when perhaps only 1/3
    causative) (2) raises vaccine costs thereby discouraging people from getting them .......................... 76
  Congress responds with complex system of no fault compensation for vaccine problems ............ 76
    But even though amounts payable under system are capped for the actual victim if the victim takes
    advantage of the system (option to sue in lieu of automatic payment), parents/other affected parties
    can still sue even if victim elects to receive payment under the system. ........................................... 76

  RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998) §6. LIABILITY OF
  COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM CAUSED BY DEFECTIVE
  PRESCRIPTION DRUGS AND MEDICAL DEVICES ..................................................... 77
  Ayers v. Johnson & Johnson Co. (1991) (p. 817) (baby inhales baby oil, permanent D) ............... 77
    When it is generally known that something is dangerous to babies if ingested, but the harm generally
    known is mild, and more serious harm is possible, manuf. has duty to warn. ................................... 77
  Garrison v. Heublein (1982) (p. 818) (vodka manuf., no duty to warn of alcoholism) ................... 77
  Hon v. Stroh Brewery Co. (1987) (p. 818) (but duty to warn of pancreatic problems from
  moderate ongoing use of alcohol, not commonly known) ................................................................. 77
    No duty to warn of commonly known product dangers, but duty if not generally known. Note:
    now, government warning on alcoholic beverages (1) don't use if pregnant, may cause birth defects
    (2) impairs ability to drive/operate machinery (3) may cause health problems. ................................ 77
  Jackson v. Coast Paint & Lacquer Co. (1974) (p. 818) (EARLY CASE – warning to use
  w/ventilation did not imply increased danger of fire, only dangers of inhalation) ......................... 77
    Case goes to jury in spite of manuf. and employer warnings, due to unexpected consequence. ....... 77
  Cotton v. Buckeye Gas Products Co. (1988) (p. 819) (RECENT CASE – short warning on
  product w/longer brochure given to employer considered adequate in context) ............................ 77
    Sometimes, the most effective warning in hindsight is not best in the vast majority of cases. A short,
    large print warning on product (in this case, warning that gas in canister flammable, don't store in
    living areas) plus brochure containing detailed warnings given to employer is generally more
    effective than small print warning containing every possible eventuality. ........................................ 77
  Pavlik v. Lane Limited/Tobacco Exporters International (1998) (p. 820) (decedent died from
  inhaling butane intentionally; rebuttable presumption that failure to warn causative) ................ 77
    Manuf. warning "DO NOT BREATHE SPRAY" combined w/mom's warning not to inhale
    apparently insufficient to overcome rebuttable presumption that failure to specifically warn against
    intentional inhalation was proximate cause of decedent's death – jury gets to decide. ...................... 77
  Uniroyal Goodrich Tire Co. v. Martinez (1998) (p. 821) (16" tire explodes when mounted to
  16.5" rim – in spite of warning, goes to jury because better design could prevent explosion) ...... 77
    Clear warnings not enough to preclude judgment in favor of  on basis of fact that different design
    could remove risk entirely (safer bead design could have kept tire from exploding). ....................... 77




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XI.          DAMAGES ...............................................................78
Compensatory Damages ........................................................................ 78
  MCDOUGALD V. GARBER (1989) (P. 853) (COMATOSE  – NO AWARENESS, NO
  PAIN/SUFFERING DS)................................................................................................................. 78
    Loss of enjoyment of life Ds (1) combined w/pain and suffering (2) require awareness. ................. 78
  Melvin Belli, The "per diem" rule (1952) (p. 859) ($5 per day, vs. $60k per life) .......................... 78
    Break down pain/suffering Ds into daily amt., helps jury understand meaning of large award. Note:
    some jurisdictions allow this argument w/caution, others only in closing arguments. ...................... 78
  Other options (matrix, insurance, Ds for increased risk of future injury) ...................................... 78
    (1) D schedule/matrix to allow set amounts for Ds based on circumstances (2) insurance policies that
    pay out Ds now, before any accident, and subrogate pain and suffering D claims – you would rather
    have the extra money now while you can still enjoy it?? because there is no real hope that you will
    ever be totally restored (3) recovery for increased risk of future injury (e.g., not able to exercise
    because of amputation,  risk of heart attack) (Posner likes). .......................................................... 78

  O'SHEA V. RIVERWAY TOWING CO. (P. 862) (1982) (INFLATION BUILT INTO FUTURE WAGE
  DS OK) ..................................................................................................................................... 78
     Two alternatives: (1) add inflation to both base discount rate (allows for interest earned on Ds) and
     lost wages; or (2) don't add inflation into base discount rate or wages ( evens out). Other
     adjustments to wages – increase due to experience, or probabilities that person would have stopped
     working. Can be calculated as flat adjustment, or yearly (more accurate/time consuming, less
     generous at extreme end, wages higher but also likelier employment ceased). ................................. 78
  (1) Prejudgment Interest / (2) Taxation of D awards / (3) Imputed Income (p. 870) ..................... 78
     (1) sometimes interest allowed from time of accident to date of award to avoid any dilatory tactics
     resulting in payment being delayed (and consequent interest earnings for ) – but interest is taxable
     (unlike award for actual Ds). (2) Ds in compensation for personal injuries (incl. lost wages) not
     taxable (but punitive Ds are taxable) – older cases don't take this into acct. in calculating Ds, some
     recent cases do (but not always submitted to jury, sometimes at discretion of judge). (3) if
     housewife injured, family can receive compensation for lost services, pmt. of replacement (also, Ds
     for loss of ordinary pleasures, e.g., playing violin). ........................................................................... 78

Punitive Damages ................................................................................... 79
  KEMEZY V. PETERS (1996) (P. 909) ( REQ'D TO SUBMIT EVIDENCE OF NET WORTH FOR D
  REDUCTION) .............................................................................................................................. 79
    Reasons for punitive Ds (1) compensatory Ds often don't fully compensate, Ds too difficult to prove
    (2) underdeterrence (a) cold cost benefit analysis, needs extra disincentive (b) forces market
    transactions e.g. no stealing car to pay for it later, plus allowance for fact you might not get caught
    (3) expresses community's abhorrence (4) relieve pressure on criminal justice system (5) s can
    bring in evidence of rich  but burden on  to bring in evidence of poverty. ................................... 79
  Day v. Woodworth (1852) (p. 912) (punitive Ds upheld for trespass/destruction of dam)............. 79
    When trespass Ds wanton/malicious, punitive Ds OK. ...................................................................... 79
  Owens-Corning Fiberglas Corp. v. Garrett (1996) (p. 913) (no punitive Ds for asbestos) ............ 79
    Majority overturns punitive Ds, 2-part test (1) actual knowledge of defect (2) deliberate disregard
    of the consequences (manuf. tried to prevent exposure to dust, added warning labels before govt.
    req'd), Minority alternatives to asbestos available, jury verdict not wrong....................................... 79
  Fischer v. Johns-Manville Corp. (1986) (p. 914) (corporate asbestos s held to punitive Ds)....... 79
    Court ignores (1) possible time gap between culpable employees and corporate liability (2) part of
    risk of stock investing, plus shareholders reap benefits of wrongful activity (3) caps should be
    nationwide, otherwise states creating caps just gives money to the states that don't. ........................ 79
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  Jackson v. Johns-Manville Sales Corp. (1986) (p. 915) (asbestos case, like Kemezy) .................... 79
    Corporate s, burden to produce evidence of insolvency in possible reduction of punitive Ds. ....... 79
  Gryc v. Dayton-Hudson Corp. (1980) (p. 915) (Ds for flannelette, infant burned in fire) ............. 79
    Commercially available flame retardants, though not in use in industry, sufficient to allow punitive
    Ds, in spite of fact govt. standards met (industry influence created low standards). ......................... 79
  Grimshaw v. Ford Motor Co. (1981) (p. 916) (Ford liable for Pinto, Ds $3.5m, cost/benefit) ....... 79
    Malice: a motive and willingness to vex, harass, annoy or injure another person. ........................... 79
    Malice inferred from acts w/willful, intentional, conscious disregard of possible results. ................ 79
  GM verdict, fuel-tank fire, $4.9 billion verdict ($4.8 punitive), reduced to $1.09 billion............... 79
    Evidence that driver was drunk, and overall safety record was not allowed into trial by tr. ct. ......... 79
  Tetuan v. A.H. Robins Co. (1987) (p. 917) ($7.5m punitive Ds upheld)........................................... 79
    "Malicious silence" in relation to problems w/IUD,  forced to have hysterectomy. ........................ 79
  Statutory Responses to Limit Punitive Damage Awards (p. 917) .................................................... 79
    NH – total bar on punitive; Conn. – 2x; Fla. – 3x unless extraordinary circumstances, + pmt. of 35%
    of punitive D award to state funds (upheld as constitutional); but sim. provision not upheld in CO
    (taking of 's private P w/out just compensation); Cal. – bifurcated trial on liability/Ds if request by
    ; KS – jury determines liability for punitive Ds, judge decides amt. ............................................... 79

  BMW OF NORTH AMERICA V. GORE (1996) (P. 918) (BMW SOLD AS NEW, BUT D'ED,
  REPAINTED) .............................................................................................................................. 79
     Huge Ds award for repainting of D'ed car/subsequent sale as new ruled unconstitutional,
     14th Amend. Due Process Clause. (1) no fair notice of punishment/severity (2) "grossly excessive"
     (a) degree of reprehensibility (b) disparity between harm/potential harm and punitive Ds (c)
     difference between remedy and civil penalties in comparable cases ($2k). ....................................... 79
  Browning Ferris Industries of Vermont, Inc. v. Kelco Disposal (1989) (p. 924) ............................. 80
     S. Ct. rejected challenge to punitive D award re 8th Amend. prohibition on excessive fines............ 80
  Pacific Mutual Life Insurance Co. v. Haslip (1991) (p. 924) (3rd pty fraud, pun. Ds upheld) ...... 80
     S. Ct. allowed $1m punitive Ds for insurance co. failing to renew policy, agent didn't remit $. ....... 80
  TXO Production Corp. v. Alliance Resources Corp. (1993) (p. 924) (large pun. Ds award allowed
  (ratio +500%) for potential harm if wrongful plan had succeeded) ................................................ 80
     S. Ct. allowed +500% Ds for slander; not cut & dried formula, adaptable to circumstances. ........... 80
  Honda Motor Co., Ltd. v. Oberg (1994) (p. 925) (some judicial review required for pun. Ds) ..... 80
     OR system invalid – no review of jury's pun. Ds unless no evidence for verdict, too arbitrary. ....... 80
  Responses to BMW (p. 925) ................................................................................................................. 80
     (1) economic approach (for D multiplier, incorporate risk wrongdoer will escape punishment) (2)
     behavioral econ law e.g. Sunstein, determinants of shared outrage agreed upon by participants in
     study, but not D awards; inability to translate moral judgments into $ amounts. (3) BMW only
     applies in extreme cases (e.g. 500x compensatory D award). ............................................................ 80




Jeanette L. Goldsberry                                                                                                            Page xlii
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       JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
I.     INTENTIONAL TORTS
                              SYKES' DEFINITION OF BATTERY
A harmful or offensive contact with a person resulting from an act that is intended to cause
the plaintiff or a third person to (a) suffer that contact; or (b) suffer apprehension that
such a contact is imminent.
    BATTERY, TRESPASS, CONVERSION WHERE BAD RESULTS UNINTENDED
Vosburg v. Putney (1891) (p. 4) (weak boy kicked at school, microbes)
    Unlawful touching intended to cause harm adequate for battery, even if harm intended is
    milder than harm that occurs.
(per Second Restatement): "Intending an offensive contact, A lightly kicks B on the shin."
You have to take the  as you find him, in an intentional tort.
Garratt v. Dailey (1955) (p. 7) (arthritic lady, kid pulls chair away, she falls)
    Even if you do not directly contact someone and cause their injuries, if you do something
    which will cause them offensive contact there is a battery.
Slow arthritic lady gets chair pulled out from under her while in process of sitting – fractures hip.
Five year old held responsible – children responsible for their intentional torts.
Restatement (Third) of Torts – RTT:GP §1 INTENT (p. 8)
    A person intentionally causes harm if the person brings about that harm either purposefully
or knowingly.
         (1) Purpose. A person purposefully causes harm if the person acts with the desire to
    bring about that harm.
         (2) Knowledge. A person knowingly causes harm if the person engaged in action
    knowing that harm is substantially certain to occur.
Talmage v. Smith (1894) (p. 9) (stick thrown at trespasser, 3rd party injured)
    If A intends to hit B and hits C, A responsible for C's injuries – Transferred Intent.
 throws stick at a trespasser, hits  instead –  responsible for  injuries ( also trespasser).
Sykes' Definition of Trespass
    Entry on property has to be intentional for trespass (not like a polluter accidentally having
    pollution seep onto your property). However, if the polluter knows with substantial certainty
    that the pollution will seep onto the property, then the polluter has trespassed.
Dougherty v. Stepp (1835) (p. 9) (generic example)
    Any unauthorized, and therefore unlawful, entry is trespass.
"[I]t is an elementary principle, that every unauthorised, and therefore unlawful entry, into the
close of another, is a trespass. From every such entry against the will of the possessor, the law
infers some damage if nothing more, the treading down the grass or the herbage, or as here, the
shrubbery."
Brown v. Dellinger (1962) (p. 10) (children ignite fire in grill while trespassing in garage)
    "Knowledge" requirement fulfilled – children trespass, start fire with matches, responsible.
 children (ages 7, 8) trespass, ignite fire in grill in 's garage; it escapes; children responsible.
Cleveland Park Club v. Perry (1960) (p. 10) (ball inserted in pool drain; suction; disaster)
    Intent requirement is to commit act and not intent to cause harm.
 child (age 9) trespasses, doesn't know suction on in 's pool, removes drain cover, sticks in
ball, damages pool – held responsible. "[T]he intent controlling is the intent to complete the
physical act and not the intent to cause injurious consequences."
Maye v. Tappan (1863) (p. 11) ( tells  property is 's;  mines gold; restitution to )
    If trespass/conversion unintentional, restitution allowed (less labor/extraction, no punitive)
 thinks land is his ( even told him so); refines gold;  reimbursed for value of gold, less cost of
extraction and refinement. (But, D affected if intentional – then no reimbursement for labor.)
Jeanette L. Goldsberry                                                                           Page 1
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                                       OFFENSIVE BATTERY
Alcorn v. Mitchell (1872) (p. 65) ( spits at close of court case;  awarded Ds)
    Malicious spitting is offensive battery – damages awarded for lost dignity.
 deliberately spits at  at close of trespass case; spitting malicious; judgment for $1,000 aff'd.
Restatement (Second) of Torts – §18 BATTERY: OFFENSIVE CONTACT (p. 66)
    (1) An actor is subject to liability to another for battery if
         (a) he acts intending to cause a harmful or offensive contact with the person of the other
    or a third person, or an imminent apprehension of such a contact, and
         (b) an offensive contact with the person of the other directly or indirectly results.
    (2) An act which is not done with the intention stated in Subsection (1)(a) does not make the
actor liable to the other for a mere offensive contact with the other's person although the act
involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the
risk threatened bodily harm.
Respublica v. De Longchamps (1784) (p. 66) (French ambassador insulted)
    Strike cane – insult – battery, if intentional.
 strikes cane of  (insult) – offensive battery. (Idea – illegal, to avoid escalation of violence.)
Rule: you strike something intimately attached to someone and it is a battery, if intentional.
Richmond v. Fiske (1893) (p. 66) (Crazy milkman enters house, awakens  – battery)
    Mad milkman – enters house, shakes  awake to present bill – trespass and battery.
                               SYKES' DEFINITION OF ASSAULT
An act done with the intention to cause a battery, or apprehension of imminent battery,
which creates such an apprehension.
                                               ASSAULT
I. de S. and Wife v. W. de S. (1349) (p. 61) (tavern door struck, then ax waved)
     struck door of closed tavern with hatchet;  stuck head out and ordered him to stop; again
    swung hatchet in threatening manner (did not hit woman); assault but not battery.
Tuberville v. Savage (1669) (p. 62) (I would strike you if the judges weren't in town…)
    If a condition is placed on a threat that, if taken at face value, prevents its fulfillment in the
    immediate circumstances, the act is not assault. There has to be present intent to harm.
 gets hit by  after  says that if the judges were not in town he would strike , then  hits him
in "self-defense" – not self-defense, because judges were in town, and  no threat.
Allen v. Hannaford (1926) (p. 62) (crazy landlady enforces lien on furniture w/gun – Ds)
    Assault with unloaded gun still assault – causes apprehension.
Crazy landlord  with lien on furniture;  trying to move furniture;  brandishes gun and
threatens to shoot  and movers; gun not loaded; still assault, apprehension.
Brooker v. Silverthorne (1919) (p. 64) (crazy man threatens telephone operator, no Ds)
    Even when conduct objectionable, conditional threats cannot be taken as unconditional.
Crazy man  tells  telephone operator, "If I were there, I would break your God damned neck."
But,  wasn't there. Conduct horrible, but no assault.
Restatement definition of Assault – §21. ASSAULT
    (1) An actor is subject to liability to another for assault if
         (a) he acts intending to cause a harmful or offensive contact with the person of the other
    or a third person, or an imminent apprehension of such a contact, and
         (b) the other is thereby put in such imminent apprehension.
Apprehension distinguished from fear in Restatement definition – no fear necessary.



Jeanette L. Goldsberry                                                                         Page 2
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       JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
II.    DEFENSES TO INTENTIONAL TORTS
       MEDICINE – IMPLIED CONSENT / EMERGENCY AND NON-EMERGENCY
Mohr v. Williams (1905) (p. 12) (right ear operated on instead of left – nominal Ds)
    Generally, implied consent in surgery is only given for actions related to the specific invasion
    of the body necessitated by the surgery. You cannot operate on left ear if permission given
    for right, unless it is an emergency.
After  was under anesthesia,  doctor operated on left instead of right ear (left ear more serious)
– permission only given for right. Some hearing loss – but surgery considered successful.
Nominal damages were awarded, due to the lack of wrongful intent on the part of the physician.
(not mentioned in textbook).
Now, consent forms are used, to deal with some issues prior to surgery.
Allore v. Flower Hospital (1997) (p. 14) (generic example)
    Implied consent in emergency – a legal fiction, under assumption  would consent if able.
"Medical treatment also will be lawful under the doctrine of implied consent when a medical
emergency requires immediate action to preserve the health or life of the patient."
Kennedy v. Parrott (1956) (p. 16) (cysts punctured during appendectomy; phlebitis; no Ds)
    If general surgery, minor problem noted as result of incision, implied consent given for
    routine correction, even if bad (unusual) side effect occurs.
 doctor performs appendectomy on ; notices cysts; punctures cysts; no negligence, and also no
trespass, even though blood vessel cut causing painful phlebitis to  – OK to do general cleanup
of unforeseen problems during major surgery.
O'Brien v. Cunard Steamship Co. (1891) (p. 16) (smallpox vaccination #2 for immigrant)
    If you act as though you consent, even if you don't verbalize it consent is given.
Immigrant  puts out arm to  doctor for additional smallpox vaccination (first one didn't leave
mark); implied consent given. Consent implied in fact.
Bonner v. Moran (1941) (p. 17) (generic example)
    Parental consent necessary for operations on children.
"[T]he general rule is that the consent of the parent is necessary for an operation on a child."
Life Support / Physician-assisted suicide
    OK not to use extraordinary measures to keep someone alive, but physician-assisted suicide
    not OK. (pp. 18–19) – but States have a right to regulate, and require proof that the person
    would have likely consented if able (Cruzan v. Director…, 1990) (p. 20–21).
Lausier v. Pescinski (1975) (p. 19) (kidney not taken from incompetent to save brother,
guardian wouldn't consent)
    Guardian must approve of damage to incompetent to save life of someone else.
Court cannot order removal of kidney of incompetent needed to save life of brother, where
incompetent's guardian opposes operation (comparison to Nazis)
Strunk v. Strunk (1969) (p. 19) (kidney taken, guardian agreed)
    Court allowed transplant of kidney in similar case where guardian consented.
In re A.C. (1990) (p. 19); In re Baby Boy Doe (generic example)
    In parent-fetus conflict, woman's decision not to have caesarean section respected, even when
    it could result in harm to fetus.
Maharam v. Maharam (1986) (p. 21) (wife gets herpes from husband, no Ds)
    Venereal disease transmission not actionable unless fraud involved (non-disclosure).
 wife got herpes from  husband (contracted from affair); husband not guilty unless he knew
and failed to disclose.


Jeanette L. Goldsberry                                                                      Page 3
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       JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
                IMPLIED CONSENT – SPORTS (ALSO STATUTORY RAPE)
Hudson v. Craft (1949) (p. 22) (Illegal boxing case, promoter can be sued for Ds)
    You cannot consent to an illegal act, and pari delicto (equally at fault) does not apply when
    statutory violation of a third party is proximate cause of injuries – third party liable.
Illegal boxing match –  is promoter.  and another man (employee of carnival) fight for $, 
gets injured.  Promoter violating penal code (prize $ given; no license from State Athletic
Commission). Public policy interest.  in protected class under law.  liable for damages.
Hart v. Geysel (1930) (p. 25) (volunteer suffers no wrong, opposite view from Hudson)
    Dissent to above view in Hudson (Restatement adopted this dissent) – no cause of action.
 prizefighter killed in illegal fight. (1) volenti non fit injuria (volunteer suffers no wrong), and
(2) ex turpi causa non oritur actio, (no action shall arise out of an improper or immoral cause).
Barton v. Bee Line, Inc. (1933) (p. 25) (underage woman seduces man)
    No civil cause of action for statutory rape (suing employer for behavior of employee).
Underage  seduces man – statutory rape. No civil cause of action – incentive for women to
seduce for $. Public policy shifts against allowing cause of action, in spite of illegality of
consent – adequately dealt with in criminal context.
Hackbart v. Cincinnati Bengals, Inc. (1979) (p. 25) (football injury due to broken rule)
    s in legal sporting events consent to injury from blows administered in accordance with
    rules, but not blows that are deliberately illegal.
 injured from unnecessary and intentional blow; ended his sporting career.
Nabozny v. Barnhill (1975) (p. 26) (goalie injured in non-professional soccer game)
    Same as Hackbart above also applies to non-professional sports.
 goalie injured severely / permanently due to 's reckless behavior (infraction of rules).
"[A] player is liable for injury in a tort action if his conduct is such that it is either deliberate,
wilful or with a reckless disregard for the safety of the other player so as to cause injury to that
player, the same being a question of fact to be decided by a jury."
Third Restatement of Torts – §2. RECKLESSNESS
    (This is a way around the implied consent defense for willful rule violations in sports.)
An actor recklessly causes harm if:
    (1) the actor knows of the risk of harm created by his conduct, or knows facts that make that
risk obvious to anyone in the actor's situation, and
    (2) the precaution that would eliminate or reduce that risk involves burdens that are so slight
relative to the magnitude of the risk as to render highly blameworthy the actor's failure to adopt
the precaution.
Turcotte v. Fell (1986) (p. 27) (minor, typical rule infractions – jockey not liable)
    Normal, typical infractions (as opposed to willful, reckless infractions) not actionable.
 jockey injured by  jockey; infraction caused by broken rules; but rule broken not due to
flagrant, intentional, or reckless conduct, but normally occurring during course of game). Not
actionable – foreseeable risk of the sporting event.
Gauvin v. Clark (1989) (p. 28) (hockey game rough – not actionable if within norm)
    Even bad infractions, with a degree of recklessness commensurate with the nature of the
    sport, are not actionable, so long as they are not willful, wanton or reckless.
 hockey player injured  hockey player by butt-ending him. Not actionable.
Marchetti v. Kalish (1990) (p. 28) (kids playing kick the can, rule broken, no Ds)
    No liability for rule infractions in informal children's games unless reckless or intentional.
No cause of action for 's rule violation in kick the can, resulting in 's injuries (broken leg).


Jeanette L. Goldsberry                                                                         Page 4
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Ford v. Gouin (1992) (p. 29) (barefoot water skier injured by boat maneuver, no Ds)
    In inherently risky sports, when  does something, reckless outside of the context of the risky
    sport, that causes injury to , no cause of action, so long as no intent.
 barefoot water skier injured by  boat maneuver; risky sport, fully consented to – no cause of
action. Worried about potential chilling effect on risky sports.
Cheong v. Antablin (1997) (p. 29) (snow skier not liable for Ds to  from rule infraction)
    Another skiing accident (snow skiing) – again, no cause of action, without solid proof of
    recklessness (not mere rule infraction). Assumption of risk, by participating in snow skiing.
                 INSANITY DEFENSE – (BASICALLY, THERE ISN'T ONE)
McGuire v. Almy (1937) (p. 30) (nurse gets Ds for injuries from insane private patient)
    In general, no insanity defense in intentional or unintentional torts (as long as there is some,
    albeit skewed, intent – but not generally capable of defamation and malicious prosecution).
    (However, defense in criminal law.) Also, no assumption of risk in private mental healthcare
    situations (not true in public).
 insane woman has episode;  nurse tries to subdue her;  hits ;  liable. No assumption of
risk, even for nurse, in private mental healthcare situation (don't believe this is true in public).
Polmatier v. Russ (1988) (p. 33) (crazy man kills father in law – civilly liable)
    Another more extreme insanity case (killed father-in-law) – civil liability, but not criminal.
 was completely insane, killed father-in-law – no intent for criminal purposes, but civil liability.
Gould v. American Family Mutual Insurance Co. (1996) (p. 33) (generic example)
    Party that causes loss should bear loss, when neither party guilty through intent (re insane).
"[W]here a loss must be borne by one of two innocent persons, it shall be borne by him who
occasioned it, and it has also been held that public policy requires the enforcement of the liability
in order that those interested in the estate of the insane person, as relatives or otherwise, may be
under inducement to restrain him and that tortfeasors may not simulate or pretend insanity to
defend their wrongful acts causing damage to others."
                                          SELF-DEFENSE
Courvoisier v. Raymond (1896) (p. 34) (jewelry store robbery; cop accidentally shot)
    In legitimate cases of self-defense, a defendant is not liable for unintentionally harming an
    innocent third party, so long as behavior reasonable under circumstances.
 owner of jewelry store; attackers enter store; gunshots do not deter; they continue to attack
after he chases them outside;  policeman responds;  panics and shoots policeman;  not guilty;
's behavior reasonable in circumstances due to panic.
Morris v. Platt (1864) (p. 36) (generic example)
    The accidental harming of an innocent bystander by force reasonably intended in self-defense
    to repel an attack by a third party is not actionable.
Restatement – RST §75 – HARM TO THIRD PARTIES IN SELF-DEFENSE
The defendant is liable to the innocent third party "only if the actor realizes or should realize that
his act creates an unreasonable risk of causing such harm."
Boston v. Muncy (1951) (p. 37) (fight over automobile heater sale during WWII)
     does not have to be in danger of great bodily harm, only bodily harm, to use self-defense.
 and  in fist fight; not clear who started it; improper jury instruction; self defense is allowed to
prevent bodily harm – it does not have to be great bodily harm.




Jeanette L. Goldsberry                                                                        Page 5
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       JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
                                     DEFENSE OF PROPERTY
M'Ilvoy v. Cockran (1820) (p. 38) ( trespasser tearing down fence; force not justified)
     "[I]n defense of possession a wounding cannot be justified."
 tears down fence on 's property. , without warning, beats up .  wins verdict for assault
and battery – 's force out of proportion to crime.
Green v. Goddard (1795) (p. 39) (generic example)
     Respond to force with force; respond to trespass with warning, then force.
You can oppose force with force (e.g., if someone trespasses by breaking down a gate, or comes
onto your property with weapons). If someone trespasses without force, you cannot use force
against him without first giving him a warning to depart.
Bird v. Holbrook (1825) (p. 40) (garden, bulbs being stolen, spring gun set – excessive)
     You cannot booby-trap your property without warning, with the intention of wounding
     trespassers. Some kind of warning must be given, so that intention is deterrence not revenge.
 was mad at trespassers stealing bulbs from garden property; did not usually live on property;
set up spring guns to wound trespassers; no warning;  injured when trying to retrieve stray
peafowl. Judgment for  for battery.  intention to wound, not deter. Punishment does not fit
crime. Would have been OK to set guns from sunset to sunrise for protection while at home.
Might have been OK if large warning signs. Economic analysis – protect livestock owners
Katco v. Briney (1971) (p. 44) (spring gun injures trespasser in home; also excessive)
     Reasonable force to protect property, but not to take human life or inflict great bodily injury.
No trespass signs posted on vacant property; property repeatedly vandalized; owner aims gun at
legs; permanently injures trespasser.  receives $10,000 judgment (pays larceny fine of $50).
Restatement (Second) of Torts – §85 USE OF MECHANICAL DEVICE THREATENING
DEATH OR SERIOUS BODILY INJURY (p. 46)
     You can use force proportionate to crime – you can booby trap your home to protect
     yourself, but you must use the minimum force called for in the situation.
The actor is so far privileged to use a device intended or likely to cause serious bodily harm or
death for the purpose of protecting his land or chattels from intrusion that he is not liable for the
serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact, such that
the actor, were he present, would be privileged to prevent or terminate it by the intentional
infliction of such harm.
§143 – two-tiered privilege to prevent commission of felony. (1) When felony threatens either
death or serious bodily harm, or involves breaking and entering a dwelling place, then the actor
may use force or impose confinement "intended or likely to cause death or serious bodily harm"
if lesser means to prevent crime are not available (2) Otherwise, you can use force which is not
intended or likely to cause death or serious bodily harm, as long as lesser force cannot achieve
same end.
                                    RECAPTURE OF CHATTELS
Kirby v. Foster (1891) (p. 46) ( underpaid; takes $ from amount given to pay others;
managers recapture $ by force, hurt ;  receives Ds)
     You cannot use force to recapture chattels unless they were taken by force, fraud, or without
     claim or right; let the legal system deal with the situation.
 employee believes he was underpaid; given money by s to pay other employees; takes what
he believes he is owed (on bad legal advice), announces what he did and quits job. s forcibly
recapture money; harm . Judgment for  – force inappropriate where no force used by .
Uniform Commercial Code – §9-503
     Permits a secured party to repossess collateral in the event of default without a judicial
     proceeding "if this can be done without breach of the peace." (changing locks not allowed)
Jeanette L. Goldsberry                                                                          Page 6
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Landlord / Tenant cases of repossession (p. 49)
Poppen v. Wadleigh (1952) Landlord may peaceably enter to reclaim property.
Berg v. Wiley (1978) However, modern courts do not consider things such as changing the locks
on a rental property while the tenant is away peaceable (likely to lead to violent reaction by ).
                                            NECESSITY
Ploof v. Putnam (1908) (p. 50) (boat in storm; tied to dock; servant cuts them loose, Ds)
    Life more important than property; if you do not allow someone to use your property in an
    emergency to protect himself, you are liable for injuries and D to their property. Otherwise,
    they must reimburse for use of property but no punitive Ds – just restitution.
 in storm in boat with wife and children; tie up to private dock; servant of  owner unties them;
s and property injured;  liable for damages – act of God, human life more important.
Mouse's Case (1609) (p. 52) (admiralty law, things thrown overboard in storm)
    You can throw property overboard on boat if necessary during storm to save life; everyone
    with property on boat contributes equally to loss – treated as joint owners. (Admiralty law).
Vincent v. Lake Erie Transportation Co. (1910) (p. 52) (stronger cord; boat owner liable)
    In a crisis, if you allow someone to use your property to save their life or property, they are
    liable to reimburse you for damages (but no criminal liability – just reimbursement).
 in storm; already tied to 's dock in commercial transaction with ;  uses heavier cords to
keep tied to dock; dock damaged;  liable for damages to 's dock; choice (not pure act of God).
Economically efficient – allows  to save his more valuable property without fear of criminal
liability during a crisis;  reimbursed,  still better off than if own property damaged.
Post v. Jones (1856) (p. 57) (generic example)
    Professional rescuers compensated well for risk, but fees reduced if unreasonable bargain.
No rescue, no pay – strong incentive, liberal compensation, especially for preventing toxic spill.
But, there are limits – often referred to arbitrators, to resolve according to industry standards
(often through Lloyd's of London).
Respublica v. Sparhawk (1788) (p. 58) (government often protected from liability)
    Governmental privilege to destroy property in emergency to save lives, even if unsuccessful.
    Extends to natural disasters, wartime activities (both to prevent enemy access to resources
    and to house troops), and things like riots (although there is more scrutiny here).
Public officials have to be protected from liability, in order to give them incentive to save more
lives, make the tough decision in a crisis. Fire of London (1666) – Lord Mayor would not order
forty wooden houses to be pulled down, for fear of trespass – half the city was burnt.
Los Alamos – perhaps restitution allowed, without finding fault? Political pressure to do so.
                                     FALSE IMPRISONMENT
Bird v. Jones (1845) (p. 67) (public way blocked as paid seating for boat race; no Ds)
    You really have to be confined in order to bring a false imprisonment charge. If there is an
    exit, even though not the preferred exit, there is no false imprisonment.
 kept from passing along public way due to it being blocked off (illicit) for s paid seating for
boat race. Policemen prevented man from going into public area, but did not harm him. No
false imprisonment – he could pass by in another manner.
Whittaker v. Sandford (1912) (p. 69) (yacht imprisonment, but wide prison, Ds reduced)
    If confinement broad enough, Ds reduced, circumstances mitigate (no humiliation, indignity).
 imprisoned on yacht (not allowed to remain on shore); not close confinement, Ds reduced.




Jeanette L. Goldsberry                                                                     Page 7
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Restatement of Torts, §36, comment b – AREA OF CONFINEMENT (p. 69)
"The area within which another is completely confined may be large and need not be stationary.
Whether the area from which the actor prevents the other from going is so large that it ceases to
be a confinement within the area and becomes an exclusion from some other area may depend
upon the circumstances of the particular case and be a matter for the judgment of the court and
jury."
Griffin v. Clark (1935) (p. 70) (missed train due to friends' force, then car wreck – Ds)
    Even well-intentioned actions can be false imprisonment if they coerce.
s, friends, grabbed suitcase of , caused her to miss train, to coerce her into riding in their car to
destination. Car wreck;  collects damages – false imprisonment (freedom of locomotion).
Restatement – RST §35, illus. 2 – UNINTENTIONAL CONFINEMENT
If unintentionally confined for a few minutes in walk-in freezer, catch mistake, no harm – no Ds.
If unintentionally confined for a few hours, catch pneumonia, negligence – Ds.
Herring v. Boyle (1834) (p. 70) (boarding school wouldn't release son, no Ds, not aware)
    No false imprisonment if person imprisoned not aware, and no special restrictions.
 tries to get son out of boarding school;  would not release son until tuition paid; no Ds.
Meering v. Grahame-White Aviation Co., Ltd. (1920) (p. 71) (generic example)
    If you are unaware of imprisonment, you can still receive judgment, but $ Ds affected.
Coblyn v. Kennedy's, Inc. (1971) (p. 71) (70 year old, ascot, accused of shoplifting – Ds)
    Psychological and physical intimidation can create false imprisonment even with consent.
 man (70-yrs-old) bought ascot somewhere else; store security thought he stole it from them;
intimidating men coerce him into (willingly) going with them; man did not steal ascot (no
reasonable grounds to believe he did); man is so upset he has heart attack. False imprisonment.
Sindle v. New York City Transit Authority (1973) (p. 74) (bus driver drives to police station
due to unruly conduct; student jumps, run over; no Ds)
    No false imprisonment when reasonable in order to protect 's person and property.
 bus driver was threatened by unruly students; departed from route and went to police station; 
(not rowdy) jumped out side window and run over by bus;  not guilty of false imprisonment.
Peterson v. Sorlien (1980) (p. 75) (The Way Ministry cult case)
    Cult deprogrammers can be sued for false imprisonment, but not parents.
Adult child fell under influence of cult while in college; parents used deprogrammer; girl
eventually agrees to treatment (under coercion); later goes back to cult and sues; parents' concern
given sufficient weight – not liable for false imprisonment (but cult deprogrammer charged).
                  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Wilkinson v. Downton (1897) (p. 76) (mean joke; husband maimed, go pick him up)
    If you tell someone some horrible lie to cause them trauma, you are liable for harm suffered.
 man tells  woman that her husband has been maimed, that he is at Leytonstone and she needs
to send a cab with two pillows.  goes crazy (vomits, suffers nervous breakdown). She recovers
cost of transportation (fraud) and mental distress Ds (not parasitic upon fraud – so egregious).
Bouillon v. Laclede Gaslight Co. (1910) (p. 77) (sensitive pregnant woman, gas reader tries
to force way in, miscarries / health problems, Ds allowed)
    If you commit an intentional tort and thereby cause mental distress,  can receive D.
 was pregnant, in danger of miscarriage; s nurse did not want to give s meter reader access to
basement (not their meter); he tried to force his way in; let in cold air, upsetting exchange with
nurse overheard;  suffers miscarriage, and permanent health damage;  gets damages.



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Restatement (Second) of Torts (1966) – §46 OUTRAGEOUS CONDUCT CAUSING
SEVERE EMOTIONAL DISTRESS
    (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.
    (2) Where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress
        (a) to a member of such person's immediate family who is present at the time, whether or
    not such distress results in bodily harm, or
        (b) to any other person who is present at the time, if such distress results in bodily harm.
Note: there may be other circumstances where cause of action allowed – this is just a guideline.
§46 (Definition of Extreme and Outrageous Conduct) – comments d and f (p. 79)
d. (excerpt) Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is
one in which the recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, "Outrageous!"
(cause of action for Nazi marches in Jewish communities? – free speech override?)
f. The extreme and outrageous character of the conduct may arise from the actor's knowledge
that the other is peculiarly susceptible to emotional distress, by reason of some physical or
mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous
when the actor proceeds in the face of such knowledge, where it would not be so if he did not
know….
State Rubbish Collectors Association v. Siliznoff (1952) (p. 80) (mob tactics; join union or
else)
    If  intentionally subjects  to fear of physical harm,  liable for mental distress Ds.
 uses mob tactics to compel union membership; threats to hurt  if he didn't pay.  gave
promissory notes; didn't pay notes; wants notes cancelled and mental distress damages. Even
though s threats contingent, cause of action established.
George v. Jordan Marsh Co. (1971) (p. 81) (debt collectors cause harm to third party)
    Bill collectors – no harassing tactics against third parties, in attempt to coerce payment.
 suffers two heart attacks for 's harassment over son's debts (she was not co-signor).  tactics:
late night calls, harassing letters, etc. –  would not stop after first heart attack, in spite of
requests from 's attorney.  receives judgment for mental distress damages.
Rockhill v. Pollard (1971) (p. 81) (doctor left injured people outside in freezing rain; mental
distress Ds)
    Doctor owes greater degree of care in an emergency medical situation, irrespective of
    whether he is qualified to treat the actual injuries; he cannot be dismissive and neglectful.
 general physician consulted in emergency behaved inappropriately, making s wait outside in
freezing rain, implying they weren't injured. Mental distress cause of action – outrageous.
No malpractice – doctor did not operate, was not qualified to operate on this sort of injury?
Patterson v. McLean Credit Union (1986) (p. 81) (black woman insulted)
    No mental distress cause of action for racial insults (but Title VII civil rights violation).
 stared at  black woman, made her do menial tasks, insulted her – no mental distress.




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Harris v. Forklift Systems, Inc. (1993) (p. 82) (now mental distress allowed in relation to
sexual harassment actions under Title VII)
   Mental distress for sexual harassment allowed under Title VII – employment discrimination.
 woman totally insulted by  (sexual innuendos, inappropriate requests, etc.). Mental distress
Ds allowed, due to Title VII sex discrimination in employment.
Hustler Magazine v. Falwell (1988) (p. 83) (Hustler does obscene parody of Falwell)
   Constitutional concerns for free speech override mental distress in parody of public figures.
Desire for political free speech overrides mental distress and defamation Ds, in extremely lewd
depictions of public religious figures. (No defamation – there was a disclaimer.)
III.   STRICT LIABILITY VS. NEGLIGENCE: HISTORICAL EVOLUTION
       AND ANALYTICAL IMPORTANCE
                                           EARLY CASES
The Thorns Case (1466) (p. 86) (hedge, thorns cut, fall onto neighboring property)
    If your property escapes onto neighbor's property due to your actions and you go to retrieve
    it, you are liable for trespass Ds. – old rule, strict liability
 cuts thorns from hedge negligently close to 's property; they fall onto 's property,  retrieves
them; damages 's property;  liable (he could have prevented thorns falling). (same w/cows)
Economic efficiency – if  gets more $ from trespass than not, he should compensate .
Millen v. Fandrye (1626) (p. 89) (sheep dog chasing sheep off property, hurts sheep)
    If you are protecting your land from unlawful intrusion of neighbor's property, if as a result
    damage to neighbor's property occurs, no Ds so long as efforts to avoid D reasonable.
Sheep dog kept chasing sheep off of 's property onto 's, damaged sheep – no cause of action.
Tithe Case (1506) (p. 90) (minister's corn damaged when  put it in barn to protect it)
    Do not take measures to protect property of another, because if measures themselves cause
    unanticipated damage you will be liable.
 puts  minister's corn in barn (to protect from strangers and cattle), causing it to rot (w/out 's
permission).  liable for Ds – he was not acting to preserve own property.
Problem of asymmetrical incentives – law does not reward s who save 's property.
Weaver v. Ward (1616) (p. 92) (guns went off; inevitable accident in military exercise)
    In military accidents,  not liable to  when equally at fault – inevitable accident.
 and  in military exercise; 's gun accidentally discharged;  hurt; both at fault; no Ds for .
Question not whether actors had behaved unreasonably (should have avoided accident) but
whether they could have avoided it by greater practical care (in the context of the situation).
Definition of Inevitable Accident (not at all clear) (p. 92)
    Different possible meanings: (1) backhanded way of saying  was not negligent and no intent
    to harm (2) utterly without fault: irrespective of whether  took precautions accident would
    have occurred (3) literal reading: accident had to happen (during sudden storm, boat would
    have crashed into and damaged dock irrespective of whether boat was tied to the dock).
Smith v. Stone (1647) (p. 93) (man carried onto property against his will, no trespass)
    If someone else directly causes accident with your body, you are not liable.
 carried onto land against his will;  sues for trespass;  not liable (parties responsible – guilty).
Gilbert v. Stone (1647) (p. 94) ( cannot claim robbery not his fault due to duress)
    You cannot claim that you were intimidated into committing a crime.
 claims duress, in threats of others forcing him to commit trespass (theft);  guilty of trespass.




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Gibbons v. Pepper (1695) (p. 94) ( rider of horse held responsible for injury even though 
warned from a distance to take care)
    If 's animal, while under 's control, reacts to something and harms ,  is liable.
 riding horse; horse reacts;  warns , but  continues; 's horse harms ;  collects Ds.
(Sometimes,  can sue third party for Ds, if third party guilty of inciting animal behavior).
Comment on Inevitable Accident Doctrine
    Inevitable accident doctrine is now disfavored – was a way to avoid liability in strict liability
    regime – with modern negligence principles, less simplistic – more apportionment of Ds.
Scott v. Shepherd (1773) (p. 98) (lighted squib tossed, "hot potato";  loses eye)
    Person initiating action is liable for consequences, not intervening actors attempting to avoid
    harm to themselves resulting in harm to a third party – unless causal chain is broken.
 threw lighted squib (firecracker) into market-house during assembly; the first two people it fell
near threw it away from themselves; finally hit ; blinded in one eye. , not intervening parties,
guilty. Intervening parties arguably could have thrown squib in another direction, but panicked.
Squib likely to cause mischief;  at fault. Causal chain not broken; not new action, continuation.
Causes of Action – Trespass vs. Case – very confusing
    Trespass – where harm direct, or where consequence of statutory violation
    Case – where harm consequential (but what if invasion direct, but harm consequential?)
Guille v. Swan (1822) (p. 102) (hot air balloon rider liable for Ds to garden due to
predictable 3rd party reaction to his behavior)
    Liable for actions of third parties when your actions incite them to damage property.
 flying balloon; lots of spectators; risky activity; has problems; emergency landing, calls out for
help;  balloon and third parties helping him damage garden of ;  able to recover all from .
Chart of Old System of Liability:
                                                               PLAINTIFF

                                                      ordinary       not ordinary
                                                        care             care

                                     ordinary
                                                     no liability     no liability
                                       care
                  DEFENDANT
                                   not ordinary
                                                       liability      no liability
                                       care

                           THE MODERN APPROACH EMERGES
Brown v. Kendall (1850) (p. 106) (trying to separate dogs with stick;  injured, no Ds)
    For cause of action, (1) intention unlawful; or (2) defendant at fault (ordinary care standard).
 and 's dogs fighting;  trying to separate dogs with stick;  advanced towards dogs;  swung
stick (didn't see  behind him);  accidentally hit .  not liable – ordinary care.
Different arguments for evolution to negligence standard:
    (1) immunities from liability created to aid economic development (give industry an out)
    (2) dissent – more of a determination of what is fair
    (3) another view – negligence more evolution than transformation – already in English cases




Jeanette L. Goldsberry                                                                      Page 11
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Rylands v. Fletcher (1868) (p. 111) (escape of water from reservoir; old mine shafts)
    Strict liability in English courts for substances escaping from your property onto another's
    property and causing damage, unless act of God.
's reservoir built on old mine shafts; floods 's land;  liable for Ds (perhaps he should have
sued engineers?). Strict liability for dangerous substances escaping from property.
We have three rules coming out of Rylands:
                Bramwell – right to be free of foreign water
                Blackburn – likelihood of mischief if something escapes
    But assumption of risk / implied consent on highway; act of God (see Nichols below).
    Blackburn's is the most quoted version of the rule.
                Cairnes – natural vs. unnatural use of land
    Natural can be defined as "artificial or man-made," or "unreasonable or inappropriate."
Differences between Cairnes and Blackburn –Blackburn, having risky items on property,
Cairnes, having out of the ordinary things on your property.
Cambridge Water Co. v. Eastern Counties Leather PLC (1994) (p. 121) (tannery not liable)
    Natural use (on appeal) expanded to include use of chemicals not at the time known harmful.
 used solvent (later known toxic) in tannery; small amount escaped; in 's aquifer;  not liable.
Nichols v. Marsland (1876) (p. 122) (two-tiered mine; not liable for natural water Ds)
     not liable for act of God in two-tiered mine – 's risk of being on second tier, not 's fault.
 – top level of two-tier mine; did not do anything wrong but also failed to take precautions to
prevent damage to  in event of storm; water leaks into 's mine due to  mining;  not liable.
River Wear Commissioners v. Adamson (1877) (p. 130) (abandoned boat; crash into dock)
    If  abandons boat in storm,  not liable for damage to adjacent property (public way).
 abandoned boat in storm (act of God); after crew abandoned, crashed into 's dock;  not
guilty unless negligence shown. (Desire to protect maritime industry?)
Powell v. Fall (1880) (p. 127) (sparks escape; train built up to specs;  still liable)
    Strict liability affirmed in England – non-negligent train operator liable for escaping sparks.
 non-negligent train operator; sparks escape from train (built up to specs); 's hay near tracks;
hay catches fire;  still negligent (profitability of train – should compensate )
But some cases exempted due to proximity to highway.
p. 129 Vaughn v. Taff Vale Ry. (1860) opposite result (no liability, no statutory violation).
                     AMERICAN CASES (FROSTY TOWARDS RYLANDS)
Brown v. Collins (1873) (p. 123) (horse frightened by train engine, hits post – no Ds)
     not liable for reasonable behavior (Cairns reinterpreted as reasonable / unreasonable)
 riding his horse; horse becomes frightened by train engine; collides with 's post;  used
ordinary care;  not liable – actions reasonable. Liability would be impediment to progress.
Really a repudiation of Rylands – not American. Reasonable as opposed to natural.
Losee v. Buchanan (1873) (p. 125) (boiler explodes, no Ds – progress, pro-industry)
    Emphasis on giving up rights for benefit of society – shared risk for certain activities
 not able to collect for 's boiler exploding, causing damage to 's property. Pro-industry.
Turner v. Big Lake Oil Co. (1936) (p. 126) (water escapes from cistern in Texas)
    Storage of water in cisterns natural use of land in dry West Texas (Cairns expanded again).
Water escaping from cisterns not actionable in Texas; natural use of land; necessary for survival
(oil and cattle industries). Property rights not absolute for greater good – progress of society.




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                                 SOME RECENT HARD CASES
Bolton v. Stone (1950) (p. 138) (cricket ball hit out of field, injures )
    If harm sufficiently improbable, you are not negl. – reasonable person standard of precaution.
 injured by stray cricket ball.  owner of cricket field; some past examples of balls being hit
over fence, but rare. Ball had never hit anyone before.  not able to collect D –  reasonable.
( did voluntarily give  money for her injuries, apart from decision). Idea that  would not
have taken any greater care than  did – we cannot expect more of others than we would do.
Dissent: law gave way to love of cricket, ignores Rylands – dangerous ball escaped, yet no Ds.
But use of land for cricket considered natural in context of English society (Cairnes).
Economic principle: efficient solution – accidents rare, precautions expensive – not negligent.
Rinaldo v. McGovern (1991) (p. 143) (golfers hit ball, shatters 's windshield, no Ds)
    No liability for stray golf ball for golfers (club not sued) – not negligent (normal stray shot).
Two  golfers, one hit golf ball that shattered 's windshield (not clear which); no negligence.
Golfers hit normal shot that strayed; assumption of risk on public way. (Did not sue club).
Corrective Justice – another approach (favored by Epstein)
1) Strict liability – presumption in favor of  – prima facie case in Bolton v. Stone – "He hit me."
Undoes imbalance caused by violation of preexisting right.
2) Invoked on negligence –  cannot demand higher standard of  than  would demand of self.
Economic Efficiency – alternative to Corrective Justice
(Calabresi) – All things being equal, choose efficient option – allocate responsibilities efficiently.
Pareto Superiority vs. Kaldor-Hicks Efficiency
Pareto Superiority – everyone is better off (but proportion does not matter).
Pareto Optimality – no one can be made better off without someone being made worse off.
Kaldor-Hicks Efficiency – overall wealth goes up, but not everyone is better off, some worse off.
    Pareto Superior because winners can compensate losers.
Hammontree v. Jenner (1971) (p. 148) (epileptic has seizure while driving, no Ds)
     not liable for sudden onset of physical condition causing auto accident – no strict liability.
 was epileptic whose condition was controlled by medication (14 years without seizure).  in
full compliance with laws; doctors considered it safe for him to drive.  had seizure; crashed
into 's bicycle shop, causing damage / injuries.  not liable – not negligent. No intent.
Optimal Level of Care (definition from p. 151)
    [T]he same amount of care that a person would take if he himself were the only person at risk
    for property damage or bodily injury. A single individual would prefer suffering the
    consequences of some accidents to bearing the greater costs of avoiding them.
In a case such as Hammontree v. Jenner, the  would probably have taken the same risk as the .
Sykes' arguments (and some of my garbled examples) re Strict Liability vs. Negligence
    Strict Liability and Negligence offer the same level of incentives, but shift the burden.
Strict Liability places more costs on the  – if accident results from 's behavior, irrespective of
reasonableness of precautions  is at fault:
    knows he will be fully liable for any accidents he causes,   will not allow unsafe conditions.
    knows that  will avoid unsafe conditions,   will not behave irresponsibly, because  will not
   recover if  is not at fault.
Negligence places more costs on  –  less likely to recover, but:
    knows he will be liable only if he is negligent,   will do what he can to avoid accidents.
    knows that  will not be negligent,   will not behave irresponsibly.
The incentives, practically speaking, should not change, because  is going to take the cost-
effective precaution regardless. However, strict liability might cause someone to take greater
precautions because the $ consequences are more for an accident. For example, if the probability
of an accident is 2%, but the cost of the accident is $10,000 (value $200) – if the cost of the
precaution is $400 to reduce risk to zero, it would not be cost-effective under a negligence
regime and  damages would be zero. But, under strict liability, if person is risk-averse, he
might take the precaution to avoid the possibility of a huge penalty, + preference for zero risk.
Jeanette L. Goldsberry                                                                       Page 13
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IV.    THE CONCEPT OF NEGLIGENCE
   REASONABLENESS STANDARD (ADULTS, ELDERLY, CHILDREN, DISABLED)
Vaughan v. Menlove (1860) (p. 155) (hay stacked wrong, spontaneously ignites, Ds)
    If a reasonable person would know that 's activities are dangerous,  is liable.
 stacks hay in such a way that it ferments and sets fire.  was warned that this would happen;
he didn't care. Had insurance; took an unreasonable risk. Destroyed 's cottages.  liable for
damages. Although he did not directly set fire to cottages, reasonable person would know that
was likely due to fermentation in haystacks, and  did not take reasonable precautions.
Tuberville v. Stamp (1697) (pp. 157, 159, 294) ( burns weeds near boundary, fire spreads)
    If  burns weeds near boundary of 's property and causes D,  liable, D foreseeable.
The reason a negligence standard given in above two cases – act itself not inherently dangerous?
Conway v. O'Brien (1940) (p. 160) ( rounds corner on wrong side of road, no Ds)
    Guest statute (most states repealed):  must prove gross negligence where  guest in 's car
 injured from  rounding corner at 15 MPH on wrong side of narrow road. Road not often
traveled; judgment for ; if twice as fast on well-traveled road, Learned Hand would find for .
Holmes, The Common Law (1881) (p. 161) (prudent man standard defended)
    Defending prudent man standard; otherwise (1) people lie – feign stupidity (2) trying to make
    individualized determination too subjective (3) we need to work around our own defects, etc.
Roberts v. Ring (1919) (p. 163) (old man driving 5 MPH, hits 7-yr-old darting out)
    Old age no excuse in negligence action; but young age is excuse.
77-year-old  (defective sight / hearing), driving 5 MPH (not negligent speed), hits 7-year-old
boy  when  runs in front of buggy. 's age not a defense, but 's age is.  wise enough to
entirely avoid dangerous activities;  too young, does not know any better. Judgment for .
Daniels v. Evans (1966) (p. 165) (19-yr-old dies on motorcycle – adult standard)
    Children held to adult standard if engaging in "adult" activity.
's 19-year-old decedent killed when motorcycle collided with 's automobile. Operation of
motor vehicle adult activity; no lowered standard of care;  must be judged by adult standard.
Holland v. Pitocchelli (1938) (p. 164) (child not liable for injuries to adult driving teacher)
    Exception to children being held to adult standard when adult in car teaching child to drive.
Goss v. Allen (1976) (p. 168) (skiing – children NOT held to adult standard)
    Children skiing held to lower standard; no license required to ski (distinguished).
Dellwo v. Pearson (1961) (p. 168) (speed boat – children held to adult standard)
    12-year-old held to adult standard in operating speed boat (despite no license requirement).
Harrelson v. Whitehead (1963) (p. 168) (motorcycle – children held to adult standard)
    15-year-old held to adult standard in operating motorcycle.
Jackson v. McCuiston (1969) (p. 168) (tractor – children held to adult standard)
    13-year-old farm boy held to adult standard in operating tractor.
Purtle v. Shelton (1971) (p. 168) (gun – children NOT held to adult standard)
    Court refused to hold 17-year-old to adult standard in operating firearm.
Third Restatement – RTT:GP §8 – NEGLIGENCE STANDARD FOR CHILDREN
Children held to standard of "a reasonably careful person of the same age, intelligence, and
experience." Exception for adult-like activities; also, child under five not capable of negligence.
Breunig v. American Family Insurance Co. (1970) (p. 170) (crazy woman thought that God
was driving her car, that she can fly like Batman; wrecks, knew of condition  Ds)
     liable for car accident due to sudden onset of delusion only if foreknowledge of condition.
 had a delusion while driving, which caused her to collide with ;  had prior knowledge of her
own mental condition; because of prior knowledge,  guilty of negligence.
Jeanette L. Goldsberry                                                                    Page 14
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Fletcher v. City of Aberdeen (1959) (p. 173) ('s employee removes barricade, blind man
falls into hole – Ds)
    City obligated to protect all people from harm on public sidewalk, including blind / lame.
's employee negligently removed barricades, leaving excavation on sidewalk unprotected.
Blind , using cane to feel his way along, falls into excavation. 's conduct reasonable for blind
person.  obliged to provide barricade to give  notice of danger; judgment for .
Poyner v. Loftus (1997) (p. 174) (blind man looks away, fails to notice bush removed; falls)
    Blind person can be negligent if they do not use care (allowing distractions while walking).
Blind  distracted by noise, looked away but continued to walk forward, fell due to  removing
bush; no cause of action.
Third Restatement RTT:GP §9(a) (p. 174) – re negligence standard for disabled persons
The conduct of a person with a physical disability "is negligent if it does not conform to that of a
reasonably careful person with the same disability."
 SUDDEN EMERGENCY DOCTRINE (DISAPPROVED – FACTOR IN NEGLIGENCE)
Lyons v. Midnight Sun Transportation Services, Inc. (1996) (p. 175) (woman pulls out in
front of truck, truck speeding, but speeding not causative)
    's negligence must be causative; also, different standard for emergencies.
's decedent killed when she pulled out in front of 's truck.  was speeding; but speeding not
causative (accident would have occurred regardless).  veered in response to decedent's actions
– perhaps not the best decision, but sudden emergency considered factor in negligence
determination (disapproval of sudden emergency doctrine). Judgment for .
Robinson v. Pioche, Bayerque & Co. (1855) (p. 177) (drunk man fell into hole,  still liable)
    Intoxication of  no excuse for  leaving dangerous hole in sidewalk uncovered.
Third Restatement – RTT:GP §7 – UNEXPECTED EMERGENCY
"If an actor is confronted with an unexpected emergency requiring rapid response, this is a
circumstance to be taken into account in determining whether the actor's resulting conduct is that
of the reasonably careful person."
Denver & Rio Grande R.R. v. Peterson (1902) (p. 177) (generic example)
    Rich and poor have same standard of care (but perhaps not always same penalty).
(Profs. Abraham and Jeffries – wealth irrelevant for deterrence. Arlen – wealth relevant.)
                                      CALCULUS OF RISK
Blyth v. Birmingham Water Works (1856) (p. 179) (pipes burst in severe frost, no Ds)
    Standard of reasonable man – what precautions would you take in same circumstance?
's house damaged in unusually severe frost, due to 's pipes bursting. Pipes built up to
standard; unforeseen problem.  could also have removed frost from pipes. Judgment for .
Eckert v. Long Island R.R. (1871) (p. 181) (oncoming train, man saves child & dies)
    If attempting to save human life, reasonable behavior standard for negligence is relaxed.
 train operator and owner of station. 's train did not ring bell / whistle when approaching
station. Child (3 or 4 years old) on track; 's decedent attempts to rescue child; 's decedent gets
hit by train and later dies. Arguably not wise for  to attempt rescue; but, no contributory
negligence in attempt to save human life – reasonable person standard relaxed. Judgment for .




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Cooley v. Public Service Co. (1940) (p. 187) (power line hits phone line; noise hurts )
     Most efficient option generally precludes finding of negligence – balancing of options.
s – power company & telephone company. Storm hits; power line hits phone line; results in
loud noise in 's phone; serious damage to  (rare neurosis).  suggests preventative measures
(net to catch power line); measures would have endangered lives of passersby near power line;
's suggestions not efficient – more lives harmed than current precautions; judgment for s.
     Issue: should power and phone lines have been buried? Should some activities not be
     engaged in at all (Bolton v. Stone – cricket case?)
United States v. Carroll Towing Co. (1947) (p. 190) (bargee leaves; collision; Ds)
     Famous "Learned Hand" formula: B < PL (Burden < Probability x Injury (Liability))
 Towing Co.,  U.S. (owns cargo); third party Connors Company's bargee left barge; 21 hours
later barge collides with tanker; cargo lost – could have been saved? Bargee's story suspicious,
no excuse for being absent. Burden of bargee being present during daytime less than probability
(wartime bustle – increased) plus injury (loss of cargo). Barge owner contributorily negligent.
Third Restatement – §4 NEGLIGENT
"An actor is negligent in engaging in conduct if the actor does not exercise reasonable care under
all the circumstances. Primary factors to consider in ascertaining whether conduct lacks
reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity
of the harm that may ensue, and the burden that would be borne by the actor and others if the
actor takes precautions that eliminate or reduce the possibility of harm."
Moisan v. Loftus (1949) (p. 192) (attempts to quantify injuries often illusory)
     Explores difficulties of quantifying some things for application of B < PL formula.
Paris v. Stepney Borough Council (1951) (p. 192) ( only had one good eye, loses it)
     Sometimes if the consequences of injury for  are greater, more precautions required.
 only had one good eye; no safety goggles from  employer to protect  from metal shards;
shard blinds ;  negligent (but no obligation to provide goggles to two-eyed employees).
Marginal Precautions and the Hand Formula
     Do not compare to the do-nothing option, examine each stage to determine efficiency.
1) Negligence vs. 2) Strict Liability with Contributory Negligence (p. 194)
     Same basic incentives for either method of assigning responsibility for damages.
1)  will take care, because cost of precautions lower than expected liability.
      knows that recovery precluded due to 's care;   will take optimal care.
2)  will only recover if not contributorily negligent;   takes precautions to preserve action.
      knows  will behave;   will take care because  not contributorily negligent.
Grady – view that negligence induces higher standard of care (p. 195)
1) Strict liability – consequences of minor error are small and well-balanced – no jury
     discretion, pure probability assessment – if accident, then you pay
2) Negligence – consequences of minor error can be large, depending upon jury – difference
     between paying nothing and paying everything –  higher level of precautions taken,
     because too much precaution = slight cost increase, too little precaution can = huge increase.
But, Calfee and Craswell – effects of immediate savings vs. possible future benefit. (p. 195)
Calabresi and Hirschoff (1972) (p. 196)
     Advocating strict liability placed on party in best position to make cost / benefit analysis.
H. Laurence Ross, Settled Out of Court (1980) (p. 196)
Auto accidents usually determined on negligence without contributory negligence, based on pure
assessment of specific traffic laws violated – physical facts of accident sufficient to allocate
liability between drivers (violation – at fault; no violation but stupid behavior – not at fault).

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Andrews v. United Airlines (1994) (p. 197) ( injured, falling item from overhead bin)
     Heightened standard of care for airline sufficient to overcome SJ; B < PL difficult to apply.
 injured by item falling from overhead compartment on 's airplane; flight attendants gave
warning; warnings potentially ineffective (but, low incidence of injuries); higher duty of care for
common carriers (but, not insurer); complex balancing – heightened duty of care sufficient to
overcome summary judgment; possible to retrofit bins with netting; question for jury.
Kelley v. Manhattan Ry. (1889) (p. 199) ( fell on snow-covered stairs at train station)
     Common carrier – heightened standard for dangerous technical aspects; otherwise ordinary.
 slipped and fell on snow accumulation on stairs at 's train station; no utmost care standard.
Bethel v. New York City Transit Authority (1998) (p. 200) (bus seat collapses,  hurt)
     Rejects heightened standard entirely; factor in reasonable standard, more danger = more care
Collapse of 's bus seat hurts ; reasonable standard; public transport no longer ultra-hazardous.
                                       CUSTOMARY CARE
Titus v. Bradford, B. & K. R. Co. (1890) (p. 201) (OLD RULE – standard gauge car on
narrow gauge truck, not securely fastened, falls, 's decedent killed – no Ds)
     Custom formerly strong factor in workplace injuries (almost determinative) – pro-employer.
's decedent killed when standard-gauge car (round-bottom) toppled from narrow-gauge truck
(flat-bottom). Secured car with blocks and wire; arguably dangerous, but customary. Wire came
loose;  unable to get off before car fell over.  accepted risk of employment;  not guilty.
Mayhew v. Sullivan Mining Co. (1884) (p. 204) ( falls through ladder hole in mine)
     Unpopular decision – custom not a defense on any level, not even a factor.
 mining company made ladder-hole in platform near where  worked (no rail); did not warn ;
 fell through hole; does not matter if standard industry practice –  negligent.
     Issue – would  have been negligent if  had been warned?
The T.J. Hooper (1931) (pp. 205–207) (no radio on tugboat; bad weather; cargo lost)
     Trial court – lack of observance of custom (90% tugs – radios on board) sign of negligence
     Learned Hand: it wasn't custom (radios not owners'), but doesn't matter – still negligence
 tugboat lost 's cargo; went out in bad weather; no radio to hear weather report; (1) trial court
finds radios customary –  negligent; (2) Learned Hand – radios not customary (supplied by
outside contractors), but doesn't matter – custom not determinative,  still negligent.
Bimberg v. Northern Pacific Ry. (1944) (p. 208) (bad engineering, customary but negligent)
     Fact that custom not determinative allows wholesale attacks on industry policy.
Wrongful death action due to engineering problem; courts allowed to overrule custom.
Third Restatement – RTT:GP §11 CUSTOM (a) (compliance) (b) (departure)
(a) Compliance with the custom of the community "is evidence that the actor's conduct is not
negligent, but does not preclude a finding of negligence."
(b) A departure from custom "in a way that increases risks is evidence of the actor's negligence,
but does not require a finding of negligence."
Learned Hand's Cost / Benefit Analysis vs. Epstein's Custom Exception
     Epstein exception: put custom before cost-benefit analysis in consensual arrangements.
If a certain custom is understood, then that is the level of risk factored into K price.
Fonda v. St. Paul City Ry. (1898) (p. 209) (private rules not admissible as evidence)
     Private corporate rules not generally allowed as evidence of negligence (standard too high).
It is not fair to penalize employers for attempting to have the highest standards, and falling short.




Jeanette L. Goldsberry                                                                      Page 17
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Lucy Webb Hayes National Training School v. Perotti (1969) (p. 210) (hospital rules
admissible as evidence when insane patient dies when rules disregarded)
    Sometimes, hospital rules admissible – standards harder to determine, good evidence.
's decedent commits suicide by jumping through window at 's hospital; against hospital rules
to allow mental patient to wander from closed to open ward; internal rules allowed as evidence.
Trimarco v. Klein (1982) (p. 211) (shower door shatters; jury to decide if retrofit required)
    Changes in custom can possibly require updates to older structures; jury decides.
 injured from crashing against shower door made of ordinary glass; common practice to build
newer apartments with safer tempered glass; update required?; possibly – jury decides.
                                  CUSTOM IN MEDICAL CASES
Lama v. Borras (1994) (p. 211) (botched back surgery; custom ignored  Ds)
    Custom can be determinative in medical malpractice cases – standard harder to determine.
 victim of bad back surgery (1) no absolute bed rest beforehand (2) no conservative treatment
options (3) during surgery, attempts to remove "extruded" disk; operation unsuccessful (4)
second operation one month later (5) no pre or post-operative antibiotics (6) soiled bandages /
possibility of infection ignored by nurses, inadequate documentation (7)  contracts discitis –
painful infection of space between discs (8) several additional months hospitalization.
 did not use customary standard of care; determinative;  guilty of medical malpractice.
Kalsbeck v. Westview Clinic, P.A. (1985) (p. 216) (standard of similar community/situation)
    "[A] doctor must use that degree of skill and learning which is normally possessed and used
    by doctors in good standing in a similar practice in similar communities and under like
    circumstances."
Hood v. Phillips (1977) (p. 216) (reasonable or prudent physician standard)
    "A physician who undertakes a mode or form of treatment which a reasonable and prudent
    member of the medical profession would undertake under the same or similar circumstances
    shall not be subject to liability for harm caused thereby to the patient."
Jones v. Chidester (1992) (p. 216) ("small minority" agreement insufficient defense)
    "It is…insufficient to show that there exists a "small minority" of physicians who agree with
    the defendant's questioned practice.…[T]here must be a considerable number of physicians,
    recognized and respected in their field, sufficient to create another "school of thought."
Hirahara v. Tanaka (1998) (p. 217) (rectal abscess; wrong anesthetic; patient dies)
    Physician error not determinative of medical malpractice, unless error is unreasonable.
's decedent treated for rectal abscess by ; given wrong anesthetic (patient upside down,
anesthetic heavier than spinal fluid, went to brain, cut off oxygen); dies of heart attack.
Difference between choosing unsuccessfully from a few treatment options, and plain Dr. error.
Conn. Gen. Stat. Ann. §2-184c(c) (1988) – board-certified, vs. non-board certified doctors
Some states (Connecticut) draw distinction between board certified and non-board certified
doctors; board certified doctors can testify in any case within sphere of competence; non-board
certified doctors can testify only in suits brought against non-board certified doctors.
Rush v. Akron General Hospital (1957) (p. 218) (old rule – interns lower standard)
    Early cases allowed lower standard of care for interns (generally overruled).
McBride v. United States (1972) (p. 219) (new rule – interns same standard)
    Now, uniform standard of care for interns and doctors – incentive for better oversight.
Morlino v. Medical Center of Ocean County (1998) (p. 219) (drug kills fetus, PDR ignored)
    Physician's Desk Reference and drug package inserts not determinative of negligence.
 physician prescribes drug with risk of harm to fetus; 's fetus dead next day; contraindicated in
PDR; however,  more concerned with risk of influenza than risk of drug;  not negligent.

Jeanette L. Goldsberry                                                                    Page 18
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Brune v. Belinkoff (1968) (p. 220) (more painful (inferior) method of delivering baby in
New Bedford than Boston; requires more anesthetic;  falls out of bed;  liable)
    Locality rule no longer observed in some jurisdictions; move towards nationalized standard.
 delivers 's baby; uses more painful method (common in New Bedford); standard practice
elsewhere to use less painful method (Boston); requires more anesthetic; excessive anesthetic
causes  to fall out of bed, suffering injuries;  not able to claim lower New Bedford standard.
Overrules Small v. Howard (1880) – basis of locality rule, rural doctor vs. city doctor.
Cavallaro v. Sharp (1956) (p. 221) (mid point in evolution of rule – evidence from similar
jurisdictions admissible – now courts apply nationalized standard)
    Modified locality rule – evidence from experts in similar jurisdictions; overruled by Brune.
Buck v. St. Clair (1985) (p. 222) (board-certified doctors held to especially high standard)
    Locality rule no longer observed (OB/GYN) – especially with board-certified doctors.
Morreim, Cost Containment and the Standard of Medical Care (1987)
    Question – should rural clinics be required to have same equipment as university hospitals?
Helling v. Carey (1974) (p. 223) (Washington) (eye test could have shown glaucoma)
    Custom rejected in some medical cases, where custom is unacceptable (exception not rule).
 patient – 9 years of treatment, eye irritation; never tested for glaucoma; simple cheap pressure
test,  doctor considered  too young for risk; permanent damage to eyes from late diagnosis;
not common practice to give test under age 40;  still negligent. Helling not good precedent.
Problem: pressure test – 96% false positive diagnosis; leads to further expensive tests.
Helling construed narrowly in own jurisdiction (Meeks v. Marx); or ignored (Barton v. Owen).
Morris, Custom and Negligence (1942) (p. 225)
    Custom conclusive in determining appropriate standard of medical care.
"[N]o other standard is practical. Our judges and juries are usually not competent to judge
whether or not a doctor has acted reasonably. The conformity test is probably the only workable
test available."
Sullivan v. O'Connor (1973) (p. 225) (also in Contracts text) (botched nose job)
    Higher standard of care / expectation of results in medicine can be created by assumpsit.
Nose job not successful;  was promised improvement by ; reliance damages (not expectation).
Clevenger v. Haling (1979) (p. 226) (general statement of likely outcome not actionable)
    No negligence for 's promise of no pregnancy after tubal ligation when  gets pregnant.
Unless promise induced reliance, and was not merely an attempt to encourage patient or a
general statement of the likely outcome, not actionable, even if statements technically false.
                                      INFORMED CONSENT
Canterbury v. Spence (1972) (p. 226) ( partially paralyzed after back surgery)
    Expert testimony not required to establish duty of disclosure violations; reasonable care
    standards apply as in non-medical cases (not custom); but, there must be causation. (No Ds.)
 doctor performed back surgery on ;  did not tell  about possible consequences of surgery;
 discovers 's spinal cord swollen and in poor condition;  tried to relieve pressure; after
operation,  prematurely allowed to go to bathroom alone; slipped and fell; paralysis; emergency
operation;  still somewhat paralyzed (bowels, urinary incontinence, crutches). Unclear whether
swollen cord or falling out of bed cause of paralysis. In relation to duty of disclosure, expert
testimony not required – jury capable of understanding issues, custom also not determinative.
Exceptions to duty to disclose: (1) patient unconscious and in imminent danger; (2) risk of
psychological harm (must be compelling). Note: jury eventually found for .



Jeanette L. Goldsberry                                                                    Page 19
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Hatcher v. Black (1954); Sidaway v. Bethlem Royal Hospital (1984) (UK protects Drs)
    Doctors much more protected in UK – no real duty to disclose – doctors can even lie!
Desire to protect against excessive malpractice claims; more respect for doctors than patients.
Mink v. University of Chicago (1978) (p. 236) (pregnant women used in experiment)
    Battery theory allowed when treatment administered without patient knowledge or consent.
Pregnant women used in drug experiment (without knowledge or consent); issue not informed
consent but no consent; battery upheld on basis of potential damage to fetus. Settled.
Difference between this case and Mohr (wrong ear) is presence of wrongful intent / deception.
Kozup v. Georgetown University (1987) (p. 237) (AIDS-contaminated blood infects child)
    No informed consent case re AIDS-contaminated blood; omission wouldn't change outcome.
 contracts AIDS from contaminated blood; tiny risk, emergency transfusion; failure to mention
risk not causative; risk even smaller at time of case (1983); not causative.
But, case remanded (no SJ) on failure to obtain any parental consent for treatment – battery.
United Blood Services v. Quintana (1992) (p. 237) (strict liability standard for blood banks)
    Blood banks could be liable for inadequate screening, even before AIDS widespread.
Some people want strict liability standard for blood banks, as extra incentive to keep blood clean.
Truman v. Thomas (1980) (p. 238) (failure to mention benefits of treatment is actionable)
    Failure to fully disclose risks of NON-treatment also actionable for negligence.
's decedent died of cervical cancer at age 30;  doctor had offered pap smear but failed to
explain its importance; jury found breach of duty to disclose – applies to both benefits and risks.
Arato v. Avedon (1993) (p. 238) (painful/unsuccessful pancreatic cancer treatments)
    No negligence for failure to mention actual low probability of success (5 to 10%) for 70
    painful cancer treatments – general admission by doctors of unlikely success adequate.
Bly v. Rhoads (1976) (p. 239) (sometimes expert testimony helpful in informed consent)
    Softening of Canterbury – sometimes expert testimony helpful in establishing patterns of
    patient behavior in informed consent cases – whether omission likely to affect patient choice.
Cobbs v. Grant (1972) (p. 239) (California; informed consent, reasonable person standard)
    Objective causation standard (guards against 20/20 hindsight) – reasonable person standard.
Arena v. Gingrich (1988) (p. 239) (Oregon; informed consent tailored to each individual)
    Subjective standard – tailored to individual patient – must ask if satisfied with information.
Reaction to Canterbury v. Spence (giving doctors more outs)
New York – allows exceptions where patient specifically states that they don't care what the risks
are, or they waive right to be informed; more discretion not to disclose for emotional reasons.
Paul C. Weiler, Medical Malpractice On Trial 14 (1991) – NEGATIVE
 most valid malpractice claims are not prosecuted;
 many malpractice claims that are prosecuted are not valid.
Frank Sloan, Suing for Medical Malpractice 9–10 (1993) – POSITIVE
 claimants satisfied overall even when they are not compensated;
 compensation more likely when physicians really guilty of something;
 not wasteful – 's usually not even fully compensated for total actual losses.
Dewees & Trebilcock (1992) – considers Canada more efficient
 incentives against malpractice in US system not effective;
 Canadian doctors sued less, lower insurance costs, but no evidence of lesser care;
 overall, US system fails in offering compensation / corrective justice.




Jeanette L. Goldsberry                                                                    Page 20
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                             VIOLATION OF CRIMINAL STATUTES
Osborne v. McMasters (1889) (p. 245) ( fails to label poison;  ingests it, dies)
    Statutes can create new causes of action for negligence, if related to intent of statute.
's clerk (drug-store) failed to label poison (violation of statute); sold to  without warning; 
ingested and died; no prior common law cause of action; civil liability not referenced in statute;
nonetheless, statute creates common law cause of action – statute designed to protect .
Restatement (Third) – §12 STATUTORY VIOLATIONS AS NEGLIGENCE PER SE
"An actor is negligent if, without excuse, the actor violates a statute that is designed to protect
against the type of accident the actor's conduct causes, and if the accident victim is within the
class of persons the statute is designed to protect."
Fitzwater v. Sunset Empire, Inc. (1972) (p. 247) ( slips, falls on ice in front of 's property)
    Intent of statute must be to protect 's class; statute to assist city, not protect ,  no Ds.
 slips and falls on ice in front of 's property; municipal ordinance requires  to remove ice and
snow; intent of statute to aid city in discharge of duty, not to transfer liability; judgment for . If
intent not clear from plain reading of statute, civil liability must be explicitly referenced.
Stimpson v. Wellington Service Corp. (1969) (p. 247) ('s overloaded vehicle, not licensed,
Ds 's underground pipes – Ds awarded)
    Secondary purpose of statute can also create negligence cause of action.
Damage from overloaded vehicle without permit; primary purpose to protect roads; secondary
purpose to protect other structures; judgment for  – weight of truck broke underground pipes.
Teal v. E.I. DuPont de Nemours & Co. (1994) (p. 248) (independent contractors hurt from
's OSHA noncompliance; covered as employees)
    Negligence created by OSHA statute extended to independent contractors on employer's site.
Gorris v. Scott (1874) (p. 248) (sheep on ship not in pen, against statute; washed overboard)
    Intent not related to unfortunate occurrence;  no negligence based on violation of statute.
 did not pen sheep in accordance with statute; purpose of statute to avoid spread of contagious
diseases; 's sheep washed overboard – arguably would not have been if penned; judgment for 
– purpose of statute not related to preventing sheep from being washed overboard.
Kernan v. American Dredging Co. (1958) (p. 248) (kerosene lamp ignites vapors)
    Statutory purpose doctrine not always followed – especially when loss of life involved.
's decedent killed when kerosene lamp ignites flammable vapors on surface of river; lamp
supposed to be at least 8 feet above water per statute – only 3 feet; regulation aimed at collision
not fire; court permitted recovery despite lack of statutory intent (partly because of Jones Act).
Cort v. Ash (1975) (p. 249) (shareholder sues directors for election contributions violation)
    Court hostile towards private causes of action related to federal regulations, no Ds.
No private cause of action for corporate shareholder against corporate directors for violation of
federal presidential election contribution laws. Cause of action not within intent of regulations.
Lowe v. General Motors Corp. (1980) (p. 250) Alabama (recall notice violation; death)
    Some states create private cause of action for federal violations, according to common law.
In wrongful death action (recall and notice practices did not comply), federal statutory violation
allowed as evidence of negligence, and even evidence of negligence per se (Alabama).
Martin v. Herzog (1920) (p. 250) (driving without lights; violates statute & causative)
    Disobeying statute prima facie evidence of negligence; but negligence must be causative.
's decedent traveled without lights at night (statutory violation);  hit ; prima facie evidence of
's negligence; also causative; case remanded (jury instructed  not necessarily negligent).



Jeanette L. Goldsberry                                                                        Page 21
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Tedla v. Ellman (1939) (p. 251) ( and deaf-mute brother injured/killed walking on right
instead of left side of road; no negligence in spite of statutory violation)
    If common law precedent different from statute, and good reason to disobey, not negligent.
 and deaf-mute brother hit by car walking on right side of road (statute required walking on left
so they would be facing traffic); customary (not statutory) exception to walk with traffic when
traffic from behind lighter than oncoming traffic; exception due to legislative intent (safety).
Third Restatement – RTT:GP §13(b) – STATUTORY VIOLATION EXCEPTIONS
(p. 253) Statutory causes of action should be judged by negligence, and not strict liability
standards, by providing that a statutory violation is excused when "the actor exercises reasonable
care in attempting to comply with the statute."
Brown v. Shyne (1926) (p. 253) (decision later overruled; quack chiropractor not negl)
    Quack doctor not automatically guilty of negligence for not having license – OVERRULED.
 paralyzed as a result of chiropractic treatment ( not licensed). Statutory violation. No
negligence per se – only if  did not exercise care that licensed physician would exercise in
similar procedure. Ridiculous – he wouldn't know what procedure to do if not qualified as a
doctor – could do wrong procedure correctly and still not be negligent! Later overruled.
Strong dissent – purpose of statute to prevent this – now prima facie case per NY statute (1992).
Mattero v. Silverman (1961) (p. 256) (generic example)
    Unlicensed drivers not necessarily negligent – depends if (1) never had license, vs. (2) lapse
But Klanseck v. Anderson Sales & Service Co. (1986), new motorcyclist, no license, negligent.
Third Restatement RTT:GP §12 – distinguishes failing to renew from failing driving test.
Ross v. Hartman (1943) (p. 257) (car left unlocked; thief gets in; wrecks; owner liable)
    Statutes can create liability for third party actions enabled by statutory violation.
 left car unlocked and unattended, outside parking garage (statutory violation). Thief steals car.
Thief runs over . Statute intended to promote public safety (especially kids driving cars).
Thieves included by court in intent. To (1) promote safety and (2) enable  to recover,
negligence action allowed against  for actions of thief. Overruled in many jurisdictions.
Richards v. Stanley (1954) (p. 259) (court declined to impose general duty of care)
    Same fact pattern as above, but statute specifically disclaimed statutory cause of action.
Disagreement – are statutes against leaving keys in car for (a) antitheft or (b) safety?
    Meihost v. Meihost (1966); Kiste v. Red Cab, Inc. – Antitheft
    Ney v. Yellow Cab Co. (1954) – safety (issue of trust of driver of yellow cab – for jury).
Lucy Webb Hayes National Training School v. Perotti (1969) (p. 260) (crazy man kills
himself in 's hospital; outmoded regulations violated; no negligence)
    Outmoded regulations should not be used as basis for negligence cause of action.
's decedent killed himself prior to being committed to 's institution; 1909 administrative
agency regulations violated (room not properly barred or closed); but, 's institution had passed
safety inspection from agency that enacted regulations; no negligence cause of action against .




Jeanette L. Goldsberry                                                                    Page 22
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           DRAM STATUTE LIABILITY (VARIES WIDELY BY JURISDICTION)
Vesely v. Sager (1971) (p. 261) (overruled by statute) (California)
    Bar owner negligent for injuries to third party after serving already intoxicated customer.
Drunk man served alcohol by ; drunk man in auto accident with . Precedent – serving alcohol
not proximate cause of drunkenness. Overruled. 4-part test for presumption of negligence:
(1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation
proximately caused death or injury to person or property; (3) The death or injury resulted from
an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;
and (4) The person suffering the death or the injury to his person or property was one of the class
of persons for whose protection the statute, ordinance, or regulation was adopted."  guilty.
Ewing v. Cloverleaf Bowl (1978) (p. 263) (also overruled by statute)
    Bar owner negligent for death of patron in spite of contributory negligence.
Bartender serving ten shots of 151 proof rum to patron on 21st birthday (person wanted to get
really drunk) – person dies – willful misconduct overcomes contributory negligence of patron.
Coulter v. Superior Court (1978) (p. 263) (also overruled by statute)
    Liability extended to noncommercial suppliers of alcohol, e.g. apartment manager.
Apartment manager and owner liable for serving alcohol to obviously intoxicated person, with
knowledge that intoxicated person intends to drive.
Cal. Bus. & Prof. Code §25602 (1997) (p. 264) STATUTE
    This statute overrules dram statute liability in California. Misdemeanor, but no civil liability.
Misdemeanor to serve alcohol to intoxicated persons or habitual drunkards; but no civil liability;
specifically abrogates Vesely v. Sager and Coulter v. Superior Court (total clarity as to intent).
Edgar v. Kajet (1975) (p. 264) (New York)
    NY refuses to impose liability on employers for employee intoxication at firm party.
Klein v. Raysinger (1983) (p. 265) (Pennsylvania)
    No liability for social host for serving alcohol to adults. But
Congini v. Portersville Valve Co. (1983) (Pennsylvania)
    Court allowed action against social host who served liquor to minor – statutory violation.
Fassett v. Delta Kappa Epsilon (1986) (Third Circuit interpreting Penn. Law)
    Persons substantially assisting party serving alcohol could be sued as accomplices.
Kapres v. Heller (1994) (Pennsylvania)
    All minors are incompetent – one minor does not owe duty to another re furnishing alcohol.
    CIRCUMSTANTIAL PROOF (RES IPSA LOQUITUR) AND RELATED MATTERS
Byrne v. Boadle (1863) (p. 281) (barrel of flour falls from 's warehouse;  liable)
    If  damaged by something falling from 's warehouse,  responsible – res ipsa loquitur
Barrel of flour from 's warehouse falls on ;  claims it was not his servants; judgment for 
based on res ipsa loquitur; burden on  to prove that it was not his fault, given circumstances.
Scott v. London & St. Katherine Docks Co. (1865) (p. 283) (wouldn't happen in ordinary
course of things unless poor management by )
    Standard statement of res ipsa loquitur doctrine.
"There must be reasonable evidence of negligence; but where the thing is shown to be under the
management of the defendant or his servants, and the accident is such as in the ordinary course
of things does not happen if those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendants, that the accident arose
from want of care."
Wakelin v. London & S.W. Ry. (1886) (p. 283) ( responsible for being on train track)
    If you are foolish and run in front of train, and get hit, not res ipsa loquitur.

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Prosser and Keeton at 244 – Res Ipsa Loquitur (p. 283)
    (1) The event must be of a kind which ordinarily does not occur in the absence of someone's
    negligence;
    (2) It must be caused by an agency or instrumentality within the exclusive control of the
    defendant; and
    (3) It must not have been due to any voluntary action or contribution on the part of the
    plaintiff.
Third Restatement – §15 RES IPSA LOQUITUR (p. 284)
    It may be inferred that the defendant has been negligent when the 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.
Galbraith v. Busch (1935) (p. 284) – (partly overruled below) ( not a stranger)
     guest in 's car cannot use res ipsa loquitur for sudden swerve; only reasonable care
    required (no duty to discover / repair car defects; no proof that driver error caused accident).
See also Conway v. O'Brien (guest statute, overruled in most jurisdictions) – gross negl. standard
Pfaffenbach v. White Plains Express Corp. (1966) (p. 285) ( stranger, cannot get evidence)
    's car skids across midline of highway, colliding with , no explanation – res ipsa loquitur.
Part of reason this case different from Galbraith –  was stranger, no opportunity for evidence.
Larson v. St. Francis Hotel (1948) (p. 286) (chair thrown out of hotel window on V-J Day)
    Extenuating circumstances can preclude res ipsa loquitur for hotel owner – cannot foresee.
 injured from chair thrown out of window of 's hotel on V-J Day, Aug. 14, 1945. Behavior
unusual, not reasonably foreseeable; hotel not generally responsible for behavior of guests.
Connolly v. Nicollet Hotel (1959) (p. 286) (rowdy hotel party;  injured by falling object)
    Hotel owner responsible res ipsa loquitur for guest behavior when foreseeable (rowdy party).
's hotel taken over by rowdy convention;  injured by falling object;  had reasonable notice.
Walston v. Lambersten (1965) (p. 286) (generic example)
    Acts of God preclude use of res ipsa loquitur (boat lost at sea, no proof of negligence).
Newing v. Cheatham (1975) (p. 287) ( drunk pilot runs out of fuel;  not drunk;  guilty)
    Res ipsa loquitur sometimes allows for directed verdict, when case is clear.
's decedent killed in plane crash; only possible cause running out of fuel in flight due to 's
negligence;  / 2nd passenger drunk;  wasn't; 8 or 9 empty beer cans; visibility excellent,
weather calm, no mid-air collision, crash occurred when fuel ran out;  owned plane, only one
with license to fly,  at controls during crash – exclusive control;  guilty res ipsa loquitur.
Imig v. Beck (1986) (p. 287) (car comes off tow bar on wrecker; no directed verdict)
    High standard for directed verdict; determination of guilt must be entirely clear.
's wrecker towing car; came off tow bar; hit 's car, injured; wrecker passed inspections,
vehicle properly attached to wrecker, towing mechanism checked; no directed verdict.
Third Restatement – RTT:GP §15, comment j – RES IPSA – DIRECTED VERDICT
"[O]nly in very unusual situations does the plaintiff's res ipsa loquitur claim justify a directed
verdict in favor of the plaintiff."




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Colmenares Vivas v. Sun Alliance Insurance Co. (1986) (p. 288) (handrail stops but
escalator keeps moving; s injured;  negligent in spite of 3rd party maintenance K)
     Nondelegable duties exception to exclusive control requirement of res ipsa loquitur.
 Ports Authority runs airport; s riding on 's escalator; handrail stops, steps keep moving; s
fall and suffer injuries;  delegated repair duties to Westinghouse  not exclusive control;
however, duty to maintain escalator in public airport nondelegable  exception to exclusive
control requirement; event does not usually occur in absence of someone's negligence; no
evidence that  contributed to accident; judgment for  res ipsa loquitur.
Holzhauer v. Saks & Co. (1997) (p. 292) (escalator and handrail both stop, injure )
     Normal for escalator and handrail to simultaneously stop; stop button on escalator not in
     exclusive control of , necessary safety feature; no negligence based on res ipsa loquitur.
Winans v. Rockwell International Corp. (1983) (p. 293) ( won't join repair Co. to suit)
     Res ipsa loquitur cannot be applied when all negligent parties not joined (Rule 19 FRCP)
     (except for very unusual ruling, conditional res ipsa loquitur, Anderson v. Somberg).
 refused to join company responsible for most recent repairs in plane crash; no res ipsa loquitur.
Victory Park Apartments, Inc. v. Axelson (1985) (p. 293) (no negl. for cigarette fire)
      not responsible for negligent behavior of guests in apartment (smoldering cigarettes).
Distinguish Tuberville v. Stamp – cigarettes only smoldering; actual fire in field (dangerous)?
Also, possibility of negligent behavior of guests; fire in field started by  without assistance.
Miles v. St. Regis Paper Co. (1970) (p. 294) (rolling logs from train hurt  employee of
rafting co. – way around worker's compensation)
     Exclusive control can allow res ipsa loquitur suit against contractor by employees of sub.
, employee of rafting company, hurt by rolling logs due to sudden train movement; rafting
company directs movement of 's railroad car; however,  in ultimate control of movement; 
cannot sue employer (workers' compensation); can sue ;  found to be in exclusive control.
Prosser, Res Ipsa Loquitur in California (1949) (p. 294)
     "[T]he plaintiff's mere possession of a chattel which injures him does not prevent a res ipsa
     case where it is made clear that he has done nothing abnormal and has used the thing only for
     the purpose for which it was intended." (A chain of custody – begins with , ends with .)
Benedict v. Eppley Hotel Co. (1954) (p. 295) (hotel chair collapses during bingo game)
     Res ipsa loquitur can still apply when injury-causing object has been out of control of .
 injured when chair (owned by hotel) collapses 30 minutes into bingo game; chair missing
screws and bolts on side;  argues that  in exclusive control of chair when she moved it from
hallway to room where game in progress; duty to provide safe chair still 's; res ipsa loquitur.
Third Restatement – RTT:GP §15, comment b – EXCLUSIVE CONTROL DISFAVORED
(paraphrase) Exclusive control functions as poor "proxy" for negligence. Example: a car whose
brakes fail one day after the initial purchase – although the driver is in exclusive control of the
car, good reason lies to fix the blame on the manufacturer.
McDougald v. Perry (1998) (p. 295) (spare tire escapes from cradle, bounces, hits )
     Res ipsa loquitur standard of what ordinarily doesn't occur without negligence is subjective.
's 130-pound spare tire comes out of cradle beneath tractor as it is driven over railroad tracks;
run over by 's rear tires; bounces in air; hits 's jeep. Res ipsa loquitur – court intuits that
accident is of the type that does not occur but for failure to exercise reasonable care.




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Kaye, Probability Theory Meets Res Ipsa Loquitur (1979) – RES IPSA NEGLIGENCE
    Three possible meanings for "ordinarily does not occur in the absence of negligence."
(1) that the probability of the injury given the exercise of reasonable care is quite small; or
(2) that the probability of the injury given reasonable care is smaller than the probability of the
injury given negligence; or
(3) that the probability of the injury given reasonable care is much smaller than the probability of
the injury given negligence. Preferred standard – we should look at marginal changes.
Ybarra v. Spangard (1944) (p. 297) (case against doctor conspiracy of silence –  propped
up on blocks, resulting in partial paralysis/atrophy – everyone guilty)
    Res ipsa loquitur can apply against multiple s, when it is unclear which one is responsible.
 goes into hospital for removal of appendix by  doctors; one of the s (not clear which) props
 against "blocks", causing partial paralysis and atrophy of muscles in shoulder. s point fingers
at one another, to avoid liability – s not in exclusive control of 's surgery, not clear who is at
fault. Idea of res ipsa loquitur to protect 's who are at disadvantage to get at evidence. Forces
disclosure by s as to who is actually at fault, otherwise all liable. Judgment for .
Third Restatement – RTT:GP §15, comment i. – NO CONCERN RE CONSPIRACY OF
SILENCE
    Res ipsa loquitur is simply a doctrine of circumstantial evidence. No concern about unequal
    information between the parties; shift partly due to rise of discovery and expert witnesses.
"The plaintiff can invoke res ipsa even though the defendant is as ignorant of the facts of the
accident as the plaintiff is."
Medical Malpractice – when is expert testimony necessary for res ipsa loquitur?
(1) expert testimony not necessary for hot water bottle burns; or, series of cortisone injections
causing horrible pain and eventual paralysis (commonplace treatment, bizarre reaction – doctor
should have known it was allergic reaction) (Bardessono v. Michels (1971) (p. 303))
(2) expert testimony necessary for broken bones from electroshock treatment of mental patient
(treatment inherently dangerous, but desperate measure, designed to have effect on whole body,
expert required to explain, jury cannot go by facts alone) (Farber v. Olkon (1953) (p. 302)); or,
for experimental procedures (Salgo v. Stanford University Board of Trustees (1957) (p. 302)).
Tendency not to use res ipsa loquitur unless negligence clear, as opposed to unfortunate result.
Greenberg v. Michael Reese Hospital (1980) (p. 303) (tonsil irradiation/cancer cause)
    App. court remands case to consider res ipsa loquitur; actual negligence highly debatable.
 treated by s for tonsil irradiation (common in 1940/50's); later found to possibly cause thyroid
tumors; trial court does not apply res ipsa loquitur (tonsil irradiation distinguished from radiation
burns: radiation burns res ipsa loquitur because they never occur w/out negl.; cancer not certain
to have resulted only from tonsil irradiation); app. court remands to consider res ipsa loquitur.
Anderson v. Somberg (1975) (p. 304) (unusual ruling – tip of forcep comes out in 's back,
many s sued, but not everyone that could have caused accident – still, one guilty)
    Conditional res ipsa loquitur; someone screwed up, we don't know who. Uncertainty, 
    jury finds for all s; remanded by app. ct. – jury must find at least one  guilty.
Tip of forcep (rongeur) broke off in 's back during surgery, unable to remove; any one of the
four s could be responsible (physician, negligence; hospital, negligently furnishing defective
instrument; medical distributor, who supplied rongeur, warranty theory; manufacturer of
rongeur, strict products liability). Appellate court says jury needs to find at least one guilty –
conditional res ipsa loquitur. Dissent – what about other doctors (might have weakened rongeur)
– not joined to suit? s can add parties, but what if no one at fault (sudden patient convulsion)?


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Quin v. George Washington University (1979) (p. 305) (internal bleeding from removal of
spleen – res ipsa only if bleeding at place of suture)
    If bad result in surgery either negligence or unfortunate occurrence, no res ipsa loquitur.
's decedent died of massive internal bleeding from 's removal of spleen; not clear if improper
suturing or weakness in wall of splenic vein responsible; no conditional res ipsa loquitur –
traditional res ipsa loquitur would apply if source of bleeding found to be at place of suture.
Darrah v. Bryan Memorial Hospital (1998) (p. 305) ( nerve D from IV; must join all s)
    No application of conditional res ipsa loquitur – all potential guilty parties not joined.
's nerve damaged in hospital; probably caused by insertion of postoperative IV; but, could have
been caused during or after surgery; refusal to apply conditional res ipsa loquitur because all
potential defendants not joined (surgeons, anesthesiologists – not hospital employees) (Rule 19).
Nevada statute (Nev. Rev. Stat. §41A.100 (1993)) (p. 305)
    Res ipsa loquitur limited to specific events that reasonably couldn't occur without negligence.
Foreign substance in body, explosion/burn; injury to other body part; operated on wrong organ.
Rise or Decline of Res Ipsa Loquitur (Epstein, Grady)
(1) Advances in technology make adverse reactions in surgery and other situations less common;
(2) Expert testimony means that circumstantial evidence not as important to prove case;
(2) But, if adverse outcome, then because of advances in technology it is all the more likely that
injuries resulted form negligence.
 lower cost of precautions, fewer adverse results, greater likelihood of res ipsa negligence.
V.     PLAINTIFF'S CONDUCT
                                CONTRIBUTORY NEGLIGENCE
Butterfield v. Forrester (1809) (p. 308) (horse too fast, trips over pole in road; no Ds)
     Contributory negligence used to be a complete bar to recovery (ran over pole/going too fast).
 riding horse too fast;  left pole out in road (doing house repairs);  runs over pole, injured; 
contributorily negligent; if riding slower, would have avoided obstruction; judgment for .
Beems v. Chicago, Rock Island & Peoria R.R. (1882) (p. 309) ( died uncoupling rail cars;
warned  to slow down; warning ignored;  not contributorily negligent)
     If negligence of  not causative, contributory negligence not bar to recovery.
's intestate died white attempting to uncouple rail car; went between cars while still moving
(contributory negligence); however, not causative –  negligent in driving train too fast, ignoring
's signal to check speed.  relied on  – not contributorily negligent. Judgment for .
Gyerman v. United States Lines Co. (1972) (p. 313) (dangerous stacking of fishmeal)
     Negligence not causative when employee doesn't refuse to do dangerous work for employer.
 gets hurt due to 's dangerous stacking of "fishmeal";  advises 's supervisor, but not his own
supervisor (violation of union contract); however,  does not indicate how fishmeal would have
been safely removed in circumstances;  offers no proof that situation would have been dealt
with if  had been technically compliant;  in unequal position as employee; judgment for .
 bears burden of proof for contributory negligence/causality according to Gyerman, p. 321
Osborne v. Salvation Army (1939) (p. 318) (homeless man not provided w/safety equip.)
     No contributory negligence for volunteer workers – covered as above in Gyerman.
 homeless man at 's facility;  ordered to clean windows; not provided with safety equipment;
considered employee; no contributory negligence; judgment for  for injuries.
Koenig v. Patrick Construction Corp. (1948) (p. 318) (generic example)
     Specifically references that employees are not in position to bargain for safer equipment.



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Padula v. State (1979) (p. 318) (narcotic rehab patients drink ditto fluid/Tang)
    Heightened standard for 's caring for mentally ill 's; no bar due to contributory negligence.
s, in 's narcotic rehab, gained access to printing room; drank ditto fluid and Tang; s injured
(one dead, one blind); 's negligent; no finding of 's contributory negligence; judgment for s.
Raimondo v. Harding (1973) (p. 319) (emergency excuses reasonable errors)
    In emergency, if no time for deliberation, no contributory negligence for error in judgment.
Third Restatement – RTT:GP §7 – EMERGENCY CONTRIBUTORY NEGLIGENCE
The law of negligence takes into account "an unexpected emergency requiring rapid response."
Second Restatement – §465. CAUSAL RELATION BETWEEN HARM AND
PLAINTIFF'S NEGLIGENCE
    (1) The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a
substantial factor in bringing about his harm and there is no rule restricting his responsibility for
it.
    (2) The rules which determine the causal relation between the plaintiff's negligent conduct
and the harm resulting to him are the same as those determining the causal relation between the
defendant's negligent conduct and resulting harm to others.
Smithwick v. Hall (1890) (p. 320) (east side of platform above icehouse door has no rail;
negl.  on east side when building collapses; but negligence not causative;  Ds)
    Contributory negligence must be causative; clear negligence doesn't necessarily bar recovery.
 warned by  not to work on east side of platform above door in icehouse (no railing); icehouse
buckled outward while  on east side, bricks fell, hit , knocked  to ground;  not contributorily
negligent; warning intended for lack of rail, not structural weakness. Judgment for .
Mahoney v. Beatman (1929) (p. 320) (prior to comparative negligence – 's Rolls Royce
speeding;  veers into lane; accident regardless; but slower speed would lower Ds)
     responsible for all D in car accident;  speeding increased extent of D, but not causative.
 speeding in Rolls Royce;  veers into 's lane; hits ; D if  not speeding $200; with speeding
$5,650; original judgment for  for $200; but, 's speeding not causative; judgment for  for
$5,650 – 's negligence proximate cause. (Confused application of substantial factor rule.)
Some states used to require  to prove lack of contributory negligence / causation
(1) problem – decedent unable to defend own conduct; (2) because  required to show proximate
cause,  also required to show lack of contributory negligence (difficult).
Burden has shifted back to .
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (1914) (p. 322) (pro-property)
    If dangerous sparks escape from train on your property onto mine, I am not contributorily
    negligent for stacking flax nearby (within reason – not black & white, Holmes concurrence).
Property rights almost absolute – my property is mine, you cannot invade it – period.
Holmes – if  can take cheaper precautions than ,  should do so (e.g., stack flax farther away).
Kansas Pacific Ry. v. Brady (1877) (p. 324) ('s hay 2 mi. away, but dry grass; no Ds)
    Earlier opinion – more pro-industry – farmers should take reasonable measures.
's train emits sparks negligently; 's hay, 2 mi. away, catches fire; but,  had dry grass between
train and hay;  contributorily negl.; reciprocal duty – Coasean – avoiding harm to B inflicts
harm on A,  work together to reduce risk, allocate burden to party w/ cheapest precautions.
Derheim v. N. Fiorito Co. (1972) (p. 325) (prior to seatbelt laws, but still majority view)
(Washington)
    Not wearing seatbelt doesn't cause accident (but increases D);  no contributory negligence.
 did not wear seatbelt;  hit him; contributory negligence, at time, complete bar to recovery; 
not negligent – not causative (only increased D);  guilty (perhaps different under comp. negl.).
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Spier v. Barker (1974) (p. 328) (minority view – seatbelt defense legitimate in Ds
determination) (NY; Illinois (+ $25 fine for statutory violation)
    Not wearing seatbelt can mitigate Ds (but not liability) – still minority view.
Dare v. Sobule (1984) (p. 330)
    Failure to wear helmet on motorcycle is also not contributory negligence (as in Derheim).
      LAST CLEAR CHANCE (DISFAVORED IN COMPARATIVE NEGLIGENCE)
Fuller v. Illinois Central R.R. (1911) (p. 331) (wagon hit on train tracks;  could stop)
     had last clear chance to stop accident;  exception to 's contributory negligence.
's decedent dies when hit in wagon on train tracks; inadequate warning whistle;  could have
braked; judgment for  on last clear chance doctrine.
Restatement (Second) of Torts (1966) (p. 333) – §479. LAST CLEAR CHANCE:
HELPLESS PLAINTIFF
    A plaintiff who has negligently subjected himself to a risk of harm from the defendant's
subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
        (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
        (b) the defendant is negligent in failing to utilize with reasonable care and competence
    his then existing opportunity to avoid the harm, when he
            (i) knows of the plaintiff's situation and realizes or has reason to realize the peril
        involved in it or
            (ii) would discover the situation and thus have reason to realize the peril, if he were to
        exercise the vigilance which it is then his duty to the plaintiff to exercise.
§480. LAST CLEAR CHANCE: INATTENTIVE PLAINTIFF
    A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by
the defendant's negligence in time to avoid the harm to him, can recover if, but only if, the
defendant
        (a) knows of the plaintiff's situation, and
        (b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely
    to discover his peril in time to avoid the harm, and
        (c) thereafter is negligent in failing to utilize with reasonable care and competence his
    then existing opportunity to avoid the harm.
Kumkumian v. City of New York (1953) (p. 334) ( run over 3X before train stops)
    Last clear chance used when negligence so gross that 's actions insignificant in comparison.
's decedent run over;  had three opportunities to stop; each time only took quick look when
tripping device signaled track obstruction; third time,  run over;  negligent – last clear chance.
Last Clear Chance a "Transitional" Doctrine; but, still a favorite in econ law. (p. 335)
    Law and economics argument – last clear chance exception to contributory negligence places
    burden on person in best position to mitigate / avoid losses. (Strong should help weak?)
  IMPUTED CONTRIBUTORY NEGLIGENCE (ONLY IF COMMUNITY OF INTEREST)
Mills v. Armstrong (The Bernina) (1888) (p. 336) (law everywhere, but exceptions)
    No imputed contributory negligence from boat navigators to s (also employees of boat).
's decedents on ship Bushire; due to negligence of navigators Bushire collides with Bernina
(negligence on both ships); s not personally negligent; no imputed contributory negligence.
Thorogood v. Bryan (1849) (p. 336) (overruled by Mills above, and similar US cases)
    When bus driver sets  down in middle of road (not at curb) and  run over by ,  not liable
    due to imputed contributory negligence from bus driver to ;  "employer" of bus company.



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Exception to Mills v. Armstrong (p. 339) – "Community of Interest" RST §491, b & g
When  can establish that the passenger and the driver have entered into some relationship that
makes the passenger vicariously liable for the driver's torts, then the courts may impute the
negligence of the driver to the passenger. Generally, defined as "community of interest."
Dashiell v. Keauhou-Kona Co. (1973) (p. 339) ( hurt husband while wife driving golf cart)
    Hostile towards joint enterprise – not even between husband and wife (must be business).
 was injured by negligence of wife (driving golf cart) and ; no imputed negligence;  guilty.
Hartfield v. Roper (1839) (p. 340) (Old Rule – Overturned by Statute in NY (1935))
    Infant barred from recovery due to imputed contributory negligence of parents.
 3-year-old child run over by 's sleigh; barred from recovery due to gross neglect of parents
allowing child to wander into road; repudiated or overturned by statute in nearly all jurisdictions.
                                     ASSUMPTION OF RISK
Lamson v. American Axe & Tool Co. (1900) (p. 341) (overruled by statute – 1939)
(vibrating hatchet rack; ax falls; assumption of risk because employee aware of danger)
    Employee, aware of dangerous work environment, continues working – assumption of risk.
 employee, paints hatchets for ; new rack vibrates, unstable;  complains,  refuses to fix, 
continues working; hatchet falls, injures ; assumption of risk bars recovery, prior knowledge.
Related: freedom of contract argument, payment for increased risk, e.g. Viscusi (St. Louis
Cordage Co. v. Miller) (1903) (p. 344) But, some risks you should not be allowed to assume.
Farwell v. Boston & Worcester R.R. Corp. (1842) (p. 342) (rail employee loses right hand
due to another employee negligently throwing wrong switch; employer not negligent)
    Fellow servant rule – employer not responsible for negl. of one employee towards another.
 lost right hand when another of 's servants carelessly threw wrong switch;  not negligent.
Exception: "vice-principal" exception – certain supervisory duties nondelegable (e.g., duty to
supply proper equipment, furnish safe workplace, etc.) – Fellow servant rule repudiated in UK.
Restatement (Second) of Agency – §474. STATEMENT OF [FELLOW SERVANT] RULE
    A master is not liable to a servant or subservant who, while acting within the scope of his
employment or in connection therewith, is injured solely by the negligence of a fellow servant in
the performance of acts not involving a violation of the master's non-delegable duties, unless the
servant was coerced or deceived into serving, was too young to appreciate the risks, or was
employed in violation of statute. [This was added to the restatement in 1958.]
Murphy v. Steeplechase Amusement Co. (1929) (p. 346) (The "Flopper" amusement park
ride; knee cap fracture – BUT now, duty to warn)
    s assume risk for amusement park ride re danger of falling (but not for unforeseen dangers)
 rides "The Flopper," conveyor belt that causes people to fall against padded walls;  falls and
fractures knee cap (says there was sudden jerk); no history of problems from ride (aside from
minor scrapes); danger obvious; assumption of risk (unless padding inadequate – unforeseen).
Russo v. The Range, Inc. (1979) (p. 348) (water slide causes  to fly in air, injured; ticket
warnings inadequate to preclude SJ)
    Warnings on tickets inadequate to prevent  from presenting case of negligence to jury.
 injured from water slide; arguably unforeseen danger; flew in air – unforeseen; no SJ for .
Desai v. Silver Dollar City, Inc. (1997) (p. 349) ( injured helping mother out of raft)
    If warning sign large, and  disobeys, assumption of risk – no negligence for .
 injured helping mother out of raft; warning: await attendant instructions; assumption of risk.
Moulas v. PBC Productions, Inc. (1997) (p. 349) (hockey puck flew over Plexiglas; no Ds)
    Spectators cannot sue for injuries from flying objects at sporting events; similar for all sports.
 injured when hockey puck flew over Plexiglas; reasonable foreknowledge; assumption of risk.

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Maddox v. City of New York (1985) (p. 349) (baseball player D kneecap/muddy field)
    Professional athletes assume risk of adverse playing conditions; if knowledge of defect/risk.
 sustained severe damage to knee from falling in muddy playing field; assumption of risk.
(But, athletes do not assume risk of other players intentionally breaking rules – see Hackbart).
Meistrich v. Casino Arena Attractions, Inc. (1959) (p. 350) (ice too hard in rink,  continues
skating – secondary assumption of risk/contributory negligence)
    Primary assumption of risk ( did not breach, risk inherent / acceptable) vs. secondary
    assumption of risk ( did breach, but  assumed risk by continuing in face of danger).
 continued ice skating on rink knowing ice too hard / slippery;  negligent for dangerous
condition of ice; primary risk of falling from skating ( would not be negligent), secondary risk
of continuing to skate when ice excessively dangerous ( negligent;  contributorily negligent).
Primary and secondary assumption of risk should be eliminated – phases of negligence.
Marshall v. Ranne (1974) (p. 351) (mad boar;  trapped in home or exposed to boar)
    Secondary assumption of risk not applicable when 's dangerous condition unavoidable.
 kept mad boar;  had choice between unacceptable options (1) risk attack from hog; (2) stay
inside his house, a virtual prisoner;  injured; no secondary assumption of risk;  negligent.
Suggestion – limit Ds to cost of preventative measures (whether taken or not), plus Ds in spite of.
Krauth v. Geller (1960) (p. 352); Lees v. Lobosco (1993) (p. 353) (ambulance tech.)
    Assumption of risk,  no cause of action for police officers/firemen (but not medical tech.)
 ARBITRATION / INDEMNIFICATION CLAUSES (SOMETIMES UNENFORCEABLE)
Obstetrics & Gynecologists Ltd. v. Pepper (1985) (p. 353) (adverse reaction to birth
control; adhesion K; arbitration clause unenforceable)
    Arbitration sometimes unenforceable if medical adhesion (take-it-or-leave-it) contract.
 signed contract with arbitration clause, required to obtain medical treatment from ;  unaware
of what she was signing; prescription contraindicated by 's medical history; oral contraceptives
caused paralysis; "adhesion" contract; inadequate notice of waived rights; judgment for .
But, does arbitration lower cost of treatment? (Courts still overrule unconscionable arbitration).
Broemmer v. Abortion Services of Phoenix, Ltd. (1992) – no notice of waived rights
Sosa v. Paulos (1996) – arbitration agreement presented one hour before surgery;  undressed
Madden v. Kaiser Foundation Hospitals (1976) (p. 357) (arbitration upheld when optional)
    Upholds arbitration where different health plans available (some with jury trial). But:
Engalla v. Permanente Medical Group (1997) (p. 357) (case from Civ Pro)
    Does not uphold arbitration; fraud in presenting arbitration option; unconscionable delay.
California exceptions to indemnification clauses (Cal. Civil Code §1953(a)(5) (1985))
    Indemnification clauses contrary to public policy: hospital; landlord/tenant; school.
Tunkl v. Regents of University of California (1963) (p. 359) – hospital admission form
Henrioulle v. Marin Ventures, Inc. (1978) (p. 359) – landlord/tenant lease
Wagenblast v. Odessa School District (1988) (p. 360) – school district/parents
But upheld in Zivich v. Mentor Soccer Club, Inc. (1998) non-profit soccer club, indemnity OK
                                      COMPARATIVE FAULT
Li v. Yellow Cab Co. of California (1975) (p. 362) ( tries to cross 3 lanes of oncoming
traffic;  speeding; both negligent – "Pure" comparative negligence)
    Abandons contributory negligence bar; applies "pure" comparative negligence.
 tried to cross three lanes of oncoming traffic;  traveling at excessive speed; both negligent.
Court decides total bar to recovery unfair; adopts "pure" comparative negligence (defined below)
Justification (1) logic; practical experience; justice (2) practical difficulties not insurmountable.
Butterfield v. Forrester (pole across road; total bar for speeding) encourages change of system.
Jeanette L. Goldsberry                                                                      Page 31
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"Pure" comparative negligence (California, New York, Michigan, Florida)
    Losses apportioned between victim/injurer according to fact finder's %s for each party.
Modified comparative negligence (Texas, Ohio, Massachusetts, Illinois)
    Same, except plaintiff loses everything if fault too big. (1) Greater fault bar system, and
    (2) equal fault bar system. Modified more popular than pure comparative negligence.
Slight / gross negligence system (only South Dakota / Nebraska)
    Plaintiff can recover if negligence slight in comparison to defendant.
All forms of comparative negligence allow consideration of avoidable consequences for  ( of
failure to mitigate in Ks, lowers Ds) Also, inconsistent expectations do not destroy incentives.
     Assumption of risk, last clear chance, contributory negl. absorbed into comparative negl.
     But, does not apply to strict liability cases (assumption of risk still affirmative defense).
VI.    MULTIPLE DEFENDANTS
             JOINT AND SEVERAL LIABILITY – DIFFERS WIDELY BY STATE
Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R. (1905) (p. 387)
(rail employee injured; railcar w/defective nut; negl. lack of inspection, employer and R.R.)
     Old rule – joint and several liability – if two s A and B both negligent,  can sue both, but
     collect full amount from A; A cannot then sue B for 50% – tough luck.
 injured by railcar with defective nut; both s A and B negligent in inspections; joint and
several liability; before workers' compensation;  collects 100% of damages from A; A sues
B for 50%; no recovery under joint and several liability – each  100% responsible.
Note: If case similar to Rylands (reservoir, water escapes, negl. engineers) recovery possible.
Passive A, no negligence (strict liability); active B (negligent) – A can sue B for full Ds.
If A strictly liable (80% fault) and B negligent (20% fault), loss can be apportioned unequally
between strictly liable and negligent s. Safeway Stores, Inc. v. Nest-Kart (both s) (p. 400)
Krenz v. Medical Protective Co. of Fort Wayne (1973) (p. 389) (medical malpractice)
     Contractual release of one party doesn't release other parties (rejects automatic release rule).
Old rule, due to "joint and several" – all parties viewed as one,  release of one, release of all.
Third Restatement – RTT:AL §40, comment g –  has burden of proving release due to
settlement (p. 389)
"If there is a dispute over whether a particular individual is released, the burden of pleading and
proving that the settlement releases the individual is on the party claiming release."
California Civil Procedure Code §§875–877.5 (original 1957, rev. 1982) (p. 390)
     Describes California system of Joint Liability: pro rata (= div.), settlement gets you out.
§875 – when there are multiple s, (a) judgment divided pro rata; (b) equitable proceeding; (c)
each party has right of contribution – if A pays full amount, can sue B, C etc. for pro rata
share; however, no  can be compelled by another  to pay more than pro rata (d) however, no
right of contribution for intentional torts (e) right of contribution can be subrogated to insurer
that pays judgment; (f) if A has indemnity agreement with B, A cannot sue B for
contribution; (g)  can still collect full amount from any  –  then has to sue for contribution.
§876 – (a) pro rata, = div. (b) master/servants count as one pro rata share, even if multiple s.
§877 – settlement with A (a) does not discharge B, C, etc. (b) A discharged from liability to
B, C, etc. (c) n/a to co-obligors with prior agreement to apportion losses equally (d) not
retroactive on contract debt settlements if contract prior to 1988.
§877.5 – sliding scale recovery agreement between  and (s) (a bit confusing) – the gist is (1)
agreeing 's liability limited by amount  can recover from non-agreeing s; (2) sometimes 
has preexisting debt to agreeing s – settlement reduces amount owed on loan, but no $ payment
to  (3) notice of intent 72 hours prior to entering agreement (but discretion of judge).


Jeanette L. Goldsberry                                                                      Page 32
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American Motorcycle Association v. Superior Court (1978) (p. 392) (motorcycle accident;
s organized/ran race; want to join parents to suit; usually pro rata contribution by statute
(= contribution for s); but court allows out under "partial equitable indemnity"
      allowed to join other s; doctrine of "partial equitable indemnity" – lengthy explanation.
Retains joint and several liability for s, in spite of proportionate reduction for contributorily
negligent  (s still considered 100% guilty; desire to protect )
      's contributory negligence not weighted as heavily as 's negligence ( only harmed
         self,  harmed others (but arguably  harmed others by opening self to injury)) BUT
Permits A to obtain partial indemnity from B, C etc. on a comparative fault basis
      enabling an out to the pro rata contribution, when large difference in level of fault
      payment of Ds based on relative fault under partial equitable indemnity
      no longer all-or-nothing equitable indemnity
      uses §875(f) as loophole – preserves right to indemnity BUT
Partial indemnity not allowed against settling 
      award against other s reduced by amount of settlement, not by proportion that settling 
         would have had to pay
Dissent:
 joint and several liability allows 60/30/10 split to force 10 to pay more if 10 is rich 
 10 may have to pay everything minus tiny settlement – no suit on partial indemnity against
     settling s.
 (minor) hurt in motorcycle race; 2 s organized/ran race (allegedly negligent); one  wants to
joint parents of  to suit for negligence (improper supervision); possible reduction in D from
parents; but parents can settle, or through partial equitable indemnity obtain reduction in pro rata.
Third Restatement – RTT:AL (p. 403) – Joint and Several vs. Several, + variations
 16 states have pure joint and several liability (212-213)
 14 states have several liability only (226-227)
 7 states allow for reallocation of losses from insolvent to solvent s (251–252)
 9 states have complex regimes that typically allow for only several liability of noneconomic
     damages and joint and several liability of economic damages (350–351)
Different approaches to Joint and Several Liability (p. 406) (from unread case)
     No contribution; contribution; contribution plus settlement bar; claim reduction.
Excerpt from unread case, Matter of Oil Spill by the Amoco Cadiz (1992)
No contribution: All s are J&S liable for full Ds.  may decide to collect any part of an
award from any of the s. No one may obtain contribution from another person.
Contribution: All s are J&S liable for the full Ds.  may decide to collect any part of the
award from any of the s. A party called on to pay more of the award than its share of fault
implies may obtain contribution from a party called on to pay less than its share.
Contribution plus settlement bar: The same as the contribution rule, except that one party
may obtain contribution only from another that proceeds to judgment. By settling, a party
escapes any liability for contribution. (Variant: By settling in good faith, that is, for a bona fide
estimate of liability at trial, a party escapes any liability for contribution.)
Claim reduction: s are jointly and severally liable, unless one or more settles. By accepting a
settlement from any party, the  forgoes the ability to collect from the remaining s any Ds
attributable to the settling party's share of fault. The remaining s are not entitled to contribution
from the settling party — because after claim reduction there is no "excesses" payment for which
contribution would be appropriate. This is sometimes called the "comparative fault" rule.

Jeanette L. Goldsberry                                                                       Page 33
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                   VICARIOUS LIABILITY ("RESPONDEAT SUPERIOR")
Ira S. Bushey & Sons, Inc. v. United States (1968) (p. 413) (drunk seaman negligently
operates docked ship; Ds dock; not w/in job duties but foreseeable risk of employment)
    Employer vicariously liable for foreseeable consequences of acts of employee, even if acts
    outside scope of employment.
Drunk seaman ( U.S. Coast Guard's employee) negligently operated docked ship, causing
damage to 's drydock wall. Actions not technically within scope of employment – motive not
to serve employer. Motive test discarded for foreseeability test. Foreseeable that seamen would
get drunk, gain access to ship, damage 's dock. Seaman's activity related to work, as opposed to
personal (even if activity inappropriate). Judgment for  against U.S.
"Respondeat Superior" (vicarious liability) universally accepted in all common law
jurisdictions (p. 416), BUT… (Holmes against it, for individual responsibility)
 Holmes doesn't like it – he is for individual responsibility.
 Bastion of strict liability – employer responsible for employee's negligence even if employer
    not negligent in supervision. Employer does not have to authorize/approve conduct – can
    even specifically disapprove and forbid conduct and still liable.
Justifications for "Respondeat Superior" (p. 417)
(1) Deep pocket of employer vs. employee
(2) Spread out losses for inevitable industrial accidents (not all on employee, plus insurance)
Sykes' Efficiency Arguments for "Respondeat Superior" (p. 418)
(1) In pure personal liability, injured third party only has recourse against employee, who can in
turn seek indemnity against employer – not very efficient chain of events
(2) In vicarious liability, employer directly liable, with possible rights of indemnity against
employee.
 vicarious liability places burden on party in best position to prevent / mitigate losses
 reduces risk of  not being able to recover – unfair burden on third party
 employee would certainly want to contract around having liability in an employment context;
    high costs of contracting around default – not very efficient
 what if multiple employees potentially responsible, but not clear which – protects  to be
    able to sue employer.
Riley v. Standard Oil Co. (1921) (p. 418) (employee goes 4 blocks out of the way to run
personal errand; employer still liable under respondeat superior)
    Respondeat superior covers small deviations from scope of employment (not large).
's employee drove four blocks out of the way on personal errand; still respondeat superior.
Sykes' comments on desirability of rule in terms of increase / decrease in accidents
(1) Respondeat superior for personal activities during working hours creates strong incentive for
employer to monitor employee to prevent these extra activities, but
 could cause employees to go out of way to run personal errands after work, which increases
    chances of auto accident (but, couldn't just as likely decrease, if formerly employee took
    advantage of lenient employer allowing him to do out of the way errands on company time?
 however, could also cause employees to forgo inconvenient errands entirely,  less
    likelihood of accidents (at least auto accidents).
 if personal activities during working hours that result in negligence are usually not auto
    related, then the case for respondeat superior is even stronger – just a discipline problem on
    the job (wasting time unconstructively), not something as likely to happen outside of work.



Jeanette L. Goldsberry                                                                   Page 34
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Lancaster v. Norfolk & Western Railway (1985) (p. 418) (abusive supervisors
"goosing"/insulting employee – employer liable for failing to prevent intentional torts)
     Employers can be liable for intentional torts of employees under direct negligence theory.
 tortured by supervisors (series of abusive/indecent acts, including "goosing"); clearly outside
scope of employment in terms of motive (not respondeat superior); however,  still negligent in
failing to prevent employees from committing intentional torts against  (direct negligence).
Meritor Savings Bank v. Vinson (1986) (p. 419) (employer not automatically responsible for
sexual harassment, but still can be liable if employee failed to deal w/problem internally)
     No definitive rule on sexual harassment, re employer's responsibility for employee behavior.
Supreme Court rejected two rules (1) employer automatically responsible for employee; and (2)
employer never responsible unless  went through every remedy under grievance provisions.
Burlington Industries v. Ellerth (1998) (p. 419) (hostile work environment actionable)
     Harassment not w/in scope of employment; but, hostile environment actionable. Affirmative
     defenses: 1) if reasonable care exercised to avoid/deal with behavior; 2) if  failed to take
     advantage of any corrective opportunities provided by employer (contributory negligence).
Thomas' dissent – urges uniform negligence standard.
Faragher v. City of Boca Raton (1998) (p. 420) (discriminatory environment actionable)
     As above, analogous rules for employment discrimination cases.
Charles v. Barrett (1922) (p. 420) (Old Rule – g.c. not responsible for sub's employee)
     No inference of relationship between sub and general contractor for sub employee's negl.
This is the old rule – as long as employee further business of general employer by service
rendered to special employer, no inference of relationship unless command actually surrendered.
Morgan v. ABC Manufacturer (1998) (p. 420) (New Rule – g.c./sub both responsible)
     Both general and subcontractor jointly responsible for negligence of sub's employees.
"Since liability is based on the right of control, rather than the actual control of the employee at
the time of the accident, it is unreasonable to choose between the two employers when each
shares the right to control the employee's actions." (businesses also interrelated).
Fireman's Fund American Insurance Co. v. Turner (1971) (p. 421) (if employer sued due to
employee's negligence, employer can sue employee and recover Ds)
     If employer's negl. passive & employee's negl. active, employer can sue employee.
Right of indemnification nearly universally adopted in American courts. (but academic criticism)
§388, New York Vehicle and Traffic Law (p. 421)
     If you let another person drive your car, you are also liable for his torts in many jurisdictions.
Protects innocent s from people that loan their cars to others (usually w/out liability insurance).
Heick v. Bacon (1997) (p. 422) (bar hopping together in car; not joint enterprise)
     Very limited expansion of respondeat superior to joint enterprises (pleasure trip inadequate).
 on pleasure trip with another passenger; going around to bars to play games and drink;  wants
to join passenger to suit – not allowed; passenger did not have mutual right of control over
vehicle; joint enterprises usually limited to common pecuniary purpose.
See previous case Dashiell (p. 339) – similar restrictions on imputed contributory negligence
(not joint enterprise between husband and wife,  no imputed contributory negligence).
But  might be poor and passenger rich, as in employer/employee – if able to collect from either,
 more likely to recover. However, employer/employee hierarchical, driver/passenger equal.




Jeanette L. Goldsberry                                                                        Page 35
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Petrovich v. Share Health Plan of Illinois, Inc. (1999) (p. 422) (doctor fails to diagnose 's
tongue cancer; HMO joined to suit as )
    Independent contractors can be employees under: 1) apparent and/or 2) implied authority.
 doctor negligent – failed to diagnose 's tongue cancer;  also sues  HMO for negligence.
Doctor independent contractor; 's HMO member handbook implies doctor employee of HMO.
HMO joined to suit under (1) apparent authority – two requirements: (a) "holding out" –
HMO held itself out as provider of healthcare (promotional materials) (b) justifiable reliance –
HMO encouraged reliance through advertising, and also forced reliance through the nature of the
plan –  chose doctors not based on prior relationship but because they were the doctors
affiliated with the plan – referrals also limited by plan. (2) implied authority – when agent
retains right to control manner of work: (a) right to make prospective decisions of medical
necessity (b) right to refuse to pay for certain health care (c) cost-containment (d) can refuse to
fund treatment doctor has ordered. Doctor's ethical obligation does not relieve HMO of duties; if
HMO contributes to negligence, HMO responsible along with doctor.  entitled to trial (no SJ).
Gilbert v. Sycamore Municipal Hospital (1993) (p. 425) ( released from ER; heart attack)
    Apparent authority – hospital ER physician (indep. contractor) associated with hospital.
Justifications: (1) hospitals are big business, market for brand-name recognition; (2) reasonable
expectations of public have changed (patients rely on hospital's reputation).
 treated / released from ER; suffers heart attack; negligent failure to diagnose heart problem.
Hardy v. Brantley (1985) (p. 430) (apparent authority in spite of K clause)
    ER physician's contract explicitly disclaims any control by hospital – still apparent authority.
HMO responsibility currently hotly debated – lots of different views (p. 429)
    California passed law creating nonwaivable right to certain level of care from HMO.
Effective January 2001,  can bring suit against HMO (irrespective of indemnity provisions) if
(1) necessary care denied, delayed or modified, and (2)  suffers substantial harm. But, forces s
to go through California independent review system before filing suit.
    But, law possibly overruled by broad interpretation of ERISA (1974) – supersedes state laws
    re administration of employee benefit plans.
Proposed ERISA amendments:
    (1) Liability on basis of control, irrespective of whether control is "negligent"
If doctor is negligent, HMO is respondeat superior negligent, if (a) HMO retains some control
over doctor (implied authority) – or if (b) HMO advertises in such a way to lead patients to
believe that doctors are HMO employees, and reliance on HMO is shown (apparent authority).
    (2) Liability only for negligent control (if control has direct negative effect).
If HMO policies had direct negative effect on treatment, then HMO is liable. Not liable for
doctor's negligence, if unrelated to HMO policies. Not liable merely for maintaining control, if
control is not shown to have resulted in harm.
    (3) No liability – patients do not have the right to sue the HMO, only the doctor(s).
Sanford v. Goodridge (1944) (p. 431) ( "independent contractor" on newspaper route;
newspaper joined to suit due to retention of control)
    Defines independent contractor and employee – related to amount of control retained.
Independent contractor: independent in manner/method of performing work; "employer" gives
up right to control how contract performed, only retains right to receive what is in contract.
Employee: employer dictates manner, means and details of performing service.
s newspaper route driver / newspaper;  injured in traffic accident; both s joined.
"It will not do for an employer to make a contract which in many clauses loudly proclaims the
independence of his contracting workman and in other clauses circumvents this granted freedom
by retaining in himself all the control that employers ordinarily possess over their employees."


Jeanette L. Goldsberry                                                                     Page 36
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Law v. Phillips (1952) (excavation); Brown v. Wisconsin Natural Gas Co. (1973) (blasting
or cutting conduits) (p. 431) (Both inherently dangerous)
    Usually employers exempted from work of truly independent contractors – But, exception:
    work on premises of employer that employer knows could be dangerous.
Western Stock Center v. Sevit, Inc. (1978) (p. 432) (ultrahazardous vs. inherent danger)
    Distinguishes ultrahazardous activities (strict liability: trespass/water escaping, e.g. Rylands)
    from inherently dangerous activities (employer liable only if indep. contractor is negl.)
Restatement (Second) of Torts – §427. NEGLIGENCE AS TO DANGER INHERENT IN
THE WORK
"One who employs an independent contractor to do work involving a special danger to others which the
employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates
or has reason to contemplate when making the contract, is subject to liability for physical harm caused to
such others by the contractor's failure to take reasonable precautions against such danger."
VII.    CAUSATION
                               CAUSE IN FACT – RESCUE AT SEA
New York Central R.R. v. Grimstad (1920) (p. 435) (no life preservers; not prox. cause)
    OLD RULE, but basic principle still valid in terms of preponderance of evidence standard to
    prove causation: no Ds unless  proves 's negl. proximate cause, i.e. prove with certainty
    accident would not have occurred had precaution been taken (lowered risk insufficient).
's husband falls overboard in barge/tug accident (not 's fault); he cannot swim;  sees him in
water, runs to get rope; in meantime  drowns. Fed. Empl. Liab. Act, no life buoys, statutory
violation,  negl. Q: was  negl. proximate cause? No, not a certainty that safety equip. would
have saved 's life. Diminished risk of drowning not sufficient to infer proximate causation.
Ford v. Trident Fisheries Co. (1919) (p. 436) (man overboard; rescue boat tied, not
suspended,  harder to access; no Ds – not certain if better precaution = successful rescue)
    If deficient precaution taken, no Ds unless better precaution prevents accident w/ certainty.
Kirincich v. Standard Dredging Co. (1940) (p. 436) (man falls off dredge near shore; no SJ)
    Issues of possible causation due to negl. sufficient to preclude SJ – fact finder weighs info.
 fell off of dredge close to shore, carried away by tide; friends try to save him with inadequate
rescue equipment (rope),  drowns; district ct. dismisses; app. court remands for trial; sufficient
possibility that larger, more buoyant object would have saved man's life; for fact finder to decide.
Zinnel v. United States Shipping Board Emergency Fleet Corp. (1925) (p. 436) (quoted )
    Learned Hand: "There of course remains the question whether they might have also said that
    the ['s] fault caused the loss. About that we agree no certain conclusion was possible.
    Nobody could, in the nature of things, be sure that the intestate would have seized the rope,
    or, if he had not, that it would have stopped his body. But we are not dealing with a criminal
    case, nor are we justified, where certainty is impossible, in insisting upon it. … we think it a
    question about which reasonable men might at least differ whether the intestate would not
    have been saved, had it been there." [preponderance of evidence vs. beyond reasonable doubt]
Reyes v. Vantage Steamship Co. (1980) (p. 437) (drunk  jumps overboard,  15% negl.)
    MODERN: Where 's negl. partly causative, jury has broad discretion to assign %.
Drunk  jumps off boat, tries to swim to buoy 200 ft. away;  knew 's life in danger, failed in
duty to rescue, & didn't have required rescue equip. per Coast Guard regulations;  drowns 20 ft.
from buoy; eventually remanded for trial, jury finds  15% causation ("pure" comparative negl.).
Haft v. Lone Palm Hotel (1970) (p. 437) (father/son drown in hotel swim pool; no lifeguard)
    If negl. of  contributes to lack of evidence as well as increase in risk,  has burden of proof.
Father/son drown in  hotel swimming pool; no lifeguard, or signs warning swim at own risk
(statutory violation); no evidence of cause; argument that (1) default should be lifeguard,  no
lesser negl. for missing warning sign (2) negl. contributed to lack of evidence (lifeguard would
have been able to testify as to cause – secondary intent of statute?)  burden of proof shifts to .

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                        CAUSE IN FACT – STATUTORY VIOLATIONS
Zuchowicz v. United States (1998) (p. 438) (pharmacy prescribes overdose; rare disease)
    If act is negl. because it causes increased risk of event, and event occurs, causation can be
    inferred by trier of fact (burden of proof shifts to  to provide good alternative explanation).
 gets prescription filled at 's pharmacy;  negl. prescribes twice recommended dose (FDA reg.
violation);  has horrible symptoms (takes twice recommended dose for 1 month, maximum dose
for another 2 months).  diagnosed with rare illness (PPH) immediately afterwards, dies 2 years
later. Expert testimony convincing – overdose caused illness.  argues negl. not causative
because normal dose might also have resulted in illness. Cir. Ct. rejects argument; when negl.
results in increased risk of a certain type of injury, and the injury occurs, causation is inferred.
(Decision based on idea that (1) at normal doses drug proven safe by FDA (2) expert testified
that overdose causative. Inferring causation would otherwise be more difficult.)
"[I]f (a) a negligent act was deemed wrongful because that act increased the chances that a
particular type of accident would occur, and (b) a mishap of that very sort did happen, this was
enough to support a finding by the trier of fact that the negligent behavior caused the harm."
Stimpson v. Wellington Service Corp. (1969) (p. 442) (overweight truck; broke a pipe?)
    When cause of action based on statutory violation (e.g. truck overweight, pipe broken),
    violation must be causative; if non-negl. truck could break pipe (w/in weight), no causation.
                          CAUSE IN FACT – SLIP AND FALL CASES
Reynolds v. Texas & Pacific Ry. (1885) (p. 443) (slip and fall case; unlit stairs;  guilty)
    When negl. greatly increases risk of injury, and injury occurs, court doesn't allow  to put
    forward fanciful alternative explanations but examines causation in normal course of events.
 waiting for train, hurriedly leaves lit waiting room to catch train and falls down unlit stairs. 's
argument that  could also have fallen during broad daylight given no weight by court –  guilty.
Fedorczyk v. Caribbean Cruise Lines, Ltd. (1996) (p. 443) (woman slips in tub, only a few
abrasive strips (large space between), no causation (w/dissent))
    If risk increases only slightly from smaller to larger precaution, causation not inferred.
Woman slips/falls in tub where abrasive strips spaced widely so that her feet could fit between
them; argument that  negl. caused accident due to insufficient abrasive slips unconvincing.
Dissent convinced by 's expert, slipped due to insufficient strips, negl. causative, e.g. Reynolds.
            CAUSE IN FACT – PRODUCTS LIABILITY (INCLUDING MEDICINE)
Engberg v. Ford Motor Co. (1973) (p. 443) (defective seat belt; man dies; jury –  negl.)
    When / offer competing versions of accident scenario, and both plausible, jury decides.
 in accident in new car made by , man dies. 's argument: (1) seat belt found buckled but
broken ( had it on, but defective); no blood inside (injuries outside car, occurred as result of
defective seatbelt).  argues that malfunction due to alteration of car after it left factory; also
that  had seatbelt too loose. Jury convinced by 's argument; aff'd, 's argument not
contradicted by facts, and not speculative,  jury's decision not clearly erroneous.
Claytor v. Owens-Corning Fiberglas Corp. (1995) (p. 444) ('s exposure to 's fiberglass
not clearly shown (no dates, places etc.) not enough to argue possible exposure through air)
    You must show actual exposure to dangerous substance to win on strict products liability.
s argued that asbestos exposure at job sites caused injuries; but, no clear evidence of direct
exposure to 's asbestos. No dates/places; strange theory about airborne asbestos residual at job
sites, and traveling up to ½ mile in air. Claims unsubstantiated; judgment for .




Jeanette L. Goldsberry                                                                       Page 38
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General Electric Co. v. Joiner (1997) (p. 445) ( lung cancer (smoker, but exposure to
PCBs; weird mice studies/Italian workers (inconclusive), expert testimony excluded)
    D. Ct. can exclude medical expert testimony that is w/out adequate factual basis (gatekeeper).
 electrician sues s on theory that exposure to PHBs in dielectric fluid caused cancer ( was a
smoker & exposed to 2nd-hand smoke). D. Ct. excluded testimony of electrician's experts,
granted SJ to s. S. Ct. (1) "abuse of discretion" standard applied to D. Ct.'s decision to exclude
scientific evidence; (2) D. Ct. did not abuse its discretion in excluding expert testimony based on
studies indicating that infant mice developed cancer after receiving massive doses of PCBs.
Breyer concurs: gatekeeper function of D. Ct. especially important in new areas of science.
Kumho Tire Co. v. Carmichael (1999) (p. 450) (tire blowout; technical testimony excluded)
    D. Ct. can also exclude technical expert testimony, per General Electric Co. v. Joiner.
Frye v. United States (1923) (p. 450) (Old Rule, only generally accepted theories allowed)
    Old rule limited to theories that had the general acceptance of the scientific community.
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1995) (p. 450) (Bendectin case, no Ds)
    Revised standard allows new theories to reach the court, but within reasonable limits.
Culmination of Bendectin cases, birth defects alleged, 's experts relying on reinterpretation of
old adverse studies, not studies that they had conducted; SJ upheld, but drug pulled from market.
Oxendine v. Merrell Dow Pharmaceuticals, Inc. (1986) (p. 451) (earlier Bendectin case)
    Career Bendectin expert witness allowed to give weak testimony because combined with
    other evidence it might amount to something – "whole greater than the sum of its parts."
Richardson v. Richardson-Merrell, Inc. (1986) (p. 451) (Bendectin didn't cause deformities)
    No reasonable jury could find that horrible deformities at birth caused by Bendectin.
FDA cleared Bendectin in exhaustive studies; high doses given to animals directly in tissue not
indicative of effects on humans; little correlation between effects on animal and human tissue.
Agent Orange Cases (p. 452)
    $180m settlement for the class action lawsuit; but when individual cases pressed, SJ for s.
Prof. Abraham – Three levels of causation that must be established in toxic torts (p. 452)
    (1) substance can cause injury (2)  was source of substance (3) proven exposure.
In some cases, particular disease can only be caused by exposure to the particular substance.
    Difficult to prove case where substance causes a variety of diseases, such as Agent Orange.
Herskovits v. Group Health Cooperative (1983) (p. 453) (negl. failure to diagnose lung
cancer; 14% reduction in chance of survival; issue allowed to go to jury)
    Lost chance doctrine:  can recover for reduced survival rate from negl. failure to diagnose
    illness even when  likely to die anyway but only Ds directly resulting from premature death.
 stage 2 lung cancer before diagnosis by ; negl. failure to diagnose at stage 1; 14% reduction
in chance of survival – but less than 50% chance of survival even with timely diagnosis. T. Ct.
granted SJ, but overturned on appeal – jury should hear case. Issue of incentives, otherwise s
never liable for negl. misdiagnosis of terminally ill patients – public policy concerns. Ds
proportionate to lost chance of survival: only direct results of premature death.
    Concurrence: loss of chance of cure basis for Ds, rather than denial of cure – calculated on
    basis of long-term survival rates. (based on King article, 1981)
Dissent – agrees w/previous decisions that decreased chance of survival inadequate to reach jury.
Emotional sympathetic reaction to death, but not sensible. Rule too broad, in derogation of
established principles of proximate causation, that more likely than not 's injuries caused by .
Restatement (Second) of Torts §323 (1965) (p. 454)
    "One who undertakes … to render services to another which he should recognize as
    necessary for the protection of the other's person or things, is subject to liability to the other
    for physical harm resulting from his failure to exercise reasonable care to perform his
    undertaking, if (a) his failure to exercise such care increases the risk of such harm, …"


Jeanette L. Goldsberry                                                                       Page 39
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Cooper v. Sisters of Charity, Inc. (1971) (p. 454) (Old Rule – more likely than not standard)
    Proof of decreased chance of survival not enough to take proximate cause question to jury.
Judicial response to "Lost Chance Doctrine" sharply split (p. 457)
    Of states that have considered it, 16 states accepted, 6 states rejected, 4 undecided.
Some undecided states want legislature to resolve discrepancy with wrongful death statutes.
Wrongful death: 100% recovery for 51% fault, no recovery if 49% fault. Lost chance doctrine:
49% recovery for 49% fault, 100% recovery for 51% fault. Inconsistent, legislative clarification.
(based on decision in Fennell v. Southern Maryland Hospital Center, Inc. (1990) (p. 457)
Concern about overdeterrence, in lost chance as described above. But also concern for
underterrence of above 51% all-or-nothing rule, in that doctors who usually fall below threshold
because they treat terminally ill patients with low survival rates will always be off the hook.
Other conflicting decisions – Michigan, Holton embraces lost chance doctrine out of concern for
incentives, then statute overturns doctrine. Also, no recovery in Michigan for lost chance in non-
death cases (Weymers v. Khera (1997) (p. 458) 30-40% chance of retaining kidney function).
Jackson v. Johns-Manville Sales Corp. (1986) (p. 459) ( contracts asbestosis, 50% chance
of future lung cancer – allowed anticipatory Ds in connection w/asbestosis recovery)
    Concerns about res judicata; court allows anticipatory Ds for chance of additional illness
    related to asbestos exposure, in spite of fact that it had not yet manifested; also Ds for fear.
Mauro v. Raymark Industries, Inc. (1989) (NJ) (p. 460) (asbestos exposure, but no disease)
    No recovery for increased chance of contracting asbestos where chance less than 50% (suit
    can always be brought when injury manifests), but, Ds for costs of medical monitoring.
         CAUSE IN FACT – MULTIPLE POSSIBLE CAUSES, APPORTIONMENT
Kingston v. Chicago & N.W. Ry. (1927) (p. 461) (unknown fire + rail fire destroy property)
    When 2 fires of human origin converge and D property, J&S liable. When 1 fire natural and
    1 human origin, no liability but possible liability implied if 's fire far greater magnitude.
s fire from railway sparks converges w/fire of unknown origin, destroys 's property.  argues
other fire natural,  no liability, act of God. Court finds (1) other fire of unknown but human
origin (2) J&S liability  applies to both tortfeasors (3) 's fire larger than other fire (4)  guilty.
Restatement of Torts, Second – §433A: APPORTIONMENT OF HARM TO CAUSES
    (1) Damages for harm are to be apportioned among two or more causes where
         (a) there are distinct harms, or
         (b) there is a reasonable basis for determining the contribution of each cause to a single harm.
    (2) Damages for any other harm cannot be apportioned among two or more causes.
    Comment …
    d. Divisible harm.… [W]here the cattle of two or more owners trespass upon the plaintiff's
land and destroy his crop, the aggregate harm is a lost crop, but it may nevertheless be
apportioned among the owners of the cattle, on the basis of the number owned by each, and the
reasonable assumption that the respective harm done is proportionate to that number.…
    Such an apportionment is commonly made in cases of private nuisance, where the pollution
of a stream, or flood, or smoke, or dust, or noise, from different sources, has interfered with the
plaintiff's use or enjoyment of his land. Thus where two or more factories independently pollute
a stream the interference with the plaintiff's use of the water may be treated as divisible in terms
of degree, and may be apportioned among the owners of the factories, on the basis of evidence of
the respective quantities of pollution discharged into the stream.
    Third Restatement, §50(b) also endorses apportionment when there is a "reasonable basis
for the factfinder to determine … the amount of damages separately caused" by each party.
Smith v. J.C. Penney Co., Inc. (1974) (p. 465) (coat set afire/melts,  horrible injuries)
    J&S liable fabricmaker/service station owner for fire setting coat ablaze, in spite of difficulty
    of apportionment – both clearly at fault, injuries impossible to separate, totality of condition.

Jeanette L. Goldsberry                                                                          Page 40
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Maddux v. Donaldson (1961) (p. 465) (auto accident, 2 negl. s; J&S liability, w/dissent)
    If court cannot apportion Ds, everyone J&S liable, even if inequity to one  results.
United States v. Chem-Dyne Corp. (1983) (refusal of SJ in "Superfund" case)
    SJ refused even when Ds would have to be somehow apportioned among 289 possible s.
Matter of Bell Petroleum Services, Inc. (1993) (p. 466) (chromium in groundwater)
    Apportionment of Ds based on records of activity, consequent chromium emitted into soil.
Rizzo and Arnold (1980) (p. 467) (theory for when D occurs, w/2 s, each <50% at fault)
    If A's probability is 20%, and B's 40%, A = 0.2/(0.2+0.4), 1/3, B = 0.4/(0.2+0.4), 2/3.
Probability is for if A and B were acting alone; no solution if D only occurs w/combined action.
Epstein's suggestion: divide liability by number of codefendants – simpler?
Summers v. Tice (1948) (p. 468) (two negl. s shoot at quail, one bullet hits  – J&S liable)
    J&S "alternative liability" when 2 parties act in concert, only one guilty but not clear which.
 goes hunting w/s, s both negl. shoot at quail while  in line of fire;  injured by two pellets;
unclear which (s) responsible; each points the finger at the other, says no proof; court says it
doesn't matter, s acted in concert, J&S liable, burden of proof shifts to s to disprove causation.
Ds when either A or B responsible – expands on Kingston standard (both A & B responsible).
Based on theory of Alternative Liability. Later added to Second Rest. of Torts (§433B(3)).
Adams v. Hall (1829) (p. 470) (Old Rule; if no proof which of 2 s did D, no recovery)
    1 of 2 dogs responsible for death of sheep, unclear which – no recovery under old rule.
Restatement (Second) of Torts §433B: Burden of Proof
    (1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct
of the defendant has caused the harm to the plaintiff is upon the plaintiff.
    (2) Where the tortious conduct of two or more actors has combined to bring about harm to
the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm
is capable of apportionment among them, the burden of proof as to the apportionment is upon
each such actor.
    (3) Where the conduct of two or more actors is tortious, and it is proved that harm has been
caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the
burden is upon each such actor to prove that he has not caused the harm. The theory of alternative
liability dictates that tortfeasors who act in concert will be held jointly and severally liable for the
plaintiff's injury unless the tortfeasors are able to prove that they have not caused the harm.
Hall v. E. I. du Pont de Nemours & Co. (1972) (p. 471) (blasting cap Ds, 6 s – still J&S)
    13 infant s, blasting cap injuries; burden to disprove causation shifted to each of 6 s when
    unclear which  responsible, because more than likely that one of 6 s was manufacturer.
Skipworth v. Lead Industries Association (1997) (p. 471) (lead poisoning,  child; SJ for s)
    Market share liability only appropriate when all of the following factors are present: (1) all
    the named s are potential tortfeasors (2) the allegedly harmful products are identical and
    share the same defective qualities (or were "fungible") (3) the  is unable to identify which 
    caused her injury through no fault of her own (4) substantially all of the manufacturers which
    created the defective products during the relevant time are named as s.
's child poisoned from lead paint; paint possibly applied anytime from 1870 to 1977; sues all
manufacturers of lead paint during entire period, various theories. Market share liability
(above) fails on (1) some s necessarily could not be guilty because potential time period so long
that many were out of business when 's house actually painted (2) lead paints not "fungible" –
too many different varieties, different toxicity levels. (compare to Sindell below). Alternative
liability theory 2nd Rest. (§433B(3)) fails because manufacturers did not act in concert. Also
acting in concert / civil conspiracy – this theory might have had some merit if conspiracy of
manufacturer's association to hide evidence of dangers of lead paint poisoning. SJ upheld.



Jeanette L. Goldsberry                                                                         Page 41
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Sindell v. Abbott Laboratories (1980) (p. 476) (DES case, market share liability)
    Apportionment based on market share in products liability case, where factors (above) met.
 injured from mother taking DES while pregnant;  and 5 or 6 other companies produced 90%
of DES marketed during short period in question (9-month pregnancy); above requirements met
(1) all potential tortfeasors (2) DES is fungible (pills exactly the same in content) (3) cannot
identify which through no fault of  (4) nearly all possible s named. Burden of proof shifts to
s to disprove guilt (cross-complaints against each other) – Ds apportioned by market share.
    Courts are unwilling to extend the market share rulings beyond DES. Starling v. Seaboard
    Coast Line R.R. (1982) (p. 479) asbestos considered nonfungible Shackil v. Lederle
    Laboratories (1989) (p. 479) DPT vaccine nonfungible (different methods of preparation)
Other related rulings: Murphy v. E.R. Squibb & Sons, Inc. (1985) – substantial share
requirement not met in suit against single  w/10% of market share; Brown v. Superior Court
(1988) each  only responsible for proportionate share of loss; Hymowitz v. Eli Lilly Co.
(1989) sales in national market basis for decision (no way out of judgment if  has any share in
national market), because basis of market share liability is overall risk, not specific causation.
Avoids unfair shifting of burden when one  has ability to rule out causation in certain regions,
but other s don't, leading to unfair shift of burden to some s just for not having that ability.
McCormack v. Abbott Laboratories (1985) equal division amongst s, unless a given  can
prove a lower percentage of market share, in which case remaining amount divided equally
amongst remaining s. If all s can prove only a specific percentage of market share,  cannot
collect more than that, so if only 90% of market share represented, only 90% of judgment paid.
Sykes' Definition of Acting in Concert, taken from the old Prosser horn book:
    All those who in pursuance of a common plan or design to commit a tortious act actively take
    part in it or further it by cooperation or request or who lend aid or encouragement to the
    wrongdoer or ratify or adopt wrongdoer's acts for their own benefit are equally liable.
                       PROXIMATE CAUSE AND THE SCOPE OF DUTY
Ryan v. New York Central R.R. (1866) (p. 480) ( causes fire to shed, spreads to 's house)
    Old Rule: when actions remote rather than proximate cause of injuries, no Ds, only 1st house.
 train engine sets fire to 's woodshed; fire spreads to 's property; is  proximate or remote
cause? Initial shed fire proximate, all other fires remote  no Ds. (1) concern re large causal
chain, unfair to make  responsible for Ds to s A-Z; fire to one building foreseeable, fire to
others requires intervening circumstances (b) shared burden of increased risk of fire in modern
society (c) insurance covers 's Ds; if  responsible, insurance cos. would collect from .
Note: This "bright line" rule doesn't apply outside of NY, other jurisdictions much more general.
Kerr v. Pennsylvania R.R. (1870) (p. 482) (generic example similar to above)
    It is not a conclusion of law based on Ryan that victim of second fire is unable to collect Ds.
City of Lincoln (1889) (p. 483) (captain's ship D'ed, lost navigation equip.,  loss of ship)
    Both primary and secondary consequences of an act are actionable, even when a human actor
    intervenes, so long as in the ordinary course of things the actions flow from the act.
Ship captain loses navigation equip. as result of collision w/negl. , attempts to get ship to port
but fails, full Ds; all events, including captain's failed attempts at navigating ship, flow from act.
Jones v. Boyce (1816) (p. 483) (jump from coach to avoid crash; recovers for injuries)
    In an emergency, Ds for actions taken to avoid injury which actually end up causing greater
    injury than would have occurred from the accident are still attributed to the negligent actor.
 jumps from out-of-control coach, breaks leg; even though  would not have been hurt had he
stayed in coach, reasonable apprehension of danger; consequence of 's negl.; judgment for .
Tuttle v. Atlantic City R.R. (1901) (p. 484) (train jumps tracks;  ran in fear, hurt knee)
     ran for safety, but would not have been struck. Still, reasonable apprehension of injury.
Mauney v. Gulf Refining Co. (1942) (p. 484) (chair in the way while  flees; but in 's café)
     not liable for  running from explosion and tripping on chair in her own café.
Jeanette L. Goldsberry                                                                       Page 42
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Berry v. Sugar Notch Borough (1899) (p. 484) (tree collapses on speeding train;  still pays)
     Coincidence resulting from negl. otherwise unrelated to Ds does not break causal chain.
's train driver was speeding;  negl. failed to remove weakened tree near train tracks; tree fell
onto train as result of wind; driver injured, train D'ed;  argues (1) 's speeding enabled him to
be in wrong place at wrong time – court rejects argument as it is based on coincidence (2) argues
Ds increased as result of speeding – court rejects lower Ds argument as too hard to differentiate.
Central of Georgia Ry. v. Price (1898) (p. 486) ( Ry. negl. fails to drop  off at train stop;
 spends night in hotel; kerosene lamp explodes;  not liable for Ds)
     When 's injuries not foreseeable consequence of negl. act, and negl. act does not give rise to
     increased risk of specific injury (coincidentally put  in position to be injured),  not liable.
Hines v. Garrett (1921) (p. 486) ( Ry. conductor negl. went past 's stop;  forced to walk
home 1 mi. in dangerous area; raped twice;  liable)
     When increased risk of injury is reasonably foreseeable as result of negl., intervening tortious
     actions of 3rd parties insufficient to break causal chain if actions were the danger anticipated.
Related modern case: Bell v. Board of Education (1998) – 6th grader left behind at drug aware-
ness fair; accosted by 3 boys, taken to house, raped/sodomized; school board held responsible.
Dillon v. Twin State Gas & Electric Co. (1932) (p. 487) (boy trespassing on dangerous
bridge; fell; grabbed exposed high voltage wires;  only liable for additional Ds)
     Independent vs. dependent causation – boy trespassing on bridge (independent), followed by
     boy grabbing exposed high voltage wires (dependent). Boy was electrocuted, but would
     have (1) died or (2) been maimed anyway.  only liable for increased Ds – question for jury.
Pittsburg Reduction Co. v. Horton (1908) (p. 487) (discarded dynamite cap; no Ds for )
     Dangerous object negl. left out, then ends up in place of apparent safety, causal chain broken.
 discards dynamite cap on plant premises; Charlie picks up caps; plays with them at home;
Mom knows he has them, picks them up/puts them away; Charlie trades them to ;  doesn't
know what they are, digs "dirt" out w/match and loses hand.  not liable; causal chain broken by
parents allowing Charlie to keep caps. Incentives for parents to be careful w/negl. discarded
materials. But parents don't have any money to cover Ds, so  probably ends up w/nothing.
Brower v. New York Central & H.R.R. (1918) (p. 489) (negl. train collision; 's
horse/buggy destroyed; but also things stolen;  liable for everything)
     When increased risk of injury is reasonably foreseeable as result of negl., intervening tortious
     actions of 3rd parties insufficient to break causal chain, even if danger secondary to main Ds.
 train negl. collides w/'s horse/buggy (destroyed); but thieves also take advantage, steal things
from  (disoriented driver; property in disarray);  took steps to protect property on train but not
's (foreseeable risk of theft); in spite of intervening actions of thieves,  still liable for all Ds.
Dissent: concern over idea that taken to extremes rule gets absurd (e.g. increased risk of murder)
Watson v. Kentucky & Indiana Bridge & R.R. (1910) (p. 491) (match thrown at gasoline
spill; case turns on jury determination of arson or accident; if arson, no Ds for 's negl.)
     Adopts position of Brower dissent:  only liable for anticipated negl. acts of 3rd parties that
     combine with 's to cause Ds, not criminal acts of 3rd parties even if facilitated by 's negl.
Repudiated in Britton v. Wooten (1991) where arson did not break causal chain in negl.
stacking of trash in 's building.
Atherton v. Devine (1979) (p. 492) ( negl. caused accident;  injured, ambulance comes;
ambulance has accident;  sustains further injuries;  liable for all Ds)
     Original wrongdoer liable for any aggravation of original injuries due to circumstances
     surrounding accident (ambulance crash in this case, in other cases negl. of treating physician)


Jeanette L. Goldsberry                                                                        Page 43
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Restatement (Second) of Torts – §448. INTENTIONALLY TORTIOUS OR CRIMINAL
ACTS DONE UNDER OPPORTUNITY AFFORDED BY ACTOR'S NEGLIGENCE
The act of a third person in committing an intentional tort or crime is a superseding cause of
harm to another resulting therefrom, although the actor's negligent conduct created a situation
which afforded an opportunity to the third person to commit such a tort or crime, unless the actor
at the time of his negligent conduct realized or should have realized the likelihood that such a
situation might be created, and that a third person might avail himself of the opportunity to
commit such a tort or crime.
§449. TORTIOUS OR CRIMINAL ACTS THE PROBABILITY OF WHICH MAKES
THE ACTOR'S CONDUCT NEGLIGENT
If the likelihood that a third person may act in a particular manner is the hazard or one of the
hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally
tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
     Note: These two sections are basically the statement of the law in all US jurisdictions.
Representative cases: Landeros v. Flood (1976) (p. 493) – doctor held liable for not identifying
battered child, and returning child to parents for further beatings.
Bigbee v. Pacific Telephone and Telegraph Co. (1983) (p. 493) Telephone company liable for
 being stuck in phone booth, and unable to escape before drunk driver ran into him.
Scheffer v. Railroad Co. (1881) (p. 494) (old rule – suicide case (brain D) doesn't go to jury)
     Allegations that 's negl. act hurt 's brain so that he became insane and committed suicide,
     did not survive motion to dismiss – not natural and probably consequence of negl.
Fuller v. Preis (1974) (p. 494) (new rule – suicide case (brain D) allowed to go to jury)
     Man walks away from auto accident with negl.  thinking he is OK, but has seizures, has to
     give up medical practice, 7 months later kills himself; but wife has polio, suffers "nervous
     exhaustion", mother ill with cancer. Issue of 's negl. as possible proximate cause of suicide
     (in spite of issues with wife/mother) allowed to go to jury.
Edwards v. Tardif (1997) (p. 495) (new rule – suicide case (depression) goes to jury)
     Doctor negligently prescribed large dose of Tofranil to depressed woman w/inadequate
     follow-up; woman committed suicide a week later w/overdose; suicide not unforeseeable,
     doctor's failure to render adequate care was proximate cause of suicide.
Wagner v. International Ry. (1921) (p. 495) (not read, but quote from Cardozo)
     Famous Cardozo phrase in Wagner, "Danger invites rescue." – you can be liable to rescuer.
In re Polemis & Furness, Withy & Co. (1921) (p. 497) (plank hits boat; spark; fire)
     If act is negl. (harm foreseeable) & harm of much greater magnitude occurs, Ds for all harm.
 charters boat from  owner; K signed indemnifying  against any harm due to negl. boat crew
(under 's control); but onshore stevedoring crew not mentioned (under 's control). Member of
crew negl. drops board onto ship (foreseeable harm, D to boat); causes spark, gasoline on ship
ignites, huge explosion, boat destroyed. Some harm foreseeable, but not of this magnitude.
Doesn't matter; once negl. established,  liable for all harm, not just foreseeable (court rejected
alternative of responsibility only for foreseeable consequences). Judgment for , in spite of K.




Jeanette L. Goldsberry                                                                    Page 44
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Palsgraf v. Long Island R.R. (1928) (p. 501) ( RR's empl. negl. helps man onto moving
train; man has explosives that fall onto track; explosion injures ;  not proximate cause)
    's negl. towards 3rd party (no negl. towards ) causing injury to  is not proximate cause.
 RR's employees negl. assist a man in boarding a moving train; man's package falls onto tracks;
unmarked, but contains explosives; explodes, causing injuries to .  sues  RR not man.
Trial ct. finds for  (w/sharp split, dissent considers man superseding cause, explosives).  negl.
caused package to fall onto tracks and explode by either (1) helping man onto train (2) leaving
door open; ignorance of package contents no defense (3) RR, high duty of care.
Appellate court reverses and finds for  (also w/sharp split).  only negl. towards man, not .
(1) only foreseeable harm from assisting man in boarding train was to man/package (2) package
seemed innocuous enough – no way of anticipating man's negl. in bringing explosives (3) negl.
relational – must be breach of duty to  (4)  did not breach duty to  since no foreseeable harm
(5)  no cause of action against  (6) man w/explosives is proximate cause,  is remote cause.
(6) might be different if foreseeable harm to 's property, and actual harm to 's bodily security.
Exception: transferred intent Talmage v. Smith (throws stick at A, hits B, willfully dangerous.)
Dissent all negl. sin against society,  all consequences covered, even to unanticipated victims.
Argues that proximate cause is practical (e.g., only 1st house in accidental fire able to recover
from negl. , not perfect solution), tailored to individual case based on factors. Package fell onto
tracks due to 's negl.;  therefore liable for Ds; natural/continuous sequence, direct connection.
Also note conflicting accounts of accident, some say that  was much closer to ,  foreseeable.
The Nitroglycerine Case (1872) (p. 511) ('s servants killed opening unmarked explosives)
    Nitroglycerine package explodes when opened by 's servants; servants killed/property
    destroyed;  liable for Ds to landlord under lease, but not liable to servants because no negl.;
    package unmarked, no "notice" of contents. Some courts interpret Palsgraf as "notice" case.
Second Restatement §281
c. Risk to class of which plaintiff is member. If the actor's conduct creates a recognizable risk
of harm only to a particular class of persons, the fact that it causes harm to a person of a different
class, to whom the actor could not reasonably have anticipated injury, does not render the actor
liable to the persons so injured.
Interpretation of §281, no recovery when  has no duty to guard against actual class of Ds.
    Seavey:  negl. leaves heavy can of nitroglycerine on table;  child knocks it off table;
    miracle – no explosion, but D to child's foot from heavy object; no recovery for ; 's only
    duty to guard against explosion, not to keep all heavy objects out of reach of children.
    Keeton:  negl. places rat poison on shelf next to food; heat from nearby stove causes poison
    to explode; no Ds for injuries since danger is of poison being ingested, not of explosion.
§431. WHAT CONSTITUTES LEGAL CAUSE (taken from Andrews' dissent in Palsgraf)
    The actor's negligent conduct is a legal cause of harm to another if
         (a) his conduct is a substantial factor in bringing about the harm, and
         (b) there is no rule of law relieving the actor from liability because of the manner in
    which his negligence has resulted in the harm.




Jeanette L. Goldsberry                                                                       Page 45
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Mitchell v. Gonzales (1991) (p. 513) (adults negl. failed to supervise boy, boy drowns)
     Proximate cause is confusing – better to consider substantial factor, because doesn't imply
     last in sequence. Substantial factor test easier to understand by juries, more intuitive.
's decedent drowns due to negl. failure of s to supervise. Majority: overrules lower court
decision to admit 's instruction re proximate cause (implies last in sequence), in preference for
instruction on substantial factor (easier to understand). Dissent: prefers instruction on proximate
cause, viewing it as having two elements (1) element of physical or logical causation, known as
cause in fact (2) a more normative/evaluative element, which "proximate" imperfectly conveys.
Marshall v. Nugent (1955) (p. 514) ('s truck runs car off road; after accident,  offers to
pull car onto highway, suggests  passenger signal oncoming cars of danger;  hit)
      liable for primary and secondary effects of accident prior to stabilization of the situation.
Truck owned by  oil company runs car off road ( passenger).  offers to pull car back onto
road, suggests that owner and  signal oncoming cars of danger. Owner/ block one lane while
crossing the road, truck blocks other; 3rd party attempts to avoid hitting them but bounces off
fence guard and hits ;  severely injured. Is  responsible for Ds? Yes, if situation not yet
stabilized after accident. (1) proximate causation does not require an event to be the last in a
sequence (2) but negl. Ds limited to harmful consequences that result from specific risk created
(3) foreseeable risks of car accidents not limited to crash – also disorientation, further cars added
to pile up, etc. (4) situation must be stabilized before  off the hook (e.g., if car back onto road,
injury to  5 mi./15 minutes later, then no Ds from  – situation stabilized, no increased risk due
to 's actions) (5) jury decides in cases where there is question/uncertainty re proximate cause.
(6) 's interests in resolution of situation sufficient for 's negl. to apply to  ( not unprotected
meddler) (a) desire to get to business meeting (b) reasonable to help friend in emergency.
(Wagon Mound No. 1) Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co.,
Ltd. (1961) (p. 517) (oil spill drifts to wharf; catches fire at 's shipyard)
     Opposed to Polemis: limits negl. and Ds to foreseeable events – no Ds for direct events if
     unforeseeable (could also be viewed as superseding cause due to intervening human actors).
 negl. spills oil in harbor; drifts to 's ship-repair wharf;  worried about igniting oil, stops
welding, but told spill will not ignite so starts welding again; strange occurrence, rag under oil
surface, smolders from molten metal, catches oil on fire.  would be liable under Polemis?: (1)
some D foreseeable; (2) actual D direct? (but intervening human actors, distinguished from
Polemis). But, court rejects Polemis. Foresight is uniform standard for both negl. and liability.
But, (1) transfers burden to innocent ?; (2) works well in obvious cases, but what about cases
with a mixture of foreseeable and unforeseeable elements. (If contributory negl./assumption of
risk valid defenses, then you can keep the directness test of Polemis and still have this result.)
Doughty v. Turner Manufacturing Co., Ltd. (1964) (p. 521) (asbestos cover knocked into
hotter-than-boiling liquid; no splash (foreseeable) but later explosion (not foreseeable)).
     Wagon Mound: judgment for , consequence not reasonably foreseeable as result of 's negl.
Hughes v. Lord Advocate (1963) (p. 522) (kids trespass, knock over paraffin warning lamps
next to manhole; paraffin causes explosion; foreseeable, explosion closely related to fire)
     Also Wagon Mound, but different result – explosion considered foreseeable  Ds awarded.
Note:  does not pursue charges that trespass barred plaintiff's recovery (attractive nuisance)?
Is this really standard of foreseeable, plus direct Ds that are w/in the same class? (US standard.)




Jeanette L. Goldsberry                                                                       Page 46
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(Wagon Mound No. 2) Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. (1967)
(p. 523) (second case based on oil spill; fire ignites boat being repaired, different finding)
    Evidence of oil fire's foreseeability; ct. finds: (1) fire foreseeable (2) 's discharge of oil
    unlawful (distinguished from Bolton v. Stone where due to lawful nature of activities, small
    risk precludes Ds), and applies  of Hand's formula B < PL, precautions in preventing or
    containing oil spill cheap/effective compared to potential consequences, even if risk slight.
Smith v. Brain Leech & Co. Ltd. (1962) (p. 524) (molten metal splashes on lip, cancer, Ds)
    "Thin skin rule": like Vosburg, you take your victim as you find him – in this case, a
    predisposition towards cancer exacerbates a lip injury negl. caused by  –  liable for all Ds.
Foreseeability rule does not apply to unanticipated weaknesses of s (e.g., predisposition
towards cancer, lost high earning potential, or perhaps a structural weakness exacerbating Ds).
Steinhauser v. Hertz Corp. (1970) (p. 524) (child develops schizophrenia after car accident)
    Dormant predisposition towards schizophrenia (possibly caused by previous accident) doesn't
    preclude Ds. for actual onset of schizophrenia resulting from trauma related to car accident.
American Reaction to above English cases Polemis and Wagon Mound
    The general standard applied is foreseeability for determination of negl.; liability for
    foreseeable Ds, or direct Ds limited to type of foreseeable harm, but not degree.
Petition of Kinsman Transit Co. (1964) (p. 525) (negl. tied boat, stops up river, flooding)
    Applies American standard explained above.
#1's boat is negl. tied/improperly tended; comes loose after ice hits it during thaw; hits another
boat, which then comes loose; both crash into drawbridge of #2; attendants at drawbridge negl.
in failing to raise bridge for drifting vessels (statutory duty); ships combine with ice to stop up
river at drawbridge; flooding causes D to s. Both s responsible, apportionment of Ds between
them. Ship coming loose/drifting down river was foreseeable, and the type of Ds (ship running
into things, getting stuck, etc.) was foreseeable even though the degree of harm was not.
VIII. SPECIAL DUTIES OF CARE
                                      RESCUE SITUATIONS
Buch v. Amory Manufacturing Co. (1897) (p. 548) (child trespasses, hurts hand, no Ds)
     There is no duty to rescue a child trespassing on your premises near dangerous objects.
 child is trespassing on 's property;  warns child to leave, but child doesn't speak English; 's
brother shows  how to use dangerous machine; 's hand is crushed. App. ct. grants directed
verdict for . Absent a duty (parental, etc.) no responsibility to rescue a child trespassing on
your property. Seems immoral, but (1) children are responsible for their intentional torts (2) it
follows that children are also responsible for the consequences to themselves. No duty to warn
trespassing adults of hidden dangers,  no duty to warn child of dangers that they by virtue of
their age cannot perceive. Causation (actionable) vs. prevention (not actionable). Exceptions
listed: enticement, allurement, invitation to injury, traps, public ways, and attractive nuisance.
Mangan v. Atterton L.R. (1866) (p. 551) (child's hand crushed, 's machine on public St.)
     No liability for machine left exposed on public street by , when  child crushes hand in it.
     Not proximate cause, because boy caused his own harm (along w/his friends).
Would have been an easier decision if child not merely stranger, but trespasser (liable for Ds).




Jeanette L. Goldsberry                                                                      Page 47
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Yania v. Bigan (1959) (p. 551) (no duty to save drowning guest on property, if no negl.)
     Even if you taunt a person into committing a dangerous act, he is liable unless incompetent.
     If the danger results from your tortious acts, duty to rescue, otherwise, you can let him die.
's decedent and  both strip miners;  encourages decedent to jump into cut in strip mine, filled
w/water; decedent drowns;  does not attempt to rescue; absent pushing, or manipulation of a
mentally incompetent person,  is not guilty of tortious act, and  has no duty to rescue. 's
own choice to jump into cut causative;  also strip miner, knew as well as  the danger involved.
Montgomery v. National Convoy & Trucking Co. (1937) (p. 559) (trucks stall; no warning)
     Even when you non-negl. create hazard, duty to take reasonable measures to warn of hazard.
's trucks stall, not due to negl.; at bottom of hill, around corner,  cars cannot see hazard lights,
warning flares near car; icy roads;  does not see 's trucks in time, crashes; duty to warn in spite
of non-negl. stall? Yes. s had duty to place flares at top of hill; would certainly have prevented
accident. s knew flares next to car inadequate given icy conditions on hill, road well traveled,
accident inevitable w/out warning. Jury decision only negl., not intentional – upheld by app. ct.
Newton v. Ellis (1855) (p. 560) (hole dug in highway, no warning lights at night; negl. Ds)
     Compound negl. acts with an active and passive component are considered active negl.
Difference between misfeasance (active) and nonfeasance (passive). Same if car fails to brake.
Louisville & Nashville R.R. v. Scruggs (1909) (p. 561) (firetruck can't pass, RR not negl.!)
     Before statutes forcing people to move for emergency vehicles, railroad was not negl. for
     failing to move its train for a firetruck, resulting in 's home burning down due to delay.
Ct., if hose had already been across tracks, duty for train to stop. Dissent: indifference shocking.
Hale, Prima Facie Torts, Combination, and Non-Feasance (1946) (p. 561) (realist view)
     Rugged individualism and absolute rights to freedom from helping your neighbor are
     ridiculous when we consider, as in the above case, the low cost to the RR of moving the train
     and preventing a disastrous fire by allowing the fire truck to get through. B far less than PL.
Restatement (Second) of Torts – §322. DUTY TO AID ANOTHER HARMED BY
ACTOR'S CONDUCT
     If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he
has caused such bodily harm to another as to make him helpless and in danger of further harm,
the actor is under a duty to exercise reasonable care to prevent such further harm.
Summers v. Dominguez (1938) (p. 562) (pedestrian struck by truck, driver doesn't rescue)
     If you cause harm to another person & render him helpless, you have duty to aid and protect.
 drunk truck driver negl. runs into pedestrian; stops only briefly, calls out to victim but hears no
response, drives off;  found next day;  claims contr. negl. of pedestrian on road bars suit; court
says no, separate negl. of not assisting victim (per RST §322); also violation of Cal. code.
Black v. New York, N.H. & H. R.R. (1907) (p. 563) (drunk train passenger; led halfway up
stairs by conductor/brakeman; falls; s liable for negl. assistance)
     If you have not done anything to bring about another's harm, then you have no duty to protect
     them; however, if you proceed to assist them anyway, your efforts must be reasonable, and
     not leave them in a worse position than they were before you gave them assistance.
Zelenko v. Gimbel Bros. (1935) (p. 563) (customer sick; taken to infirmary but no Dr; dies)
     Inadequate efforts prevent others from rendering proper assistance; meddling creates duty.
's intestate sick in 's store;  renders inadequate aid (leaves  in infirmary for 6 hrs. w/no Dr.);
 dies. No duty to assist; however, once  assisted ,  had duty to render reasonable care. 's
shoddy efforts, combined w/putting  in room w/out access to others, prevented  from getting
adequate help from another bystander.  assumed duty by meddling. No inherent duty to
customers in store (not common carrier) but duty assumed in this manner is equally actionable.

Jeanette L. Goldsberry                                                                       Page 48
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Restatement (Second) of Torts – §324. DUTY OF ONE WHO TAKES CHARGE OF
ANOTHER WHO IS HELPLESS
    One who, being under no duty to do so, takes charge of another who is helpless adequately to
[to adequately] aid or protect himself is subject to liability to the other for any bodily harm
caused to him 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 actor's discontinuing his aid or protection, if by so doing he leaves the other in a
worse position than when the actor took charge of him.
Soldano v. O'Daniels (1983) (p. 564) ("Happy Jack's Saloon" patron dies in shooting when
nearby  restaurant refuses to allow person to call police, or to call on his behalf;  negl.)
    If you know someone is assisting another person in an emergency, you must not negl.
    prevent the person from giving aid. See RST §327 below.
Restatement (Second) of Torts – §327. NEGLIGENTLY PREVENTING ASSISTANCE
    One who knows or has reason to know that a third person is giving or is ready to give to
another aid necessary to prevent physical harm to [an endangered person] him, and negligently
prevents or disables the third person from giving such aid, is subject to liability for physical harm
caused to the other by the absence of the aid which he has prevented the third person from giving.
DeShaney v. Winnebago County Department of Social Services (1989) (p. 564)
    It is not a 14th Amend. Due Process violation for social workers to fail to detect child abuse.
 is beaten savagely by father; results in permanently retardation; s visited the home and failed
to remove the child;  argues 14th Amendment Due Process violation (failure to intercede
deprived  of liberty). No violation under Due Process clause, according to Supreme Court.
(Argument in textbook that state tort law could create a common law cause of action based on
the existence of the administrative agency, and any relevant statutes governing it, given that the
 is within the class of persons intended to be protected by the administrative agency/statutes.)
K.H. v. Morgan (1990) (p. 565) (child abused; put in foster care; abused by foster parents)
    State has a duty to protect a child under state foster care if the state has reason to believe that
    foster parents are abusive; but duty limited by $ constraints, limits on professional judgment.
                                      POSSESSORS OF LAND
Robert Addie & Sons (Collieries), Ltd. v. Dumbreck (1929) (p. 565) (child killed no Ds)
    Different duties of care for people on your property: (1) by invitation – highest duty of care,
    take reasonable care to ensure that premises are safe (2) by license, express or implied – no
    duty to ensure premises are safe, but duty not to create trap or allow concealed dangers
    (3) trespasser – no liability for dangers, apart from some willful act (deliberate intention to
    harm, or reckless disregard). Child that dies in this case considered trespasser,  no Ds.
s coal miners; machine w/wheel, motor, conveyor belt to move ash; wheel design flawed,
allows for high possibility of injury, esp. children; but no trespassing signs posted,  warns
people, chases them off property when spotted. Hedge, but w/gaps. People trespass anyway
(use as shortcut, children play there).  child gets caught in machine, dies. Wheel is concealed
danger; but no liability to trespassers (must be intentional, or reckless disregard). Tr. ct. finds for
 on basis of implied license. App. ct. reversed, finds for , child considered trespasser. 's
warnings to trespassers adequate to avoid implied license (UK in 1929, strict adherence to rules).
Excelsior Wire Rope Co., Ltd. v. Callan (1930) (p. 569) (children, hands crushed, Ds)
    Similar scenario to case above, but court finds reckless disregard because (1) no hedge/fence
    (2) right next to playground swarming w/children (3) children chased away from machine,
    but s did not make sure no kids were on wire. Two children had hands crushed between
    wire rope/pulley, Ds based on reckless disregard, even though the children were trespassers.
Jeanette L. Goldsberry                                                                         Page 49
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Gould v. DeBeve (1964) (p. 569) (child falls thru defective wire screen; sub-letters; but Ds)
   Another reckless disregard exception, liability for trespassers: Child recovers from
   landlord after falling through defective wire screen in open window, in spite of the fact that
   he and his mother were staying temporarily as sub-letters of a tenant in violation of the
   tenant's lease (paying half, but no permission). Wire screen on window defective, tenant
   repeatedly asks for screen to be fixed, statute requires repairs to defective screens (to keep
   out flies) but court reads in additional purpose that surely safe screens also keep in children.
Hardcastle v. South Yorkshire Ry. & River Dun Co. (1859) (p. 370) (land next to hwy.)
   Owners of land adjacent to hwy can be held to higher standard to keep land free from hazards
   in case passersby accidentally wander onto property from the main road, out of confusion.
Limits of Attractive Nuisance Doctrine (p. 570)
   Applies to railway turntables, explosives, electrical conduits, smoldering fires, and rickety
   structures. Doesn't apply to rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks.
Twist v. Winona & St. Peter R.R. (1888) (p. 570) (a few courts rejected attractive nuisance)
   The fear in some 19th c. courts was of a slippery slope with attractive nuisance – children can
   make anything dangerous. It is parents' duty to supervise and ensure that children are safe.
Sioux City & Pacific R.R. v. Stout (1873) (p. 570) (most courts allowed attractive nuisance)
   6-yr-old 's foot caught in RR turntable; evidence allowed re construction, location, manage-
   ment & condition of machine; jury allowed to find for  if not w/in reasonable care standard.
Restatement (Second) of Torts – §339. ARTIFICIAL CONDITIONS HIGHLY
DANGEROUS TO TRESPASSING CHILDREN – less broad than Stout
   A possessor of land is subject to liability for physical harm to children trespassing thereon
caused by an artificial condition upon the land if
       (a) the place where the condition exists is one upon which the possessor knows or has
   reason to know that children are likely to trespass, and [no duty to investigate]
       (b) the condition is one of which the possessor knows or has reason to know and which
   he realizes or should realize will involve an unreasonable risk of death or serious bodily harm
   to such children, and
       (c) the children because of their youth do not discover the condition or realize the risk
   involved in intermeddling with it or in coming within the area made dangerous by it, and
       (d) the utility to the possessor of maintaining the condition and the burden of eliminating
   the danger are slight as compared with the risk to children involved, and [B<PL]
       (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
   protect the children.
Limitations on Liability Resulting from Less Broad Restatement
Loney v. McPhillips (1974) (p. 571) (boy drowns in ocean cove while trespassing)
   To encourage private landowners to make land available to public for recreation, no liability
   when 13-year-old boy drowned while trespassing in an ocean cove owned by .
Holland v. Baltimore & Ohio R.R. (1981) (p. 572) (boy jumping trains)
   No liability when 9-yr-old  injured while jumping trains – dangers obvious even at his age.
Merrill v. Central Maine Power Co. (1993) (p. 572) (boy burned while cooking eel)
   No liability when 9-yr-old  climbed fence surrounding s power plant and badly burned
   himself while trying to cook an eel against a live wire.
Vega v. Piedilato (1998) (p. 572) (causation argument, in spite of "attractive nuisance")
   No liability when 14-yr-old boy, jumping from roof to roof running from police, fell down an
   airshaft and died.  could have taken greater precautions, but, boy broke causal chain.
Carmona v. Hagerman Irrigation Co. (1998) (p. 572) (Exception – broad, at least no SJ)
   2-yr-old drowned in canal; no SJ; comparative calculations required per §339 (d) (B<PL)
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Restatement (Second) or Torts – §332. INVITEE DEFINED
    (1) An invitee is either a public invitee or a business visitor.
    (2) A public invitee is a person who is invited to enter or remain on land as a member of the
public for a purpose for which the land is held open to the public.
    (3) A business visitor is a person who is invited to enter or remain on land for a purpose
directly or indirectly connected with business dealings with the possessor of the land.
Lemon v. Busey (1969) (p. 573) (child dies at church where grandmother empl./no Ds)
    Grandmother part-time church employee; 5-yr-old child allowed to come w/her to church for
    convenience of grandmother/parents; grandmother busy at work, child wandered off, fell to
    death from roof reached via unlocked fire escape. Ct. held that she was licensee, no recovery.
Post v. Lunney (1972) (p. 573) (house tour run by 3rd party; house owner liable for Ds)
     paid $5 to tour 's house ($5 to 3rd party tour operator);  tripped on transparent vinyl rug
    protector; sues ; tr. ct. says no recovery, since  only licensee (applies old standard, no
    econ. advantage to  since $5 did not go to her); app. ct. reverses, treats  as public invitee.
Hopkins v. Fox & Lazo Realtors (1993) (p. 574) (real estate agent liable for fall in tour)
     falls down stairs during house tour w/realtor; owner not liable, but realtor is; duty to
    inspect home for dangerous conditions – realtor a quasi-possessor of the premises.
Rules related to public officials (p. 574)
    Generally, when public officials arrive at a home under ordinary circumstances, to collect
    garbage/deliver mail/routine inspections, courts tend to classify them as business visitors.
Mounsey v. Ellard (1973) (p. 574) (policeman delivering summons is implied invitee)
    Police officer delivering summons implied invitee; reasonably safe route of access required.
                                    "GRATUITOUS" PROMISES
Coggs v. Bernard (1703) (p. 589) (brandy casks break due to s negl. moving them for free)
    If  does something for  for free, 's act of trusting  to do it is consideration, and  will be
    held to a reasonable standard of care in completing the tasks, and will be responsible for Ds.
This case is based on the Roman bailments laws. Allows  to recover for improper performance
of gratuitous services, even though services could be discontinued without penalty.
Thorne v. Deas (1809) (p. 590) (failure to insure ship as promised, no consideration, no Ds)
    Old rule, no action for non-feasance; now overruled under promissory estoppel.
Section 90, Restatement (Second) of Contracts (p. 590) (promissory estoppel)
§90. PROMISE REASONABLY INDUCING ACTION OR FORBEARANCE
    (1) A promise which the promisor should reasonably expect to induce action or forbearance
on the part of the promisee or a third person and which does induce such action or forbearance is
binding if injustice can be avoided only by enforcement of the promise. The remedy granted for
breach may be limited as justice requires.
Erie R.R. v. Stewart (1930) (p. 591) (RR watchman did not warn of train;  injured)
    If you create an expectation by taking a certain precaution, and you cease taking that
    precaution w/out warning, if someone is injured relying on that precaution you are liable.
 RR hired watchman to warn of oncoming trains; watchman not at his post;  relied on 's
precaution, injured as a result of watchman failing to warn of oncoming train.  argues no duty
to post watchman under statute (true); but  had knowledge of practice of posting watchman; 
injured in reliance. Majority says if  had not been aware of practice,  would not be liable.
Concurrence believes that 's actual knowledge should not matter, if it is a RR's custom to post
watchmen they have duty to warn of cessation of services irrespective of 's actual knowledge.



Jeanette L. Goldsberry                                                                       Page 51
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Marsalis v. LaSalle (1957) (p. 594) ( gets rabies shots due to s failure to confine cat)
     is liable for Ds for failure to take promised precautions if in reliance  fails to take other
    precautions that would otherwise have been taken, and sustains injuries.
 is bitten/scratched by 's cat.  asked s to keep cat under observation for fourteen days to
determine whether animal was rabid. s promised to, but made insufficient efforts to do so – cat
escaped from basement, was gone for a month. The cat turned out not to have rabies.  could
have taken other precautions (animal control), but didn't in reliance on s' promise.  forced to
get rabies shots; had horrible reaction to vaccine serum.  gets Ds for reliance on s' promise,
even though s were under no legal obligation to keep the cat aside from their promise.
Restatement (Second) of Torts – §323. NEGLIGENT PERFORMANCE OF
UNDERTAKING TO RENDER SERVICES
    One who undertakes, gratuitously or for consideration, to render services to another which he
should recognize as necessary for the protection of the other's person or things, is subject to
liability to the other for physical harm resulting from his failure to exercise reasonable care to
perform his undertaking, if
         (a) his failure to exercise such care increases the risk of such harm, or
         (b) the harm is suffered because of the other's reliance upon the undertaking.
Indian Towing v. United States (1955) (p. 597) (govt. liable for failure to take precautions)
    Under Federal Tort Claims Act, govt. liable under same obligations as private party acting
    under like circumstances. Therefore, failure to maintain lighthouse when a reasonable
    expectation created, resulting in reliance by barge and Ds, is actionable.
Moch Co. v. Rensselaer Water Co. (1928) (p. 597) (water co. not liable for failed hydrant)
    If a 3rd party is injured as a result of a breach of K duty by one party to another, the 3rd party
    cannot get Ds for that failure unless there is reckless and wanton indifference.
's warehouse is burned as a result of  water co's failure to provide adequate water to the fire
hydrant pursuant to its K w/the city. Can , as a 3rd party beneficiary of the K, receive tort Ds?
No. (1) No b-o-c action, because  is 3rd party (2) no action in tort, because (a)  has no duty to
, and is guilty only of nonfeasance (misfeasance can involve inaction, but only if inaction is of
the sort that will definitely lead to injury, e.g., surgeon operating for free quitting in the middle
of surgery, or automaker's negl. inspection of car resulting in injury to 3rd party) (b) to add a
duty in relation to 3rd parties would enlarge the scope of K liability too far (3) no breach of
statutory duty (a) duty to provide water at reasonable rates through suitable connections etc.
insufficient to allow tort action for indirect Ds related to deficient pressure at hydrants; (b) duty
to city/fire dept. to provide water pressure to hydrants, not to 3rd party (in shipping, carrier liable
to person submitting package for refusing to take it, but not to the person waiting for it).
Note: Seavey criticizes "waterworks" cases, since they go against the tendency to impose strict
liability on those in control of situations which, if things go wrong, result in a large amount of D.
Gregory defends the decisions, because it is fire insurance companies that should foot the bill.
Restatement (Second) of Torts – §324A. LIABILITY TO THIRD PERSON FOR
NEGLIGENT PERFORMANCE OF UNDERTAKING
    One who undertakes, gratuitously or for consideration, to render services to another which he
should recognize as necessary for the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his failure to exercise reasonable
care to protect his undertaking, if
         (a) his failure to exercise reasonable care increases the risk of such harm, or
         (b) he has undertaken to perform a duty owed by the other to the third person, or
         (c) the harm is suffered because of reliance of the other or the third person upon the
    undertaking.
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Strauss v. Belle Realty Co. (1985) (p. 602) (power failure; man falls down defective stairs)
    Court refuses to apply §324A.  falls down defective stairs due in part to  power co.'s negl.
    in allowing power failure. However,  did not have direct K relationship w/ power co. (
    realty co. had K w/power co.;  rented).  power co. not liable for 's injuries. Court has
    responsibility "to define an orbit of duty that places controllable limits on liability."
Doyle v. South Pittsburgh Water Co. (1964) (p. 603) (generic example applying §324A)
    "[W]here a party to a contract assumes a duty to the other party to the contract, and it is
    foreseeable that a breach of that duty will cause injury to some third person not a party to the
    contract, the contracting party owes a duty to all those falling within the foreseeable orbit of
    risk of harm."
Harris v. Board of Water & Sewer Commissioners of Mobile (1975) (p. 603)
    Pure negligence theory: "given the fact that the hydrant was installed, the failure to use
    reasonable care in its maintenance, including the supplying of water thereto, is a sufficient
    breach of duty to provide a party with a cause of action under the theory of simple
    negligence." (irrespective of K, installation of hydrant creates duty to maintain it).
Weinberg v. Dinger (1987) (p. 603) (§324A applies to hydrants if insurance inadequate)
    Water company immune from losses for negligent failure to maintain adequate water
    pressure for fire fighting, unless claims are uninsured or underinsured, in which case they are
    liable for whatever is not covered by insurance. But what if insurance cos. insert clauses in
    fire insurance Ks stating that insurance will not cover losses as a result of negl. hydrants?
Cullings v. Goetz (1931) (p. 604) (OVERRULED)
    No landlord liability for injuries to third parties due to landlord's negl. failure to repair.
    (Tenant has a duty to keep third parties away until problem is fixed.) OVERRULED.
Putnam v. Stout (1976) (p. 604) (guests of tenants can sue landlords for failure to repair)
    Justification for adoption of Restatement §357: (a) tenants financially unable to make repairs
    (b) possession for limited term, no incentive to repair (c) landlord getting $ from relationship,
     he should assume certain obligations with respect to the safety of others.
Restatement (Second) of Torts – §357. WHERE LESSOR CONTRACTS TO REPAIR
    A lessor of land is subject to liability for physical harm causee to his lessee and others upon
the land with the consent of the lessee or his sublessee by a condition of disrepair existing before
or arising after the lessee has taken possession if
        (a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the
    land in repair, and
        (b) the disrepair creates an unreasonable risk to persons upon the land which the
    performance of the lessor's agreement would have prevented, and
        (c) the lessor fails to exercise reasonable care to perform his contract.
Nelson v. Union Wire Rope Corp. (1964) (p. 605) (ALTERED BY STATUTE)
     gets around worker's comp. by suing insurance company for negl. inspection and wins Ds.
820 ILCS 305/5(A) (West 1993)
    No common law or statutory right to recover damages from the employer, his insurer, his
    broker, any service organization retained by the employer, his insurer or his broker to provide
    safety service, advice or recommendations for the employer or the agents or employees of
    any of them for injury or death sustained by any employee while engaged in the line of his
    duty as such employee, other than the compensation herein provided, is available to any
    employee who is covered by the provisions of this Act.
Reid v. Employers Mutual Liability Insurance Co. (1974) (p. 605) (explains 305/5(A))
    Explains 820 ILCS 305/5(A) on basis of (1) disincentive to conduct inspections that you are
    under no legal obligation to perform if you can be liable for Ds if the inspections negl. fail to
    uncover some safety problem (2) benefit to workers if inspections by insurance cos. continue.
To avoid liability, insurance cos. add clauses to Ks w/employers: (1) inspections undertaken only
for benefit of insurance co. (2) inspection does not warrant that premises are safe.

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                                     SPECIAL RELATIONSHIPS
Restatement (Second) of Torts (1965) (p. 606) – §315. DUTY TO CONTROL CONDUCT
OF THIRD PERSONS, GENERAL PRINCIPLE
    There is no duty so to control the conduct of a third person as to prevent him from causing
physical harm to another unless
         (a) a special relation exists between the actor and the third person which imposes a duty
    upon the actor to control the third person's conduct, or
         (b) a special relation exists between the actor and the other which gives to the other a
    right to protection.
Weirum v. RKO General Inc. (1975) (p. 607) (disk jockey, first here gets $, drag race, dead)
     liable for grossly irresponsible inducements to 3rd party negl. behavior resulting in injury.
 disk jockey stages contest; first to get to announced location and answer simple questions gets
$ prizes; teenage drivers in 80 MPH drag race to get there first; forced 's decedent off of
highway. Normally, no liability for 3rd party actions, but (1) not like normal scramble for scarce
goods – actual encouragement to "thrill of the chase" (2) intensified by radio broadcasts which
accompanied pursuit. Intention to generate competitive pursuit on public streets.  liable for
death of 's decedent. (Note: court considered this misfeasance to which §315 is inapplicable.)
Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) (p. 608) ( attacked, apt. hall)
    Landlord has duty to protect tenants from foreseeable criminal activity on apt. premises.
 robbed/assaulted outside her apt., in private hallway.  used to keep guards/lock side doors;
quit having guards, left doors unlocked. Halls of building under exclusive control of landlord
(no police protection)  landlord only party in position to eliminate risk of criminals entering.
Reasonable care was not taken, violence foreseeable (prior attacks),  liable for Ds. But (1) if
violence sudden and unexpected, no liability (2) landlord not insurer, only reasonable
precautions necessary. Dissent: argues (1) landlord did not have notice of prior attacks (only
theft) (2) possible attackers were tenants (inadequate proof of causation) (3) too much to expect
landlords to provide police protection (but just lock the doors/provide guard at main entrance?).
Restatement (Second) of Torts – §344. BUSINESS PREMISES OPEN TO PUBLIC: ACTS
OF THIRD PERSONS OR ANIMALS
    A possessor of land who holds it open to the public for entry for his business purposes is
subject to liability to members of the public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons
or animals, and by the failure of the possessor to exercise reasonable care to
         (a) discover that such acts are being done or are likely to be done, or
         (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to
    protect them against it.
Nivens v. 7–11 Hoagy's Corner (1997) (p. 614) (applies §344 above)
    Special relationship exists between business owner and invitee, allowing Ds for injuries for
    failing to shield customers from criminal attacks (in a similar manner as Kline).
Peterson v. San Francisco Community College District (1984) (p. 615) (student assaulted)
    College district has special relationship w/student; duty to protect student from foreseeable
    danger (in this case, criminal assault on stairway in parking lot, criminal concealed by bush)
Clohesy v. Food Circus Supermarkets, Inc. (1997) (p. 615) (parking lot assault as above)
    Supermarkets also have duties to customers to protect them from hidden parking lot dangers.
Lopez v. Southern California Rapid Transit District (1985) (p. 615) (common carriers have
duty to passengers to protect them from assault)
    Court imposes liability for passenger assaults, suggests bus drivers should (1) summon
    assistance, or eject unruly passengers (2) be trained to recognize/deal w/dangerous situations.


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Frances T. v. Village Green Owners Association (1986) (p. 616) (volunteer condo bd. liable)
    Kline liability extended to volunteer condo boards ( didn't see attacker because condo board
    failed to authorize installation of bright lights which would have enabled  to see attacker).
Dissent: concerns re condo board volunteers, who would volunteer if they might be liable?
Ann M. v. Pacific Plaza Shopping Center (1993) (p. 616) (rape inside store; mall not liable)
    High degree of foreseeability required to impose liability for actions of 3rd parties; a few
    security problems at mall inadequate for owners to be liable for rape inside leased store.
Kuzmicz v. Ivy Hill Park Apartments, Inc. (1997) (p. 616) (apt. not liable for vacant lot)
    If apts. are next to vacant lot (overgrown w/weeds, garbage) owned by someone else, apt.
    owners aware people use lot as shortcut, they are still not liable for any injuries ( mugged,
    economic benefit of apts. from shortcut not enough to impose liability, owner of lot liable).
Burgos v. Aqueduct Realty Corp. (1998) (p. 617) (tenant beaten/robbed; causation inferred)
    For landlord to be liable for attack,  must show causation, (e.g., inadequate security was
    causative, the assailant gained access through unlocked door). But court can infer causation
    from circumstantial evidence (men not wearing masks, no entrances had functioning locks).
Wassell v. Adams (1989) (p. 618) (Posner) (rape victim in hotel 97% negl. for opening door)
    Hotel has affirmative defense of contributory negl. when , thinking it was her fiancé at the
    door of her hotel room in the middle of the night, opens it to a stranger who rapes her. 
    claims she should have been warned of dangers of high crime area, but common sense to
    check before opening door in middle of night. Ds $850k, but  97% negl.,  $25.5k Ds.
Tarasoff v. Regents of University of California (1976) (p. 618) (patient kills; told psych.)
    Psychiatrists have duty to warn potential victim of patient's threats.
s' decedent was murdered by  psychiatrists' patient; patient told s beforehand of intention to
murder her; s allege failure to warn is proximate cause. s say no duty to . Court uses factors
to determine duty, the most important being foreseeability. But liability for 3rd party behavior
(requiring either control of dangerous person or warning to potential victim) only attaches if 
has special relationship to either perpetrator or victim. (See §315). Patient/therapist satisfies
requirement,  duty to warn 3rd parties of danger. Therapist can use professional judgment re if
patient likely to carry out threats (reasonable care standard w/in specialty); but in this case s
admitted they believed patient would kill. Risk of unnecessary warnings worth price (privacy vs.
public interest). Not ethical violation to divulge info. Dissent – ruins therapy confidentiality.
Beauchene v. Synanon Foundation, Inc. (1979) (p. 624) (no duty, private rehab center)
    Private rehab center owed no duty of care to members of public when it accepted people
    referred as condition of parole; improper admittance/supervision alleged. Limits Tarasoff.
Thompson v. County of Alameda (1980) (p. 624) (no duty when patient's threats general)
    No duty under Tarasoff if threats are general (in this case, I will kill a young child) vs.
    specific (I will kill X). Juvenile released, kills child, mother and community not warned.
CA statute now governs – no duty unless serious threat against reasonably identifiable victim(s);
duty discharged by reasonable attempt to communicate threat to victims/law enforcement agency
Lundgren v. Fultz (1984) (p. 625) (beyond CA – duties esp. when psych. enables behavior)
    Psychiatrist convinces police to return guns to paranoid schizophrenic; responsible for harm.




Jeanette L. Goldsberry                                                                   Page 55
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Estates of Morgan v. Fairfield Family Counseling Center (1997) (p. 626)
    When psychiatrist has limited interactions w/patient, e.g. outpatient, harder to determine duty
    but sometimes if psychiatrist can anticipate potential problems a duty is created.
Schizophrenic son; leaves home, becomes homeless, then is hospitalized, put on antipsychotics;
returns home, sees psychiatrist (part of  counseling center), psych. falsely believes son is faking
symptoms to get disability, takes him off antipsychotics. Son quits seeing psych., becomes more
abusive, parents unable to get son institutionalized ( would not support commitment). Nine
months after last visit with psych., kills parents, wounds sister. Court applies §319. In spite of
time elapsed between visit and murder, still special relationship, and still "taking charge" of
patient (broadly interpreted).   still responsible. Could have foreseen problem (was medical
malpractice really behind this case, rather than just duty – taking son off medication).
Restatement (Second) of Torts – §319. DUTY OF THOSE IN CHARGE OF PERSON
HAVING DANGEROUS PROPENSITIES
    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.
Nasser v. Parker (1995) (p. 627) (ex-boyfriend leaves mental hospital, kills girl, + suicide)
    Psychiatric hospital had no duty to warn potential victim when abusive ex-boyfriend left
    hospital, supposedly in for long-term treatment, but admitted voluntarily; sees psych. to get
    more pills, 4 days later he kills her, then commits suicide. No duty (frosty towards Tarasoff).
    "[T]akes charge" §319 requires more than ordinary doctor/patient relationship (e.g. custody).
Rejects argument that lower level of control required in warning as opposed to confinement cases.
IX.    POCKETS OF STRICT LIABILITY
              INTENTIONAL TORTS REVISITED (TRESPASS/CONVERSION)
Moore v. The Regents of the University of California (1988, 1990) (p. 630) (spleen taken)
    App. Ct. (later rev'd): spleen taken from patient is conversion (strict liability). Conversion
    requires (1) 's ownership/right to possession at time of conversion; (2) 's conversion by
    wrongful act or disposition of 's P rights; and (3) Ds. Knowledge/bad faith not required.
 has rare hairy cell leukemia.  Drs. remove spleen, but do not ask 's permission to use spleen
in research. s examine spleen, discover unusual properties of cells. s continue to monitor
/take tissue samples for 7 yrs. w/out mentioning underlying financial motives. s create
lucrative cell line from 's cells, patent, $ from licensing.  discovers s used his cells w/out
permission. Argues (1) conversion (strict liability) and (2) failure to obtain informed consent.
App. Ct. agrees w/conversion theory (see above). Strict liability,  does not require negligence.
s cannot claim P interest in spleen and patented cells, and then say that  has no P interest. s
cannot claim spleen was abandoned, because abandonment requires intent ('s intent not clear).
's cells converted by s, value added by s may mitigate Ds, but strict liability for conversion.
    Cal. Supr. Ct.: spleen taken from patient is not conversion (no P right in removed organs/
    fluids), but failure to obtain informed consent in relation to possible Dr. financial motives.
Informed consent/fiduciary duty requires disclosure of Dr.'s personal interests that might affect
medical judgment (research/economic) – there was a breach. But taking cells is not conversion.
(1) no precedent for treating removed organ as P; (2)  did not retain sufficient ownership
interest in cells to qualify for conversion (common law/statute limits patient interest in excised
cells) (3) ct. does not believe that patented cell line can be 's P (4) policy considerations (a)
informed consent deals with most abuses (b) innocent researchers might be impeded from
socially useful activities (5) fear of expanding litigation over cell pedigrees, cos. unwilling to
invest in biotechnology if there is uncertainty about clear title to cell-based products/patents.

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Broussard dissent: No conversion if (1) patient grants general consent for medical research
using removed organ/cells (2) Dr. has no prior knowledge of value of organ/cells. But Drs. knew
value of organ/cells before they removed them, failed to disclose. Interfered w/'s right to
determine how parts would be used (when organ/cells still in 's possession). Conversion.
Mosk dissent: Failure to obtain informed consent is insufficient cause of action: (1) gives only
right to refuse consent, not to agree conditional upon sharing in proceeds (2) doesn't reach Drs.
benefiting from cells but not in fiduciary relationship w/ (other Drs. may benefit more from
commercial exploitation) (3) difficult to prove causation in failure to obtain informed consent (if
you would've had the procedure done anyway you can't recover). Conversion action is needed.
Poggi v. Scott (1915) (p. 631) ( purchased building, found barrels in basement, sold them
as junk, but they were filled w/'s wine; no knowledge or intent, but still conversion)
    "The foundation for the action of conversion rests neither in the knowledge nor the intent of
    the defendant. It rests upon the unwarranted interference by defendant with the dominion
    over the property of the plaintiff from which injury to the latter results."
Fouldes v. Willoughby (1841) (p. 638) (trespass to chattels v. conversion)
    Forcibly removing chattels can be trespass, but is not conversion absent claim of ownership.
 forcibly removed 's horses from 's ferry before setting sail ( claims to induce rowdy  to
leave).  brings conversion action. No conversion – no intent to make further use of horses.
Possibly trespass (carrying off goods then in 's possession). Trespass is an offense against
possession alone (If C steals P from B, and B had stolen it from A, A can't sue C for trespass).
Conversion action can be brought by anyone w/rights to ownership/immediate possession.
Restatement (Second) of Torts – §922. RETURN OR TENDER OF RETURN OF
CONVERTED CHATTEL
    Note: conversion/trespass often overlap, but used to have different Ds. Conversion: forced
    sale,  pays full market price (rule now relaxed, see below). Trespass, return of chattel + Ds
    limited to reduction in value – full price only awarded in cases of complete destruction.
    (1) The amount of damages for the conversion of a chattel is diminished by its recovery or
acceptance by a person entitled to its possession.
    (2) The amount of damages may, in the discretion of the court, be diminished by a tender of
return of the chattel to one entitled to its possession if
         (a) it was converted in good faith and under a reasonable mistake, and
         (b) its value to the one entitled to possession is not substantially impaired, and
         (c) the tender is made promptly after discovery of the mistake and is kept open.
                                      DANGEROUS ANIMALS
Baker v. Snell (1908) (UK) (p. 639) (maid bitten by master's ferocious dog; strict liability)
    2 causes of action for dog bite (1) liability for negl. failure to control animal (master or his
    servant) (in US, not if you are fellow servant); (2) strict liability for having dangerous animal.
 maid bitten by  master's dog. Dog was supposed to be chained by fellow servant, but wasn't;
fellow servant teased dog, dog bit . Not intentional, so no break in causal chain. Respondeat
superior,  liable for negl. of fellow servant (not in US). But, better cause of action, strict
liability for harboring animal known to be ferocious. Two kinds of animals (1) animals that are
dangerous by nature, e.g. elephants (2) animals that are not dangerous by nature, e.g. dogs. But,
dogs known to be ferocious are placed in category (1). Strict liability for dangerous animals.
Concurrence wants strict liability even if fellow servant's provocation of dog was intended to
harm , unless  provoked animal. Note: Fellow servant rule not valid in UK, but valid in US,
 no respondeat superior cause of action, but strict liability cause of action is valid. See Farwell.


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Restatement (Second) of Torts – §509. HARM DONE BY ABNORMALLY DANGEROUS
DOMESTIC ANIMALS
    (1) A possessor of a domestic animal that he knows or has reason to know has dangerous
propensities abnormal to its class, is subject to liability for harm done by the animal to another,
although he has exercised the utmost care to prevent it from doing the harm.
    (2) This liability is limited to harm that results from the abnormally dangerous propensity of
which the possessor knows or has reason to know.
    One bite rule not quite accurate – dangerous propensities are enough for strict liability.
    Comment g …
    A dog is not necessarily regarded as entitled to one bite. It is enough that the possessor of the
animal knows that it has on other occasions exhibited such a tendency to attack human beings or
other animals or otherwise to do harm as should apprise him of its dangerous character. Thus, the
fact that a dog has to his knowledge unsuccessfully attempted to attack human beings or other
animals is sufficient to bring its possessor within the rule stated in this Section … .
Restatement (Second) of Torts – §504. LIABILITY FOR TRESPASS BY LIVESTOCK
    (1) Except as stated in Subsections (3) and (4), a possessor of livestock intruding upon the
land of another is subject to liability for the intrusion although he has exercised the utmost care
to prevent them from intruding.
    (2) The liability stated in Subsection (1) extends to any harm to the land or to its possessor or
a member of his household, or their chattels, which might reasonably be expected to result from
the intrusion of livestock. [determination of reasonably expected harm based on type of animal]
    (3) The liability stated in Subsection (1) does not extend to harm
        (a) not reasonably to be expected from the intrusion;
        (b) done by animals straying onto abutting land while driven on the highway; or
        (c) brought about by the unexpectable operation of a force of nature, action of another
    animal or intentional, reckless or negligent conduct of a third person.
    (4) A possessor of land who fails to erect and maintain a fence required by the applicable
common law or by statute to prevent the intrusion of livestock, cannot recover under the rule
stated in Subsection (1).
[Note that bailee becomes liable as possessor, and not owner of livestock.]
City and County of Denver v. Kennedy (1970) (p. 644) (no strict liability for zoo zebra)
    Although zoos are not strictly liable for harm caused by animals (public policy weighs in
    favor of allowing zoos to keep dangerous animals; this is not true for private citizens).
    Possible negl. cause of action for inadequate barriers between animals and zoo patrons.
Rubenstein v. United States (1972) (p. 644) (bear mauled camper in Yellowstone Park)
    No strict liability for bear attack in campground (1)  warned of danger by park authorities,
     s not negl. (2) s discharged duty to warn,  no strict liability, assumption of risk.
Distress Damage Feasant (p. 644) (farmers want strict liability for animals D'ing P)
    Farmers have a self-help mechanism known as "distress damage feasant" where they will
    confine someone else's animals or P that has come onto their land and is interfering with the
    productive use of it, and will not release the P irrespective of negl. w/out pmt. of fee.
Garcia v. Sumrall (1942) (p. 645) ( responsible for fencing land to keep out 's cattle)
    In "grazing states" ranchers using public grazing land not responsible if cattle stray onto
    unfenced private P – shifts burden from ranchers to farmers. "Open range" makes sense in
    sparsely populated areas where ranching is main land use. "Closed range" makes sense in
    areas of varied land use (fences too expensive, better to negotiate permission to trespass).
In some areas, reciprocity, people treat neighbors' P w/respect even w/open range rules in place.


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                             ABNORMALLY DANGEROUS ACTIVITIES
Spano v. Perini Corp. (1969) (p. 647) (s' garage/car D'ed from blasting, strict liability)
     Strict liability for all foreseeable consequences of blasting accidents, incl. D from vibrations.
s sets off dynamite at construction site, 125 ft. away from 's premises. s' car repair garage /
car D'ed. Negligence alleged by s, but no proof offered, rely on strict liability. Tr. ct. finds for
s on strict liability; 1st app. ct. reverses due to Booth precedent requiring showing of negl. 2nd
app. ct. rev'd again, found for s on basis of strict liability, overruling Booth. Physical trespass
not necessary (flying rocks vs. vibrations, both actionable). Strict liability does not give serious
disincentive to do useful blasting work, but simply allocates cost where it should be, on .
Note (1) absolute liability for storage of gunpowder (Heeg v. Licht (1880) (p. 649)) (2) Booth
originally rested on distinction between trespass (physical entry) and case (indirect vibrations).
Yukon Equipment v. Fireman's Fund Insurance Co. (1978) (p. 660) (strict liability, owner)
     Thieves igniting explosives to cover theft, doesn't sever causal chain for owner of explosives.
Laird v. Nelms (1972) (p. 651) (no govt. liability for D from vibrations of sonic boom)
     No recovery for Ds to 's P due to sonic boom from military aircraft (1) Federal Tort Claims
     Act, govt. only liable for negl./wrongful act, no proof of negl., wrongful act requires trespass.
But govt. liable under Civil Aeronautics Board rules, planes flying too low coming into airport,
ruined s' land for chicken farming, "taking" requires compensation. U.S. v. Causby (1946)
Restatement (Second) of Torts (1977) – ABNORMALLY DANGEROUS ACTIVITIES
[generally a categorical approach to classification]
     §519. GENERAL PRINCIPLE [mink farm case also in Illus. 1]
     (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has exercised the
utmost care to prevent the harm.
     (2) This strict liability is limited to the kind of harm, the possibility of which makes the
activity abnormally dangerous.
     Comment c. The word "care" includes care in preparation, care in operation and skill both in
operation and preparation.
     Comment on Subsection (2):
     e. Extent of protection. The rule of strict liability stated in Subsection (1) applies only to harm
that is within the scope of the abnormal risk that is the basis of the liability. One who carries on an
abnormally dangerous activity is not under strict liability for every possible harm that may result
from carrying it on. For example, the thing that makes the storage of dynamite in a city abnormally
dangerous is the risk of harm to those in the vicinity if it should explode. If an explosion occurs
and does harm to persons, land or chattels in the vicinity, the rule stated in Subsection (1) applies.
If, however, there is no explosion and for some unexpected reason a part of the wall of the
magazine in which the dynamite is stored falls upon a pedestrian on the highway upon which the
magazine abuts, the rule stated in Subsection (1) has no application. In this case the liability, if any,
will be dependent upon proof of negligence in the construction or maintenance of the wall. So also,
the transportation of dynamite or other high explosives by truck through the streets of a city is
abnormally dangerous for the same reason as that which makes the storage of the explosives
abnormally dangerous. If the dynamite explodes in the course of the transportation, a private
person transporting it is subject to liability under the rule stated in Subsection (1), although he has
exercised the utmost care. On the other hand, if the vehicle containing the explosives runs over a
pedestrian, he cannot recover unless the vehicle was driven negligently.
     Illustration: [endorses Madsen v. East Jordan Irrigation Co. (1942) (p. 659) (minks)]
     1. A, with reasonable care, carries on blasting operations in a closely settled rural district. A
has no reason to know of the presence of B's mink ranch nearby. The noise of the blasting
frightens the mink and the fright causes them to kill their young. A is not subject to strict
liability to B for the loss of the mink. [See also §524A re 's abnormally sensitive activity]

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    §520. ABNORMALLY DANGEROUS ACTIVITIES
    In determining whether an activity is abnormally dangerous, the following factors are to be
considered:
    (a) existence of a high degree of risk of some harm to the person, land or chattels of others;
    (b) likelihood that the harm that results from it will be great;
    (c) inability to eliminate the risk by the exercise of reasonable care;
    (d) extent to which the activity is not a matter of common usage; [Fletcher, Fairness and
Utility in Tort Theory, considers (d) to be based on non-reciprocal vs. reciprocal risks]
    (e) inappropriateness of the activity to the place where it is carried on; and
    (f) extent to which its value to the community is outweighed by its dangerous attributes.
    [Koos v. Roth (1982), rejects (f) as too subjective, and unnecessary. Strict liability does not
prevent dangerous but beneficial activity, merely allocates losses fairly to party causing harm.]
    Comment:
    b. Distinguished from negligence. The rule stated in §519 is applicable to an activity that is
carried on with all reasonable care, and that is of such utility that the risk which is involved in it
cannot be regarded as so great or so unreasonable as to make it negligence merely to carry on the
activity at all. (See §282). If the utility of the activity does not justify the risk it creates, it may be
negligence merely to carry it on, and the rule stated in this Section is not then necessary to
subject the defendant to liability for harm resulting from it.
    c. Relation to nuisance. If the abnormally dangerous activity involves a risk of harm to
others that substantially impairs the use and enjoyment of neighboring lands or interferes with
rights common to all members of the public the impairment or interference may be actionable on
the basis of a public or a private nuisance. (See §822, and Comment a under that Section). The
rule of strict liability stated in §519 frequently is applied by many courts in these cases under the
name of "absolute nuisance," even when the harm that results is physical harm to person, land or
chattels.
    d. Purpose of activity. In the great majority of the cases that involve abnormally dangerous
activities the activity is carried on by the actor for purposes in which he has a financial interest,
such as a business conducted for profit. This, however, is not necessary for the existence of such
an activity. The rule here stated is equally applicable when there is no pecuniary benefit to the
actor. Thus a private owner of an abnormally dangerous body of water who keeps it only for his
own use and pleasure as a swimming pool is subject to the same liability as one who operates a
reservoir of water for profit.
    e. Not limited to the defendant's land. In most of the cases to which the rule of strict liability
is applicable the abnormally dangerous activity is conducted on land in the possession of the
defendant. This, again, is not necessary to the existence of such an activity. It may be carried on
in a public highway or other public place or upon the land of another. …
    Comment on Clause (c):
    h. Risk not eliminated by reasonable care. Another important factor to be taken into account
in determining whether the activity is abnormally dangerous is the impossibility of eliminating
the risk by the exercise of reasonable care. Most ordinary activities can be made entirely safe by
the taking of all reasonable precautions; and when safety cannot be attained by the exercise of
due care there is reason to regard the danger as an abnormal one. …
    Comment on Clause (d):
    i. Common usage. An activity is a matter of common usage if it is customarily carried on by
the great mass of mankind or by many people in the community. It does not cease to be so
because it is carried on for a purpose peculiar to the individual who engages in it. Certain
activities, notwithstanding their recognizable danger, are so generally carried on as to be
regarded as customary. Thus automobiles have come into such general use that their operation is
Jeanette L. Goldsberry                                                                              Page 60
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a matter of common usage. This, notwithstanding the residue of unavoidable risk of serious harm
that may result even from their careful operation, is sufficient to prevent their use from being
regarded as an abnormally dangerous activity. On the other hand, the operation of a tank or any
other motor vehicle of such size and weight as to be unusually difficult to control safely, or to be
likely to damage the ground over which it is driven, is not yet a usual activity for many people,
and therefore the operation of such a vehicle may be abnormally dangerous.
    Although blasting is recognized as a proper means of excavation for building purposes or of
clearing woodland for cultivation, it is not carried on by any large percentage of the population,
and therefore it is not a matter of common usage. Likewise the manufacture, storage,
transportation and use of high explosives, although necessary to the construction of many public
and private works, are carried on by only a comparatively small number of persons and therefore
are not matters of common usage. So likewise, the very nature of oil lands and the essential
interest of the public in the production of oil require that oil wells be drilled, but the dangers
incident to the operation are characteristic of oil lands and not of lands in general, and relatively
few persons are engaged in the activity. …
    Comment on Clause (f):
    k. Value to the community. Even though the activity involves a serious risk of harm that
cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the
community may be such that the danger will not be regarded as an abnormal one. …
    Comment:
    l. Function of court. Whether the activity is an abnormally dangerous one is to be
determined by the court, upon consideration of all the factors listed in this Section, and the
weight given to each that it merits upon the facts in evidence. In this it differs from questions of
negligence. Whether the conduct of the defendant has been that of a reasonable man of ordinary
prudence or in the alternative has been negligent is ordinarily an issue to be left to the jury. …
The imposition of strict liability, on the other hand, involves a characterization of the defendant's
activity or enterprise itself, and a decision as to whether he is free to conduct it at all without
becoming subject to liability for the harm that ensues even though he has used all reasonable
care. This calls for a decision of the court; and it is no part of the province of the jury to decide
whether an industrial enterprise upon which the community's prosperity might depend is located
in the wrong place or whether such an activity as blasting is to be permitted without liability in
the center of a large city.
    §522. CONTRIBUTING ACTIONS OF THIRD PERSONS, ANIMALS AND FORCES
    OF NATURE
    One carrying on an ultrahazardous activity is liable for harm under the rule stated in §519,
although the harm is caused by the unexpectable
         (a) innocent, negligent or reckless conduct of a third person, or
         (b) action of an animal, or
         (c) operation of a force of nature.
    §523. ASSUMPTION OF RISK
    The plaintiff's assumption of the risk of harm from an abnormally dangerous activity bars his
recovery for the harm.
    §524. CONTRIBUTORY NEGLIGENCE
    (1) Except as stated in Subsection (2), the contributory negligence of the plaintiff is not a
defense to the strict liability of one who carries on an abnormally dangerous activity.
    (2) The plaintiff's contributory negligence in knowingly and unreasonably subjecting himself
to the risk of harm from the activity is a defense to the strict liability.


Jeanette L. Goldsberry                                                                      Page 61
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    §524A. PLAINTIFF'S ABNORMALLY SENSITIVE ACTIVITY
    There is no strict liability for harm caused by an abnormally dangerous activity if the harm
would not have resulted but for the abnormally sensitive character of the plaintiff's activity.
Strict liability for consequences of airplane accidents to people on the ground (p. 656)
    Overrules Boyd v. White (1954) (operating airplane not dangerous); and Wood v. United Air
    Lines, Inc. (1961) (mid-air collision causes D on the ground to  and her P, no recovery).
Restatement (Second) of Torts – §520A. GROUND DAMAGE FROM AIRCRAFT
    If physical harm to land or to persons or chattels on the ground is caused by the ascent,
descent or flight of aircraft, or by the dropping or falling of an object from the aircraft,
         (a) the operator of the aircraft is subject to liability for the harm, even though he has
    exercised the utmost care to prevent it, and
         (b) the owner of the aircraft is subject to similar liability if he has authorized or
    permitted the operation.
Indiana Harbor Belt R.R. v. American Cyanamid Co. (1990) (p. 660) (dangerous chemicals
spill from leak in RR car, no strict liability for shipper, but negl. possible) (Posner)
    Strict liability only applies in those cases where hazard is not preventable. Chemicals stored
    properly are not dangerous (unlike explosives that cannot be stored without some danger).
 manufactures acrylonitrile, chemical used in textile manufacture. Leased tank car from N.
Am. Car Corp. to ship chemical via MO Pacific/Conrail.  "switching line" between 2 lines. 's
empl. notices leak, lid on outlet broken, 2 hrs to stop leak. Chemical flammable, toxic – houses
evacuated, clean-up necessary, cost  $1m.  argues (1) negl. (2) abnormally dangerous activity.
Dist. ct., SJ on basis of strict liability. 7th Cir. rev'd, remand for trial on negl. References Guille
(hot air balloon case) as paradigmatic case for strict liability. No way to totally control balloon
and prevent risk of harm. Strict liability provides incentive to (1) invent ways to protect against
harm, or use alternate but more expensive ways of achieving same goal (2) cease activity (3)
move it somewhere less populated. But chemical spill entirely preventable. No risk if chemical
properly stored,  not a case of inherent danger but of negligence in containing chemical, could
be fault of  but also of RR and even . Arguments for common carrier being in better position
than shipper to take precautions; no huge insurance increases because accidents rare, negl. req'd.
    Abnormal dangerousness is ? of law, not fact – judges review de novo, apply law w/out jury.
Siegler v. Kuhlman (1972) (p. 663) (exception to above, gas truck explodes kills /totals car)
    If evidence destroyed as result of explosion while hauling dangerous substance, strict liability.
                                         NUISANCE – PRIVATE
Sykes' Definitions of three types of nuisance
    Nuisance per se – things that are simply illegal (brothel, crimes, violation of zoning laws).
    Accidental nuisance – depends on circumstances (blasting in crowded neighborhood, etc.)
    Intentional nuisance – doesn't require actual intent to harm, just that activity is conducted
    with knowledge that harm is occurring or is substantially certain to occur.
Vogel v. Grant-Lafayette Electric Cooperative (1996) (p. 669) (stray voltage hurts cows)
    Physical invasion is not necessary for nuisance. Also, not necessary that action is entirely
    unilateral, e.g. someone agrees to your presence on his P but not to the nuisance.
    Contributory negl. is an affirmative defense for unintentional nuisance. (See §821D).
 farmer K w/ for electricity service. Multi-grounded neutral system (current grounded to rods,
structures).  builds new milking facility in 1970. Cows suffer ill effects. In 03/1986, s figure
out it is stray voltage. s respond quickly, install "isolator", problem solved. But s sue for Ds.
 argues intentional nuisance ( knew stray voltage would occur);  argues not nuisance (no
physical invasion). Tr. ct. finds nuisance, but not intentional (Ds $240k) – some voltage might
not harm, only when s knew of excessive voltage is it intentional. Also negl. (Ds $60k) But s
1/3 at fault,  Ds $200k. App. ct. reverses on nuisance, 2nd app. ct. reinstates (see above).

Jeanette L. Goldsberry                                                                       Page 62
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Restatement (Second) of Torts §821D. PRIVATE NUISANCE
    A private nuisance is a nontrespassory invasion of another's interest in the private use and
    enjoyment of land.
Note from comment (e) – Trespass and private nuisance are not entirely exclusive or
inconsistent, and in a proper case in which the elements of both actions are fully present, the
plaintiff may have his choice of one or the other, or may proceed upon both. E.g. flooding of
land, which is a trespass, is also a nuisance if it is repeated or of long duration. (See Rylands)
Restatement (Second) of Torts. §3479. NUISANCE DEFINED
    Anything which is injurious to health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use
of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully
obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay
stream, canal, or basin, or any public part, square, street, or highway, is a nuisance.
Morgan v. High Penn Oil Co. (1953) (p. 674)
    Generic example – nauseating gases are a nuisance.
Martin v. Reynolds Metals Co. (1959) (p. 674)
    Fluoride gas deposits on ground in solid form, makes land unusable – trespass not nuisance.
    (If court had not considered this trespass, nuisance would have precluded Ds due to SOL.)
Puritan Holding Co. v. Holloschitz (1975) (p. 675) (abandoned derelict P nuisance)
    Judge considers abandoned building a nuisance in the context of urban renewal; neglect
    (inaction) might not otherwise be nuisance – proof of lower P values required to assess Ds.
Merriam v. McConnell (1961) (p. 675)
    Bugs infesting s trees not fault of  because  did not specifically place them there.
Robinson v. Whitelaw (1961) (p. 675) ( failed to develop land after clearing it)
    No nuisance for  removing natural vegetation from land causing dust to blow onto 's P.
Adkins v. Thomas Solvent Co. (1992) (p. 675) ('s P values drop, fear of contamination)
    Negative publicity about the possibility of contamination, thereby driving house prices down,
    is insufficient for nuisance provided that fears of contamination are unfounded.
Restatement (Second) of Torts, §826. UNREASONABLENESS OF INTENTIONAL
INVASION [seems to indicate really what is practically speaking a negligence standard]
    An intentional invasion of another's interest in the use and enjoyment of land is unreasonable
if
         (a) the gravity of the harm outweighs the utility of the actor's conduct, or
         (b) 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.
Copart Industries, Inc., v. Consolidated Edison Co. (1977 NY) (p. 676) (new cars ruined
from smog; no Ds, interprets §826 as negl. standard)
    No Ds for 's smog ruining new car finishes, forcing 's new car prep shop out of business.
    Nuisance only (1) if invasion intentional/unreasonable (2) negl./reckless (3) abnormally
    dangerous activity. None of these apply to smog from otherwise compliant factory.




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Restatement (Second) of Torts, §827. GRAVITY OF HARM–FACTORS INVOLVED
    In determining the gravity of the harm from an intentional invasion of another's interest in the
use and enjoyment of land, the following factors are important:
        (a) The extent of the harm involved;
        (b) the character of the harm involved;
        (c) the social value that the law attaches to the type of use or enjoyment invaded;
        (d) the suitability of the particular use or enjoyment invaded to the character of the
    locality; and
        (e) the burden on the person harmed of avoiding the harm.
Jost v. Dairyland Power Coop (1969 Wis.) (p. 676) (sulfur dioxide emissions D'ed 's land;
Ds on strict liability basis, based on higher standard from §827)
     was aware of sulfur dioxide poisoning 's land; strict liability for creating nuisance.
    Irrelevant if  was observing industry standards of care. Extent/character of harm, etc.
Limited exception for minor nuisances to absolute property rights (Epstein) (p. 677)
    Silly to redistribute wealth for tiny nuisances, which we all engage in on some level: (1) high
    admin. costs of resolution (2) high transaction costs to reassign rights (3) low value placed on
    rights by public (4) implicit in-kind compensation (we all pollute sometimes, live & let live).
Bamford v. Turnley (1862) (p. 677) (Bramwell's justification for "live and let live")
    Just compensation vs. reciprocity/substantial D vs. inconvenience or irritation. We all
    want to burn trash, spray for weeds, make noise during house repairs, etc. – only when
    invasion is one-sided does law provide remedies. Collective benefit for small invasion.
Campbell v. Seaman (1876) (p. 679) (what is a nuisance is tied to the locality, ? of degree)
    Noise/a bit of pollution in the big city is to be expected; a big factory spewing pollutants onto
    farmland that preclude its use as farmland is not acceptable. Case by case determination of
    nuisance based on balancing of factors – huge amount of pollution inappropriate anywhere.
's brick burning destroyed trees/vegetation on 's P – clearly nuisance, but locality considered.
Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (1959) (p. 679) (hotel allowed
to build 14-story addition causing shadow on neighboring hotel – not nuisance)
    Court rejects common law easement for light and air that pass over property – justification,
    would inhibit growth of towns/industry. (But note statutory height regulations enforceable.)
/ have adjoining beachfront hotels.  starts building 14-story addition – obstructs sunlight
during certain house of the day at 's hotel (interferes w/ sunbathing).  sues for nuisance based
on interference w/light/air ("ancient lights" doctrine, repudiated in England and USA), & alleges
malice/statutory violations;  argues laches/estoppel (construction already started when suit
brought).  wins injunction at tr. ct. on basis that no one has right to use P to injury of another;
app. ct. rev'd for . (1) right to enjoy P only enforced if (a) P interest is protected by law (not the
case w/light and air above P) (b) offending use of neighbor's P is considered a nuisance under
law (not the case with lawful bldg. construction). (2) Ct. even considers spite irrelevant.
Absolute right, apart from restrictions/regulations, to build to any height you wish on your P.
Prah v. Maretti (1982) (p. 682) (house needs sun, solar power; 's lawful bldg. restricted)
    Air/light easements sometimes allowed for public policy reasons – e.g., to encourage people
    to make use of solar power, a preexisting solar powered home is protected from subsequent
    development that would interfere with efficiency and functioning of solar power system. 
    forced to relocate planned home to a part of P that would not interfere w/'s solar power.




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Tenn v. 889 Associates, Ltd. (1985) (p. 683) (tall bldg next to P line of another tall bldg OK)
     Middle of the road position – ct. does not preclude possible easements in air/light, but does
     not apply in circumstances where it is common to allow such obstructions.
 has 6-story bldg. (next to P line), wants to prevent  from building another 6-story bldg. (next
to P line).  wins. (1) common practice in downtown commercial area (2) hypocritical. No Ds
for costs of additional lighting/ventilation systems; add'l costs do not exceed what is customary.
Flaherty v. Moran (1890) (p. 684) (no spite fences allowed to shut out neighbor's light/air)
     All individuals better off if each is denied the right to construct fences solely out of malice.
Kuzniak v. Kozminski (1895) (p. 684) ( allowed to move wood shed partly out of malice)
     Spite fences rule construed narrowly; shed serves useful purpose even w/malicious relocation
Mathewson v. Primeau (1964) (p. 684) (no hog farm, but OK to have ugly junk yard)
     No action for visual nuisance on neighbor's P, absent zoning; but action w/olfactory invasion.
Rogers v. Elliot (1888) (p. 684) (church bell noise hurts recovering ; warns , but no Ds)
     If a "nuisance" would not cause substantial ill effects to ordinary person, no Ds for nuisance.
 is recovering from sunstroke; suffers convulsions brought on by 's ringing church bell; 's Dr.
advises  of 's injuries resulting from ringing bell;  says he will ring it anyway (but no express
malice).  has convulsions again, sues for nuisance. Church in densely populated neighborhood,
lots of people affected if bell is a nuisance (would weigh in favor of  in terms of magnitude of
harm); but ordinary person standard for nuisance; bell has been there for years, hasn't affected
ordinary people in vicinity. Ct. fears slippery slope, e.g., beneficial activities ceased for one
unusually sensitive  who moves into neighborhood, legal rights  uncertain. Judgment for .
Rejects Vosburg standard (take victim as you find him), because it is unclear whether something
is a nuisance until you examine surrounding circumstances (not relatively clear cut like battery).
Westcott v. Middleton (1887) (p. 686) (undertaker washes dead body preservation boxes)
     Abnormally sensitive  gets no Ds for being able to view undertaker's washing of boxes.
Restatement (Second) of Torts. §821F. SIGNIFICANT HARM
     There is liability for a nuisance only to those to whom it causes significant harm, of a kind
     that would be suffered by a normal person in the community or by property in normal
     condition and used for a normal purpose.
Belmar Drive-In Theater Co. v. Illinois State Toll Highway Commission (1966) (p. 687)
(drive-in movie theater affected by light from nearby toll-road service center; no Ds)
     Nuisance from artificial lights in toll-road service center do not constitute nuisance in spite
     's inability to continue operating outdoor movie theater – abnormally sensitive activity.
Page County Appliance Center v. Honeywell, Inc. (1984) (p. 688) (computer radiation
interferes w/TV sets in shop next door; TV not abnormally sensitive  Ds; rejects Belmar)
     Interference w/TVs due to radiation leak in defective computers is actionable, TVs common.
Ensign v. Walls (p. 688) (1948) (nasty dog farm forced to move after years in same location)
     Majority view: no prescriptive right to create nuisance in remote area due to prior use,
     thereby preventing some later uses of vacant lots; later P owners can sue to enjoin nuisance.
 has nasty St. Bernard dog breeding/boarding facility (odors, barking, rats, flies, escaped dogs).
s (group of P owners/residents in immediate vicinity) sue for injunctive relief forcing closing of
facility.  denies nuisance, claims prescriptive right to continue activities based on long period
of ownership/investment. Courts require greater burden of proof of nuisance for preexisting
businesses than for proposed businesses. But, app. ct. applies Campbell, preexisting businesses
can be shut down by new neighbors/P owners, because nuisances should not be created even next
to vacant property thereby preventing its beneficial use/development. App. ct. aff'd tr. ct.'s
finding that 's facility is nuisance.  suggests regulation of facility rather than enjoining dog
breeding/boarding; but no suggestion as to how this could be done. Judgment for  aff'd.
Campbell v. Seaman (quoted in Ensign above) (brick manufacturing plant shut down)
     Preexisting brick manufacturing plant shut down, due to nuisance to new neighbors.
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Bove v. Donner-Hanna Coke Corp. (coke oven allowed to continue operation)
    Minority view (rejects Ensign): assumption of risk when voluntarily moving to residence in
    primarily commercial area; deference to zoning (all uses permitted by zoning/regulations
    allowed). But Ensign is in remote area (larger purpose of land use not yet fully determined)
    whereas Bove is in fully developed commercial area (established commercial purpose).
Restatement (Second) of Torts. §840C. [NUISANCE] ASSUMPTION OF RISK
    In an action for a nuisance the plaintiff's assumption of risk is a defense to the same extent as
    in other tort actions. – BUT –
Restatement (Second) of Torts. §840D. COMING TO THE NUISANCE
    The fact that the plaintiff has acquired or improved his land after a nuisance interfering with
    it has come into existence is not in itself sufficient to bar his action, but it is a factor to be
    considered in determining whether the nuisance is actionable.
California Code of Civil Procedure, §731a (Bove, assumption of risk in commercial areas)
    Protects businesses operating in commercial zones from nuisance lawsuits for lawful
    commercial activities, unless they are using unnecessary/injurious methods of operation.
    BUT concern: zoning authorities might not be concerned of effects outside of jurisdiction.
Compare with Powell v. Fall (UK strict liability for sparks) (but fire more dangerous than smog)
Compare with Bamford v. Turnley (live and let live for reciprocal nuisances, allow nuisances
that benefit the collective but compensate the victim (e.g., RR takes land) – this is consistent in
that the nuisances from the operation of a factory are small enough not to require compensation).
Varjabedian v. City of Madera (1977) (p. 692) (lawful garbage dump guilty of nuisance)
    In spite of statutory authorization, California court says statutory authorization for garbage
    dump is not authorization for a particular level of odor. (But, what if smell is unavoidable?)
Econ Law Suggestion (NOT the law) (p. 693)
    1st party to invest should be protected; any unavoidable costs that arise as a result of the 1st
    party's activity should be borne by the 2nd party if 2nd party makes incompatible use of land.
    To avoid 1st party nuisance, Ds for reduction in value of 2nd party's unimproved land.
Boomer v. Atlantic Cement Co. (1970) (p. 694) (polluting cement plant, Ds not injunction)
    When the D caused by a nuisance is substantial, but closure of the offending activity is
    drastic given that it has some benefit to society, other options are available – the injunction
    can be postponed, or Ds can be awarded in lieu of injunction (option chosen in this case).
    Two types of Ds: temporary (s sue for add'l Ds as they arise; more accurate but high admin.
    costs); permanent (lump sum payment for present/estimated future Ds – not as accurate,
    weaker deterrent for future polluting (although drastic increase in pollution still actionable))
    Note: most courts treat injunctions as presumptive if not absolute remedy.
's cement plant causing ongoing D to 's houses ( $185k) (airborne dust, smoke, vibration).
Tr. ct. found nuisance, but value of 's activity exceeds D to s,  no injunction. Injunction is
the usual remedy when substantial D is caused by nuisance, but ct. has discretion. Tr. ct. awards
temporary Ds (see above…). App. ct. rev'd, awards permanent Ds. Rejects delayed injunction,
one cement plant not in position to solve industry-wide pollution problems. Dissent does not
want to overrule Whalen, believes s have right to be free of cement dust contamination (health
hazard according to studies), prefers 18 month window for  to correct problem, then injunction.
Whalen v. Union Bag & Paper Co. (1926) (p. 696) (pulp from paper pollutes stream)
    Lower riparian sues paper mill for small D to stream from paper pulp; injunction granted.
    Old NY doctrine that nuisance will be enjoined if there is any substantial D to . (overruled)
Belkus v. City of Brockton (1933) (p. 700) ('s negl floods 's basement;  raises level, Ds)
    Duty to mitigate nuisance Ds;  ct. reimburses reasonable efforts to prevent repeated D.
Stratford Theater, Inc. v. Town of Stratford (1953) (p. 700) (theater frequently flooded)
    Ct. even awards Ds for 's repairs to 's P (broken sewer line) to prevent further nuisance D.
(H. Wood) Not everyone likes duty to mitigate, puts involuntary duty on  for 's wrongful acts.
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Madison v. Ducktown Sulphur, Copper, & Iron Co. (1904) (p. 701) (OLD CASE)
    Ct. won't allow injunction against polluter in remote area due to larger benefit to community.
s' P worth $1k; 's P $2m, + only major employer in area. Ds would allow for $1k payoff to
s, perhaps more fair, but certainly s' case did not merit an injunction against town's industry.
Nicholson v. Connecticut Half-Way House, Inc. (1966) (p. 702) (no injunction, H-W house)
    No injunction against operation of facilities for parolees, AIDS patients, wayward kids,
    homeless; mere operation of facilities is not nuisance, but actionable if nuisance occurs.
§319 If you take charge of dangerous 3rd party, duty to exercise reasonable care to control him.
Pendoley v. Ferreira (1963) (p. 703) (pig farm given time to relocate/sell assets)
    Courts have the discretion to delay enforcement of injunction to give  time to relocate etc.
Injunctions are not all or nothing choice; sometimes continued operation w/restrictions
    Quinn v. American Spiral Spring & Manufacturing Co. (1928) (forced to relocate equipment
    on P) Hansen v. Independent School District No. 1 (1939) (night baseball games only if
    lighting limited, stop at reasonable hour, neighborhood parking limited) Pritchett v. Board of
    Commissioners (1908) (prison windows shuttered/shut so profanity cannot be heard outside).
Spur Industries, Inc. v. Del E. Webb Development Co. (1972) (p. 704) (developer builds
houses in remote area, near cattle feedlot; new homeowners unhappy w/odor/flies)
    Econ law case (unusual): injunction against smelly  cattle feedlot (more out of pity for new
    homeowners), but developer caused situation (purchased land cheap near feedlot, then built
    homes for $$$).  ct. orders developer to compensate  for relocation/closing expenses.
                                       NUISANCE – PUBLIC
Anonymous (Y.B. Mich. 27 Hen. 8, f. 27, pl. 10) (1535) (road blocked, no access to home)
    If public nuisance (actionable by king/state) disproportionately harms private pty, actionable.
 unable to reach P because road blocked by ; public nuisance, but disproportionately harms 
because obstruction actually prevents road access to 's home,  nuisance action allowed.
    Note: Private action is always appropriate for public nuisance in the cases of (1) total loss of
    land access (2) personal injuries. Otherwise, general vs. special Ds difficult distinction.
Sykes' definition of PROSPECTIVE ECONOMIC ADVANTAGE
    If  causes physical harm to party A, and mere economic loss to party B, B can't recover
Argument, gas station lost $$, but other gas stations still got $$, net effect is not social harm.
Restatement (Second) of Torts. §821B. PUBLIC NUISANCE [widely diffused harms]
    (1) A public nuisance is an unreasonable interference with a right common to the general
public.
    (2) Circumstances that may sustain a holding that an interference with a public right is
unreasonable include the following:
        (a) Whether the conduct involves a significant interference with the public health, the
    public safety, the public peace, the public comfort or the public convenience, or
        (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
        (c) whether the conduct is of a continuing nature or has produced a permanent or long-
    lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the
    public right.
Restatement (Second) of Torts. §821B. WHO CAN RECOVER FOR PUBLIC NUISANCE
    (1) In order to recover damages in an individual action for a public nuisance, one must have
suffered harm of a kind different from that suffered by other members of the public exercising
the right common to the general public that was the subject of interference.
    (2) In order to maintain a proceeding to enjoin to abate a public nuisance, one must
        (a) have the right to recover damages, as indicated in Subsection (1), or
        (b) have authority as a public official or public agency to represent the state or a political
    subdivision in the matter, or
        (c) have standing to sue as a representative of the general public, as a citizen in a citizen's
    action or as a member of a class in a class action.

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Smith v. City of Boston (1851) (p. 707) (Ry. closes street near 's home, other access, no Ds)
Malone v. Commonwealth (1979) (p. 707) (no direct hwy. access to gift shop due to
construction, only accessible by connector road, no Ds)
    Partial loss of access to P not actionable, even if D results (traffic delays also not actionable).
Union Oil Co. v. Oppen (1974) (p. 708) (fish killed from oil pollution, no nuisance action for
fishermen, but court allows action based on breach of duty, foreseeable effects of pollution)
    No nuisance action for mere loss of economic advantage (e.g., no Ds for fish not yet caught).
    But duty to fishermen to drill prudently offshore to avoid negl. reduction of fish population.
's offshore oil well kills fish, negl. pollution.  fishermen sue for public nuisance for economic
losses (but loss of economic advantage not actionable). But ct. finds  owed duty to fishermen
to operate oil well w/reasonable prudence to avoid negl. killing fish, based on (1) foreseeability
(2) public policy (3) economics ( in best position to avoid costs),  Ds available to s.
Note: Allow tort action to non-owner to prevent premature destruction of valuable resources;
solves common pool incentives problem e.g. abuse common resources and externalize the costs.
Sykes' definition of PROSPECTIVE ECONOMIC ADVANTAGE
    If  causes physical harm to party A, and mere economic loss to party B, B can't recover
Argument, gas station lost $$, but other gas stations still got $$, net effect is not social harm.
Public Regulation of Common Pool Problem – CERCLA (Superfund) (p. 711)
    This is some tough legislation, retroactive against polluters, liable even for pollution
    permitted under regulation, no burden of causation – if you contributed, J&S liability.
Requires (1) notice of any discharge of pollutants (2) any storage of pollutants in "facility"
(broadly defined) (3) EPA can clean up mess and recover costs (4) J&S liability for all people in
distribution chain (5) retroactive liability (6) passive as well as active leakage covered.
United States v. Alcan Aluminum Corp. (1992) (p. 712) (treated emulsion, tiny amounts of
residual pollutants, still J&S liable unless pollutants "divisible" from other polluters)
    Tough rule if every effort has been made to treat waste, and yet still J&S liable for cleanup.
X.     PRODUCTS LIABILITY
                                      THE RESTATEMENTS
Restatement (Second) of Torts (1966) §402A. SPECIAL LIABILITY OF SELLER OF
PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER
    This has been somewhat superseded by the Rest. (3d) of the Law of Products Liability (1998)
    Standard was originally designed more around food and was adapted to other products.
    (1) One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the ultimate
user or consumer, or to his property, if
        (a) the seller is engaged in the business of selling such a product, and
        (b) it is expected to and does reach the user or consumer without substantial change in the
    condition in which it is sold.
    (2) The rule stated in Subsection (1) applies although
        (a) the seller has exercised all possible care in the preparation and sale of his product, and
        (b) the user or consumer has not bought the product from or entered into any contractual
    relation with the seller.
    Caveat:
    The Institute expresses no opinion as to whether the rules stated in this Section may not apply
    (1) to harm to persons other than users or consumers; [common law, bystanders covered]
    (2) to the seller of a product expected to be processed or otherwise substantially changed
before it reaches the user or consumer; or
    (3) to the seller of a component part of a product to be assembled.

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     f. Business of selling. [not housewife, occasional seller]
     The rule stated in this Section applies to any person engaged in the business of selling
products for use or consumption. It therefore applies to any manufacturer of such a product, to
any wholesale or retail dealer or distributor, and to the operator of a restaurant. It is not necessary
that the seller be engaged solely in the business of selling such products. Thus the rule applies to
the owner of a motion picture theatre who sells popcorn or ice cream, either for consumption on
the premises or in packages to be taken home.
     The rule does not, however, apply to the occasional seller of food or other such products who
is not engaged in that activity as a part of his business. Thus it does not apply to the housewife
who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to
the owner of an automobile who, on one occasion, sells it to his neighbor, or even sells it to a
dealer in used cars, and this even though he is fully aware that the dealer plans to resell it. The
basis for the rule is the ancient one of the special responsibility for the safety of the public
undertaken by one who enters into the business of supplying human beings with products which
may endanger the safety of their persons and property, and the forced reliance upon that
undertaking on the part of those who purchase such goods. This basis is lacking in the case of the
ordinary individual who makes the isolated sale, and he is not liable to a third person, or even to
his buyer, in the absence of his negligence….
     g. Defective condition. [consumer contemplation]
     The rule stated in this Section applies only where the product is, at the time it leaves the
seller's hands, in a condition not contemplated by the ultimate consumer, which will be
unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe
condition, and subsequent mishandling or other causes make it harmful by the time it is
consumed. The burden of proof that the product was in a defective condition at the time that it
left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be
produced which will support the conclusion that it was then defective, the burden is not
sustained.
     h. [not defective if safe for normal handling and consumption]
     A product is not in a defective condition when it is safe for normal handling and
consumption. If the injury results from abnormal handling, as where a bottled beverage is
knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too
much salt is added to food, or from abnormal consumption, as where a child eats too much candy
and is made ill, the seller is not liable….
     The defective condition may arise not only from harmful ingredients, not characteristic of the
product itself either as to presence or quantity, but also from foreign objects contained in the
product, from decay or deterioration before sale, or from the way in which the product is
prepared or packed. No reason is apparent for distinguishing between the product itself and the
container in which it is supplied; and the two are purchased by the user or consumer as an
integrated whole. Where the container is itself dangerous, the product is sold in a defective
condition. Thus a carbonated beverage in a bottle which is so weak, or cracked, or jagged at the
edges, or bottled under such excessive pressure that it may explode or otherwise cause harm to
the person who handles it, is in a defective and dangerous condition. The container cannot
logically be separated from the contents….
     i. Unreasonably dangerous. [more consumer contemplation]
     The rule stated in this Section applies only where the defective condition of the product
makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be
made entirely safe for all consumption, and any food or drug necessarily involves some risk of
harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor
oil found use under Mussolini as an instrument of torture. That is not what is meant by
"unreasonably dangerous" in this Section. The article sold must be dangerous to an extent
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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. Good
whiskey is not unreasonably dangerous merely because it will make some people drunk, and is
especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil,
is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the
effects of smoking may be harmful; but tobacco containing something like marijuana may be
unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be
the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.
     j. Directions or warning. [e.g., allergies, ingredients not obvious]
     In order to prevent the product from being unreasonably dangerous, the seller may be
required to give directions or warning, on the container, as to its use. The seller may reasonably
assume that those with common allergies, as for example to eggs or strawberries, will be aware
of them, and he is not required to warn against them. Where, however, the product contains an
ingredient to which a substantial number of the population are allergic, and the ingredient is one
whose danger is not generally known, or if known is one which the consumer would reasonably
not expect to find in the product, the seller is required to give warning against it, if he has
knowledge, or by the application of reasonable, developed human skill and foresight should have
knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous
drugs, or those unduly dangerous for other reasons, warning as to use may be required.
     But a seller is not required to warn with respect to products, or ingredients in them, which are
only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of
time, when the danger, or potentiality of danger, is generally known and recognized. Again the
dangers of alcoholic beverages are an example, as are also those of foods containing such substances
as saturated fats, which may over a period of time have a deleterious effect upon the human heart.
     Where warning is given, the seller may reasonably assume that it will be read and heeded;
and a product bearing such a warning, which is safe for use if it is followed, is not in defective
condition, nor is it unreasonably dangerous.
     k. Unavoidably unsafe products. [drugs, no strict liability for harm if no negl.]
     There are some products which, in the present state of human knowledge, are quite incapable of
being made safe for their intended and ordinary use. These are especially common in the field of
drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not
uncommonly leads to very serious and damaging consequences when it is injected. Since the disease
itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully
justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product,
properly prepared, and accompanied by proper directions and warning, is not defective, nor is it
unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of
which for this very reason cannot legally be sold except to physicians, or under the prescription of a
physician. It is also true in particular of many new or experimental drugs as to which, because of lack
of time and opportunity for sufficient medical experience, there can be no assurance of safety, or
perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use
of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the
qualification that they are properly prepared and marketed, and proper warning is given, where the
situation calls for it, is not to be held to strict liability for unfortunate consequences attending their
use, merely because he has undertaken to supply the public with an apparently useful and desirable
product, attended with a known but apparently reasonable risk.
     m. "Warranty." … [doesn't matter, rule still applies (cannot disclaim)]
     The rule stated in this Section does not require any reliance on the part of the consumer upon
the reputation, skill, or judgment of the seller who is to be held liable, nor any representation or
undertaking on the part of that seller. The seller is strictly liable although, as is frequently the
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case, the consumer does not even know who he is at the time of consumption. The rule stated in
this Section is not governed by the provisions of the Uniform Sales Act, or those of the Uniform
Commercial Code, as to warranties; and it is not affected by limitations on the scope and content
of warranties, or by limitation to "buyer" and "seller" in those statutes. Nor is the consumer
required to give notice to the seller of his injury within a reasonable time after it occurs, as is
provided by the Uniform Act.…
    n. Contributory negligence. [not defense, but assumption of risk]
    Since the liability with which this Section deals is not based upon negligence of the seller,
but is strict liability, the rule applied to strict liability cases (see §524) applies. Contributory
negligence of the plaintiff is not a defense when such negligence consists merely in a failure to
discover the defect in the product, or to guard against the possibility of its existence. On the other
hand the form of contributory negligence which consists in voluntarily and unreasonably
proceeding to encounter a known danger, and commonly passes under the name of assumption of
risk, is a defense under this Section as in other cases of strict liability. If the user or consumer
discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make
use of the product and is injured by it, he is barred from recovery.
Restatement (Third) of the Law of Products Liability (1998)
§1. LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM
CAUSED BY DEFECTIVE PRODUCTS
    This supersedes (extent still undetermined) Restatement (Second) of Torts (1966) §402A.
    No caveats re bystander liability (able to recover); specificity re what exactly constitutes a
    defective product (1) manuf. defect (2) design defect (3) inadequate warnings/instructions.
    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. [does not apply to housewives, people selling their own used car, etc.]
§2. CATEGORIES OF PRODUCT DEFECT
    A product is defective when, at the time of sale or distribution, it contains a manufacturing defect,
is defective in design, or is defective because of inadequate instructions or warnings. A product:
    (a) contains a manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of the product; [strict
liability]
    (b) is defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe; [only a negligence standard]
    (c) is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a predecessor in the commercial
chain of distribution, and the omission of the instructions or warnings renders the product not
reasonably safe. [only a negligence standard]
    [according to textbook, the comments contain much more detail than §402A, esp. related to
drugs, causation, and affirmative defenses]
    Comment c. "As long as the plaintiff establishes that the product was defective when it left
the hands of a given seller in the distributive chain, liability will attach to that seller."
    Comment d. "The fact that a danger is open and obvious is relevant to the issue of defective-
ness, but does not necessarily preclude a plaintiff from establishing that a reasonable alternative
design should have been adopted that would have reduced or prevented injury to the plaintiff."
    Requires "that plaintiff show a reasonable alternative design … even though the plaintiff
alleges that the category of product sold by the defendant is so dangerous that it should not have
been marketed at all."
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Casa Clara Condominium Association, Inc. v. Charley Toppino & Sons, Inc. (1993) (p. 750)
(salty concrete rusts steel/D'ed houses, no Ds w/sub, K Ds possible w/g.c. majority US rule)
    Majority "[E]conomic loss rule prohibits tort recovery when a product damages itself … but
    does not cause personal injury or damage to any property other than itself." (p. 751) No K Ds
    against sub (no privity) – sub made no guarantee of product's suitability to . G.C. liable to
    , then g.c. can sue sub? Dissent strict liability appropriate when defective product is cause
    of harm, irrespective of the type of losses; salty concrete not suitable for any bldg. purposes.
Majority s buy houses from builder/developer/g.c.?;  sub supplied defective concrete w/high
salt content, rusts steel reinforcement. s sue for (1) implied warranty (no privity or guarantee of
suitability for purpose from sub to ), (2) products liability, negl. (no D to anything other than P
itself (only economic losses) (sees house as a unit, not separate components)  K not tort law),
(3) violation of building code (not applicable to subs, g.c. liable). If tort action allowed, possible
slippery slope every time K fails to live up to expectations. Desire to keep K allocation of risks
intact. Dissent concrete clearly defective, not mere D disappointment (not suitable for any bldg.
purposes); sees homeowners as innocent 3rd parties affected by defected product. Considers
components of house separate P,  not pure economic losses, concrete D'ed other structures.
East River Steamship Corp. v. Transamerica Delaval, Inc. (1986) (p. 754) (S. Ct. adopts
Casa Clara in maritime law, re no Ds for purely economic losses under products liability)
    Supertanker engines malfunction, no tort Ds from engine manuf., tankers sold as units.
Saratoga Fishing Co. v. J.M. Martinac & Co. (1997) (S. Ct. allows products liability tort Ds
for D to components added subsequent to sale of boat (separate P, not just econ. losses))
    BUT tort Ds if D to other P occurs due to defect, incl. D to improvements to original product.
2-J Corporation v. Tice (1997) (warehouse collapse, Ds goods inside, prod. liab. Ds allowed)
    P stored inside a warehouse does not become part of the P itself,  Ds available in tort.
Peters dissent in Seely, presenting minority view (Ds for pure econ. losses from prod. liab.)
    Sees distinction between econ. and non-econ. losses for strict products liability as merely
    arbitrary; Ds for econ. losses allowed when connected to physical injury, why not otherwise?
Example: defective car (1) traveling salesman, on the road, defective car causes accident,
broken leg, Ds for injury plus lost earnings, increased living expenses, etc. (2) salesman, car
breaks down before he leaves, same defect, no physical injury, misses sales calls, too bad, no
recovery. (But econ. losses for small delay not like lost earning potential from serious injury.)
    There is an intermediate view, tort Ds only for sudden P loss (not disappointing performance)
Cafazzo v. Central Medical Health Services, Inc. (1995) (p. 760) (no strict product liability
against hospital/Drs. for non-negl. selection of defective prosthesis; medical svcs not goods)
    (1) Drs./hospital provider of services, not "seller" subject to strict liability under §402A (2)
    even if seller status existed, public policy cuts against strict liability (Drs./hospital not in best
    position to police quality of medical devices, too many devices are used, time constraints).
    (No looking for deep pockets just because manufacturer of prosthesis is bankrupt/insolvent.)
s hospital/Drs. implanted defective mandibular prosthesis in  (non-negl. in selecting
prosthesis). Strict products liability against manufacturer but manufacturer insolvent;  sues s
instead, as "seller" of prosthesis. Ct. finds that s provide services, sale of prosthesis incidental
requirement (see above). (1) s don't engage in product promotion (2) surcharge on prosthesis
not enough to make s seller (3) necessary to performing services (4) but hospital strictly liable
for items sold in gift shop, or items not directly related to medical services, e.g. hospital gown
catching fire. But even if s sellers, public policy reasons for not imposing strict liability (1)
Drs. use too many products,  hard to police quality, time constraints (2) FDA already tests
medical equipment (3) absolute liability for D from non-negl. use of defective equip. too costly,
medical costs high enough already (4) wrong to simply look for deep pockets and assign liability.
Jeanette L. Goldsberry                                                                          Page 72
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             MANUFACTURING AND DESIGN DEFECTS CONCEPTUALIZED
Tillman v. Vance Equipment Co. (1979) (p. 767) (used crane sold as-is, seller not liable)
    Seller of used goods is not treated same way as seller of new goods (1) new safety standards
    evolve (2) used dealer has less relationship with manufacturer (3) only liable if dealer sells
    both new and used versions of products (e.g., used and new Buicks, familiar w/product, etc.)
Pouncey v. Ford Motor Co. (1972) (p. 769) (used car fan breaks, cuts ,  liable for defect)
    Expert testimony of manufacturing defect in used car, even when adverse expert testifies
    failure due to deformations after car left manufacturer, can lead to strict product liability.
 disfigured when fan blade broke off while car was running; car purchased used (62k mi.). 
sues  manufacturer for product liability (negl. standard in Ala. 1972). 's expert tests metal,
finds higher impurities in fan blades that malfunctioned,  manufacturer at fault, car defective
when it left factory. 's expert says 's expert ran faulty test, accident instead caused by bend in
blade throwing fan off balance, accelerating metal fatigue, subsequent to car leaving factory. 
claims rigorous testing before car left factory (but not in 1966, only testimony of current testing).
Jury found 's expert more credible, direct evidence of dirty steel, judgment aff'd for  for $15k.
Note: this case was litigated prior to §402A liability being imposed in this jurisdiction.
Based on res ipsa (1) ordinarily doesn't happen w/out negl. (2) no  contribution to accident (3)
instrumentality has to have been within control of defendant (Not clear this was proper).
Dunham v. Vaughan & Bushnell Manufacturing Co. (1969) (p. 772) (delayed manifestation
of defect OK, recovery still available under product liability)
     recovers even though he used 's hammer for 11 mos. before it chipped and injured him.
Welge v. Planters Lifesavers Co. (1994) (p. 772) (peanut butter jar breaks, res ipsa Ds)
    When other causes ruled out, res ipsa product liability even if no evidence of product defect.
Jagmin v. Simonds Abrasive Co. (1973) (p. 773) (old grinding wheel breaks, hurts )
    Jury allowed to consider res ipsa for manufacturing defect in old grinding wheel (destroyed).
State Farm Fire & Casualty Co. v. Chrysler Corp. (1988) (p. 773) (electrical wires in car
cause fire, either manufacturer defect or subsequent negl. dealer repairs, no res ipsa)
    No res ipsa if there is another possible explanation for accident besides product defect.
Restatement (Third) of the Law of Products Liability (1998) §3. CIRCUMSTANTIAL
EVIDENCE SUPPORTING INFERENCE OF PRODUCT DEFECT
    It may be inferred that the harm sustained by the plaintiff was caused by a product defect
existing at the time of sale or distribution, without proof of a specific defect, when the incident
that harmed the plaintiff:
    (a) was of a kind that ordinarily occurs as a result of product defect; and
    (b) was not, in the particular case, solely the result of causes other than product defect
existing at the time of sale or distribution.
Note: g. Defective condition defined as something beyond the contemplation of consumer.
Reasonable consumer contemplation is objective; assumption of risk defense is subjective.
Volkswagen of America, Inc. v. Young (1974) (p. 774) (car defect in crash leads to death)
    Car manufacturers are liable for negl. product design if they do not take reasonable steps to
    ensure that, in the event of a crash, the car won't add to injuries by causing a "second
    collision" of parts of car that come loose, or are positioned to increase likelihood of injury.
's decedent, driving car manufactured by , dies in car crash w/negl. truck driver. Decedent's
injuries might not have been fatal except for "second collision" caused by seat coming loose and
hurling decedent to rear of car causing death.  argues negl. liability for defective product
design. But  argues intended use of car is not crash, car safe for normal driving,  not
defective. Ct. finds for  on issue of possible defective design. Accidents common, foreseeable.
Car manufacturers must take reasonable steps to ensure car does not add to injuries. But not
requirement for "accident-proof" cars, or to make manufacturer insurer – just reasonable care.
Notes: (1) no strict liability under §402A (2) violation of statutory standard = prima facie negl..
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Evans v. General Motors Corporation (1966) (p. 775) (quoted in Young, X-frame not negl.)
     (Overruled/all jurisdictions) No duty to design to minimize risk of injury in event of crash.
Larsen v. General Motors Corporation (1968) (p. 776) (steering column possibly negl.)
     (combines w/Young to form law) Duty to design to minimize risk (but in this case duty met).
Restatement (Third) of the Law of Products Liability (1998) §16. INCREASED HARM
DUE TO PRODUCT DEFECT
     (a) When a product is defective at the time of commercial sale or other distribution and the
defect is a substantial factor in increasing the plaintiff's harm beyond that which would have
resulted from other causes, the product seller is subject to liability for the increased harm.
     (b) If proof supports a determination of the harm that would have resulted from other causes
in the absence of the product defect, the product seller's liability is limited to the increased harm
attributable solely to the product defect.
     (c) If proof does not support a determination under Subsection (b) of the harm that would
have resulted in the absence of the product defect, the product seller is liable for all of the
plaintiff's harm attributable to the defect and other causes.
     (d) A seller of a defective product that is held liable for part of the harm suffered by the
plaintiff under Subsection (b), or all of the harm suffered by the plaintiff under Subsection (c), is
jointly and severally liable or severally liable with other parties who bear legal responsibility for
causing the harm, determined by applicable rules of joint and several liability.
     Comment a.
     Liability for increased harm. This Section deals with the problem of increased harm, often
referred to as the issue of "enhancement" of harm. Liability for increased harm arises most
frequently in automobile crashworthiness cases, but can also arise in connection with other
products. Typically, the plaintiff is involved in an automobile accident caused by conduct or
circumstances other than a product defect. The plaintiff would have suffered some injury as a
result of the accident even in the absence of the claimed product defect. However, the plaintiff
contends that the injuries were aggravated by the vehicle's failure reasonably to protect
occupants in the event of an accident.
     In the early era of product design litigation, controversy arose over whether a manufacturer
owed any obligation to design its product so that injuries would be reasonably minimized in the
event of an accident. That controversy is now settled. Although accidents are not intended uses
of products, they are generally foreseeable. A manufacturer has a duty to design and manufacture
its product so as reasonably to reduce the foreseeable harm that may occur in an accident brought
about by causes other than a product defect. …
Dawson v. Chrysler Corp. (1980) (p. 781) (car's frame enables pole to penetrate car;
policeman left a quadriplegic, but rainy rd., driving fast – ct. awards Ds but w/misgivings)
     Misgivings about giving Ds based on negl. defective product design when fixing problem
     would cause other problems. Stiffer frame lowers harm in some instances (some side-impact
     collisions), but causes harm in others from lack of shock absorption (head-on collisions).
Blankenship v. General Motors Corp. (1991) (p. 781) (WV, jury determines negl.)
     Ct. considers it dangerous to let juries second-guess govt. safety standards (e.g., just because
     manufacturer followed govt. safety standards is no guarantee jury won't find negl. design),
     but allows it because (1) all jurisdictions allow juries to decide,  cost built into car, a form
     of insurance (2) not allowing Ds would take from residents of WV and give to other states.
Linegar v. Armour of America (1990) (p. 782) (bullet-proof vest, no sides, no Ds, Minority)
     Patent danger rule: if you select product w/obvious danger, manufacturer not liable for Ds.
Policeman shot in side, argues vest defective for not having coverage on sides, court says no. Up
to market to decide what kind of bulletproof vests to buy, better vests are available, you bought
your ticket, took your chances, but not defective, had obvious characteristics that you chose.

Jeanette L. Goldsberry                                                                       Page 74
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Micallef v. Miehle Co. (1976) (p. 786) (printing press, obvious danger, still Ds, Majority)
    If danger open/obvious, ct. rejects patent danger rule: (1) B<PL (2) customary safety devices
    in industry. Intended/reasonably foreseeable use. Manuf. in best position to cure defects.
§2 Comment d. "The fact that a danger is open and obvious is relevant to the issue of defective-
ness, but does not necessarily preclude a plaintiff from establishing that a reasonable alternative
design should have been adopted that would have reduced or prevented injury to the plaintiff."
Dreisonstok v. Volkswagenwerk A.G. (1974) (p. 787) (VW van not defective)
    VW van not defective just because it doesn't provide as much protection from head-on colli-
    sion as passenger car; design enables van to carry cargo in small vehicle. Risks apparent.
Delvaux v. Ford Motor Co. (1985) (p. 787) (convertible car not defective)
    Lack of rollbar protection OK on convertible; would eliminate open top, main advantage.
Todd v. Societe Bic (1994) (p. 787) (1994) (girl killed from Bic lighter fire; no Ds)
    Consumer contemplation test. Ordinary consumer expects lighter to start fire. Dangerous,
    but not defective. (in Tennessee, paired w/B<PL test, reasonableness of sale of product).
Barker v. Lull Engineering Co. (1978) (p. 788) (forklift accident, ct. rejects unreas. danger)
    Standard for defective design, either (1) product fails to perform as ordinary consumer would
    expect, if used in intended/reasonably foreseeable manner (2) design benefits don't outweigh
    risks (Wade Risk / Utility Test) burden of proof on  (only in CA). Not "unreas. danger".
, inadequately trained, uses 's forklift on uneven surface (designed for level surface), lifts
lumber, loses control of forklift, jumps away from loader, hit by lumber, injured.  argues
forklift defective;  argues "defects" necessary to other aspects of product design. Jury rules for
 10/2 based on "unreasonable danger" standard. App. ct. finds error, "unreasonable danger" too
confusing to juries. Rev'd, remanded to apply standard above, ordinary consumer/B<PL.
Azzarello v. Black Bros. Co., Inc. (1978) (p. 792) (manufacturer not insurer, but guarantor)
    Ct. rejects unreasonably dangerous standard, but only for intended use (omits foreseeable).
Wilson v. Piper Aircraft Corp. (1978) (p. 793) (carburetor icing problems not defect, FAA)
    (1) Regulatory compliance strong evidence in favor of manufacturer. (2) Incorrect to isolate
    one element of design that, if changed, would have prevented accident, w/out examining in
    context of other problems or additional expenses that would arise as a result of modification.
80-90% of small airplanes use carburetor, FAA aware of problems w/icing but continues to
approve design, otherwise good engine, cost effective. FAA compliance strong evidence for .
Bruce v. Martin-Marietta Corp. (1976) (p. 794) (airplane seats OK in 1952, no Ds)
    Court measures state of art (factor) at time product enters commerce, not at time of accident.
Ordinary consumer doesn't expect Model T to have safety features of modern automobile.
Mix v. Ingersoll Candy Co. (1936) (p. 795) (OLD RULE – bones natural,  no liability)
    Bones (meat) pits (fruit) etc. natural to product,  no manufacturer liability (overruled.)
Mexicali Rose v. Superior Court (1992) (p. 795) (NEW RULE – negl. standard for bones)
    Bone in chicken enchilada judged by negl. standard, not strict liability as for foreign objects.
    Dissent argues for uniform strict liability, equal for foreign and "natural" unexpected objects.
Restatement (Third) of the Law of Products Liability (1998) §2. CATEGORIES OF
PRODUCT DEFECT
    Comment h. Consumer expectations: food products and used products.
    With regard to two special product categories consumer expectations play a special role in
determining product defect. See §7 (food products) … . On occasion it is difficult to determine
whether a given food component is an inherent aspect of a product or constitutes an adulteration
of the product. Whether, for example, a fish bone in commercially distributed fish chowder
constitutes a manufacturing defect within the meaning of §2(a) is best determined by focusing on
reasonable consumer expectations.
Jeanette L. Goldsberry                                                                     Page 75
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Wade Risk / Utility Test (1973) (p. 795) (applied in Barker)
    (1) usefulness/desirability of product (2) safety (probability/seriousness of injury) (3) safer
    substitute (4) possible to remove unsafe elements w/out impairing usefulness or making it too
    expensive (5) can danger be avoided by user exercising reasonable care (6) user's anticipated
    awareness of dangers, due to public awareness or product warnings/instructions (7) ability to
    spread loss from strict liability for injuries by raising price/carrying liability insurance.
O'Brien v. Muskin Corp. (1983) (p. 796) (vinyl pool slippery, but no clear alternative, still
allowed to go to jury on Ds, OVERRULED BY STATUTE)
    On appeal, ct. allows design issues to go to jury based on Wade test – not necessary to show
    alternative above-ground pool design not using vinyl (perhaps risk outweighed utility).
Restatement (Third) of the Law of Products Liability (1998) §2. CATEGORIES OF
PRODUCT DEFECT
    Comment d. Requires "that plaintiff show a reasonable alternative design … even though the
    plaintiff alleges that the category of product sold by the defendant is so dangerous that it
    should not have been marketed at all."
Comment f. [has received a rocky reception] Factors to be considered in determining alternative
design include risks, cost, warnings, expectations, relative advantages/disadvantages (e.g.,
longevity, maintenance, repair, aesthetics), range of consumer choice among products, etc.
    Note: later changes in design of product are generally not admissible as evidence of defect.
                                    INADEQUATE WARNINGS
MacDonald v. Ortho Pharmaceutical Corp. (1985) (p. 805) (manufacturer of birth control
pills has duty to warn both patient/Dr. of potential problems, due to active patient decision)
    Most prescription medicines only require manuf. warning to Dr., but in the case of birth
    control, manuf. warning req'd for patient due to (1) generally healthy young consumer (not
    necessary to use product) (2) serious possible side effects (3) active role of patient in making
    decision, and relatively passive role of Dr. (4) Dr. only sees patient once a year to renew
    prescription, not enough for adequate warning. Also, FDA compliance does not preclude Ds.
 on the pill for three years, then suffers stroke, permanent brain D (20% death of brain tissue).
No warning of stroke. (Warning of blood clots in pamphlet, but Dr. only warned of bloating, Dr.
not joined in suit). Jury found that there was breach of duty to warn. Tr. ct. overturned jnov.
App. ct. reinstated jury verdict (see above). Dissent jnov (1) FDA compliance (2) Dr. warned.
Prescription Drug Rule (1) manuf. must gather/compile/provide data to Drs. re drugs (2) Dr.
must convey data to patients in useful/understandable manner, tailored to individual patient.
McKee v. American Home Products Corp. (1989) (p. 812) (pharmacist – no duty to warn)
    Pharmacist does not have duty to warn patient of risks unless pharmacist has personal
    knowledge that drug is contraindicated for patient (e.g., aware of alcoholism).
Davis v. Wyeth Laboratories, Inc. (1968) (p. 812) (manuf. has duty to warn patient of
dangers of vaccination, esp. when w/manuf. knows administered by pharmacist w/out Dr.)
    Manuf. of vaccine has direct duty to warn patient of risks, even if chances of risk occurring
    are small, but consequences great. Esp. true when manuf. promotes vaccine and knows it
    will be administered w/out a Dr. present to warn – warnings on bottle never seen by patient.
Reyes v. Wyeth Laboratories, Inc. (1974) (p. 812) (same situation, goes to jury)
    Jury entitled to decide if lack of warning caused injury, but w/rebuttable presumption it did.
Problems with large damage awards paid by manufacturers in failure to warn patients
    (1) doesn't factor in reduced risk from use of vaccine ( manuf. pays all Ds when perhaps
    only 1/3 causative) (2) raises vaccine costs thereby discouraging people from getting them
Congress responds with complex system of no fault compensation for vaccine problems
    But even though amounts payable under system are capped for the actual victim if the victim
    takes advantage of the system (option to sue in lieu of automatic payment), parents/other
    affected parties can still sue even if victim elects to receive payment under the system.
Jeanette L. Goldsberry                                                                         Page 76
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Restatement (Third) of the Law of Products Liability (1998) §6. LIABILITY OF
COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM CAUSED BY DEFECTIVE
PRESCRIPTION DRUGS AND MEDICAL DEVICES
    (d) A prescription drug or medical device is not reasonably safe due to inadequate
instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of
harm are not provided to:
    (1) prescribing and other health-care providers who are in a position to reduce the risks of
harm in accordance with the instructions or warnings; or
    (2) the patient when the manufacturer knows or has reason to know that health-care providers
will not be in a position to reduce the risks of harm in accordance with the instructions or
warnings.
Ayers v. Johnson & Johnson Co. (1991) (p. 817) (baby inhales baby oil, permanent D)
    When it is generally known that something is dangerous to babies if ingested, but the harm
    generally known is mild, and more serious harm is possible, manuf. has duty to warn.
Garrison v. Heublein (1982) (p. 818) (vodka manuf., no duty to warn of alcoholism)
Hon v. Stroh Brewery Co. (1987) (p. 818) (but duty to warn of pancreatic problems from
moderate ongoing use of alcohol, not commonly known)
    No duty to warn of commonly known product dangers, but duty if not generally known.
    Note: now, government warning on alcoholic beverages (1) don't use if pregnant, may cause
    birth defects (2) impairs ability to drive/operate machinery (3) may cause health problems.
Jackson v. Coast Paint & Lacquer Co. (1974) (p. 818) (EARLY CASE – warning to use
w/ventilation did not imply increased danger of fire, only dangers of inhalation)
    Case goes to jury in spite of manuf. and employer warnings, due to unexpected consequence.
Cotton v. Buckeye Gas Products Co. (1988) (p. 819) (RECENT CASE – short warning on
product w/longer brochure given to employer considered adequate in context)
    Sometimes, the most effective warning in hindsight is not best in the vast majority of cases.
    A short, large print warning on product (in this case, warning that gas in canister flammable,
    don't store in living areas) plus brochure containing detailed warnings given to employer is
    generally more effective than small print warning containing every possible eventuality.
Pavlik v. Lane Limited/Tobacco Exporters International (1998) (p. 820) (decedent died
from inhaling butane intentionally; rebuttable presumption that failure to warn causative)
    Manuf. warning "DO NOT BREATHE SPRAY" combined w/mom's warning not to inhale
    apparently insufficient to overcome rebuttable presumption that failure to specifically warn
    against intentional inhalation was proximate cause of decedent's death – jury gets to decide.
Uniroyal Goodrich Tire Co. v. Martinez (1998) (p. 821) (16" tire explodes when mounted to
16.5" rim – in spite of warning, goes to jury because better design could prevent explosion)
    Clear warnings not enough to preclude judgment in favor of  on basis of fact that different
    design could remove risk entirely (safer bead design could have kept tire from exploding).
Based on Third Restatement, §2, comment l, requiring design change.
Cites Latin, who criticizes §402A, comment j, "Where warning is given, the seller may
reasonably assume that it will be read and heeded." In reality, people have lapses of attention,
and even good warnings should not be respected when cheap design alternatives are available.




Jeanette L. Goldsberry                                                                   Page 77
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XI.    DAMAGES
                                  COMPENSATORY DAMAGES
McDougald v. Garber (1989) (p. 853) (comatose  – no awareness, no pain/suffering Ds)
    Loss of enjoyment of life Ds (1) combined w/pain and suffering (2) require awareness.
 has C-section/tubal ligation;  Drs. negl., oxygen deprivation, permanent brain D/coma. Sues
for Ds for medical care, pain and suffering, and loss of enjoyment of life for , and husband's
loss of consortium. Tr. ct. separates pain and suffering from loss of enjoyment of life, and does
not require awareness of  for loss of enjoyment. App. Ct. rev'd, remanded for new trial on
nonpecuniary Ds. (1) pain and suffering/loss of enjoyment of life combined (suffering broad
term) (2) loss of enjoyment of life requires  to be aware (3) justification – negl. Ds not punitive,
but restorative. If no loss of enjoyment, even if coma is injury of great magnitude (paradox,
lesser injuries would lead to greater awareness),  should not recover. Dissent loss of enjoyment
objective fact apart from any subjective awareness, should be separate from pain and suffering.
Melvin Belli, The "per diem" rule (1952) (p. 859) ($5 per day, vs. $60k per life)
    Break down pain/suffering Ds into daily amt., helps jury understand meaning of large award.
    Note: some jurisdictions allow this argument w/caution, others only in closing arguments.
Other options (matrix, insurance, Ds for increased risk of future injury)
    (1) D schedule/matrix to allow set amounts for Ds based on circumstances (2) insurance
    policies that pay out Ds now, before any accident, and subrogate pain and suffering D claims
    – you would rather have the extra money now while you can still enjoy it?? because there is
    no real hope that you will ever be totally restored (3) recovery for increased risk of future
    injury (e.g., not able to exercise because of amputation,  risk of heart attack) (Posner likes).
O'Shea v. Riverway Towing Co. (p. 862) (1982) (inflation built into future wage Ds OK)
    Two alternatives: (1) add inflation to both base discount rate (allows for interest earned on
    Ds) and lost wages; or (2) don't add inflation into base discount rate or wages ( evens out).
    Other adjustments to wages – increase due to experience, or probabilities that person would
    have stopped working. Can be calculated as flat adjustment, or yearly (more accurate/time
    consuming, less generous at extreme end, wages higher but also likelier employment ceased).
 cook on towboat, rides 's harbor boat back to shore.  negl. in helping  off the boat;  fell
and was injured. Various ways of calculating lost wages (see above, (1) used). If inflation added
to discount rate, must also be added to wages. 's economist failed to allow for decreased
likelihood that employment would continue until age 70, but  didn't object so 7th cir. allows it.
Reductions for  finding other work might have been allowed, but  middle-aged, overweight,
uneducated – no other suitable employment, so ct. does not require it to be factored in. Ct. also
allows for increased wages/full-time work, even though wage increase had not yet occurred and
 had been working full-time for less than a year (women reentering workforce on death/divorce
of husband often have less consistent employment history, shouldn't be penalized). 's Ds aff'd.
Note: (1) some courts argue for fixed rates w/out inflation; (2) others take case by case analysis
and place burden of proof on party that benefits (e.g., discount rate , inflation/wages ).
(1) Prejudgment Interest / (2) Taxation of D awards / (3) Imputed Income (p. 870)
    (1) sometimes interest allowed from time of accident to date of award to avoid any dilatory
    tactics resulting in payment being delayed (and consequent interest earnings for ) – but
    interest is taxable (unlike award for actual Ds). (2) Ds in compensation for personal injuries
    (incl. lost wages) not taxable (but punitive Ds are taxable) – older cases don't take this into
    acct. in calculating Ds, some recent cases do (but not always submitted to jury, sometimes at
    discretion of judge). (3) if housewife injured, family can receive compensation for lost
    services, pmt. of replacement (also, Ds for loss of ordinary pleasures, e.g., playing violin).

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                                       PUNITIVE DAMAGES
Kemezy v. Peters (1996) (p. 909) ( req'd to submit evidence of net worth for D reduction)
    Reasons for punitive Ds (1) compensatory Ds often don't fully compensate, Ds too difficult
    to prove (2) underdeterrence (a) cold cost benefit analysis, needs extra disincentive (b) forces
    market transactions e.g. no stealing car to pay for it later, plus allowance for fact you might
    not get caught (3) expresses community's abhorrence (4) relieve pressure on criminal justice
    system (5) s can bring in evidence of rich  but burden on  to bring in evidence of poverty.
 wantonly beaten by policeman, $10k compensatory/$20k punitive upheld by Posner on appeal.
Day v. Woodworth (1852) (p. 912) (punitive Ds upheld for trespass/destruction of dam)
    When trespass Ds wanton/malicious, punitive Ds OK.
Owens-Corning Fiberglas Corp. v. Garrett (1996) (p. 913) (no punitive Ds for asbestos)
    Majority overturns punitive Ds, 2-part test (1) actual knowledge of defect (2) deliberate
    disregard of the consequences (manuf. tried to prevent exposure to dust, added warning
    labels before govt. req'd), Minority alternatives to asbestos available, jury verdict not wrong.
Fischer v. Johns-Manville Corp. (1986) (p. 914) (corporate asbestos s held to punitive Ds)
    Court ignores (1) possible time gap between culpable employees and corporate liability (2)
    part of risk of stock investing, plus shareholders reap benefits of wrongful activity (3) caps
    should be nationwide, otherwise states creating caps just gives money to the states that don't.
Jackson v. Johns-Manville Sales Corp. (1986) (p. 915) (asbestos case, like Kemezy)
    Corporate s, burden to produce evidence of insolvency in possible reduction of punitive Ds.
Gryc v. Dayton-Hudson Corp. (1980) (p. 915) (Ds for flannelette, infant burned in fire)
    Commercially available flame retardants, though not in use in industry, sufficient to allow
    punitive Ds, in spite of fact govt. standards met (industry influence created low standards).
Grimshaw v. Ford Motor Co. (1981) (p. 916) (Ford liable for Pinto, Ds $3.5m, cost/benefit)
    Malice: a motive and willingness to vex, harass, annoy or injure another person.
    Malice inferred from acts w/willful, intentional, conscious disregard of possible results.
Ford Pinto, explosive gas tank (but what if no more burn deaths than other small cheap cars).
GM verdict, fuel-tank fire, $4.9 billion verdict ($4.8 punitive), reduced to $1.09 billion
    Evidence that driver was drunk, and overall safety record was not allowed into trial by tr. ct.
Tetuan v. A.H. Robins Co. (1987) (p. 917) ($7.5m punitive Ds upheld)
    "Malicious silence" in relation to problems w/IUD,  forced to have hysterectomy.
Statutory Responses to Limit Punitive Damage Awards (p. 917)
    NH – total bar on punitive; Conn. – 2x; Fla. – 3x unless extraordinary circumstances, + pmt.
    of 35% of punitive D award to state funds (upheld as constitutional); but sim. provision not
    upheld in CO (taking of 's private P w/out just compensation); Cal. – bifurcated trial on
    liability/Ds if request by ; KS – jury determines liability for punitive Ds, judge decides amt.
BMW of North America v. Gore (1996) (p. 918) (BMW sold as new, but D'ed, repainted)
    Huge Ds award for repainting of D'ed car/subsequent sale as new ruled unconstitutional,
    14th Amend. Due Process Clause. (1) no fair notice of punishment/severity (2) "grossly
    excessive" (a) degree of reprehensibility (b) disparity between harm/potential harm and
    punitive Ds (c) difference between remedy and civil penalties in comparable cases ($2k).
 bought new BMW for $40,750.88, dealer didn't disclose minor repairs (D'ed in transit), policy
of selling as new if repairs don't exceed 3% of retail price.  takes car into private shop for
"detailing", discovers car had been repaired, sues. Values of car 10% less ($4k), + punitive Ds,
estimated 1,000 refurbished cars sold, $4m.  argues no duty to disclose, car as good as new,
good faith. Jury awards $4m, reduced to $2m (improper to consider repainted cars sold in other
jurisdictions). S. Ct. – states have flexibility, w/in reason. But grossly excessive punitive Ds
thrown out (see above). Dissent, majority misapplying 14th Amend., opportunity for hearing
guaranteed but not "reasonable" Ds. Also states' rights, subjective assessment of reasonableness.

Jeanette L. Goldsberry                                                                     Page 79
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       JEANETTE GOLDSBERRY'S CASE / RULES OUTLINE – TORTS
Browning Ferris Industries of Vermont, Inc. v. Kelco Disposal (1989) (p. 924)
    S. Ct. rejected challenge to punitive D award re 8th Amend. prohibition on excessive fines.
Pacific Mutual Life Insurance Co. v. Haslip (1991) (p. 924) (3rd pty fraud, pun. Ds upheld)
    S. Ct. allowed $1m punitive Ds for insurance co. failing to renew policy, agent didn't remit $.
TXO Production Corp. v. Alliance Resources Corp. (1993) (p. 924) (large pun. Ds award
allowed (ratio +500%) for potential harm if wrongful plan had succeeded)
    S. Ct. allowed +500% Ds for slander; not cut & dried formula, adaptable to circumstances.
Honda Motor Co., Ltd. v. Oberg (1994) (p. 925) (some judicial review required for pun. Ds)
    OR system invalid – no review of jury's pun. Ds unless no evidence for verdict, too arbitrary.
Responses to BMW (p. 925)
    (1) economic approach (for D multiplier, incorporate risk wrongdoer will escape punishment)
    (2) behavioral econ law e.g. Sunstein, determinants of shared outrage agreed upon by
    participants in study, but not D awards; inability to translate moral judgments into $ amounts.
    (3) BMW only applies in extreme cases (e.g. 500x compensatory D award).




Jeanette L. Goldsberry                                                                    Page 80
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