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Torts I Outline - Gifford ***************************************************************************** I. Strict Liability-liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe; liability w/o fault A. Necessity-a privilege that may relieve a person from liability for trespass or conversion if that person, having no other alternative, harms another‟s property in an effort to protect life or health. 1. Really an Affirmative defense to the tort of trespass if a. life, serious bodily injury, or property more valuable than that destroyed is in danger b. risk is caused by nature or independent force then you have a right to be there (Ploof v. Putnam) 2. Rule: Privelege is incomplete a. if you cause damage you must compensate for it b. if not, unjust enrichment-saving your property, damage someone else‟s, should pay it back, based on common sense/equity (i.e. restitution) (Vincent v. Lake Erie Transportation) B. Abnormally Dangerous Activities-undertaking which can‟t be performed safely even if reasonable care is used, for which the actor faces strict liability for any harm caused 1. Historically, evolves out of Rylands v. Fletcher (use this as its own variety of SL if case doesn‟t fit into other categories)-D brings a non-natural, foreign, mischievious thing onto his land in large accumulations. D using land in a nonnatural way; not in ordinary course. If it escapes, D is liable for all damages except if act of God or P‟s fault a. side issue: Independent Contractors were hired by D to build the reservoir which flooded P‟s mine. (1) Usually, D is held liable for his agents but not independent contractors (if D used reasonable care in selecting the contractors) since he is not directly responsible for how the contractors accomplish the task; employer does have the right to control employees‟ methods indicative factors of independent contractors (a) more or less skill (b) work for D or multiple people (2) exception for strict liability cases b. context-pits emerging entrepreneurs (owners of reservoir) against against the landed gentry (owners of the coal mine), competing economic interests-gentry wins c. in US, eastern industrialists rejected Rylands 2. Test of A.D.A. from 2nd Restatement-6 factors-no weights given 1) is there a high degree of risk to people/land 2) gravity of the harm 3) harm can‟t be eliminated by reasonable care 4) not a matter of common usage 5) inappropriate to the place carried on 6) value to the community
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a. Storing gasoline in a populated area is an ADA., but not in an isolated area (see 5th factor) (Yommer v. Mckenzie) b. Restricted SL for ADA to certain fact patterns (1) hazardous waste disposal (2) gasoline storage (3) toxic chemicals and gases (4) blasting and storage of explosives (5) escape of water and other liquids c. Focus on the characteristics of the activity, not the inherent characteristics of the item (1) Transporting hazardous chemical through an urban area is not an ADA since not high degree of risk and is common usage (Indian Harbor Belt RR Co v. American Cyanamid Co) 3. Test of A.D.A. from 3rd Restatement-wipes out list of factors 1) can it be made safe by exercising reasonable care 2) is there a high degree of risk (all three must be present for A.D.A.) 3) not a matter of common usage C. Nuisance-the unreasonable, unwarranted, and/or unlawful use of property which causes inconvenience or damage to others, either to individuals or the general public 1. Private Nuisance-interference with one‟s enjoyment of one‟s own property which can be the basis for a lawsuit for damages and/or an injunction against continuing the activity, defined by the invasion, negligence is not required, this area is a mess because of precedents from different historical eras a. 3 Ways to Find Public Nuisance-liability if D‟s conduct is a legal cause of the invasion and the invasion is…. (1) Intentional and Unreasonable (a) Intentional-purpose or knowledge with substantial certainty (sending particulate pollution onto neighbor‟s land was intentional-Bohan v. Port Jervis Light Co, could also be trespass or battery) (b) Unreasonable (1). Degree of harm is great (2). Gravity of the harm outweighs the utility of D‟s conduct (Res. 2nd pg 71, CBA/RU analysis) (3). Inappropriateness of the activity for the locale (2) Unintentional but Negligent/Reckless Activity (3) Unintentional but Abnormally Dangerous Nuisance b. Remedies (1) Damages-temporary of permanent (2) Injunction-for it (really determing price of P‟s land) to be granted, there must be -a nuisance found -irreparable harm -balancing of equities
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(a) Large disparity of economic consequences between P and D and the economic well being of the community is at stake then injunction denied (1). Boomer v. Atlantic Cement Co-injunction against cement plant denied since they had invest $45,000,000 and the injury to Ps was only $185,000, instead granted permanent damages based on the fair market diminution of the property (b) Problem with permanent damages-this is licensing a continuing wrong, condemning P‟s property, and providing no incentive for new technological advances (c) Alternative-temporary damages then go back to court, high transaction costs c. Defense-„Coming To The Nuisance‟ (first in time, first in right), is only a factor in deciding since it helps polluter/disturber, economic consequences stuck to the party who came (1) Spur Industries v. Del E Webb Development Co-developer builds houses up to pig farmer‟s land, developer claims public nuisance, injunction granted but the developer must pay to move the farmer since the developer brought the house buyers to the nuisance d. Zoning Regulations-admissible but not determinative 2. Public Nuisance-unreasonable interference to the rights common to the general public (such as public health, safety, peace, comfort, convenience) a. Proscribed by statute/ordinance/regulation b.Who can sue?-either those who suffer special injury or the state attorney general b. Conduct of continuing nature or long-lasting effect which D knows/has reason to know c.No structured body of law with requirements, results in proliferation of suits, usually dismissed (1) Philadelphia v. Beretta USA Corp-sues gun manufacturer for evil caused by methods of distribution, no public nuisance, for manufacturer to be liable for public nuisance… Factors to Consider (a) Injurious acts/harmful consequences have to be created by manufacturer (criminals) (b) Manufacturer must be in control of the instrumentality/product (distributors/dealers) (c) Harm has to be to the public at large (not individuals) D. Animals 1. Owner is strictly liable for wild animals not domesticated a. Behrens v. Bertram Mills Circus-elephant stampedes and injures P. Elephant was not naturally there, foreseeable that if it escapes it will cause damage, high risk of damage (similar to ADA reasoning)
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2. Owner is strictly liable for domesticated animals where D knows of dangerous propensity (i.e. after 1st bite should have known) 3. Usually, negligence is required for domesticated animals (e.g. dog bite statutes) a. exception, traditionally domesticated animals were strictly liable for property damage (except in the West) b. but not strictly liable for personal injury, due to provocation E. Vicarious Liability-liability that a supervisory party (e.g. employer) bears for the actionable conduct of a subordinate or associate (e.g. employee) because of the relationship between the two parties 1. Involved in most torts since most accident generating activity generated by corporations and businesses 2. Tests of Vicarious Liability a. Old Rule-Does D have control or right of control over employees‟ acts b. Newer Rule-Employee is furthering/benefiting the employer‟s business, Employees‟ acts motivated by desire to serve the employer c. Newest Rule-if risk of acts may be regarded as characteristic/typical of the enterprise undertaken by the employer; (1) Consider did the employer benefit, was it customary, did the employer endorse it (broader test) (2) Similar to explanation of worker‟s compensation broadly construed (2) Taber v. Maine-navy serviceman gets drunk off-duty on base and causes accident off base. US held liable for the acts of the individual serviceman. (a) side issue-P can only sue gov‟t because of Federal Tort Claims Act waives sovereign immunity of the gov‟t for what they say that they can be sued for (b) side issue-if US pays Taber, the gov‟t can sue the serviceman (primary tortfeasor) for derivative liability under the Indemnification Theory 2. Policy Reasons (to stick them regardless of fault) a. Deep Pockets idea-corporation has more money b. Deterrence factor c. True reflection of the costs of industry/business and can spread cost to consumers/taxpayers d. Burden on P-can be hard to prove action against single employee of a corporation 3. Non-Delegable Duties-duty that may be delegated to an independent contractor by one who retains primary responsibility if the duty is not performed because they have the obligation to do it a. Rule: If its inherently dangerous or if duty imposed by safety statute or requirement then they have the obligation to perform it and can‟t delegate responsibility for performance of the duty (1) Maloney v. Rath-D breaks fail and rear ends P. D says not at fault because she had her brakes fixed by a service station recently. The service station employees were negligent in servicing the
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brakes causing them to fail, but were independent contractors and were not under the control of D in their methods. D violated a statute requiring adequate breaks, which was a non-delegable duty. c. Reasoning-insurance will cover D so she will not pay directly (have to have insurance to drive) d. Rule: Therefore, D who hires Independent Contractors is not liable for them unless (1) Negligently chose/supervised the contractor (2) Activity was non-delegable/inherently dangerous (see above) (3) Strong public policy evident in the statute F. Enterprise Liability (for a broader sense see Traynor in Escola under SPL) -not a doctrine, but a set of policies which lurk behind change in tort law in 60‟s and 70‟s -when should we move toward strict liability? -when should tort doctrines achieve some of the same results, spread a loss? -successful in only a handful of cases, very few follow it 1. Application a. Manufacturer is in the best position to prevent the loss b. Manufacturer can spread the loss by raising costs or through insurance 2. Enterprise liability may apply to situations of joint liability a. 4 kinds of situations for joint liability (1) actors knowingly join in the performance of tortuous actsagreement, conspiracy e.g. kids in a drag race (2) actors fail to perform a common duty owed to P-parallel duties, or general rights of the public (a) Can impose liability on each member of an industry responsible for manufacturing a harmful or defective product (b) Hall v E.I. Du Pont De Nemours Co-damages sought from manufacturers of the blasting caps and their trade association arising out of 18 separate incidents. Ps allege that the practice of the industry of not placing any warning on the individual caps created an unreasonable risk of harm. Couldn‟t tell which manufacturer made the cap in the accidents in question. The entire industry was held liable for the harm caused by its indistinguishable products. (3) special relationship between the parties (e.g. master/servant or joint entrepreneurs) (4) independent acts of several actors concur to produce indivisibly harmful consequences-two cars run into one, concurrent tortfeasors 3. Reasoning (similar to reasons in vicarious liability from Taber v. Maine) a. Distribute the costs of the accident b. Have the product reflect the true cost c. Deter hazardous behavior d. Multiple Manufacs-fairness-rarely can pin it on particular manufacturer if there are multiple manufacturers and multiple Ps, manufacturer in a position to prove that they didn‟t produce it
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(1) enterprise liability only applies if there are a small number of manufacturers in that area 4. Problems with enterprise liability a. some manufacturers may be liable for things that others are doing that they are not, but they get stuck b. the tort system is inefficient in getting damages to P due to transaction costs c. don‟t insure ourselves against non-economic losses, but will get these in tort action II. Negligence – is the omission to do that which a reasonable man person would do or doing something which a prudent and reasonable man would not do, under all the circumstances -Four Distinct Elements of the tort of negligence (Prima Facie case) -Duty - Did D owe P a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others? -Breach - Did D‟s conduct, whether by way of act or mission, fall below the applicable standard of care set by law? -Causation - Was theD‟s failure to meet the applicable standard of care causally connected to P‟s harm? (Causation in fact/proximate cause) -Injury - Did P suffer harm (physical injury, real + tangible i.e. „no harm, no foul‟? A. Duty/ Standard of Care and Breach of Duty 1. The Nature of Negligence a. Foreseeability of risk and harm– reasonable person must take into account all those risks of injury which are reasonably foreseeable (that which a reasonably prudent investigation would disclose, reasonable expectation that they could occur) (1) Blythe v. Birmingham - P‟s house flooded by break in D‟s water main, D‟s system was „best known‟ and frost causing the break was „unprecedented‟, since extreme frost was not forseeable P owed no duty b. Duty owed under the facts – if already acting unreasonably, did P violate his general duty to 1).world at large or 2).someone else (contract) (1) National Food Stores v. Union Electric Co. - D cuts off power to P‟s store w/o notification and food spoils, off the hook on failure to provide power (due to provided exceptions), but violates general duty of due care to its customers in not providing notification of the cut off, not an ommission-they acted affirmatively in cutting the power c. Negligence is not a state of mind => D‟s belief of his negligence doesn‟t matter in terms of his negligence, hold D liable for what he did (not what he thought, i.e. in tort law don‟t punish for thoughts)-Hover v. Barkhoof 2.Calculus of Risk – Economic Interpretation of Negligence a. Cost/Benefit Analysis - Fundamental Notion: negligence is the failure to be reasonable, we assume that a reasonable person is a rational person, a rational person acts in accordance with notion that if the the cost of
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actions outweigh the benefits then don‟t do the action, therefore if you don‟t follow CBA you are negligent (1) Learned Hand Formula-3 factors (a) P = probability of harm occurring (b) L = gravity of resulting injury (c) B = burden of precaution (e.g. RR Co putting in a spark suppressor) (d) If P*L<=B, then no negligence/no liability: burden of persuasion is on P, tie goes to D (e) If P*L>B, then there is negligence and liability (f) US v Carroll Towing-barge sunk when other unmoored barge rams into it, if bargee had been aboard he could have kept the barge from sinking, barge owner was negligent in not having bargee on board in the middle of the day (2) Reasons for Quantifying Negligence Law (a) provides guidance for Ds of the world (b) it purports to provide guidance for courts and juries (jury might not know what constitutes reasonable care-e.g. design defect cases) (3) Utility of Hand Formula (a) is one guidance post used to articulate the standard of reasonable care (b) experts testify about cost/benefit analysis (4) Goal of CBA – get people to act in a way that they are exercising the socially efficient level of precaution (a) lurks behind all negligence law (b) requires taking all considerations into account (must think about all who will be affected and how greatly) (5) Other Points: (a) P has burden of proof of neglig. b/c costs so much to transfer $$ from to D to P (b) Legislatures do cost/benefit analysis for us sometime (ex.- statutes related to stopsigns) (c) claim adjusters may not be cost efficient to go to court (d) we could avoid most deaths but not consistent w/ costbenefit analysis b. Other Factors-Learned Hand is Too Simple-also have to look at… -benefits of D‟s action -the probability of D attaining the benefit (and the mirror image for contributory negligence) (1) Eckert v. Long Island RR – P runs onto rr track to save child, is hit by negligently driven train and dies, under trad. Learned Hand P is contributorily negligent precluding his recovery, (2) thus there is a range of reasonable conduct (both going on the track and staying put) in this spontaneous, emergency situation involving life and death
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3. Reasonable Person (Objective Standard) - level of care is determined by what an ordinary, reasonable prudent person would do in a similar situation a. Standard is of reasonable person in similar circumstances (1) Common carriers must use reasonable care of other common carriers-(this is not really an exception!) (a)Frederick v. City of Detroit-P wants a higher standard of care than negligence, but Court holds common carriers must use the due care of another carrier (not held to a higher standard of care - though they were historicallyinnkeepers), negligence is a decision made by both the judge (instructs jury, controls process and motions) and the jury (determines negligence) b. Rationale for using objective standard -problems w/ proof (can‟t prove what the D knew) -produces certainty and predictability; tells D how to act and informs potential Ps of how others are acting c. Mental Faculty e.g. temperament, intelligence, education, or ignorance (i.e. stupid, poorly educated, rash temper don‟t matter) differences are not taken into account in the reasonable person standard (1) Vaughn v. Menlove – there is a common standard of ORPP based on ordinary knowledge; not an individual measure which infinitely varies; individual shortcomings in knowledge are not an excuse (2) Objective standard of D is higher or more demanding of D than a subjective standard, which relies on honest, good faith, bona fide judgement of D c. Exceptions to ORPP Standard – law allows these exceptions for an identifiable class of people which provides sufficient warning to society and doesn‟t destroy predictability by lessening the std; these exceptions also don‟t cause problems w/ proof b/c they are difficult to fake (1) Children held to a standard of reasonable children of similar age, mental ability, and experience (a) Reasoning -probably can‟t expect more -kid‟s activities are less dangerous -can see that their kids and take precautions -mostly dealing with kid‟s contrib. neg. so making the world safer (b) Exception-Hazardous, Licensed Activities-held to an adult standard, limited to things such as automobiles, airplanes, powerboats (1). Dellwo v. Pearson-P‟s fishing, teenage D crosses their lines in his powerboat, P‟s injured (2) Courts split when applying it past licensed activities
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(2) Persons with Physical Impairment are held to standard of reasonable person in like circumstances with the same infirmity/disability (a) Memorial Hospital of South Bend v. Scott-P has MS, hospital‟s toilet has two devices to next to each other, P hits the wrong one and is burned, D claims contrib. neg. under ORPP standard, SC rules to consider circumstances of disability (b) Reasons to consider physical disability -can‟t expect the impossible -have warning of phys. dis. (visually) -hard to fake identifiable physical disability (c) FL Court of Appeals will take into account mental faculties (age, intelligence, experience, knowledge) – proP, deep pocket reading to make world safer i.e. harder to deny recovery on contrib. neg. grounds (3) Sudden Physical Incapacitation-Person is seized with a sudden, unforeseeable, unanticipated physical incapacitation (seizure) taken into consideration (a) Hammontree v. Jenner-D is driving, has seizure, loses control, and crashes into P‟s shop, D found not negligentacted prudently by standard of epileptic (great length of time since last seizure, on medication) (1). Court declined strict liability since insurance for epileptics would be great premium(risk classifications) (b) no notice of condition, no liability-heart attack, stroke, fainting, seizure (c) general rule: driver who falls asleep is negligent if he continued to drive w/o taking reasonable measures after any premonitory symptoms of drowsiness while in the car (Keller v. Delong) (4) Persons with Emotional Disorder/Mental Disability receive no allowance-regular ORPP standard (2nd Restatement general rule) (a) Reasons for no impact of emotional/mental disability on the standard of care -allocate the loss to the one who caused it -provide incentive to those responsible for the mentally disabled D to prevent harm and restrain them -remove inducements to fake mental disability -difficult to identify/assess significance of disability -forces D who caused injury to pay for it if they live in the world (b) Creasy v. Rusk-D in nursing home, had Alzheimer‟s and was combative and aggressive, nurse injured by the D
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(receives workmen‟s comp so can‟t sue her employer but can sue 3rd party D), D not held liable because known of the reasons of the for the general rule applied in this case -nurse assumed the risk, could have avoided -D‟s wife had put him in nh to prevent harm -Alzheimer‟s wasn‟t faked -no difficulty in assessing disability -D not in the world, in nh (c) Understanding of Mental Disabilities is changing (getting at biological roots) so the differential treatment of them will change (5) Sudden Mental Incapacitation-Insanity, even if no warning/unforseen, is no defense to negligence, most of the time liability is imposed (a) Exception-Breunig v. American Family Insurance Co-P has unforseen, unpredictable outbreak of insanity (God had control of the car and it could fly like batman), no notice to D that may be suddenly subject to mental illness, it affected ability to understand duty or control conduct, not liable (6) Emergency situations – in an emergency situation the standard is that of a reasonable person in the emergency situation (Eckert v. Long Island R.R. – amt. of time to make the decision, certain spontaneous circumstances) 4. Custom: essentially asking does reasonable care=ordinary care? Rule: it may be introduced as evidence of the standard of care in a given case (evidence of reasonable care, precautions that are feasible, show that D had adequate opportunity to identify risks), however custom is not determinate as to whether certain conduct amounts to negligence a. Benefits of Custom as Determinate (1) effort to reduce uncertainty for D‟s and juries, potential D‟s will know how to avoid liability and juries will know how to tell (2) D‟s know the industry, don‟t want to empathetic juries creating standards of care for industries they know little about (won‟t do CBA or ORPP test) (3) Free Market analysis - economic efficient level of protection: if workers care about a specific protection they will go to work for a company which provides the protection, in competition for employees other employers will adopt the protection, if the protection is not customary in the industry then workers must not want it (counter-functional monopolies and less than perfect knowledge of workers) (4) Lehigh and Wilkes-Barre Coal Co v. Hayes-P‟s 14yr old son killed in D‟s mine which lacked warning system for coal extraction, Appellate reverses case for D since none of the other companies were customarily warning, so cutsom=standard of care despite the fact that B
50% chance before the neg and <50% chance after the neg (2). P‟s estate gets full recovery © problem case-negligent diagnosis reduces chance or recovery from 60% or 55%to 20%, chance of death before is equal to or greater than the subsequent added loss (40/40 or 45/35) (1). Right to full recovery under the traditional test because negligence is more probably than not the cause (2). still seems suspect (2) Loss of Chance of Recovery (Minority Rule): (a). P had <50% chance of survival before but D‟s negligence lowers this more, so P should recover the difference of the original chance-altered, lowered chance, (b). Justification-otherwise there would be blanket release from liability for doctors and hospitals -examples if P dies © negligent misdiagnosis of cancer, 40% chance of survival before, 0% chance of survival after, P dies, estate‟s wrongful death recovery for P‟s death would be $1,000,000, P‟s estate recovers 40% or $400,000 (d) same facts as (a), P still has 20% chance of survival, P dies, P had 40% chance reduced to 20% chance, P‟s estate recovers 20% or $200,000
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(e) McKellips v. St. Frances (SC OK 1987)-P brought to emergency room, had risk factors of heart attack but told its gastritis, sent home, has heart attack and dies, issue for recovery is causation-experts can‟t say that by preponderance of evidence the negligence changed the outcome, court adopts loss of chance rule -example if P lives (e) 40% chance reduced to 20% chance but P lives, in some jurisdictions P recovers 1. medical monitoring costs and 2. for emotional distress despite lack of physical injury b. Increased Risk of Disease Attributable to Exposure of Injurious Substance: e.g. as a result of exposure to radiation leaked by D, P‟s chances of getting leukemia increase from 3% (average probability of all individuals) to 5% (1) Traditional “But For” Test: it is more likely than not that P‟s condition results from pre-existing or ambient causes, no recovery (2) Loss of Chance jurisdiction: P recovers for the increases risk of the disease, which is a 40% increase (2%/5%) so if $1,000,000 award P get $400,000 (3) Others: P recovers 1. medical monitoring costs and 2. for emotional distress despite lack of physical injury c. Other notes (1) expert will always give you the % you want, then it‟s a jury question and they favor P (2) No one can historically recreate why person gets leukemia or ends up dying (3) Gifford’s Conclusion-“Toto, I don‟t think that we are in Kansas anymore” 4. Cause In Fact-Causation and Scope of Risk: Substantial Factor Test (1) “But for” cause and causal link both needed for cause-in-fact i.e. if the accident would not have occurred without the actor‟s (D or P (contrib. neg.)) violation of duty but the actor‟s violation didn‟t generally/empirically increase the chance of the accident occurring then causation not proven (a). Berry v. Sugar Notch (SC PA 1899)-chestnut tree falls on speeding rail car under the control of P, D claims P was contributorily negligent per se since speeding violated statute, issue is causation-P not contrib. neg., essentially saying this is freak accident which shouldn‟t preclude P‟s recovery -causation (1). P‟s violation of duty was the “but for” cause since without speeding P wouldn‟t have been under the tree at the moment it fell (2). but the speeding didn‟t increase the probability of the tree falling on P‟s car
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-other issue: damages (3). D also claims that speeding increased the recoverable damage to P‟s car, court says that this doesn‟t matter since D produced no evidence or expert testimony for a jury to tell if the damage could have been less (2) Substantial Factor Test: P must demonstrate that D‟s negligence was a substantial factor in causing ‟s injury (based on “but for” test but expands it to require that in addition D‟s negligence must be a substantial factor/causal link of the injury P suffered) -substantial factor test requires: 1. D‟s act is “but for” cause 2. D‟s negligent act is causally linked to the harm (temporal relationship between D‟s actions and P‟s harm may also be considered) (1) Expert Testimony on Causation (a). may be introduced in relation to causation (similar to expert testimony as re custom in professional malpractice cases) (b). how do we determine if expert testimony is admissible? basic idea-is there specialized knowledge not ordinarily possessed by the trier of fact which will help them determine the issue ©. expert must testify to “reasonable medical certainty/probability” (2) If you can show a strong causal link and the accident does occur, this is enough to establish a finding of “but for” cause (a). Calabresi broke out casual link from cause in fact but he brought them back together in Zuchowicz v. US (b). Rule overrules Wolf v. Kaufman, where there the failure to light the hallway increased the chance of accident and the accident did occur, but “but for” cause was denied ©. Zuchowicz v. US (US CoA 1998)-P fills prescription, takes overdose because the dosage was negligently prescribed, gets PPH (rare disease), eventually dies, were no epidemiological studies so P relies on 2 experts who testify to the temporal correlation of taking the overdose to onset of disease and similarities w/other cases of drug induced PPH, court applies substantial factor test, (1). Issue: was neg. prescription the “but for” cause of the death? (2). Holding: yes-strong causal link+accident actually happens=”but for” causation (3) Typical jury instruction of substantial factor test: if you can prove D‟s act was a substantial factor in causing the injury, then you will find D‟s act was a legal cause
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(4) Substantial Factor becomes the test of legal cause but sometimes used inaccurately to include proximate cause 5. Proximate Cause-this is D‟s friend for limiting liability for the possibly infinite number of “but for” causes (e.g. all of Columbus‟s acts increased the chance of all subsequent accidents in North America), essentially asking how far will D‟s liability extend? a. Must be proved as part of ‟s case. The doctrine functions as a limitation on ‟s duty, is something more than a mere violation of ‟s duty. b. Ryan v. New York Central Railroad Co. (CoA NY 1866)-D‟s train engine set fire to his building and its spreads to neighboring houses, D‟s act was a but for cause for P‟s house burning (the court‟s opinion just talks about the spreading of the fire and leaves out the emotional side of D‟s negligence) (1) Specific Rule: Only liable for damage to first structure (D‟s own woodshed) (2) General Rule: Immediate v. Remote-not liable for remote damages, only liable for ordinary, natural, and immediate damages (a) weasel words, this is a 19th century view of the world, court really believes that the words have meaning (3) D not liable because of policy justifications (a) Can‟t extend liability for all of the damages (1). would expose railroad to liability without fault because circumstances they could not control (wind, humidity, etc.) (2). liability would be out of proportion to fault (4) Counter policy issues (a) Innocent P, negligent deep pocketed D who as a corporation can spread the loss (this is a classic example of enterprise liability) (b) Forfeiting negligence law as social engineering-in terms of CBA, won‟t come up with lowest possible accident prevention cost because instead of D taking into account all of the costs, D only has to consider immediate consequences (not the chance that he will be responsible for burning 10 houses) c. In Re Polemis (US App 1921)-lawsuit between owners and charterers of vessel, charterers must pay damages under the contract only if damage the result of his negligence, charterer‟s employees drop a plank while moving cargo from one hold to another, plank ignited leaking fumes and burned up the ship, charterer claims damage was too remote, owners recover for all the costs (1) Rule: If some harm is foreseeable and the harm occurring is the direct result of D‟s negligence then liability
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(a) if specific occurring damage is different from expected damage, D still liable as long as some damage was foreseeable (and direct result of D‟s neg.) (b) “Direct result” means directly traceable to D‟s negligent act and not due to the operation of independent/intervening causes having no connection with the negligent act
(directly traceable, no independent causes)
Act----------------------------------------------Result “Intervening” means a substantial factor in ‟s injury that occurs sequentially b/t ‟s act and ‟s injury “Superseding” means any cause which breaks the chain of causation and means that orig. is no longer liable for ‟s inj.; (whether intervening cause is independent is how to determine whether it is superseding and precludes liability) d. Gorris v. Scott (Court of Exchequer 1874)-P wants to recover for his sheep which were washed overboard during a storm, P claims that if D followed the Contagious Diseases Act and fastened the feet of the sheep to the deck that they wouldn‟t have been washed off deck, D did violate the statute which was cause in fact of the accident (1) Rule: Was no proximate cause-the injury occurring was not of the type of injury to be prevented by the duty, type of injury occurring was not forseeable (2) This is essentially a Neg Per Se case-third element not met: harm must be of the type of harm which the statute sought to prevent (a)Legislature sought to protect against spreading of disease, not to impose duty to prevent animals from being washed overboard e. Palsgraf v. Long Island Railroad (CoA NY 1920)-P standing on rr platform, man running to make another train, D‟s guards push the man from behind to help him make it onto the train, package containing fireworks falls out of his hands and explodes on the tracks, eventually scales are knocked over onto P who develops post traumatic stress disorder, only issue-was D negligent vis a vis his employees pushing the man onto the train, verdict for P, CoA agrees that D violated duty of care to the passenger boarding the train which was cause in fact of P‟s injury, but P denied recovery (1) Cardozo opinion(Majority)-„forseeability‟ is the test of PC (a) defines the issue not as a proximate cause issue but as a question of duty of care; No duty-D did not owe a duty of care to P (who does it matter? proximate cause issue jury decides, duty issue judge decides) (b) Rule: was the risk of injury to the P forseeable? i.e. was P within the range of apprehension?
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(c) Forseeability is an accordian like concept i.e. what risk is forseeable-passenger getting on train could be harmed, P had to be in the area, proximate, forseeable (1). D argues that P was not forseeable-very specific, forseeable that passenger would drop the innocent looking package that was really fireworks and it would explode and topple the scale which would fall on P who would get PTSD (2). P argues that D can generally anticipate that neg is dangerous-very general, forseeable that people on platform can be injured as a result of aiding passenger getting on train (3). conclusion: use langauge to benefit your client (2) Andrews opinion (Dissent)-liable for all direct consequences (a) issue is of proximate cause, not duty because in regard to negligence duty is owed to society at large, not to a particular P (b) he describes every test of proximate cause ever used (1). prudent foresight forsee it (2). natural/continuous sequence between A + I (3). direct connection w/o too many intervening causes (4). substantial factor (5). remoteness of result in time and space (6). likely to produce result in usual judgement of mankind (c) Rule: D liable for all direct consequences even if unforseeable-liable for those results that were natural and continuous w/out too many intervening causes, and without which injury would not have occurred (d) Line will be drawn on the basis of fairness, convenience, policy considerations, politics, rough sense of justice, common sense Compare Cardozo and Andrews
issue Andrews matter of causation Neg is duty to world at neg is large, once D is relationship of a wrong anyone injured P and D, can recover (injured relational forseeable P) need all 4 can talk about neg elements after the first 2 before you have elemements (duty + neg violation) Cardozo matter of duty
duty to who?
for neg
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(3) Both opinions trash 19th century notion of indirect/remote vs. direct/immediate (4) 3 Tort Goals (a) Fairness-neg D, P w/o contrib. neg., P should recover (b) Compensation-for 43yr old single mother Ms. Palsgraf this is a disaster, for RR this is a business expense (c) Deterrence-want neg law to produce sociall optimal level of accident prevention costs, if do CBA D only considers those who are reasonably forseeable (5) Notes (a) harm more forseeable now then before 9/11? (b) no „the proximate cause‟ only „a proximate cause‟ (c) more than ½ follow Cardozo, less than ½ follow Andrews (d) if you try to do Cardozo test on duty you will confuse the heck out of yourself-talk about it in one place as proximate cause f. Thin Skull Rule-D driving negligently in skid row area, hits worlds leading neurosurgeon who is a hemophiliac, scratched her and she dies, catastrophic injuries (1) Basic rule of law: you take P as you find him, unusually susceptibility to injury/death doesn‟t matter, you are liable for the extent of injury you cause g. Wagon Mound I (1961)-oil spills into harbor from D‟s ship, set on fire by sparks from P‟s welder, burns up P‟s dock, forseeable that the oil would muck up P‟s dock, not evidence that oil would catch on fire is forseeable (1) P is forseeable, some harm is forseeable so expect liability; but P loses because the fact that the type of injury (that oil would ignite and burn up dock) is unforseeable (2) *General synthesized rule: 1. P has to be forseeable (Cardozo in Palsgraf) 2. Type of damage has to be forseeable (Wagon Mound I) 3. Extent of damage doesn’t have to be forseeable (Thin Skull Rule) (3) Side Issue-contrib. neg.: if P had introduced evidence that it was forseeable that oil would catch on fire and burn the dock, P would have been contrib. neg. since his welder caused the sparks which ingnited the oil h. Wagon Mound II (1967)-this time Ps are owners of other ships in the harbor, claim there was no benefit of D to discharge the oil into the harbor, contend that type of injury was forseeable-that oil was inflammable (no potential contrib. neg. on their part unlike P in I) but there was very low risk of it catching on fire
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(1) Excpetion to Rule-if benefit of act is nonexistent and type of injury is only a little forseeable (slim possibility) but potentially grave, the type of injury can‟t be ignored (a) based on CBA test (b) more consistent with Polemis-everything is a little forseeable, approaching D liable for all direct results as long as some harm is forseeable i. Petition of Kinsman Transit Company (App US 1964)-boat breaks free, hit another boat and breaks it free, bridge operator doesn‟t raise draw bridge in time because he‟s at the pub, boats crash into the bridge and form a damn which results in 3 miles of flooding of surrounding property, D‟s argue no duty under Cardozo in Palsgraf (1) Liability?-Yes-type of injury (flooding) is a little forseeable (small chance) and is the direct result of negligence so liable a. if doctor can‟t get to a patient who dies because of the damage to the bridge D would not be liable, similar to Andrews-limit damages based on expediency, politics (2) Preserve absolute rule of extent of damage a. Is this case about type of injury or extent of injury?-hard to tell, but to preserve absolute rule for extent of damages then flooding and doctor example are of different types of injury Proximate Cause Summary Table does the unforseeability of (______) preclude liability? Yes No Cardozo in Palsgraf Andrews in Palsgraf-duty to the Plaintiff (over ½ of jurisdictions) world at large (substantial minority) Type of Injury Wagon Mound I *(but see Wagon Mound II and----- Kinsman-only a little forseeable doesn‟t preclude liability if risk is grave, similar to Polemis) Never In Re Polemis (majority of country-injury still has to be direct result and some damage has to be forseeable but not the specific damage incurred)
Always-everyone follows Thin Skull Rule (sometimes trouble differentiating between type of injury and extent of damages, but always preserve this absolute rule-Kinsman) *everything is slightly foreseeable and you can‟t ignore that unless you have good reason j. Final Notes-Current application of proximate cause (1) Pure proximate cause issues seldom arise in the real world except in the case of intervening and superseding causes
Extent of Damages (e.g. regular person really hemophiliac)
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(2) Jury instructions for proximate cause usually don‟t distinguish between direct and unforseeable (3) Slight majority accept Cardozo and reject Andrews; somewhat larger majority adopt Polemis over Wagonmound I (4) Most courts which follow Cardozo follow Wagonmound I; and most which follow Andrews follow Polemis (5) # of courts which follow both is quite small 6. Proximate Cause-Intervening and Superceding Causes: when D‟s negligent conduct combines with the conduct of someone else occurring after D‟s conduct to produce an injury? i.e. Ds Conduct-3rd Party‟s Conduct-Injury intervening-anything that happens between D‟s neg and P‟s injury that contributes to injury, neutral of liability, doesn‟t tell us about liability (3rd party of original D) superceding-any intervening cause that is unforseeable which precludes the original D from being held liable to P, breaks chain of causation a. Intentional Torts/Criminal Acts (1) Rule: Intentional torts are always superceding because we don‟t expect people to committ crimes/intentional torts, they are unforseeable (a) Liney v. Chestnut Motors Inc (SC PA 1966)-double parked car on the street is stolen by 3rd party who hits D, was a high risk of car theft at that particular time and place, P sues the car repair shop, dismissal affirmed, even if D was neg he would have had to forseen that… (1). car would have been stolen (but keys were left in the car in a high crime area) (2). thief would have been a neg driver (but look at statistics, 200x chance of accident occurring) (2) Exception for Intentional Tort Rule: Intentional torts are not superceding when the specific duty of original D was to protect P from the type of damage (criminal activity) that occurs (a) Bell v. Board of Education (CoA NY 1997)-P and friends go to pizzeria for lunch on school outing to a park, P fails to return on time, teacher leaves w/o the child and fails to tell school officials or police that P is missing, P was subsequently kidnapped and raped, P wins (1). purpose school supervision was to prevent this injury (2). also dealing with a child and D acting in loco parentis (3) Policy‟s role in Intentional Tort Liability-deciding if D or other tortfeasor will pay e.g. landowner or rapist, can P recover from origianl D if 3rd party D is out of reach or bankrupt, has been a strong move to identify other tortfeasors
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(a) Doe v. Manheimer (SC CT 1989)-P taken into eclosed area on D‟s property and raped by 3rd party, D did violate ordinance, P claims neg, neg per se, and public nuisance, P claims that condition of property and neighborhood made it forseeable to D that attack could occur in the hidden area, court rules that D owed a duty to P and his violation of duty was cause in fact but D not liable (1). Policy arguments decide, legal pigeonhole not within “scope of risk” (a). no relationship between P+D-P was not an invitee onto the land (b). emotional level-different from child involved ©. if landowner is held liable, who will want to own inner city property, this is public safety issue for the police, don‟t hold owners responsible for a problem they didn‟t create (2). Side issue-pre existing, passive condition of land can be a cause in fact, “but for” hidden area the attack wouldn‟t have lasted as long b. Negligence (1) Original tortfeasor is liable for the negligence of 2nd tortfeasornegligent intervening cause is not superceding cause e.g. / car accident injury / malpractice injury / ------------------------driver------------------------------------doctor-------------(a). its forseeable to 1st D that P may be subjected to medical malpractice at hands of 2nd D, for the added injury (b). 1st D will be j+s liable with the 2nd D (can be contribution action where 1st D (driver) sues 2nd D (doctor) (2) 2nd tortfeasor is liable for 3rd tortfeasor only if 2nd‟s maplractice was a legal cause of injuries suffered at hands of the 3rd tortfeasor (a). 2nd negligent is decision to transfer P into hands of 3rdyes j+s liable (b). 3rd complicates condition 2nd created-yes j+s liable ©. if P suffers eyesight damage at 2nd but brain injury at 3rd-no-divisible injury (just because P is transferred doesn‟t make 2nd liable for 3rd) (d). Modave v. Long Island Jewish Medical Center (App US 1974)-P injured in car accident, suffered malpractice at the hands of LIJ, they then transferred him to Nassau County where injury was further aggravated, gets award from both hospitals both Nassau‟s set aside so he wants full amount from LIJ III. Effect of P‟s Conduct on Recovery/Affirmative Defenses to Negligence
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A..Contributory Negligence - P is contrib. neg. when (1)P doesn‟t exercise the amount of care which he should for his own protection (required to exercise only that amt. of care which ord. prudent person in same circum. would) and (2) P‟s conduct is a legally contributing cause co-operating with D‟s negligence in bringing on P‟s injury 1. Contributory neglig bars recovery by P-why? a. Discourage accidents-if P can‟t recover then he won‟t risk the act b. Penalize P for being careless-however D may be more culpable c. Protect individual freedoms-business, entrepreneurs d. *Screens cases-clearly keeps cases from being filed (lawyer won‟t take personal injury cases where P was careless), going to trial (judge granting sj), and getting to the jury (dv)-unfairly reduces the number of claims 2. Burden of proof on D to prove by preponderance of evidence since its his affirmative defense 3. Two types of contrib. neg. a. P is aware of the danger and unreasonably proceeds in the face of it b. P unreasonably fails to discover a risk (ex. – diving into a muddy lake five ft. deep) 4. Exception: Ordinarily not contrib. neg. to continue to work when worker becomes aware of danger unless collective bargaining agreement or custom of trade demands the worker to stop/report it a. Gyerman v. US Line Co (SC CA 1972)-P is longshoreman, works in wharehouse moving stacks of fishmeal, noticed stacks were unsually arranged, complained to D‟s clerk but not to his supervisor, P continues working and moves them, they fall, and he injured, P found contrib. neg. and D neg also in violating Labor Law (allowed unsafe working conditions) (1) Usually violation of safety statute by D bars defense of contrib. neg.-obligation on D, how realistic is it that worker is in a position to tell boss that he won‟t do the task (2) SC holds that D didn‟t sustain burden of proof in that if P had reported to his supervisor, there is no evidence that the stacks would have been made safer 6.Contrib. neg. is not a defense to: a. Intentional torts b. D is willful, wanton, or reckless (1)has to be extreme gross negligence (2)ex.- driving 120 mph drunk 7. Only 4 states still hold contrib. neg. as a complete bar: MD,NC,AL,VA B. Ameloriating the Harsh Effects on Contrib. Neg. 1. Last Clear Chance-D‟s neg. occurs after P‟s contrib. neg. concludes e.g. subway case, pen in suit case 2. D‟s willful, wanton, reckless or intentional conduct-P‟s ordinary contrib. neg. is not a defense 3. View contrib. neg. by subjective standard of reasonable conduct of P-P‟s shortcomings could pay a role in standard of care C. Comparative Fault/Negligence
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1. Contrib. neg. is no longer a complete bar to recovery, a. not an issue until D proves that P was contributorily negligent b. has been adopted as the rule of law (in some form) in at least 45 jurisdictions c. Li v. Yellow Cab Co (SC CA 1975)-P making left across 3 lanes, D was speeding, both negligent, verdict for D at TC, SC overrules contrib. neg., fact that Legislature had codified contrib. neg. as a defense didn‟t matter because the doctrine was of judicial origin (Butterfield 1809) and the codification was not meant to preclude further development by the court 2. Liability is divided among P+D proportionately as determined by relative degree of fault of the parties-response to unfairness of contrib. neg. and j+s liability 3. How do you assign relative degree of fault? a. better argument-depends on their relative degree of departure from the standard of the ORPP (negligence to negligence) b. other-divide it up according to proximate cause (party that contributes greater mass to injury) or mix of pc and degree of departure from ORPP c. juries manipulate the %s d. given: both parties had to have violated standard of care and be pc of injury e. example: both neg, both injured Pammy Edgar relative degree of fault: 30% 70% amount of injury: $2,000 $8,000 they pay: $2,400 $1,400 f. results: (1) more neg party can receive more money than party less at fault (2) do the 2 separate judgements offest? (a). both insured-no offsetting, recover real money (b). not insured/bankrupt-do offest (3) most courts hold that if D‟s willful, wanton, reckless acts totally preclude reduction of P‟s damages 4.Pure v. Modified Comparative Fault a. Pure comparative fault-parties pay percentage of damages in proportion to their percentage of fault; allows a party that is more culpable than the other party to still collect for the percentage of damages they incurred; P can recover even if her neglig. is = or > than D‟s neglig, see above example b. Modified comparative fault-if P is more at fault than D then P doesn‟t recover i.e. if P‟s relative degree of fault is >50% (1) Most legislatures adopt modified comparative fault; serves to filter out cases where its clear P is more at fault (a) More culpable party doesn‟t recover (b) Reduces claims by weeding out at all phases -lawyers size up claims -if P is more than 50% at fault, maybe SJ
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-judges may keep from jury on Dir. Verd. (2) To whom goes the tie? (a) most of the time tie goes to P-“not greater than jurisdcitions” (b) a few tie goes to D-“not as great as” jurisdictions (3) Inform jury of the consequences of their decision? (a) most TC judges don‟t inform the jury (b) otherwise, telling the jury to manipulate the numbers e.g. $1,000,000 in damages, P50%, D50%, in not as great as jurisdiction P will recover nothing so jury may find P49%, D51% so P can recover © better way: ask special interrogatories (e.g. total damages, % to P, % to D) in order to maintain some judicial control, rather than just bottom line verdict (can‟t tell if its reasonable) 5. Reality of Contributory Negligence-even in jurisdictions where contrib. neg. is a total bar to recovery, juries really do comparative fault a. e.g. P sustains $1M in damages, D more at fault, jury knocks down recovery to $600,000 b. this is not a good excuse not to change the law (1) saying disregard the law to be fair and just (2) leads to wildly inconsistent results-some jurors will follow the judge‟s instructions D. Imputed Contributory Negligence-when will the negligence of a 3rd party be imputed to the P so that they are regarded as contrib. neg., generally highly disfavored 1. Family relationship won‟t impute contrib. neg. a. wife not imputed contrib. neg. of husband b. Parents contributory negligence never imputed to child (1) e.g. father dropping off child at school, turns to talk to someone, 2yr old runs in the street and is hit by negligent driver, dad‟s contrib. neg. is not imputed to the child (2) why?-don‟t want child to be disadvantaged by bad parenting 2. P is passenger in the car, contrib. neg. of the driver is not imputed to passenger a. Dashiel v. Keauhou-Kona Co (App US 1973) b. why?-P can‟t take control of the car c. Exception-P can be contrib. neg. if he made an unreasonable decision to get into the car in the 1st place (e.g. drunk driver, compulsive speeder) 3. Contrib. neg. is imputed for joint enterprise (pg.352)-for profit enterprise with sharing of expenses a. agreement among members b. common purpose c. pecuniary interest among members d. equal voice in the direction of the enterprise e. e.g. 2 college students sharing expenses won‟t fly, neither will parents of carpooling children
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4. An estate steps into the shoes of the decedent and has the same qualifications as if he survivedContrib. neg. of decedent can be imputed to his estate and be a total bar to recovery in contrib. neg. jurisdiction (4 states) a. Handeland v. Brown (SC IA 1974)-minor son driving motorcycle is contrib. neg., collides with car and dies, parents sue for wrongful death\survival (1) most states have recovery for (a) Survival Statute-maintain decedents claims, any claims P has at the time of his death survive and belong to the estate (such as medical expenses, pain & suffering, loss of wages for time prior to death) (b) Wrongful Death Statute-sue for their own loss, loss sustained by those who remain (husband, wife, son, daughter), includes economic things (loss of wages) and non-pecuniary things (loss of consortium, companioship) © there is variation in who can recover and for what (2) Exception-in this case, parents are not subject to D‟s defense of contrib. neg.; parents have an independent cause of action for injury to minor child (a) isn‟t derivative so don‟t take subject to defenses the child would have (b) premaced upon notion that for insurance co. this is a cost of business, for parents it‟s a disaster © this position has been questioned by IA itsel E. Assumption of Risk and Related Concepts - 2nd Big Affirmative Defense based on P‟s conduct, is confusion as to whether they are talking about a true affirmative defense or whether just negating D‟s duty to P, P assumed the risk of certain harm if he knows of the risk and voluntarily consents to take the chance, at CL it‟s a complete defense so that P recovers nothing 1. Affirmative Defense - D has burden of pleading and proving a. for express AOR D must prove there existed a valid agreement [Identify 3 Distinct Varieties of AOR] 2. Express/Contractual AOR („No Duty‟ Cases) a. General Rule-parties can disclaim by contract liability for negligence with 3 exceptions where public interest renders exculpatory clause unenforceable 1.) intentional torts of willful/wanton/reckless acts 2.) gross disparity in bargaining power 3.) transaction of public interest (1) Seigneur v. National Fitness Institute Inc. (CoA MD 2000)woman joins health club, signs contract with exculpatory clause against any negligent claim, hurts her shoulder, instructor tells her to continue and she does, P has to have surgery, P claims agreement wasn‟t valid, court denies this claim-no recovery exception #2-gross dispaity in bargaining power
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(a) P claims gross disparity in bargaining power based on adhesion contract-take it or leave it proposition unilaterally drafted by the dominant party (b) court says no, adhesion contract doesn‟t violate the exception if 1.) its not an essential service (P absolutely needs) 2.) there are other competitors/choices 3.) exculpatory langauge was prominently displayed exception #3-transaction of public interest © P claims that it involved a transaction of public interest, court says no and applies Tunkl test-see if all/some of the factors are met to determine if exculpatory clause is invalid as inconsistent with public policy 1.) concerns a business of a type generally thought suitable for public regulation 2.) party seeking exculpation is engaged in perf. a service of great imp. to public 3.) party holds himself out as willing to perf. this service for any member of the public who seeks it 4.) as a result of essential nature of the service, in economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of public who seeks his services 5.) in exercising his superior bargaining power, the party confronts the public w/ stdardized adhesion K of exculpation and makes no provision whereby a purchaser may pay additional fees and obtain protection against neglig 6.) as result of the transaction, person or property of the purchaser is placed under control of the seller subject to the risk of carelessness by the seller or his agents e.g. garage parking slip-says that they are not liable, but you can sue them, they just put the disclaimer on because they hope that you don‟t sue, they fail all 6 factors (2) Obstetrics and Gynecologists LTD v. Pepper (SC NV 1985)-P wants birth control pills, her signature appears on a contract that all disputes are to be submitted to binding arbitration, P doesn‟t remember signing it, she sues for negligent prescription which caused stroke, D moves to stay the lawsuit pending arbitrationdenied, court implies facts from their affidavits, P claims agreement wasn‟t valid, court agrees (a) Burden of proof was on D to prove that there was a valid arbitration agreement
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(1). P always has the burden in negligence (2). D could be pursuing no duty case-TC says burden is on him (b) No valid agreement-was no meeting of the minds (1). standardized adhesion contract (2). she didn‟t remember it (3). langauge wasn‟t prominently displayed (3) Are Seigneur and Pepper Reconciliable? (a) maybe-medical services v. health club services -didn‟t remember signing it v. knew signed it (b) Gifford-Pepper is wrongly decided (1). P not giving up complete right to compensation, arbitration v. CL trial, arbitration is not a bad way to handle malpractice claims, contrib. neg. rule is far less fair than being bound to arbitration (2). if both were in the same juris. they would be nearly irreconciliable 3. Implied Primary AOR-(„No Duty‟ Cases) a. There is no duty or violation of duty involved because P was naturally subjected to the inherent risks of something that is obvious or common knowledge (1) Rule-when one is a sports spectator/participant, you are naturally subjected to the inherent risks of the game (watching or playing) (a) analogous to riding train-we assume the risks of normal bumps and lurches of the train, but not the one‟s caused by the train‟s negligence (see Dorta pg. 348) (2) P‟s specific lack of knowledge is irrelevant if inherent risk is a matter of common knowledge (a) even in P had never seen the game played before, still no duty, owners assume that spectators know, knowledge of P is irrelevant in the specific sense (even where a foreigner goes to a baseball game and is hit by a foul ball but didn‟t know the risk) (3) Brown v. San Francisco (App. CA 1950)-P goes to a baseball game, sits in seats that were not covered by protective screen, had been there for an hour when she was hit by a ball, had been to one game prior and hadn‟t been paying attention at the instant game, ample screened seats were provided by D, she sues for negligence, court grants DV for D because there was „no duty‟ 4. Impied Secondary AOR-(„Duty‟ Cases) a. Definition-when P voluntarily encountered a known risk even if D was negligent (1) Protypical case: worker‟s compensationish-employer was negligent, but employee couldn‟t recover because he knew and encountered the risk by continuing to work
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b. 2 Types of Implied Secondary AOR (1) Unreasonable/Qualified-*Contributory Negligence (a) example-D neg in some way, P rushes into burning house to save his favorite hat, (b) P was unreasonable, no recovery, this could be both (1). Contributory negligence-acted unreasonably (2). AOR-volutarily encountred a known risk (2) Reasonable/Strict-*Real AOR (a) example-D neg in some way, P rushes into burning house to save baby (b) P was reasonable, no recovery, only AOR defense (1). No contributory negligence since P did not act unreasonably, see Eckert v. Long Island RR (CBA) (2). AOR-P still has strict AOR because P voluntarily ebcountered a known risk, we don‟t want this to be a defense c. Changes to Traditional AOR Doctrines (1) Drop Imp. 2nd Strict-½ of Jurisdictions say that Implied 2nd Reasonable/Strict is no longer a defense (2) Merge Imp. 2nd Qualified-Also conclude that Implied 2nd Unreasonable/Qualified is really Contributory Negligence so we don‟t need AOR as a separate affirmative defense (3) Comparative Fault Jurisdictions (a) since Imp. 2nd Qualified is really contrib.. neg., in the 46 states that have comparative fault, this unreasonable AOR is fed into the comparative fault determination (b) P will probably get a high % of the fault (80% +) (1). under pure comparative fault, P will get <20% recovery (2). under modified comparative fault, P gets no recovery © However, ½ of Comparative Fault jurisdictions keep AOR as a separate defense
Outline of Assumption of the Risk (see Blackburn v. Dorta SC FL 1977)
I. Express (Contractual) 1. Seigneur (CoA MD 2000) 2. Pepper (SC NV 1985) II. Implied
[Duty Cases]
A. Primary no duty or no violation of duty-Brown v. SF BC (no duty as result of inherent risk of the game) B. Secondary 1. Reasonable/Strict-*real AOR, P's conduct was reasonable, should drop this as a defense 2. Unreasonable/Qualified-*Contrib. Neg., P was unreasonable
[No Duty Cases]
IV. Damages A. Joint Tortfeasors: Apportionment of Liability Among Defendants-J+S Liability and Contribution
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1. Traditionally at CL there was NO Contribution-why? (if concurring torfeasors produce an indivisble injury then they are j+s liable) a. Courts are not going to assess relative degrees of fault b. Courts said that they would not settle disagreements among wrongdoers c. Exception-Indemnification (def-action of compensating for loss or damage sustained), really parallel to contribution as most often results from: (1) Employer-employee: vicariously liable employer sues employee (employer-passive liability, employee-active liability) (2) By Contract d. Example-P is driver of car at amusement ride that is negligently designed and not well supervised, she is rear ended by another careless driver, the jury finds that -P is not contrib. neg. -other driver is neg. -amusement park is also neg. damages fo $100K, under trad. doctrine of j+s liable, P can collect the entire $100K (but not more than that) from either the other driver or the amusement park, P will pick solvent D or the one easiest to collect from (amusement park), park thinks that other driver should really pay some of the $100K, but park can‟t sue other driver for contribution e. Justifications for Trad. J+S Liable (1) Both Ds negligent-both the driver and amusement park violated standard of care (2) Both „But For‟ Causes-injury would not have occurred without their negligence (3) P Not At Fault-between innocent P and negligent Ds, latter should pay since damages would not have occurred without each Ds‟ actions (4) If P was negligent, she could not recover at all since contributory negligence was a total bar to recovery 2. Contribution Among Tortfeasors Act-in the mid 1970s most states adopted some version of the Uniform Contribution Among Tortfeasors Act, it arose from the unfairness of J+S Liability a. Rule-where D paid more than its fair share, it could sue other D to collect anything in excess of its fair share (1) fair share is proportional according to relative degree of fault within the Ds (sort of comparative fault between Ds) or on a pro rata basis (2) D does not have to wait for until 2nd suit (doesn‟t have to be independent contribution action), D can make move for allocation of damages in the original lawsuit (3) No affect on P‟s rights because P still gets the full amount regardless (4) Example-(from above) amusement park pays $100K, then sues other driver for contribution, jury finds other driver 70% at fault
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and amusement park 30% at fault, so amusement park collects $70K from the other driver, amusement park did not have to wait for 2nd suit, after the court enters judgement for P against the Ds then either D could make a motion for allocation of degress of fault b. Quirk: Settlements-good faith settlements shuts off the obligation of the D to contribute to the other D, settlement takes D totally out of the lawsuit (1) Why?-we want to encourage parties to settle, this is designed to maximize settlement (2) Example-other driver settles for $50K, case proceeds to trial against the amusement park, judgement for P for $100K, P collects from the amusement park $100K-$50K settlement=$50K, amusement park can‟t sue Co-D for contribution even if jury would have would have found driver 70% ($70K) and amusement park 30% ($30K), thus amusement park can‟t recover the extra $20K it has to pay c. Quirk: Co-D will bear the risk of… (1) Insolvency (2) D beyond the jurisdiction of the court (e.g. immunity) not the innocent P (who still gets full recovery) d. J & S liability still the rule in some states when P is not at fault. 3. Comparative Fault and Joint+Several Liability with Negligent P and 2 or more Negligent Ds a. P is no longer innocent-choice as to who bears insolvency/immunity is between the Co-D and the P b. Courts are now engaged in determining relative degrees of faultformerly difficulty in doing so was the reason to avoid proportionate liability c. Majority Rule: Most courts have held that P should be able to collect all her damages from the solvent/non-immune Co-D except those attributed to her fault, i.e. though P is negligent she still collects from the Co-D who can pay the full amount (1) example-P 10%, other driver 70%, amusement park 20%, P will still get 90% of the total damages under j+s liability even if one of the Ds can‟t pay, is bankrupt, is immune, is out of the jurisdiction of the court (2) Disney World v. Woods (FL)-P injured in Grand Prix Ride when she was rammed by her fiancé who was her husband at time of trial, sued Walt Disney World, cout found: -P 14% at fault, P‟s spouse 85% at fault, Disney, 1% at fault -P and D are married, can‟t collect damages from spouse -J+S Liability is rule in FL at the time, so court enters judgement for 86% of $75K against Disney -Disney is responsible for both Ds‟ shares of fault, even though P‟s conduct was found to be 14 times more egregious than Disney‟s -Correct decision under the law, but isn‟t fair result and encourages joinder of deep pocket Ds (lurking issue)
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d. What should the rule of J+S Liability be After Comparative Fault? (1) Old justifications of J+S Liability don‟t apply now (a) P is not innocent, but also negligent (b) Jury now engaged in determining fault © P still getting full compensation despite being negligent and necessary cause of the injury (2) There are an infinite variety of approaches to the problems presented by comparative fault and j+s liability, but 3 main ones (a) Joint+Several Liability-Disney was correctly decided and should be the law, j+s should survive the emergence of comparative fault, really enterprise liability (b) Proportionate (Several) Liability-takes the approach that „stuff happens‟, each D is only liable for it proportionate share of fault, if P is injured by judgement proof D then it‟s the same as -being struck by lightning -being injured by mistake of D (physician, railroad) which is not negligent -being injured by an insolvent negligent Co-D, without any negligence by the other D problem: this approach ignores that Disney‟s neg was found by the jury to be necessary cause of P‟s injury © Percentage-Of-A-Percentage Approach-reallocate the unpaid part of damages between the paying D and P. (in Disney, out of $100K, $85K unaccounted for, reallocate so that P eats 14/15 of $85K and D pays 1/15 of $85K) (15 is their negligent combined) B. Economic Loss in the Absence of Personal Injury or Property Damage 1. Parasitic Rule (Majority): Only if P has personal injury/property damage, P can then recover for economic loss, recovery for purely economic losses is not allowed because its limitless a. 9/11 example: was it foreseeable to American Airlines-no, probably not foreseeable, but if it happened again than American Airlines would be liable to all the Ps that are indentifiable class such as restaurants, stock owners that suffered economic losses only (1) side issue: superceding cause-in the 9/11 example the terrorist criminal acts of war were a superceding cause, but the defendant Am. Air.‟s negligence was the failure to prevent these criminal 3rd party acts and this was his duty, so still liable (see Bell v. Board of Education) 2. Exceptions to the Parasitic Rule a. Contracts-contract between P and D establishes duty b. Special Professions-such as auditors, surveyors, termite inspectors, engineers, attorneys, notaries public, architects, weighers, telegraph companies, because 3rd parties will rely on their services (not just the client) so 3rd parties can recover for their losses
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3. NJ Rule: Liable for economic losses if D was in a position to particularly forsee particular P or identifiable class of Ps a. strict citation pg. 429: “D owes a duty of care to take reasonable measures to avoid causing economic damages aside from physical injury to particular Ps or Ps comprising an identifiable class with respect to whom D knows/has reason to know are likely to suffer such damages from its conduct” b. NJ tries to allow for it, but also limit it c. People Express Ailrines Inc. v. Consolidated Rail Corp. (SC NJ 1985)Conrail moves a rail car, it ruptures, chemical leaks out, 7 mile area had to be evacuated, airline at Newark airport has to shut down, airline sues for economic lossed from having to close their terminal C. Punitive Damages 1. Recoverable in Intentional Torts and Willful/Wanton/Reckless Acts 2. Main Purpose: Deterrence to specific Ds and all potential Ds where compensatory damages alone would not deter a. spitting in face case-antisocial, disgraceful, and deliberate conduct, but compensatory damages are null 3. Other Purposes a. Maintian independent action: Pinto case-have cozy relationship between the regulator and the regulatee so need to have another way b. Punish repeat conduct where the harm is hidden-BMW v. Gore-BMW taking cars with imperfections, repairs them and then sells them as new, Dr. buys one and discovers the problem, compensatory damages were $4K and punitive damages were $2M, this was probably a repeat practice and only found one violation 4. No burden on either the P or D to introduce evidence of D‟s wealth to determine the amount of punitive damages a. D‟s wealth is a mitigating circumstance, P doesn‟t need to prove it b. Either party can introduce it if they want c. Kemezy v. Peters (US App. 1996)-D claims P had to introduce evidence concerning D‟s net worth for punitive damages to see how much would make the desired effect on D, idea-diminishing effect of dollars (the more money you have, the more you need to pay to deter/punish) 5. Controversial/Big Issue to insurance companies and corporations-Why? (a bit of mystery) a. Infrequent-only 4.2% of tort verdicts result in them, median amount outside of CA is less than $30K, most high recoveries were for intentional torts or commercial fraud b. But Uncertain and Unpredictable-tough for insurance companies to know how to cover them, Ford in Pinto case nailed to $120M in punitive damages, so coverage issues produce tension between insurance companies and clients (have corporate attorneys and insurance company attorneys) D. Wrongful Death and Survival (see Handeland v. Brown under Imputed Contributory Negligence)
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1. Wrongful Death Statute-losses to other parties as a result of the death a. At CL, the tort case dies with the P b. Modern, all states have adopted some form of wrongful death (all vary) (1) 2 camps on who can recover: (a) loss-to-survivors (MD): D will be answerable in damages only if there is some beneficiary dependent upon the decedent for support (still very traditional no gay partners or close friends) (b) loss-to-estate: damages will be awarded against D even if no one was dependent on the decedent for support at the time of death (2) What can be recovered? (a) Loss of income after the death (b) Burial expenses © Loss of consortium (includes for companionship, affection and sex) 2. Survival Statute-what decedent would have been able to recover had he lived a. Measured from time of injury to the premature death b. What can be recovered? (1) Lost income before death (2) Medical expenses (3) Pain and suffering, including “pre-impact fright” that occurred in the millisecond before the collision which led to the death E. Financing Suits-Contingency Fee Arrangements 1. Each party pays its own way in tort actions except where statute provides, for example, that a. Loser will compensate the winner for their fees b. Frivolous litigation or frivolous defenses (rarely enforced) c. Loser will be assessed court costs 2. Contingency fees are an alternative way to finance litigation a. P‟s lawyer is paid by receiving a % of P‟s recovery, usually 33% (D‟s attorney is usually paid by the hour) b. P‟s lawyer loans the filing fees to P-recovers the loan if they win, doesn‟t recover anything if they lose c. In bulk amounts the costs paid by Ps and Ds are similar 3. Arguments For Contingency Fees a. Without it few could afford to pursue a tort claim b. Aligns the financial interests of the P and his attorney as opposed to the fixed fee service (get rid of the case as quickly as possible) or an hourly rate (keep case going to bill as many hours as possible, ordinary people can‟t adequately monitor their attorney‟s billing of hours) (1) slam dunk case-better off in other country, only take sure things (2) case involving risk-better in US, P‟s attorney knows that even if only gets paid in ½ of his cases, it will be good enough to finance other litigation 4. Arguments Against Contingency Fees
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a. % of recovery lawyer receives may not be correlative to the amount of effort b. P‟s attorneys fees have become phenomenally large given the explosion in the size of verdicts 5. Conclusion-they are a good idea, but regulate them V. Liability of Specific Defendants A. Limitation of Duty from Defendant‟s Identity (“Immunities”): these are affirmative defenses based on the identity of D or the nature of the relationship between P and D (not concerned with the nature of the conduct, causation, injury, or affirmative defenses based on P‟s behavior i.e. contrib. neg. or AOR), immunities have disappeared since the 1960s but there still are limitations when suing 1. Liability of Government and Its Officers a. Traditionally Sovereignly Immune (see Opinion of the Justices SC NH 1985) (1) Historical-king can do no wrong (2) Logical/Positivist-all rights come from sovereign, therefore can‟t be sued without its consent (3) Policy Considerations (a) would have to divert funds from other uses or require increase in taxes (b) state might be penalized for functions only it can perform (e.g. policing) © inhibit legislative branch, judicial branch, and executives from exercising discretion (e.g. court sues legislature could have problems with separation of powers) (d) impair functioning of courts and cause loss of public confidence b. Ps‟ Arguments Against Sovereign Immunity (1) people have a fundamental right to redress of wrongs (2) government has become bigger, more active, and causes more harm c. Waived Sovereing Immunity-Abrogated often by state legislatures, sometimes by the courts, but waived under qualifications, conditions, and limitations on damages (also must first go through the agency and statute of limitations imposed) d. Exception to the Abrogation, States Have Not Waived Immunity for… (1) Claims based on Exercise of Legislative or Judicial Functionswhy? (a) acts differ from private Ds (b) maintain separation of powers © don‟t want to discourage public service (2) Claims based on the performance of Discretionary Functions or duties e.g. making of basic policy decisions (3) Claims arising out of Intentional Torts including assault, battery, false imprisonment, false arrest, etc.
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(a) NH activist court allows for immunity only when the offending employee acted on reasonable grounds in believing his conduct was authorized (4) Limitation on Damages-$250K per P, $2M per incident, based on trade off between right to recovery and bankruptcy e. Federal Torts Claims Act (1) Allows that Ps can sue the US for any injury caused by the negligent/wrongful act or omission of any employee of the US while acting within the scope of employment under circumstances where the US, if a private person, would be held liable (a) this only waives sovereign immunity for negligent/ wrongful acts (b) does not waive immunity for strict liability claims, such as abnormally dangerous activities (d) process: file administrative claim with agency, federal courts have exclusive jurisdiction under FTCA (2) Exceptions to the FTCA, Immunity is granted for (a) Suits alleging wrong from Discretionary Function/Duty (whether or not its abused) (b) Suits claiming Intentional Torts (unless committed by investigative or law enforcement officers) (1). opposite of state‟s abrogation (2). historical reason-no vicarious liability since not within the scope of employment (c) Suits for transmission of mail (3) Not all regulatory functions are immune from suit-Gov‟t has to obey regs and statutes set in the past, not discretionary, no immunity (a) When it can be shown that the gov‟t violated a regulation or statute that is substantive or procedural then its not a discretionary function/choiceno immunity (b) In the area of discretionary decisions, try to draw a line between policy judgement and scientific judgement (c) Berkovitz v. US (SC 1988)-infant gets polio vaccine, contracts full blown polio and is paralyzed, sues NIH and FDA under the FTCA, P sues for the decision to license the labs to produce the vaccine and sues for the decision to release a particular lot of the vaccine, gov‟t claims that regulatory decisions ought to be immune under discretionary function exception since the FTCA already protects the legislature and judiciary and there are lots of administrative agencies which need to be protected in the same way, the court ruled that the discretionary function exception did not require the dismissal of the claim (1) if they were licensed w/o determining compliance or licensed but didn‟t comply with the
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standards – no immunity, there was a mandated procedure and policy course to follow which allows no discretion (2) if they did comply with the standards, but there was an incorrect determination as to what should be compliance standards – then questioning the manner and method of making determination, it‟s a question of policy judgement (discretionary) vs. objective scientific standards (non-discretionary), can‟t neatly divide the 2 (4) Most injuries that federal employees commit are covered by the FTCA e.g auto accidents, malpractice (a) What gov‟t is saying by waiving sovereign immunity is that we can be sued like any other employer under vicarious liability (b) But vicarious liability is stict liability, which doesn‟t count under the FTCA? Traditionally, assume that vicarious liability is not strict liability, its something else f. Governmental and Proprietary Functions (1) Rules (a) Governmental Function-immune from CL tort action (but if gov‟t function then flows into State Tort Claims Act) (b) Propietary Functions-town is liable as if they were a private D (2) Definitions (a) Government Function-municipailities act as instruments of the state and do so for the general public (b) Proprietary Function-soley for the benefit of the municipality and its residents, going into what private defendants normally do and competing with them, e.g. electric utility companies (1). if the private utility had no limits to their liability, but the gov‟t-owned one had immunity (no liability at all), it would have an unfair advantage, so when sovereign immunity was still intact the courts looked for other ways to circumvent SI (3) Test: whether it was so essential, necessary, vital, or traditional for the government to perform the task that it ought to be immune for the methods it uses (a) very inconsistent results-road in park is proprietary, outside of park its governmental, sewers could go either way (b) Gretkowski v. Burlington (US APP 1998)-P walking along bike path owned by Burlington, city claims municipal immunity since the bikepath was a governmental function, P claims that the bikepath was not so necessary
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and vital that the city should be immune, court rules it‟s a governmental function since the bikepath was equated with a highway and its operation most closely resembles that of a park/recreational area, which are governmental functions g. Immunity of Government Officials: Absolute and Qualified Immunity: these are kinds of immunity based on the function of the gov‟t employee who commits the tort, certain officers and officials have immunity that is different from regular the government immunity (1) Certain Kinds of Gov‟t Officers Get Absolute Immunity (a) President-for acts during his term in office (b) Legislatures on the legislative floor and related responsibilities (not press conferences)-speech and debate clause (c) Judges on the bench (d) Prosecutors (e) Executive agency heads in adjudicative role (2) Why Absolute Immunity? (a) *Procedural Effect (basic concern): with AI can grant a motion to dismiss to throw out the suit, with QI have to go through discovery which takes a while in these sorts of cases (perhaps the only real justification) (b) Lawsuits would stop the government from functioning (1). Clinton v. Jones-harassment happened before D was president, SC says that defending it won‟t impede his ability to perform the duties of his office, after 9/11 would probably reach a different decision now (c) Everyone is affected and would have a cause of action (d) Good people won‟t want to do the job (how are they differenct than CEOs and doctors-the size of the paycheck) (e) Losses: AI loses tort goals of compensation, deterrence, and responsibility (3) The President‟s Staff and Cabinet Members (who work directly with him) only get Qualified Immunity (a) 2 sets of precedents (1). Butz-Sec. of Agr. gets QI (2). Shoyer v. Rhodes-Gov. of OH only gets QI (3). Grovel-congression aides get AI (reasoning that congressman can‟t function without them) (b) Harlow v. Fitzgerald (SC US 1982)-P worked for AF, testified about cost overruns of C5A, embarrassed DoD, loses his job during RIF and complains, Nixon said he would look into it, tells aides to find him another job, aides object based on P‟s lack of loyalty and don‟t find him another job, P sues aides, Aides claim AI, court holds QI
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but changes the standard to defeat insubstantial claims without resort to trial (4) Standard of QI changes for Executive Officials (a) Traditional Test to Defeat QI: -D knew or reasonably should have known that their action would violate P‟s constitutional rights [or] -D took the action with the malicious intentention to cause a deprivation of constitutional rights or other injury (b) Problem (1). both prongs go to the subjective state of mind of the officer in the particular, P had to prove what was going on in the head of the executive (2). so even in the preliminary much discovery was needed to figure out subjective state of mind, this runs counter to our goal of protecting officials © New Test to Defeat QI: D doesn‟t violate established statutory/constitutional rights at the time of the tort that a reasonable person should have known (d) Result (1). No discovery until this initial determination has been made (2). Can grant motion for sj before discovery because at the time of the tort there was no clearly established rule B. Liability of Land Owners and Occupiers: Premises liability standard for when owner or occupier can be held liable deviates from typical, generic negligence standard, but stays within the negligence rubric; Traditionally at CL there are 3 categories in which persons visiting premises belonging to another person may fall as a matter of law (for the judge to decide) I. Invitee II. Licensee III. Trespasser 1. Liability to Trespassers a. Trespasser-on other‟s land without consent, invitation, or privelege and his presence is either unknown, or, if known, is practically objected to (burglar) b. Rules (1) Majority Rule: D liable only for WWR conduct (without any explicit reference to the discovery of the trespasser); No duty to take reasonable care for P‟s protection or even to protect him from concealed danger (2) RI Standard: Standard of care to trespassers only for WWR conduct only after they have discovered the P in a position of danger
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(3) Some Jurisdictions: Once the trespasser is discovered, they are then owed a negligence standard of reasonable care c. Standard of reasonable care not owed to trespassers (1) Why? - under a negligence standard, if D owned a lot of land with things such as abandoned minds it would be unreasonable for him to protect against everything (2) Better to set out a specific rule for trespassers (a) easier for the jury to follow (b) Ds will know their rights © easier for courts to grant directed verdicts d. Natural and Artificial Conditions (1) Ds owe a greater degree of care for harm caused from artificial conditions because they have created it and have notice of it so more liable for it (2) Cain v. Johnson (SC RI 2000)-decedent walking along cliff walk bordering the Atlantic Ocean at 2am, the cliff walk was only open from 6am to 9pm (except for fisherman), there were only 2 signs at the entrance and the exit of walk 3 miles apart which stated this, there were many other ways to enter and exit the cliff walk, spot where decedent fell was off the pavement but it was like a scenic overlook, there was an 8” cement wall which he slid through when the unstable land gave way, another person had died in the same spot and the city was supposed to erect a fence along the cliff walk but never did, wrongful death recovery denied (a) under trad. neg. test-D would be liable since D was neg., P was foreseeable, and injury was forseeable (a) issue 1: is P a trespasser?-court rules that decedent was a trespasser (RI-only duty for WWR when P discovered in place of danger) (b) issue 2: artificial or natural condition?-court rules that the eroded cliff was a natural condition, but the wall and paved trail should make it an artificial condition (D is inviting people to use this property) © Not correctly decided in terms of policy (1). Enterprise liability-party in the best position to avoid the accident is the city so provide incentives for them to fix it and they can spread the loss 2. Liability to Those Injured While on the Land with Permission or Privelege i.e. Licensees and Invitees a. Definitions (1) Invitee-on other‟s land for the mutual advantage of P and D by invitation, e.g. business transactor/visitor (2) Licensee-on other‟s land for their own convenience, pleasure, or benefit because they were given permission, e.g. social guests (including best friends and family), traditionally if you went to the mall but did not buy anything you were held to be a licensee
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b. Traditional Rules on duty of care owed-greater duty owed to invitee (1) Invitee-duty to use reasonable care, including to inspect the premises for hidden danger and to warn of it (2) Licensee-duty to warn of known dangers that P wouldn‟t have discovered themselves, don‟t have to inspect (a) Licensee in MS-more restrictive, only duty for WWR c. 2 Types of Invitees (R2d § 332)-same duty owed to both classes (1) Business Invitee-traditional view, person who is invited to enter or remain on land for a purpose directly or indirectly connected w/ business dealings w/ the possessor of land for a purpose in which he and the proprietor have a joint interest (ex.law school; person visiting w/ student will be considered a licensee in some juris.) (2) Public Invitee-modern view, a person invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public (e.g. deptarment store, playground) (a) willingness of shopkeeper to receive people not just for the purpose of buying, but because it benefits them (b) bathroom sign „for customers only‟ is there to negate that you could be an invitee if your not a customer (3) Martin v. B.P. Exploration and Oil Inc (CoA MS 2000)-P and driver stopped at gas station, P had to use the bathroom, she fell in leaving the bathroom, driver was a regular B.P. customer, driver testified that she was going to but something but she didn‟t, D claimed that P was a licensee, P claims that she was an invitee since the bathrooms were there to bring people into the station which benefits D, court reverses SJ and sent it back to the jury (a) Side issue: is classification a matter of fact (for the jury) or a matter of law (judge determines issue of duty)? (b) Most jurisdictions say question of classification is a matter of law (4) Police/Firefighters Classification-want to give them the greatest possible protection but they come at unexpected times (a) traditional rule-in an emergency situation they are licensees (1). not much time to inspect for the premises and put up warning signs (2). expect that the government will provide generous benefits to them (3). also analyze it under AOR or the fireman‟s rescue doctrine which limits the duty owed (5) Other government agents likely to come during business hours are invitees 3. Abrogation of the Trichotomy-it has been responsible for much confusion
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a. Historical Rationales for the Trichotomy: developed at time when SL was the standard and before Cardozo in Palsgraf-reasonably foreseeable P (1) Used to keep cases from a jury of entrants who will identify with injured P, powers that be did not trust juries (2) Burden of extra costs (insurance) (3) Ensure Predicability b. Modern Rationales for Dropping Trichotomy (1) Modern jurors are landowners themselves, not just entrants, and we trust juries everywhere else (2) Not absolute liability, D must breach reasonable care for liability (3) Complexities of urban life does not fit into 3 pigeonholes, e.g. real estate agent wonders onto another‟s land (trespasser) then discusses business with the landowner (invitee) then discusses college that they attended (licensee), thus standard of care owed may vary with time c. Newer Rule (1) liability to all visitors on land of another (licensees and invitees) should be determined by a standard of reasonable care (a) not SL-there must be a breach of the standard (D is not an insurer) (2) Keep the distinction for the duty owed to trespassers (WWR conduct) (3) Nelson v. Freeland (SC NC 1998)-D requested that P pick him up for business meeting, P trips over D‟s stick on porch and sues, is P a licensee (done for him as a friend) or invitee (connected with the business arrangement), 3 appellate judges reach different conclusions, abo d. Result: ½ have abolished it-trend in the 70s and 80s to abolish it and go to a standard of reasonable care, but has slowed in the other 25 states subsequently VI. Products Liability A. Overview of Products Liability 1. Large number of claims, public controversy, these are the prototypical cases of our time e.g. tobacco, lead paint, phen phen, asbestos 2. Many separate theories of recovery even in typical cases (3rd Restatement is trying to wipe that out and exclude all other causes, not going to wipe out misrepresentation of civil conspiracy claims), implied warranty theories apply where strict liability doesn‟t, juries get fired up over negligence cause of action I. Strict Liability (defect is key) -manufacturing defects -design defects -inadequate warning defect II. Negligence -lack due care in manufacturing defect -negligent desing of a product
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-negligent failure to warn of defect III. Contract Claims -express warranty(require additional facts) -implied warranty of fitness(require additional facts) -implied warranty of merch(very similar to strict liability standard B. Development of Products Liability 1. Winterbottom v. Wright (England 1842)-No duty owed by the manufacturer/retailer unless there was privity (a direct contractual relationship) with P, even if P could prove negligence 2. MacPherson v. Buick Motor Co. (NY 1916)-Privity is no longer required as long as product is negligently manufactured; the old rule required both negligence and privity but had an exception for „imminently dangerous‟ products, e.g. poisons, explosives, where recovery was allowed w/o privity, essentially Cardozo overrules Winterbottom without saying so by stating that anything negligently made is „imminently dangerous‟ so privity is not required (exception becomes the rule) 3. Chysky v. Drake Brothers (NY 1923)-Implied Warranties only exist to parties in Privity Contractual Theories of Recovery a. Express Warranty (UCC 2-313)-explicit guarantee, affirmation, or promise made by the seller which relates to the goods and becomes a part of the basis of the bargain that the goods will conform to the guarantee, affirmation, or promise b. Implied Warranty of Merchantibility (UCC 2-314)-goods must be fit for the ordinary purposes for which goods of that description are used c. Implied Warranty for Fitness of Particular Purpose (UCC 2-315)-if the buyer makes known to the seller the particular purpose for which the goods are required and buyer relies on the seller‟s skill/judgement to select the goods, there is an implied warranty that the goods shall be fit for such a purpose 4. Escola v. Coca Cola Bottling Co (SC CA 1944)-Strict Liability Addressed a. Concurring opinion of Justice Traynor: Strict Liability should apply when the manufacturer places upon the marketplace a product, knowing that it is to be used w/p inspection, that proves to have a defect that causes injury to people b. Reasons for Strict Liability (1) Manufacturer is in the best position to minimize the loss since it knows the product and can make it safer (Enterprise Liability), consumers don‟t inspect the goods but rely on manufacturers and advertisers (2) Manufacturer can spread the loss (Enterprise iability)-it‟s a disaster for P, it‟s a cost of business for manufac. (3) Proof Problems-RIL doesn‟t work all the time and some injuries occur w/o manufac‟s neg. (a) side issue-In Escola, the majority finds liability under Negligence under RIL, but they had to fudge the test since
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D did not have exclusive control of the instrumentality (2nd element fo RIL) (4) Suing the Retailer would be Circuitous (indirect, roundabout) 5. Henningsen v. Bloomfield Motors (NJ 1960)-2 important holdings: a. Warranties (Express and Implied) extend not just to original purchaser but to Reasonably Forseeable 3rd Parties-the fall of the citadel of privity, this really is SL (duty to the world at large) b. Striked down disclaimers on the grounds that its Unconscionable-such a disparity, adhesion contract, upset it on public policy grounds 6. Greenman v. Yuba (SC CA 1963)-Strict Liability Adopted, 19 years after Traynor raised the issue in Escola, the court adopts same test as mentioned before B. Restatement of Torts 1. Restatement 2nd 402 (A) a. This is how courts moved to SPL, 49 of 50 states adopted it, states borrowed from each other and interpretations of it became like a national standard b. One who sells any product in a defective condition unreasonably dangerous to the consumer or his property is liable for physical harm caused to ultimate consumer/user or his property if (1) seller is engaged in the business of selling such products (i.e. not a garage sale) (2) product reaches the consumer w/o substantial change in the condition in which it was sold it doesn‟t matter that… (3) seller has exercised all possible care in preparation and sale (i.e. negligence is not required) (4) user/consumer has not bought the product from or entered into any contractual relation with the seller (i.e. privity not required) 2. Restatement 3rd: Products Liability a. Replaced 2nd in 1998, has been adopted nowhere in total, has been incremental adoption of specific parts (this is new law-learn it because it‟s marketable commodity) b. One engaged in the business of selling or distributing products who sell or distributes a defective product is subject to liability for harm to persons or property caused by the defect c. Categories of Defects (1) Manufacturing Defect-product departs from its intended design though all possible care was exercised (2) Design Defect-forseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, product as it stands is not reasonably safe (3) Inadequate Instructions/Warnings-forseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings, product as it stands is not reasonably safe
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C. Recovery for Economic Loss: The Intersection of Tort & Contracts 1. General Rule: No recovery for economic losses under 4.02A, general rule from the Economic Loss Doctrine a. Comercial losses can be bargained for, better left to negotiation b. For economic losses left with contract claims (Imp. and Exp. War.) 2. Minority Rule: Can recover for economic losses from product under 4.02A if it is loss that arises out of the need to prevent likely or imminent personal physical injury a. 80 South Eight Street Limited v. Carey Canada Inc. (SC MN 1992)- P owns 52 story center that was built with asbestos, suffered economic losses from its removal and sought to hold the manufacturer liable, court held that the claim should not be barred because it was not just about recovering for economic losses for a product that failed to perform its duty (fire protection) but rather was a claim based on preventing personal injury to those who might come in contact with the asbestos 3. Contrasting Implied Warranties and Strict Products Liability a. Statute of Limitations (1) short for torts (3yrs), long for contracts (10-15 yrs) (2) tort runs at the time of the injury or when P realized/should have realized the injury whereas contract runs at the time of the sale b. Implied Warranties Exclude/Modify Consequential Damages (1) limitation of commercial/economic damages in not unconscionable (2) limitations of personal injury is unconscionable (UCC 2-719) c. Contrib. Neg. is a defense to Imp. War. claim d. Punitive Damages may be available in tort claim, not available in basic contract claim D. Defects are Key: Defect is to Strict Products Liability what Unreasonableness is to Negligence 1. Definition of Defective-defective when product is not reasonably fit, suitable, or safe for the ordinary or forseeable purpose for which its sold (really the same as Imp. War. of Merch.) 2. Test for Strict Products Liability: P doesn‟t have to prove fault, but must prove defect a. product was defective b. defect existed at the time it left the manufacturer‟s control c. defect proximately caused the injury to a reasonably forseeable or intended user 3. 3 Types of Defects I. Manufacturing Defects II. Design Defects III. Failure to Warn Defect 4. Manufacturing Defects-product departs from its intended design, fails to meet the manufacturer‟s specifications
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a. Rule-while P doesn‟t have to prove a specific defect, he must show that something failed, simply showing injury is not enough, there are 3 specific ways to prove a manufacturing defect (1) Direct Evidence-expert testimony, witnesses (2) Circumstantial Evidence-age, prior use (draw inferences) (3) Negate Other Causes-not possible anyone else broke it b. Role of Res Ipsa Loquitur (1) Traditional RIL is not appropriate for SPL-exclusive control of the instrumentality is usually missing for products liability cases, (Escola fudged this requirement, as did Colmenares, and its dropped from the 3rd Restatement, in Mrylak chairs normally just don‟t collapse but its still missing this requirement) (2) Indeterminate Product Test (3rd Res.) is based on RIL, use is limited to cases in which P can‟t prove a specific defect (a) used to prove that the defect was present at the time of the sale and that it was the proximate cause of the harm (b) Test: it may be inferred that P‟s harm was caused by defect w/o proof of specified defect when (1). incident is of a kind which ordinarily occurs because of a defect and (2). not result of causes other than product defect exisiting at the time of the sale (c) Mrylak v. Port Authority of NY (SC NJ 1999)-heavy set P in adjustable work chair which collapses, expert can‟t duplicate the accident and can‟t find a defect, other people used the chair during different shifts, may have been other things that caused the chair to collapse, court adopts Indeterminate Product Test and P could use it at retrial 5. Design Defects-product was what manufacturer intended to produce but the manufacturer could have avoided a forseeable risk of harm by adopting a reasonable alternative design 2 Main Tests for Design Defects a. Consumer Expectation Test-product is in a condition not contemplated by the ultimate consumer that makes it unreasonably dangerous to the consumer b. Risk Utility Test-Balancing test of whether the risks of the product outweigh the benefits, similar in nature to Learned Hand‟s CBA, this is really a negligence test Factors to consider (1) Usefulness of the product (2) Likelihood and severity of the danger posed by design (3) *Feasability of an alternative design (4) Financial cost of an improved design (5) Ability to reduce the danger without impairing usefulness or making it too expensive
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(6) Feasability of spreading the loss by increasing the product‟s price c. Alternative Designs (1) Majority Rule: P does not have to prove an alternative design in order to recover (a) may be no way to design the product safely and D should still pay for damages (b) burden on P to have to retain an expert witness to testify to the alternative design otherwise (c) its still a factor under the RUT rd (2) 3 Restatement says that P must establish the availability of an alternative design to recover d. Hybrid/Modified Consumer Expectation Test of Design Defect (CT Test)-keep the Consumer Expectation Test but the jury can consider Risk Utility Factors, Trial court decides what the appropriate instruction is (1) What‟s the difference-difficult to argue the CET for tobacco post 1965, but under the hybrid test jury will hear about the RU factors and there is a possibility that jury could find a violation of design defect (2) Dotter v. Chicago Pneumatic Tool (SC CT 1997)-grinders receive vascular and neurological injury from pneumatic hand tool vibrations, experts testify to large # of vibrations, P presented no evidence of feasible alternative design, CT upholds verdict for the Ps, CT keeps the ordinary CET test but also adopts the modified CET test including RU factors, it is up to the trial court to determine which instruction is appropriate in light of the evidence presented e. „State of the Art’ Defense-is there a defense because D corresponds with the State of the Art at the time the product was made? (1) Majority: No, SotA is not determinative, but admissible (2) Minority: SotA is totally irrelevant (late 60s), powerful incentives for people to conduct research, enterprise liability (2) What‟s the Appropriate Definition of SotA (a) No-Compliance with Industry Custom-not a defense, evidence of custom is admissible (e.g. other 799 manufacturers were doing it) (a) Yes-Level of relevant scientific, technological and safety knowledge existing and reasonably feasible at the time of the design i.e did anybody know at that time or understand the risk, admissible, not determinative (1). show if there is a feasible alternative design under the RU test (back doored it-jury will at least here about SotA and alternative design) (2). show what legitimate consumer expectations are
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6. Failure to Warn Defects-product was what was intended but forseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings, product as it stands is not reasonably safe a. Failure to Warn is a boom area of law (1) Most cases involving warnings are for things as obvious as Liriano (2) Most warnings don‟t have an impact-there are many reasons why consumers don‟t read or understand product warnings (3) This is often a way to find for P on enterprise liability grounds (4) Many times these cases ought to be Design Defect cases based on either of the 2 tests a. There are 2 Main Purposes to Provide Warning (1) Inform of the Existence of Risk/Danger so that the consumer can make an informed decision (similar to CBA), e.g. “dangersteep grade” and artificial sweetner packets (2) “Comment J”-Inform of an Alternative/Safer Way to Use the Product so that the consumer need not abandon the activity because the instructions tell how to use the product safely, e.g. “steep grade ahead-follow suggested detour to avoid dangerous area” or “keep out of the reach of children” b. Rule: In Failure to Warn cases, consumers must be both [1] made aware of the risk and [2] made aware of a safer way of doing it; “Obviousness” does not substitute for duty to provide warning (1) Basically stands for Enterprise Liability-some Ds are in a better position to understand the risk than P (Escola) (2) “Obviousness” of danger/risk and alternative way to proceed safely is a question for the jury; big trend in tort law is to let the jury decide, judges should be wary of taking issues of liability from the jury (3) The law protects not only the common average person, but also protects people with less knowledge (look at the fullness of the circumstances), court in Liriano re-examines Lorenzo v. Wirth and says now that the extent of liability is not going to be determined by the „common Bostonian‟ (4) Liriano v. Hobart Corp. (US App. 1999)-P was a 17yr old recent immigrant to the US, he was working grinding meat with a grinder whose safety guard had been removed by P‟s employer (can‟t directly sue employer because of worker‟s comp), D claims that since the danger was obvious there was no duty to warn and that there was no „but for‟ cause because even if there had been a warning the employer would still have taken off the guard and P would still have been injured (a) Issue 1: Obviousness-court rules that even if P knew the risk because it was obvious, a reasonable jury could find that there exists people for whom don‟t know that there was alternative/safer way to use the product, therefore the
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obviousness did not substitute for warning that D had a duty to provide (b) Issue 2: Causation-court says jury could infer „but for‟ cause from the existence of a strong casual link (c) side issue: j+s liability: originally fault distributed 95%employer, 5%-manufacturer, P then given 33% at retrial, under j+s liable D would be liable for all of it – P‟s % (d) side issue: type of defect-if the grinder had been made without a guard than case would go as a design defect c. Causation in Products Liability Cases-3 Approaches (1) Cause-In-Fact requires „But For‟ Causation-i.e. w/o the failure to warn P would not have been injured, burden of proof on P, on Liriano facts, regardless of the warning P may have operated the machine and received injuries (2) Decide whether reasonable person in P‟s shoes would have gone forward (see Canterbury v. Spence) (3) Let the Causal Link be evidence of „But For‟ Causation and establish a rebuttable presumption of Cause-In-Fact, shifts burden to D to rebut the inference that D‟s failure was in fact a „but for‟ cause (a) side note: other cases where court shifted the burden to D include Summers v. Tice, Ybarra v. Spangard, Market Share Liability d. Product Modifications (1) General Rule: Unforeseeable product modification/alteration is a defense (negates defect or causation), foreseeable product modification/alteration is not a defense (a) based on the traditional rules of superceding cause (b) in the Liriano case, the grinder was not defective at the time it left the manufacturer‟s control, the cause of the injury was not a defect but removal of the guard, an intervening cause must be unforeseeable to be superceding (which breaks the chain of causation), it was foreseeable that the employer would remove the guard so its not a superceding cause e. Failure to Warn for Pharmacuetical Products (1) “Comment K”- Warning for Unaviodably Unsafe Products (a) some products can‟t be made safely, unsafe but no design defects (b) risk utility analysis says that they still ought to be marketed, e.g. rabies vaccine (c) if they are marketed, have to warn the consumer so that they can make an intelligent decision (2) Traditional Rule-Learned Intermediary Doctrine: pharmaceutical companies satisfied duty to warn by warning
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doctors of the risks (not the patient) because they are the relevant decisions makers who will prescribe the drug Justifications: (a) Reluctance to undermine the doctor-patient relationship (b) Adage Dr. knows best (c) Inability of the manufacturer to communicate with patients/consumers (d) Warning information is too complex (3) New Rule: If the pharmaceutical manufacturer advertises the product directly to consumers than it has a duty to warn the consumer of the risks Justifications (a) Patient is now an active participant (b) Decision making process may be partly taken away from the doctor esp. in the case of lifestyle decisions (e.g. birth control pills) (c) Manufacturers have mass communication ability if they can advertise the product (d) Consumers must be able to understand the information if the manufacturer is directly engaging him (e) Manufacturers listed the benefits but not the drawbacksmisrepresentation by omission (f) Perez v. Wyeth Labratories (SC NJ 1999)-P had norplant implanted by her doctor, caused problems at removal, had been a campaign directed at the consumer by the manufacturer, no warning of complications given (4) Adequate Warning: In the case of failure to warn for pharmaceutical products, compliance w/FDA standards should be virtually dispositive i.e. most of the time compliance with FDA regs is adequate warning for SPL (a) Note that ordinarily compliance with statute is not a defense since we don‟t trust legislatures and regulators that far (5) Causation-though the manufacturer failed to warn the ultimate consumer, is the doctor who prescribed/implanted Norplant a superceding cause?-NO because under the rules of PC when an intervening cause is foreseeable its not superceding; not only was it foreseeable the doctor would prescribe/implant it, the manufacturer wanted the doctor to do this E. Role of P‟s Conduct on Recovery 1. Product Misuse as a Defense to SPL-4 Approaches a. Negate Causation: Superceding Cause (Burden on P) P‟s misuse caused the injury (not the defect) so P‟s misuse was a superceding cause; when we view misuse as a matter of causation unforeseeable misuse breaks the chain of causation, its not an affirmative defense
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b. Negate Defectiveness: “Abnormal” Misuse (Burden on P) look at whether or not a product is defective-“ a product is not in a defective condition when its safe for normal handling and consumption”, P‟s misuse negates the element of defectiveness, not an affirmative defense -forseeable/normal misuse is not a defense (most) -abnormal misuse is a defense c. Freestanding Defense of “Products Misuse”-separate, distinct affirmative defense with burden on D to prove (courts don‟t know what they are doing) d. Contributory Negligence can be a Defense (Aff. Def.-Burden on D) -General Rule: Any contributory negligence not based on failure to discover/inspect/guard against defect will work as a defense against SPL No Defense (1) Failure to discover the defect (2) Failure to guard against the possibility of a defect (3) Ford Motor Co. v. Matthews (SC MS 1974)-P buys tractor, standing beside it when he starts it, ran over him, P alleges defective safety switch, Ford knew about it, sent letter to dealer to fix it, they didn‟t, P never warned, Ford claims that dealers were superceding cause (no-foreseeable that they would not fix it) and P was contrib. neg. (no-see above) Is a Defense (1) Voluntarily and unreasonably proceeding in the face of a known risk (overlap area between contrib. neg. and AOR) (2) Generic Contrib. Neg.- i.e. general lack of due care for own personal safety (3) West v. Caterpillar Tractor Co (SC FL 1976)-woman looking through purse and not paying attention, grader which had previously passed her backed up over her, her contrib. neg. didn‟t fit any of set out categories, court finds that her type of conduct will preclude recovery 2. Contrib. Neg. and Contract Claims a. P can have more than 1 cause of action, such as can sue under implied warranty or merchantability b. Rule: Contrib. Neg. Is a Defense to a Contract Claim