Torts Outline-- Prof - Download as DOC by enp16801




Sources of authority in torts cases: public policy; social policy; public safety; Restatement 2nd; common law; UCC; morality; law
journals; laws of nature; tradition; customs; economic theories (efficiency, equity); decency; Constitution; modernization; public duty;
national pastimes; community; history; deterrence; preservation of human life; ethics; social interest; criminal statutes; regulations;
Roman law; Hebrew law; Christianity.



Battery and Consent
* STANDARD: Vosburg v. Putney (1891)
Facts: While at school, D kicked P in the leg, and the kick being found the exciting cause of P’s injury, P’s leg became diseased and lost
the use of his leg.
Holding: D liable for committing a battery and liable for all resulting damages, even though P’s leg was in a weakened condition
unbeknownst to D. D did not intend harm, but is still liable, b/c if act is unlawful, intention to commit act unlawful. Act of kicking P was
unlawful b/c it took place in the classroom, not on playground (violation of classroom order).
Wrongdoer liable for all injuries, whether or not they could/not be foreseen (<--true in most states).
Key point: In an action to recover damages for an alleged assault and battery, the victim must only show either that the alleged
wrongdoer had an unlawful intention to produce harm OR that he committed an unlawful act. Harm need not be contemplated, or even
foreseen. Actor must take victim as s/he finds him/her ("thin skull" doctrine).
(playground--“implied license”?)

* MEDICAL CONSENT: Mohr v. Williams (1905)
Facts: P went to doctor, D, with sore right ear. P consented to operation on right ear; D operated on left ear because discovered that it
was in much worse condition. Surgery went smoothly. D argued consent was implied.
Holding: Liable. Unless condition discovered during operating endangered life of patient, NO CONSENT to a different operation. P put
in danger by being put under twice.
Key point: Any unlawful or unauthorized touching of another person constitutes an assault and battery. If act was unauthorized or actions
exceed consent given, act was wrongful and hence a tort. If an emergency condition had been found, no liability.
Policy reaction: Doctors now require patient to sign broad blanket consent forms to any remedy physician deems necessary.

* PHYSICIAN’S DUTY TO WARN: Canterbury v. Spence (1972) Issue=informed consent (duty to warn) & nondisclosure
Facts: Doc did not reveal all details and risks of operation (paralysis in 1% of operations performed), although patient did not ask. Doctor
told patient’s mom that operation was serious, but not more so than any other. Operation successful, but patient fell out of bed, suffering
complete paralysis. Second operation brought back to semi-state of health.
Holding: Potentially liable. Remand for jury trial. Violated physician’s duty to disclose. (the reasonableness of Dr.’s decision not to
disclose risk should be determined by jury; to be liable, a physician must not have disclosed a fact that a reasonable person would attach
significance to.)
Key point: Physician’s duty to disclose is to volunteer, if necessary, information needed by the patient to make an intelligent decision;
“all risks potentially affecting the decision must be unmasked.” Consent not enough if not informed. Exceptions: if patient is unconscious
or if risk-disclosure will emotionally harm patient).
Ultimately, this duty is a matter for courts to decide, but typically involves issue of causation (that failure to warn proximately caused
injury). Matter for jury.

Facts: P, 18, entered a boxing match at a carnival, for which he paid a separate admission fee. Suffered injuries for which he seeks
compensation. D had no license to run boxing ring, which had no safety features.
Holding: Potentially liable. Remand for jury trial. Consent is not bar to recovery. Promoter must be held liable as principal, for public
policy reasons, and consent of others to participate in his illegal activity, does not legitimize action.
Key point: Public policy at work here. If the state’s interest is in protecting a class of persons from its inability to appreciate the
consequences of such an invasion of an interest, the assent of a member of the class to the invasion is not consent. Policy concern to
protect ppl from inhumane, unsanctioned, dangerous fights overrides P’s consent. Rest. would generally say no—but allows for state
regulation. A member of a class protected by a law cannot consent to an act that is contrary to the law.

Nonconsensual Defenses
* INSANITY: McGuire v. Almy (1837) (Dominant Approach)
Facts: P is nurse to D, who is insane. D behind door, threatening if P comes in, she will be killed. P went in and is struck w/ chair leg.
Sued for assault and battery.
Holding: D liable.
Key point: Insanity is not a bar to civil liability, if the person intends to perform act. Like Vosburg, intent to do harm not necessary,
just intent to perform act. B/w two parties, innocent one should not bear the brunt of the cost for the injury. Public policy: you cannot strip
those who care for the mentally ill of all their civil rights just because they took job. n.b. — court does not decide a mentally ill person’s
liability for negligence, just intentional act. (Should insane be held to rational standards? Would the nurse assume the risk?
n.b. — Policy reasons for holding a permanently insane person liable: (1) Where one of two innocent persons must suffer a loss it should
be borne by the one who occasioned it; (2) to induce those interested in the estate of the insane person (if he has one) to restrain and
control him; (3) the fear an insanity defense would lead to false claims of insanity to avoid liability. Bruenig (1970).

* SELF-DEFENSE: Courvoisier v. Raymond (1896) Law’s concern /attempt to contain violence
Facts: P’s jewelry store broken into by two men. He chases them into street, where they were joined by three more. P fired shots into air
to scare them. P shot police officer by mistake, thinking he was one of the rioters and thinking his life was in danger.
Holding: D not liable.
Key point: Self-defense available when person reasonably believes his/her life to be in danger, even if belief is mistaken. Even in self-
defense, you must calibrate the degree of violence to the degree of threat.

* DEFENSE OF PROPERTY: Bird v. Holbrook Eng (1825)
Facts: D set up a spring gun (booby trap) in his garden which shoots D in the knee. D claimed not liable for P’s injury b/c he is a
Holding: D liable. Must give notice/warning of risk.
Key point: As much as the law overtly sought to protect people and their property, the law mandates that you calibrate violence.
NOTICE. Gun was not deterrent, but rather to harm (excessive in these circumstances). Can only put up gun if in your house at night.

* DEFENSE OF PROPERTY: Katko v. Briney (1871)
Facts: (D) set up spring gun in bedroom; (P), a robber, broke into house, got shot in the legs, and got permanently injured.
Holding: D liable, must have calibrated to meet degree of posed threat <--applies even to someone burglarizing house!
Key point: Reasonable force allowed in protection of personal property, but never force that will inflict fatal or great bodily injury.
Spring guns prohibited for protection of property. Criminal intent of trespasser immaterial. Can't set up gun when you're not there.
Warning not enough. ** Different from RS below

Restatement §85. Use of Mechanical Device Threatening Death or Serious Bodily Injury:
The actor is so far privileged to use a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land
or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact,
such that the actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm. [Deadly
force is permitted in defense if the actor would be so permitted in person-- much more permissive and allows spring guns—actor
not liable for injury/death caused to intruder]
Restatement §143. Use of Force to Prevent a Felony. To prevent a felony, a “peace officer or a private person” may use force “which
is not intended or likely to cause death or serious bodily harm,” as long as lesser force cannot achieve the same end. When the felony
threatens death or serious bodily harm, or involves breaking or entering a dwelling, the actor may use force “intended or likely to cause
death or serious bodily harm,” again if lesser means to prevent the crime are not available. This is a very permissive view of the use of
force by private citizens. [Only lesser force is permitted in defense of felonies not threatening to human life.]

Facts: On the advice of counsel, P, an employee of D, kept $50 given to him by D to pay other employees b/c he arguably believed he
had a right to keep it (had consulted a lawyer). (P’s own salary had been docked the same amount for an alleged loss.) D hit him. P sued
for injuries.
Holding: D liable. No right to recover one’s property/money through force.
Key point: If one has entrusted one’s property to another person, who honestly though erroneously, claims it as his own, owner has no
right to retake it by personal force. Force may only be used if: (1) owner clearly possesses property; and (2) it is a purely wrongful taking,
w/ no claim of right.[now incorporated into Rstmnt].

* PRIVATE NECESSITY: Ploof v. Putnam (1908)
Facts: P on lake w/ wife and kids in boat when storm came up. To protect the boat and his family, P moored boat to D’s dock. D’s
employee unmoored boat, causing it to be destroyed and person to be injured. P sued for damages.
Holding: Potentially liable. Remanded for jury to determine if there were any natural objects that would have afforded the same
Key point: Necessity justifies the entry upon the land of another, especially when human life is at stake, but also to protect property.
Human life>property.
Cardozo: "Rights and duties in systems of living law are not built upon such quicksands." (Heinz)

* PRIVATE NECESSITY: Vincent v. Lake Erie Transportation Co. (1910)
Facts: D moored boat to P’s dock to discharge cargo for P. By the time D was done unloading, a storm had blown up such that D could
not move his boat. Damage occurred to dock. P sued for monetary damages.
Holding: D liable. Ship owner must compensate dock owner for injury inflicted.
Key point: Ordinary prudence and care required, not superhuman care, when deciding if alternative could have been found. One can
prudently and advisedly avail yourself of another’s property for the purpose of preserving more valuable property, but btw. the two
parties, D must pay. Necessity permits protection, but D still liable for damages. (today’s issue—whose insurance coughs up $.
Conditional Privilege.
Dissent: D was operating under due care and should not be held liable.
[n.b. — in Ploof, the plaintiff is the one trying to use someone else’s property. in Vincent, the plaintiff is the one whose property is being
n.b. — Public Necessity. When can private property be destroyed to protect the interests of the community at large? Generally, P will not
be able to recover, as the person who destroyed property did so for the public good. We may want to have different standards, though,
depending whether the property would have been destroyed anyway (as in a firebreak) or would not necessarily have been destroyed (as
in property falling into enemy hands during war).

B. Emotional and Dignitary Harms
* OFFENSIVE BATTERY: Alcorn v. Mitchell (1872)
Facts: Alcorn (D) spat in the face of Mitchell (P) in court room. P recovered $1000 in punitive damages. D appealed, saying damages
Holding: D liable.
Key point: Punitive damages may be awarded for highly offensive conduct, to provide alternative redress to physical retribution. This
was pure malignancy, malicious and willful.

Restatement (18) Offensive Battery: actor is liable if he (1) acts intending to cause harmful or offensive contact or imminent
apprehension of the contact and (2) offensive conduct results directly or indirectly. Extends beyond cases of only direct contact to include
contact w/anything closely attached to other person which is considered a part and which is offensive to reasonable sense of dignity.

* FALSE IMPRISONMENT: Coblyn v. Kennedy (1871)
Facts: P, a little 70-year-old man, approached by a store employee and questioned about his ascot, which he owned, in front of 8-10
people. P followed employee back into store, but experienced chest and back pains on stairs. “Loomed up.” Salesperson verified that it
was his ascot, but P got very sick and was hospitalized. Sued for false imprisonment.
Holding: D liable. Employee’s failure to identify himself as employee and to disclose reasons for inquiry and actions, coupled w/
the physical restraint in a public place imposed upon the P (who is vulnerable as to not be able to resist showing of physical power,
given his age, strength, and health), could be said to constitute an unreasonable method by which to effect detention.
Key point: (1) Restraining one’s personal liberty by fear of a personal difficulty is false imprisonment. (2) Shopkeeper’s decision to
detain a person for suspicions of shoplifting should be subject to objective standard of a prudent and cautious person (merchant) (3) any
demonstration of physical power which only seems avoidable through submission. Court rejects subjective standard here (but takes into
account his age, stature). Probable cause for shopkeeper—let jury decide.

Facts: Two women and baby in car accident. Went to doctor’s office, but doctor refuses to treat them, and ordered them to wait outside.
Baby had fractured skull.
Holding: Doctor liable for conduct outrageous in the extreme. Court noted that it was appropriate to factor into the equation the special
duties that physicians owe their patients.
Key point: “Certainly a physician who is consulted in an emergency has a duty to respect that interest, at least to the extent of making a
good faith attempt to provide adequate treatment or advice. We think a jury could infer from the evidence that defendant willfully or
recklessly failed to perform that duty.” (could have sued for IIED, but it didn't exist yet)

Restatement §46- liability when a D's conduct is extreme and outrageous- and causes emotional distress and/or bodily harm (liable for
harm too). When conduct directed to 3rd person, actor liable if intentionally or recklessly causes severe emotional distress to members of
immediate family and anyone else present if distress results in bodily harm.
Most cases: only liability w/ extreme and outrageous conduct.- not enough for D to have acted with tortious or even criminal intent or that
he intended to inflict emotional distress, or even that acted with malice. Generally, liability is placed if an average person would find
conduct "outrageous"- does not extend to insults, indignities, threats, annoyances, abuse.(i.e. not just hurt feelings)

III. STRICT LIABILITY AND NEGLIGENCE: Historic and Analytic Foundations

* NEGLIGENCE: Brown v. Kendall (1850)
Facts: Two dog owners w/ a dog each out walking. Dogs get into fight. One dog owner steps in to separate dogs using a stick. Other dog
owner gets hit accidentally in the eye w/ the stick.
Holding: Probably not liable. Remand for new trial. Burden of proof on plaintiff to show lack of due care. Facts of case insufficient.
Key point: If injury is accidentally inflicted while performing a lawful act, no liability, unless done in the want of exercise of ordinary
care. Bar to recovery for contributory negligence.

* NEGLIGENCE: Fletcher v. Rylands I (1865)
Facts: Water seeped from D’s reservoir onto P’s mine shafts through old mine shafts on D’s land of which he was unaware when
constructing the reservoir. Sued for damages.
Holding: D not liable. No trespass.
Key point: No negligence, therefore no liability. Test for trespass: (1) act doing the damage must be immediate (which this was not); (2)
no nuisance, in that there was nothing injurious to the senses, in the act itself.

* STRICT LIABILITY: Fletcher v. Rylands II (1866)
Holding: D liable.
Key point: If you keep something on your land and it escapes, you are liable. Contributory negligence or an act of God may limit or
excuse liability, but neither is applicable here. Prima facie answerable for all damage that is a natural consequence of something brought
onto the land. No negligence inquiry.

* STRICT LIABILITY: Rylands v. Fletcher (1868)
Holding: D liable.
Key point: Court makes distinction btw. natural (stream) and unnatural (reservoir) uses of land. If one is using land naturally, and harm
results, no liability. If one is using land unnaturally, however, and harm results, liability. Move towards strict liability standard. Public
policy: dam failures are a big problem at the time; court needed to address the issue. Strict liability for all damages.

n.b. — Personal injuries under Rylands v. Fletcher. Courts unclear whether Rylands rule of strict liability applied to personal injuries, but
courts gradually began to indicate that strict liability applied to property, while negligence required for recovery for personal injury.

* NEARLY STRICT LIABILITY: Stone v. Bolton (1950)
Facts: P lives on a road near a cricket field. Ball hit out of field by visiting team member and hits P. Hit was particularly long; cleared
12-foot fence. Only six or seven balls had ever cleared the fence. Sued for public nuisance and negligence.
Holding: D liable. Hitting of ball onto road was a reasonably foreseeable risk.
Key point: Regardless of how unlikely the possibility, D knew that a ball could fly over the wall and hit someone, and they owed a duty
to protect the public against a foreseeable risk. Negligence standard, but very nearly strict liability.

* NEGLIGENCE: Bolton v. Stone (1951)
Holding: D not liable.
Key point: Relaxes strict negligence standard. Test is whether the risk of damage to a person on the road was so small that a reasonable
person in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from
taking further steps to prevent the danger (degree of risk). Acknowledgment that it is impossible to guard against all risks. ( love of
cricket influencing the decision—compare to Rinaldo’s encounter w/golf ball and baseball anti-trust cases).

* SEIZURES, NOT STRICT LIABILITY: Hammontree v. Jenner (1971)
Facts: D had epileptic seizure while driving car, ran into Ps store, causing personal injuries and property damage. D’s doctor had okayed
his driving, even though it would be impossible for D to drive during a seizure; last seizure had been 14 years before.
Holding: D not liable. No negligence b/c no grounds to suspect seizure as D was taking medicine and had not had a seizure in so many
Key point: No strict liability standard for those who cause injury due to seizure, heart failure or some other physical condition. Court
refuses to make analogy to product liability cases. Court also refuses to apply strict liability, so that car insurance companies will pay.
R.: “We can live w/o certain products, but not w/o driving.” Claims and adjustments would be confused and complicated.

* NEGLIGENCE: Helling v. Carey (1974)
Facts: P diagnosed w. glaucoma late into the progression of the disease. While P had been going to her eye doctor for nine years, Dr. did

not do routine test, b/c. she was young to get disease and it is not the custom to test such young people. P sued for damages.
Holding: Potentially liable. Remand for damages.
Key point: Compliance w. standard practice of profession does not necessarily insure one from liability for failure to perform a
simple test. “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of
reasonable prudence, whether it usually is complied w. or not.” Duty of courts to protect patients when medical profession does not.
(see also custom. Test easy and inexpensive to give.
Dissent: Should be strict liability instead of negligence — too much moral stigma attached to Drs.
Compare: cited T.J. Hooper (Hand) (barge owner liable for not installing operating radio b/c. inexpensive and benefits great.) (passed law
that professional standard = reasonable standard.


Facts: D’s haystack caught on fire, causing his neighbor’s cottages to burn. He was warned that it was dangerously constructed and could
catch on fire. P sued for damages.
Holding: D liable, even if he used his best judgment, because he did not act like a reasonable person.
Key point: Establishes (objective) reasonable, prudent person test for negligence, rejecting arguments that the test should be whether
the individual acted to the best of his/her own judgment. Jury decision. Must use property not to injure others.

Facts: 77-year-old man hit 7-year-old boy while driving buggy. Driving 4-5 miles per hour. [Unclear extent of boy’s contributory
negligence—ran out from behind parked buggy.] Sued for injuries.
Holding: D liable. Negligent for failing to keep a look out or failure to stop car.
Key point: A reasonable person standard must be used to judge the standard of care exercised, regardless of a person’s age or
infirmities. Jury may not be instructed to take into account person’s age or infirmities. If anything, his infirmities made him more
negligent b/c shouldn't have been driving. Allocation of preferences—innocent v. infirmed. Boy not held to adult standard of care for his
actions but rather by standard of ordinary 7 yr. old.

* MINORS/ADULT ACTIVITY: Daniels v. Evans (1966)
Facts: Collision b/t car, driven by defendant, and motorcycle, operated by 19-year-old son of plaintiff.
Holding: D not liable. Remand for jury trial w. new jury instruction: that minor held to same standard of care as adult.
Key point: When a minor undertakes an adult activity (especially that which requires licensing), he is held to the same standard
of care as a reasonable and prudent adult. (Charbonneau v. MacRury no longer applies). Definitely applies to operating a car or a
motorcycle. Where do you draw the line? Licensing? Some states still have arbitrary age limits.

* UNFORESEEN INSANITY: Bruenig v. American Family Insurance Co. (1970)
Facts: Plaintiff’s car hit by a woman [Erma] who believed she could fly a.k.a. Batman and God and tried to accelerate off the ground into
D’s truck. She was on the wrong side of the road.
Holding: D liable, b/c foreseeable; but if not foreseeable, not liable.
Key point: This is an EXCEPTION to “insanity is not a defense” rule: When a driver is suddenly overcome w/o forewarning by a
mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable person under
like circumstances, not liable. A sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack,
epileptic seizure, stroke, or fainting should be treated alike. Knowledge and notice are key—prior hallucinations. Unlike Hammontree,
she did not take medicine and time b/t prior hallucinations was shorter. ( Fact that insurance company was D may have influenced jury

* DUTY OWED A DISABLED PERSON: Fletcher v. City of Aberdeen (1959)
Facts: City dug ditch around a work area that interrupted a sidewalk and erected barriers to prevent pedestrians from walking into it, but
a worker moved one of the barriers. P, a blind man, walked into the ditch, injuring himself. P sued city for damages.
Holding: D liable.
Key point: City owes duty to all those who travel its streets, regardless of disability—person with disability should get same notice of
danger. A disabled person is held to a standard of a reasonable disabled person. Each person owes duty to conduct him/herself as
would a reasonable person in similar (handicapped) circumstances.
(why didn’t city settle right away? (sympathetic P)

Facts: Man killed in attempt to save child from being hit by oncoming train. Evidence that train was being operated negligently. P sued
for wrongful death. Railroad argues that P was contributorily negligent in placing himself voluntarily in front of train.
Holding: D liable.
Key point: It is not negligent to place yourself in danger in an effort to save another’s life; in fact, the deceased “owed a duty of
important obligation to this child to rescue it from its extreme peril, if he could not do so w/o incurring great danger to himself.” If he
believed that he could probably save the child, w/o serious injury to himself, he was not negligent to try to do so. He did not assume
the risk for his actions, and was not contributorily negligent. An attempt to save another’s life will only be found negligent if it is rash
even if no duty exists. (most states does not have Good Samaritan laws and rarely does the law impose a duty to rescue.

* GENERAL ASSESSMENT OF LIABILITY: Osborne v. Montgomery (1931) Madison, WI
Facts: D opened car door into path of 13-year-old on bicycle when car was pulled up btw. A row of parked cars and the easterly rail of
the street car track. P sued for injuries.
Holding: D liable, remanded for damages.
Key point: General guideline for assessing liability: “The fundamental idea of liability for wrongful acts is that upon a balancing of the
social interests involved in each case, the law determines that under the circumstances of a particular case an actor should or should not
become liable for the natural consequences of his conduct.” Apply “the standards which guide the great mass of mankind.” Court actually
admitting p.policy stuff here—building up to Hand’s balancing test.

* HAND FORMULA: US v. Carroll Towing Co. (1947) — Learned Hand.
Facts: Barges were being moved by towing company; one broke free and rammed into a tanker, causing a hole in the barge that caused it
to sink. Was the barge owner contributorily negligent in leaving the barge unattended for 21 hours?
Holding: Not liable b/c barge owner was contributorily negligent.
Key point: Hand formula for determining negligence.
B < P*I. (Burden of adequate precautions < probability that barge will break away*gravity of resulting injury.) Following the Hand
formula, it is not unreasonable to expect the barge to be attended during daylight hours. ( duty to be there—fabricated reason for absence.
(problem w/formula is that it is very difficult to apply weights—Hand later rejects.

* FAILURE TO WARN: Rinaldo v. McGovern (1991)
Facts: Car driver injured by golf ball that flew through his windshield as he drove on a road near a golf course. P sued for negligence and
failure to warn.
Holding: Not liable on either count.
Key point: (1) A golf ball straying from its path when it was hit as well as possible in the right direction is not evidence of negligence. It
would have had to have been aimed “so inaccurately as to unreasonably increase the risk of harm.” (2) Warning would have been
ineffective, so P cannot be held liable for failing to give one. * Duty exists when injury is preventable, as opposed to foreseeable. (who
absorbs this cost?)

Generally. Appeal to custom is one way to reduce uncertainty in reasonable person standard. Within a specific area of application,
custom can be a good indicator of what is reasonable care, but doesn't always bar recovery

Add Helling (glaucoma case) and Canterbury (back paralysis, no warning) here.

* The T.J. Hooper I (1931)
Facts: Tugboat lost cargo in storm, which it did not know about b/c there was no working radio on board. Cargo owners sued for
damages due to negligence b/c four other boats were able to set in from the storm safely and b/c 90 percent of boats at that time had radios
on board as standard equipment.
Holding: Liable.
Key point: Standard of seaworthiness changes w. advancing knowledge, experience and the change appliances of navigation. Radio had
been recognized as necessary to establish a standard of seaworthiness by its common usage as regular equipment (90 percent).

* The T.J. Hooper II (1932) — Learned Hand.
Holding: Liable. Affirmed earlier decision.
Key point: Even if using a radio is not common usage, expense is so small and benefits so great that not having one constitutes
negligence. “Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not
excuse their omission.” (custom is useful to establish evidence of negligence but this does not mean that custom can be presented w/o
arguing social policy.
Compare: Helling v. Carey (doctor liable for failing to perform inexpensive test b/c. it was not customary to do so on young patients)

Facts: Woman given 8mm of anesthetic during delivery, from which she fainted later, causing injury. Standard practice in local area to
give that amount, although national practice to give only 5mm. P sued doctor for negligence in administering too much anesthetic.
Holding: D liable.
Key point: Rejects locality rule of Small v. Howard, which measures a physician’s conduct by the standard of other doctors in similar
communities. New standard: Degree of care and skill of the average qualified practitioner, w. regard to advances in the
profession, although it is permissible to take into account the resources available to a physician. (also issues of causation.

D. CRIMINAL STATUTES (Negligence Per Se)
Generally. Criminal statutes provide for the imposition of penalties for negligence, but it is often unclear whether they also create a
private right of action. Some do explicitly. Some courts interpret the others to do so; some do not.

n.b. — Private rights of action under Federal statutes. Tendency of S.Ct. to say no. In Ash v. Cort (1975), said you must examine several
factors: (1) Is the plaintiff a member of the class of people for whose benefit the statute was enacted? (2) Is there any indication of
legislative intent to create or deny such a remedy? (3) Is it consistent w. the underlying purposes of the legislative scheme to allow a
remedy? (4) Is the cause of action such that would normally be relegated to state law, so that the federal law should not be addressing it?

* CAUSAL CONNECTION REQUIRED: Martin v. Herzog (1920) — Cardozo.
Facts: Car hit buggy and killed buggy driver. Buggy was driving w/o lights on after dark, in violation of a state statute. Was this
contributory negligence per se?
Holding: Negligence per se, but not per se contributory negligence. Only if a causal connection can be established b/w illegal act and
accident can party recover for negligence.
Key point: Violation of statute (although it falls short of standard of diligence under which ppl in organized society have duty to conform
to) NOT by itself enough to establish contributory negligence. Causal connection needed. “To say that conduct is negligent is not to say
that it is always contributory negligence.”

Facts: Woman went to unlicensed chiropractor w. back pain; after nine sessions she was paralyzed. Sued for damages, alleging that D’s
violation of the state’s licensing statute (a misdemeanor) was evidence of per se negligence. (Lehman opinion)
Holding: D not necessarily liable. Statute designed to protect public against unskilled practitioners, but violation of the statute does not
indicate a lack of skill per se. Plaintiff may only recover if D failed to meet standards of skill and care prevailing among those who offer
lawful treatment. “Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury.”
Key point: Failure to obtain a license is some evidence of negligence, but is not conclusive. Breach or neglect of duty imposed by statute
or ordinance may be evidence of negligence only if there is logical connection btw. The proven neglect of statutory duty and the alleged
negligence. This is a break from Osborne.
n.b. — Cardozo is also on this court, but keeps quiet about the contradiction b/w Osborne and the “some evidence” rule.
Dissent: if act violates statute, the act is cause, then violation = negligence.

* Ross v. Hartmann (1943)
Facts: D left truck w/ keys in ignition, in violation of D.C. law. 3rd person stole truck and negligently hit P. P sued D for negligence.
Holding: D liable. B/c the purpose of the statute is to promote safety, violation of it is negligence for resulting injury. Owner creates
risk, creating risks are negligent.
Key point: If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance
was intended to prevent, it is legal cause of the harm. (causation and negligence are normally jury Q’s. but here, court decided b/c
“so clear” that violation of statute was the proximate cause of harm (courts hesitant to adopt. Triumph of public policy-- to make streets
safer by discouraging hazardous conduct which ordinance forbids, puts burden of risk on those who create it.

* Vesely v. Sager (1971)
Facts: D served man many drinks at his bar, even after closing time. Man then went and injured P w/ his car. Statute provides that it is a
misdemeanor to sell alcohol to any obviously intoxicated person. Can D be held liable for the injuries to P?
Holding: D liable.
Key point: A vendor (usually not social hosts) of alcoholic beverages can be held liable for furnishing a person w. excessive alcohol,
when that person then injures a third person, if his/her actions were a substantial factor in causing the injury.(Dram Shop) There is a
presumption of negligence from violation of a statute that was enacted to protect a class of persons of which P is a member against
the type of harm which the plaintiff suffered as a result of the violation of the statute.
n.b. — California has reversed this ruling, by statute, so that bar owners are no longer liable.

Generally. Judges do not let juries have free reign in determining negligence questions based on their own gut feeling. They exert control
by (1) giving jury instructions; (2) keeping certain questions of fact from the jury.

* Baltimore and Ohio R.R. v. Goodman (1927) — Holmes, U.S. Supreme Court (to set nat'l stnd)
Facts: Deceased approached blind railroad crossing in truck, slowed down, but did not see train and was killed. P’s heirs sued for
wrongful death.
Holding: D not liable. Holmes’s “stop, get out, and look for train” rule
Key point: Court decides this w/o letting issue of whether deceased used due care go to jury. Standard of conduct for court to decide.
Person assumes risk when approaching a railroad track and if they don’t actually stop, get out, and look for train, too bad — they assume
the risk (signs put up).

* Pokora v. Wabash Ry. (1934) — Cardozo.
Facts: Plaintiff approached four railroad tracks, stopped, looked, listened, then proceeded and was hit. Box cars sitting on first track
obscured view of train on main track. He did not actually get out of his truck or turn off engine, though. Sued railroad.
Holding: Leaves decision to jury.
Key point: Reverses Goodman: “Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of
life.” The get-out-of-your-car standard is totally ridiculous, says Cardozo. “artificially developed and does not flow naturally from
behavior, so it should be limited.” We need rules tied to the realities/practices of real life. Standard of obligation must be tuned to the
particular circumstances & what a person could reasonably have done in those circumstances.

* Wilkerson v. McCarthy (1949) — U.S. Supreme Court
Facts: Railroad employee injured when he slipped on a boardwalk covering a pit at work. Pit had been roped off by the employer to
discourage people from walking across it. P sued employer under FELA (Federal Employer’s Liability Act), which made every interstate
railroad liable for injuries to its employees caused by negligence on the railroad’s part. Trial court dismissed on directed verdict for
defendant, which was affirmed by appeals and state supreme court. Case went to US Supreme Court on issue whether there was enough
evidence of negligence to at least get the case to the jury.
Holding: Case should have gone to the jury. It may have been customary for employees to disregard chains, and employer (instead of
applying regulations w/ a “wink”) should then have taken more stringent measures.
Key point: Note Supreme Court’s reverence for juries deciding all issues of negligence. Although at least two judges dissent.
FELA. 45 U.S.C. §53. That in all actions against a common carrier or a railroad for personal injuries to an employee, “the fact that the
employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to such employee:” except if the common carrier violated a safety statute.

A. Res Ipsa Loquitur (“The thing speaks for itself”)
Purpose is to aid the plaintiff in proving the elements of a negligence case by circumstantial evidence.
Today many states follow Prosser (Wigmore), and many follow Restatement.

(1) The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence.
(2) It must be caused by an agency or instrumentality within the exclusive control of the defendant;
(3) It must not have been due to any voluntary action or contribution on the part of the plaintiff.
n.b. — Prosser doesn’t mention duty specifically, but it is assumed.

Restatement 2nd. §328 d. Res Ipsa Loquitur. (more liberal than Prosser)
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
           (a) the event is of a kind which ordinarily does not occur in the absence of negligence;
           (b) other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence; and
           (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may be reasonably drawn by the jury, or whether it must be
necessarily drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may be
reasonably reached.

Kaye’s interpretation of “ordinarily does not occur in the absence of negligence.”
(1) That the probability of the injury given the exercise of reasonable care is quite small OR
(2) That the probability of the injury given reasonable care is smaller than the probability of the injury given negligence OR
(3) That the probability of the injury given reasonable care is much smaller than the probability of the injury given negligence.

Tricky part is to link the probability of negligence given the accident, w. the increase in likelihood of an accident given the shift from care
to negligence.

* STANDARD: Byrne v. Boadle (1863) British court.
Facts: P was walking in the street past D’s shop, when a barrel of flour rolled out of the window, striking and injuring P. “There is not a
'scintilla' of evidence, unless the occurrence is of itself evidence of negligence.”
Holding: D liable.
Key point: Res Ipsa Loquitur applies. The fact of the barrel falling is prima facie evidence of negligence, and the P need not prove that it
could not fall w/o. negligence. Instead, burden is on defendant to show, if possible, that it wasn’t negligence. (all evidence is hidden)

* THIRD-PARTY CONTRACTOR: Colmenares Vivas v. Sun Alliance Insurance Co. (1986)
Facts: Ps suffered injuries on an airport escalator when the handrail stopped moving, but the stairs continued to ascend. They sued Sun
Alliance, the insurance carrier for the airport, and the operator for negligence. Sun brought a 3rd-party action against Westinghouse for
negligence in not maintaining, adjusting, and repairing the handrail on the escalator as needed. Trial court granted directed verdict for
defendant b/c. there was no evidence of negligence and res ipsa cannot be applied, b/c. elevator was not in the exclusive control of
Holding: Directed verdict reversed. Case remanded for jury trial.
Key point: Res Ipsa Loquitur applies. Even though there is a 3rd party responsible for the physical maintenance of the escalator,
the airport has the ultimate and exclusive control over the escalator. It is on their property, and they own it. Thus, they owe a duty to
the users of the staircase. This is a non-delegable duty.
n.b. — Prosser definition used here (2nd criteria met). Case shows midpoint in burden shifting- in RIL cases, D has burden of proof,
unlike regular negligence cases.

* MULTIPLE PARTIES: Ybarra v. Spangard (1944)
Facts: Plaintiff’s arm and shoulder were paralyzed during his operation to have his appendix removed. Six different doctors and nurses
attended to him during his operation. Doctors who P consulted about his injury said it was a paralysis of traumatic origin. P sued all of
them, as he could not determine which was responsible for his injury. They defended saying that none had exclusive control.
Holding: Res Ipsa Loquitur applies.
Key point: When plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who
had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the
inference of negligence by giving an explanation of their conduct. Each person owed a duty to provide plaintiff w/ ordinary care while he
was in his/her charge (no exclusivity of control). To combat conspiracy of silence. (R has trouble w/ its applicability).
n.b. — Prosser definition used here.

Generally. Plaintiff’s own conduct sometimes can affect his/her right to recover for the harm he/she has suffered.
Contributory negligence exists when the plaintiff has not taken reasonable care, and in consequence of his default has suffered
injury. At common law, this was usually a complete bar to recovery.
Assumption of risk asks whether the plaintiff has deliberately and willingly encountered a known risk created by the defendant’s
negligence, and holds that, if that is the case, he/she should not be allowed to recover for subsequent harm. Recent surge has been
towards comparative negligence, which requires that the plaintiff’s negligence should not necessarily bar his cause of action, but should
only reduce the amount of damages recoverable.

Basic Doctrine
Restatement 2nd §463. “Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he
should conform for his own protection, and which is a legally contributing cause cooperating w/ the negligence of the defendant in
bringing about the plaintiff’s harm.... A person is required to exercise only that amount of care which would be exercised by a person of
ordinary prudence in the same circumstances.”
Restatement 2nd §465(1). “The plaintiff’s negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor
in bringing about his harm and there is no rule restricting his responsibility for it.”

* D MUST PROVE CONTRIB. NEG. Gyerman v. United States Lines Co. (1972)
Facts: P was injured when unloading fishmeal sacks in the warehouse of US Lines Co. P noticed sacks were dangerously stacked and
complained to a US Line clerk that it was dangerous to proceed and was told that nothing could be done. Never spoke to his direct
Holding: P was negligent in not reporting the dangerous condition to his own supervisor, but D has not met his burden of proof that that

P’s contributory negligence was a proximate cause of his injuries. Court remanded for new trial on issue of P’s contributory negligence
and its causal connection to P’s own harm and damages only.
Key point: Burden of proof that P was negligent and that the negligence was a contributing cause of accident is on D, unless the
elements of the defense can be inferred from P’s evidence. Existence of contributory negligence issue for finder of fact (i.e. jury).

* LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (1914)
Facts: P stacked flax on his land, about 70 feet from Defendant railroad’s right of way. Sparks flew from train b/c of D’s negligence in
operating train and lit stacks on fire, destroying all flax. Does the placement of the flax on P’s land constitute contributory negligence?
Holding: No contributory negligence, as a matter of law.
Key point: Can't blame property owner for another's mistake if using property in reasonable way. (BUT, is a train that emits sparks
a wrongful use of property? Is it really being run negligently?)
Holmes partial concurrence: This should be a jury question, b/c. one can conceive of a point where stacking the flax too near the edge
of the property boarded by the railroad would be too close. “Negligence is all degree.”
Note: Coase- reciprocity of relationships (look at social costs of making negligent party pay)

* SEAT BELT DEFENSE: Derheim v. N. Fiorito Co. (1972)
Facts: D made a wrongful left turn and collided w. P, who is suing for damages. P was not wearing a seat belt at the time, and D is
trying to say that P was contributorily negligent as a result. “The seat-belt defense.”
Holding: Not wearing a seat belt is NOTcontributory negligence.
Key point: P's conduct occurred before D’s negligence, as opposed to contributory negligence, which customarily is thought of as
conduct contributing to the accident itself. Also, in Washington State, wearing a seatbelt is not mandated by law, no doctrine of
comparative negligence. Court didn’t want to change public policy. Unfair to mitigate damages of injured when in no way responsible for
accident, no seatbelt law. ( now there are seat belt statutes. so there CAN be imputation of negligence, but still obligation to show
n.b. — trend to allow determination of contributory negligence, but then let jury determine damages according to comparative negligence
standards (??) In Spier v. Barker (NY Ct. of App. 1974), court held that nonuse of an available seat belt is a factor which the jury may
consider in determining damages, but not in resolving the issue of liability.

Last Clear Chance
Restatement §479. Last Clear Chance: Helpless Plaintiff.
A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm
caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize w. reasonable care and competence his then existing opportunity to avoid the harm, when
(i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to
the plaintiff to exercise.

Restatement §480. Last Clear Chance: Inattentive Plaintiff.
A plaintiff who, by exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the
harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm,
(c) thereafter is negligent in failing to utilize w. reasonable care and competence his then existing opportunity to avoid harm.

(Restatement more likely than not to govern.)

* LAST CLEAR CHANCE: Fuller v. Illinois Central R.R. (1911)
Facts: Decedent was in a one-horse wagon, heading for a railroad track. D had head down; did not stop, look, listen; and did not see
train. Train came half-hour late, faster than usual or appropriate. Man in clear view 660 feet away; train could have stopped in 200 ft.
Engineer did not slow train down; just gave routine whistle blast 20 seconds before hitting wagon. D argued contributory negligence. P
argued D had last clear chance to avoid injury either by braking or promptly sounding a warning whistle.
Holding: D liable.
Key point: D had the last clear chance to avoid the accident, had an opportunity to do so, and didn’t. Last Clear Chance. The
contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of
reasonable care and prudence have avoided the consequence of the injured party’s negligence. Originally found in Davies v. Mann.
“The groans, ineffably and mournfully sad, of Davies’ dying donkey have resounded around the earth.”
Note: Theory more important before comparative negligence (when contributory negligence barred recovery).

(n.b. -- Today, the rule in virtually all US jurisdictions is that the negligence of the driver will not be imputed to the passenger, in the
usual collision case, by virtue of the driver-passenger relationship alone.)

* AMUSEMENT: Murphy v. Steeplechase Amusement Co. (1929) — Cardozo.
Facts: P chose to ride the Flopper. Injured on ride.
Holding: Remanded for new trial, but P can only recover if jury decides that he actually fell on wood, and there was thus a defect in the
Key point: Cardozo quote: “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and
necessary…” non fit injuria (One assumes reasonable risks in sport/amusement). Sudden jerk is itself part & expectation of fun-->
assumption of risk.
Note: Distinguishes primary and secondary assumption of risk. (is there a duty and did P assume risk, respectively) Rosenblum doesn't
like distinction.

* Obstetrics & Gynecologists v. Pepper (1985) (informed consent)
Facts: P signed arbitration agreement prior to getting birth. Suffers cerebral incident that left her partially paralyzed. Claims she has no
recollection of signing agreement or of its being explained.
Holding: D has not carried its burden of proof that valid K exists. [R. wants more facts here — doesn’t feel there’s enough evidence to
say what really happened.]
Key point: B/c D chose to use a contract of adhesion, courts need not enforce the K absent plain and clear notification of the terms and
an understanding consent.

At Common Law
* Li v. Yellow Cab Co. of California (1975) — CA case.
Facts: P tried to cross three lanes of oncoming traffic to turn into a service station. D “ran” yellow light at excessive speed and hit P’s
car. T.Ct found for D b/c. P was contributorily negligent.
Holding: D liable. Found for P under doctrine of comparative negligence, court rejects contributory negligence and last clear chance.
Court adopts pure form of comp. negligence, which apportions liability in direct proportion to fault in all cases. (Alternative is 50%
system: liability apportioned based on fault up to the point that P’s negligence is equal to or greater than D’s.)
Key point: “The doctrine of comparative negligence is preferable to the “all-or-nothing” doctrine of contributory negligence from the
point of view of logic, practical experience, and fundamental justice.” (1) ½ other states have done this; (2) legislature hasn’t barred us
from doing this; (3) juries do this anyway; (4) most scholars “think this is better” (Prosser).
Assumption of risk dicta: Assumption of risk should be merged into general assessment of liability in proportion to fault in those
particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.”
[R. says discussion of duty here (assumption of risk is all about duty) has no place here, b/c. if there is no duty, there is no liability.]
Commentary: Li may have gone too far in judicial CL policy making. Case before court had nothing at all to do w. assumption of risk.
CA-- PURE system; others have 50% system

A Common Law Reprise
* Knight v. Jewett (1992) — CA case.
Facts: P playing touch football at friend’s house w. D. P’s hand injured; had to be amputated. P had asked D not to play so roughly. D
argued assumption of risk; P argued assumption of risk eliminated by comparative negligence and D was reckless.
Holding: D not liable. D’s only duty was to avoid reckless or intentional harm.
Key point: This is a split decision. Court sets up distinction btw. primary assumption of risk (if no duty owed, no liability if P assumed
risk) and secondary assumption of risk (if duty owed, assumption of risk merged into comp. Negligence determination). n.b. — Primary
assumption is irrelevant, b/c if no duty, no tort action.
Commentary: Compare w. Vosburg. This is really a duty case. If Vosburg had been on the playground (i.e. a sports field), no duty. ( co-
participant sports, duty = to avoid reckless and intentional harm. Defense of primary assumption of risk b/c players’ conduct in game
naturally included accidentally careless behavior.
Caveat: we can’t be certain whether ct will categorize an act as primary or secondary, so beware!


When 2 or more Ds are liable to the P for the same harm, the law typically treats them as “jointly and severally liable.”
Joint Liability: Implies that each of several defendants is responsible for the entire loss which (almost by definition) they all caused in
Several Liability: Holds each defendant responsible only for his proportionate share of the loss.
(2 main issues: the rights of the P against each of the D’s and the rights of the D’s among each other.

Toward the Plaintiff
* ALTERNATIVE LIABILITY: Summers v. Tice (1948)
Facts: Hunters out shooting quail. P shot in the eye by a bullet that came from one of two guns. No evidence to prove which gun it came
from, but definitely one of them.
Holding: Ds are joint and severally liable.
Key point: Burden shift to each D to prove his own innocence. Each can be held accountable for the full amount. Idea is that you want
the innocent P to recover: as b/w innocent plaintiff and guilty Ds, we are more concerned w/ P. Public Policy. No contributory
negligence here.
n.b. — This is a case where either A or B is causally responsible.
Restatement §433B. “Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by
only one of them, but there is uncertainty as to which one caused it, the burden is upon each such actor to prove that he has not caused the

* MARKET SHARE LIABILITY: Sindell v. Abbott Laboratories (1980)
Facts: DES case. Over 200 manufacturers sold DES, and P’s mother definitely took it (P developed malignant tumor as result of
mother’s taking drug to prevent miscarriage), but she doesn’t know which one; sues 5 companies who made 90% of DES
Holding: Liable. Liability apportioned based on market share.
Key point: This is not a joint and severally liability case; it is proportional market-share liability. Each manufacturer must pay
damages in proportion to the amount of market share it had at the time.
Dissent: need causation- will fall disproportionately on deep pockets.
Note: It is possible that none of these defendants manufactured the drug that P’s mom took. Rejects Summers. (Applied in a very limited

B/w Codefendants
* American Motorcycle Association v. Superior Court (1978) — CA case, Tobinger.
Facts: P injured in a novice motorcycle race run by Ds — AMA and Viking Motorcycle Club. P suing for negligent running of race. D
claim negligence on part of P’s parents in supervising son should be considered and used to reduce their liability.
Holding: D should be allowed to file cross-complaint for partial indemnity against previously unjoined alleged concurrent tortfeasors.
Key point: Court rules on several points: (1) That the doctrine subjecting multiple defendants to “joint and several liability” to a single
plaintiff was neither abolished nor limited by the decision in Li, i.e. comparative negligence. (2) That a doctrine of partial equitable
indemnity should be adopted at common law to permit apportionment of loss among codefendants on pure comparative principles.
(3) That the California contribution statutes do not “preclude” the development of a common law doctrine of comparative indemnity.
(4) That under this system of equitable contribution, any defendant may maintain an action against any other party, whether or
not joined in the original suit, but that the trial judge may postpone trial of the indemnity action in order “to avoid unduly complicating
the plaintiff’s suit.”
Dissent: Clark says that following j/s liability rejects comparative negligence. (legislatures reacted w/statutes, must check each state.

* Matter of Oil Spill by the Amoco Cadiz (1992)
n.b. — This is just one interlocutory decision in the midst of 13 years of litigation — case hasn’t even gone to trial yet! This motion deals
w. legal issues relating to joint and several liability.
Facts: Amoco Cadiz broke apart in storm off the coast of Brittany. Ship designs had been approved by ABS. Ship had been built by
Spanish boatbuilders—Astilleros Espanoles, S.A. Ds = Amoco, ABS, Astilleros Espanoles, and owner of tugboat pulling tanker. Each
sued in different combinations. Amoco wants adoption of claim reduction rule.
Holding: Courts generally concerned first and foremost that the injured party is “made whole.” Then they will deal w. fairness among the
Ds. (no real holding (just rejects claim reduction).
Key point: Four potential rules apply, each with its own potential problems:
1) no contribution. All Ds jointly and severally liable for full damages. A P may decide to collect any part of an award from any of the
Ds. No one may obtain contribution from another person. practical effect: promotes settlements by concentrating full liability on those
who hold out through trial and judgment, it creates a distinct possibility that those who settle first will pay less. Low court administrative

2) contribution. All Ds are jointly and severally liable for full damages. A P may decide to collect any part of an award from any of the
Ds. A party called on to pay more of the award than its share of fault implies may obtain contribution from a party called on to pay less
than its share. practical effect: deters settlements, because settling defendant pays cash and still may be held liable for more cash later
without benefit of court representation. High court administrative costs.
3) contribution plus settlement bar. Same as contribution, except one party may obtain contribution only from another that proceeds to
judgment. By settling, a party escapes any liability for contribution. practical effect: promotes settlement, but high administrative costs.
4) claim reduction (also comparative fault rule). Ds are jointly and severally liable, unless one or more settles. By accepting a
settlement from one party, the P forgoes the ability to collect from the remaining Ds any damages attributable to the settling party’s share
of fault. Remaining Ds not entitled to contribution from the settling party. practical effect: defendants will want to settle, plaintiffs will

b. Vicarious Liability
Vicarious liability: Liability of one person- the employer- is vicarious, b/c he bears the responsibility solely for what another party- the
employee- has done.

* INDEPENDENT CONTRACTORS: Hardy v. Brantley (1985)
Facts: Decedent went to emergency room w/ ulcer. Doctor failed to administer proper test, and he died. P sued doctor and hospital for
medical malpractice. Hospital defends, saying Doctor is independent contractor.
Holding: Both liable.
Key point: Hospital was held vicariously liable b/c there was no notice to decedent that the doctor was an independent
contractor. Hospital held itself out as a provider of emergency health care services. BUT, if a patient engages a physician, who then
admits the patient to a hospital at which he is an independent contractor, the hospital is not liable. ( expert testimony essential (?)
Policy-- doctrine of RESPONDEAT SUPERIOR is expanding in light of changing practices. can’t use K to insulate liability as long as it
holds itself out to the public, creating an illusion that it would be liable...
in the aftermath, no longer useful to look at employer/employee relationship---> more concern w/ realities and forseeabilities of human

* Petrovich v. Share Health Plan of Illinois, Inc. (1999)
Facts: (P) brought malpractice action against physician and HMO for tardy diagnoses of tongue cancer. HMO did not want
to be sued. Independent k issue.
Held: in these circumstances, HMO could be liable if it had put itself forward as being in total command of the doctors (in the language
of the handbook, for example by failing to say docs are independent ks and HMO relieves liability, etc.).
Again, emphasis on the reasonableness of consumer’s expectations. “apparent authority” / “justifiable reliance”

Restatement §427. Negligence as to Danger Inherent in the Work.
“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to
know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject
to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”
n.b. — Sexual harassment. Meritor Savings Bank c. Vinson. (1986). Supreme Ct. decision. Court held that sexual harassment was a form
of sex discrimination under Title 7. Court rejects absolute liability for employer for employee’s actions; also rejects requirement that
employee first pursue available remedies under applicable grievance procedures. Rule, which they don’t articulate, falls somewhere in the
middle. State courts not bound by S.Ct. and vicarious liability, but very persuasive along with Rest. §219(2)(d). Test for employer’s
liability: (Baker and McKenszie) (1) Foreseeability. (2) Whether the employer knew or should have known about the problem- notice and
Dichotomy b/t employment (Burlington Ind. V. Ellerth, Fragher v. Boca Raton) and educational (Gebser v. Lago Vista) contexts. Private
action only implied in educational setting, so courts not as free to act. Right?
n.b. — Employer’s Indemnification. Respondeat Superior applies only to relationship btw. employer and injured third party. Employer
can then sue employee and win damages.

Generally. Once the plaintiff has established that the defendant has engaged in some wrongful conduct, it becomes necessary to link that
conduct to the harm suffered by the plaintiff. In practice that question of linkage generally raises two distinct issues: cause in fact and
proximate cause (but for). n.b. — R. doesn’t see the distinction btw. these two. Proximate cause is used more widely.
Causation is typically determined by jury; duty typically determined by judge.

Post Hoc Ergo. It happened, therefore it must have been caused by what preceded it.


* Daubert v. Merrell-Dow (1993).
Facts: P sued D for making Bendictin, which caused birth defects.
Holding: Remanded to consider expert testimony.
Key Point: Expert testimony that is not "generally accepted" can still be admissible (general acceptance can still be a factor, though).
Frye v. U.S. (set standards for scientific testimony) overruled.
Note: Liberalized expert testimony, but actually made standard stricter b/c lower courts still act as gatekeepers.

n.b.- G.E. v. Joiner (S.Ct. 1997) (Rehnquist) Didn't embrace possible liberalization of Daubert. Need abuse of discretion to reverse
district court (can exclude expert for lack of relevance).

Physical Injury
[ 1) RESCUE: Wagner v. International Ry. (1921) — Cardozo.
Facts: Train lurched round corner on bridge and decedent (P's cousin) fell out b/c door not closed. Train stopped on other side of bridge.
P walked across bridge to look for Cousin Herbert and fell. T.Ct. established that train would only be held liable for P’s injuries if: (1)
conductor had invited him to go across bridge, and (2) if conductor had followed w. a light. Jury found for D.
Holding: D probably liable. Go to jury.
Key point: “Danger invites rescue. The cry of distress is the summons to relief.” “Peril and rescue are one transaction.” A negligent
party is liable to those who attempt to rescue those injured or imperiled by his negligent conduct. Cites Eckert. By inherent nature
(that danger invites rescue), a rescuer is always a foreseeable plaintiff. ]

** 2) NO DUTY: Palsgraf v. Long Island R.R. (1928) — Cardozo. (512)
Facts: P standing on platform, waiting for train. Another passenger runs for train on other side of the tracks, conductor pulls him on and
platform guard pushes him on, but the package falls onto the tracks. Package explodes. P is injured by a set of scales that fall on her. Sues
railroad. T.Ct. finds for P. NY Ct. of Appeals overturns.
Holding: D not liable. Railroad owed no duty to Mrs. Palsgraf. i.e. — the conduct of the guard, if a wrong to the holder of the package,
was not a wrong to Mrs. Palsgraf. “Nothing in the situation gave notice that the falling package had in it the potency of peril to persons
thus removed.” Not a foreseeable plaintiff.
Key point: Negligence is not enough on which to base a tort. There must also be a duty to the injured party which could have been
averted or avoided by observance of that duty. There can be no duty owed to the injured party when the wrong was conducted
towards a third party. Note what is missing here: Nothing about plaintiff’s innocence. Nothing about res ipsa. Nothing about custom.
Nothing about statute. ( Nothing about highest duty for common carrier.
Note: Cardozo was biased in reporting the facts (political motives?) Presents as a duty case so judge gets to decide rather than a causation
case that jury would decide.
Look at Foreseeability in relation to: duty, negligence, and causation.

Facts: Overseas (D’s) freighter, Wagon Mound, was moored 600 feet away. (D)’s ship negligently discharged oil, which spread across
the harbor and under (P)’s wharf. (P)’s workers were welding on the wharf. Molten metal dripped from welding job, setting fire to
floating cotton, setting fire to dock and ships.
Holding: D must reasonably have been able to foresee the risk of the ACTUAL TYPE of damage or results. Spill wasn't only
cause, fire wasn't part of direct chain of events from spill.
* Refutes Polemis.

4) See Dillon below

1) Palsgraf Andrews’ dissent: Negligence is in itself a wrong. A person who does a negligent act should be liable for its proximate
results. Foreseeability is not the end all. Also, “Everyone owes to the world at large the duty of refraining from those acts that may
unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to
result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone.” Also, but for the
explosion, she wouldn't have been injured. “Practical politics.”

2) DIRECT CAUSATION VIEW OF UNFORESEEN EVENTS: In re Polemis & Furness, Withy & Co. (1921). English court.
Facts: P’s ship chartered to D for shipping purposes. One of D’s employees dropped a wooden plank in the hold where gas was held,
igniting a spark and destroying entire ship. P sued for loss of vessel due to negligence of charterer’s servants. D appealed saying that
extent of damage and injury was not foreseeable from mere act of dropping a plank.
Holding: D liable.
Key point: A party is negligent only if his conduct could have been expected to cause some damage, but that once his negligence has
been well established, a party is liable for ALL damage which actually occurred, whether or not the NATURE and the EXTENT
of the harm were foreseeable. “Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.”
* refuted by Wagon Mound

3) Marshall v. Nugent (1955) — Magruder.
Facts: Truck cut corner on long hill, forcing a car coming from the opposite direction to run off the road. D truck driver offered to help
pull car back onto road and suggested that P go around curve to south to warn oncoming traffic of unexpected danger. Car coming along
road saw obstruction up ahead, tried to stop quickly, and slid across road, hurting P. P sued oil co. and driver of second car. Jury found for
driver and against oil company. Oil company claimed the wrongful conduct of its driver was not the proximate cause of P’s injury.
Holding: D liable. There was no error in allowing the question of foreseeability to go to the jury.
Key point: “Though this particular act of negligence was over and done w. when the truck pulled up alongside of the stalled Chevrolet
w/o. having actually collided w. it, still the consequences of such past negligence were in the BOSOM OF TIME, as yet unrevealed.”
(not too far in time). A negligent actor is responsible for the CONTINUING CONSEQUENCES of his act (until the dangerous
situation has returned to normal).
Jury issue: “[I]t is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man- the
prevalent sense of the community- as to whether the causal relation btw. the negligent act and the P’s harm which in fact was a
consequence of the tortious act is sufficiently close to make it just and expedient to hold the D answerable in damages.”
           ** MIXTURE OF BOTH
* Kinsman Transit Co. (1964). — Friendly
Facts: Large cakes of ice banged into and loosened a negligently tied and improperly tended ship so that it started downstream, careening
into another ship and knocking it loose. Both ships then drifted on and crashed into a drawbridge maintained by the City of Buffalo. The
two ships and the drawbridge made an effective dam against which the ice accumulated, causing flooding for miles. This action was
brought against the owner of the first ship and the city.
Holding: First ship and city (crew of drawbridge) held jointly responsible b/c the crew had a duty to raise bridge both for passing ships
and drifting vessels.
Key point: Summarizes conflicting views on proximate cause at time: “[Wagon Mound] simply applies the principle which excludes
liability where the injury sprang from a hazard different from that which was improperly risked.” Friendly adopts the following view:
“The weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent
conduct when the consequences are “DIRECT,” (<--like direct causation view) and the damage, although other and greater than
expectable, is of the SAME GENERAL SORT (<--like foreseeability view) that was risked.”

1) no emotional damages
2) relief if physical injury
3) zone of danger (could have been physically hurt)
4) relative bystander (Dillion) test

Facts: Child struck and killed by car. Mom and sister watched. They filed suits for wrongful death, for nervous shock and serious mental
and physical pain suffered by mom, and for emotional and physical suffering on part of sister. Middle complaint dismissed by trial court,
b/c. mom was outside of the zone of danger and thus never feared for her own safety.
Holding: Liable.
Key point: Viewing a close family member’s death is sufficient injury to warrant recovery for the tort of negligent infliction of emotional
distress. Test whether D owes duty of care to P b/c. injury was foreseeable:
(1) whether plaintiff was located near the scene of the accident as contrasted w. one who was a distance away from it;
(2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the
accident, as contrasted w. learning of the accident from others after its occurrence;
(3) whether plaintiff and the victim were closely related, as contrasted w. an absence of any relationship or the presence of only a distant
Court rejects floodgates argument. “We cannot let the difficulties of adjudication frustrate the principle that there be a remedy for every
substantial wrong.”

* ZONE OF DANGER TEST (Natl’ Standard for FELA) Consolidated Rail Corp. v. Gottshall. (1994)
Facts: P was at work, friend died from heat and heart attack. D yelled at P for trying to save his friend. D’s covered the body and demand
P and others get back to work.
Holding: RR not liable.
Key point: Negligent infliction of emotional distress rather than IIMD. FELA case. FELA says nothing re: recovery for negligent
infliction of emotional harm, so S.Ct. must look to state common law for governing principle. Critiques CA's idea of foreseeability.
Had no physical manifestations and he wasn't a relative of deceased. Adopted “zone of danger” test, more in line w/ common law
principles. (R very upset that the Court didn’t want to talk about foreseeability.
Note: Thomas: "On a clear day a ct can foresee forever," so shouldn't look at it here; instead, looked at central concern of FELA for
physical safety, as well as at general concerns about floodgate cases


THE DUTY TO RESCUE- special relationships
* Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970)
Facts: P assaulted in the hallway of her apartment building. When she moved in, doorman had been on duty at front door, front-desk
employee watched elevators, garage attendants watched one side entrance, and the other side entrance was unlocked by day, but locked
after 9pm. Seven years later, no doorman, desk often unattended, garage entrance not watched and other side entrance often unlocked all
night. Crimes had picked up in hallways, and landlord had been asked by several tenants, including P, to address security issue.
Holding: D liable.
Key point: Landlord has duty to protect tenant from foreseeable (probable and predictable) danger, in light of past history of
relationship b/w tenant and owner (<--this is where the duty is derived). Because of prior assurances of safety, landlord was
responsible for maintaining common areas of building to minimize tenant exposure to an unreasonable and foreseeable risk of criminal
attack. This is a duty to take action; a warning would not be enough. This attack was both probable and predictable—foreseeable. W/I
exclusive control of landlord. Landlord can pass on additional safety costs to tenants.

* Tarasoff v. Regents of University of California (1976) “full flowering of duty to warn”
Facts: Man killed decedent P, after threatening to do so during his sessions w. psychologist. Doctor warned campus police, who detained
him shortly, but released him when they found him “rational”, but no one warned decedent or her family. Did D have duty to warn
Holding: Liable. Doctor had duty to warn victim b/c the harm was foreseeable (patient had named particular person whom he intended
to kill; issue not about judgment calls but about certainty, which would make it appropriate for doc to breach doctor-patient
confidentiality). Only when doc knows w/ certainty is there an obligation to inform and breach the confidential relationship. Ct’s
concern for preservation of human life.
Policy: Look to- foreseeability of harm to victim, degree of certainty of P's harm, closeness of D's conduct and harm, moral blame of D's
conduct, policy of preventing future harm, burden of D, duty to community, availability, cost, prevalence of insurance

Key point: n.b. — This rule applies to public officials, not private, although some jurisdictions have extended it. Referrals from state
prisons may be different.(Very powerful case for weighing confidentiality issues and duty to warn—generally defer to professional

* Gun Manufacturers: decision from this year, powerful in its conception of the creation of DUTY & demo of how law is in the
process of transition.
Facts: Ps were victims of gun violence, who sued Ds (gun manufacturers). Not class action. Potential duty of gun manufacturers?
There may be a duty, but will make referral to the NY Ct of Appeals.
How DUTY may be found:
 1) ability to control marketing
 2) knowledge that large # of guns entered the illegal market and caused crimes
 3) NY policy of strict firearms
 4) lethal nature of product
On the nature of duty: cannot be determined by algebraic formula, but by delicate balancing of weighty socio policy, morals, etc. “ct
must set the compass of duty”--> duty is only an expression of sum total of policy which leads the law to say what merits protection.
cites Palka (?) case, picture hanging off wall in hospital and hurting nurse, held nurse legitimately relied on contractor. Cardozo’s “eye of
ordinary vigilance” put on back burner, ct taking a much broader view of duty than Cardozo.

* STAGE ONE. From middle of 19th c. to early 20th c., major question was whether any suits against product manufacturers or
distributors of products should be allowed at all. The dominant question was whether the “privity” limitation prevented the injured party
— whether consumer, user, or bystander — from bringing a suit against the “remote” seller of the product in question (see Winterbottom).
* STAGE TWO. From early 20th c. to mid 20th c., MacPherson set standard that imposed a general liability for negligence on a remote
seller, that is, one who has no direct contractual relationship w. injured party.
* STAGE THREE. Started w. Traynor’s decision in Escola v. Coca-Cola Bottling Co. (1944) that strict liability and not negligence
principles should govern the manufacturer’s liability. Gained widespread acceptance in 60s and accepted by Restatement 2nd in 1965 in
* STAGE FOUR. Defective design and duty to warn cases decided in decade after Restatement adopted and that expanded negligence

Products Liability today. Volume of litigation has soared since Restatement adopted. Asbestos cases are 60% of docket. Also
pharmaceutical companies; airlines; motor vehicles. Also federal statutes may be overriding state statutes

* MacPherson v. Buick Motor Co. (1916) — Cardozo.
Facts: P bought car for wife and told salesperson it was for her. Wheel on car collapsed due to negligent manufacturing. Buick had
gotten the wheels from another manufacturer, but could have found the defect themselves by inspecting. Buick said: (1) no strict liability
b/c. car is not a dangerous instrument and (2) no privity of contract btw. Buick and wife
Holding: D liable.
Key point: “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is
then a thing of danger. Its nature gives warning of the consequences to be expected.” i.e. Foreseeability at issue here. Necessary
factors for liability: (1) knowledge of probable danger; (2) knowledge that danger will be shared by others than the buyer; (3) proximity
of relationship. Since manufacturer can foresee that bad wheel will be dangerous not only to consumer but to other ppl who ride the car,
manufacturer should inspect it! EXPANSION OF DUTY.
* Quote: “We have put the source of the obligation where it ought to be. We have put its source in the law.” (Cardozo is law.)
* Quote: “The principles that the danger must be imminent does not change, but the things subject to the principle do change. They are
whatever the needs of life in a developing civilization require them to be.”
* Quote: "Presence of a known danger makes vigilance a duty." Court does not decide whether P could have gone after wheel
manufacturer, but implies it.
n.b. — Today every jurisdiction in US follows the MacPherson rule.

* Escola v. Coca-Cola Bottling Co. of Fresno (1944) — Traynor concurrence.
Facts: Waitress injured when Coke bottle exploded in her hand while she was stocking refrigerator.
Holding: D liable. Bottling company strictly liable. Ruled on Res Ipsa.
Key point: Absolute liability for manufacturers who put defective products on market, regardless of privity or negligence.
Public policy: Public interest to discourage the marketing of products having defects that are a menace to the public.... Against risk of
injury there should be general and constant protection and the manufacturer is best situated to afford such protection. “If public policy
demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that
responsibility openly.”
Why strict liability is good public policy: (1) loss minimization (manufacturer has most control over this—in their interest to have
buyers rely on their reputation and interpersonal relations); (2) way to spread cost of injury over lots of people while injured party gets
compensated fully; (3) eliminates proof complications, eliminating need for res ipsa; (4) b/w the possibly guilty and the definitely
innocent, innocent should not have to pay; (5) eliminates intermediate lawsuits (consumer to retailer, retailer to manufacturer).
Note: § 402(a) modifies Traynor (unreasonably dangerous), but 3rd Rest. §1 more like Traynor, though still uses modifiers like
foreseeability §2(a)(b).

* WARRANTY: McCabe v. Liggett Drug Co. (1953)
Facts: P bought coffee maker. It exploded in her face, burning her. Sued store that sold it to her b/c. it was not in “merchantable quality.”
Holding: D liable.
Key point: Jury verdict stands b/c it was reasonable. Evidence of explosion itself was evidence of defective condition (used expert
testimony to help jury infer defect that this was “common knowledge”). Implied warranty that coffee maker was of merchantable quality
(suitable for ordinary use). D should be looking for stuff P can’t reasonably foresee. (BYO Expert)
Note: Rest. (3rd) § 3- may be inferred that injury was caused by defect when incident was ordinary in cases of defect.

B. THE RESTATEMENT (see my notes)
Despite semantics, SL--> really negligence standards “unreasonably dangerous”...

RSed admits there are close proximities to negligence in design defect & warning defect (sections b and c)

* ECONOMIC LOSS: Casa Clara Condominium Association v. Charley Toppino & Sons (1993)
Limit on strict liability- line b/t tort and contract law.
Facts: Condo association sued manufacturer of concrete for supplying bad concrete. It crumbled and started to fall apart, so that the
condos would soon start to fall apart.
Holding: Not liable. Economic Loss Rule: No recovery for economic damages only (in the absence of damage to person or property)
Key point: B/c no one hurt and no other property damage, no tort recovery. Economic loss has been defined as damages for inadequate
value, costs of repair, and replacement of the defective product or consequent loss of profits — w/o. any claim of personal injury or
damage to other property. This is contract law, not tort law—no claim under § 402A.
Dissent: Concrete did harm other parts of the condo, not all one product.

* “SERVICES EXCEPTION” under RS §402A: Cafazzo v. Central Medical Health
Facts: P sued hospital and doc for administering defective fake jaw.
Held: Hospital / doc is NOT a “seller” under 402A.
Policy: Ct concerned w/ the integrity & fiscal viability of the health care system.
(p764): “The net effect of this cost spreading would further endanger the already beleagured health care system. As a practical matter
costs would merely be absorbed by the insurers of physicians and hospitals, whose charges would reflect the increase in policy rates... the
consequences ... of such magnitutude..such potentially negative effect... not clear enough that SL has afforded the hoped for panacea in
the conventional products area that it should be extended so cavalierly in cases such as the present one.”

I. Construction Defects
* BATTLE OF THE EXPERTS: Pouncey v. Ford Motor Co. (1972)
Facts: Pouncey sued Ford for injuries suffered when a blade on radiator fan broke and struck him in the face when putting antifreeze in
his car. Battle of experts as to whether there were impurities in the metal that caused it to snap. Crucial in this case! Jury found of P.
Holding: D liable.
Key point: If material shown to be defective, manufacturer can be found to be negligent in using it to build its product, even if negligent
evidence (Alabama law) is only circumstantial. Juries can infer negligence from circumstantial evidence when no direct evidence of
defect. Like Res Ipsa. ( BYOE, and don't use experts that are your employees).

(Daubert v. Merrell—ideas that some states are more susceptible to high P verdicts—ALA. BMW hmmm. Forum shopping. BYOE
comes into play here. Rules of evidence.

II. Design Defects

* OPEN & OBVIOUS: Linegar v. Armour of America (1990)
Facts: wife of police officer sued bullet proof vest manufacturer for defective design. Issue of latent/patent defect? Apparent to the
ordinary eye what the coverage of the vest was.
Holding: D not liable. “open and obvious” defense worked here (though note that in more modern times, not an automatic factor to
decide against D).
Key point: Latent/patent issue still alive in reality despite Micallef. Whether the defect is obvious is still relevant. “A manufacturer is
not obliged to market only one version of a product, that being the very safest design possible.... Personal safety devices require personal
choices...” Doesn't pass consumer expectation test or MO test.
(how does consumer expectation and reasonable consumer fit in???)

* PATENT DEFECT: Micallef v. Miehle Co. (1976)
Facts: P operated printing press. P tried to remove foreign object on plate by “chasing the hickey.” P used standard technique (custom)
and hand got caught in machine. Sued manufacturer of machine for negligent design and breach of implied warranty. Manufacturer knew
that the technique was dangerous, but failed to add hand guard.
Holding: D liable.
Key point: Even though patent defect (was obvious), P did not assume risk in using it. Manufacturer is the only one able to really
assess the dangerousness of a product, and the law should encourage him/her to do so. It is not a defense to say that defect was obvious.
“Open and obvious” just 1 factor, but not dispositive of the case. {Compare w/ Linegar!} Latent/patent distinction technically gone,
although some jurisdictions still use this. “We hold that a manufacturer is obligated to exercise that degree of care in his plan or design so
as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for
which the product was intended as well as an unintended yet reasonably foreseeable use.” Overruled Campo doctrine (only liable for
latent, hidden, defects). (TJ Hooper—custom not sufficient.

* NEGLIGENCE (REASONABLE) STANDARD: Volkswagen of America, Inc. v. Young (1974)
Facts: Car struck from behind by another car. Second collision resulted when back seats tore loose and went slamming into front. Sued
Volkswagon for negligent design and manufacturing so that product is hazardous—kitchen sink/deep pocket theory. Volkswagon
defended on grounds that protection in accidents is not intended use of car, and one can not be held liable for improper design in this
Holding: D liable.
Key point: Chooses to follow 8th Cir. (Larsen- accidents foreseeable and probable, so must provide safe transportation) over 7th Cir.
(Evans- no duty to design for accidents b/c not intended purpose). “Traditional rules of negligence lead to the conclusion that a
manufacturer liable for defect in design which, if it could reasonably foresee, would cause/enhance injuries on impact, which is
not obvious/patent to user. This is not strict liability, but negligence. Strict liability is only an add-on issue. Reasonably foreseen would
cause/enhance injuries on impact. Which is not patent/obvious to user.

* REJECTING 402 “UNREASONABLY DANGEROUS”: Barker v. Lull Engineering Co. (1978)
Facts: High-lift loader operated by P on uneven terrain. Machine started to vibrate; P jumped off and was hit by lumber. Sued for strict
liability in defective product design.
Holding: Liable. gives choice b/w 1) consumer expectation or 2) “risk/benefit” test
Key point: Rejection of “unreasonably dangerous” standard: “We conclude that once the plaintiff makes a prima facie showing that the
injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the
relevant factors, that the product is not defective.” Ct. concludes product is defective in design when 1) it fails to perform as safely as
ordinary consumer expectations when used in intended or reasonably foreseeable manner and 2) risk of design outweighs benefit.
Rejecting (402A. Version of res ipsa—under risk/benefit stnd, feasibility v. cost of alt. design.

* FEDERAL STANDARDS Wilson v. Piper. (1978).
Facts: Wrongful death action for people who died in personal airplanes. P claimed design defects in plane’s susceptibility to ice, and
design of rear compartment. D claimed design not defective b/c. it met FAA regulations.
Holding: If fed. agency approves a product, there CAN still be liability for manufacturer. Fed standards are just the minimum
that must be met — but a strict burden is on the P to show that there is an acceptable, alternative design while doing risk/benefit
Note: FAA was aware of defect and still approved engine Rest (3rd) §4(b).

* REJECTING RS3d; HYBRID STANDARD: Potter v. Chicago Pneumatic Tool Co.
Facts: Shipyard workers claimed pneumatic tools were defectively designed, excessive vibration and failed to provide adequate warning.
Holding: Ct rejected 3d’s requirement that Ps should prove feasible alternative design, b/c it poses 1) undue burden on Ps that might
preclude valid claims from jury consideration, 2) require Ps to retain expert witness even in cases in which jurors can infer design defect
from circumstantial evidence, and 3) there may not even be feasible alternative designs anyhow. Adopted risk-utility balancing
component into a modified “consumer expectation” test. Relevant factors: usefulness of product, likelihood/severity of the danger
posed by the design, the feasibility of an alternative design, the final cost of an improved design, the ability to reduce the product’s danger
w/o impairing its usefulness or marketing too expensive...

III. The Duty to Warn (See my own notes)
* MacDonald v. Ortho Pharmaceutical Corp. (1985) {rejection of learned intermediary doctrine w/r/t patient’s active choice
of drug}
Facts: (P), a healthy woman, got birth control pills from her doc. Pill dispenser labeled w/ warning that “the most serious known side
effect is abnormal blood clotting that can be fatal” & booklet, but P sued company for inadequate warning when she had a stroke and
suffered permanent brain damage. Packaging met FDA regs, but not enough. Didn’t say “STROKE”
Holding: Liable. {battle of the experts...}
Key points:
(1) There is a duty to warn and the warning must be adequate. REJECTS learned intermediary doctrine: manufacturer of oral contraceps
CANNOT rely on doc’s warning to patient; manufacturer has a duty to warn the ultimate user b/c (i) pills are personally selected by
patient, who has heightened participation in decision to use drug & the doctor is in a relatively passive role, (ii) physical only examines
once before and only annually thereafter, leaving patient an infrequent opportunity to get adequate in-depth info about pill.
(2) Extent of duty to warn: (i) must provide written warnings conveying reasonable notice of nature, gravity, and likelihood of
known and knowable side effects & advising consumer to seek fuller explanation from doctor; (ii) manner-- “comprehensible to the
average user”. Must warn w/ degree of intensity demanded by the nature of the risk. A warning may be found to be unreasonable in that
it was unduly delayed, reluctant in tone or lack in a sense of urgency.
Dissent: Doctor is in better position to tailor warning to patient.

* Perez v. Wyeth Labs {Rejection of learned intermediary doctrine for advertised drugs}
Facts: Women, who had used Norplant and suffered pain & permanent scarring in the removal process, sued the drug manufacturer, who
had directed its advertising campaign towards women rather than their doctors (via tv ads, women’s magazines, etc.) No ads warned of
the dangers or side-effects, like pain and scarring.
Held: NJ ct disagreed that learned intermediary doctrine is enough due to advertising to consumers and REMANDED the decision,
saying learned intermediary doctrine did not apply.
(1) Using direct-to-consumer mass marketing to advertise drugs & thereby seeking patient’s choice of drug should NOT exempt drug
manufacturer that makes direct claims to consumers for the efficacy of its product to be relieved from duty to warn. {this case is a “slam”
at medical profession for posing that doc-patient relationship is central, when in reality--> it’s no longer the case!”
(2) RS 3d: A prescription drug/medical device is not reasonably safe due to inadequate instructions/warnings if reasonable
instructions/warnings re: foreseeable risks of harm are not provided to:
1. prescribing and other health-care providers who are in a position to reduce risks of harms (learned intermediaries)
2. the patient, when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks
of harm in accordance w/ the instructions or warnings.
(3) Policy Concern: the marketing gimmick used by drug co’s often provides consumer w/ a diluted variation of the risks associated w/
* Practical Caveat: if a drug co. is going to advertise, better warn very very adequately!! otherwise, don’t advertise and stick to old
method of targeting docs!

* Daly v. GM Corp. (1978) (Design defect) represents MAJORITY VIEW
Facts: Decedent driving on highway, hits barrier, ejected from car and dies. P suing GM for defective design of the door lock that
allowed the door to open and decedent to be ejected. GM claims decedent not using seatbelt, which would have restrained him, and could
have locked door. Also, decedent was drunk.
Holding: Liable, but damages reduced proportionate to decedent’s comparative negligence .
Key point: Comparative negligence DOES apply in Strict Liability (in logic no, but in principal, yes). Argues that the rationale behind
SL was to address problems of proof, and hence, comparative negligence does not compromise.
{This is a real break from product liability progression. (like Li). B/c fair and just. Hmm. P must prove mfg neg still; D’s
liability remains strict just that P’s recovery will be reduced to extent of negligence. Mfg still has incentive to produce safe product.
Hmm.} *Rosenblum critizes b/c issue of proof was taken care of by res ipsa!
Mosk dissent: Rejects application of comparative negligence into SL. Ct’s injecting negligence into a products liability case where it has
no right to be!
LESSON: law is not fixed and definitional. we look for measures of experience, try to accommodate law to the realities of experience....

X. DEFAMATION -- See my Own Notes!!
libel = written
slander = oral
1. Concern in defamation law = harm to reputation (not what physical or emotional harm befell P ). Concern w/ whether what was
said or written creates likelihood of hate, contempt of fellow people/ whether it creates a reaction in some recognized group.
2. Burdens on P
         a. to establish that the statements were defamatory
         b. to demonstrate that there was publication. (Publication does not necessarily mean from a publisher- for a private person, a
         letter can be enough)
         c. to demonstrate that a particular statement was made of and concerning P. If there is basis for identifying a particular i
         ndividual as part of a group, P has burden of proof.
3. Defense of truth is always present in defamation cases, but P does not need to establish falsity. D has burden of establishing truth.

Supreme Ct. decision in NY Times held that public officials could maintain actions in defamation only w/ proof that D's statement was
made w/ "actual malice". Actual malice= w/ knowledge that statement was false or w/ reckless disregard of the truth.
-all common law rules must be considered under 1st Amendment right to free speech/ press. Balance of interest in protecting reputation
and freedom of speech.
-Among P s important distinction b/t public officials/ public figures and private parties.
-Among Ds critical distinction b/t media (broadcast and print) and nonmedia.

* Brown v. Williamson Tobacco Corp. v. Jacobson (1986)
Facts: Brown is tobacco company. Years before an advertising firm produced a report for them, suggesting that they target young people
in general. Co. rejected report and fired co., but FTC found report and incorporated it into their report on cigarette advertising. Jacobson
incorporated the FTC report into a television report it did on the cigarette advertising. Brown sued for liable.
Holding: Brown recovered damages, b/c. the information was not privileged. Government documents can be reported accurately, even if

they use inaccurate information, but if you stray from the document at all, you’re in trouble. If you go beyond the record of the record at
all, you are responsible for the information’s accuracy.
Key point: Fair summary. (trying to get promotion of asst in front of jury.

Public Officials and Public Figures
* New York Times v. Sullivan (1964) — US Supreme Court case.
Facts: NYT published advertisement signed by 64 prominent public figures, decrying violence in South and including allegations about
acts against blacks in South. NYT didn’t check facts, and while most everything nearly accurate, there were small factual errors and
signatures were not legitimate. Sullivan is the chief of the Montgomery police, and is suing NYT. Claims ad injured his professional
reputation by alleging general stuff about police. Times said ad did not refer to Sullivan, was substantially correct, and comments on the
acts of public figures were privileged under the 1st and 14th amendment. Sullivan won at all lower court levels.
Holding: D not liable.
Key point: Brennan- commitment to speech on public issues.
Trial court level: truth is not a defense b/c. there were factual inaccuracies in the ad. Defense that statement is “of and concerning” the
individual bringing the suit doesn’t work b/c. as commissioner of the police, statements about police can lead to him. “Defendant must
have opportunity to retract.” NYT didn’t retract for Sullivan, only for governor. That’s not good enough. Four other suits also brought
against NYT: AL took defamation law as a way to preserve their way of life.
Supreme Court level: the public has a right to criticize public acts. It is unconstitutional to say defamation laws can be used to prevent
such criticism. New standard: black letter for all time henceforth: need proof of actual malice, knowledge or reckless disregard for falsity.
SCOPE: public officials for their official conduct. Applies to anyone, not just media.
Problem: in aftermath, court did not stop. Expanded standard to “public figure” (Curtis); added additional standards (Gertz).
Clear and convincing standard for actual malice not preponderance of evidence.
STANDARD: P.offical = P and anyone other than p. official = D.
P must establish knowing falsity and convincing disregard.

Private Parties
* Gertz v. Robert Welch, Inc. (1974)
Private Party/Public Concern
Facts: Lawyer hired by family to bring wrongful death suit against p. officer for death of son. Reporter then published article saying that
lawyer was framing the police officer and being a Communist.
Holding: D liable. Lawyer is not a public figure.
Key point: When dealing w. a media defendant and a private figure, NYT does not apply. There must be a showing of fault and actual
injury. Ct. explained standards of media in cases w/ private figures- defamation will not be strict liability tort when dealing w/ media D
there must be showing of fault and showing of actual damages to meet constitutional standards. Not clear if this case limited to media Ds
or not.

* Philadelphia Newspapers v. Hepps (1986)
Facts: Media published a series of articles claiming that Hepps was a mobster who improperly influenced state and local govt. Hepps
sued for defamation. At trial, plaintiff had burden of proving that the accusations were false.
Holding: No recovery. In a defamation action by a private citizen against a news media outlet in a matter of public concern, the P has the
burden of proving falsity.
Key point: Public policy: better that some falsehood go unrebutted than important speech be chilled. Truth is a legal defense, but if P
does not prove falsity-no recovery. P must prove falsity, but ct. does not say by what standard (clear and convincing? preponderance of
the evidence? beyond reasonable doubt?- all possibilities). Case leaves a range of variables. (5-4 decision)

To address in Defamation cases:
        1. explicit rule in NY Times
        2. potential application of Gertz (arguability of issues in case)
        3. burden of proof from PA Newspapers w/ recognition that it is v. close majority opinion.


For Policy Question:
CONS -- problems: “trial judge, acting as gatekeeper, must ensure that any/all scientific testimony or evidence admitted is not only
relevant, but reliable”. 1) This requirement asks judges to make subtle and sophisticated determinations about scientific methodology
and its relation to the conclusions an expert witness seeks to offer. problem= trial judges are not scientists! do not have the training that
can facilitate the making of those decisions.... 2) pile on top of that the lax standard of appellate review that will only overrule a judge
when there has been an “abuse of discretion” standard--> which ultimately, this means that trial judges usually determine the outcome of
cases! --> concern for forum shopping!

PROS/ways to get around problem?-- J. Breyer (in concurring opinion for Joiner) encourages judges to make use of their inherent
authority to appoint (their own) experts! modern life, including good health as well as economic well-being, depends upon the use of
artificial/manufactured substances--> important that judges fulfill their Daubert gatekeeping function

* King v. Ford Motor Co.-- Ford had 2 experts whose testimony was excluded b/c parties did not disclose in a timely manner which
experts will appear at the trial...legitimacy and propriety of expert testimony decided by trial ct judge, who is the gatekeeper of expert
* Daubert Rule: 1) testing 2) peer review 3) error rates and 4) general acceptance no longer limited to scientific testimony
* Kumho Tire v. Carmichael (S.Ct): Daubert’s gatekeeping obligation (requiring an inquiry into both relevance and reliability, applies
not only to “scientific” testimony, but to all expert testimony.
 -- Methodology is KEY! Even if a court does not question an expert’s qualifications, the court may exclude his testimony when the
methodology (in Kumho, the visual and tactile examination of a tire to conclude design defect) is unrealiable in the absence of evidence
that other experts in the industry did not use similar approaches... suitability of expert testimony to the particular circumstances of this
* General Electric Co. v. Joiner (1997): {P, a chain smoker, claimed his exposure as electrician to chemicals at plant “promoted” his
lung cancer. D contended no evidence of exposure to chemicals, no admissible scientific evidence of causation, here, studies that
supported opinions were so dissimilar to case, so trial judge granted SJ b/c testimony of Joiner’s experts failed to show causal link-- did
not rise above “subjective belief/unsupported speculation”, thus inadmissible}. HELD: abuse of discretion is the proper standard
* Jaurequi v. Carter Manufacturing (excluded exp. test. based on Daubert in corn head products liability case were p’s legs were
amputated). P’s exp ts gave conflicting statements, etc. not reliable under Daubert--
* Curtis v. M&S Petroleum: held that trial ct ABUSED ITS DISCRETION when it denied medical testimony that workers were exposed
to too much benzene. knowing that levels were too high (not the exact amount) was fine. Used learned intermediary doctrine (dupont
was exonerated) LESSON: we must be prepared for alternative attitudes / perceptions of appellate courts (we don’t know which attitude
will be controlling, so we must be prepared...)
 * Silvestri v. General Motors : (in which an air bag failed to deploy) NO expert testimony was required (just needed evidence that aribag
was intended to deploy in comparable situation, that it did not deploy, and that driver’s injures were not caused by factors other than
nondeployment). Although there’s centrality of expert testimony, we are reminded by this case of instances in which exp. testimony
NOT necessary to establish prima facie case...
** BMW v. Gore-- witness testifying on behalf of Dr. Gore reduced value of car (allowing him to recover punitive dmgs in
    the 1st place)
** Pouncey v. Ford-- battle of expert testimonies


* the Constitutional limitations on punitive damages as delineated in BMW v. Gore, in which the Due Process clause was invoked to
restrict the size of punitive awards when “gross and excessive.” This determination is affected by 1) the degree of reprehensibility of the
offense, 2) the ratio of punitive damages to actual / potential harm suffered, and 3) whether the punitive award is comparable to penalties
authorized / imposed in comparable cases.


           Intent to pre-empt state law may be revealed via:
(i) “express pre-emption” (in which Congress defines explicitly the extent to which its enactments preempt state law);
(ii) “field pre-emption” (in which state law is pre-empted because Congress has regulated a field so pervasively), and
(iii) “implied pre-emption” (in which the state law conflicts with the federal law and creating an impossibility of complying with both).

           The presence of a savings clause does not bar the ordinary workings of pre-emption principles when there is implied pre-emption
(i.e. a savings clause may not suggest an intent to save state law tort actions that conflict with federal goals). Rather the court must look at

the rest of the text and the actions of Congress to discern its true intent. (Geier)


PROS of Class Actions:
By “teaming up” with other plaintiffs, a class action suit becomes in theory an efficient populist mechanism that
  permits Ps to put authority on trial with collective clout and to promote the redress of social grievances, especially against
  large, impersonal institutions (that may not be as motivated to change its practices when just threatened with a lawsuit by
  /settlement with one person, as opposed to a huge, attention-grabbing class action suit .

CONS of Class Actions:
(i) the tremendous time and burden of litigation (Ortiz was locked up in litigation for 20 years);
(ii) the dilemma of an insolvent (D) having limited funds (inadequate $ to fully compensate each (P); and
(iii) the serious ramifications that follow classification of a suit as a 23(b)(1) class action, which becomes a “mandatory” class action that
disallows absent claimants the right to opt out, potentially resulting in denial of due process to many claimants.

* pose a conflict of interest b/w (Ps) and their lawyers, because lawyers may be inclined to accept a settlement that rewards them
handsomely but does not adequately reward the plaintiffs classified in the class (who, in extreme cases, can often receive a mere pittance
of an award--like an Ameritech coupon!), as well as the injured individuals with more speculative claims in the future who have not been
classified within the class.



To top