1. Tort: A civil wrong for which the law recognizes a legal remedy on behalf of a
2. Answer structure
b. prima facie case
d. vicarious liability?
II. Intentional Torts
A. Battery- To maintain a battery action a plaintiff must establish three elements:
a. a contact
b. that is harmful or offensive
c. that the defendant caused the contact intentionally
1. Intent- a person acts with substantial certainty of the consequences
a. Garratt v. Dailey (Wash. 1955) G v. D. involved a minor, who while visiting a
neighbor, moved a chair right before another visitor attempted to sit. The visitor
was injured and filed for battery. Intent found.
2. Def does not need to forsee outcome of action
a. Vosburg v. Putney (Wis. 1891) V. v. P. involved a minor that kicked a
classmate and due to a previously healing injury caused extreme damage in
classmates leg. Was held liable for all resulting damage.
3. Physical contact with the person is not necessary
a. Fisher v. Carrousel (Tex. 1967) Manager of restaurant knocked plate from
guys hand. Court found contact not necessary as long as there is contact with
clothing or an object closely identified with the body.
4. Offensiveness is context dependent and based on an RP standard in that context
5. Transferred Intent- liability is allowed when def acts intentionally towards one
person but injures another. Also transfer btw torts- intent for one resulting in another.
a. Shaw v. Williamson Tob. Corp. (D. Md. 1997) Addressed idea of can a
company be held liable for battery if they caused harmful contact with an
individual and acted with sub certainty that someone could be harmed- but did not
act against any particular individual. Here found not to apply
B. Assault- to maintain an action, plaintiff must establish:
b. reasonable fear or apprehension of,
c. imminent threat of harmful or offensive contact
1. Apparent ability to harm is all that is necessary (gun does not have to be
loaded) based on RP in the circumstances
a. Holloway v. Wachovia (N.C. Ct App. 1993) Agent of collections attempts to
repossess car and threatens defaulter and family with gun in process. Also
inadvertently touches defaulter and her son.
2. Apprehension not necessarily fearful- (Muhammad Ali and old lady example).
3. But it must be
a. immediate temporally (not something that is threatened for later),
b. close physically (not over the phone),
c. actual (as opposed to hypothetical- if I was mad, violent etc.)
C. False Imprisonment- ac actor is subject to liability under false imprisonment if
a. he acts intending to confine the other or a 3rd person within boundaries
fixed by the actor
b. his act directly or indirectly results in such confinement
c. the other is conscious of the confinement or harmed by it
1. Area of confinement must be a bounded area
a. Techmiller v. Rogers Memorial Hospital (WI 1999) Hospital emp. Discharged
under disputed circumstances claimed false imprisonment when her superiors
physically followed her and stood in her way as she filled out her exit paperwork
and tried to photocopy it. Court said no FI.
2. Issues of boundaries include size and strength of others.
3. Physical restraint is not required (threat of force enough)
4. Does the individual need to ask to leave? Consciousness of FI required
5. Sometimes inaction can be confinement (boat docked off shore example)
6. in general the extent of time an ind. is confined is irrelevant
D. Trespass to land-one is subject to liability under trespass, regardless of whether there is any
harm to any legally protected interest if he intentionally
a. enters land in the possession of another, or causes a thing or a 3rd person
to do so, or
b. remains on the land, or
c. fails to remove from the land a thing which he is under duty to remove
1. Traditionally an act of physical invasion of someone or by something
a. Amphitheaters Inc. v. Portland Meadows (Or 1948) Owners of an outdoor
movie theater sued race track next door claiming that the lights from the track
crossed the boundaries of ownership and interfered with their use of their
property. Court found against them, light not physical enough.
2. Physicality is not always a determinate factor- issue is generally
exclusive control of property
a. Bradley v. American Smelting and Refining (WA 1984) Landowners sued for
trespass damages from deposit on their property of airborne particles of heavy
metal from copper smelter nearby. Can a factory demonstrate intent by releasing
particles- court held it could as reasonable certainty particles would land on
property near by. Case remanded for further action, were there actual damages?
b. trespass is different from nuisance- trespass interference with exclusive
property rights; nuisance interference with use and enjoyment of land-
trespass is lasting; nuisance is ephemeral
3. Intention is to do the action, intent to do the trespass is not necessary
(mistake is no defense)
4. Physical trespass does not require any proof of damage, non-physical
trespass, courts have usually required actual damage
5. traditionally in trespass an owner owned property in a column, up to
heaven and down to hell. Today the rule is one of effective possession-
airspace above and subsurface only owned to the extent of practical usage.
E. Trespass to chattels-may be committed by intentionally using or intermeddling with the
chattel in possession of another, but only if
a. he dispossess the other of the chattel, or
b. the chattel is impaired as to it’s condition, quality, or value, or
c. the possessor is deprived of the use of the chattel for a substantial time, or
d. bodily harm is caused to the possessor, or harm is caused to some
person or thing in which the possessor has a legally protected interest
1. In trespass to chattel (unlike trespass) there must be proof of damages
deprivation of use can be a harm
a. Compuserve v. Cyber Promotions (OH 1997) An online computer service sued
an online promotional business for sending continuous unsolicited emails to
subscribers after they were unable to prevent the emails through technological
actions. Court found this was trespass to chattels.
2. chattel applies to personal property, not real property (which is trespass)
3. like trespass intent is an element but mistake of ownership is no defense
F. Conversion- an act that so seriously interferes with the right of another to control the property
that the actor may justly be required to pay the other the full value of the chattel.
1. The seriousness can be determined by:
a. the extent and duration of the actor’s exercise of dominion and control
b. the actor’s intent to assert a right in fact inconsistent with the other’s
right of control
c. the actor’s good faith
d. the extent and duration of the resulting interference
e. the harm done to the chattel
f. the inconvenience and expense caused to the other
2. Good faith is an issue in conversion, but does not necessarily mitigate
the fact that mistake is no defense
a. Wiseman v. Schaffer (ID 1989) A tow truck driver received a call requesting
that he tow a truck from a truck stop to a welding yard with the money in the
window. He believed he was authorized and did so. The call was from an
imposter and the truck was then stolen from the welding yard. Court found he
was guilty of conversion.
3. physical damage is not necessary for conversion (asserting dominion for a
substantial period of time is sufficient)
4. differences from trespass to chattel include degree of invasion ( issues of time and
destruction) and “forced sale” remedy- the dispossession of the chattel was so
extreme the court may force the def to pay the full value of chattel at the time of
a. usually conversion is more extreme that TtC but because of last element
it is possible that damages for TtC will be more than conversion (though
unusual) if value has risen since taking
G. Intentional Infliction of Emotional Distress- the following elements must be established:
a. the conduct must be intentional or reckless
b. the conduct must be extreme and outrageous
c. there must be a causal connection btw the wrongful conduct and the
d. the emotional distress must be severe
1. The relationship btw the parties is crucial in IIED- the more difference
in power the more likely the court is to find IIED.
a. Figueirido- Torres v. Nickel (MD 1991) A patient seeking personal therapy and
marriage counseling discovers this therapist is having an affair with his wife while
counseling him to maintain his distance from her and demoralizing the patient
with destructive statements. Courts finds IIED.
2. This is the newest Int Tort and is disfavored by courts- the conduct must be
really outrageous- beyond all bounds of decency accepted by society.
a. Caldor Inc. v. Bowden (MD 1993) A minor was accused of stealing from his
place of employment, imprisoned and forced to sign a confession and then
publicly arrested and insulted. Court does no find IIED.
b. problem of proof in severity clause- is a physical manifestation of the
emotional distress necessary? Generally the more outrageous the conduct
the less proof in severity needed
c. is expert testimony an unspoken requirement for this tort?
3. standard is objective; to the reasonable person
4. generally transferred intent is not accepted for IIED.
III. Defenses to IT
A. Consent- to one who is willing no wrong is done (volenti non fit injuria). When are actions
consenting? Who has the burden of proof?
1. minors, intoxicated people, and the mentally disabled cannot consent to an intentional
tort. (However should lack of capacity negate a lack of consent?)
2. consent does not have to be verbal but can arise from actions.
a. Peterson v. Sorlien (MN 1980)- a young woman of legal age was confined
against her will by her parents in order to deprogram her from a cult. She sued for
FI. The court found her subsequent behavior after the FI began was a
manifestation of consent and so her parents were not liable.
3. what if a def tricks a P. into consenting? Fraud negates consent generally.
4. often in consent biggest issues arise in situations of sex (was there consent either
express or implied in this situation) and athletics (does the setting always imply consent)?
b. Hackbart v. Cincinnati Bengals (10th 1979) A football player from one team
was struck by another in the head and neck causing a fracture in action only
indirectly related to the game, no foul was called. The injured player sued the
other for battery. The court found that by agreeing to play the game, which
forbids the intentional striking of blows, the player did not consent to the potential
B. Self Defense- An actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact
or other bodily harm which he reasonably believes that another is about to inflict intentionally
upon him. (RE of torts)
1. John Wayne defense- in US courts running away or leaving the situation, as the
easiest way to prevent harm in some situations is not required.
2. reasonableness of perceived threat of force is an objective standard
3. equivalence rule- if there is threat of death or serious bodily harm the def can protect
himself or the other to that extent, if the threat of harm is less the defense must be less
a. Roberts v. American Employers Ins. Co (LA 1969) police officer in New
Orleans making and arrest, force was justified
b. Courvoisier v. Raymond (CO 1896) A homeowner shot an approaching officer,
as the officer came towards him in plain clothes. Court held behavior reasonable
under the circumstances.
4. the person does not have to wait until a blow has struck as perhaps them
it will be too late
5. Defense of others- Also an allowed defense. When you act in defense of
others- do you act at your peril? Are you reasonably justified in believing they
are about to be attacked? Is it what you as a bystander reasonably believe or what
they reasonable believe?
C. Defense of Property- A person may use reasonable force to protect property when she
reasonably believes that force is necessary to prevent the intrusion (RE of torts).
1. equivalence rule applies- The force used must be proportional to the threat
2. no deadly force in defense of property
a. Katko v. Briney (IA 1971) A property owner set up a shot gun in the room of a
house not his home. There were no signs and it was in a closed room (court held
secrecy and lack of warning contributed). A petty thief entered and was injured.
Court held a property owner cannot use extreme force to protect property alone.
b. traditionally courts have allowed more force in defense of property and
land than personal property. The closer the property is to the person and
their home and family the more this true.
3. “hot pursuit” rule- in addition to limiting force, courts also limit the time
someone has to defend their property. If the property is already gone the owner
must sue for loss rather than attempt to recover it themselves.
4. The defense of property may be used to detain shoplifters (defense from FI) by
store owners, but only if the ind is detained based on
a. reasonable suspicion and
b. for a reasonable period of time.
D. Necessity- the law permits interference with another’s property under certain emergency
1. private necessity- one is privileged to commit an act which would otherwise be
a TtC or a conversion, if it is or is reasonably believed to be necessary to protect
the person or property of the actor, the other, or a 3rd party from serious harm,
unless the actor knows that the person for whose benefit he acts is unwilling that
he should do so.
a. Ploof v. Putnam (VT 1908) During a large storm a boat with a
man and his family were sailing and were obliged to dock. The servant of
the owner released the mooring; the boat capsized and the family was
injured. The court held necessity gave the family a right to dock there and
the owner was liable for their injury as a result of the unmooring.
b. P. v. P. stands for the idea that the defense of private necessity is a
complete defense, like self-defense. This is the opposite of historical
trespass law (where no duty was owed at all if not invitee or other
2. However where the act is for the benefit of the actor or a 3rd party, he may be
subject to liability for any harm caused by the exercise of the privilege.
a. Vincent v. Lake Erie Transport (MN 1910) A ship docked at a port to
unload goods. While the boat was there a storm blew up and the boat
remained docked. The court held that the boat owner was liable for
damages to the dock, it had the right to remain, but compensation should
still be made.
3. public necessity- One is privileged to commit an act which would otherwise be
a TtC or a conversion if the act is or is reasonably believed to be a necessity for
the purpose of avoiding public disaster.
a. US v. Caltex ([Philippines] 1952) WWII destruction of Caltex facilities
in Manila by Army.
b. in public necessity there is an absolute privilege, a def who successfully
raises this defenses need not compensate the P. for losses.
-Focus is on whether the risk was foreseeable and whether the def’s conduct fell below a level of
reasonable care in light of foreseeable risks.
-P. must prove 1- duty of care; 2- breach of the duty; 3-caustation- both a- cause in fact and b-
proximate cause; 4- damages.
-Generally the duty is to avoid the foreseeable injury- a duty not to be negligent.
-Brown v. Kendall (MA 1850)- development of a fault based system- P. must show intention or
neg. Def must exercise ordinary standard of care.
-The issue of whether or not a def was neg is almost always a jury question.
A. Reasonable Person standard of care-
1. Objective standard of reasonable person under the same circumstances used for
a. Vaughn v. Menlove (Eng 1837) Farmer built a bad hay rick and made a
chimney in to it to release air. It burned and damaged his neighbor’s
property. He was sued, but replied he had acted using ordinary prudence
to the best if his judgment. Court found an objective standard of prudence
2. legal fault here differs from moral fault (def did not have too mean to hurt anyone)
3. jury judges actions based on their own knowledge and experience (works best when
they are familiar with the action i.e. driving, as opposed to medical operations)
B. Applying the RP standard- though in general the objective standard applies regardless of
ind. characteristics the law has always recognized certain exceptions.
1. minors- generally even with minors there is no question that a duty exists,
however to what extent can children be expected to exercise care?
a. Charbonneau v. MacRury (NH 1931) A 17 year old driving his mother’s car is
unable to stop when car in front of him breaks and runs into the back. Court
decides he should not be held to adult standard of care.
2. General rule for children used to that they were expected to exercise a reasonable
standard of care compared to other children of like age, experience, and intelligence in
the same circumstances- semi-objective standard.
3. Many jurisdictions have now modified semi-objective standard holding that minors
engaging in dangerous adult activities will be held to the standard of an adult engaging in
the same activity.
a. Daniel v. Evans (NH 1966) A 19 year old is involved in traffic accident. The
court found that minors engaging in adult activities will be held to same level of
care as an adult.
4. the elderly- senior citizens are held to ordinary standard of care, any physical
disabilities they suffer (rather than just age) may be taken into account, but not
5. the RP woman- is the reasonably prudent woman different from the
reasonably prudent person? (sexual harassment lawsuits). Some jurisdictions have
adopted a reasonable woman standard for harassment cases. Should there be a
reasonable man standard for cases of reverse discrimination? In these cases it is the
behavior and circumstances of the P. that is considered in addition to that of the def.
6. physical disabilities- In general the common law does allow physical
disabilities to be taken into account.
a. Physical disabilities are generally visible, measurable, and verifiable and the
jury may take into consideration how a reasonable person with that disability in
that circumstance would have behaved.
7. drunkness, blackouts, seizures, and sudden mental illness- A question that
arises is what level of notice did the person have in expecting the event.
a. A person may not be held liable for a results of a seizure while driving if they
have never had one before, if they have had them a court may find them liable for
the same damages.
b. The same may apply to sudden mental illness and if people have
medication and if they took it of not.
c. Public policy wants to encourage drunk people to walk rather than drive, so
they may held liable for accidents of driving, but not for contributory neg of a
accident while walking.
8. mental disabilities: insanity and Alzheimer’s disease- unlike physical disabilities,
mental infirmities are generally not taken into consideration in applying the RP standard.
a. Breunig v. American Family Ins. (WI 1970) A woman identified by her shrink
as suffering from schizophrenia got into a car accident as a result of a delusion in
which believed she was Batman and her car could fly over the car in front of
her’s. The court held that in general insane people are held responsible for their
actions and there was an element of foreseeability in that she had had these
attacks before and the P. won.
b. Courts have been worried that mental problems are not sufficiently
visible, measurable, and verifiable (in spite of advances in diagnosis) and
so have held against them for fear of fraud.
c. The policy is to encourage guardians of people with mental disorders
to care for them and monitor and control their behavior and in theory
holding them liable will provide an added incentive for this.
i. there may be exceptions when people have been committed for care.
ii. Theisen v. Milwaukee Automobile Ins. Co.,- if a nurse is injured by a
an Alzeheimer’s patient in an inpatient facility should the patient be liable
for any injury done to the nurse? The court held that the patient should
9. wealth- should the wealth of the ind. affect the reasonableness of how he
spends his resources to protect himself and others from injury? The traditional
answer is no. Is can be taken into consideration however when determining
punitive damages (what amount is necessary to deter and punish?)
10. the expert- is there a different standard for an expert in a particular
circumstance? Are they held to a higher standard of care then someone else in the
C. The role of custom- Custom is one tool that courts allow juries to use in determining the
reasonableness of the behavior involved. Evidence of compliance tends to prove reasonableness
and evidence non-compliance tends to prove unreasonableness (though this is not always the
a. General rule was once that custom determined level of reasonable care
i. Titus v. Bradford RR (PA 1890) A RR had a practice of transferring cars
to narrow gauge tracks for transportation on the line. A brakeman was
killed operations and his mother brought suit. The court held that as this
was a standard business practice done everywhere, and so even if it was
dangerous it was not neg.
b. now custom sets the floor rather than the ceiling; relevant but not dispositive
ii. The T.J. Hooker (2nd 1932) Learned Hand-Three tug boats were headed
up the eastern seaboard each with coal barges attached. Because of the
weather each boat lost a barge. The barge owners contended the tug
owner was negligent for not having radio sets that would have alerted
them. The tug owner claimed it was not customary to have radios. Hand
held that it was neg of the tugs not to have radios and that when necessary
the courts can determine the standard that should be set.
c. at the very least custom can notify the jury of the seriousness of what they are
doing; if they find a def’s behavior neg when he was following the custom- they
are finding whole industry neg rather than just def.
2. In medical malpractice
a. The strict locality rule- a regional standard for practitioners in small towns
when compared to more urban doctors. Therefore custom is determined by a
local standard. Small v. Howard (MA 1880)
b. Almost all jurisdictions have replaced the strict locality rule with a more
expansive rule- national standard rule.
i. Brune v. Belinkoff (MA 1968) During a delivery in New Bedford the
anesthesiologist administered 8mg of pontocaine. Medical testimony
confirmed this could be a result of too much pontocaine though the norm
in New Bedford. P. appealed locality rule and court found it was no
longer the determinate standard in medical care.
c. However in some jurisdictions- though the standard is national the expert
witness must come from within the jurisdiction
d. In many Js now there has been replacement of national standard with
i. Helling v. Cary (WA 1967) Woman had eye problem for years and went
to her doctor many times. After several years the doctor tested her for
glaucoma, which proved to be the problem, though she was significantly
below the average age for onset. Her vision was significantly affected and
she sued. The court found that though the doctor had followed the
customary procedures they were inadequate for her protection and doctors
were found negligent.
e. informed consent was once governed by custom; now based on a right to know
i. Canterbury v. Spence (DC Cir 1972) 19 year old P. has back pain and
after GP goes to see neurosurgeon. P. did not ask about surgery or risks
and MD did not explain. After surgery mother came to hospital and
signed consent form. During recovery the P. fell and began to develop
paralysis. Court held that informed consent is required and that both
doctor and hospital can be liable jointly injuries.
f. informed consent. a cause of action distinct from ordinary malpractice- a totally
unconsented treatment would constitute a battery- however a consensual
operation in which the P. can claim they were uninformed about the risks gives
rise to a neg claim
g. Objective standard of decision before operation- if reasonable P. had known of
risks before the operation would they have gone forward (not post-op view);
D. Calculus of risk- affords a way of thinking about the circumstances under which an RP
would risk harm or would instead take steps to reduce that risk.
1. C of R formula= (B < PL) breaks reasonable behavior into 3 components
a- probability that a particular risk will occur (P)
b- the magnitude of the harm if it does occur (L)
c- the value of the interest that must be sacrificed in order to reduce the risk of
2. Cost /benefit analysis that results- the two side must be balanced and if B is less than
neg has occurred (would have been less burden to reduce risk than damage of resulting
a. US v. Carroll Towing (2nd 1947) Learned Hand- An unmanned barge broke
away from the dock and caused damage to other ships. L. Hand presented the
cost/benefit analysis (or risk/benefit analysis) in order to determine if the barge
owner was neg
3. Neg is a value judgment that society makes- and Posner argues that Hand calculus sets
it at the right level- efficient level- optimality- producing the greatest good for the
a. Rinaldo v. McGovern (NY 1991) A golfer missed his shot and the ball flew off
the course and onto the window of a car driving by and injured the driver. Court
held golfer not neg as his behavior did not unreasonably increase the risk of
driver- using calculus of risk- cost to golfer too high given chance of injury?
4. Calabresi- who is the best cost avoider?
E. Specifying the standard of care: criminal statutes, civil statutes, and negligence per se
Statutes are another tool that courts use to help set the standard of care for the RPP. In these
cases the legislature has passed a statute defining reasonable conduct in a particular situation.
1. Questions to ask where there is a statute:
a. is the statute relevant (is it a health and safety statute)?
b. was it meant to protect this P from this risk?
c. what is the effect of the statute in this J?
d. is there a defense accepted or necessary in the J?
e. Is there is a causal link btw the statute and the injury?
2. Criminal statutes (and federal)
a. criminal statute and civil remedy- does the legislature need to include the right
to a civil action in a statute or can the court find an implied cause of action? ?
i. Osborne v. McMasters (MN 1889) A drug store clerk sold a bottle of a
poisonous substance that was unlabeled as such and the customer died
from taking it. This violated 2 criminal statutes. The def claimed there
was no cause of action in the common law. The court held that all actions
of neg. are liable under the common law.
3. Civil statutes
a. Was the statute relevant in this case? -what was the apparent legislative intent
b. was it a health and safety statute- more likely the legislators were thinking of
the safety of ind. rather public or administrative purposes
c. was the statute meant to protect this P. from this risk?
i. Gorris v. Scott (Eng 1874) Sheep on a ship were not penned and washed
overboard in a storm. A statute required that all animals be penned during
the journey. The court denied recovery because the ordinance was to
prevent the spread of disease btw animals. Therefore the statute was
not to protect P. from this risk.
4. Negligence per se- when a relevant statute is violated the court will often treat
this as neg. per se- what does this mean from one jurisdiction to another?
a. Majority rule- conclusive evidence of neg - if the statute has been broken, that is
neg as a matter of law. Only the set excuses below are a defense. The def will
not be permitted to show the court that legislature has set an unduly high level of
i. Martin v. Herzog (NY 1920)- Cardozo- An ind was killed in an accident
with an automobile while driving a buggy at night w/o lights in violation
of a statute that the court held was directly relevant to the accident. Court
held the P.’s unexcused breaking of the statute was not just evidence of
neg. it was neg. as a matter of law. Only question for jury was is it
contributory (causal issue).
b. excuses (defenses) allowed for conclusive evidence neg
i. emergency (more dangerous than not to comply)
iv. Tedla v. Ellman (NY 1939) Sister and deaf-mute brother are walking
on the road in the direction of traffic flow. He is killed and she is injured.
Statute says walk against traffic. Court found that common law exception-
when traffic is very heavy in one direction peds should walk with traffic
also applied to statute.
c. Neg per se in other interpretations:
i. rebuttable presumption of neg- some courts hold that the burden
is on the person accused of neg to prove they were not (rather than
assuming they were) in addition to ordinary excuses the
accused can explain why it was reasonable not to comply with the
statute in a given circumstance. (Burden of production on def)
ii. prima facie evidence of neg- in this case the P. has the burden of
production and must prove that the def’s conduct was unreasonable
in not complying with the statute but def must put evidence on to refute
(Burden of proof on def)
iii. mere evidence of neg- violation of a statute is evidence of neg
that a jury may consider along with the other evidence of
reasonable and unreasonable behavior in the case. (same as res ipsa- just
gets P past motion to dismiss)
5. Is there a causal link btw the act that violated the statute and the injury?
a. How relevant is the statute to the accident?
i. Brown v. Shyne (NY 1926) P. was injured by chiropractor who was
found to be practicing w/o a license to practice medicine- a misdemeanor
under state law. Court held that statute was only relevant if it was the
proximate cause of the P.’s injury. Court held it was not the failure to get
a license that caused the injury, but the quality of the treatment (if that did
cause the injury)
b. a causation analysis should involve the elements of foreseeability and duty
i. Veseley v. Sager (CA 1971) A drunken man got in automobile accident.
The party injured sued the vendor of the alcohol as well as the man
himself. Previously court had held that selling alcohol was not a
proximate cause as the actions of the drunk intervened. In this case they
decided it was the proximate cause, a foreesable result- and that there was
a statute that prevented the sale of alcohol to drunkards for the protection
of the people of the state. Therefore the bar was neg.
F. Proof of negligence- when is negligence a matter of law and when does it need to go to the
1. “easy” cases v. “hard” cases
a. Holmes- rules of court (law) need to determine the standard of behavior where
it is unclear.
i. Baltimore & Ohio RR v. Goodman (US 1927)- A man was not able to
see past a RR crossing and was killed by a train. Supreme Court said the
man was contributorily neg as a matter of law, no jury verdict needed as
man did not take customary precautions.
b. Cardozo- due to factual variations most cases depend on the circumstances and
must be decided by the jury (this is often still held to be true)
ii. Pokora v. Wabash RR. (US 1934)- A man driving across a RR crossing
was struck and injured. Cardozo decides only a jury can determine if the
man was negligent or not.
c. workers comp- really easy cases (or not)- Post- WWI- workers compensation
was a revolution in torts law- previous to that assumption of risk and the fellow-
servant doctrine (boss not liable for actions of other employees) liability for
employees was very limited. The workers compensation system eliminated the
necessity of proof of liability, but in return payments to employees are determined
by a schedule of payments and are therefore much lower than court results.
d. FELA has become like workers comp for private employees-
exchange of lucrative results for security
i. Wilkerson v. McCarthy (US 1949) A federal ques about the Federal
Employer’s Liability Act (FELA). A RR switchman was injured on the
job while crossing a board-walkway that was chained off. He claimed RR
was neg as it was unsafe and employees used it regularly. RR claimed
contributory neg as it was boarded off and employees should not have
used it. Court found whether or not use was customary was a question of
fact and must go to jury.
2. res ipsa loquitur- (the facts speak for themselves) this doctrine allows a P. to survive
the def’s motion to dismiss based on circumstantial evidence. The judge decides that
based on the facts a jury could reasonably conclude the def was neg even though no
direct evidence of neg is presented.
a. This doctrine is applied when there is no direct evidence of the def’s conduct
i. Byrne v. Boadle (Eng 1863) The P. was walking outside a flour
warehouse when a flour barrel struck him as it was lowered from a
window. The def claimed it was not necessarily him or his employees and
there was no proof of neg. The court held that there was a clear prima
facie case of neg. based on the bare facts.
b. Wigmore test:
i. Event generally does not occur except as a result of someone’s neg
ii. the defendant had exclusive control of the instrument of harm
iii. the P. did not contribute to the incident (innocent P.)
c. Currently the restatement does not require the exclusive control
i. scope of duty of def must extend to P. (broader than before)
i. but other causes must be eliminated (narrower than before)- hence more
likely than not neg was def
d. most courts hold that res ipsa gets you past the motion to dismiss (in other
courts it may have a different impact on the burden of production or the burden of
e. if the facts point to what someone did wrong it is more powerful; than res ipsa
and should not be raised. However where the cause of apparent neg is unknown-
res ipsa should be used.
3. variations in exclusive control-
a. issues of predictability
i. Larson v. St Francis Hotel (CA 1948) P was hit by a chair that came out
of a window of a hotel while walking by on VJ-Day. Court granted
nonsuit- lack of exclusive control- could have been a guest that threw the
ii. Connolly v. Nicollet (MN 1959) Almost identical circumstances- but
not VJ-Day. Court held the hotel was responsible. Court distinguished
above case because in that case the party was a surprise, where as in this
case the party that lead to the chair throwing was a planned event and the
hotel could perhaps have provided more security.
b. res ipsa tests adding tests or factors tests?
i. Miles v. St. Regis Paper (WA 1970) P.’s husband was killed on the job
while unloading a logging train. Ques of control of situation was primary
as there was the rafting co and the RR co and each was in charge of diff
aspects. (P can’t sue rafting co because that was employer- workers comp
rules). Court found evidence of res ipsa- got case to jury- who found RR
had exclusive control and gave damages.
ii. here res ipsa seems to be a factors rather than adding test-
probability test for jury- but low threshold is not always true-
varies by court
4. res ipsa and medical malpractice- has been particularly helpful to Ps who go
to hospital for a routine surgery and wake up with an unexpected condition. Does
that alone give rise to a res ipsa claim?
a. clearly innocent P in these situations
b. conspiracy of silence in medical situations? Use of res ipsa to loosen
i. Ybarra v. Spangard (CA 1944) P. went in for an appendectomy and
woke up with sharp neck and shoulder pain that got worse after he left the
hospital. Defs included surgeons, nurses, etc. and so all claimed no res
ipsa as no exclusive control on any single persons part. Court found that P
was innocent and had been unconscious- hence could not identify anyone.
As neg had occurred based on result court held all liable and sent case to
c. with res ipsa causation does not have to be proved against any one def
d. conditional res ipsa- jury informed about other possibilities of neg. such as
V. Cause in Fact
Causation is the concept that focuses on the necessary link btw the def’s conduct and the P’s
injury. It is actually two distinct inquires 1- cause in fact (actual cause) and 2- proximate cause
A. But-for causation
1. but-for test- would the accident have happened but for the def’s neg conduct? The
but for test is only applied to the neg conduct. Obviously if no action was taken but
for would not arise, but that is not a part of the liability claim.
a. the but for test requires a firm finding that the def’s neg was a contributing
i. Lyons v. Midnight Sun Transportation (AK 1996) Decedent filed suit
against Midnight Sun as his wife was killed when pulling out of the
driveway in front of def’s vehicle. Def’s driving was found neg, but the
jury found the neg was not the legal cause of the accident. The accident
could have happened even if he was driving slower and neg behavior
alone does not establish causation
B. proving but-for: the slip and fall- proving but for causation can be hard in ordinary fact
situations. In slip and fall cases the dangerous condition must be negligently created and must be
proven to have been the cause of the accident.
1. how much can the jury draw on their own experience and common sense in
determining cause in fact?
a. Williams v. Emro Marketing (GA 1997) P slipped and fell at a gas station
owned by def. He did not see what he fell on, but based on circumstantial
evidence the claimed it was ice. P had a witness who testified that helped P off
ice and had seen ice from a pipe in that spot before. Court held circumstantial
evidence was enough to send case to jury.
C. multiple causes and the substantial factors test-
1. in situations were there are multiple factors the but for test does not usually work. The
courts then sometimes use the substantial factors test.
2. substantial factors test- is there a reduction in the chance of survival or an increased
chance in damages based on the factor in question? Was the event a substantial factor in
bringing about the harm?
a. Dillon v. Twin State Gas and Electric Co (NH 1932) A boy was killed while
playing on a bridge. He had climbed and was sitting on a horizontal part of the
structure above the main bridge. He lost his balance and grabbed on to a electric
wire to keep from falling which electrocuted him and caused his death. Def
claimed that as he would have fallen to his death anyway they should not be liable
for his death. The court held that a jury must determine his chances of survival
and calculate the damages owed based on his chance of survival and probable
injury had the electrocution not happened.
3. if two simultaneous forces neg injure a P they are both held liable
4. if two simultaneous forces injure P but only one is neg- that one is usually held liable
a. Anderson v. Minneapolis, St Paul & Sault Ste Marie RR (MN 1920) The RR’s
engine started a fire on P’s property. However soon after another ire sweeping
through the state also overran the property. The RR claimed that as the property
would have been destroyed anyway, they should not be held responsible for the
destruction. The court held that as they were a material factor in the destruction
of P’s property they could be held liable.
5. if two sequential forces injure P (neither is the but for) the first force is
held liable (if it was neg set) second is not (even if it was neg set); here
sometimes one neg party escapes liability but was not actually the cause of
D. cause in fact and proof of mathematical probabilities-
1. lost opportunity doctrine damages (or lost chance):
a. Weymers v. Khera (MI 1997) P was misdiagnosed and sued doctor and hospital.
Trial court found no proof of neg cause of damage (less than a 50% chance that
neg caused damage). P claimed relief based on lost opportunity doctrine- (allows
recovery when neg may have caused the injury- but less than 50% chance that it
did). Court held the lost opportunity doctrine only applied to cases of death in MI
2. pure lost chance approach- allows the P to recover for injury even though it was more
likely than not P would have suffered the injury if had not been neg- if there is a small
chance that def decreased P’s chance of avoiding injury P can recover all
3. proportional lost chance (majority rule in Js where allowed)- recovery limited to the
percent of chance lost multiplied by the total amount of damages that would ordinarily be
recovered in that action
4. substantial possibility of lost chance- P must demonstrate a substantial possibility that
the def caused the neg injury (though more than 50%- as that would be neg)
5. The Daubert rule is currently the standard in expert testimony. It is a two part test:
a. whether the testimony reflects scientific knowledge derived from the scientific
b. whether the testimony was relevant to the task at hand (logically advances
case). [Does this require positive scientific proof as below?]
i. Daubert v. Merrell Dow Pharmaceuticals (9th 1995)- Kozinski Two
minors brought suit against the pharm co for birth defects suffered. They
claimed Bendectin has caused there defects. The appeal focused on the
expert testimony requirements to be allowed in testimony on determining
causation. The court used Daubert analysis to bar all of the P’s expert
testimony. One expert was willing to say that the drug had caused the
birth defect based on what he knew- the court knocked this out because his
experiences and knowledge were based on what he though not the
scientific method. The others were all epidemiologists who were will to
say the drug could have caused the defects, but no that it had probably
caused the defects- statistically doubled their chances of birth defects and
so court held it did not advance the case as it was not conclusive enough.
c. there is an exception to Daubert for an individual’s treating physician-
as opposed to expert witnesses
VI. Proximate Cause
An event sufficiently important in bringing about the harm that the def should be held legally
responsible for compensation.
A. the direct cause test
1. under the direct cause test- the question is-was the injury the natural and probable
consequence btw the act and the result?
a. In re Arbitration btw Polemis and Furness, Withy & Co (Eng 1921)- Bankes,
Warrington, and Scrutton- Owners of a ship tried to recover for the destruction of
their ship during a period in which it was chartered to def and burned. The fire
occurred when a board was dropped into the hold during unloading. The defs
claimed the fire was an excepted peril- no one could have foreseen such a result
from dropping a board. The Ps claimed the def’s neg started the fire so they were
responsible. The court held the result of the neg was unforeseeable did not
matter, they had been neg and as a direct result the ship had burned.
2. The majority rule in the US is that if something is labeled a direct cause
than foreseeability does not matter
B. foreseeability as a duty limitation-
1. Palsgraf v. Long Island RR (NY 1928)- Cardozo- P was a passenger on the train
platform. On another track a passenger was rushing for a train and guard helping push
him onto the train allowed the passenger’s package to fall. It was a package of fireworks
and it fell into the tracks and exploded causing scales on the platform to fall and hit the P.
2. Cardozo analysis- returned to a duty analysis and found that there was no liability and
no duty to P that could not be foreseen (she was not within the “zone of danger” or “eye
of ordinary vigilance”).
3. Andrews analysis (dissent)- held that a foreseeable P was not necessary. Neg forms a
relationship btw the actor and the injured, therefore there is no duty to a particular P. At
some point the relationship is cut- but this is an arbitrary point determined by society.
Focus should be on proximate cause- not duty (as there is a general duty not be neg). In
cases where there is no direct cause the case must be looked at to see if the causal chain
has been broken. (issue of superceding intervening causes)
4. both views also incorporate issues of time and space- for Cardozo the P must fall
within the zone at any given moment; for Andrews the longer and further btw event and
damage the greater likelihood of intervening causes.
C. foreseeability and the risk rule
1. the risk rule returns the proximate cause search to the duty/breach consideration to try
and determine the type of risk of harm the def has imposed on the P to determine whether
the harm suffered was within the foreseeable risk.
a. The Wagon Mound (Eng 1961) The Wagon Mound was a ship that allowed a
large quantity of oil to spill into the bay through neg. P owned a dock which
caught fire when a rag caught flame under the dock from a spark released from
welding on the dock. The dock and the ship being worked on where both
damaged. The court rejected the direct test of Polemis, holding that an actor not
should be held responsible for all consequences no matter how unforeseeable.
b. Wagon Mound II (Eng 1967)- the owners of the ship damaged in the fire
also sued for damages. There the court found a foreseeable risk- that the oil
would damage another ship- once the risk is foreseeable the result is within the
risk- therefore the defs were held liable for this damage.
2. Leon Green analysis- duty is defined by the foreseeability of P and the foreseeability
of the risk to that P- time and space is less an issue than the relationship and the duty
defined- hence ships have a different relationship to each other than a ship to a dock.
D. foreseeability and the extent of harm
1. Should the risk rule apply to the extent of harm suffered by the P? This is the issue of
the thin skulled or eggshell skulled P
a. Stolson v. US (7th 1983)- Posner- P worked in a fed munitions plant and was
exposed to high levels of nitroglycerin. She sued for physical damages from
damage to her arteries and received this- but she also claimed continuing
psychosomatic suffering. Posner dismissed the case as a matter of law finding
there was no evidence that the neg had caused the hypochondria. With eggshell
cases he suggested the preexisting condition should be separated from tortuous
part of the injury and that the P should have to demonstrate what was due to tort
and what was not.
2. here Posner questions causation as it relates to the thin skull rule and switches the
burden of proof some
E. foreseeability and intervening causes-
1. intervening cause- when a def acts neg- a dangerous situation is created. If some other
actor or force then triggers the potential danger this other actor or force is an intervening
2. superceding cause- if this other factor is so extraordinary or independent of the
original neg that the def should be excused from liability- then this act becomes a
3. does foreseeability trump intervening causes?
a. Herman v. Markam Air Rifle (MI 1918) Here P was a saleswoman shot
by an air rifle by a customer. The manufacturer had sent a loaded gun to
the distributor who sent it to the store. The court held that the
manufacturer’s neg was the proximate cause- the injury was the natural
and probable result the neg- hence the customer was only an intervening
cause and the def was liable.
4. is the more blameworthy the action the more intervening causes
a. Marshall v. Nugent (1st 1955) On a blind corner a truck driver cut a curve. An
oncoming car swerved to avoid the truck and ended up in snow on the side of the
road. The driver and truck driver went to get the car out while Marshall at the
truck driver’s suggestion went up the hill to warn oncoming traffic of the
obstruction. Nugent came over the hill and swerved to avoid the truck- hitting
Marshall. Marshall sued the truck co who said no proximate cause. The court
held there was proximate cause- the risks created were not over the moment the
accident was avoided. As the injury was not remote from time and space from the
neg and occurred while the results of neg were being dealt with there was
i. Marshall could also have been protected by the rescuers doctrine
5. In superceding- intervening causes- proximate cause can also be used to prevent
immunity of safety workers- which is very rare
a. McLaughlin v. Mine Safety Appliances- where firefighter rescuing girl from
drowning was proximate cause in not warning nurse heat blocks could burn-
rather than manufacturer for not making warning prominent enough
6. the way in which intervening causes are labeled may effect how courts treat them (i.e
criminal actions, rescuers, etc.) but the main question remains either the foreseeability or
the scope of duty owed.
a. Brauer v. NY Central RR (NJ 1918) Collision btw train and wagon on grade
crossing. While RR was liable to owner for death of horse and wagon, court held
RR was also responsible for items stolen while driver was knocked out- RR had
hired there own detectives to protect goods in transit- therefore theft foreseeable.
i. this case seems to contradict the general rule that criminal behavior is
never foreseeable, because RPP follow the law (Watson v. Kentucky &
Indiana RR- RR tanker filled w/ gaoline derailed due to neg. If ex-
employee started fire on purpose RR not liable).
VII. Multiple Tortfeasors
A. joint and several liability-
1. j and s involves issues of causation where a P cannot easily distinguish the source of
harm. In such cases each def is liable to the P as though he were the sole tortfeasor.
2. The RE of torts instructs courts to apportion liability whenever possible. However
when damages simply cannot be severed j and s arises.
3. P can traditionally recover the full amount from either def in j and s.
a. Carolina, C & O RR v. Hill (VA 1916) P was a farmer whose land and crops
were damaged by the RR during construction. At the same time a lumber co. was
removing lumber from nearby and also damaged the property. The RR claimed
they should not be liable for damages that could have been done by lumber co.
Court held that as the effects were impossible to separate and the damage by the
RR could have been sufficient to cause the whole problem the companies were j
and s liable and so the RR could be responsible for the entire loss.
4. using substantial factors test there is proximate cause in j and s
5. municipalities often lose at in j and s (as an available deep pocket) under the traditional
rule that an even partially neg def can be liable for all of damages
6. a question has now arisen as to whether comparative fault Js should still have j
and s liability.
a. 11 still have j and s
b. 14 only have separate liability
c. the rest fall somewhere in the middle: (j and s subject to reallocation of
unenforceable shares in proportion to responsibility; j and s for economic
damages but not others; j and s only for those above a certain % of
responsibility- anywhere btw 10-60%
7. j and s (including the middle grounds) generally allows for settlement which
simply comp does not.
B. theories of joint liability-
1. concert of action-
a. Bierczynski v. Rogers (DE 1968) Two guys were drag racing on the highway. P
was injured in contact with one of the cars.
b. The court held both defs j and s as they were wrongdoers acting in concert.
2. enterprise liability-
a. Hall v. E.I. DuPont De Nemours & Co. (NY 1972) 13 children were injured in
12 unrelated blasting cap accidents. Together they sued 6 manufacturers for neg
though there was no way to know who had injured who. The court held that in
this case they could be held j and s liable if the Ps could show it was more
probable than not that one of the defs was responsible.
b. The court focused on the small size of the industry and the joint trade
association – hence the industry was in the best position to increase safety and
c. enterprise liability is more extreme than res ipsa- less to prove
3. alternative liability-
a. Summers v. Tice (CA 1948) Three men were out hunting with the same style
guns. Two of them shot at a quail and hit the third.
b. The defs were not acting in concert and it could not be determined whom had
c. The court found them both neg and jointly liable as either could have caused
d. As both of them were more wrong than the P the burden of proof was shifted to
them to prove one of them was not responsible.
e. courts reluctant to stretch this far numerically- but what about 3, 4?
4. market share liability-
a. Sindell v. Abbott Labs (CA 1980) P was injured in utero by DES ingested by
her mother. She brought suit against 11 companies that had manufactured DES at
the time in ques.
b. DES was made by identical formula and produced a very
identifiable disease so causation not an issue.
c. Court allowed P to hold companies responsible for her damages up to the
market share they had sold. Co could escape liability be proving they did sell in
the right market
d. a substantial number of producers had to be brought together in a suit.
e. unlike enterprise liability here there is no tacit agreement nor a trade
f. the court claims this is not that radical- just a shifting of the burden of proof-
but actually there is no cause in fact requirement in this case
d. following developments:
i. Hymnowitz v. Eli Lilly (NY 1989) eliminated need for substantial share
of market (one def enough) and defined market as national- hence co
could not show they had not been in that part of the market
ii. Smith v. Eli Lilly (IL 1990) Hymnowitz rejected- which is also true in
many other districts
iii. one place that market share liability has popped back up is in
blood transfusion and HIV suits
C. Indemnity and contribution-
1. under the common law cases not heard btw jointly neg parties (unclean
2. some states remedied this by statute creating rights of contribution btw indivisible
tortfeasors. Traditionally these operated on a strictly fractional approach (2 defs- ½ and
½). Contribution is just shared liability
3. Some states developed active/passive contribution- where one tortfeasor could be
indemnified if they showed they were passively neg while another party was actively so
4. In most states currently comp neg is used to assess contribution based on the
level of neg attributed
a. Bervoets v. Harde Ralls Pontiac (TN 1994) A minor drove while drunk, got
into an accident and the passenger in his car was injured. Safeco (the minor’s ins
co) filed suit against the restaurant that sold the minor the liquor. The Restaurant
held that TN had gotten rid of j and s liability in favor of comp neg to contribution
could not be required. The court held that contribution was not abolished- just
changed from pro rata to relative to the fault of the parties.
5. In CA the % fault system of comp neg is called implied or equitable indemnification
6. Indemnity requires complete reimbursement and usually appears in contractual
situations. Indemnity and contribution are the 2 main ways j and s defs seek
reimbursement from each other
a. National Health Labs Inc. v. Ahmadi (DC 1991) P brought suit for misdiagnosis
against MD and lab that incorrectly conducted the blood test. Jury found both neg
and each appealed trying to cast the blame solely on the other and requesting
indemnification rather than contribution from the court. The court found each
separately neg and neither to be indemnified.
VIII. Damages for Personal Injury
-Damages are a separate element of causes of action in neg and strict liability cases.
-Jurors are told they are to try and place the person injured in the position they would have been
in if the def had not injured them- in theory compensation .
-Under an economic theory of tort law damages provide a necessary deterrence.
-Principle of single recovery (closure, incentive to heal, end to financial vulnerability, easier on
judicial system---but less accuracy for future damages- estimations)
A. Economic loss- lost wages and medical expenses
1. lost wages- calculation relies on
a. present wages and benefits
b. expected wage growth
c. years of work expectancy
d.subtraction for other employment in mitigation
2. discounting to present value- less than actual dollar value of the award is given based
on the value of money over time- as P is compensated for loss and no more.
a. The sum given should be that which if invested will equal the amount of future loss at
the time it occurs.
i. what rate of interest will be earned?
ii. what will the rate of inflation be?
iii. use of expert testimony?
3. inflation and interest cannot just be balanced out- S Ct says real rate of interest will
vary btw 1-3% and discount rate should vary accordingly.
a. Jones & Laughlin Steel Corp. v. Pfeifer (1983) Employee was injured working
on coal barge. As employer worker’s comp was provided. However def was also
owner of barge and so suit for neg was filed. Pa court calculated damages w/o
taking inflation into account and w/o calculating discount to present value holding
that they would offset one another. S Ct held that there was no one way to
calculate the discount to present value but that it must be done.
4. P must be at least an average investor to reap benefits
5. future medical expenses estimations
6. damages are a ques of fact- hence level of appellate review required is very high-
“passion and prejudice” required in the award
a. Seffert v. Los Angeles Transit (CA 1961) A woman was injured when her hand
and foot got caught in a closing bus door. Medical was to be necessary for the
rest of her life, nine operations since accident. Condition is permanent and
disfiguring. Work limited, sleep disturbed, depression etc. Jury award past and
future medical benefits and wages based on P.’s calculations. Pain and suffering
also awarded. Court concluded amount of damages was a ques of fact.
7. structured settlements- contracts that provide payments for certain needs if and
when they arise. Downsides- they can cause P to malinger, def gets to keep the
sum for reinvestment, monitoring involved- so additional expense (this is the
structure of worker’s comp)
B. Non-economic losses: pain and suffering- pain is the physical suffering from the injury,
suffering is the psychological pain- both can be very hard to measure in dollar terms.
1. torts law does acknowledge intangible losses
2. w/o pain and suffering is the deterrence level not reaching the optimal level for
the def?- how would leaving them out effect the B is less than PL calculation?
3. often attorney’s fees are taken out of these damages (when not given attorney’s
fees must come from economic award)
4. loss of enjoyment of life – is this a part of non economic damages or a separate
category from pain and suffering
a. McDougald v. Garber (NY 1989) Husband sued for loss of enjoyment of life
for wife who was brain damaged during C-section. Court found that these
damages could not be awarded in a case where the person had no cognitive
awareness of lost enjoyment of life. Court also found that lost enjoyment of life
should not separated out from other pain and suffering award as it could be
considered a part of suffering.
C. Mitigation- Ps must take reasonable steps to mitigate injury- seeking appropriate
medical care, working when possible etc.
1. Colton v. Benes (NB 1963) P. injured back when def ran a stop sign and hit his car.
Court held that ques of mitigation should never be submitted w/o evidence showing risks
of mitigation procedure. Also burden of proving P. should mitigate falls to def.
2. in many states where comp neg is now the rule there is no longer a need for a
mitigation theory as is is all folded in to the comp fault calculation
D. Loss of consortium- loss of “services” and attention of spouse
1. The debate has currently shifted to child- parent relationships and co-habitating
E. Future damages- there is no independent action for losses that have not yet occurred.
1. the one exception to this almost absolute rule is that in certain cases there may
be an award for medical monitoring where the def has tortiously exposed a P to
the risk of suffering future injury such as cancer.
F. collateral benefits- traditionally the fact that an ind has insurance is not taken into
consideration when awarding damages.
1. currently some states have revoked the collateral benefits rule- whether or not
they are considered can make a big difference in the size of the award.
a. “prudence” issue- those who get ins should not be punished
i. Helfend v. Southern California Rapid Transit (CA 1970) P. was injured
in bus- auto collision. Trial court allowed info about collateral sources.
Court held that society wants to encourage people to get ins., that ins
subrogation returns this money to ins., that attorney will take part of the
fee, as so collateral benefit rule should be upheld.
b. double-recovery issue
c. subrogation issue (indemnification of ins co)
2. disability, pensions, and social security count as collateral sources
3. services provided by family members do not- generally expenses for these can
be reasonably recovered as they were provided as a gift and the def should not
profit from the provision of gratuitous services
4. some courts have found equal protection problems where legislatures have tried
to limit common damages
a. Thompson v. KFB Ins. (KS 1993) A Man was injured in a car accident when the
other person did not have coverage. He sued his ins. co. for underinsured
motorist coverage. Court held that legislative action denying the benefits of the
collateral source rule to those claiming less than $150,000 in damages was
G. punitive damages-additional damages meant to deter behavior that is beyond gross neg.-
reckless indifference for the safety of other- behavior that is extremely blameworthy.
1. Can be seen as an effort to alter def’s calculus of risk analysis and get def’s
2. many states have placed caps on punitives
3. S Ct has reviewed them many times- no sharp rules but general standards to be
a. degree of reprehensibility
b. proportionality btw harm caused by def and amount of damages
awarded (ratio of damages)
c. diff btw this penalty and civil or criminal penalties in other similar
cases (Sanctions for comparable misconduct)
4. S Ct limits punitives to J in ques- jury cannot figure out total profit and
take it away.
a. BMW of North America v. Gore (1996) Dr. Gore bought a BMW and
discovered 9 months later that it had been repainted at the shop before sale as a
result of damage in shipment. However BMW denied any repainting through out
trial. Jury awarded $4,000 in damages and 2 million in punitive based on the
number of cars BMW had fixed and sold w/o disclosure. S Ct held that AL could
not punish for crimes outside their jurisdiction and that the damages were no
consistent with crime.
5. Cooper- S Ct decision- punitives now a matter of law rather than a matter fact-
changing courts ability to review
6. Campbell- S Ct decision (after Gore) punitives must relate to the particular harm
(multiplied by a single digit) a lower ratio than that set by Gore
IX. Limited Duty: Special limitations and the Scope of duty
A. How to characterize a case for an exception to the no duty rule
1. did the def create the problem?
2. Did the def start to act and then stop?
3. Is there a special relationship?
4. Did the def have an obligation to control a specific 3rd party?
5. Is this an extreme foreseeability case?
6. Is there some kind quasi contract?
B. Misfeasance v. nonfeasance-
1. In most neg cases the duty in neg is merely to exercise reasonable care to avoid
actions that cause harm to others. These cases are based on some type of affirmative
2. The general rule of nonfeasance is that there is no duty to act when others are in
a. Yania v. Bigan (PA 1959) One coal mine operator went onto the property of
another to discuss business. While he was there the other man asked him to help
start a pump in a trench. He jumped in and drowned and the widow sued for
wrongful death. Court held that owner was not liable. In this case the guest knew
of the danger as the host lead him to it. Also court found no duty for the host to
try and save the guest – no legal obligation unless he was responsible for the
3. The common law traditionally supported ind liberty above a general duty to
others; also if liability was imposed where and how would it be limited?
4. Where is the line btw misfeasance and nonfeasance? Is foreseeability a factor
in exceptions to the general no duty rule?
a. Weirum v. RKO General (CA 1975) A radio station held a contest . Two
teenagers chased the person from one place to another each trying to be the first to
the new place. In the process one of them forced a man’s car onto the center
divider where it overturned and he was killed. Court found that accident of this
nature could be foreseen from the circumstances and that risk of harm was
unreasonable- therefore the radio station was liable. Liability was not predicated
on the def’s failure to intervene for the benefit of the P. (nonfeasance) but rather
on its creation of an unreasonable risk of harm to P. (misfeasance).
C. exceptions to the no-duty rule- whether or not there is a duty is a ques of law
1. defendant’s neg places P. in a position of peril
a. Day v. Waffle House (OK 1987) P. and friend went to Waffle House to
eat. Friend was served meal with broken glass and began to bleed. P. drove
friend to hospital but on the way they were struck by another car and injured. P.
sued Waffle House under rescuer doctrine.
b. rescuer doctrine- if there is a duty to the victim than there is a duty to
the rescuer (like Marshall v. Nugent-supra- the actions put the rescuer in a
place where the subsequent in jury occurred- the issue is not whether the
2nd act is also blameworthy)
2. voluntarily assumed duties- where there is originally no duty to act a duty may arise
when the def voluntarily undertakes to render some type of aid or assistance and does so
a. Florence v. Goldberg (NY 1978) A first grader was hit by a car on the way
home from school at a crossing which usually had a crossing guard, but on that
day did not. The court found that the city responsible. The court held the duty
breached in such a case must be more than a duty owed to the general public, but
involves a special relationship to a def or class of defs. In this case it was a
limited duty to children crossing a designated intersection at a particular time and
therefore the city was liable for negligence.
3. special relationships- One of the most frequently asserted justifications for imposing
an affirmative duty to render aid to people in peril is based on the existence of some type
of special relationship btw the affected parties.
a. Court have been reluctant to precisely define the term special relationship but
have recognized general categories such as common-carrier-passenger
relationships; business inviter-invitee relationships; custodial relationships;
landlord-tenant relationships; and employer-employee relationships
i. Farwell v. Keaton (MI 1976)Friends drove to a trailer rental lot together
to wait for another friend. While waiting they decided to follow some
girls. Their friends chased after beating him badly. Siegrist found him
under the car, applied ice to his wound, drove him around, and eventually
home, and tried to wake him up from where he had fallen asleep and
eventually left him in the car sleeping. He was found the next morning by
his grandparents and died three days later. The court found for the
Farwells holding that there was a duty. Their special relationship created
an affirmative duty for Siegrist to act.
b. a special relationship exists when you owe an obligation of the P., or
because you can control the actions of a 3rd party. RE of torts §314.
i. Tarasoff v. Regents of the University of CA (CA 1976) A man killed a
woman two months after telling his psychologist that he planned to
murder her. He notified the police who detained him, but eventually
released him, but he did not notify her or her parents. On appeal court
held that the psychologist owed a special duty to the woman as he was in a
special relationship with the man which created an affirmative duty for the
protection of third parties.
c. Landlords, universities, shopping centers, and other proprietors are
sometimes held liable in neg. for harm foreseeably suffered by tenants,
students, or customers because of the misconduct of third parties.
i. In these cases there is a pre-existing relationship btw the P. and the
proprietor either through contract or invitation (see below)
ii. The def proprietor must be on notice to the risk in some way (past
D. public v. private duties-
1. It is one thing for the court to impose an affirmative duty upon a private
individual and another for the court to impose such a duty on a public entity.
a. Thompson v. County of Alameda (CA 1980) A juvenile offender who had
threatened generally to murder a young child in his neighborhood was released
into his mother’s care and the next day he murdered a neighboring child. The
child’s parents brought suit against the county for (among other things) failing to
advise or warn his mother, the local police, or families of young children in the
vicinity. The court held that the child was not a readily identifiable foreseeable
victim and that there was no special relationship btw the parents or child and the
county hence there was no affirmative duty that the county failed to perform.
2. Based on voluntary acts a duty may be imposed (see above).
3. Also if there is a special relationship an affirmative duty may be recognized.
E. contractual duties-
1. In one situation the def, by contract has expressly agreed to assume some duty
that would otherwise not have been imposed by the common law.
2. A problem arises when a 3d party, in reliance upon the contractual
undertakings of the def, seeks to assert an affirmative duty owed to the 3d party,
despite any contractual privity btw them.
a. H.R. Moch v. Rensselaer Water (NY 1928) Cardozo case which held that a
member of the public cannot sue a company that has contracted with the city to
furnish water at hydrants
3. Quasi-contractual duties
a. Soldano v. O’Daniels (CA 1983) An individual was threatened and then killed
at a bar. After the threat but before the shooting another patron of the bar went
across the street to another bar and asked to use the phone to call the police or for
the bartender to do so. The bartender refused. The def had no special relationship
to the man killed or the patron of the bar across the street who came in. However
court found, based on recent legislative decisions that the time had come to
reanalyze the common law decision that there is no requirement to help someone
when the cost is small and there is no danger to the helper.
F. Neg infliction of solely emotional injuries- NIED
1. In this tort the P. has no actual physical harm that can be directly attributed to the def’s
2. The P. seeks to recover for purely emotional distress injuries caused by the actor’s neg
toward some other person with whom the P. claims some type of close or other special
3. The original rule was that there was no cause of action for pure emotional loss
a. There were two narrow exceptions- one when a def neg mishandled the corpse
of a loved one
b. the second for loss suffered when the def neg sent a telegram incorrectly
announcing the death of a loved one
4. Even today the cases that permit recovery are anchored physical injury cases
5. impact rule- permitted recovery in neg for emotional loss if the def conduct resulted in
some physical impact on the P.’s body
a. Almost all courts have abandoned the impact rule
i. Dziokonski v. Babineau (MA 1978) In this case a girl was hit by a car on
alighting from the transportation vehicle that brought her home from
school. Her went to the scene of the accident and saw her injuries and was
so distressed that she died as a passenger in the ambulance with her
daughter. On hearing of the injury to his daughter and the death of his
wife the father had a heart attack and died. The court rejected the previous
test they had used for this, the Spade test (like the impact test). In favor of
a version of the Dillon test.
6. Zone of danger rule- Under this rule P. could recover for emotional loss caused by
neg even if there was no impact if the P. was in the zone in which physical injury was
threatened and feared for her own safety.
a. Over time some courts relaxed this rule to allow for recovery by those in the
zone of danger even when their emotional loss resulted partly from fear that
another person in the zone (such as their child) would be injured
7. Dillon rule- (Dillon v. Legg- CA 1968) This was a claim by a mother who had
witnessed her daughter’s injury but was not herself in the zone of danger. The court held
she did not have to have been in the zone and she did not have to have feared for her own
a. The court listed three factors to be taken into account
1- severe emotional distress
2- visibility: contemporary, sensory observation
3- relationship- close familial relationship (traditional)
b. rigid requirements of factors test?
c. Thing v. La Chusa (CA 1989) Minor was struck by a car. His mother did not
see accident but was told of it and rushed to the scene where her child was lying
in the road. She brought action for NIED. Court held that liability must be
limited and policy does not support the extension of Dillon further, parent has to
contemporaneously observe the accident in order to recover.
X. Premises liability: Duties of Owners and Occupiers of Land
A. Common Law Status Categories of Entrants
- Once the level of duty owed is established, the landowner’s liability for negligence is
determined just as in any traditional negligence action. Both the cause in fact and the proximate
cause must be found. The traditional common law defenses apply.
1. traditional duty of care owed by landowner totally determined by status of entrant
2. the duty question was decided by the judge as a matter of law
3. trespasser- is a person who enters or remains on the property w/o any permission
a. Duty owed to them is only to avoid from inflicting willful or wanton injury. It
is generally said there is “no duty” owed to a trespasser.
4. licensee- a visitor with permission (express or implied) to be on the property in pursuit
of the visitor’s purpose; a social guest is also a licensee.
a. Duty owed is only to share with the licensee any knowledge of dangerous
conditions or activities on the land- concealed artificial dangers (not should have
known). There is no duty to prepare the premises for the licensee, only a duty to
warn- no affirmative duty owed.
i. Holzheimer v. Johannesen (ID 1994) One fruit orchard owner went to
borrow or purchase fruit packing boxes from another. While he was
retrieving them he climb on a stack of them and fell, injuring himself. He
claimed to be a business invitee and thus due a reasonable standard of
care. The landowner claimed he was a licensee and so entitled to a lower
standard of care. The court found for the landowner, as there was little to
no benefit accruing to the landowner from the actions of the visitor.
5. invitee- one who has entered the land of another for purposes
connected with the business conducted on the land or where it can reasonably be
said that the visit may confer a business, commercial, monetary, or other tangible
benefit to the landowner.
a. Duty owed is to keep the premises in a reasonable safe
condition or to warn of hidden or concealed dangers.
i. consumers, generally (whether they have bought or are looking) are
invitees as are anyone they bring with them (children etc.)
ii. Just being in the store does not clarify status w/o further context
iii. If the employee only bathroom is used with permission- the
consumer at that moment is a licensee. If they use it w/o
permission they become a trespasser
6. special relationships- Some situations create sp relationshipslike passenger on a bus,
this gets close to strict liability- utmost care required
B. Special Categories of Entrants
1. certain categories of entrants that require special treatment. The duty of care will then
not be determined based on the entrant’s legal status but according to the exceptions
created just for these situations.
2. The care required may be either greater or less than that which would ordinarily be
3. Trespassing Children- even though technically classified as trespassers, trespassing
children have often been treated less harshly than other types of trespassers. This
exception has been called the turntable rule, the playground theory, and attractive
a. attractive nuisance doctrine - A duty of reasonable care may still be imposed
for trespassing child if:
1- the landowner has a reason to anticipate the presence of trespassing
young children on the premises, and
2- knew or should have known of a danger created by some dangerous
condition (artificial?) existing on the property, that is
3- of such a nature that the injured child, because of his or her young age,
inexperience, or other circumstances is not otherwise likely to have
4- the expense of changing the condition is limited (b < pl)
b. but is this a factors test or an add it up test? Majority rule is add up.
i. Mozier v. Parsons (KS 1995) The Parsons had the Moziers at there
house as social guests. They had all been swimming in the afternoon at
the pool. Later that evening the Mozier’s 3 yr old daughter was found in
the pool and died of her injuries several days later. The pool had no fence
as it was a very rural area without neighbors for a quarter of a mile. The
Moziers brought suit for wrongful death. The Parsons said the Moziers
were licensees and so only owed a duty to be protected from willful neg.
The Moziers asserted the attractive nuisance doctrine. The court found for
the Parsons as the child was not enticed on to the property by the pool, and
pools are not considered an attractive nuisance.
c. artificial or natural condition- Currently in the RE the attractive nuisance
doctrine requires the injury to be caused by an artificial condition on the
landowner’s property. However what constitutes artificial v. natural varies from
jurisdiction to juris and sometimes case to case. Some juris do not require an
artificial condition (CA).
d. Historically the child must have been attracted on to the property by the
condition, but most juris no longer require this. However it may still be
considered when determining whether the child’s trespass was foreseeable.
2. Firefighters, Police Officers, and other Public Officials: the Firefighters Rule- officials
in their official capacity would traditionally be classified as invitees, as they could be
seen to be conferring a benefit on the landowner (this includes postal workers, trash
collectors, and govt inspectors).
3. firefighters rule- police officers and fire fighters have traditionally been denied invitee
status (which the others have not) and instead classified as licensee. This bars recovery
by firefighters and police officers injured caused by the same conduct or activities
responsible for their presence on the scene.
4. It does not bar them from recovery from a cause that is separate and distinct from the
circumstances that required their entry.
C. Abolition/Modification of Common Law Status Categories-
1. Rowland was the first decision to completely abandon the three status categories as a
method of determining the landowner’s duty of care. It adopted a general neg standard or
reasonable or ordinary care in all situations based on factors such as
a. foreseeability of injury,
b. moral blame attached to def’s conduct,
c. closeness of connection btw def’s conduct and P.’s harm etc.
2. Rowland v. Christian (CA 1968) Social guest injured using the tap of the sink in the
bathroom sued tenant of apt. Court held that civil stat required everyone to use ordinary
care in protecting those around them and that this stat conflicted with the traditional
landowner protections. Distinctions of licensee and invitee were based in a historical
climate that no longer exists and other factors should now be more important in
3. Originally it was well received in other juris and some followed it totally of partially.
a. Jones v. Hansen (KS 1994) P. fell down a flight of stairs while a guest in def’s
home. Court reevaluated invitee/licensee distinction and chose to abolish it
(while maintaining trespasser category).
4. One of the biggest effects of Rowland was on the traditional role of judge and jury in
premises liability. Traditionally the level of duty was determined (often by the judge
alone) and then the outcome was fixed based on the level of care owed. Under Rowland
a jury always determines the reasonableness of conduct.
A. Based on P.’s conduct (affirmative defenses)
1. contributory neg- the P.’s failure to use due care for his or her own safety, which is
the actual and proximate cause of the P.’s injuries.
2. Originally this was a bar to complete recovery.
3. This was true whether P.’s behavior was a failure to act to protect only his own
safety (primary neg) or it is was also an unreasonable risk to others .
a. Butterfield v. Forrester (Eng 1809) P. was riding hard down the road at dusk.
Def had put a pole across the road when doing house repairs. P. did not see it and
fell against and was hurt. Court found that as P. was not using ordinary care he
did not get to recover.
a. P.’s neg had to be the actual and proximate cause of P.’s injury for this to
b. Last clear chance doctrine- significant exception- allowed P. to recover in full
in spite of neg. (open and obvious chance to avoid accident- def alone can avoid
i. Justified on the grounds that the def’s neg coming at the end of a chain
of causation and where they could have avoided the harm ought to be
viewed as the responsible cause of the harm.
ii. If the P. was inattentive rather than helpless- most courts would apply
last clear chance only if def knew- subjective test (rather than should have
known- objective test) of P.’s danger
iii. Last clear chance is for the benefit of the P- there is no last clear
chance doctrine defense for def- that would just be contrib. neg
c. contrib. neg was not a defense to IT or to reckless or willful and wanton
conduct (greater degree of blame exception)
i this does not apply when P is also reckless
d. P.’s neg was always question for the trier of fact (jury)-
e. safety statutes- when a def’s neg included the breach of a statute designed to
protect a class of people unable to protect themselves, a member of the protected
class was not barred from recovery.
5. comparative neg- All but a few states have adopted comp neg (6 still have contrib.)
6. pure comp neg- the P.’s neg is never a bar to recovery; P can always recover for
the amount of damage not attributed to them.
i. can favor Ps with the most damage regardless of amount of neg of fault
7. modified comp neg- P.’s neg can be a bar if it is more (or sometimes equal to)
the neg of the def; a party whose percentage of neg reaches some specified level
is totally barred from recovery as w/ trad contrib.
a. Under modified comp neg a small variation in P.’s neg can mean a
difference btw substantial recovery and none
b. Types of modified:
i. 50%- P. can recover as long as neg not greater than def
ii. 49%- P.’s neg must be less than def’s
8. effect of comp neg on traditional doctrines-
a. What about multiple party cases? Is the neg of the P. and defs determined as
group or individually- party by party?
i. What is P. is 40% liable and there are two def – one 25% liable and one
35% liable. Does the P. recover in a modified comp neg juris? Most
courts find that P. can recover
b. joint and several liability- Several approaches- if kept
1- they are joint and severally liable for damages reduced by P.’s contrib.
2- each is only responsible for their share- in which case if one can’t pay
P. is left w/o
3- all bear the risk according to their neg- so if one def can’t pay P. and
other def share remainder of responsibility proportionately to
the damage they caused.
4- some Js trad j and s if neg is higher than a certain threshold %
c. last clear chance- All pure comp J have gotten rid of LCC; majority rule for
modified is also to have gotten rid of it as factors could now be seen as part of the
d. Assumption of risk generally not completely gotten rid of- but not called as of
risk now subsumed under a duty ques.
e. Greater degree of harm- generally P.’s neg still not applicable to int tort or
f. Set offs- now that both parties may receive some award is the whole amount
transferred or it the smaller amount set off against the larger?
g. seatbelt defense- Jurisdictions vary widely on treatment of seatbelt defense.
i. Seatbelt defense does not fit traditional doctrines of contr neg,
assumption of risk, or avoidable consequences
ii. Law v. Superior Court (AZ 1988) P.’s were in an accident and were not
wearing seatbelts. Both were severely injured. Def asked court to
reconsider seat belt rule. Under contrib neg seat belt def not successful as
it was not a primary cause of the accident. Traditional rule said 1- right to
assume that others will not be neg on highway; 2- seatbelt might cause
harm as well as hinder; 3-no duty to wear seatbelt. Court held same rule
did not apply under comp neg- other factor changed. Seatbelt wearing not
a duty- but doctrine of avoidable consequences. If P. failed to use
available protection device cannot recover for damages created by the
9. Doctrine of avoidable consequences- a P. cannot recover for losses that could have
been avoided by reasonable precautions after the accident. (like mitigation) One
application of rule concerns whether the P. has a duty to obtain medical care to treat the
injury. In general P. does have a duty to obtain basic medical care.
a. What about the duty to undergo major operations? Courts often give deference
to the victim’s assessment of risks and benefits and ultimately their decision to
undergo surgery or not.
b. also issues such as seatbelts and helmets
c. It would be the def burden to demonstrate the precautions were feasible and
would have prevented the loss.
10. assumption of risk- The common law took the position that there was no legal
injury to one who consented to bear a risk.
a. assumption of risk does not apply to reckless behavior or gross neg on the part
of the def
11. express assumption of risk-
a. Contract agreed to in advance
b. Valid when entered into knowingly, voluntarily, and with awareness of
c. This form of assumption of risk does not depend on the behavior of P. in
anyway except for signing waiver
d. When a release is challenged the courts must decide whether or not to enforce
the release of liability. Was P waiving that risk in that situation? Usually courts
use a narrow interpretation- particularly with adhesion contracts
12. implied assumption of risk- primary (or limited or no duty)
a. this involves situations in which the P. has voluntarily encountered a known
risk reasonably created.
b. P who engages in an activity knowing the risks entailed cannot sue if those
risks lead to injury.- the risks are inherent to the activity not the result of neg and
the behavior of the def was reasonable under the circumstances. (no prima facie
i. Murphy v. Steeplechase Amusement Co. (NY 1929) Cardozo- P. was
injured on a ride at Coney Island. Cardozo holds that he took a risk of fall,
which was the very hazard that was invited and foreseen in the ride. One
who takes part in such sport accepts the dangers. (Flopper case)
13. implied assumption of risk- secondary-
a. P has voluntarily encountered a known risk unreasonably created
b. def has a duty to P which has been breached but P was aware of the threat and
choose to encounter it
i. Knight v. Jewett (CA 1992) A group of friends played a game of touch
football. Def ran into P. in one play and she threatened to stop playing
(according to her). During a subsequent play he knocked P. over and
stepped back onto her hand. She had to have three operations and
eventually her little finger was amputated. She sued him for neg. Court
held that in comp neg juris assumption of risk must be separated into
primary assumption of risk- def owes no duty to P. based on the nature of
the activity and relationship of def and P. and secondary assumption of
risk- def does owe a duty to P. but P. encounters a known risk.
c. 2d implied assumption of risk can be further divided into reasonable and
i. unreasonable careless risk taking
ii. unreasonable conscious risk taking
iii. is there also just really dumb risk taking?
d. is reasonable and unreasonable different than knowing and unknowing?
e. always with assumption of risk one must ask did the P knowingly encounter
this specific risk? (particularly in CA)
f. assumption of risk and comp neg-
i. most comp neg J treat 2d unreasonable assumption of risk (careless)
like contrib neg
ii. reasonable assumption of risk bars recovery in some Js (based
on conscious ind choice; other jurisdictions treat it like unreasonable
assump of risk and reduce recovery; others hold that it was not then neg
and cannot be used as defense to def’s neg conduct at all
B. limitations and immunities
1. statutes of limitations and repose- designed to prevent the litigation of claims
after the passage of a sufficient period of time.
a. Stat of limitations -begin to run at the moment when the cause of action
“accrues”- the moment the cause of action is complete and the case is ripe
b. Stat of repose- also impose a time limit, but calculated differently. They place
an outer limit on the responsibility of a party for a particular act, w/o regard for
the timing of the injury to the P. At times a suit can then be barred even before
c. The operation of both types of limits can be harsh and arbitrary and cut against
the preference of courts to decide cases on the merits. Some courts have
developed doctrines to allow for a certain amount of flexibility
i. Nelson v. Krusen (TX 1984) P. went to doctor when pregnant to
discover is she was a carrier of muscular dystrophy. After multiple tests
doctor determined she was not. She then had the child and three years and
change later discovered he had muscular dystrophy. Def moved for
summary judgment as stat of limitations barred beyond two years after
medical treatment on which claim is based. P. claimed that this was
unconstitutional based on TX constitution – open court provision. Court
upheld P.s claim, saying cause of action cannot be cut off before P. knows
or should know about injury.
d. Depending on the legal argument more than one may apply to the same claim.
i. Garcia v. Texas Instruments Inc. (TX 1980) UCC injury case
ii. both P and def may try to fall in or out of legal categories based on stat
of limitations issues (def- neg to IT; P- IT to neg)
iii. generally courts give substantial freedom to Ps in deciding their legal
2. immunities- bars to litigation based on the status of the def.
a. family immunities- eroded in recent years by court decisions and
i. spousal- The origin of family immunity lies in the common law doctrine
that spouses were a single person. Spousal immunity is generally
ii. parental- A traditional doctrine providing parental immunity
from tort actions by their children. Parental immunity has gradually
eroded, some jurisdictions have abolished it.
a. “negligent supervision” – can a child sue for careless parenting?
b. Bonte v. Bonte (NH 1992) A pregnant woman was hit by a car
crossing the street. The father of the child brought the suit in the
child’s name alleging negligence in crossing the street on the part
of the mother. The court held that generally a child born alive may
bring suit against a third party for injuries in utero and that now
that parental immunity is establish a child may bring suit against
iii. both-ways test- if there is no ability to sue then there is no ability to get
contribution; if there is ability to sue there is ability to get contribution.
a. Shoemake v. Fogel LTD. (TX 1992) A two year old nearly
drowned in the pool of her apartment complex and later died from
the resulting injuries. Her mother sued. They awarded her for the
wrongful death but attributed some of the neg to her and therefore
court reduced her award. She was also awarded on the survival
action, but the def argued this should also be reduced by the
proportion of neg. The mother argued that due to parental
immunity her daughter’s estate could not recover against her. The
court upheld this latter interpretation.
b. charitable immunity- The immunity of charitable organizations was
historically true and then was mostly abrogated. It still survives and in some
states it is once again on the rise as a result of legislative actions.
c. governmental immunity- The difficulty is constructing a system that allows for
recovery where appropriate but not improper interference
i. Governmental torts can create potential separation of powers issues, as
the courts assess liability for actions of the executive and legislative
ii. The fed govt and the states are sovereign and thus enjoy sovereign
immunity. In 1946 congress passed the federal tort claims act (FTCA)
which waived immunity in certain claim types.
iii. State sovereignty also had similar developments in exceptions.
d. municipal immunity- municipal govts were not sovereign and so not
immune to suit.
i. Because of their govt functions courts developed the rule that
municipalities were immune from suit for injuries caused by govt action
but not proprietary actions.
ii. Immunity for municipalities has generally been abolished or more
clearly defined by statute.
iii. Even when immunity is abolished what is the scope of duty owed to
a.. Cuffy v. City of NY (NY 1987)P. had a violent and apparently
crazy tenant and there were many violent disruptions. P. went to
the police and was assured an arrest would be made the next
morning. The next day there is not arrest and the son of the
landlord came to visit and got into a fight with the tenant. The
wife and other son (who lived in the house) of the landlord went
out to help and were also injured. The family sued the city as no
police action had occurred after specific promise creating a special
relationship. The court held that there was a special relationship
but that the cause of their injuries was not police reliance as they
had been watching and knew no arrest had been made.
iv. Both a special duty and reliance is required for the city to be
responsible hence no recovery.
XII. Vicarious Liability
-Vicarious liability refers to the legal principle whereby tort liability is imposed against one party
for a tort actually committed upon the victim by another.
A. Respondeat Superior- This is the doctrine that VL comes from- the latin is- let the superior
respond (by paying for the damages).
1. Control theory of VL- finds liability whenever the act of the employee was committed
with the implied authority, acquiescence, or subsequent ratification of the employer
2. Enterprise theory- finds liability whenever the enterprise of the employer would have
benefited by the context of the act of the employee.
a. Wong-Leong v. HIRI (HI 1994) Rellamas was an employee of HIRI and after a
promotion party for himself he was involved in an accident that caused his own
death and that of three other people. The court held that HIRI did benefit from the
multiple parties and celebrations of employees as they helped build morale.
Therefore the court held they could be VL (though not directly liable as social
hosts of parties).
3. An employer can be held liable for the actions of an employee even when the
employee’s actions are directly contrary to employer instructions. (Belanger v.
Village Pub-CT 1992)
4. This liability is not dependent on any notion of fault or wrongdoing by the
party but is imputed for reasons of policy or practicality- in that way vicarious
liability is related to strict liability.
B. Employer-Employee Relationship-
1. who is an employee?
a. If the tortfeasor is not found to be an employee they will likely be
classified as an independent contractor and held accountable in a purely
individual capacity (subject to certain limitations).
i. Buitrago v. Rohr (FL 1996) Rohr was in an accident that caused two
people to be injured and one death. At the time of the accident he was
returning from taking balloons down used to advertise for Donovan
Entertainment- the owner of some Blockbuster franchises. The P. claimed
Rohr was an employee of Donovan and hence they were also liable.
However using a factors test and focusing on the extent of control
Donovan exercised over Rohr and the different types of business involved-
the court held the was not an employee but a contractor.
2. Maryland Court of Appeals Factor Test in determining the presence of
an employer-employee relationship:
a- the selection and engagement of the employee (length of time of employment?)
b- the payment of wages (by time or by job?)
c- the power to discharge
d- the power to control the employee’s conduct
e- whether the work is a part of the reg business of the employer (specialist w/o
3. Loaned servant or borrowed servant doctrine- a servant directed or permitted to
perform services for another may become the servant of the other in performing the
services. He may the other’s servant as to some acts but not others. Whether or not this
has occurred depends on the same factors that determine the existence of any
employment relation. (RE of Agency).
a. Jones v. Halvorson-Berg (WA 1993) P. was and employee for H-B as a general
laborer working on a construction site. He was instructed to help move windows
for the window subcontractor for several days. He fell and was injured. He could
not sue H-B as he was their employee. Was he also temporarily the employee of
Flour City- the window people- of could he sue them for neg? An employee may
become a loaned servant by submitting himself to the direction and control of the
other for a particular transaction or piece of work. The employee must consent to
the transfer but this can be express or implied. Also the lender must surrender and
the borrower assume the power of supervision and control. Here the facts of who
was Jones supervisor in the period in question was in dispute and the court held
thus must be sent to the jury for determination.
C. Acting in the Scope of Employment-
1. Even if an employer-employee relationship is found too exist btw the tortfeasor and the
party against whom VL is sought to be imposed, the employer may escape liability by
establishing that the employee was not acting within the scope of employment.
a. i. Erment v. Hartford Ins CO. (LA 1990) In this case the P. was injured
when Decareaux shot him in the foot. D was a member of a hunting group
that all hunted together on land leased by one of the friends. D was also
pres and majority stockholder in NuArrow Fences. He often brought
employees and potential customers to the cabin and had sold fences to all
his friends at the cabin. The court looked at his activities at the cabin and
found many of them interrelated to his business for NuArrow. The
employee’s sole reason for the activities does not have to be for the
employer as long as some of them are- the reasons can be mixed.
Therefore it could be found he was working for the benefit of the
business- thus NuArrow could be liable for the accident.
2. the going and coming rule- generally an employee is not acting in the scope if they
are in transit to or from work
a- special hazards- whenever the employees travel to and from work subjects
them to special hazards not common to other members of the traveling public.
Distance alone does not necessarily constitute a special hazard.
b- employer compensates employee for time and travel- in this case the employer
may be within the scope of employment while traveling.
i. Courtless v. Joullifee (W VA 1998) P was a child struck while riding his
bike by def’s car. Def was on his way to work at the time. He was on his
way to buy shocks for his car on the way into work. This would not
generally be in the scope of employment, but though he owned his own
vehicle his company paid his payments on it and paid for all repairs as he
used the car at work on a daily basis. The appeals court said scope of
employment is a relative term and whether this fit the exception would
have to be a jury decision.
c- dual purpose- if the employee performs an additional service not common to
the ordinary commute to work , this secondary purpose may justify a finding of
i. Skinner v. Braum’s Ice Cream Store (OK 1995) P was injured in car
accident. Def was on her way to work. She claims her supervisor had
called her and asked her to pick up supplies from another store on her way
in. The court of appeals hold that although in general an employer is not
liable for the employee on the way to or from work there are exceptions to
that doctrine. If the employee was rendering an additional service on the
way to work, then she would be within the scope of employment.
D. frolics and detours-
1. Should an employer be liable when an employee while traveling has departed from the
scope of his or her employment, even if temporarily, while in pursuit of some personal
goal that is not directly related to the employment itself?
a. Laird v. Baxter Health Care Corp. (Ill 1994) Decedent was killed in a car
accident while traveling in the car of a fellow employee. From the facts it was
not clear if the employees were traveling from one appointment to the next or if
they were going somewhere and possibly meeting someone for lunch. Was if the
Def employee was on a frolic? Court held that just because she was not going in
the most direct route does not mean she was on a frolic or a detour.
2. What is the difference btw a frolic and a detour? (all courts do not agree) generally a
frolic is more extensivce than a detour
3. generally neither a frolic or a detour is for the benefit of the employer- though some Js
make more of a distinction btw the two- control and enterprise tests still apply to situation
E. VL for IT-
1. the general rule is that employers are not responsible for the Its of their employees
2. exception of foreseeability in holding employers liable for employees IT’s?
3. is actual notice required or is should have known enough?
a. Sunseri v. Puccia (IL 1981) A patron in a bar is IDed and grumbles to his friend
about it. The bartender takes offense and the patron apologizes. On the way out
the patron gives him the finger. The bartender kicks him onto the floor and beats
on him some more finally biting his ear three times. Multiple outside observe this
including the owner. The patron sues the owner for VL. Court holds dual
purpose theory of action- employee acting for their own interests but also those of
employer. Sends case to jury for VL and direct neg on part of owner.
4. Dual purpose doctrine- employee’s IT may be within the scope of employment if it
serves the employer in some well as well as the employee.
a. Activity test- focusing on the activity that gave rise to the IT
b. Motive test- personal motive in committing IT
5. RE of agency- conduct is not within the scope of employment if it is different in kind
from that authorized, far beyond authorized space or time limits, or too little actuated by
a purpose to serve the master.
a. Plummer v. Center Psychiatrists (VA 1996) In this case a psychologist slept
with a patient suffering from depression and suicidal tendencies who brought suit
against his employer. In this case though the general rule is that employer is not
responsible for IT committed by employee (and dual purpose and foreseeability
may be limited) court found employer liable. Found as he was acting the scope of
his employment when IT began- activity test employer must prove he was not in
F. VL for Punitive Damages
1. general rule is that punitives are available when there has been a reckless disregard for
the safety of other.
a. Brueckner v. Norwich University (VT 1999) P was an incoming
freshman at NU on a ROTC scholarship after five years in the navy. Certain
upperclassman appointed by the University formed a cadre that was to
indoctrinate and orient the new freshmen. P was subjected to intense hazing by
the cadre, which he informed NU officials about and after a few weeks left NU.
Jury awarded him general damages for medical expenses, emotional distress, lost
scholarship, and lost earnings (past and future), and 1.75 million in punitive
damages. NU appealed court held punitives to be incorrect. For punitive
damages def must not just wrongful or unlawful but actuated by bad spirit and
wrongful intentions. Court decided NU’s conscious choice to remain ignorant of
activities was from indifference rather than actual malice.
2. VT rule changes rule for punitives from a reckless disregard for the safety of others to
actual malice required.
a. how can an institution have specific malice?
3. Complicity theory- RE of torts- a principal may be held VL for punitive damages
awarded on the basis of an agent’s misconduct where the principal has acted in either
authorizing or subsequently ratifying such misconduct, or where the principal has
recklessly hired an otherwise unfit agent.
G. Independent Contractors-
1. The common law rule provides that a principal who hires an independent contractor to
perform work will not be held VL to persons who may be tortiously injured in the course
of such work.
2. There are however exceptions depending on the circumstances.
a. Peculiar risk- it is generally not enough that the work of an ind contractor
involves some degree of special danger common to the industry generally.
i. Inherently (or intrinsically) dangerous work- in some jurisdictions this is
the term for the peculiar risk exception- but the doctrines themselves are
basically the same
b. Non-delegable duties- certain legal responsibilities are imposed on employers
and contractees by law- they cannot be delegated to anyone including an
otherwise qualified contractor. An example includes work place safety
requirements imposed by statute.
H. Joint Enterprises, Joint Ventures, and Partnerships-
1. Other than respondeat superior- VL may be imposed in other special relationships;
often this arises when the def has agreed, either expressly or by implication, in advance
of the tortious activity, to participate with other persons in some type of common
enterprise or activity
2. Joint enterprise-
a- an agreement express or implied among the members of the group,
b- a common purpose of the group,
c- a community of pecuniary interest in that purpose,
d- an equal right to a voice in the direction of the enterprise
i. Farmers Insurance Exchange v. Parker (UT 1997) A group of friends
were climbing together and one ended up kicking rocks into the rode
where a van was unable to avoid them and was damaged. The climer who
had chosen the path came down and identified himself as the leader
(though he had not kicked the rocks down). The van’s ins co sued him
under a theory of joint enterprise. The trial court found him liable but the
appeals court excused him as the party was non-commercial and as there
was no pecuniary interest btw himself and the other climbers it was not a
3. Joint venture- 2 or more people engage in a single business enterprise for profit
such that liability is imputed to all members. It requires:
a- an agreement,
b- a common purpose,
c- a community of interest,
d- an equal right to a voice in control
e- In a joint venture because of the economic or commercial purpose- the
members owe a fiduciary duty directly to each other. This is not true in a joint
i. Cullip v. Domann (KS 1999) Three 14 year olds went shooting together
with the permission of Ps mother. One boy accidentally shot the other. P
tried to claim that the 3rd boy was also liable in a theory of joint venture.
Court held there was no joint venture- there might not even have been a
joint enterprise based on a lack of control on the part of the def. Also
unlike joint venture in enterprise while equally liable to outsiders members
are not liable to each other.
4. Partnership- when people join together money, goods, labor, or skills for the purpose
of carrying on a trade, profession, or business, and where there is a community of interest
in the profits or losses
a. There is no specific req that the agreement be in writing- but most are
b. Where there is a written agreement those are the terms that govern- regardless
of the intent of the ind.
XIII. Common Law Strict Liability
A. Animals- The RE of torts suggests different rules for wild and domestic animals.
1. Wild- Wild animals- those not by custom devoted to the service of mankind at the time
and place in which they are kept- for these courts apply strict liability broadly in all cases
where the harm resulted from an action of the animal that is characteristic of its class.
2. Domestic- Domestic animals- those that are by custom devoted to the service of
mankind at the time and place where it is kept- are only treated as a strict liability where
the owner knew or had reason to know that the animal has dangerous propensities
abnormal to its class.
a. Many states have broadened the scope of dog owner liability through statutes
i. Some Js allow Ps injured in a public place to recover whether or not the
owner knew the dog had dangerous tendencies.
ii. Others have enacted leash laws to require owners to keep their dogs
under control in order to avoid liability.
b. Sinclair v. Okata (AK 1994) A dog bit a little boy and his mother sued the
owners on his behalf. There is no dispute that the dog had been involved in four
other biting incidents and possibly a fifth. Ps asserted that the dog had dangerous
propensities of which the owner was aware. The defs claim the dog was acting as
a result of natural instincts not dangerous tendencies. The court held that though
an owner is strictly liable for the actions of an animal with dangerous propensities
that trait must be uncharacteristic of the kind of domestic animal. Therefore the
court denied summary judgment as a determination of whether the animals
actions were abnormal would have to be made.
3. the one bite rule is not the general rule- it is know or had reason to know of dangerous
4. are some breeds inherently dangerous – though strictly domestic animals?
i. jury plays a large role in determining whether an animal is dangerous or not
B. Abnormally dangerous activities
1. Fletcher v. Rylands (Eng 1866) P was engaged on coal mining operations. Def were
owners of a mill and hired engineers and contractors to construct a reservoir on their land,
which happened to be on top of the old coal workings of P. The water in the reservoir
flooded the coal workings and P was forced to suspend operations. P brought suit and the
court held that though def was free from blame he was answerable for the damage
because he had brought onto his land that which would cause damage if it escaped.
a. Rylands v. Fletcher (Eng 1868) The Chancellor upheld the decision above
though limiting the ruling to non-natural uses of the land
2. This non-natural use limitation has been interpreted as not including any ordinary,
appropriate or customary uses, given the character of the def’s and surrounding
a. narrow holding of Rylands:
i. non-natural use of land
ii. that affects neighboring landowner
iii. and is capable of causing great mischief
b. broad holding of Rylands:
i. activity that can cause great mischief
3. 2d RE §519 the general principle of ultrahazardous activities (seems to adopt
broader rule of Rylands) is:
a- one who carries on an abnormally dangerous activity is subject to liability for
the harm to the person, land, or chattels of another resulting from the activity,
although he has exercised the utmost care to prevent such harm
b- this strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.
4. §520- The factors that determine such activities include:
a- the existence of a high degree of risk of some harm to the person, land, or
chattels of others;
b- likelihood that that the harm that results will be great;
c- inability to eliminate the risk by the exercise of reasonable care;
d- extent to which the activity is not a matter of common usage;
e- inappropriateness of the activity to the place where it is carried on; and
f- extent to which its value to the community is outweighed by its dangerous
5. common abnormally dangerous activities include blasting, fireworks, nitroglycerin,
hazardous waste site operations, and rocket motor devices.
a. Siegler v. Kuhlman (WA 1972) A 17 year old was killed in a gasoline explosion
when her car encountered a pool of thousands of gallons of spilled gasoline. Def
was driving a gasoline truck and trailer when the trailer became loose crashed
through a fence and landed on the road below. The court held that res ipsa
loquitur was possible but unnecessary as strict liability could be found as a matter
of law. The transportation of gasoline is a uniquely hazardous activity to 3rd
persons and by the nature of the danger evidence of neg will be wiped out when
an accident occurs.
6. Courts generally have refused to apply the doctrine to the manufacture and sale of
firearms and uninsulated power lines.
7. an area of controversy is the use of underground storage tanks at gas stations. Some
courts have found such to be within the doctrine- especially when leakage might threaten
drinking water supplies.
8. Factor f of RE §520- the social value factor- has been controversial- however judges
rarely rely on it. Factor c however- the reasonable care factor has often been
a. Indianan Harbor Belt RR v. American Cyanamid Co. (7th 1990) –Posner-
Cyanamid manufactures acrylonitrile- which is flammable, highly toxic, possibly
carcinogenic. When the car arrived Ps employees noticed fluid gushing from the
bottom of the car. P claims that shipping large quantities of such a chemical
through a metropolitan area is an abnormally dangerous activity and so def is
strictly liable for the damages. Posner held that there was no reason to believe
that a neg doctrine would not be appropriate (which would be the justification for
strict liability- via §520c). Also shipping could not reasonably be rerouted around
all major metropolitan areas. Therefore he held strict liability would not be useful
8. In US courts at least the narrow rule of Rylands still applies
A. Private nuisance- A private nuisance unreasonably interferes with the use and
enjoyment of nearby property.
1. General principles of liability- private nuisance is like neg in that courts weigh and
balance a number of factors to decide whether a particular activity constitutesa nuisance.
a. Clinic & Hospital Inc v. McConnell (MO 1951) P is the hospital filing a
complaint against def- a music shop that operates a record player and loud
speaker every day for many hours. P contends that the music disturbs patients
and is loud enough to be heard above traffic. P has requested that def lower
music and has complained to city officials. The court held that def is a lawful
business and has a right to exclusive of control of his property to promote his
business but this right is not absolute and must be used in a reasonable way within
the circumstances. In this case the def’s use is unreasonable and interests of the
hospital are greater so the def must be enjoined.
2. is nuisance a SL situation- or is blameworthiness required?
i. if the emphasis is on unreasonableness than it sounds like neg
ii. if nuisance is strictly land and effect on land than it may be SL
iii. if nuisance is more broad based- activities of a business- than maybe neg?
3. The same conduct can sometimes be a nuisance, a trespass, or possibly
i. nuisance is an umbrella term that deals mostly with injuries to land
ii. trespass requires an element of physicality
iii. what is required for nuisance- neg analysis?
4. a few activities are routinely held to be nuisances including the location of a funeral
home in a residential neighborhood.
5. If a nuisance is maintained long enough the operator may gain a prescriptive easement
to continue it. (accrues after more than 20 years?)
6. Remedies- A variety of remedies are available against a private nuisance. One
remedy is damages, another is injunctive relief.
a. §826 of the RE of torts permits a finding of nuisance even though the
gravity of harm is outweighed by the utility of the conduct if the harm is
serious and the payment of damages is feasible w/o forcing the business to
b. Boomer v. Atlantic (NY 1970) Def operated a cement factory near Albany. P’s
brought suit for injunction and damages based on injuries from dirt, smoke, and
vibration. The court held that to grant an injunction, though the normal remedy
for a nuisance, would cause to large an economic disparity btw the damages and
the consequences of the injunction. Therefore the def was obliged to pay
permanent damages to the Ps but continue with operations.
7. Courts distinguish btw temporary and permanent nuisances.
i. When permanent damages are awarded they impose a servitude
on P’s land.
ii. Such damages are calculated based on the diminution in value theory.
iii. Damages for temporary nuisances historically focused on diminution in rental
8. Since injunctions are equitable decrees and therefore inherently discretionary, courts
are free to shape their orders as required by the circumstances.
a. Spur Industries v. Del Webb Development (AZ 1972) P is a developer that built
an extensive retirement community. Def is a feedlot operator. P is suing def as a
nuisance for the smells, odors, and flies that are preventing the sale of homes and
encouraging complaints from current residents. The feedlot was in existence
before the development and the court held that the developer choose the land as
less expensive than zoned areas. However the nuisance caused to the community
at large required enjoinment. Nonetheless because the developer had come to the
nuisance and profited accordingly he must indemnify the feedlot for shutting
down or moving.
b. Conditional injunctions are also known as compensated injunctions.
9. The question of whether a remedy does more public harm than private good- and by
how much- is often referred to as balancing the equities or balancing the relative
10. when dealing with an injunction:
1- is there an adequate remedy at law?
2- is the harm irreparable?
3- what is the balance?- public policy issues btw the individuals
4- if you want an immediate preliminary injunction you must show a likely
success on the merits
11. injunction types:
B. Public Nuisance-
1. A public nuisance is a special catch-all criminal offense consisting of an interference
with the rights of the community at large.
a. State v. H. Samuels Co Inc (WI 1973) Def owned a salvage industry in an area
zoned for heavy industrial work but surrounded by residential and light industry.
The noise produced by def has repeatedly violated noise ordinances for the area.
The higher court reversed holding that equitable relief should be granted not
because of the stat violation but because def was a nuisance and so ordered a
reduction of the hours in which def could operate.
2. For suit against a private nuisance or a public nuisance the P must have standing to
a. An ind can bring suit if they can show that his damage is different in kind or
quality from that suffered by the public in common.
b. However injury to a p’s interest in land is sufficient to distinguish p’s injuries
from those experienced by the general public and provide standing.
3. In CA any citizen has the right to bring suit for a cause of action in
nuisance- standing to sue regardless of whether ind owns land or not
4. Can civil courts enjoin criminal behavior under nuisance?
a. Goose v. Commonwealth (KY 1947) Def was a saloon and gaming
establishment owned by several brothers. Suit was brought to get an injunction to
shut them down after police actions and raids were unsuccessful. The court held
that generally courts do not enjoin crimes- as the statutes themselves are
injunctions- but when a crime is also a nuisance and property usage is apart of the
crime the court can enjoin.
5. Generally it must be shown either that the action is directly authorized by statutory or
other law or that such nuisance is an injury to the property or civil rights of the public at
XV. Products Liability
A. General Issues
1. Products liability suits include
a. misrepresentation (IT- fraud and deceit- no contrib. defense, punitive
damages, diff stat of limitations
i. misrepresentation is attorney general choice- as no contrib. or
assumption of risk
d. RE of torts- 402- generally SL
B. Negligence and Privity
1. privity- The privity doctrine provided that a party who manufactured or sold a
defective product owed a duty with respect to that product only to the immediate
purchaser; the party with whom the seller was in privity of contract.
a. Winterbottom v. Wright (Eng ?) This is the leading case establishing the rule of
privity of contract. Winterbottom involved a contract btw the postmaster general
and someone, to provide a coach to convey the mailbags on a certain road.
That person hired a third person to drive the coach. The coach had a defect and in
an accident the driver was lamed. However he could not sue the person who
supplied the coach. That person only had a duty to the postmaster to keep the
coaches in good order, because that was who his contract was with.
2. developing exceptions:
a. Thomas v. Winchester (NY 1852) P took medicine prescribed to her by her
doctor. What she took was labeled extract of dandelion, but was in fact extract of
belladonna and almost died. Def claimed as there was no privity he could not be
sued by P. Court held that privity is generally necessary, in this case because of
the hazardous product involved and the foreseeability that the drug was to reach a
remote purchaser, privity is not necessary btw the consumer injured and the neg
b. Thomas implied exceptions for:
ii- ultrahazardous activities
iii-a different rule for foodstuffs
c. Huset v. JI Case Threshing Machine Co (8th 1903)A farm worker lost a leg
when he fell into a threshing machine. Court held that where a manufacturer’s
neg endangered human life (like Thomas but expanded beyond foodstuffs), when
a P is injured using the defective appliance by invitation on the owner’s premises
(vertical privity), and when someone sells or delivers a product they know to be
dangerous without a warning even a third party may bring suit.
i. development of horizontal and vertical privity
d. MacPherson v. Buick Motor Co. (NY 1916)- Cardozo- P bought a Buick from a
dealer. P was injured when the wooden wheel collapsed. Generally the P would
only have had privity with the dealer, but the court held that when a product that
is defectively made and is thus liable to become a source of danger to people
(such as a coffee urn that explodes- cited Statler v. Ray Mfg Co) then the def may
be liable- expanding Thomas from inherently dangerous products- to all products
that could be dangerous if defective (which is most). However the danger must
still be in some way foreseeable and the def must know that the product is likely
to be used by others who are not the purchasers.
i. Though foreseeability was mentioned- it was just a requirement that a
manufacturer or seller by aware that if the product was in some way
defective, some one could get hurt.
e. This case essentially abolished the privity rule for neg actions for product
liability cases where the product was capable of causing a lot of harm- which is
now true for all Js
f. Escola v. Cola Cola Bottling Co of Fresno (CA 1944)- P in this case was a
waitress who was injured when a bottle of coca-cola broke in her hand. She
alleged the bottling co had been neg in making a defective bottle that exploded
when held. She brought her case using res ipsa. Court found for her.
i. Traynor- (concurring) held that strict liability should be the standard in
products liability cases because the def has so much more information
available and burden of proof is too high for injured P. and public would
be safer if manufacturers were held to higher standard of care.
C. Breach of Warranty
1. UCC- codified the law of warranty in commercial and consumer transactions
a. §2-313- Express Warranties-affirmation of fact or promise relating to the goods
that is a part of the bargain- opinion of seller is not included
b. §2-314- Implied Warranties-unless modified by 316 a warranty that goods shall
be merchantable is implied
c. §2-315- Fitness for a particular purpose-unless modified under 316 goods have
an implied warranty of fitness for the purposes which the seller knows the buyer
intends to use or sell them for
i. is this fitness based on consumer expectations?
d. §2-316 Exclusion or modification of warranties- sellers can exclude any
warranties including all of the above- using language such as “as is” and “with all
e. §2-719 Contractual modification or limitation of remedy-consequential
damages may be limited or excluded unless this would be unconscionable-
limitation of consequential damages for injury to the person in the case of
consumer goods is prima facie unconscionable but limitation of damages where
the loss is commercial is not
f. Henningsen v. Bloomfield Motors Inc., (NJ 1960) Mr. H bought a Plymouth for
his wife from def dealership. She was injured when the steering went out shortly
after the purchase. They brought suit against Chrysler and the dealership. P had
signed the contract that contained the limited provisions of the warranty. The defs
argued that the disclaimer of implied warranty protected them from suit and
Chryler claimed lack of privity. Court held that lack of privity in mass marketing
society not applicable. Also held that standard form contract in which the
consumer had no choice and inequality of bargaining power made disclaimer of
i. This case moved warranty closer to a kind of strict liability. Not long
after strict liability became a frankly acknowledged tort doctrine.
D. Strict Liability in Tort
1. Greenman v. Yuba Power Products (CA 1963)-Traynor- P was injured while working
with a lathe. A piece of wood came loose in the lathe and flew out of the machine
striking P. In court the injury was demonstrated to have been shown by a manufacturing
defect (loose screws). Court explicitly adopted strict liability as basis for liability.
2. RE of Torts 2d-
a. §402A - special liability of seller of product for physical harm to user or
1-one who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if:
a- seller was in the business of selling such a product
b- product is expected to and does reach the user or consumer w/o
substantial change in the condition in which it is sold
2- the rule stated in subsection (1) applies although
a- the seller has exercised all possible care in the preparation and
sale of his product, and
b-the user or consumer has not bought the product from or entered
into any contractual relation with the seller.
b. comments to 402A:
a- this section states a special rule applicable to sellers of products. The
rule is one of strict liability, making the seller subject to liability to the
user or consumer even though he has exercised all possible care in the
preparation and sale of the product… The rule stated here is not exclusive
and does not preclude liability based upon alternative ground of
negligence of the seller where such negligence can be proved.
f- seller includes manufactures, wholesalers, and retailers (not occasional
g- defective condition- product must be dangerous at the time it left seller
h- where there is reason to anticipate danger from a particular use-
warning is required---seller is also responsible for packaging
i- unreasonably dangerous- dangerous to the extent beyond what would be
expected by an ordinary consumer (good whiskey is not dangerous though
it may make someone drunk, bad whiskey is unreasonably dangerous-
same w/ tobacco etc.)
j- directions or warning- warning is required where a product may be
unreasonably dangerous- including where there is an ingredient which a
substantial number of people are allergic to and the consumer would not
know or expect to find it in the product
k- unavoidably unsafe products- if something is incapable of being made
safe it is not unreasonable dangerous if accompanied by a warning and SL
should not be applied
l- user or consumer- no contractual relationship required
m- contrib. neg is not a defense as this is strict liability- however knowing
assumption of risk is a defense
c. under 402A a product is fit or it is defective
d. not all Js have adopted 402A- in which case only warranty applies
E. Definition of Defective
-Comment g above- defective condition- was meant for manufacturing defects- product not like
all the others made
-Greenman however addressed a design defect
-Comment j addresses warning defects
1. RE of torts 3d
a. §2- categories of product defect- a product is defective when at the time of sale
or distribution it contains a manufacturing defect, is defective in design, or is
defective because of inadequate instructions or warning and so in is not
b. design defect uses majority view of risk-utility w/ burden on P
c. manufacturer of a component part is not listed in 2b- only manufacture,
wholesaler, retailer, distributor etc.
2. Manufacturing Defect
a. Ford Motor Co v. Gonzalez (TX 1999) P purchased a new Ford Escort from the
dealer. He went back at least four times with same problem. Over two years he
had many problems with from and had car services 10-15 times. Driving from
work with family got in car accident when car swerved and then flipped. Witness
saw tire acting strangely immediately before accident. Jury found ford liable for
manufacturing defect. Ford appealed saying no proof of causal connection btw
accident and tire problems. Court held that witnesses were sufficient to uphold
i. under 402A contrib. is not defense- but knowingly encountered risk is a
b. Manufacturing cases are often clear in terms of the law but difficult to
c. 402 A issues in manufacturing defects:
1- one who sells
2- defective condition (when it leaves control of seller)
- what about #2 combined with res ipsa
- *also packaging and precautions to ensure safety for a normal
length of time and sold in a normal manner
3- unreasonably dangerous- (like nuisance does this go the size of
the damage or the conduct in the delivery)
4- directions of warning (see packaging above)
5- user or consumer
6- contrib. neg issues
3. Design Defect
a. Barker v. Lull Engineering Co (CA 1978) P was injured at a construction sight
while operating a high lift loader. He claimed design defect, but jury found
against him that product was not unreasonably dangerous for intended use. On
appeal the court held Barker rule (below).
b. Barker rule – CA standard- is called the unsafe product test (their
definition of risk-utility) Two prong test:
1-Consumer expectation test- does product fail the way a consumer
would expect this product would work? (same as warranty fitness
2- risk/utility standard- benefit and risk of product are considered
to determine if there is a design defect- kicks in when the danger
inherent in the product is obvious
3- def must then bear the burden of proof that there was or was not
a reason that the product was not designed the way the P has
4-P gets to pick which test was violated
c. The CA court does not adopt 402A- rejects the unreasonably dangerous
statement- because of fear that this would lead to conduct analysis- rather than
d. Majority rule is not Barker- it is consumer expectations or risk utility
on plaintiff to show that the risks outweigh the benefits of the design 402A
or 3rd RE
i. (Piper v. Wilson- small planes that get icey at high altitudes and
fall out of the sky- P must find a safer design for a small plane- much
harder for P to do than say this current way does not work)-
ii. which makes that risk utility test- nothing more than neg- calculus of
risk- to show product is too unreasonably dangerous- which is 402A
e. Hence in most places there is no SL for design defects- only manufacturing
g. State of the art defense- was it possible to make a safer product at the
i. Issue is not was it done by others- but was it technologically
feasible to do it differently earlier?
ii. Hernandez v. Tokai Co (TX 1999) P’s minor son was injured when
minor daughter started a fire with a disposable butane lighter. P brought
suit against lighter co- as child proof design was available. Def argued
that lighters were meant for adults not children and P could have
purchased child proof lighter. TX risk- utility analysis safer alternative is
required but not sufficient – other issues include foreseeability of harm
(from use or misuse), risk of injury in case of harm, and utility of design
as is to intended consumers compared to alternatives. Use of product by
unintended users and misuse of product does not insulate manufacturer
from liability but other factors of test must be met.
h. prescription drugs- different from Barker for policy reasons
i. Brown v. Superior Court (CA 1988) P’s filed action against drug
manufacturers of DES. This court held that 402 would impose liability for
failure to warn only if the drug manufacturer knew or should have known
about defect. This is in essence a neg claim not strict liability. Court held
that that was correct standard for drug manufacturer- do to policy interests
in new drugs and affordability of drugs manufacturers should be held only
to neg standard (as embodied in comment k).
i. prescripton drugs are subject to comment k- analysis already (unavoidably
unsafe products) under 402A
m. learned intermediary doctrine- in prescription drug cases warnings
generally go to prescribing doctors
i. however if advertising goes directly to the consumers then the
warning must also go directly to the consumer.
4. RE of torts 3d
a. §6- liability of commercial seller or distributor for harm caused by
defective prescription drugs and medical devices
1- liable for manufacturing defect
2- liable for defective design if- the foreseeable risk of harm posed
by the drug or medical device are sufficiently great in relation to
foreseeable therapeutic benefits that reasonable health care
providers would not prescribe the drug for any class of medical
3- liable for inadequate instructions or warnings provided to health
care provider or patient where necessary
b. Not all courts follow the 3rd RE and Brown in treating drug
manufacturers different from others.
5. Warning Defect
a. Risk warning- given the risk the consumer can decide to met the risk or
avoid it by not using the product
i. Livingston v. Marie Callender’s Inc (CA 1999) P had soup at a
restaurant and after asking waitress if soup contained MSG was told it did
not. It did actually and he had a severe allergic reaction. P sued based on
comment j of 402A- trial court dismissed but appeals court revered
holding that trial court must determine whether MSG should be covered
by comment j. However the court held that like in Brown actual or
constructive knowledge is required for strict liability in failure to warn.
b. whether or not a warning is necessary or sufficient is a jury question
i. decision is based on an objective P (ordinary consumer)- not a
c. Warnings do no good unless they reach the person using the product.
Where they can be pasted onto the product this may work better than a
brochure that can get lost.
d. In a cost/benefit analysis the cost of a warning is generally less than the
cost of accident- but some courts have recently held that additional
warnings are not necessarily more effective and may cause the most
important ones to go unnoticed.
e. The adequacy of the warning as well as position and presence is also
f. under the Barker analysis it is easy for Ps to kick the analysis to the def
in a warning case
F. Definition of One Who Sells
1. Allenberg v. Bentley Hedges Travel (OK 2001) Woman and her mother were injured
on a bus when bus was in accident and brought suit for neg against the travel co who
owned the bus, the driver, and the commercial seller of the bus to the co. However the
seller had purchased and sold the vehicle as used. Court held that majority view is that
dealers in used products are not responsible for manufacturing defects as they have no
chain of communication with the manufacturers and are often outside the marketing
chain. Court agreed with the view and denied liability.
2. RE 3d §8- liability of commercial seller or distributor of defective used
a. One engaged in the business of selling or otherwise distributing used
products who sells or distributes a defective used product is subject to
liability for harm to persons or property caused by the defect if the defect:
i. arises from the seller’s failure to exercise reasonable care; or
ii. Is a manufacturing defect under §2(a) or a defect that may be
inferred under §3 and the seller’s marketing of the product would
cause a reasonable person in the position of the buyer to expect the
used product to present no greater risk of defect than if the product
were new; or
iii. is a defect under §2 or §3 in a used product remanufactured by
the seller or a predecessor in the commercial chain of distribution
of the used product; or
iv. arises from a used product’s noncompliance under §4 with a
product safety statute or regulation applicable to the used product.
b. a used product is a product that, prior to the time of sale or other
distribution referred to in this section, is commercially sold or otherwise
distributed to a buyer not in the commercial chain of distribution and used
for some period of time.
3. A P has a greater chance of success under the 3rd RE than under the OK decision
G. Sale of Products or Provision of Service
1. Royer v. Catholic Medical Center (NH 1999) P had a knee replacement surgery at
CMC. The prosthesis was defective and P had to have a 2d surgery. P brought suit under
strict liability against CMC for selling him a faulty prosthesis. The court held that CMC
offered services and only sold the prosthesis as a part of the services- and therefore was
not a seller of prosthesis under 402A. The court held that the policy reasons for strict
liability in general service situations did not apply. Strict liability is to protect the
consumer when proving neg is a practical impossibility also making the hospital liable
would increase health care costs generally. Therefore the court held that strict liability
did not apply.
2. The more necessary the product the more likely it is to be treated like a service
(blood, hospitals etc.) v. hair products in a salon are not services
3. sale v. service is always very fact specific
H. The Type of Harm: Economic Loss Problem
1. Moorman Manufacturing Co. v. National Tank Co. (IL 1982) P filed a complaint when
only several months after purchase his feed storage tank developed a crack. He brought
suit claiming unreasonably unsafe design and manufacturing defects. The court looked at
whether economic losses were recoverable under a theory of strict liability and held they
were not. Defs have the responsibility for personal injuries of goods placed on the
market, but not for the level of performance required by Ps business w/o agreeing the
product was designed to meet those conditions. However the court held that SL can
apply to P’s property as well as personal injury but not solely economic loss.
2. economic loss- loss of product
i. under contracts- damages more limited, notice required, time limited etc.
ii. tort damages- much less limited- consequential damages
iii. court says - implied warranty gives rise to fitness issues but as long as
damages is economic strict liability does not apply
iv. if there is physical injury due to product failure- tort damage
v. product failure alone- UCC applies
3. so what is physical injury v economic loss
i. physical injury that is like an explosion- causes things to break and blow
up is more likely to be treated as tort damages- it is more likely and person
could be injured
ii. economic loss in which it is unlikely a person will be injured then it is
more likely to be a UCC issue
4. if you have injury to your person injury to the person is included but if there is
no injury to person (or likelihood of) no injury to property
I. Plaintiff’s Conduct
1. Daly v. General Motors (CA 1978) P was involved in an accident and received fatal
head injuries when he fell out of his car when the door was thrown open after the
accident impact. P’s decedents brought suit for the defective door latch. Defs claimed P
was not wearing his seatbelt, did not use the door lock, the car manual suggested both
these procedures for accident safety, and P was drunk at the time of the accident (and
hence did not use safety equipment). P’s decedents appealed on issue of contrib neg
within strict liability. Court held that contrib neg (equitable allocation of loss) can SL
can be blended w/o defeating the purpose of the doctrine of SL.
i. In CA there is no assump of risk (comp neg J)- hence assumption of risk,
contrib.etc all given to the jury to decide
2. General Motors v. Sanchez (TX 1999) P was crushed btw a feedlot gate and his truck
when the truck rolled back into him. P’s decedents said the truck rolled back due to a
defect in the transmission control linkage which allowed him to shift into a hydraulic
neutral position rather than going into park, and then the transmission slipped into reverse
and backed into him. The trial court found for Ps theory of the accident (not GMs
alternatives) but found the P responsible for 50% of the accident. On appeal the court
held that there were not only two types of P conduct-1- assumption of risk- hence no SL
or 2- failure to discover or guard against product defect- hence point of SL. Court held
that Ps conduct other than failing to guard against a defect is subject to contrib. neg
analysis. Here P did not set parking brake, did not place the truck completely in park, did
not turn off the engine, remove the key, or pull down on the gear shift- hence court
upheld jury’s finding of contrib.
i. 402A approach - Sanchez- TX and contrib.- assumption of risk- if it
means no duty it is a complete defense to SL; TX law no obligation on
consumer w/o notice to do an inspection but if P should have known there
was a problem with product knowing contrib. neg- know or should have
known- then jury can look at behavior of P
ii. Knowing contrib. neg- 2d implied assumption risk- jury can consider
iii. Unknowing contrib.- irrelevant not contrib.- 402A agrees
5. Functions of tort law
a. corrective justice
b. economic optimal deterrence
c. loss distribution
d. redress of social grievances
6. Public choice theory- who is the best decision maker on an issue- a judge or a
Class idea:- Set battery boundaries offering redress to insure that individual does not act out on
their own- civil resolution encouraged and possible? 2-Do we need assault and false
imprisonment if we can expand battery?
Posner- economic theory of neg.
1. both strict liability and neg have the same burden- what shifts is who pays in each
2. Neg is a value judgment that society makes- and Posner argues that Hand calculus sets
it at the right level- efficient level- optimality- producing the greatest good for the
3. under neg (as opposed to strict liability) the injurer is only liable for accidents he could
have avoided at cost lower than that of the accident.
4. Therefore neg rather than strict liability is usually the right level of care [strict liability
may deter the amount of the activity that occurs, while neg will change who pays for an
activity or how an activity is done]
5. Posner would say we all internally do this calculus internally all though time-
everything has a value that can be placed on it, though it might vary from person to