Sargentich - Torts - Spring 2007 - A- by methyae


									ATorts 7, Professor Sargentich, May 14, 2007


Question 1: ABC would argue that there is no evidence of negligence (BPL negligence) on behalf of ABC trucking or its employees. ABC’s B (precaution to prevent any accident) was to ensure that the connection between the tractor and the trailer was of sufficient strength to prevent accidental separation, and they have proved at trial (due to lack of contradictory evidence) that they took every necessary precaution to prevent such a separation. It is a reasonable assumption that ABC recognized that despite the low probability of separation (low P) there existed an extremely high L (of gasoline-caused injuries), so as PL was extremely high, there was every incentive for ABC to take all possible precautions, short of not shipping the gasoline at all. ABC could also point to industry standards and customs (in terms of how tanks are attached to trucks) to show that it took all the necessary precautions, though this would only be one factor weighed by the finder of fact. Overall, however there seems to have been no culpability on behalf of ABC, for the accident. There is no evidence of error, inadvertence, or disregard of safety practices and procedures. P likely did not bring up any contradictory evidence, because either there is no such evidence or because P had no interest in making an ordinary negligence claim against ABC. Posner would agree with this particular part of the outcome of the suit, as there is therefore no utilitarian purpose for holding ABC liable for the harm that resulted. They took every precaution, and took an efficient risk. Fried would agree for different reasons—ABC did not impose more risk on the public compared to the burden that they bore to prevent accidents. However, P would argue that two specific types of negligence doctrine should apply: abnormally dangerous doctrine, and negligence per se. P would claim that ABC is strictly liable for all accidents caused by engaging in an activity that hold an unusually high risk of accidents— here, transporting a highly flammable product on public streets. This type of activity, would fall under the Restatement’s definition of abnormally dangerous in 519-520. Here, D would agree that the transport of gasoline is abnormally dangerous. However, D would argue that the particular type of harm that resulted from the separation of the tank was NOT an abnormally dangerous result of the transport of gasoline. Abnormally dangerous doctrine tends to focus on the extreme and highly injurious harm that would result from an accident—in this case, the gasoline exploding. D would say that a simple separation of tank from trailer and property destruction from the tank itself—which could happen with the transport of any liquid commodity, such as milk or water—is not inherently dangerous. D would say that the same type of harm happened here as would have had the tank been empty, and surely transporting empty tanks is not an abnormally dangerous activity. This doctrine would make sense if it could achieve any of Calabresi’s goals of strict liability, such as forcing the structural cheapest cost avoider to go back further in the wedge to take additional precautions, and then spread that additional cost to other consumers. D would say that a tank-caused injury, as opposed to a gasoline-caused injury, is better judged by fault doctrine than by strict liability doctrine based on the above reasons. P would next bring a negligence per se claim, on the basis that there is a Ames safety statute that sets specific requirements for the transport of tanks by truck. For a negligence per se claim to apply, the statute must be pertinent and apply to the situation at hand. The statute (after being silent on the whole issue of private causes of action) must fill the “same persons” requirement—that the persons meant to be benefited by the statute are the ones who are suing. P would prevail on this count, because the statute is clearly intended to protect the public and other



drivers (that is, those who share public roadways with those who transport goods by truck). The “same protections” requirement would also apply in this case: that the type of injury incurred is the injury meant to be protected by the statute. P would claim that the injury meant to be protected would be property damage as well as personal injury. D would argue that it was just to prevent personal injury, but D may fail at this. P would claim that there is sufficient causation; that but for the separation of the tank from the truck, the damage to his automobile would not have occurred, and that also, this was appropriately proximate to serve as the legal cause as well. There were no intervening factors. D may argue (based on the rules in some states) that there is no way that D would have discovered that such injury could have occurred, and therefore this should serve as an excuse, and that some states have even abolished negligence per se doctrine altogether. P would respond that other jurisdictions do not allow this particular excuse as a justification. In all, though, the modern method of addressing this issue is for it to be considered as simply another factor for the finder of fact to consider. In all, this should be governed by negligence per se doctrine if the private enforcement of this public law furthers the intent of the governmental body who promulgated it. P would next argue the res ipsa loquitur doctrine. This doctrine states that that if an accident is the kind that usually happens due to the negligence of the class of actors of which the d is a relevant member, the p will be allowed to make out a prima facie case of d’s negligence based on “circumstantial,” rather than direct, evidence. P would agree that there is no direct evidence of negligence, but would argue that the following 3 factors of res ipsa loquitur are met. First, P would argue that this accident that occurred usually (that is, greater than 50 % of the time) does not happen without evidence. P would have to present either statistical studies, or even mere conjecture that such accidents occur usually only through negligence. D would need to respond with counter-evidence, either studies that come out the other way, expert testimony to the contrary, or conjecture of its own. The second requirement is that the D must be in exclusive control of the instrumentality that caused the accident. D would be unable to dispute this, as its employee was the one driving the truck. Third, the injury must not have been caused by any voluntary action or contribution on the part of the p. P would argue that merely parking his car (in a location albeit unspecified in the fact pattern) was not either contributorily negligent or an assumption of the risks that a traffic accident on the road could damage his vehicle. D may try to respond that based on the particular place in which the P parked, the P should have known that many gasoline tanker trucks pass by and that there is a risk of separation, and that P assumed this risk by parking there (which would be a total bar to recovery). However, this argument would probably not hold much weight. The manner in which the res ipsa claim would be viewed by the finder of fact varies from state to state. In some states, this creates a presumption that when the p meets this requirement, the d must rebut the presumption by giving their own study that attacks the probability in order to get the case to the jury. In these states, if the d does not give a rebuttal, the p would win on a directed verdict. In other states, the res ipsa doctrine only creates an inference of culpability. Here, the case will always go to a jury, and all factors—including the res ipsa claim—will be weighed together. The idea with res ipsa doctrine is that if the requirements are met, it is the d that has all the information and the p which has nothing. This forces the d to defend himself, and cause him to expose his story, thereby leading to the most available knowledge about such an accident, leading to the fairest outcome of the trial. D may try to respond that P’s recovery should be eliminated due to the economic loss doctrine. This states that if one is a party whose loss is only economic, without suffering any physical harm, then one basically cannot recover. However, while P did lose the value of his



automobile, he also did suffer a physical harm—the destruction of his property. Therefore, the economic loss doctrine will likely not govern. Additionally, ABC may be able to file its own strict products liability suit against the manufacturer of the mechanism that attached the tank to the truck. ABC would argue all of the same above issues that P would argue, such as the separation, through res ipsa loquitur doctrine, is presumptively on inferentially negligence, or that it is negligent per se. Finally, this may be a state that has compulsory auto insurance as loss insurance. In these states, this task-risk system will spread costs of loss from one victim to all the other victims who have purchased such insurance. D may argue that P should rely on his private loss insurance to cover the purely economic damages to his automobile. However, if D is found to have been culpable, then P will still be able to recover from D, but that recovery will be reduced by the insurance payments. Question 2: In determining the question of negligence on behalf of the d, one must first look to a BPL analysis of the doctor’s actions. The doctor had one very large B that he chose not to take: the use of antinox to prevent scarring that had a small, yet real, probability of developing after the P’s exposure to noxalene. The B, therefore, is the cost of the antinox plus the cost of educating the doctor of the benefits of using it at the time, and the PL is chance of scarring (15%) multiplied by the amount of harm that is caused by such scarring. The P will argue that scarring to the face is far worse than scarring to a hidden part of the body, making L very high, while the doctor may argue that scarring, overall, is equivalently compensable no matter where it happens. Either way, the B is a difficult number to determine, due to the fact that education of the doctor (to the extent that the medical community knows now) at the time of the beaker explosion would have been nearly impossible. The doctor would respond that it was not only the custom but also the professional standard at the time of the accident to NOT use antinox. Custom is usually held to be just one factor, and not a trump, when determining if a defendant is negligent. However, professional standard is generally a trump. (Doctors are clearly the type of professional that this doctrine attempts to protect). P would fail in trying to prove that the defendant did not meet the standard of care, and that the doctor deviated from the degree of skill and care that is expected by all members of the profession, because it was accepted at the time that antinox was not the way to treat noxalene burns. P would then try to attack the standard on strict BPL grounds, arguing that the B of using the antinox (which, according to the fact pattern, has no side effects) is less than the probability of scarring multiplied by the harm of such scarring, and D would have to show otherwise. The danger of this is that it is the profession itself that creates the standard—and can we trust the profession to do e BPL balancing on the behalf of other people, who presumptively have less knowledge about the industry? The industry has a large incentive to hide the truth to cut costs. Next, for a negligence cause of action, we must do a BPL balancing of the P. P had many possible Bs that would have prevented this injury, such as not working at this job, or wearing a protective mask. The first is a high B, but the second seems to be an extremely low B. D could argue, even that B either assumed the risk of noxalene burns to the face by not wearing a mask when handling it, or that D was contributorily negligent or comparatively at fault for such actions. P may make similar custom and professional standard arguments in terms of maskwearing. In jurisdictions, where cneg is a bar, this would remove D’s negligence liability altogether. In most, however, it would just be one factor in the determination of the



apportionment of the blame. D may argue that this would make the P the structural cheapest cost avoider—that if everyone handling noxalene wore masks, there would never be a chance of facial scarring that would necessitate the use of antinox. There is a clear line of causation, both but for and proximate, from the doctor’s non-use of the anti-nox and the scarring that developed. While there was only a probability of this happening, it is very clear to trace this probability from the doctor’s actions to the P’s injury. Assuming that the D was negligent, damages would be apportioned this way. A noxalene burn causes scarring 15% of the time, and the antinox reduces the chance by one-third, to 10%. Therefore, the doctor’s non-use of the antinox increased the probability of scarring from 10% to 15%, making the doctor liable for 33.33% of the injury suffered by the P. The preceding contained not only the physical damage of the scar, but would also include wages (if this person uses their face as a means of earning income, such as a model) and also pain and suffering, if the jurisdiction allows the recovery of this type of damages. The interest here is to give “full compensation” for the injury to the P, but this is difficult to do the manner in which the courts determine compensation, which includes freezing the P’s current status in its determination, discounting money for interest and inflation, and the difficulty of calculating future wages. In some state, a third party may recover damages for relational losses (consortium) but here, D would argue that a facial scar would not cause these things. Another view on compensation would be to use it not to compensate, but rather a means of deterrence. The purpose here would be to force the doctor to use the antinox at every subsequent noxalene burn, and damages could be the impetus for that. There would be no cause of action for punitive damages, as the doctor did not fail to use the antinox out of malice, outrage, or disregard. P would argue that the hospital is vicariously liable for D. D would say that vicarious liability only applies to master-servant relationships, and the particular relationship here was one of independent contractor. Those who hire independent contractors are generally not liable of the injuries caused by them. P would then argue that D falls into one of the exceptions to this rule. P would first argue that treating his noxalene burn became an inherently dangerous activity due to a precaution not taken by the doctor—which was to investigate the possibility of using the antinox on the facial burn. D would respond with the same professional standard argument raised above. P may try to argue that all of a doctor’s duties when treating patients in emergencies have the potential to be inherently dangerous, simply due to the fact that emergency medicine is dangerous in itself. P would next try to argue that the duty a hospital has for preventing injury to its patients is a non-delegable duty—that it is a danger that the hospital cannot farm out to another person. P would say that this is like a case in which a shopping mall hires an independent contractor to pave its sidewalk, and does a negligent job and leaves a sidewalk full of holes that an individual falls into and gets injured. The mall would still be vicariously liable, because it cannot delegate the duty of maintaining safe public walkways to another and escape liability for it. P would argue that the same way, a hospital cannot delegate the duty of keeping its patients safe and escape liability. Holding the independent contractor liable has a number of policy arguments on its side. First, we would want the hospital to be liable, because then it would be even more careful in choosing which independent contractor doctors it decides to hire. Additionally, medical care is dangerous activity, so it would simply be unfair for one to be able to delegate that responsibility in order to relieve you of it. However, policy also argues against it, because the hirer here is not the structural CCA—rather, it is the doctor who should know whether or not to treat this injury with anti-nox, not the hospital. Further, it seems fair that the

Ahospital should not be held responsible for the mistakes of someone operating semiindependently of it.


Question 3: First, V has a standing to D despite not being in privity of contract with the seller of the dogs. In the modern regime, the distributor would be liable to harm caused by the product to anyone who could foreseeably use it at the time of the sale, and it is foreseeable to the seller that a persons neighbor would play with the dog it sold. Therefore, V is a valid P. P could raise a strict product liability cause of action on the grounds of the dog being a defective product. Doctrine states that one who sells a product in a defective condition is strictly liable for physical harm caused by the product. Here, the dog seller is a seller engaged in the business of selling dogs, the product (the dog) was in a defective condition that is unreasonably dangerous to the user (a dog should not have a propensity to bite children) and the product is expected to, and actually does, reach the consumer without a substantial change in its condition (here, the dog went right to the customer). P could first argue that the dog was a manufacturing defect—that the item is an aberrant product (a lemon), and that the product does not correspond to the plans for the whole production run. P could compare this particular short-haired terrier to other short-haired terriers, to see if this propensity to go berserk is common to all the dogs or only to the one purchased by B. D would respond that this is an odd inquiry to do with living creatures, because there was really no “design” involved—that was done by evolution/the creator. P could next claim that this dog was rather the result of a design defect—a flaw that is inherent in the design of the product itself, and therefore affects all of the products. D would again counter that there was no “design” involved, that it did not do anything to create the particular characteristics of this animal. P would still try to prove this under the expectation test or the balancing test. Expectation test: the expectation of P, at the time of purchase, was clearly that the dog would not go berserk and bite children. This was partially fueled by the advertisement of the store (discussed below). P would argue that the risks associated with product design (that the dog had this disease) offended the expectations of an ordinary consumer. D would argue that it had no way of knowing about this disease. P would argue back, based on Green v Smith, that it doesn’t matter if the seller knows or does not know. D would respond that in some jurisdictions, the lack of ability to know is a bar to recovery. P would next argue that this fails the balancing test: that the risks of design (that is, the dog with the illness) outweigh the design’s utility (the utility being the companionship of a lovable furry creature). D would respond and point to the availability of substitutes (many other types of dogs), and the likelihood of risk (so small as to be unknown), and (possibly) that P should know the danger of dogs having this illness, as P is a “dog lover” who impliedly knows more about dogs than the average consumer. P would counter that there was no ability to eliminate the danger, as it was unknown to the time of purchase. These claims would shift the burned of proof to the D to show that the pl here (the likelihood of injury from a diseased dog going berserk) was less than the B (discovering that such a disease existed, which appeared to have been impossible). D would also decry this hindsight balancing test, saying that this is not great, because the point of this is to balance with new knowledge you have at trial—knowledge you didn’t have then. P could still argue that holding the seller strictly responsible would effect the aims of strict products liability doctrine. It would put the background risk in the hands of the seller, forcing the seller to look deeper into the wedge—perhaps here, the seller could have done more



investigation into the breeder of this dog, or the dogs parents/grandparents (if this disease was genetic). The seller would then be more able to spread this cost to the consumers, in terms of slightly higher prices—which avoids any one unlucky consumer from having to bear the whole burden. This spreading would achieve a market allocation objective, with the market becoming skewed toward possibly-dangerous dogs being more expensive, and safer dogs cheaper. Finally, it is clear that the seller is the CCA (and the structural CCA), because Byers purchase was probably a one time event (with a corresponding low L), while seller in engaged in this business, and will have a PL (and therefore an L) for every buyer. P could claim that the advertisement “docile and friendly” was an explicit warranty under the UCC. P would claim that this advertisement was an express assurance that the dog would not go berserk and attack children. P would say that this advertisement became a contract term, and that it was violated, and contract violations are dealt with strictly. P would claim that because the remedies for contract are distributed without regard to fault (that is, strictly), that the seller was strictly liable due to breach contractual terms. B was not a stranger to the seller, and they could have bargained how much or little warranty that B received. In cases where tort and contract could both address an issue, the courts are more likely to fall behind contract as a means of adjudicating disputes, and reserve tort actions for those injuries that occur between strangers. D could respond that this was not explicitly written into the contract (of which there is no mention in the fact pattern) and therefore void due to the parol evidence rule. Additionally, P could also argue that under the UCC, there was an implied warranty of fitness and safety, and therefore the P could sue under a strict contract claim. P would claim that when once purchases a dog from a merchant of dogs, there is an implied contract that the dog would be safe and conform to the reasonable use of that good. This does not include the dog going berserk and attacking children. However, D could respond that even “docile and friendly” dogs bite—people know that dogs have teeth, and that these teeth are for biting, and that occasionally dogs bite. P could also bring this under a failure to warn claim. The first step is a negligent failure to warn analysis. D would say, however, that the above showed that the distributor could not have discovered the defect, so B was impossibly high, so there is no way that was less than the PL. Therefore, the distributor could have had no way to find out about the defect, and therefore no way to warn. D may also say that a dog bite is an obvious risk that need not be warned about. P could bring this under strict failure to warn, which essentially states that if one knows about a risk at trial that one should have warned about, then he is held strictly liable, even if he could not have known about it or warned about it. P would claim that this disease was discovered after the event, and therefore should be imputed to the D, in hindsight, to have warned about it. The policy justifications of this are the same as mentioned above: CCA, market allocation, spreading, etc. P may also bring a claim that D affirmatively misrepresented the nature of the dog. Again, D had no way of knowing about the defect, but it still represented to the B that the dog was safe. Therefore, D could be strictly liable under this. D’s assumption of risk claim would focus on the claim that B/P both knowingly and voluntarily chose to face the risk. True, P voluntarily decided to play with the dog that B voluntarily bought. P would argue that the knowingly requirement is not met, because there was no way to that the dog had a defect that would make it go berserk. Also, modern strict products liability doctrine has held that users of a product only assume the risks associated with that product that a reasonable user of the product would know. Since no one knew about this disease of the dog, the user definitely did not know, and therefore did not assume the risk of using this product. Additionally, since B and D were non-strangers at the time of the transaction of the dog,



they had the opportunity to form a contract in which the risks of the dog could be assigned. Classically, assumption of risk doctrine usually only applies to non-strangers. While today it is just another factor thrown into the mix when apportioning fault, P would argue that it did not occur here. Finally, P likely was not negligent in deciding to play with the dog. D would argue that the P had a very low B, which was to simply not play with the dog. However, in a balancing that the P did before playing with the dog, there would have been no way for the child to take into account that the dog had an unknowable disease. And note, this BPL analysis was done by a child, so depending on jurisdiction, a child may not even be imputed with the capacity to do a proper balancing. Age is taken into account for determining if a person is a reasonable in this way: first, a subjective analysis (what was capacity of particular child) and second, an objective analysis (how would a reasonable young person of that age act). D would have to prove that P should be considered a reasonable adult, and then show that the B was less than PL for the child, and procedure that P would assume that D would fail. Question 4: One deficiency in this proposal is it doesn’t address the manner in which society changes over time. Rather, it attempts to do an evaluation of a continuing harm that is occurring today by looking at it through the lens of when this harm first began. This fails to address a number of issues. The first is that of changed conditions of the physical landscape surrounding the nuisance creator. Under this commentator’s scheme, the only relevant surrounding landscape that should be taken into consideration is the one that existed when the nuisance activity began. For example, let us assume that it is a factory that produces a noxious odor. Under the new scheme, the court would look at the surrounding physical area when the factory began operation. If there was no development for a mile all around, and therefore the factory was well sited in the past, the court will allow the nuisance to continue. This does not take into account issues in which development patterns can cause development up to a nuisance. True, this does seem to validate the “coming to the nuisance’ doctrine mentioned in Spur. However, this has the potential to freeze land use forever—so while the factory only owns the land it bought, it actually controls any land upon which the smell can go that didn’t have people living/working there when the smell started being produced. Additionally, this does not take into account the possibility of the discovery of new medical and scientific knowledge. When the smell began being produced, it is possible that no one knew it contained a poison, so that’s why the factory was located where it was. If 20 years later they find out it was a poison, and the injury far outweighs the utility, it doesn’t matter, because at the time, there was no need for a feasible way in which the factory wouldn’t poison, because no one knew that it would. This shows, as an example, how this scheme would license a continuing harm, despite the fact that it causes more harm than benefit it creates This would particularly anger Fried, proponent of the risk pool. In the above example, the factory initially (due to knowledge at the time) put no more risk into society than it itself had to bear. However, today it is know that the factory places far more risk on other, and then gets the benefit from it. Fried would prefer a scheme that attempted to create a world of equally imposed risks. The scheme here would instead license a world of unequally imposed risks, as long as when the activity started, scientific knowledge presumed the risk was equally imposed. This would anger Fried, because the factory could continue to use other for its own benefit, going against the theme of respect for others that he derives from Kant.



Fletcher would agree, saying that fairness is reciprocity and equal risk imposition. Fletcher would also find fault with this scheme because it removes the inquiry from one where the evaluation is of reciprocated risk today, to one where it is an evaluation of reciprocated risk in the past. Fletcher’s ideas work particularly well with abnormally dangerous activities and nuisance, where he would prefer that strict liability should be imposed when one is not in a community of risk—such as those surrounding a factory—because it would simply be unfair to have unequal risks. Bohlen, who wishes that the burdens of individuals equal the benefit they receive, would not prefer the scheme that only looks at the benefit/burden equation as it existed when the harm began. Rather than this new scheme, Bohlen thinks that the harms of nuisance or other activities can be addressed through their internalization through strict liability. In his view, all actors who throw harm out on the world can be expected to have to bear the burden, with no one being forced to suffer greater than his fair share. Bohlen would think that his method would achieve better results in a more administrable way than would this new commentator’s scheme. This also doesn’t take into account people changing ideas of what “substantial harm” means. It does not make sense to lock this definition into the time when the potential substantial harm was first created. Rather, we should take into account the evolving and always-changing standards of harm, and the changing ways in which people use and enjoy their land, in order to determine whether a nuisance should stop today. For example, today people may value sunlight more as a means to power their solar panels, or people’s environmental sensibilities are different from the way they were 90 years ago. Just because the society wouldn’t have objected to the externalities created by a nuisance in the past, there is no reason to think that people, as a collective society, may some day change their collective mind and make new definitions. This generation should not be stuck in the choice/preferences of past generations. This scheme may also have as a fault the fact that it would be difficult to administer. Perhaps if the nuisance was created only a short time ago (within months or at the most a few years), then the inquiry into whether the harm could have been feasibly stopped at the outset of its creation could be answered. But how does one address harms that began 50, 70, even 100 years ago? How can one figure out feasibility when there are no direct witnesses who could attest to the feasibility of a continuing nuisance that began in 1924? This is why a present-day focus of harm balancing would be preferable. Rawls may prefer this scheme, as he would agree with this commentator that it is wrong that denying an injunction licenses a continuing harm. Rawls believes that even if it is in society’s best interest that the benefit of the nuisance creating activity continue if it outweighs the harm, Rawls thinks that making one group in society suffer harm, even if more people end up benefiting, is those people as a means to an end and disrespecting them. Rawls would prefer the lowering of the net societal benefit, so long as at achieves a greater equality. Finally, this new scheme is also mistaken in decrying the fact that the denial of an injunction licenses a continuing wrong. What the commentator misses is that when an injunction is denied, society, as a whole, benefits. The court, in denying an injunction, is making the calculation that everyone is better off with the harm-causing activity and harm together, than it is with both the harm-causing activity and the harm being stopped. It seems to me that there is no real problem at all with this outcome, and therefore, there is no need for this problem to be addressed with a new scheme, especially one with the above logical holes and negative policy implications.

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