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									                                   DeWolf - TORTS
The classic definition of a tort case places the burden upon the plaintiff to show (1) that the
defendant breached a duty that he owed to the plaintiff; (2) that this breach was a proximate
cause of the plaintiff's injury; and (3) that the plaintiff suffered legally compensable damages.
Each subsequent chapter describes one of these components.

   I.      Breach of Duty

In General. Tort law deals with cases where the plaintiff has suffered a loss and is trying to shift
the responsibility for that loss to one or more defendants. To do so, the plaintiff must first prove
that the defendant's conduct was of a type that entitles the plaintiff to be compensated. The two
most common forms of conduct on the defendant's part that justify such loss-shifting are
negligence and strict liability.

           A.      Negligence
Negligence is the failure to exercise reasonable care; reasonable care is what a reasonably
prudent person would do in the same or similar circumstances. It is judged objectively, although
it may be "customized" where appropriate (i.e., reasonably prudent blind person standard for a
person who is blind). When children engage in adult activities (driving, power boating), they are
held to an adult standard.

In determining reasonable care, one should consider both the potential for an accident and the
cost of taking measures to avoid one. Learned Hand's test (Is B < P*L?) is simply a
mathematical expression of the intuitive judgment that reasonable prudence, not perfect safety, is

                     1. Standard of Reasonable care

                     Lussan v. Grain Dealers Mutual Insurance Company

                           a. The “reasonable” person
                           An objective standard based on what society sees as prudent. Under
                           the circumstances, what would a reasonably prudent person do?

                           Vaughn v. Menlove
                           Idiots haystack set fire to neighbors property. Defendant doesn’t want
                           to be held to the standard of an ordinary person because he is stupid.
                           Jury holds him to an ordinary, reasonable, person standard and finds
                           him negligent.
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    Adams v. Bullock
    Kid is electrocuted while crossing a bridge swinging a wire. The wire
    touched a trolley line under the bridge. On appeal the court finds for
    the defendant. There is a duty to adopt all reasonable precautions to
    minimize the resulting perils Ordinary caution does not involve the
    forethought of extraordinary perils. The defendant had done
    everything it could and had no reason to believe the wires were a

    b. “Customizing” the standard of a reasonable person

    The reasonable person standard can be adjusted for minors,
    disabilities, or emergencies.

    Robinson v. Lindsay
    The kids on the snowmobile case. Defendant held to adult level.
    When kids are doing what kids do, hold them to that standard.
    When they are doing what adults do, hold them to an adults standard.
    The standard depends on how severe the injury would be if there was a
    failure to exercise reasonable care.

    c. Efficiency
    The Learned Hand calculation: You are negligent if the cost of
    preventing the injury is less than the cost of the injury multiplied by
    the probability it will occur. Basically a cost benefit analysis.

    United States v. Carroll Towing – the Learned Hand analysis.
    Bargee was not present, barge got free and sank. The court suggests a
    mathematical approach may be used in some situations to prove
    negligence. The owner’s duty to provide against resulting injuries is a
    function of three variables: (1) the probability it will beak away - P (2)
    the gravity of the resulting injury – L (3) the burden of adequate
    precautions - B. Algebraically liability depends on B<PL. It is not
    beyond reasonable expectation that the barge will have to be moved
    and that the other people may not take reasonable care.

    Levi v. Slemco
    Oil company power line case. Used the same factors as Carroll towing
    case. Based on those factors you have to conclude someone would get
    hurt; it’s a matter of law. One judged pointed to partial negligence of
    plaintiff. New rule, reduce award proportionate to plaintiffs
    contributory negligence.

2. What Evidence Establishes Negligence?

    a. Jury experience
            TORTS OUTLINE
The people consider their own experiences in determining what a
reasonable person would do.

b. The Use of Industry Custom
The industry custom is a floor. If a safety precaution is taken by most
people in the industry, it suggests that it is what a reasonable person
would do. However, a judge may find that the whole industry is
lagging behind, in which case doing what every else does is not a
defense to negligence.

Bennett v. Long Island R. Co.
Railroad construction/ “lock and target” case. Ruling for defendant.
You must provide a safe work environment, but you do not have to
foresee every possible injury; as long as your selection of
tools/equipment is reasonable. Industry standards are a way of
proving reasonableness. This policy discourages innovation

T.J. Hooper
Tug sank in rough seas. No radio receiver. Statute requires
transmitter only, most ships in the industry did not have receivers.
Industry custom is not an absolute defense, especially when there are
inconsistencies in the industry. Court reserves the right to call the
whole industry negligent.

c. Statutory violations
There are two ways of viewing statutory violations:
       1.) Negligence per se – violation of the statute proves that you
           were negligent. The jury no longer needs to decide if you
           used reasonable care. Three things must be proven for
           negligence per se:
                 a.) Statute was in fact violated
                 b.) Statute was designed to protect against this kind
                     of injury
                 c.) The violation was unexcused.
           The restatement lists five excuses:
                       1 The violation is reasonable because of the
                           actor’s incapacity
                       2 He neither knows nor should know of the
                           occasion for compliance
                       3 He is unable after reasonable diligence or
                           care to comply
                       4 He is confronted by an emergency not due to
                           his own misconduct
                       5 The compliance would involve a greater risk
                           of harm to the actor or to others.
            TORTS OUTLINE
       2.) Evidence of negligence – violation of the statute is
           evidence that you were negligent.

Martin v. Herzog
No lights on the buggy case. Statutory violation equals negligence.
By omitting the lights you are not exercising the diligence that you
owe to society. However, this is only negligence if the omission of the
lights is the cause of the injury. It was undisputed that lack of vision
was the cause, the existence of lights would have given the plaintiff

Tedla v. Ellman
The people walking on the wrong side of the road, hit by a car. Proves
that statutory violation is not always negligence. Excused if obeying
the statute would put you in greater risk.

Nettleton v. Thompson
Plaintiff fell down stairs because of building code violation.
Defendant was not excused from obeying the code. Ignorance is not
an excuse.

d. Res Ipsa Loquitur
Where all the evidence has been destroyed or is otherwise unavailable,
the courts may infer negligence from the fact that an injury occurred.

The restatement lists three items that must be met before negligence
can be inferred from the injury:
                   1 Type of accident doesn’t happen without
                       negligence, and
                   2 Defendant was in control (exclusive), and
                   3 Other explanations have been eliminated.

Judson v. Giant Powder Co.
Dynamite factories don’t explode unless someone is negligent
Nobody else could have caused it
Defendant had a duty not to blow up his neighbors. Was exclusively
responsible for this.

Murphy v. Montgomery Elevator Co.
Res ipsa failed because other people besides the defendant could have
been responsible (the hospital had to approve work). Couldn’t sue
employer b/c of Workers Comp rules.

e. Evidence of Defendant’s Safety Policies / Rule Book
                   TORTS OUTLINE
       The defendants safety policies enacted prior to the accident can be
       admissible in proving negligence. Safety rules are usually enacted to
       prevent accidents.

       Post accident repairs are not usually admissible as evidence. Allowing
       post accident repairs to be used as evidence would prevent companies
       from preventing further accident because the prevention would be used
       to prove their past negligence; this would be bad public policy.
                           1      Show control of the premises – when there
                                  is disagreement over who is in control of the
                           2      Show feasibility of precautionary measures
                                  – Defendant says it isn’t feasible.
                           3      Controverter or Impeachment – “open the
                                  door” its admissible if the defendant brings
                                  it up.

       Smith v. Wal-Mart Stores
       The defendant opened the door to the testimony.

       Stevens v. Boston Elevated Ry. Co.
       Streetcar accident would not have happened if operator obeyed
       employer’s rules. Rulebook violations can be used to prove
       negligence, just like statutory violations. As long as the rule was made
       before the accident, no subsequent rules allowed.

 3. Establishing Vicarious Liability (Respondeat Superior)

 Used to attach negligence to a deeper pocket. Usually used to hold an
 employer liable, but in the case of independent contractors you may be able
 to get the deep pocket if you can show enough control. To hold someone
 vicariously liable, you need to show that the negligent act was done in the
 Course and Scope of the employment. An alternative is to show negligence
 in hiring.

 a. Course of employment – On the job.
 b. Scope of employment – part of the employees duties.

  Hayes v. Far West Services Inc.
Didn’t prove the intoxication was negligent. Three pronged analysis from
Dickenson v. Edwards:
(1) Was the employee’s alcohol consumption within the scope of his
    employment, and
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     (2) Did the employee’s consumption of alcohol while within the scope of
         employment constitute negligence, and
     (3) Did the negligent intoxication continue until the time of the incident and
         constitute a proximate cause of the injuries.

B.   Strict Liability
      1. Distinction between Strict Liability and Negligence
      If a court imposes strict liability, the defendant will be liable without proof
      of fault or negligence. This is usually done for policy reasons.

      Helling v. Carey
      The glaucoma case. Ruled for the plaintiff. Where the test is simple and
      inexpensive, and the consequences of not diagnosing the disease in time are
      grave, the doctors should administer the test. No proof of fault.

      2. When is Strict Liability imposed?

            a. Abnormally Dangerous Activities
            The defendant is carrying on an activity with a very high degree of
            danger. The activity may produce injury even when reasonable care is
            used. The magnitude of the harm is often so great that the plaintiff
            would have no way of avoiding the risk.
                      1.      The defendant is liable even though he has
                              exercised the utmost care to prevent such harm.
                      2.      The liability is limited to the kind of harm, the risk
                              of which makes the activity abnormally dangerous.

                In determining what constitutes an abnormally dangerous activity,
                the restatement §520 sets forth six factors:
                                  1 Degree of risk
                                  2 Gravity of harm
                                  3 Whether the risk can be not be eliminated by
                                      reasonable care
                                  4 Whether the activity is inappropriate to the
                                      place where it is carried on
                                  5 The value of the activity to the community.

            Siegler v. Kuhlman
            Gasoline spill case. Abnormally dangerous activity. Fault does not
            need to be proven. Policy; defendant can pass along the cost.

            b. Invasion of Property Rights – Nuisance
            A party is doing something on their property that a neighbor has a
            reasonable expectation of being free from. Its not negligence because
             TORTS OUTLINE
the offending party may be using reasonable care in the operation of
their facility.
    1.       Public nuisance – activity forbidden by statute
    2.       Private nuisance – Irritates your neighbor. Violates
             neighbor’s rights because of proximity. “Coming into the
             nuisance” may negate the plaintiff’s expectations.

Fletcher v. Rylands
The reservoir that flooded the neighbors mine. The case gives rise to
the abnormally dangerous activity doctrine, and the nuisance/trespass
doctrine. Neighbor has a right to be free from foreign water.

Bohan v. Port Jervis Gas and Light Co.
Plant emitted odors and destructive gases. Neighbor has a reasonable
expectation that he will not be annoyed – nuisance.

Boomer v. Atlantic Cement Co.
The cement plant case. The court granted an equity remedy. They
gave an injunction until the defendant paid the neighbors. Forced the
neighboring properties into servitude. The court didn’t want to do
anything about it because they thought legislature should do it.

Spur Industries v. Del E. Webb Development Co.
The feed lot case. Web developed land next to the lot, then wanted an
injunction. Brings up the “coming to the nuisance” defense. Court
found public as well as private nuisance. Because of public nuisance,
they can’t find in Spur’s favor. But, they made Webb pay Spurr. If
the nearby city would have grown outwards, Spurr would have been
shut down.

c. Animals
The traditional notion is that you had to be on notice before you are
strictly liable for injuries caused by your animal, if not on notice you
must only exercise reasonable care.

The dangerous propensities of the animal may put you on notice; i.e.
wild animal, trained to bite, bitten before, breed of animal, etc..

Statutes may govern the liability of the animal’s owner. Statutes can
be worded in two ways:
    1.     Violation serves as negligence per se.
    2.     Statutory strict liability.

Williams v. Johnson.
                                        TORTS OUTLINE
                           Dogs chased mailman who hurt himself getting away. Found for
                           defendant. The plaintiffs didn’t bring up the statute at trial. Without
                           the statute, they had to prove the defendant was on notice.

Tort law has generally divided the question of proximate cause into two separate inquiries, both
of which must be affirmatively answered by the finder of fact:
                 (a) But -for causation (also called cause in fact): Can it be said that the injury
                      would not have occurred but for the defendant’s conduct?
                 (b) Legal cause: was the defendant’s conduct closely enough related to the
                      plaintiff’s injury to make it fair to hold him liable?

Cause in fact will generally be proven if it can be said that the injury would not have occurred
but for the defendants conduct. Exceptions:
(a)     Substantial factor test - the defendant would be a cause in fact if the jury found its act was
“a material or substantial element” in producing it.

       Mitchell v. Gonzalez
The kids that drowned after they fell out of the paddle boat. In order to recover, the plaintiff
must prove Breach of Duty (negligence) and that it caused the injury. Proximate is the
contemplated word. The breach of duty was when they stopped supervising the kids. There was
a bunch of time and other events between the time of the breach ad the injury. The instruction
might lead the jury to look for an act that causes the injury immediately

A. But-For Causation (Cause in Fact)
Traditionally you would prove that but-for the defendant’s conduct, the accident would not
happen. But, quite often there are a number of different acts that contribute to an accident. In
addition, how are you supposed to know for certain what would happen if the defendant had not
been negligent?

1. The traditional Burden of Proof

        Hull v. Merck & Co
Plaintiff was exposed to a bunch of benzine (stuck his head in a pipe). The court held that the
exposure was not a proximate cause of the cancer. Reason: the plaintiff’s expert made some
assumptions about the level of exposure; he admitted that the level of exposure could not have
caused the disease. Lesson: Don’t skimp on experts.

        Reynolds v. Texas & Pacific Railway Co.
Plaintiff claimed that poor lighting was why she fell down stairs at the defendants train station.
The court held that the lighting was a proximate cause of the accident. The plaintiff did not need
to show that the lighting was the only cause of the fall, only that the defendant’s actions
multiplied the possibility that an accident would occur.
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2. Modifying the But-For Causation Requirement

a. Excusable Inability to Identify the Defendant
Where two or more defendants commit substantially similar negligent acts, one of which caused
the plaintiff’s injury, the burden of proof shifts to each defendant to each defendant to show that
he did not cause the harm. If they cannot make that showing, both will be held liable for the
plaintiff’s loss. However, this will not apply if you can not prove that both defendants were
negligent or that their negligent acts were of a different nature.

Summers v. Tice
Two hunters shot in the same direction, a pellet hit the plaintiff in the eye. The court held both
hunters liable even though the P could not prove whose pellet hit him. In order to apply
alternative liability, (1) All the defendants were negligent and could have caused the injury, and
(2) All the possible tort feasors have been joined in the action, (3) Therefore the party who
caused the injury is among them. In alternative liability we know the defendants were
negligence, but we don’t know if he caused the injury.

Sindell v. Abbott Laboratories
DES case. Daughters whose moms took the drug while they were pregnant were able to recover
even though they couldn’t prove which company manufactured the drugs their mothers were
taking. Defense files a motion for failure to state a claim because she can not identify a
manufacturer so can not prove a proximate cause. General rule: The imposition of liability
depends upon a showing by the plaintiff that his or her injuries were caused by the act of the
defendant or by an instrumentality under the defendant’s control. Exceptions to the rule:

   (1) “Alternative liability” the burden of proof of causation upon tortuous defendants in
       certain circumstances (summers v tice). This theory won’t work in this case because she
       can not be sure one of the defendants is the one who supplied to drug.

   (2) Defendants acting in concert. Example – the drag race. Where you have a joint
       agreement to engage in negligent behavior, where someone gets hurt, they do not have to
       prove who caused the injury because all the people who encouraged the activity should
       be liable. Plaintiff says all the manufacturers are taking part in the action. The problem
       is, that the companies are not acting in an agreement. They are doing the same thing, but
       they do not have an agreement between them.

   (3) “Enterprise liability” aka “industry-wide” liability; identify the industry that caused
       the injury. Hall v. Dupont – the blasting cap case. If you can establish that they had the
       opportunity fix the problem and they didn’t, they can all be held liable. The blasting cap
       makers had a trade organization and shared advertising etc.. In this case, it is the food
       and drug administration that sets the standards. This is different from the industry that
       meets together.
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   (4) New approach this court comes up with, extension of the summers doctrine, “market
       share” liability. Each defendant is responsible for the judgment in proportion to their
       market share. Works best for generic products – they share the same formula

We are ignorant of who caused the damage, but the policy that it would be better shift the burden
of proof to the defendant than the plaintiff; kind of like the dynamite factory res ipsa locquitor

Brown v. Superior Court
Another DES case. .......

Edwards v. A.L. Lease & Co.
ABS pipe case. The plaintiff wanted to sue the wholesalers even though they were already
recovering from the manufacturers.
The market share liability approach doesn’t stand for two reasons (1) they were able to identify
the manufacturers, they have the defendants already, they are just trying to pull in additional
people. (2) The other reason for tossing out market share liability is the fact that we are not
dealing with a fungible product here. Fungible product: one product is not different from the
other, brand name doesn’t matter; it can be hard to determine if a product is fungible or not
sometimes. The DES from the other case all used the exact same formula and we had no idea
which company made it, but that is not the case here. The products here are distinguishable
because you can look at them and know exactly who made them.
The market share liability is a last resort remedy. Since they have a remedy, we will not apply
market share.

b. Loss of a chance
If a defendant reduced the decedent’s chance of survival, the jury may be allowed to value the
damages in proportion to the chance lost due to the defendant’s negligence. However, it can be
argued that allowing a plaintiff to be compensated based on this theory would cause over and
under compensation. If the decedent would have died anyway, the plaintiff gets over-
compensated. If the defendant’s conduct did in fact cause the death, the plaintiff is under-
compensated because the only get a portion of the recovery they should be entitled to.

Dillon v. Twin State Gas & Electric Co
Kid grabbed an electric wire while he was falling off a bridge and died.

But for causation – without the negligence, the accident wouldn’t occur. But for the defendants
placement of the wire, the boy would have survived.

Legal cause - the defendants negligence was a substantial factor.

Loss of chance theory, the plaintiff would like to say they are entitled to recover an amount in
proportion to the chance of recovery they would have had if the defendant wasn’t negligent.
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Hardy v. Southwestern Bell Telephone Co.
Plaintiffs wife had a heart attack and they couldn’t call an ambulance because the phone
company was messing with the phone lines for concert ticket sales. The court held that the
plaintiff could not recover.
Policy: if we wanted to apply the theory, it would encourage doctors to be negligent when the
chance of recover falls below 50%. Patients with pre-existing conditions would be in peril. So,
in the medical field we recognize the lost chance theory.

Applying it outside the medical field, would we have to allow the plaintiff and the defendant to
prove certain percentages.

According to the plaintiff we need to look at the statistics on the chance of recovery if the wife
would have received prompt treatment. Treat it like a lottery ticket; if you had a one in eight
chance of winning $1 million, it should would be worth $125,000. In this case the plaintiff says
he has X% chance of saving his wife, if someone takes it away they owe him.

Should the plaintiff be able to recover for the value of the chance that his wife would have been
able to recover?

c. Multiple Redundant Causes: The “substantial factor” test
If one of the defendant’s would have put a warning label, would the ultimate injury still occur?
In as

Purcell v. Asbestos Corporation, Ltd.
Products liability, failure to warn case against a bunch of asbestos manufacturers. Substantial
factor test: If the defendants products combined to create an increased risk of harm, a jury may
conclude the products were a substantial factor in causing a plaintiff’s injury. A single
exposure could cause the disease, but all of the exposures added to the likelihood of contracting
the disease.
Were there are multiple redundant causes of the injury, each of which is enough to cause the
injury by themselves; we will use the substantial factor test.

B. Legal Cause: Policy Considerations Precluding Liability

1. Increased Risk v. Mere Chance

Berry v. Sugar Notch
A tree fell on a speeding streetcar.
Claiming that the speed brought the car to the site at the exact moment that the tree fell on it is
completely unpredictable. The same thing might have happened to a car traveling below, above,
or at the speed limit.
Is he negligent in speeding? Yes.
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Can we say that BUT FOR his speeding the accident would not have happened? Yes. We have
one prong of proximate cause.
What about the legal cause? His actions did not make the accident more likely to occur. The
court compares to running to a tree that is laying on the track. If the tree was laying on the track,
the speed would have made it harder for him to stop before hitting the tree.

Channel v. Mills
Defendant T-boned the plaintiff’s car at a controlled intersection.
Proximate cause is subdivided into cause in fact (but for) and legal cause. Cause in fact is a
cause but for which the accident would not have happened. Legal cause is a cause in fact that
warrants legal liability as a matter of social policy. A cause is “proximate” only if it is both a
cause in fact and a legal cause.

Speed is not a proximate cause if it does nothing more than bring two drivers to the same
location at the same time. It can not be said that Mills hit Channel because he was driving over
the speed limit; rather it can only be said that Mills hit Channel because Mills was not driving at
a speed different from 51 MPH.

There can be an exception if additional evidence shows that but for the excessive speed, the
driver would have been able to brake, swerve, or otherwise avoid the impact.

What about the plaintiffs expert who said the field of vision would have been different if he was
going slower, and probably would have been able to see the danger and apply the breaks? The
expert can not prove that the average person would have stopped. He only says that you would
be able to see the other person coming, and would have a better chance of stopping. But, you
would not be looking for someone run a red light, so the expert should have testified that the
defendant would have had enough time after realizing the plaintiff was running the light, not just
that he could see her coming.

2. Superseding Tortfeasors: Breaking the Chain of Causation

Crowe v. Gaston
Case of the drunk minors.
In order to prove an actionable claim for negligence, Crowe must show (1) the existence of a
duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, (4) the breach as a proximate
cause of the injury. The duty can be proven through the statutes that prohibit the sale of alcohol
to minors. The policy behind the statute being concerns about minors driving while intoxicated.
Proving items 1-3 isn’t hard. As for proximate cause, it has to be shown that the injury was
foreseeable. The court does not think the injury is too remote to be foreseeable, and thinks that
public policy would be best served by holding vendors liable for the foreseeable consequences of
illegal sale of alcohol to minors.

Oscar’s also claims that the acts of Rettenmeier and Fitzpatrick serve to break the chain of
causation. Cause in fact requires sufficiently close, actual, causal connection between
defendant’s conduct and the actual damage suffered by the plaintiff. The defendant’s action is
                                         TORTS OUTLINE
the cause only if there is not another independent action that causes the injury (breaks the chain).
Were another action breaks the chain of causation it is called “superseding cause”. Only
intervening acts that are not foreseeable can supersede. It is for the jury to decide if the
acts of the other minors were not foreseeable; i.e. highly extraordinary or improbable as to
be wholly beyond the range of expectation.

As for the second claim, the court holds that social host liability does not extend to injuries to
third persons because social hosts are not capable of handling their guest alcohol consumption
like commercial hosts are. Commercial vendors have a profit motive and should be expected to
exercise greater supervision. The statute the plaintiff is relying on was enacted to protect the
minor themselves, not third parties.

Three judges think that social hosts should be liable to third parties.

Liney v. Chestnut Motors
Repair shop left the keys in a customers car, which was stolen and used to run someone over.

The thief’s negligent driving superceded the defendant’s negligence because it was not
foreseeable that a thief that couldn’t drive well would steal the car and run someone over. It
could be foreseen that the car might get ripped off, but that’s it. Therefore, the defendant owed
no duty to the plaintiff.

Usually proximate cause would be for the jury, but because it is so remote here, it is a question
of law.

DeWolf disagrees. Thinks it is reasonable to foresee that a thief would be a bad driver for
several reasons.

Ross v. Hartman
Defendant left his truck in an alley with the keys in it (against an ordinance), it was stolen an ran
over the plaintiff.
By creating the hazard an ordinance intended to avoid and bringing about the harm the ordinance
intended to prevent, it is legal cause of the harm. The ordinance intended to promote safety on
public streets. There isn’t much more risk that an unlocked vehicle will be stolen than an
unlocked bicycle, but there is a much greater risk that a stolen car will result in public injury.
Since the ordinance was a safety measure, its violation was negligence. This negligence brought
about the harm the ordinance intended to prevent. It was therefore a legal or “proximate” cause
of the harm. The risk was both obvious and prohibited.

The action of the thief, itself a proximate cause of the harm, is immaterial.

The statute shows that the injury was foreseeable; therefore leaving the keys in the truck can be a
legal cause of the injury.

3. Remote and Indirect Results of Negligent Conduct
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Recognize the issues where this will come into play and discuss what the plaintiff will say
and what the defendant will say. Only arises where reasonable minds could differ on the
causation issue.

Cordozo/Andrews split: Doesn’t matter unless we are looking at a case where the
defendants negligence injures someone that is unexpected. Example, the exam question
about a truck tire that fell off, car swerves, hits ambulance on its way to help heart attack
victim. Cardozo - could you forsee that a tire falling off a truck would injury the heart
attack victim? Not a question for the jury. Andrews - would give the question to the jury.

Palsgraf v. Long Island R. Co.
Andrews says you should look at the behavior itself. Is it negligent to push someone onto a
train. Then, it is a proximate cause of the injury. He’s looking at it from a policy
standpoint - if jury thinks the defendant to pay, make him pay.

A guy was pushed onto a moving train, dropped a package of fireworks, they exploded and
caused some stuff to fall on a lady a distance away.

The conduct may have been wrong to the holder of the package, but was not a wrong in relation
to the plaintiff, standing far away. There was no duty owed to the plaintiff, the observance of
which would have avoided the injury. The scope of danger defines the duty. Palsgraf was
outside the “zone of danger” or the area where a reasonable person could anticipate a risk.

Seems to think that anyone who is injured by a negligent act should be able to recover. It doesn’t
matter if someone’s rights are violated or not, where an act is unreasonable, the actor is
negligent. There can be negligence without an injury.
Four concur, three dissent.
Negligence is not actionable unless it involves the invasion of a legally protected interest, the
violation of a right. (2-59)
It appears that there is a foreseeability factor that the court is looking into. The injury was too
remote to be foreseeable.
Cardoza thinks this is a duty of care case.
Andrews thinks this is a proximate cause case.

Andrews. Distinguishes but for cause and legal cause,

Kinsman Transit Co.
The barge that got loose and messed up all kinds of stuff. Ended up with the flooding of a
town because the barge got lodged under a bridge.
Cordozo thinks that there must be a degree of forseeability between the defendant and the
plaintiff. Kind of zone of danger type of deal.

Under Cardozo’s theory from Palsgraf the guy tying up the boat would ask himself, “if I screw
this up, how bad can it get?” Same question for the bridge operator who was in the bar. We
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can’t impose liability on these people because of bad luck and unforeseeable accidents. Look for
the zone of danger.

Andrew’s theory from Palsgraf applied to Kinsman would by question the proximate cause. It’s
a function of expediency, common sense, forseeability, etc.

The majority in Kinsman takes Andrew’s position. The make the bridge operator liable because
the city has the money to pay for it. Make them

The dissent doesn’t think that it should depend on who has the deep pockets.

For the exam it doesn’t matter as much to distinguish between Cardoza and Andrews, but spot
the issue “this is a palsgraf argument, the plaintiff will claim?, the defendant will claim?”

Harris v. R.A. Martin, Inc.
Overloaded dumpster fell on the garbage man.
Duty is defined in terms of foreseeability, it also involves policy considerations including “the
likelihood of injury, the magnitude of the burden of guarding against it, and consequences of
placing that burden on the defendant”.

The majority places too much emphasis on the issue of forseeability.


A. Types of Recoverable Damages

1. Property Damage

McDaniel v. Linder
Plaintiff recovered for damage done by defendant’s boat battery explosion.
The best way to determine damages is the difference in fair market value before and after the
damage. Other methods can be used if FMV is not available or would not be reliable.

Before the damage the boat was worth $7300. After $333 was expended, the boat was worth
$4800. The proper amount of the award should be 7300-4800+333=2833

The amount of the remittitur in such cases is fixed by the highest estimate of the element of
damage affected by the error.

2. “Economic” Losses

a. Lost Wages
Lost earnings: The wages lost from the time of the injury until the time of the trial.
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        Pretty easy to calculate; look at his earnings record for the period immediately prior
to the accident, evidence of his likely advancement had he not been injured, and evidence
concerning changes in the salary structure of his employer up to the time of trial.

Lost earnings capacity: Loss of future earning potential.
        First the jury has to determine how long the plaintiff would have worked if he had
not been injured. This may depend on the type of work he did, his life expectancy, state of
health prior to the injury, and level of interest in his work. Other factors that might have
led him to retire early must also be considered, such as a spouse’s retirement, an unrelated
medical condition which could cause him to move to a different climate, or an anticipated
        Second, the jury will have to determine what type of work the plaintiff would have
done if he had not been injured. For plaintiffs with a long established work history, this
may be clear, but in other cases it is not. Maybe the plaintiff had just been accepted to
business school, maybe just graduated magna cum laude from Berkeley, maybe was a
partner in a law firm but hated his job so much he wouldn’t have lasted another month.
Maybe not working at all, but was going to return to work, or was 5 years old and had not
work or educational history at all.
        The jury will consider such factors as prior advancement in the plaintiffs job,
projected future fortuned of his employer, general state of the sector of the economy in
which he worked, the prospects that he would have been promoted or moved to a more
lucrative position with another employer, possible alternative employment he may be able
to find after his injury, and doubtless many other unique to each plaintiff’s circumstances.
        In order to fully compensate the plaintiff, the jury should also consider fringe
benefits, such as health insurance, a company car, educational credits, bonuses, stock
options, retirement fund partially funded by the company, etc.

O’Shea v. Riverway Towing
Riverboat cook is injured and is awarded lost wages, but the computation is being challenged.
Defendant says that the plaintiff has never worked a full year before. – Court says previous
wages do not put a cap on an award of lost future wages.

Inflation needs to be treated consistently in choosing a discount rate and in estimating the future
lost wages to be discounted to present value using that rate. It is unfair to leave inflation out of
one the calculations.
There are two ways to calculate the lost wages:
    (1) Do not factor in any wage increase and do not factor inflation into the discount. The
        discount is based on the estimated real interest rate (interest rates include a speculation
        about what inflation is going to do).
    (2) Use a discount rate based on risk free 10yr interest rate and apply the discount rate to a
        lost wages figure that includes an inflation figure. Ex. If the 10yr rate is 12% and the risk
        free rate is 1% - 3%, then inflation is expected to be 9% - 11%.

Posner said the trial judge should have factored in the probability that she would have got
another job – even if the probability was very small. But, the defendant didn’t suggest it, so the
appellate court will leave it alone.
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Posner – you should use 1% - 3% growth even without inflation. When you factor inflation into
the future wages, you must use an inflation factor in discounting it.

For exam you do not have to do a huge calculation, but know the magnitude of the
damages you can ask for. What kind of damages, and what can they add up to? Take into
account the medical bills, the wages, the age (what is their income potential)

b. Medical Expenses
The plaintiff is entitled to compensation for all medical costs of diagnosing and treating the
injuries resulting from the tort, such as doctor and hospital bills, medicines and special
therapeutic equipment, rehabilitation therapy, travel for medical treatment and on-going nursing
care. Past medical expenses are relatively easy to value, but future medical expenses are
extremely difficult to evaluate.

3. “Non-Economic” Damages - Pain and Suffering
       Pain and suffering can cover a lot of injuries: physical pain from the impact of an
accident, on-going pain from a wound, long term discomfort from a permanent condition,
and pain of medical procedures to treat the injuries. Also includes mental suffering, such
as humiliation, anguish, or embarrassment suffered from living with permanent
disfigurement, the frustration of dealing with disability caused by the injury, the fright
associated with a traumatic accident, fear of a recurrence of the accident, or depression
induced by the injury and its consequences. Therefore, “pain and suffering” is a catch-all
that can encompass almost any kind of subjective reaction to the accident or its
       The sensations are highly subjective and there is no scale or mathematical process
jurors can use to reach a dollar figure to compensate the plaintiff for them. The jurors are
simply instructed to pick a number and be objective, even if there are no objective
guideline to apply.

Loss of Enjoyment of Life: Some court see this as part of the “pain and suffering” others
see it as a separate claim as damages. It comes down to whether or not the jury will get an
instruction on this loss in addition to the pain and suffering. Loss of enjoyment of life is
intended to compensate for the limitations on the person’s life created by the injury.
Examples: loss of the ability to play tennis, walk in the woods, carry son to school, dance,
or many of life’s other common, pleasurable experiences.

Disability and permanent impairment: These terms overlap with a lot of other damages in
the pain and suffering category. It actually refers to the injured party’s condition, not to
the losses suffered as a result of the condition. This can create confusion with the Loss of
Earnings Capacity and Loss of Enjoyment of life. Many courts use the term “disability”
loosely as an equivalent to Loss of Enjoyment of Life. However, it should be noted that it is
the condition of being disabled that leads to the consequence of loss of enjoyment of life or
loss of earnings capacity.

Morse v. Auburn and Syracuse Railroad Co.
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Train accident.
When someone is awarded damages for personal injury and mutilation, pain and suffering is part
and parcel of the actual injury. It his harder to determine what the damages are when compared
to lost time or money, but the loss is no less real. Not paying for those injuries would leave the
plaintiff under-compensated.

Pain and suffering is not punitory, but strictly compensatory.

Spade v. Lynn & B.R. Co.
Old lady was “scared stiff” by a fight on defendant train.
In a negligence case there can be no recovery for fright, terror, alarm, etc. when there is no
physical injury. There can be no recovery for such physical injuries as may be caused solely by
such mental disturbance, where there is no injury to the person from within.

Carrier of passengers should not have to look out for people who are over sensitive. This would
open the door for unjust claims.

If you are only mentally disturbed – no recovery. You need a physical injury.
If the mental disturbance causes a physical injury, you can recover.
        (1) Cases where the mental harm is intentional
        (2) There is gross carelessness or recklessness showing utter indifference to such

Flood gates: If we start allowing certain types of claims, we would open the flood gates of

Temple-Inland Products Corp. v. Carter
Plaintiffs were exposed to asbestos from drilling holes in desks at defendants labs. Haven’t
developed any disease yet, but want to recover for mental anguish.
There must be a physical injury. They must develop the disease.

If they allowed recovery for these types of cases, it would be very hard for judges to determine
which claims are serious and which ones are not. It would lead to inconsistency

The courts are busy already, allowing people to bring these suits would cause a lot more
litigation. People would be bringing suits just in case they developed a disease someday.

There is a lot of uncertainty that exposure to asbestos will eventually develop into a disease, even
though the risk is significantly increased.

There is kind of a physical injury; there are tiny particles in their lungs, but it hasn’t developed
into a disease.

SOL begins to run when all of the aspects of your claim are satisfied. Breathing the particles
doesn’t start the running of the clock; you need to have some manifestations.
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The court doesn’t want to give an award because there is a chance the disease will never develop.
There could be overcompensating and under-compensating. In addition, if they give an award
now, what if it isn’t enough when he develops the disease.

Plaintiff failed to establish a physical injury that had manifested itself in a way the court could
allow recovery.

Johnson v. State of New York
Hospital mixed up the dead people.
Recovery for emotional harm may not be disallowed so long as the evidence is sufficient to show
causation and substantiality of the harm suffered, together with a guarantee of genuineness.

The hospital owed a duty to refrain from such conduct, a duty breached when it negligently sent
the false message. The false message and the events flowing from its receipt were the proximate
cause of claimant’s emotional harm. Hence, claimant is entitles to recover for that harm,
especially if supported by objective manifestations of that harm.

One does not need to be held liable for extraordinary consequences, but in this case the
consequences were foreseeable.

Defendant said they will pay for the economic damage.

Plaintiffs way around the general rule prohibiting recovery for emotional distress without
physical injury is a couple cases where the courts have made exceptions.
        (1) Negligent transmission by a telegraph company of message announcing death (this
            one applies if the person has died, but …)
        (2) Mishandling of the corpse (the other family could sue for this, because it was their
The plaintiff uses these exceptions to show that this is a way to prove the genuineness of the
claim. Even though these exceptions don’t apply, they are there because the courts need a
guarantee that the claim is genuine.

Steinhauser v. Hertz Corporation
Girl went nuts after a car accident.
1) In New York they got rid of the physical injury requirement, as long as there are physical
symptoms, which are capable of clear medical proof.
2) There was not evidence that the plaintiff already had the disease, but it looked like she was a
prime candidate. Recovery will not be barred if it can be shown that the accident was a
precipitating cause.
3) An appropriate discount should be made for the damages that would have been suffered even
in the absence of the defendants negligence.

It is for the jury to decide if she was going to be crazy in the future; not for the psychiatrists to
decide. It is for the jury to decide where experts disagree.
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4. Punitive Damages

Moran v. John-Manville Sales Corporation
Plaintiffs husband died from asbestos related disease. Trial court awarded compensatory and
punitive damages.
Generally, carelessness will get you a compensatory award, ill will or malice will get punitive
damages. The court says that a flagrant indifference is enough.

Policy: Defendant says that punitive damages would not be a deterrent because they no longer
make the product, the people who made the decisions are long gone, etc. Court says following
this rule would make the corporate veil an impenetrable shield against punitive damages.
Defendant also says that punitive damage award will destroy them because there are so many
people in line to get paid. They will run out of money before they have a chance to pay all the
compensatory damages, because they will be paying such large punitive damage awards. The
court thinks they should ask the legislature to change the rules, they are just a court.

There are different levels of culpability. Examples in ascending order: Nobel prize, reasonable
care, negligence, recklessness/flagrant indifference, intentional ill-will.

The court says flagrant indifference is enough to award punitive damages. There does not have
to be intentional ill-will, but if act recklessly you can be liable.

Grimshaw v. Ford Motor Co.
The Pinto case. Jury awarded a bunch of punitive damages, trial court reduced the award.
Punitive damages: must establish that the defendant was aware of the probable dangerous
consequences of his conduct, and that he willfully and deliberately failed to avoid those
Punitive damages: you need to show “malice” or a “conscious disregard of the probability that
the actor’s conduct will result in injury to others”.

Remittitur: a procedural device. The judge says “I agree with the defendant that something is
wrong with the verdict, If you (the plaintiff) agree to reduce the award, I will not grant a new
trial”. The opposite is Addditur.

In awarding punitive damages, you look at the defendants net worth, profits, etc. You do not
look at these things in compensatory damages, but for punitive damages you do. The judge may
have reduced the award because he is thinking that there will be a bunch more cases like this, so
an award of $3.5M for each case will have a sufficient effect on punishing the defendant.

We have kind of a vicarious liability issue because the management of the company did
something very egregious. This decision was not made by someone on the assembly line, it was
made by the management in course and scope of their employment. In order to get Vicarious
Liability we need a management decision by someone who is in a position to speak/make
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decisions for the company; or a decision by some lower level person which is ratified by
someone up the line who is in a position to make the decisions.

BMW, Inc. v. Gore
Doctor bought a BMW that turned out to be repainted. Jury awarded $4million in punitive
damages, court of appeals reduced, U.S. supreme court said the award was excessive.
Factors used to consider punitive damages
(B) Difference (ratio) between compensatory and punitive damages
(C) Difference (ratio) between civil and criminal fines, if a criminal fine would have been

Justice Scalia thought it was wrong for the supreme court to mess with the state court decision.

Dewolf: Punitive damages are a form of leverage for the plaintiff, so they can convert a case
into one that scares the defendant. It is hard to see exactly where the court will allow punitive
damages, you can not exactly determine where the behavior of a defendant will be a flagrant
disregard. To the extent that you can meet the standard of flagrant/reckless disregard, it allows a
plaintiff to get punitive damages and convert the case into one that is substantial.

5. Attorneys Fees

B. Related Parties: Who Else Is Entitled to Compensation?

Look at the statutes. The plaintiff will be wondering if they fit into one of the catagories of
people entitled to recover. The defendant will be concerned with who (how many) will be
able to line up at the cashiers window.

1. Wrongful Death
The key is look at the statute! It will tell you who can recover and what they can get?

Wrongful death and survival claims are governed by statute. Who may bring a claim and
what may be recovered must be determined by the statute.

Wrongful death claim: A claim for damages for tortiously causing the death of another.
Damages are measured by the loss to the statutory beneficiaries. Economic (pecuniary)
and non-economic damages may be recovered. Pecuniary damages include medical and
funeral expenses, as well as the loss of financial support that the beneficiary would have
received from the decedent. The non-economic damages can include things such as mental
anguish and suffering of the beneficiary, loss of society, companionship, marital care,
attention, advice, etc.; note that some of these damages might be included in a claim for loss
of consortium.

Under the Loss-to-estate rule economic damages to the estate are calculated based on the
plaintiffs life expectancy but for the defendants negligence. The estate can basically
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recover for everything it would have received after the plaintiff’s other beneficiaries would
have took their cut of thedecedents pay check. The estate looses out in cases where the
decedent is retired and is living off of their savings; or if the decedent doesn’t make enough
money to be able to save anyway.

Survival claim: A claim brought by the representative of the estate of a deceased person for
injures suffered by the decedent before her death. Allows the estate of a decedent to
enforce a tort claim for damages suffered by the decedent before death, which she could
have enforced personally had she lived. Try to reconcile this with what DeWolf said.

Moragne v. States Marine Lines

First National Bank of Meadville v. Niagara Therapy Manufacturing Corporation
Somebody dies in a plane crash. The executor of the estate sues under wrongful death and
survival statute.
Wrongful death:
Who? The widow and children.
What? In Pennsylvania, economic loss. Does not include non-economic loss.
How to calc.? Out of his earnings, the court looks at three uses, (1) himself, (2) his wife and
daughters, (3) his estate. Under the wrongful death the wife and daughters get what
contributions the husband would have made over the course of his remaining life expectancy.

Under the survival act, the estate recovers for what would have been in his estate at the end of his
expected life. What is recoverable? In some states economic and non-economic (loss of
enjoyment of life, etc.). In Pennsylvania only economic loss. They take the present value of his
earnings for his life expectancy, then subtract the present value of what he would have paid for
his maintenance and his wife’s maintenance. The residual amount is considered to be the
amount he would have contributed to his estate.

On exam look at who your client is. Are they primarily benefited, or secondarily benefited,
On defendant side, all you care about is the total dollar amount.

Feldman v. Allgheny Airlines
Lady who had been accepted to law school dies in a plane crash.
Connecticut compensates for loss of earnings capacity as well as loss of enjoyment of life’s
activities. Where a decedent suffers both at the same time, each must be valued independently in
relation tot eh elements particular to it.

Under this statute there can be recovery for loss of earning capacity and loss of capacity of
enjoying non-remunerative activities.

Trial judge says that the value of the eight child raising years is the same as if she was still
working at the wage just before she had kids. Doesn’t calculate the two kinds differently.
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2. “Wrongful Birth” and “Wrongful Life”
Only applies when they otherwise would not have had a child. They need to have the
decision whether or not they want to take the risk of having a child.

University of Arizona Health Science Center v. Superior Court
Poor guys vasectomy didn’t work.
Three views for damages:
   1. Defendant rule - child birth costs only
   2. Plaintiffs rule - Debits only - including cost to raise the kid and emotional costs
   3. Net benefits rule - All the costs offset by the benefits of having a child.

We are putting the parents in a position where they will get more money by not bonding with
their kid. The smaller the benefit the bigger the award.

Plaintiff - They should be compensated in order to encourage more careful procedures. Doctors
will be more careful.
Defendant - “The child will be an emotional bastard”. The kid may find out about the case and
find out that their parents didn’t want them. And by suing they are saying “our lives are worse
off now that we have this kid”.

If they said that they could have had an abortion or gave it up for adoption, there would still be a
suit, and they would have to try to figure out the damages - mental/emotional.

Haberson v. Parke-Davis
Medical malpractice. Doctor said it was OK to have kid while on medication, but they turned
out messed up.
Wrongful Birth: The damages are just like the University of Arizona health Science center case.
Net benefits analysis. The parents should recover the cost in excess of raising to normal kids as
well as mental anguish and emotional stress.

Wrongful Life: in a wrongful life case the kids are essentially claiming that their lives would be
better off if they were not born.

If there was another medication that she could have taken, that would not have had the
same effects, the wrongful birth suit goes away. I.e. they made the choice to have kids and
chose between the drugs. Without alternative treatments it is kids or no kids.

Taylor v. Kurapati

3. Bystander Injuries
No set rule. Just evaluate the factors to make your arguement.
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Dillon v. Legg
Mother sees girl get hit by car.
Suit for emotional injuries
Three factor Criteria (not test)
    (1) was plaintiff near the scene of the accident as contrasted with one who was a distance
        away from it.
    (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the
        sensory and contemporaneous observance of the accident, as contrasted with learning of
        the accident from others after its occurrence.
    (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of
        any relationship or the presence of only a distant relationship.

Hegel v. McMahon
Guy gets hit by car and is laying in a ditch all messed up when some family members get to the
Kid on motorcycle hits a bus and his dad gets to the scene as he is dieing.

A family member may recover for emotional distress if he or she arrives at the scene shortly after
the accident before substantial change has occurred in the victim’s condition or location.

The emotional distress must be reasonable, and the plaintiff must present objective symptoms of
the distress that are susceptible to medical diagnosis and proved through qualified evidence.

4. Loss of Consortium
Loss of Consortium is compensation for the interference with the relationship. Not the
grief or sadness a spouse feels, but the emotional loss stemming from the inability to carry
on services performed or activities enjoyed before the injury, or that they would have had
in the future.
Most commonly these suits are brought by spouses of injured parties, but some courts (not
very many) allow children to bring actions for injuries to a parent or parents for injuries to
their children. The reasons courts are reluctant to recognize a claim brought by someone
other than the spouse relate to the lack of precedent; and such claims would be a burden on
defendants and insurers since many parents have a number of children.

Rodriguez v. Bethlehem Steel Corporation
Pipe fell on a guys head and paralyzes him. His wife sues for loss of consortium.

Previous CA cases said they would not recognize loss of consortium, particularly in Deshutel
case. Part of the problem was the belief that the wife’s interest gets merged into the marital
estate, so she can not make a claim on her behalf. Husband and wife are one. The court thinks
this is kind of an old view.

The court is also concerned about double recovery, if he recovers, giving her some cash is double
recovery. The court recognizes that she has a loss that is separate from his.
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Another problem is the speculative nature of the damages. But, this is what juries are for.

What about opening the floodgates? The court decides to deal with this problem when they get
to it.

What if they split up after a couple years? Should that affect the consideration of damages in
these sorts of cases?

Borer v. American Airlines
Mother is injured by falling light fixture at an airport. Her nine kids want loss of consortium.
Plaintiffs problem: They have nine kids. It looks like you are opening the flood gates. The
court is thinking, if we don’t stop here, where will we.

The dissenting opinion says that the majority opinion has just agreed (or disagreed) with all the
arguments in Rodreguiz. The court says that it would be too hard to put a value on it, etc. but in
Rodreguiz they said it wasn’t a problem.

A good plaintiffs lawyer would have added this to her injury. Ie. “I can’t take care of my
children the way I used to” Inflate her damages by the amount that is needed to compensate for
the loss of ability to care for he kids.

The court distinguishes Dillon v. Legg on the issue of physical injury. In Dillon, the court didn’t
really pay any attention to the injury.

C. The Size of Damage Awards

1 How Much is Too Much (or Too Little)?

Fortman v. Hemco, Inc.
Girl falls out of a jeep and is awarded $18M in economic and $6M in non-economic damages.
If when you evaluate the evidence, it does not appear that the award is justified, it may be the
result of passion or prejudice.

The trial court must independently weigh the evidence and assess whether it is sufficiently
supports the jury’s verdict. The trial court must reweigh the evidence, the inferences there from,
and the credibility of the witnesses in determining whether the jury clearly should have reached a
different verdict.

We find an expert who knows enough about health care for a person in this position, then look at
a lifetime of medical costs, adjusted for the trend of price increases, etc..

Defendant doesn’t want to fight the economic analysis too much, because it may give the
impression that they are agreeing that a substantial award is justified. Its a strategy that screwed
them in this case. Example “I’m not guilty, but if I am the punishment should be this...instead of
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Fein v. Permanente Medical Group
Statute reduced the jury award because there was a ceiling on the size of awards. $250,000 in
non-economic losses,

Economic loss $700,000
Non-economic $500,000
Medical       $24,000

But, because of the legislation the non-economic loss gets cut down to $250,000.

Now we have a legal problem of what the plaintiffs rights are. Attacks this legislation through
constitution argument. (1) equal protection clause - can’t treat people differently. This doesn’t
work example: tax rates, people over 21 vs Under 21, etc. You can treat people differently but it
has to be justified by the distinction you are making. Blah blah blah.

2. Collateral Source Benefits

Schonberger v. Roberts
Plaintiff was in a traffic accident while working. Was getting workers compensation, and sued
the guy who ran into him.
In this case the plaintiff had to pay back the workers compensation, so anything received so far
should not be counted towards the award the jury gave him.
The Iowa statute said that injured parties have to repay workers compensation if they receive a
recovery from a third party.

What if the plaintiff was not required to pay back the benefits? He would still get the whole
award. Why should the defendant benefit from the plaintiffs insurance. This is even holds up if
someone is gifting the plaintiff money to cover the losses. Why should an outside source benefit
the plaintiff.

This is called the collateral source rule. Collateral payments do not reduce the defendants

The statue said that the defendant could admit evidence that the plaintiff had received workers
compensation. The judge doesn’t allow it, because it would serve no purpose. The plaintiff has
to pay it back, allowing the evidence would confuse the jury and probably reduce the verdict.
The supreme court of Iowa upheld the trial judges decision.

3. The Scope of Acceptable Argument

Botta v. Brunner

Lawyers in trying to get larger awards try to break it down into an hourly rate. It looks smaller
to say $20 per hour instead of $3million dollars, so a jury may be more inclined to give it.
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The court says you can ask for whatever you want in total, but you can not break it down into a
per diem. Why isn’t this an acceptable argument? Dewolf thinks it is because the damage is on
a curve. You get used to things. When you are first injured, it really sucks, but you learn to live
with it. In some courts it may be acceptable. What is the majority rule? The notes in the book
say they are evenly split.

Jewett v. Deutsch
You cannot make a prejudicial statement at closing. Suggesting to the jury that you should
punish the defendant.
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                       INJURY CASE
       Affirmative defenses - defenses that a defendant would bring up independent of the
       plaintiffs claim.

  A.   Governmental Immunity
       Historically, in old England you couldn’t sue the queen. This came to the U.S., but
       as with wrongful death cases there was a statute passed to allow certain suits.

       On the exam we will want to determine what the legislature allows in the
       statute. Is it broad or narrow?

       Federal Tort Claims Act

       Laird v. Nelms
       Individual working in the course and scope of employment inherits the
       government’s immunity.
       Under the federal tort claims act, the district courts can entertain suits against the
       government, but you must look at the statute to determine if the suit qualifies under
       the act. Ps argument - statute says that the government should be treated like a
       private cititzen §2674 “in the same manner and to the same extent as a private
       individual”. P says that if a private person caused a sonic boom over his property
       they would be liable for nuisance, or ultrahazardous activity or something. Ds
       argument - §1346. they are only liable if there is “negligence” or a “wrongful act”.
       They are trying to say that congress did not intend to allow this kind of case. Does
       negligence and wrongful act apply in a strict liable case (trespass/nuisance)? The
       majority finds for the D. Relying on Dalehite where the government could not be
       sued for damage caused by the concussion from an explosion. After the Dalehite
       case, congress gave money to the victims, but didn’t change the wording of the
       statutes. Dissent notes the “discretionary function” exception to liability. §2680(a)
       pg 4-1. If the court were to call the sonic boom negligent, they would be second
       guessing the governments decission to authorize such flights. But, the dissent says
       in this case imposing liability would not be second guessing because they would
       not be saying it is negligent just ultrahazardous. Discressionary function
       exemption: There is a distinction between policymaking and operational decisions.
       Congress wants to exclude policymaking judgments from liability.

       States get to decide for themselves how they want to be exposed to tort
       liability. There are two types of statutes:
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           (1) Broad waiver - “State agrees to be subject to liability, except for
           (2) Narrow waiver - “you can sue the State for X, Y, Z only”

     What is fair game depends on the statute. Have they said they are liable for
     anything with certain exceptions, OR have they said they are immune from
     everything with exceptions?

     Vanderpool v. State
     Plaintiff works for the Oklahoma Historical Society. He was injured by a fellow
     employee, operating a brush hog. The protective shield of the hog had been
     removed by the state which the P says was negligent. Trial court granted summary
     judgment for the defendant and dismissed the case, holding that governmental
     immunity bars the action. As a government agency is the OHS immune to this
     suit? Reversed and remanded. The court held in a prior case that the state could be
     sued for injuries arising from its proprietary functions. They had also held that
     where the state had insured itself, it could be sued to the extend of its insurance
     coverage. The court now holds that a proprietary function inquiry is no longer
     determinative in assessing liability. The court decides that the state is liable for the
     negligent or wrongful acts or omissions of its employees and agents acting within
     the course and scope of their employment, if a private person would be liable to the
     claimant in accordance with the law of the place where the act or omission was
     committed. With some excepts the set forth in the opinion. The dissent thinks that
     the legislature should make the call. Did Oklahoma not have a statute of immunity
     or one permitting suit? The court mentions a statute but doesn’t get too specific
     about what it allowed. Even though the standard rule is that the state is immune
     from these kinds of suits, the Ps lawyer basically says its time to get rid of this rule,
     and the court agrees. State would argue too bad, go to the legislature if you have a
     problem with it. But, P would note that other states have tossed out the immunity.
     In Oklahoma the immunity has been eroded by the legislature. They decided to
     allow counties and municipalities to be sued. It has also been held that they can be
     sued where there is insurance coverage. In addition, the state is liable for
     proprietary functions (ex. State owned swimming pool operated on a fee basis, can
     be liable for injury). It can be seen that the progression is toward allowing liability.
     The court in almost the last paragraph says that the new rule that the state is not
     immune does not come into effect until 1985 except for this case. They probably
     do this so the legislature has time to look at it and decide if this is the way they
     want it.

B.   Family Immunities
     Bad parenting vs. Duty
     Do you need parental relationship to establish duty? If yes, there is immunity.
     Example: parent watching child run into the street. If you try to sue, you are
     relying on the parental relationship. If the kid is a passenger in a car and the
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     parent’s negligence causes injury to the child, immunity doesn’t matter - It’s still

     Tip: Ask; “if I replaced the parent with Mr. Rogers, could I bring a suit?”

     Holodook v. Spencer
     Holodook child darted out from between parked cars and was hit by a car.
     Defendant brought a third party claim against the mother for negligent supervision
     and a counter claim against the father for the same. Parents moved to dismiss the
     third party claim and counter claim. Trial court denied, appellate division reversed,
     this court affirms. Does a parent owe a legal duty to supervise his child? To who
     is the duty owed, third parties or the child? Infant children have no cause of action
     against their parents for negligent supervision. The defendant’s claims are based
     on a duty owed by the parent to the child. The dissent doesn’t think it is fair to
     hold the defendant liable for damages that are in part the fault of the parents.
     Thinks that this is against our law which is moving towards a system of
     comparative fault.

C.   Workers Compensation
     No Fault based system.

     Employer Immunity - Workers Compensation. When workers compensation
     started out there was a quid pro quo deal where the employer’s liability was
     limited, but the employee was guaranteed compensation.

     Intentional torts are outside of workers compensation immunity. Wher the line
     between intentional and unintentional is drawn is somewhat unclear. See Berklid
     case pg 4-17

     General Rule - employer sheilded from negligence, but intentional torts are
     outside of immunity. The ground is shifting on what is outside of immunity.
     Example: Does letting equipment degenerate over time fall into

     In most jurisdictions the employer stays immune. If a 3rd party has to pay the
     plaintiff, he can’t bring an action against the employer for indemnity.

     Wolf v. Scott Wetzel services, Inc.
     Employer had a third party (the defendant) that administers their workers
     compensation. The plaintiff was injured and received some compensation. The
     defendant denied part of his claim related to psychiatric care. The plaintiff bases
     his lawsuit on the initial refusal to pay for psychiatric care and premature claim
     closure. Does the industrial insurance act bar an employee from bringing a civil
     action against a company which was hired by a self-insured employer to administer
     workers compensation claims for wrongful delay or termination of benefits? The
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       industrial insurance act expressly provides a remedy within the workers
       compensation system for wrongful delay or termination of workers compensation
       benefits; that is the exclusive remedy for any such wrongful delay or termination.
       The industrial insurance act represents a quid pro quo compromise between
       employers and employees. The employer pays some claims for which it would not
       be ordinarily responsible in exchange for limited liability. The employee on the
       other hand gives up common law actions and remedies in exchange for sure and
       certain relief. Courts have held against such claims for two reasons. 1. the policy
       underlying the exclusive remedy provisions of their workers compensation statutes.
       2. the courts have been greatly influenced by the fact that workers compensation
       statutes typically contain provisions that impose penalties for wrongful delay or
       termination of benefits. The penalty provisions show the legislative intent that the
       remedy remains with the workers compensation system.

       Class notes:
       Plaintiff doesn’t think Scott Wetzel services should be immune because they are
       not his employer. The court decides that Scott Wetzel is standing in the shoes of
       the employer.

       The plaintiff also tries to claim that this sort of claim (delay in payment, bad faith,
       etc) was not given up when workers compensation came into effect. One tort that
       is not excluded from liability under Workers Compensation is intentional torts. So,
       does the refusal to pay benefits fall into the area that is covered under the workers
       comp. Immunity, or is it closer to an intentional tort. The court says that the fact
       that there is a provision in the act that deals with this sort of problem, shows that
       the intent of legislature was that the system handle these disputes not allow

       The workers comp. System did not get rid of litigation for workplace injuries, it
       took the uncertainty and delay out of compensation. This case illustrates that there
       are situations where there is a dispute over whether or not it is actually a
       compensable injury or if the injury actually happened on the job.

     How do we factor in the plaintiff’s fault? The traditional rule was there could be no
     recovery for a plaintiff that is partially at fault. More modern rules take the plaintiffs
     actions into account as a reduction. Some systems mix: modified comparative fault.

     Contributory negligence/comparative negligence (fault); Three varients:
     (1) Pure - recovery based on percentages
     (2) 50% (Modified) - “not greater than”
     (3) 49% - “not as great as” - Plaintiff recovers as long as his negligence is not as
         great as the defendant’s. His recovery is reduced by his percentage of fault.
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A.   The Contributory Negligence Rule
     The old school contributory negligence rule - if the plaintiff was partially negligent;
     No recovery. In most places there is now some form of comparative negligence.

     Harrison v. Montgomery County Board of Education
     14 year old kid broke his neck in gym class, he is now quadriplegic. Plaintiff claims
     the school was negligent. Defendant says the kid was also negligent. Defendant
     want to say if P was negligent at all he was barred recovery (the old common law
     rule from butterfield v. forester). Plaintiff is arguing that the court should compare
     the levels of negligence and reduce the award. The court refuses the change the rule.
     The court says it is for the legislature to change. Since they have been faced with this
     question before and chose not to change the rule, the court thinks this is a sign that
     the legislature is endorsing the old policy. They also note that of the states that have
     changed the rule all but eight have done it through legislation.

     Li v. Yellow Cab Company of California
     Li turned in front of the cab driver. Li sues the cab company. They are both at fault
     in the accident. Defendant argues that a provision of the California civil code means
     that if the P is at fault also, the P can not recover. See footnote on page 5-13. The
     court is treating the statute as a restatement of the law of torts. It was not the
     legislature saying, “this is what we want” they were saying “this is our understanding
     of the law”. It was therefore advisory and not law. Dewolf says you could read the
     words of the statute and interpret it as a comparative fault statute. “you are negligent
     for your actions except so far as the other party caused their own injuries”. The court
     adopts a pure comparative negligence rule so that damages are allocated in
     proportion of fault. The court holds off on deciding what will happen when there is
     multiple tortfeasors. Assumption of risk - the court in this instance treats it similar to
     contributory negligence.

     Dewolf: for the exam there will be a statute to tell us if the jurisdiction is
     pure/modified, 50%, 49%, etc.

     Dewolf: sometimes a party may be barred all together even when they are not very
     responsible. If the jury sees your client as being slightly more at fault you could get
     screwed. Pure comparative fault jurisdiction you will get something, modified Jx you
     might get zero.

B.   Assumption of Risk
     Assumption of risk:
     (a) Primary assumption - transfer of risk from one party to the other. Like the
         baseball game case or a demolition derby case.
     (b) Secondary assumption - cases where the defendant has done something
         negligent, but plaintiff is doing something to cope. Example - getting in a car
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   with a drunk driver, the plaintiff is doing something in response to the defendants
   negligence. Balancing/allocation between plaintiff and defendant.

Unreasonable vs. reasonable assumption - treat an unreasonable assumption like
contributory negligence.

Assumption of risk is like another form of contributory negligence. Sometimes it is
treated as a reduction of damages; sometimes it bars recovery.

Volenti non fit injuria - volunteer not suffer a legal injury = voluntary assumption of a
known risk.

How much about the risk do you have to know? If it is a voluntary assumption of a
known risk; what is voluntary? And what is a known risk?

Whether or not you are allowed to recover depends on the jurisdictions; assumption
of risk may bar recovery, or it may reduce the award. Should it bar recovery or
reduce it? Did the plaintiff sign something? Does the plaintiff know what the risk is?
What is the proper disposition of the negligence claim?

Smith v. Baker & Sons
Plaintiff worked in a rock quarry or something. His job is to hold a drill while
someone else hits it with a sledge hammer. In the quarry there is a steam crane that
is carrying moving stones, sometimes overhead. A stone is dropped from the crane
and injures him. The defendant says that by accepting the job and working in that
place, he assumed the risk of getting hit by a falling rock. The majority doesn’t think
he is assuming the risk because he has no choice. Assumption of Risk - the voluntary
assumption of a known risk. They say he is assuming the risk that if the guy with the
sledgehammer hit his hands, he would have assumed the risk, but the risk of falling
rocks has not been assumed. The reason is he has a certain degree of control over the
hammer guy (he can see if he is sober, experienced, etc) but he has no relationship
with the crane operator. The dissent think P has assumed the risk. When he took the
job, the extra risk was probably part of compensation. Do we need to prove that he
went to the employer and said ”I will take this risk if you pay me additional cash”?
But what is the difference if the employer says “I will not pay additional money” and
he still decides to take the job? There doesn’t seem to be any. [what if poverty
forces him to take the job no matter what risk]

Brown v. San Francisco Ball Club
Lady goes to a ballgame, sits in an area that does not have a screen, gets hit with a
baseball. The claim was barred. If this was a chapter one case the ball club would
probably take a Learned Hand approach to determine if the should have screened
more area. Did she voluntarily assume a known risk? It is pretty simple to say it is
a voluntary assumption of a known risk at the ballpark because people who sit
in the unscreened areas show up with baseball gloves hoping that a ball will get
hit at them. Was the stadium owner negligent? No, he provided screened and
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unscreened areas and the plaintiff chose to sit in an unscreened area. The actions of
the plaintiffs determine what standard of care the D has. They encourage the
defendants to be more negligent. Plaintiffs want ballfield without screens. Dewolf
makes an example of a skier who hits a metal post. They assume the risk of falling
down, etc. but not the risk of hitting hidden unknown dangers.

Alston v. Blythe
Alston was walking across the street. She wasn’t in a crosswalk. A truck driver
stopped and waived her across. When she got into the next lane a car hit her. The
trial court gave an assumption of risk instruction. The plaintiff ended up losing the
case and appeals claiming that the court should not have instructed on assumption of
risk, but only on contributory negligence. Assumption of risk has four facets. (1)
express assumption of risk, (2) implied primary assumption of risk, (3) implied
reasonable assumption of risk, (4) implied unreasonable assumption of risk.

We instruct the jury on

Kirk v. Washington State University
Plaintiff was a cheerleader for WSU. They usually practiced in the mat room, but on
this instance they were on astro turf. She fell during a practice routine sustained
injuries. Trial court ruled for the plaintiff. The jury was instructed that to the extent
she assumed the risk the recovery should be reduced, and to the extent the D was
negligent they should increase the award. The jury decided the P was 27%
responsible. On appeal each party claimed there was a mistake. D wanted the
recovery barred - the jury found that she had assumed the risk. P wants all the money
since they found that the D was negligent. The court says this false into the implied
secondary reasonable assumption of risk. The plaintiff’s decision to become a
cheerleader was in part responsible for her injury, but so should the universities
action. There is a combination of the plaintiff’s choice and the defendants
The court talks about four kinds of assumption of risk.
(1) Express Primary -
(2) Implied Primary
(3) Secondary reasonable - defendants negligence has already occured
(4) Secondary unreasonable

We need to look at whether or not the plaintiff made a choice and whether or not
the defendant was negligent.

Dewolf’s classifications of assumption of risk:
(1) Defendant wasn’t negligent (SF ball club - -bars plaintiff’s recovery)
(2) Plaintiffs conduct amounts to no more than contributory negligence.
    Example: plaintiff gets in a car with a drunk driver or plaintiff crosses a
    street when should not have - - Recovery is reduced.
(3) Defendant has in fact been negligent. Inflicted some additional risk, but the
    plaintiff did engage in a dangerous activity - - kind of an unpredictable
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         outcome [kirk v. WSU] vs [the Gonzaga scuba case or the skibinding case].
         The Plaintiff had the choice to engage in some risky activity.

      First thing to don on exam is ask “could this be a VOLUNTARY assumption of a
      KNOWN RISK?” For purposes of the exam, the jurisdiction has some form of
      comparative negligence. If Dewolf says assumption of risk will be treated like
      contributory negligence, he means in this jurisdiction only.

      Big picture: What impact does it have when the plaintiff shows more than one
      defendant caused the injury.
      Three issues: (1) Insolvency - one defendant can’t pay its share. (2) Settlement -
      reduce remaining claims? Dollar for dollar or by percentage of fault. (3)
      Contribution (not common law) - If one defendant pays more than their share
      we get defendant vs. defendant.

      Q. What happens if one defendant is negligent and another is strictly liable because
      of abnormally dangerous activity and the plaintiff is innocent? Jury will probably
      assign responsibilities. DeWolf: when faced with comparing apples and oranges
      we make fruit salad.

 A.   Overview and Statutory Excerpts
      Know how to read the statutes.

      Idaho statute §6-801 is a modified comparative fault statute. The key word is “IF”.
      It’s a 49% modified. Under §6-803, Joint and Several liability applies to (a)
      concerted action, (b) toxic/hazardous waste, (c) medical devices and pharmaceuticals.
      These are defendant friendly statues. The defendant will not pay more than their
      share. Limits the plaintiff’s ability to recover.

      Oregon Statute §18.470 - Its a modified form of comparative negligence.
      Contributory negligence will not bar IF the fault of claimant was not greater than the
      combined fault of persons .... the words “greater than” invoke the 50% rule - plaintiff
      can be up to 50% negligent. What about joint and several liability? §18.485 -
      Several liability only Except if one defendant can not pay, then the liability is
      reallocated among the other defendants according to their fault. There are also
      exceptions to the reallocation provisions.

 B.   Joint and Severable Liability
      Look to statute for what the effect of plaintiff’s fault is? Can they still get joint
      and several liability?
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Laubach v. Morgan
Three car accident. Jury found fault plaintiff=30%, D1=50%, D2=20%
Can the plaintiff recover against D2 because the plaintiffs negligence was greater.
It is a modified comparative fault statute. The court determines that the legislature
intended that the plaintiffs negligence be compared to the defendants at a group. If
the Ps neg is greater than the groups negligence, then no recovery. The court then
determines that the statute did not allow full recovery from either defendant.

Boyles v. Oklahoma Natural Gas Co.
Empty building full of natural gas exploded. .P is injured by an explosion caused by
a number of different people. Judgment entered against all defendants on the basis of
joint and several liability. This means the P could have recovered 100% from
anyone. The Ds were pissed off claiming this didn’t follow the precedent. The court
distinguished from prior cases, ruling that when the plaintiff is fault free he can
recover from anyone, but where the plaintiff is fault free he gets a full recovery.
COMMENTS: If he is partially at fault, how can he expect full recovery; even if
someone defaults. If he is blameless he should be able to get everything. One of the
complaints that the Ds could have had was that the court did not make determinations
of relative fault, so the could go after one another. In this case they did not determine
the % of fault of each party, just that they were at fault. “Here we are concerned not
with comparative negligence, but rather with an admittedly blame-free plaintiff
seeking recovery from multiple tortfeasors whose negligence is said to have
“concurred, commingled and combined” to produce harm.”

Coney v. J.L.G. Industries Inc.
A guy was killed in an accident involving a hydraulic lift manufactured by the
defendant. The suit was based on products liability/strict liability. The defendant
thinks the award should be reduced by any fault of the deceased and the deceased’s
employer. The defendant also claims that retention of the joint and several liability
in conjunction with comparative fault denies equal protection of the laws in violation
of the XIV amendment. The court held that where it is established that the
defendants defective product and the plaintiffs misconduct contribute to cause the
damages, the comparative fault principle will operate to reduce the plaintiffs
Joint and several liability is retained: if one tortfeasor is unable to pay, the plaintiff
can recover from the entire amount from one of the others. Four reasons:
(1) The feasibility of apportioning fault on a comparative basis does not render an
      indivisible injury “divisible” for purposes of the joint and several liability rule.
(2) In those instances where the plaintiff is not guilty of negligence, he would be
      forced to bear a portion of the loss should one of the tortfeasors prove
      financially unable to satisfy his share of the damages.
(3) The plaintiffs negligence relates only to lack of due care fro his own safety
      while the defendant’s negligence relates to a lack of due care for the safety of
      others; the later is tortious, the former is not.
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     (4)   Elimination of joint and several liability would work a serious and unwarranted
           deleterious effect on the ability of an injured plaintiff to obtain adequate
           compensation for his injuries.

     American Motorcycle Ass’n v. Superior Court
     Kid gets hurt during a motorcycle race. The parents bring a suit against a few
     different parties. The AMA wants to bring the parents in as defendants.

     Indemnity - collect everything from another tortfeasor.
     Contribution - collect a share from another tortfeasor.

C.   The Effect of Settlement
          Good Faith
          Application of statutes
          Multiple tort feasors

     Washington rule on settlement - the jury is supposed to assess the fault of the empty
     chair and award judgment accordingly. The jury allocates fault among all parties
     even the ones that settled, but the jury does not know about the settlement.

     Uniform comparative fault act; Section 4(b) - pre-emptive settlement (“global”): If
     one defendant settles for everyone, he has a right of contribution from everyone else.
     Section 5 - 3rd parties. Section 6 - you have a partial settlement. P chooses to settle
     with one party but not the other - gives up the proportionate share of liability.

     Settlement: don’t need to know the factors on pg 6-31.

     Dollar Method (Tech-Bilt) -
     Percentage Method (Washburn case) - every entity is assigned a % of fault, the
     plaintiff gets to recover from the people found to be at fault. What happens if
     someone settles, but at trial the jury assigns no fault to them? Does the plaintiff get
     over compensated?

     Tech-Bilt, Inc. v. Woodward-Clyde & Associates
     Plaintiff filed suit against a couple defendants. Woodward brought up the fact that
     the statute of limitations had run on the claim against them. The plaintiff dismissed
     the case against woodward; settled. Tech-bilt is pissed off because they want
     Woodward to pay a share of the judgment. If they would not have settled, but been
     dismissed by the court, tech-bilt would not have gotten screwed by the statute of
     limitation. They could bring a claim of contribution later than the statute of
     limitations, but not where one of the defendants has settled. The California
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     legislature has a statute that says once a defendant has settled, another co-defendant
     can not ask for contribution from him. The statute said the settlement must be in
     good faith, but doesn’t explain the term “good faith” very well. The statute had two
     objectives: (1) equitable sharing of costs among parties at fault, (2) encouragement of
     settlement. Was it in good faith towards the plaintiff? Yes. But we should also
     consider the interests of the other parties. Why do we have to be concerned with
     good faith? To protect the interest of all parties to the litigation. The court holds that
     it was not a good faith settlement. They decided that the court, when questioning
     good faith, should consider a reasonable range for settlement. If the settlement is
     within that range its ok. The give a bunch of factors to consider on page 6-31:
     Amount of settlement (also remember that settlement will be less than recovery at
     trial), settler’s share of liability, approximate total recover for plaintiff, allocation of
     settlement proceeds, other financial conditions and insurance policy limits, existence
     of collusion, fraud, tortuous conduct aimed to injure the interest of non-settling
     parties, etc.

     Washburn v. Beatt Equipment Company
     Propane system blew up and lit a couple guys on fire. Some defendants settled, some
     didn’t. Jury entered judgment against Beatt for $6million then reduced it by the
     amounts the other defendants settled for. What they did was calc the total damages,
     reduce by the liability of the settled parties, then reduce by the settlement amounts.
     Is this right? Beatt is the only non-settling defendant. He is not entitled to
     credit/offset for amounts paid by any settling entities, whether fault-free or at fault,
     because not of those entities are jointly and severally liable defendants within the
     meaning of the statute.

     How do we ascribe liability when parties settle?

     Plaintiff was interpreting the statutes looking for more money.


     Statutes of limitation/Statute of Repose.
     There is a time when the time to bring a suit passes.
     (1) What is a reasonable period of time to say “after this period passes it is too old
         for a court to hear it?” Why do we have it?
     (2) When does the time begin to run?
     (3) Is there something that can suspend the statute of limitations (tolling)

     Purpose - passage of time makes it unfair to bring suit against a defendant where
     evidence, witnesses, records, and cause has gone away. Need to balance the interest
     of the P and D.
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     Issues - (1) what is the limitation period? (2) When does the period begin to run?
     (Discovery rule - not until you discover or should have discovered the cause of
     action). (3) Do we stop the clock for equitable reasons? (toll the statute).

A.   Applying the Correct Limitation Period
     Dickens v. Puryear
     Plaintiff got his ass beat real bad because he was doin’ the defendant’s daughter. He
     brought assault and batter claims and also intentional infliction of emotional distress.
     The same action will sometimes give rise to different claims. These different claims
     may have different statutes of limitations. The courts often look at the gravamen of
     the case (the weightiest claim). In this case, the defendant committed several
     different acts; severe beating, threat of castration (assault) and threatened to kill him.
     The court says that castration threat is over when they let him go, but the threat that
     he is going to get killed is a different one. It is not imminent to happen, and is a
     future action. They therefore let that claim survive even though the statute of
     limitations has passed on the other claims. The statute of limitations is shorter on
     intentional torts. The reason is because the standard we use is a subjective one. We
     need to know the subjective state of mind of the defendant and we may loose it over
     time. In addition, these sorts of cases are not difficult to discover. You are generally
     aware of it when it happens.

B.   Accrual of the Cause of Action
     Discovery Rule - Statute of limitations doesn’t begin to run until the plaintiff
     knows they have a cause of action, or reasonably should have known. (accrual

     Estates of Hibbard v. Gordon
     In 1977 Knox murdered Heidi’s parents and raped her. In 1983 she became aware
     that the estate could have claimed that estate was negligent when they released him
     before the murder. So, she sues the bank that was the executor of the estate (bank)
     for negligently failing to sue the state, sues the state for releasing the murderer, and
     sues the lawyers for the bank. COMMENTS: The court holds that the statute of
     limitation starts to run when a reasonable person knew or should have known about
     the cause of action. Usually a P is required to make reasonable inquiry into whether
     or not there is a cause of action. Discovery rule - Statute of limitation doesn’t begin
     to run until plaintiff knows or should have known about cause of action. the court is
     reluctant to apply this rule to the state for policy reasons. Stale claims may be
     spurious and generally rely on untrustworthy evidence. The society benefits when it
     can be assured that a time comes when one is freed from the threat of litigation.

     Even though the rule did not apply to the state, the claim is ok against the bank and
     the lawyers. They had a fiduciary duty to look after her interest. The statute of
     limitations starts to run when she knew or Should have known about the cause of
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     action. They reason that she put her trust in them to inform her of what is available.
     Key thing to look at is when does the cause of action spring into life.

     Pfeifer v. City of Bellingham
     1979 Island Construction company completed building an apartment complex. They
     then sold the building to individual buyers. It was a three story building that should
     require extra safety standards, but the city granted them the permits because they
     raised the land around the building enough to call it a two story building. June of
     1986 lady had to jump out of the window of her apartment complex because it was
     on fire. She suffered physical and emotional injuries. There is a statute that say a
     claim against a builder must be brought within six years of the substantial completion
     of the building. The plaintiff is claiming that she can sue Island construction in their
     capacity as sellers of the building. Ie they misrepresented the safety of the building
     when they sell it. The court holds that the statute specifically says “builder” so the
     statute doesn’t apply. Statute of repose - focuses on the length of time that the
     defendants work has been satisfactory. Example - WA statute for product liability, if
     the product works for Xyears beyond that point no liability.

C.   Tolling of the Limitation Period
     Tolling: The plaintiff may recognize the claim, but there is an equitable reason
     not to sue.

     Walters v. Marion Memorial Hospital
     Old lady was in the hospital. While in the hospital she fell and broke her hip on June
     1, 1987. She was released on July 31, 1987. A complaint was filed on her behalf on
     July 14, 1987. There is a 2 year statute of limitations, but the P argues it was tolled
     during the time she was in the hospital. The court holds that the continuing care
     doctrine only applies if the negligent care continues. Reasons against the courts
     holding. What if she was in the hospital for more than two years. Would she want to
     file a suit while still in the hospital? Also, “stockholm syndrome” while she is
     dependant on the hospital for her care she might no realize she has a case worthy of
     suit, she thinks they are doing what is best for them. Difficulty with this concept,
     when will it ever end? What about people who are permanently in the care?

     Strahler v. St. Luke’s Hospital
     Plaintiff was in the hospital when she was 15. Now she is 19 but wants to sue the
     hospital for negligence even though the 2yr statute of limitations had expired. There
     was a statute that said the statute is tolled for a minor until the parents are aware....P
     argues that the statute is unconstitutional because it does not afford the child with any
     rights of access to the courts.
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       Modification of duty by status and relationships. The impact of contract law and
       relationships change the nature of the duty. Chapter 8 - premises liability - nature of
       the relationship determines the duty that is owed. (invitee, licensee, trespassor).
       Chapter 9 - consumer and product manufacturer. Chapter 10 - medical malpractice -
       health care provider/patient relationship. Chapter 11 - Did the defendant owe the
       plaintiff reasonable care ....     -Pre-existing relationships-

       The nature of the relationship between plaintiff and defendant changes the duty that
       is owed.

 A.    The Status Distinctions
       If we were in chapter one, failure to use reasonable care results in negligence and thus
       liability, but because of premises liability the defendant claims he owes no duty. Any
       duty they owe depends on the classification of the plaintiff. .
        The classes are:
                 (1) Invitee:       (a) Business invitee - invited to enter or remain on land for
                                    a purpose directly or indirectly connected with business.
                                    The owner owes reasonable care.
                                     (b) Public invitee - just like business invitee except owner
                                     is not a business. Example - University invites public to
                                     hear lecture - not business, but still owes reasonable care.
                                     Usually the owner is a government or charitable
                  (2) Licensee: Bare permission/social guest. Duty to warn of known, hidden
                  (3) Trespasser: No permission - Avoid willful and wanton injury. I.e.
                       don’t shoot. Except children - attractive nuisance

  1.   Are the Status Distinctions Desirable?

       Younce v. Ferguson
       Girl was injured at a kegger. She tried to claim she was an invitee because she paid
       for a keg cup. The court says just because you split the cost of refreshments doen’t
       make you an invitee. The plaintiff also makes an argument to overrule class system,
       but the court says if legislature wants to, let them. The owner in this case only has a
       duty to war of hidden perils. The plaintiff knew of all perils.
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     Rowland v. Christian
     Christian had a broken faucet that she had told the landlord about. A guest of
     Christians was injured using the faucet. Trial court granted summary judgment for
     the defendant - no duty. But, a guest is a licensee, the danger is hidden, Christian
     knew and had a duty to warn. On appeal the plaintiff argues to get rid of class
     system. The plaintiffs argument is dumb, should just argue that the trial court
     screwed up. The court says we should go to a reasonable care standard under all the
     circumstances - consider everything. The courts policy - says that the class system
     suggests that some lives are worth more than others. We shouldn’t vary conduct
     based on a class of people.

     For the exam, be able to apply the classifications. May want to add a note about
     what some jurisdictions have done.

     California went to a reasonable person considering all of the circumstances including
     the plaintiffs status on the land standard. So it turns out that reasonable people
     change their degree of care depending on visitors classifications. The point of the
     CA standard is procedural: Do we leave it to the discretion of the jury, or do we
     classify people under the law. Makes it hard to get summery judgment in CA. We
     need the jury to decide what a reasonable person would do.

     What is the key when trying to classify someone as an invitee? Is it the foreseeability
     or the benefit to the owner?

2.   How is the Visitor’s Status Determined?

     Markle v. Hacienda Mexican Restaurant
     Plaintiff was in defendant’s parking lot. He stopped to eat, but was transferring steel
     to a co-workers car when he stepped in a hole and injured himself. P claims that he
     was on the land as an invitee and that the business of transferring the steel was just
     incidental to his purpose of being on the land. COMMENTS: The trial court said he
     entered the land as an invitee then changed his status to a licensee when he was
     moving the steel (you can change your status while on the property), they also say
     that the status if for the court to determine. Whether the p was an invitee depends if
     his conduct was pursuant to the visit to the owners business. Pursuant to does not
     have to mean that you are actually paying the owner, you are just there doing what
     could be expected. Indiana used two tests “economic benefit test” and “invitation
     test”. The economic benefit test isn’t necessarily a dead idea, all Jx will look for
     some degree of benefit. Don’t focus on the benefit to the owner, but the extent of the
     invitation. You don’t lose invitee status when you engage in activity related/incident
     to the invitation. The defendant does not have to enjoy a specific benefit on that day,
     but if the owners business benefits or will benefit from this type of visit. Your status
     may change when using the property for purpose other than reason it is open to the
     public. Broad interpretation of reason it is open to the public. Looks like you
     should make as many arguments for owner’s benefit as possible. In this case the
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     court decided that whether or not the action was incidental to his invitation was for
     the jury to decide.

     Hostick v. Hall
     Mother goes to laundry mat with her child. The child climbed on a chair, turned on
     hot water, and burned itself. What is the status of the 17month old child? Invitee
     because the presence of the child is pursuant the to owner’s business. Without being
     allowed to bring their kids, mothers probably wouldn’t do their laundry. Must
     consider what is customarily done by invitees. Owe a duty of reasonable care to
     prevent foreseeable injuries. Can’t get the child on assumption of risk because too
     young. Can’t bring in the mom because of the parental immunity. The failure to
     supervise would be like suing the mother on behalf of the child. Key to assumption
     of risk is being capable of understanding the risk.

     Guilford v. Yale University
     Old guy went to class reunion at yale. They were booz’n and stuff. He needed to
     take a piss and walked toward what he thought was a bush. It was really the top of a
     tree growing from a lower level. He fell over a wall to the lower level. He was
     definitely an invitee when he started, the question is whether he exceeded the scope
     of his invitation. Does this activity seem to be reasonable. It looks like the
     University promoted his intoxication. Probably to get donations. Jury found that he
     was an invitee.

3.   An Exception for Trespassing Children - “Attractive Nuisance”

     Osterman v. Peters
     Four and a half year old fell into the neighbors pool and drowned while trying to
     retrieve a ball. Parents are suing the neighbors. Court says he was a tresspasser, they
     don’t recognize attractive nuisance, age doesn’t matter, etc. No duty owed.
     Plaintiffs arguments
     (1) Age. Not old enough to know he was were he didn’t belong. But the court has
          declined to make exceptions for age before and isn’t willing to do it now.
     (2) Argues that child’s purpose was to get the ball and then found the pool. It is kind
          of like the allurement element that is sometimes required, but this doesn’t make
          sense since the purpose of entering the land should have been because of the
     (3) Leaving the pool was an act of indifference that was equivalent to willful and
          wanton conduct. The pool was full, the gate didn’t latch, etc.
     (4) Violation of a statute. Pools are required to be enclosed and have a latching gate.
          They are implying a cause of action from the violation. But, negligence doesn’t
          mean they deserve a remedy. First they must show that the child was owed a
          duty. First comes duty, then negligence, then cause of action.

     Hofer v. Meyer
     3 year old was found in a horse pasture owned by Meyer’s and it looked like Kiefer’s
     horse did it. The trial court directed the verdict for the defendant because there was
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     no evidence to raise the status above a trespasser. Keifers only duty was to abstain
     from wanton/willful conduct. Meyers had no reason to know of dangerous
     propensities of the horse. The plaintiff wants to get rid of the class system and adopt
     a an ordinary negligence standard regardless of status. The court avoids addressing
     this argument by instating the attractive nuisance doctrine as presented in the
     Restatement test for “artificial condition”
     (1) Possessor knows children will trespass, and
     (2) Possessor knows of risk of death or serious bodily harm to children, and
     (3) Children because of their youth do not discover the risk, and
     (4) It is not hard to eliminate the risk. “cheap fix”, and (not like Learned Hand
         test were there is a balancing, this is just looking for a slight burden)
     (5) The owner fails to exercise reasonable care to eliminate the danger or
         otherwise protect the kids. Just needs to use RC to implement a cheap fix.

     The trial court decided the horse is not an artificial condition, but the court of appeals
     says let the jury decide.

     Note: the restatement rule doesn’t really say age to be considered child or youth.
     Some courts say only “tender years”. The restatement test does not require

B.   When Does Premises Liability Govern the Case?
     Herrick v. Wixom
     Guy snuck into a circus and was hurt by a firecracker. Trial judge said if you find he
     was a trespasser there was not duty. This is not a premises case. The court doesn’t
     say this, but instead says that once a trespasser is discovered he is owed reasonable
     care. This is screwed up because a discovered trespasser gets better treatment than a
     licensee. How do we know if we are dealing with a premises case or a firecracker
     case? Dewolf says it is not a premises case. If this was a test you would say that
     d would argue for premises liability, but the p will argue that becuase the injury
     arose out of ____ ......

     Humphrey v. Twin State Gas & Electric Co.
     TSs power lines run across thomas’s land. The had negligently fixed a line
     (temporary fix). Humphrey was trespassing on Thomas’s land and was electrocuted.
     TS says they owed him no duty because he was a trespasser. But, the court says “its
     not your land”. You can not invoke premises liability when it is not your land. If the
     D doesn’t have a right to exclude the P why should they be able to insulate
     themselves. Premises liability claims are based on the Ps presence on the Ds land.

     Potts v. Amis
     P was at Ds house. D was swinging a golf club and smacked P in the face.
     D says P was a licensee and only duty was to warn of hidden perils and not willfully
     injury him. If it is the premises that forms the basis of the injury, then we look at
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      Premises Liability categories. But if it is the Ds activity that does it and not the
      premises we need reasonable care. The ownership and maintenance of the premises
      is irrelevant.

      Thoughts - - -There is a case cited in Potts that says that the owner can not willfully
      or wantonly injure a licensee. “the rule as thus expressed does not exclude liability
      on the part of the owner for extraordinary concealed perils or for unreasonable risks
      incident to the possessor’s activities. The Potts court holds that an owner has a
      duty to exercise reasonable care to people on his land if he knows they are there. It
      looks like if you know someone is on your land, you will be liable for unreasonable
      risks incident to your activities. If they are injured by your activities it gets
      kicked out of premises liability and we then have to determine liability by
      ordinary negligence standards. . . . . . ?

      Zuniga v Pay Less Drug Stores
      Bum falls asleep on Ds property. Truck driver backed over his leg. What is the
      outcome? The court of appeals ends up saying that he was a trespasser and tosses it
      out. P can argue that it was an injury due to the Ds activity and it is independant of
      the ownership of the premises. How do we reconcile with Potts v Amis? DeWolf
      didn’t seem to like this holding.

      I would argue it was because he was a trespasser and the truck driver was not aware
      of his presence. Therefore, even though injured by the truck driver’s activity the fact
      that he was unknown keeps him from getting into negligence realms.


 A.   History: The Rise and Fall of Privity
      Duties affected by relationship between parties. Sellers and purchasers. In chapter 8
      the plaintiff’s ability to recover was diminished because of the relationship. In
      Chapter 9 relationship enhances duty owed - it is related to contract law. Products
      liability grew up in the land of contract, absorbed principles of strict liability, and
      retained it when repatriated to land of tort.

      Winterbottom v. Wright (1842)
      Law of product liability got off to a bad start. Guy in a coach/carriage, wheel came
      off, he was injured and wants to recover from the manufacturer/repairer. Mfg’r says
      car was sold to the guys employer so the injured guy isn’t in privity of contract. The
      court agrees. The say in the absence of a contract they had no duty to the injured guy.
      The mfg’r also has other defenses.

      What is puzzling about this case is they regard contract as the basis for duty. The
      existence of the contract reduced the liability to the injured party. What if the wheel
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would have flew off and hurt someone walking down the street? Courts took this
decision to mean you needed privity to have a claim.

Is contract the reason we should have liability? Where does duty come from? From
the promise in a contract?

Macpherson v. Buick Motors Co.
P bough a car from a dealer who bought it from the D manufacturer. The wheel
collapsed and the plaintiff was injured. This was an old car that had wooden wheels.
The wood was defective. There was another manufacturer who made the wheel.
Question of duty? If we follow winterbottom we need privity. There have been
cases since then that have carved out some exceptions. Devlin v. Smith - scaffolding.
Thomas v winchster - pharmacist gave poison on accident, Statler v Ray - coffee urn.
Court comes up with a new rule. If you make a product that is dangerous when
negligently manufactured, you owe a duty to anyone that can be reasonably foreseen.

Duty doesn’t grow out of contract. Duty is part of the law (tort law)

Henningsen v. Bloomfield Motors, Inc.
Husband buys a car for wife, it breaks and she is injured. The sale agreement said
that D was no liable for almost anything. Court rejects this as a contract case and
goes for tort remedy. The court says this deal was unconscionable. Legislature has
decided there is an implied warranty of merchantibility and this contract frustrates
legislatures intent. Unconscionability (a) procedural - sneaky deal
(b) substantive - the deal itself is unfair/unconscionable.
We started by saying duty comes from contract. Then we said there was duty outside
of contract. Now we are saying you can not bargain it away.

In one sense, it is very simple: if injury is caused by defective product, plaintiff
recovers. But what is a defect?
               (A) Manufacturing/Construction defect - The product deviates
                    from design/specifications (true strict liability)
               (B) Design defect - the design itself is defective
               (C) Warning defect/failure to warn.
Each classification has a different policy question to set the standard.
Standards:          Consumer expectations
                    Risk-Utility (like learned hand)

What is injured persons burden of proof in order to recover? We could apply rule of
reasonable care, foreseeability, etc. but that is not the direction we want to go because
of the nature of the relationship between plaintiff and defendant.

Restatement - strict liability in tort
(1) Intendend (foreseeable) use
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     (2) Defect (what is a defect?)
     (3) Causes injury
     No need to prove privity or negligence.

     Proving defect - not suitable for intended purpose. This is a point of controversy in
     restatement 3d, they came up with consumer expectation test vs. risk utility test.
     Expectations - minimum expectations - there is basically a floor standard.

     Standard for design defect. Would a reasonably prudent manufacturer use the same
     design knowing what we are now aware of? (not the same as a negligence test)
     Policy: What happens if later on you are smarter than when you manufactured the
     product - imputed knowledge. Is this desirable from a policy standpoint?

     Manufacturing defect - Product differs from the design. Policy: manufacturer
     should compensate without proof of fault.

B.   The Adoption of Strict Liability in Tort
     Escola v. Coca Cola Bottling Company of Fresno
     Waitress was putting a coke bottle in a refrigerator and it exploded causing injury.
     Majority says that P must prove traditional negligence standard; in this case she
     wants to use Res Ipsa theory. She wants to use res ipsa because the bottle has been
     destroyed. Ct says P must prove that she did not change the condition of the bottles
     since D dropped them off. Logic - it was under Ds exclusive control, they are in a
     better position to prove they were not negligent. Assume the jury believes that she
     was using it in the normal matter, they can infer that D was negligent.
     Justice Traynor concurs. He thinks strict liability should be the standard not
     negligence. Mfg’r is in the best position to guard against defects. Liability without
     proof of fault.
     As majority has it, the standard is still negligence and P has to prove it. Traynor says
     the P has to prove a defect. The difficulty as Dewolf points out is that the definition
     of what is a defect is not very clear. Why does Traynor think we should make the
     Mfg’r pay? It is an economic incentive to make sure products are safe. Built in
     insurance - p might pay a little more, but d is taking greater precautions to prevent
     injuries. What kind of defect is this? Mfg’ing defect. With respect to mfg defect we
     go with true strict liability. You prove defect and mfg is liable.

     Greenman v. Yuba Power Products
     P had a multipurpose power tool that operated as a lathe. He was using it and a piece
     of wood flew out it and messed him up. He sued the retailer based on an implied
     warranty (merchantibility, fitness for purpose) and manufacturer on express
     warranty. But are we/do we want to sue on warranties with all of the baggage that
     comes along with it?
     Traynor: all you need to do to establish mfg liability is that the P was injured while
     using the machine during its intended use. Liability is not based on an agreement.
     Mfg can not define scope of responsibility. Not governed by contract law. Cost of
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     defective products should be borne by mfg.. P could argue express warranty because
     he relied on written representations, but he didn’t have to because it was implied to
     be safe because it was on the market. P only needs to show he was hurt while using
     product as intended because of defect. P does not need to show privity or prove
     negligence. This is a design defect. Why? The machine as designed and
     manufactured was unsafe for its intended use.

     SL in Tort:
     (1) intended Use (foreseeable)
     (2) defect
     (3) causing injury

     Phillips v. Kimwood Machine Co.
     P worked for a company that made plywood. The company had a sander that could
     be adjusted for different thickness of boards. They manually fed the machine. The
     set it for thick boards, but a thin one got in the punch, was spit out of the machine,
     and messed up the P. P claimed design defect and TC directed the verdict for the D.
     D could have manufactured the machine differently. D knew that Ps employer was
     manually feeding the machine. CT suggests a kind of retrospective negligence test or
     imputed knowledge. The Mfg produces a defective product if it is the kind of
     product a reasonable mfg would not have made if they knew then what we know
     now. Test: “ a dangerously defective article would be one which a reasonable person
     would not put into the stream of commerce if he had knowledge of its harmful
     character. Would the seller be negligent if he sold the article knowing of the risk
     involved? (you should have known)

     Brown v. Superior Court
     DES case. The court looked at the policy behind using the imputed knowledge
     approach to design defects. The court decides that a true negligence test is more
     consistent with public policy. The public would be harmed if we apply strict liability
     to prescription drugs. There is a policy that drug manufacturing is desirable, to hold
     manufacturers liable for defects not known at the time would inhibit the development
     of new drugs. This is applicable to prescription drugs only. Why is there the
     distinction between prescription and non-prescription drugs? Don’t want to stifle
     development. Higher insurance prices, more liability, .........

C.   Statutory Modifications
     Washington’s revision of product liability. One section to define terms. 7.72.030 -
     liability for manufactures (distinguishes from sellers).
                (1) uses the word negligence
                      (a) design defect - at the time of manufacture
                      (b) warning - at time of mfg
                      (c) warning - after mfg
                (2) Strict liability for manufacturing defect
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       Not really a true negligence test. The court decided strict liability for design and

 D.    The Restatement of Torts


 A.    Medical Malpractice
  1.   Negligence

       Knight v. Haydary
       Wrongful death and survival action based on medical malpractice after a lady died
       when being treated for a miscarriage. The doctors failed to diagnose a condition that
       killed her. Trial court directed verdict for the plaintiff. In a medical malpractice
       case, the plaintiff, by use of expert testimony, must establish the standards of
       care against which the defendant/doctor’s conduct is measured. Then the
       plaintiff must prove that, judged in light of these standards, the doctor was
       unskillful or negligent ant that his want of skill or care caused the injury to the
       plaintiff. In this case the experts did not agree as to how the patient should have
       been treated. Additionally, the plaintiff tried to prove what the proper treatment
       would have been if the doctors diagnosed the condition. The primary duty was to
       actually diagnose the condition. Only after proving negligent diagnosis could they
       question the treatment of the condition. Trial courts JNOV was inappropriate.

       Restatement (2d), Torts, §299A, comment f.
       Where there are different schools of thought ...... the actor should be judged by the
       professional standards of the group to which he belongs. The law can not sort out
       questions were experts reasonably agree, but there may be a minimum requirement of
       skill applicable to all persons of whatever school of thought who engage is any trade
       or profession. Basically, professionals are held to the minimum standard.

  2.   Informed Consent

       Wachter v. United States
       Short, fat, old lady whose double bypass didn’t work is pissed off because she didn’t
       know about some other procedure as well as some other complaints. Trial court
       granted summary judgment for the hospital (it was gov’t hospital). Informed
       consent - a physician has a duty to explain the procedure to the patient and to warn
       of any material risks or dangers inherent in or collateral to the therapy, so as to
       enable the patient to make an intelligent and informed choice about whether or not to
       undergo such treatment. The duty to disclose specifically requires a physician to
       reveal the nature of the ailment, the nature of the proposed treatment, the probability
       of success of the contemplated therapy and its alternatives, and the risk of
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       unfortunate consequences associated with such treatment. As to what should be
       disclosed, the standard is whether a reasonable person in the patient’s position would
       consider the data significant to the decision whether to submit to a particular
       treatment or procedure.
       The elements of prima facie case of medical malpractice by failure to obtain
       informed consent are (1) a material, undisclosed risk existed; (2) the risk
       occurred; and (3) injury flowed from the occurrence.

  3.   Statutory Modifications
                 (1) negligent procedure
                 (2) express warranty - rare because doctors usually qualify their statements
                 (3) uninformed consent
                       (a) Risks
                       (b) Alternatives
       Statute - reasonable patient standard for uniformed consent. - What would a
               reasonable patient want to know. In some jurisdictions it is a reasonable
               physician standard.
       Dewolf - most health care providers do not do enough with paper to inform the
               patients. A handout would help to establish what the doctor told them.
       Statute - obtaining written consent is prima facie proof the patient gave informed

 B.    Other Forms of Professional Malpractice

       The previous chapters dealt with cases where the defendant affirmatively did
       something to injure the plaintiff. This chapter deals with injuries caused by the
       defendant’s failure to act, “sins of omission”.

       Buch v. Amory Manufacturing Co.

        Tarasof v. Regents of University of California
        Wrongful death action. Therapist didn’t do enough to keep murderer from killing the
        plaintiff’s daughter. The therapist had campus police detain the guy, but he didn’t
        call the victim. Common law has traditionally imposed duty only if the defendant
        bears some special relationship to the dangerous person or to the potential victim.
        The key is foreseeability. The plaintiff says reasonable care is required - duty to
        warn. Defendant responds with:
       (B)      No relationship between therapist and victim - he only had a duty to the
                patient. Does a physician owe a duty to anyone besides the patient? The court
                holds there is a duty if there is a foreseeable injury...? There is a case cited in
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         which a Dr. prescribes drugs and the patient gets in a car wreck. This is
         distinguishable in that the Dr. encouraged the behavior where in this case the
         therapist did nothing.
(C)      Don’t want to break the confidentiality. This goes nowhere since he already
         told the campus police about the guy.
Policy/Principle: The tort system could force people to do the right thing; on the
other hand, where the defendant is in a position to do something instead of nothing,
tort liability might make them choose nothing at all (i.e. change the nature of practice
- stop counseling people with problems.).

Brown v. United States
Lobster fishermen in a storm. The families of the decedents sue the weather service.
The trial judge found the government liable. Did the government create a duty by
having a weather service? NO, because there must be just justified reliance. The
defendant must lure the plaintiff into relying on them. Even though the plaintiffs
relied on the weather reports, it was not justified. Weather reports are often
inaccurate, nobody should entrust their life to a weather report. There is a second
issue of sovereign immunity. The defendant argues discretionary function.
Replacing the buoy was discretionary. They chose to spend their money on other
stuff. The court agrees - allocating scares a resource is policy making.

Justifiable reliance vs. Duty.
Defendant’s acts vs. lack of defendant’s action. If the defendant had induced
the plaintiff to rely on him, he has a duty.

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