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Torts Solomon Fall 08

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					                                                TORTS OUTLINE
Legal Arguments
Precedential:
 1. Formalist vs. purposive interpretation
      a. Formalist: explain the meaning of a word by taking it out of context and without considering the
         purpose behind the rule; having defined the word the way a dictionary might, apply it to the fact
         situation
      b. Purposive: imagine the purpose behind a rule and define the word in light of the purpose; many
         conflicting purposes can explain rules, so be flexible
 2. Broad vs. narrow holdings
      a. Broad: take each phenomena in the case and them as abstract as possible; think about analogies and
         classification
      b. Narrow: tie the rule to the facts of your case so that it would not be capable of deciding a case in
         which the facts were even marginally different
 3. Manipulating legal and factual categories

Non-precedential: policy arguments:
 1. Judicial administration
      a. Firm rule (allows judges to easily administer the standard and citizens to comply; looser standard
          would lead to confusions, open the floodgates of litigation, undermine the rule of law, threaten
          Western civilization, etc.) vs. flexible standard (rigid rules force judges to be unfair in many cases,
          can't adapt to changing times, will tie judges' hands in the future; flexible standard allows each case
          to be taken on its own facts)
 2. Institutional competence
      a. Differences in inherent nature of institutions (courts, the legislature, the executive, etc.) allows
          claims that a particular decision is or is not suitable for them to take; easy to claim that institutions
          are good at a wide range of different and conflicting tasks
      b. Courts: are bodies society has set up to deal with complex factual issues, to be responsive to
          changing circumstances, and yet be objective; can take outside expert advice and have a firm
          understanding of the changing moral consensus of our society.
      c. Legislature: is a body that reflects changing public opinion, that can bring in outside experts, and is
          used to dealing with complex factual issues. Regulation is the job of the legislature and the
          administrative branch; courts should apply, not make, the law; if they do otherwise, they threaten the
          separation of powers.
 3. Morality
      a. Form (formal classification of the dispute) vs. substance (substantive relative social power of the
          people involved - big co. vs. little guy)
      b. Freedom of action (doctor has freedom not to treat; law can't force him to ask) vs. right to security
          (patient has right to be secure in the knowledge that doctor will treat her)
 4. Deterrence
      a. Proposed action will deter bad conduct and encourage good conduct (or vice versa)
      b. People often argue based on assumption that both sides knew the rules and adjusted their behavior
          accordingly; you can argue instead that one party is much more likely to know the rules and adjust its
          behavior
      c. Instrumentalist (?): conceiving of tort law as an instrument for achieving broader social goals;
          Judge Posner argues that tort law should deter persons from engaging in activities that a reasonable
          person would view as socially wasteful; society will be better off if such activities are deterred by
          threats of liability

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      d. Noninstrumentalist: torts deserve to be punished because they are wrongs (framed in terms of
         "fairness" and "corrective justice")
  5. Economics
      a. Economic arguments give the appearance of scientific rigor and neutrality to the political choices
         judges make
      b. Cost-benefit analyses

 Objectives of tort law/civil justice system
   I.   Although money is the most common form of relief, it’s only one thing we think about when
        considering clients’ goals
            a. Money for lost wages/medical bills vs. money for pain and suffering
            b. Maybe want justice or something else
            c. In medical practice lots of people don’t bring suits when the doctor apologizes
            d. Maybe they really want day in court (make wrongs public) or private settlement
  II.   In old days, tort law prevented violent revenge – do we really need that today?
            a. Most scholars say it’s about a combinations of compensation for injuries and deterrence of risky
                activity
            b. But most injuries are notoriously undercompensated; many claims are never brought
            c. People with small injuries do well; those with big one do not
            d. Tort reform today – seriously limit it because not really accomplishing the goals
            e. Might be some notion of justice worth preserving – some state-sponsored forum to confront
                people who have wronged you and force them to make amends

 Ethics and Professional Responsibility
   I.   Attorney-client privilege
  II.   When dealing with minors, can appoint guardian ad litem or next friend to represent the minor in court
 III.   If you represent an insurance co.:
            a. Insurer’s interests may conflict with those of the insured
            b. Rules of Prof. Conduct say you can represent both if you can provide competent and diligent
                representation for each
            c. Lawyer chosen by insurance co. to represent insured represents the insured over the co.
            d. Might want to encourage D to get own lawyer to avoid bad faith claims
            e. Insurance co. will argue that D acted intentionally to avoid coverage
 IV.    Counseling
            a. What does the client want?
                     i. Money?
                    ii. Justice (future deterrence – don’t allow other to be similarly harmed)?
                   iii. Apology?
                   iv. Revenge?
 V.     Talking to relevant parties for factual inquiry
 VI.    Effects of bringing suit: effect on people bringing the suit in community
            a. Should it be brought?
VII.    Alternative remedies
VIII.   Conflict of interest:
            a. Still want to get paid, but need to keep clients’ interest in mind
            b. Career ambition
            c. Client’s condition – if poor and needs money for medical bills right now, want to go for quick
                money or big money?

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Liability Insurance
 I.    Types
           a. 1st Party insurance: policy will pay certain amount for damage to house (fire) or car (collision)
                      i. Insured deals only with own insurance co. and entitled to recover upon proof of loss;
                         unnecessary to show fault on the part of anyone, even insured’s own fault, short of
                         intentional damage
                 rd
           b. 3 Party insurance: to protect you from harm suffered by someone else for which they seek to
               recover from you
                      i. Duty to indemnify: insurance co. will pay up to certain policy limit
                     ii. Duty to defend: insurance co. will pay to litigate; decides strategy with very little input
                         from D; stands in D’s shoes as real D (subrogation)
                   iii. Reservation of Right – co. defends now and disputes coverage later
                    iv. Issues to consider:
                             1. Whether the act is covered by the policy
                             2. Underlitigation: when D cannot afford to pay much (no blood money), P will
                                 often go for negligence (rather than intentional tort) because insurance company
                                 will pay if unintentional; insurance cos. generally don’t pay for intentional torts
                                 because people should be held responsible for intentional acts
                                      a. Insurance co. and P may settle for less if D can’t pay just to get something
                                      b. Tort claims shaped to match available liability insurance, with result that
                                          liability insurance policy exclusions become limits on tort liability.
                             3. Moral hazard of insurance – people pay to be less cautious
                             4. Policy covers intentional acts for a reason – if it didn’t, floodgates
                             5. Person will not be sued if doesn’t have the applicable liability insurance
                             6. D lawyers often help P’s lawyer in making the unintentional case (shape the case
                                 to fit the available insurance) so that insurance will pay. Is this ethical? Could
                                 argue that people will go around ―unintentionally‖ harming others, knowing that
                                 insurance will pay for it. BUT, as the defense attorney you’re supposed to put
                                 your client’s interests above the interests of the insurance company.
                             7. Questions the purpose of tort law – to address civil wrongs and send a message to
                                 society about what is proper conduct.
                                      a. Means something to Ps that D must pay with own money; often Ps aren’t
                                          out for actual money, but for the vindication; want D to hurt financially for
                                          hurting P physically; insurance company paying doesn’t accomplish this
 II.   State Farm Fire & Casualty Co. v. S.S. and G.W. (1993) (pg. 66) S.S. got genital herpes from G.W.
       Parties entered agreement that S.S. would not execute settlement amount in exchange for one third
       interest in any claim G.W. might have against his insurance company. State Farm brought suit against
       G.W. claiming that G.W.'s actions were intentional and therefore not covered under homeowner's
       insurance. Trial court rendered SJ for State Farm; court of appeals reversed and remanded.
           a. Importance: courts will play along with underlitigation to allow P to recover; settlements
               between P and D can include promise of future payment from suit against insurance co. Court
               allowed jury to interpret exclusion clause
           b. Intent (if intentional, State Farm doesn't have to pay):
                      i. SF: knowledge-based intent - GW knew with substantial certainty that contact
                         (harmful/offensive) would cause transmission of herpes
                             1. Court: G.W. didn't know he could transmit herpes, so no knowledge
           c. Consent:
                      i. SF: S.S. consented, but it was nullified because it wasn't informed ; therefore intentional
                         battery occurred
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                    ii. Dissent: had S.S. known G.W. had herpes, she would not have slept with him; he
                        intentionally did not tell her; S.S. did not consent to contracting herpes; G.W.'s action
                        were intentional and shouldn't be covered under the State Farm policy
           d. Strict construction of "substantial certainty" - had to be REALLY certain he would transmit
                herpes
           e. Policy arguments: not going to require evidence to infer intent in certain cases (rape, sex with a
                minor, etc.); court would want people to tell partners about STDs (social utility/deterrence)
III.   Shingleton v. Bussey (1969) (pg. 634)
           a. Holding: P can bring suit against both injurer (D) and insurer itself
           b. If insurance co. wants to litigate scope of the policy issue, might encourage D to get own lawyer
                to avoid bad faith claim (Crisci)
           c. Other cases have indicated that jury’s knowledge of insurance policy amount doesn’t cause them
                to inflate damage awards
IV.    Crisci v. Security Insurance Co. (1967) (pg. 639) P sued insurance co. for breach of contract, alleging
       that it should have settled within the policy limit. Breach of implied covenant of good faith and fair
       dealing – bad faith claim. In original case, tenant was hurt when fell through some stairs in P’s building.
       After insurance co. screwed Crisci over, she became indigent.
           a. Holding: When there are settlement offers within policy limits, insurance co. is liable for
                rejecting them and may be liable when it would have been prudent to dispose of the case
                efficiently
                     i. May also be liable if you only look to policy limits and not value of the case OR if you
                        don’t give adequate thought to interests of the insured OR willfully ignore chances of
                        success at trial
           b. Dicta proposes strict liability for insurance cos. (pg. 641): insured bought the insurance so that he
                would settle if something went wrong, not so he would have to pay out of pocket. Insurance co.
                can’t further own interests unless it’s willing to absorb losses if it fails.
           c. P can get damages for mental suffering for almost any distress caused by company.
 V.    Problem 35 (pg. 644): Represent insurance co. Client’s neighbor tripped on rug and sued client. Do you
       accept pay the policy limit?
           a. Chance you’ll be on the hook under bad faith test:
                     i. Doubtful liability here – think about chances of winning on liability; go for no duty
                        argument (Rowland)
                            1. P: had settlement offer within policy limits and chance of loss would be way over
                                policy limit, especially when it’s chump change, like $10K
           b. Chance court would award damages for mental upset: harsh standard or lenient standard?
                     i. Purpose of insurance is peace of mind
           c. Even if we win, will court accept strict liability rule proposed in Crisci?

Negligence: Ultimate issue is whether, recognizing the risk, the actor would have acted differently; D’s
conduct is negligent only when risk-taking is unreasonable. Judge decides applicable general standard of care;
jury decides whether D failed to meet that standard and was therefore negligent. If judge believes no reasonable
jury could differ on negligence, will take the issue from the jury. In most cases, negligence is whatever the jury
says it is.
Duty
Breach
Causation (factual and/or proximate)
Harm

Duty: Whether D had legal obligation to P to conform his conduct to particular standard
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I.    Almost always a matter of law for judge; D goes for ―no duty‖ – wants to keep away from jury
      a. Not an issue in most cases – existence of duty taken as a given in car accidents, products
         liability, medical malpractice (and misfeasance cases)
      b. In nonfeasance cases, becomes an issue because the default is no duty; P wants to get into ―yes,
         duty, yes, breach box‖
      c. When there’s a special relationships between P and D, there is a duty – see Erie, Tubbs, Tarasoff
              i. Limit it to specific fact patterns, or construe more broadly?
II.   Absence of a General Duty to Rescue
      a. Misfeasance: Act - D did some act that caused harm; yes, duty; breach goes to jury
              i. Ps go for this
      b. Nonfeasance: Omission - D failed to rescue/protect/help, but something else caused the harm;
         no duty; breach doesn’t go to jury; judge more likely to rule on the case
              i. Ds go for this
      c. Examples:
              i. Menlove:
                     1. Misfeasance: D was careless in stacking hay, caused harm
                     2. Nonfeasance: D failed to build an air vent which would have protected
                         people/property nearby
             ii. Weirum:
                     1. Misfeasance: D carelessly held contest that harmed others
                     2. Nonfeasance: D failed to protect people on the road from contest participants
      d. Restatement (2nd) § 314 (persuasive): ―The fact that the actor realizes or should realize that
         action on his part is necessary for another’s aid or protection does not of itself impose upon him a
         duty to take such action‖
      e. Erie R. Co. v. Stewart (1930) (pg. 230) P was passenger in truck that was hit by train at RR
         crossing. D maintained a watchman at the crossing, but he wasn’t there and gave no warning.
              i. Holding: RR’s voluntary undertaking (normally a watchman there) and P’s (or general)
                 reliance on the watchman for safety equal breach  go to jury
             ii. P: D failed to protect by not having normal watchman visible to warn of safety or lack
                 thereof
                     1. Court treats as nonfeasance case
                     2. Misfeasance: absence of watchman was equivalent to ―go‖ sign – had duty to
                         signal safety OR running RR involves having people/signals at relevant crossings
                         so people don’t get hurt
      f. Tubbs v. Argus (1967) (pg. 233) D crashed car and left injured P behind; sued for additional
         injuries from his failure to help.
              i. Holding: When person controlling instrumentality causes harm, has duty to rescue/aid
                     1. Broad interpretation: failure to offer assistance when injury might be aggravated
                         if no assistance, then duty to rescue
             ii. Sometimes special circumstances (like special relationship) require one to act
            iii. Restatement (2nd) § 322: ―If the actor knows or has reason to know that by his conduct,
                 whether tortuous or innocent, has caused such bodily harm to another as to make him
                 helpless and in danger of future harm, the actor is under a duty to exercise reasonable
                 care to prevent such further harm.‖
            iv. Notes: no duty to rescue, but if you do help and botch it, you’re liable
                     1. Lot of states have enacted ―Good Samaritan‖ statutes to protect those who help
      g. Problem 17: Car accident; our client didn’t help because was with his mistress.
              i. Ethical issues: Potter lied to the police – have to disclose that and can’t present anything
                 he told me that he didn’t tell police; but telling police makes him sound guilty
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                1. Possible to avoid disclosing the affair?
                2. Needs to admit that he swerved because he saw Blake driving crazy
        ii. P: some sort of reliance created by D’s voluntary act which worked to deter other rescue.
            Yes duty was breached.
      iii. D: no duty, no breach. Instrumentality probably wasn’t under Potter’s control. Failure to
            help may not have aggravated the injury according to the doctor – might have died
            anyway.
       iv. BUT, Potter could have at least called 911…
h. Model Rules of Professional Conduct (pg. 238)
i. Tarasoff v. Regents of University of CA (1976) (pg. 242) Psychologist alleged to have known
   that his client threatened harm to a particular individual and warned the police who detained and
   released client; client went and killed the individual.
         i. Holding: protective privilege ends where public peril begins; when therapist predicts
            there will be violence [or should have determined because of professional standards], has
            duty to warn potential victim
        ii. P: D should have warned girl that guy might harm her
                1. L. Curry’s thoughts: therapist should have called police to detain him and
                    ascertain threats being made; doctor would evaluate threat and could sign
                    involuntary committal papers (leads to 72 hours in mental ward)
      iii. Under ―fundamental principle‖ (¶3), there was a duty, and shrink did use reasonable
            standard of care
       iv. Special relationship: foreseeability matters (D owes duty of care to persons who are
            foreseeably endangered by his conduct…), but foreseeability alone is not enough
                1. Therapist-patient relationship is special
                2. In this case, shrink needed special relationship with client or with client’s victim
                        a. Restatement (2nd) §315: a duty of care may arise from either ―(a) a special
                            relation…between the actor and the third person which imposes a duty
                            upon the actor to control the third person’s conduct, or (b) a special
                            relation…between the actor and the other which gives to the other a right
                            of protection.‖ (pg. 243)
                        b. Relation between shrink and client may support affirmative duties for
                            benefit of third persons.
        v. Therapist can’t always accurately predict when patient will become violent, but must
            exercise the skill and knowledge possessed by ordinary members of the profession under
            similar circumstances
                1. Here, shrink determined patient was violent – so had a duty to warn
       vi. Majority: protect people more than privilege
                1. Computerized and risk-infested society – a lot of risks already, so if we know
                    about one, we should do something to prevent harm
      vii. Dissent: net increase in violence because people are deterred from seeking help (but
            those people probably aren’t seeking help anyway)
                1. Increase in erroneous committals
                2. Confidentiality is important
                3. Concurred in the judgment in this specific case – but if it was so clear that the
                    holding was narrow, why did he say why it should be narrow?
j. Problem 18: Client runs a medical exam company for people applying for life insurance.
   Nondisclosure policy about informing patients who have HIV or those who might contract HIV
   from them.
         i. Must disclose because: foreseeability of spreading to someone
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                 ii. Special relationship: what if insurance co. paid for the exams? Not the same as doctor-
                     patient relationship
                iii. Public policy: public health arguments – not harming one person, but could be many
                iv. If client is sued: argue no special relationship with 3rd party; no certain foreseeability
                     (may patients know and use condoms)
          k. Vince Young Problem: Young went MIA after telling his therapist he was thinking about
             suicide.
                  i. If therapist didn’t act and Young committed suicide:
                         1. Under Tarasoff, would other therapists have considered his threats seriously? Is
                             Tarasoff just about threats to others, not to the patient himself?
                         2. Liberty argument under People v. Burdick (in Tarasoff) – ok to deprive Young of
                             his liberty to save his life; have to be positive about suicide, but you never really
                             can be
                                 a. Burdick actually about danger to others, constraining the dangerous guy
                         3. Tarasoff is about danger to self and others – special relationship between therapist
                             and patient; our case is even more compelling than that, so even stronger (Roth-
                             Evans)

Breach: ―negligence‖ used as synonym
   I.     Objective reasonable person under like circumstances standard
          a. Jury almost always decides breach, so could decide two very similar cases differently; Ps want to
              go for breach to get to jury
          b. Have unsuccessfully tried to give content to reasonable person standard
                   i. Children are judged according to what might be expected of children of similar age and
                      experience
                  ii. Disabled people’s disabilities may be taken into account in determining negligence
   II.    Vaughn v. Menlove (1837) (pg. 157) Old English case; D was bad at stacking hay and fire started as
          a result; D claimed he did the best he could
          a. Court said the subjective standard was too vague and variable
                   i. Allows for varying levels of competence in people – hold different people to different
                      standards
                  ii. Could cause people to improve abilities or encourage mediocrity
          b. Need objective standard because:
                   i. Uniformity/Fairness – people who do the same thing should be treated the same with
                      regard to the law
                  ii. Deterrence – easier to comply with if uniform, BUT might be even easier to comply with
                      ―I did my best‖
                 iii. Judicial administration - too hard for juries to decide whether someone else did his best
   III.   United States v Carroll Towing Co. (1947) (pg. 159) Barge broke loose from the tug when bargee
          was not on board. Was it negligent for bargee not to be on board the barge? Bargee argued that a
          person would willingly incur some risks in the interest of some freedom of movement.
          a. Judge Hand’s Holding: the bargee took unreasonable amount of freedom (21 hours)
                   i. Formula: B<PL
                          1. B – burden on D of preventing the harm
                                  a. burden of being on board 24/7 – cost of wages and freedom
                                  b. not that substantial here; intangible burden that may not matter to barge
                                      owner
                          2. P – probability that the harm (preventable accident when bargee is not present)
                              will occur
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                                a. Hard to know here
                                b. Hindsight fallacy: Mere fact that it happened causes us to increase
                                    probability
                        3. L – Injury that will result (cost of loss)
                                         i. the cost of the barge sinking
                ii. Hand determined that B < PL, so barge owner was negligent
               iii. Problems with Hand Formula
                        1. Incommensurable items
                                a. Some things can’t be measured OR might be measurable on own terms,
                                    but hard to compare to other categories
IV.    Restatement (Third) §3 (pg. 161):
       a. Does use the formula but expresses the idea in words – ambiguous
                 i. Doesn’t describe the relationship between the factors, but says jury should consider them;
                    whereas formula has clear relationship
V.     Davis v. Consolidated Rail Corp. (1986) (pg. 162) – blatantly used the Hand formulation, unlike
       most courts. Said burden on Ds to check under every railcar for person was too large, given small
       probability that someone would be under there, BUT blowing horn or whistle would have been
       appropriate because the burden is small given the lives it might save. Factfinder must consider both
       the expected cost of this accident and the expected costs of other, similar accidents that would have
       been prevented.
VI.    Washington v. Louisiana Power and Light Co. (1990) (pg. 166) Man was electrocuted when he
       accidentally allowed radio antenna to touch uninsulated electrical wire that spanned his backyard.
       a. P: LPL should have insulated the wire or placed it underground
                 i. Burden: cost of insulation/burying the wire
                ii. Probability: of accident occurring without taking the precaution (pretty small in this
                    case; not enough to outweigh the burden)
               iii. Injury: gravity of the resulting injury (he died in this case…)
       b. Particular case vs. Aggregation
                 i. Supposed to be adjudicating the right of parties in this case, BUT burden is general
                    because everyone wants their wires insulated/buried – LPL can’t just change this one
                ii. Kind have to look at cases in the aggregate; can’t just use this one case
       c. Court set aside jury verdict for Ps: possibility of antenna contacting wire was not an
            unreasonable risk (so no negligence); antenna had been safe for many years and P knew about
            the dangers of the wire
VII.   Weirum v. RKO General, Inc. (1975) (pg. 168) Radio station held contest where listeners chased DJ
       in cars to get to next stop first to win prizes. A minor negligently forced a car off the highway,
       killing the driver. P’s family sued the station and won.
       a. Whether D owed duty to decedent arising out of contest (foreseeability (as aspect of breach or
            proximate cause) is for jury; duty is for judge) – we used this case for breach
       b. Ds: make arguments about no duty because the judge decides that – don’t want to go to jury
                 i. Injury/death was unforeseeable – have had many contests and no one has ever gotten hurt
                ii. Entitled to assume other won’t act negligently – teenagers chose to act that way but RKO
                    didn’t cause it
               iii. Could argue that in Washington, there was only a slight risk of harm, and found for D;
                    similarly unsubstantial risk here
               iv. Policy arg: need to specify kind of harm because anything could lead to some kind of
                    harm
       c. P: foreseeability doesn’t require the accident to have happened before; knew the contest would
            send teens into a frenzy
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                 i. RKO stimulated the teens to act
                ii. Didn’t foresee the specific manner of harm (car accident), but could foresee some kind of
                    harm
VIII.   Special Proof of Negligence: Violation of Criminal Statutes (negligence per se)
        a. What weight do we give to fact that statute has been violated?
                 i. Violation means breach as a matter of law – irrebuttable presumption – just need proof of
                    violation and P wins
                ii. Rebuttable presumption – sufficient to satisfy prima facie case – proof of statute violation
                    gets to jury
               iii. Evidence of negligence – jury can infer from violation and other things that D performed
                    below the reasonable standard
        b. Who is covered?
                 i. Whether particular person or harm is within the scope of the statute – whether the statute
                    is meant to protect that person or prevent that harm
                ii. If the answer is yes, can go for negligence per se
        c. Judges tend to decide violation of criminal statute cases, especially with negligence per se
        d. Statutory language:
                 i. Look to legislative history for purpose of the statute
                ii. Determine whether violation of the statute increases the risk of harm to those in P’s
                    situation
        e. Martin v. Herzog (1920) (pg. 177) D car driving around a bend on the wrong side hits P buggy
           without lights on. Car was negligently driving on the wrong side of the road, but P violated
           statute by driving without lights on.
                 i. Holding: Violation of statute is negligence per se. Lights are intended for guidance and
                    protection of other travelers on the highway… To fail to use safeguards prescribed by law
                    for the benefit of another is to fall short of the standard of diligence to which society is
                    under a duty to conform.
                         1. Jurors have to heed this statute – judge can’t eliminate it or make it a mere
                            consideration
                                a. If it wasn’t relevant or if it was only evidence of negligence, then they
                                    would have dispensing power.
                                b. Cardozo explained that law is not an option to conform
        f. Tedla v. Ellman (1939) (pg. 179) Ps struck by negligent D driver while walking on wrong side
           of the road (supposed to face the traffic according to statute), because there was very little traffic
           in the other direction and thought it would be safer to walk on the wrong side.
                 i. Holding:
                         1. Look to intentions of legislature – meant to keep people safe, so hard to argue that
                            defying it in a manner that would keep you safer should be negligence
                         2. Rule of conduct and safety
                                a. But subject to common law, traditional, and customary exceptions
                                b. Custom to walk on side with less traffic for safety reasons
                         3. Based on the exceptions and good reason for being on that side of the road,
                            violation of the law is not evidence of negligence
                         4. Violation of safety statute is negligence per se with an exception for good reason
                            safety considerations
                         5. Shouldn’t follow a statute if it would cause the very harm it was intended to
                            prevent


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         g. Brown v. Shyne (1926) D offered chiropractic treatment to P without a license; P sued in
            negligence for paralysis that resulted; D violated statute holding you can only practice with a
            license
                 i. Holding: Violation of statute didn’t cause harm itself so there shouldn’t be per se
                    negligence
                        1. Ask if there would be negligence if a licensed person had committed same act?
                        2. Court says a license doesn’t confer any more skill on a practitioner; D would still
                            have caused the harm even with a license
                        3. Must meet the professional standards of skill and care prevailing among those
                            who lawfully offer treatment; P must prove D didn’t exercise the standard of skill
                            and care given by qualified practitioners
                        4. Must be logical connection between proven neglect of statutory duty and the
                            alleged negligence
                ii. Dissent: He broke the law and was not a physician, so how can courts treat him as a
                    physician? The statute was meant to protect against this kind of harm
         h. Problem 12: D witnessed accident and drove to nearest shopping center to call; parked in
            handicapped spot while she went to get change for the pay phone; handicapped old lady was
            forced to park further away; she was mugged and injured (there was a sign with a statute on the
            parking space).
                 i. D: statute not intended to protect people from getting mugged at night
                ii. P: rebuttable presumption – violated statute so should go to the jury
 IX.     Custom
           a. How used? What weight is it given?
                    i. As sword: P says D didn’t comply with custom, therefore D’s conduct was unreasonable,
                       so I win on breach (strong?)
                   ii. As shield: D says he followed custom, therefore no breach (weak?)
                  iii. TortsA case law: Custom is evidence of reasonableness?
                           1. OR custom matters when B<PL is unclear or hard to calculate?
 Custom given great weight                              Custom given little to no weight
Trimarco v. Klein (1982) (pg. 189) P was injured The T.J. Hooper (1932) (pg. 190) P sued tug owner
when glass shower door shattered in the apartment for lack of radio on board tug boat, causing barge to be
he rented from D.                                      destroyed in unexpected weather. Complex procedural
Holding: P’s case goes to jury on custom, but          posture because many parties arguing over who’s
ordered new trial on evidential grounds. Evidence responsible. If tugs had been properly equipped, injury
that what was once thought to be safe part of apt. no wouldn’t have happened.
longer is; growing custom of replacing shower          Holding: need more than custom either for P or D to
doors. Custom given great weight.                      win; custom not dispositive if prudence dictates
P: D should have used shatterproof glass in shower otherwise; Hand formula trumps (just because there’s
as is custom (general practice) among landlords        no custom doesn’t mean that’s a good thing – entire
     a. Custom not followed, therefore breach; P       industry could be lagging behind); Custom given no
        wins                                           weight
D: no duty to replace glass without notice of danger Custom as shield: not a general custom to equip tugs
from P or similar accident in building; custom in      with radios; so reasonable not to have one OR if there
and of itself isn’t enough to prove unreasonableness was no custom, D can’t use custom as defense
  i.    If you’re D and you followed custom, is that     i.   OR custom is to rely on the crew OR to have a
        enough to say you acted reasonably and you            transmitter for emergency purposes but not a
        should win on breach?                                 receiver
 ii.    Maybe he’s not responsible for following the ii.      Under B < PL is it negligent?

                                                     10
      custom or the custom is that D has to be                  1. B is less than PL clearly (radios are
      asked to change/replace things                                cheap), so there is negligence despite
Custom: reflects judgment and experience and                        any custom
conduct of many; doesn’t have to be universal, just iii.     In Carroll Towing, Hand said that if there had
well-defined in some business; the custom must be            been a custom, it should control –now goes
reasonable first                                             with his own formula over custom
 i.   Holmes: what usually is done may be           iv.      Critics say that custom and formula should
      evidence of what ought to be done, but what            have come out the same way – both would lead
      ought to be done is fixed by a standard of             to negligence because formula says radios are
      reasonable prudence, whether it usually is             cheap and 90% of ships did have radios so
      complied with or not                                   custom did exist
                                                     v.      Hooper tends to be applied in high transaction
                                                             scenarios
                                                      vi.    Some relation between the parties that give
                                                             reason to defer to customary allocation
                                                             between them
                                                      vii.   We don’t have reason to think that the custom
                                                             will be efficient in some settings so we should
                                                             apply liability in those


         b. Problem 13: Motor boat kill switches.
                  i. D: no mfr in 1988 installed kill switches, so it’s not unreasonable for us not to have
                     installed one
                         1. Boat users’ collective wisdom established the custom of not using kill switches
                                  a. Different from T.J. Hooper because there the industry was lagging behind;
                                      should defer to industry custom in this case
                         2. Under Trimarco, if custom is reasonable, can use it as a factor in negligence; can
                             use as shield or sword
                 ii. P: changing circumstances matter; Trimarco gives great weight to custom, because
                     evidence of custom suggests that something once thought safe no longer is
                         3. Slippery slope: mfrs could be held liable years down the road if something was
                             determined to be safer
         c. Helling v. Carey (1974) (pg. 199) Glaucoma test wasn’t done on under-40 patient who then went
             blind from glaucoma. Custom was to not do test for people under 40.
                  i. Holding: Custom given very little weight. Custom is normally the unbending test in
                     medical malpractice, but not here. The test was so easily administered and risk was so
                     great later that it should have been performed. Performing the test comports with ordinary
                     care.
                 ii. Maybe custom is given little weight where the precaution is so imperative (serious
                     injury/death)
                iii. Cites T.J. Hooper and Holmes’ big quote on custom
                iv. Imposes insurance costs
                         1. Courts are requiring this screening test and others to be performed—expensive
                             and likely to spiral out of control
                 v. Majority still think this is an exception; recent trend is to look to whole country to
                     determine medical custom
 X.      Res Ipsa Loquitor: the thing speaks for itself – when P can get to jury even if P has no evidence
         of the breach
                                                        11
           a. D has exclusive control of the particular instrumentality that caused the harm AND the
              particular accident doesn’t happen in the absence of negligence
                   i. May be prima facie case or some courts say it’s just evidence of negligence
           b. Differences in the way the court treats the presumption when the defendant brings up evidence
              that puts it in dispute
                   i. in some, res ipsa stays there and both are presented to jury
                  ii. in others, presumption is gotten rid of
           c. Relative lack of access to evidence that P has – D has all the evidence

Yes, P gets Res Ipsa                                     No, P doesn’t get Res Ipsa
Boyer v. Iowa High School Athletic Association           Shutt v. Kaufman’s Inc. (1968) (pg. 209) P sat on a
(1967) (pg. 206) P sitting on the bleachers that         chair and it bumped a shelf, causing a metal shoe stand
collapse, causing her to fall 8 ft. Sued, but no specificfell and hit her on the head. Affirmed for D.
evidence of negligence.                                  a. Storekeeper owes duty to customer to protect a
  a. In this case, res ipsa shifted the burden of proof      visitor against known dangers and those he might
  b. Exclusive control and would not have happened           discover by the exercise of reasonable care; but P
      were it not for negligence typically.                  could have shown D was negligent , because could
  c. Burden would be on defendant to rebut the               have brought in the stand.
      inference of negligence; P was injured and         b. P had means available to establish D’s negligence
      couldn’t examine the evidence                      c. P could have shown negligence here, but it would
                                                             have been hard to show in Boyer
                                                         Court doesn’t want to res ipsa doctrine to serve as a
                                                         shorthand for cases when specific negligence can
                                                         actually be proved
Escola v. Coca Cola Bottling Co. (1944) (pg. 214) P      City of Louisville v. Humphrey (1970) (pg. 212)
was injured when Coke bottle exploded in her hand.       Drunk man taken to prison and found dead the next
Alleged that Coke was negligent in selling the bottle,   morning with brain damage and bruise to eye.
using res ipsa. Ct. affirmed for P.                      Holding: Came close to justifying res ipsa, but not
D: something happened after the bottle left the factory, close enough. Injuries may have been caused by city
but there could be tons of things that happened to the   employees or fellow prisoner, but can’t assume.
bottle; D didn’t have anything to do with it             Would be great burden for city to check on and
Res ipsa: proved that bottle mfr wasn’t at fault; D had safeguard every single drunk prisoner.
exclusive control over filling and inspecting bottles    a. Hardship placed on P to prove another prisoner was
and neither cause would have caused bottle to explode        violent
if due care had been used                                Prison owed duty of care to prisoner to guard against
-Ok for D to rebut the inference, but then it goes to    fellow prisoners
jury to decide
Concurrence: liability without fault (strict/absolute
liability) – don’t need to show negligence at all

   XI.     Premises Liability: More limited duty owed to people on your land than might otherwise be
           observed (2nd biggest tort claim after car accidents)
           a. Invitees (someone you ask onto your property for some benefit of your own – i.e. business
              visitor): owe basic reasonable care
           b. Licensees (social guests): murky – probably have to warn of hidden dangerous conditions they
              would not have discovered on their own
           c. Trespassers: owe very little; duty not to injure by willful or wanton conduct (i.e. hidden trap)


                                                            12
         d. Problem 15 (pg. 222) Boy on a dock at a lake house without permission falls through a rotten
            plank, suffering injury
                 i. D: didn’t know/couldn’t have known that plank was rotting; kid didn’t fall because of his
                    youth
         e. Restatement (2nd) §339: Trespassing Children (Attractive Nuisance)
                 i. Reason to know children are likely to trespass
                ii. Condition should be known of risk of death or serious injury to children
               iii. Children don’t discover or recognize the condition because of their youth
               iv. Balancing test between maintaining the condition/burden of eliminating the danger//risk
                    to children
         f. Restatement (2nd) §335:Trespassers
                 i. Possessor maintains the artificial condition, knows it’s risky, trespassers wouldn’t
                    reasonably discover it, has failed to warn trespassers
         g. Restatement (2nd) §337: Artificial Condition
                 i. Exercise reasonable care to warn trespassers of an artificial condition which involves a
                    risk of death or serious bodily harm
                ii. If the possessor knows or has reason to know of their proximity to the condition
               iii. And it is of such a nature that he has reason to believe trespassers will not realize risk
         h. Restatement (2nd) §329:Trespasser (without a privilege)
                 i. Owner only under a duty to avoid willful and wanton conduct toward trespassers – lowest
                    duty owed to trespasser
                         1. Rotting Wood isn’t an artificial condition – could make an argument here
                         2. Probably under §335 – didn’t know this particular kid; didn’t know about the
                            board
         i. Rowland v. Christian (1968) (pg. 223) P, social guest, hurt hand when water faucet broke in his
            hand in D’s apt. D knew handle was cracked and failed to warn P.
               iii. Holding: where the owner knows of a concealed condition that might cause harm, jury
                    can conclude that failure to warn or fix the problem is negligence.
               iv. Not strict about tripartite system – status can be considered, but not determinative
                v. Balance of considerations:
                         1. foreseeability of harm to the plaintiff
                         2. the degree of certainty that the plaintiff suffered injury
                         3. the closeness of the connection between the defendant’s conduct and the injury
                            suffered
                         4. the moral blame to the defendant’s conduct
                         5. the policy of preventing future harm
                         6. the burden to defendant and the consequences to the community of imposing
                            duty, availability, cost and prevalence of insurance
               vi. In TortsA, licensees are the same as trespassers – reasonable conduct under all the
                    circumstances
              vii. Under tripartite system, D would have won
                         1. Reasons for changing: morality; effect on legal system
                         2. Should be strict: fuzzy standard (unpredictability); floodgates of litigation; deters
                            trespassing

Causation (Actual/Factual)
 I.   How to identify person responsible, nature of harm, and the damage?
        a. Cause-in-Fact / But-For Test: ―But for‖ D’s negligence [or wrongful act], would x have
            happened?
                                                  13
                      i. If D had acted reasonably, would the harm have occurred? (counter-factual analysis)
                     ii. P has to prove she would not have suffered the same harm but for D’s negligence
                    iii. D argues, regardless of my actions, P would have been harmed anyway
             b. Two types of causation:
                      i. General causation: whether the particular activity alleged is inherently capable of
                         causing the sort of harm suffered by P. (e.g. toxic tort cases)
                     ii. Specific causation: did this particular D’s negligence cause harm to this particular P?
Circumstantial Evidence on Factual Causation                Doesn’t go to Jury
Goes to Jury
Hoyt v. Jeffers (1874) (pg. 107) Hoyt (P) claimed that Smith v. Rapid Transit Inc. (1945) (pg. 109) Smith
saw mill owned by Jeffers (D) emitted sparks which          (P) claimed a bus forced her car off the road causing
set fire to Hoyt’s hotel and destroyed it.                  injuries. Rapid Transit Inc. (D) denied that its bus was
Holding: Circumstantial evidence admissible to show involved.
causation; for the jury to decide how much force and        Holding: Causation cannot be shown by mathematical
weight it is to be given to such evidence.                  probabilities in the absence of other convincing
-P didn’t have to show that someone saw the sparks          evidence. Pure statistical probabilities not enough to
start the fire; had to show reasonable belief that sparks show causation.
did the start the fire                                      1. History of neg. conduct? Bus line drove thise street
1. History of negligent conduct? Previous spark issues. every day
2. Lack of availability of alt. causal explanations?        2. Alt. cause (other bus) exists
3. Combo of 1 and 2                                         3. Combo of 1 and 2
4. Destruction of property                                  4. Harm to human (backwards – need policy args)
5. Cases aren’t the same                                    5. Limited to cases where ID of D is unclear

 II.   Problem with the use of statistics: we may be asking the wrong question. Multiple possible defendants:
       how likely it was D’s bus on the road v. how likely it was that D’s bus that negligently caused the
       accident.
           a. Can find someone guilty despite the fact that numbers don’t directly relate to the D’s guilt. D’s
              guilt is consistent with someone else committing the tort, for example.
                   i. In Hoyt, all sparks are bad/negligent, but the high probability of the D’s bus being on the
                       road does not link D’s actions to the negligent act.
           b. Courtroom – statistics may be misleading, jury may not understand significance,
              misrepresentation of groups/individuals
III.   Problem 6: Power lines causing birth defects?
           a. Has to be more than 2x as likely for the disease to have caused P’s problems (pg. 114)
                   i. Relative risk of 2: the disease occurs among the population subject to investigated event
                       twice as frequently as the disease occurs among the general population. Disease must be
                       more likely than not caused by the event.
           b. In this case, probably can’t get to the jury, but it’s not frivolous, because you had a good faith
              belief that there might be going on here
           c. Expert witnesses: jury decides credibility so need to examine past work; get paid, which seems
              odd and like they wouldn’t be impartial
IV.    Multiple Defendants - Alternative Liability: sometimes even when P fails under ―but-for‖ test (P can’t
       show the harm more likely than not wouldn’t have occurred), will look to alternatives for policy reasons
           a. Joint and Several Liability
                   i. Ds can be joined in single suit; each party is liable to the full extent of the injuries
                       irrespective of the relative faults
                  ii. If plaintiff only sues one party, it’s that party’s responsibility to collect from others

                                                        14
      iii. Two independent tortfeasors cause an indivisible harm (both actually contributed to the
           harm) and you can’t separate out the individual components OR acting in concert (both
           scheme to carry out the negligent event).
b. Summers v. Tice (1948) (pg. 119) Summers (P) sued two defendants for personal injury caused
   when both defendants shot in his direction. Not acting in concert, so technically not joint
   tortfeasors, but count as that for this case.
        i. Unclear which D shot P; 50-50 chance; you need more likely than not to get to jury,
           which we don’t have – P failed to bring but-for burden.
       ii. Court shifts burden to 2 Ds
               1. P should still be able to recover even though can’t prove who shot him
                       I. Fairness arg – P was injured; someone is liable
               2. D usually in better position to say who caused the harm
      iii. Holding: Where 2 or more people are possibly the sole cause of harm and P introduced
           evidence that one of the two is culpable, each D has the burden of showing that the other
           person was the sole cause of the harm.
               1. Both negligent [in the same manner] [for identical activity]?
               2. Where Ds both/all negligent and there’s an equal chance of who caused the harm?
               3. Result of collective activity?
               4. Zero sum game – all possible alternatives are covered?
c. Ybarra v. Spangard (1944) (pg. 121) Patient was under anesthesia when one or more caregivers
   harmed him.
        i. Holding: Where P is unconscious to receive medical treatment and injured by
           negligence, and a range of actors could have caused injury, D's bear the burden of
           disproving their own tort liability. Simply because P is unable to identify single
           culpable actor does not preclude remedy.
       ii. Notes: P unable to produce evidence for an injury that occurred but which ―stinks‖ of
           negligence; P only needed to satisfy res ipsa (of causation) and show that one of the Ds
           must have been the cause of the harm. Leave it to Ds to sort out liability, prove their own
           innocence.
               1. Justification: All of the Ds were involved in a common enterprise (not
                   necessarily tortious) and had a duty of care (even though all Ds probabilities of
                   causing harm may not be equal). 4 out of 5 might be innocent, but if no one
                   admits liability, shouldn’t preclude P from recovery.
d. Market-Share Liability (not too important)
        i. Sindell v. Abbott Laboratories (1980) Ps sued manufacturers of DES because of injuries
           allegedly suffered as a result of exposure to DES in utero.
               1. Rule: If P joins a substantial share of market representing production, then the
                   burden of proof shifts to the Ds to prove they did not supply the product to the P.
                   If D did not make such as showing, then each is liable for the proportion of their
                   market share as opposed to the full extent of the injuries (rejected Summers).
                       I. Benefits
                                i. Once it’s clear that each D’s DES injured some of the Ps, Ds
                                   should not escape liability merely because Ps cannot show which
                                   D injured which P
                               ii. In the long run if each defendant only pays according to market
                                   share, it will all sort itself out
                       II. Problems


                                            15
                                           i. Corrective justice is less well served b/c there is not matching up
                                              of each P w/ D whose DES injured her; wrong is corrected, but not
                                              necessarily by party who wronged P
                                          ii. Relevant market-share data is not always available, especially
                                              when relevant time period is 20 or more years before suit
                                         iii. Imprecision/unfairness (which Ds brought, not all Ps sue); if
                                              certain Ds can get off, that contradicts theory that liability will be
                                              equally spread; substantial percentage of the market ≠ damages
                                              against a D based on how likely to have cause harm.
         e. Problem 7: Boy mauled by someone’s dog, but can’t tell whose.
                  i. Option 1: Go after all owners – use Hoyt, Smith, Summers, and Ybarra to shift causation
                         1. D: Summers was zero-sum game – no alternative causes; might have been a stray
                             dog; Summers was 50-50; Wilson has three dogs so much more likely it was one
                             of his
                         2. D: In Ybarra, knew someone in the OR was responsible; here, none of the owners
                             knows which dog did it
                 ii. Option 2: Which dog was more likely? Go after one owner
                         1. P: Under Hoyt, one of the dogs had a history of violence. This is a closed world
                             (only 5 dogs), rather than the hundreds of possible buses in Smith.
                         2. D: More like Smith; could have been any dog (like the bus)
V.   Concurrent and Successive Causation: Two or more causal agents would, independent of each
     other, have caused plaintiffs harm. (Second alternative)
         a. Dillon v. Twin State Gas & Electric Co. (1932) (pg. 134) Boy electrocuted by wire he grabbed
             as he started to fall off the bridge. Goes to jury.
                  i. Holding: If multiple concurrent/successive causes… goes to jury
                 ii. Look at alternative state of the world – jury gets to decide
                         1. If he would have survived otherwise, damages would be for the harm caused
                             which included death
                         2. If he would have fallen and died, only liable for pain and suffering caused by the
                             shock
                         3. If he would have survived, but in a maimed state, liable for difference in maimed
                             state and death
                iii. D only liable for part of the harm
                iv. Evidence of alternative state of the world is only admissible when two causal agents are
                     part of the same causal event
                         1. ―But for the defendant’s negligence what would have happened?‖
                 v. State of the world might have been different if D hadn’t put up power lines near bridge
         b. Kingston v. Chicago & N.W. Ry. (1927) (pg. 135) Two fires (one started by D’s sparks, and
             other of unknown origin) join 900 feet from the property and wipe out property.
                  i. Holding: If multiple causes are concurrent, and both are caused by human agents (?) OR
                     if we don’t know if the other cause is not necessarily natural, goes to jury.
                 ii. How the mystery fire started to determine defendant’s liability
                         1. If it was natural, no liability
                                  I. Not responsible for acts of God
                         2. If it is manmade, then there is still liability
                                  I. Joint and several liability
                         3. Part is consistent with Dillon and part is not
                                  I. D gets to rely on fortuity that other fire was natural
                iii. State of world would have been exactly the same if D hadn’t acted
                                                        16
           c. Problem 9: P took drug that was found to cause blindness; had co. warned dr., would have
               prevented blindness. D started going blind, but was killed in car accident before going
               completely blind.
                    i. Great evidence against the co. on breach
                   ii. But-for D’s negligence, she should have lost vision anyways because she died
                  iii. Under Dillon, consider suffering before death, knowledge of going blind
                  iv. D: strong case under Kingston – death by car crash was natural event
                   v. P: husband was driving negligently, so not natural; Kingston was concurrent, but this is
                       successive; also Kingston involved the same kind of harm whereas this doesn’t
                  vi. Value life more than property, so more willing to let case go to jury
VI.    “But for” the wrongful quality of D’s conduct…
           a. Ford v. Trident Fisheries Co. (1919) (pg. 261) P’s intestate fell off fishing boat and D was
               negligent by having lifeboat accessible but with only one oar.
                    i. Holding: Negligence didn’t affect man’s death. But-for D having lowered the boat
                       better/having had two oars, P would still have drowned (went below surface
                       immediately). P couldn’t prove it was more likely than not that if D had acted reasonably,
                       P would have survived
           b. Lyons v. Midnight Sun Transportation (1996) (pg. 261) Decedent P pulled out in front of D’s
               truck and was hit and killed. P alleged that truck was negligently speeding and shouldn’t have
               swerved.
                    i. Holding: Even if D had been driving at proper speed, accident would have occurred
                       because P pulled out in front of him (although depends on how many lanes in road).
                       Expert witness testified that normal response is to swerve/switch lanes and accident
                       would have occurred at any speed.
                   ii. D’s negligence/wrongful conduct not properly aligned with P’s harm such that you can
                       morally or fairly tie D’s conduct to P’s harm.
VII.   Loss of chance: Traditional causation doctrines suggest that D’s negligence in treating a person
       already more likely than not to die, would mean that the but-for question would always kick the plaintiff
       out of court. Loss of chance of avoiding death allows P to recover.
           a. Cahoon v. Cummings (2000) (pg. 263) D drs. Failed to diagnose and treat decedent P’s
               esophageal cancer.
                    i. Holding: Reversed finding for P and granted new trial. But for D’s actions, P probably
                       would have died anyway (survival rate was 25-30% if diagnosed). Damages should be
                       proportional to increased risk attributable to D’s negligence.
                   ii. Restatement § 323: Subject to liability for physical harm resulting from failure to
                       exercise reasonable care if:
                           1. Failure to exercise care increases risk of such harm or
                           2. The harm is suffered because of the other’s reliance on the undertaking.
           b. Grant v. American National Red Cross (2000) (pg. 265) D’s failure to adequately screen blood
               for Hepatitis C caused P to contract the disease. There was no acceptable screening process at the
               time that would have had >50% chance of catching all infected blood.
                    i. Holding: Found for D. Rejected loss of chance and distinguished Cahoon, saying that it
                       involved D’s failure to prevent harm from an existing dangerous condition, whereas
                       Grant involved claim that D’s negligence allowed P to contract the disease. Cahoon also
                       involved dr., whereas Grant involved supplier of product used in medical treatment.
                   ii. Increased risk theory: D’s negligence increased the risk of P suffering this particular
                       harm
                           1. Not TortsA law, but put to good use in old exam – 30 times greater risk of having
                               kidney problems – should be held responsible for it
                                                         17
                                 I. D argues against because there’s no need for actual harm, which is at odds
                                     with the purpose of Torts
                                 II. Also, floodgates argument

Proximate Cause/Scope of Liability:
   I.     Basics:
          a. Even if D is the cause in fact of P’s harm, must also be the proximate cause of such harm. About
              the scope of liability for the harm. Two tests below kind of go together.
          b. Foreseeability: D’s negligence is a p.c. of P’s harm if causing that harm was a foreseeable
              result of acting as D did.
                    i. D is liable for the foreseeable, but not the unforeseeable, consequences of negligent
                       conduct.
          c. Harm-within-the-risk: If actual consequences fall within scope of the primarily defined risks,
              prox cause is met. If consequences fall outside the risks, prox cause is missing and D isn’t liable.
   II.    Restatement (3rd) §29 (persuasive): Actor’s liability is limited to those physical harms that result
          from the risk that made the actor’s conduct tortious. [Scope-of-the-risk/Harm-within-the-Risk]
          a. E.g., loaded gun lying around the house and a kid plays with it and drops it on his foot, causing
              serious injury. No p.c. because dropping on foot would not be the risk you expect from a loaded
              gun lying around a house with kids.
          b. Arg for adopting it: people not held responsible for unforeseeable harm
   III.   Palsgraf v. Long Island R.R. (1928) (pg. 266) Man dropped box of fireworks as conductor tried to
          pull him onto train; fireworks went off and injured woman when scale fell at end of the platform.
          Was harm to P foreseeable?
          a. P: RR agents careless in helping guy onto train; he dropped a package which exploded and
              harmed P
          b. D: Agents didn’t do anything wrong to P
                    i. No duty to unforeseeable P?
                   ii. No breach? Exploding package was unforeseeable
                 iii. Risk of package falling and exploding and harming passenger down the platform did not
                       result from D’s tortious action – manner of harm was unforeseeable?
          c. Cardozo majority: hinges everything on foreseeability; Did D owe P a duty or did D breach a
              duty to avoid the risk that led to this harm
                  iv. Specifically says prox cause isn’t the issue
                   v. Assumes negligent conduct to help men onto train
                  vi. No liability because the causal relation between the wrong (the negligent conduct) and
                       the harm to the plaintiff was too attenuated to find for liability
                           1. Outcome hinged on what would be seen by the ―eye of ordinary vigilance‖
                                   a. This set of events could not be seen as proximate cause of the harm
                                   b. Ask what the eye of ordinary vigilance would perceive as risk and that risk
                                        is duty
                 vii. If you want unforeseeable Ps to be able to recover in TortsA, say this was about
                       unforeseeable type of harm
          d. Andrews dissent: There is a duty to and from everyone for breach to one person; resolve p.c.
              with foreseeability as one factor;
                viii. Distinction between calling it a duty question (judge) and prox cause (jury) – if the line is
                       fuzzy, needs to go to jury
                  ix. Duty was breached to person on train—doesn’t matter that it wasn’t to Palsgraff
                           1. When you breach, it is to the whole collective

                                                       18
                iii. Line for ordinary duty is drawn by practical politics – have to draw line somewhere
                         1. Factors: Remoteness in time, direct connection, natural and continuous sequence,
                              etc.
                 iv. But-for D’s negligence, P would not have been hurt – P still within realm of risk
IV.      Solomon v. Shuell (1990) (pg. 271) P was shot and killed while trying to ―rescue‖ his son from
         plain-clothes policemen. Granted new trial for P.
         a. Jury must determine when reasonable person under similar circumstances would have acted as
             the rescuer did. Then must determine if rescuer carried out rescue in reasonable manner. If
             rescue attempt was reasonable, rescuer not comparatively liable; if unreasonable, rescuer
             comparatively liable.
         b. Holding: about whether person being rescued is in actual danger? Rescuer not an intervening
             cause. D can’t argue, in a case brought by a rescuer, the rescuer was intervening cause or that
             rescuer was unforeseeable P.
         c. Well night universal rule: negligent D may be liable to one who is injured in effort to rescue
             another put at risk by D’s negligence.
         d. Foreseeable Ps necessary for p.c.
V.       Marshall v. Nugent (1955) (pg. 275) Was the nature/circumstances of P’s harm foreseeable? P
         passenger riding in a car on ice road and another vehicle in his lane caused car to swerve off the
         road. P walked up hill to warn oncoming traffic and was struck by third party.
         a. D: Consequences of negligent act had stopped; P’s harm didn’t directly flow from D’s
             negligence (or intervening/superseding cause resulted in harm?).
                  x. Harm was too remote from negligent act. P was contributorily negligent.
                 xi. Unforseeability: maybe unforeseeable P or type/manner of harm (trying to protect
                     against property damage – wouldn’t think a person would get hurt)
                xii. Palsgraf: outside the zone of danger, BUT guy getting hit on ice road is foreseeable when
                     there had already been an accident; lady getting hit by scales was unforeseeable;
                         1. Palsagraf about duty, not prox cause
         b. P: Solomon: D can’t preclude P from recovery when rescuing/helping
               xiii. Immediate emergency situation: don’t want incentives for people to sit around and wait
                     to see if someone’s in danger
               xiv. But Marshall not in immediate danger here
         c. Holding(s): Can’t foresee what will happen, but doesn’t bar from recovery – can’t use
             foreseeability args in a case like this?
                xv. Proximity in time and place of the harm-causing action to negligent action
                         1. Anything that happens after the accident and before flow of traffic is resumed can
                              count as closely enough related (within zone of danger)
VI.      Intervening/Superseding Cause (kind of p.c. arg) Other things happen after negligent tortfeasor
         #1 acts; argues no prox cause as matter of law to be held not liable
Yes, no prox cause as matter of law                        No, prox cause goes to jury
Stahlecker v. Ford Motor Co. (2003) (pg. 283)              Herrera v. Quality Pontiac (2003) (pg. 279) Ps
Daughter drove car meant for rough conditions and          killed by thief who stole car from D’s lot when left
had tire problems. Forced to stop in deserted area,        lot unlocked and key in car.
far from help. Criminal assaulted and murdered her. Holding: D should have known his actions could
Holding: Generally D has to have some control over lead to criminal activity (many other cars stolen).
the perpetrator of the acts or the physical premises       Found exception to special relation rule. Policy args
where the crime occurs. Ford might have had                support affirming a duty here.
knowledge that crimes can occur at the scene of tire 1. Remoteness/bosom of time (proximity in time and
failure, but crimes also occur in tons of other            place) has little to do with prox cause? Connection

                                                    19
settings. No special relationship between Ford and     not so tenuous as to disallow prox cause.
the criminal or victim which would extend duty.        2. Could foresee that car might be stolen
Murderer was intervening cause.                        3. Foreseeable type and P
-An efficient intervening cause is a new,
independent force intervening between D’s negligent
act and P’s injury. Force may have full control of the
situation, whose conduct D couldn’t contemplate.
Must break the causal connection between the
original wrong and the injury. Criminal act not
always an intervening force.
1. Directness: 3rd agent had nothing to do with the
tires.
2. Unforeseeable type of harm: no way to foresee a
murder as a result of car breaking down  no p.c.
3. Superseding when it’s too remote to be p.c.

       a. Problem 19: Accident occurred and P and D were moving P’s car out of the roadway. Had sent
          passenger to warn other cars. Drunk driver came around bend, speeding, and hit P.
              i. D: Intervening act of guy driving drunk and well over speed limit – no p.c. as matter of
                   law
                        1. Stahlecker: no control over perp or physical premises in which crime occurs
              ii. P: Stahlecker: way more unforeseeable than this case; more about duty than p.c.; duty not
                   an issue here
                        1. Marshall: flow of traffic hadn’t resumed; still part of original act
             iii. D: Nugent wasn’t driving negligently, but this guy was drunk; Marshall was a dangerous,
                   icy situation and this wasn’t
                        1. Marshall: there was no one there to warn – he was on his way to warn. In this
                            case, there was a guy to warn. If other driver hadn’t been drunk, would have seen
                            guard and stopped.
             iv. P: didn’t warn properly; even if had been sober and driving the speed limit, couldn’t have
                   warned properly
       b. Kinsman Transit Co. (1964) (pg. 295) Barge broke loose due to handlers’ negligence. Knocked
          another barge loose, and two barges ended up damming the river, causing flooding upstream.
              i. Holding: Ds liable. D takes P as he finds him and should be responsible for full extent of
                   injury. Link becomes too tenuous at some point, but not here. Actor who entails small
                   risk of great damage shouldn’t be relieved of responsibility just because the chance of its
                   occurrence was rare. The risk of the smaller harm was sufficient to render his disregard of
                   it actionable.
                        i. Seems to be some notion that if D’s negligence causes a buttload of harm, should
                            be liable because they did something wrong that caused a lot of harm.
              ii. Foreseeable type of harm because big barges can cause a lot of harm, but unforeseeable
                   extent and manner of harm?
              iii. Dissent: can’t focus on hindsight that because flooding occurred, it was foreseeable.
                   Foreseeability says that it was likely that barge breaking free might hit other barges;
                   doesn’t say that it would cause massive flooding.
       c. Polemis (1921) (pg. 297) Sailor dropped plank that hit benzene that then caught on fire and
          destroyed ship. D found negligent in dropping plank which could have foreseeably caused some
          harm, but could not possibly have thought it would destroy entire ship. Once the act is found

                                                   20
             negligent, the difference in magnitude of harms is immaterial. Still liable, as long as consequence
             was direct.
          d. Wagon Mound I (1961) (pg. 298) Ship spilled tons of oil into harbor. Workers were using
             torches to repair wharf nearby. Wharf owners asked ship if oil would ignite and were assured it
             would not. Oil did ignite and entire wharf was destroyed by fire.
                 i. Holding: Found for P presumably under Polemis. High court reversed because
                      ignitability of oil was unforeseeable. Overruled Polemis.
                 ii. P didn’t think it had to make any showing about whether the ignition of the fire was
                      foreseeable as part of p.c. because of Polemis
                           i. Privy council said foreseeability matters for p.c.
                 iii. Thing lighting on fire was unforeseeable type of harm
          e. Wagon Mound II (1966) (pg. 298) P owned ships damaged by the above fire.
                 i. Holding: P allowed to prevail on p.c. issue. Distinguished Wagon Mound I: in that case,
                      fire wasn’t foreseeable at all. Here, it was in the mind of shipmen – knew that it could
                      possibly light on fire. Even though the risk was remote here, it was still foreseeable.
                 ii. If it’s happened once before and it’s easy to fix under B<PL  foreseeable  yes,
                      proximate cause
                 iii. Polemis is back, since most cases will have slight risk that allows court to say it’s
                      foreseeable or direct consequence.

Foreseeability: appears in breach, duty, and p.c.
   I. D is negligent when he knew or should have known that his actions posed a risk of harm AND a
        reasonable person would have taken precautions that D didn’t take to avoid that risk
   I.       Unforeseeable Type of Harm to a foreseeable P
            a. Difficult for D to predict scope of liability it may face for unforeseeable types of harm (kind of
               injury)
            b. Polemis (foreseeable that plank would cause some harm to ship, but not destroy the entire thing;
               however, D’s action was p.c. of unforeseeable harm as long as harm was direct consequence of
               D’s negligence)
            c. Wagon Mound I (D not held liable for damage to dock because unforeseeable type of harm (oil
               lighting on fire) to foreseeable P)
            d. Kinsman (foreseeable type because big barges can cause a lot of damage?)
            e. Union Pump (could foresee P getting hurt in the fire while fixing the pump, but not slipping on
               pipe rack)
            f. Stahlecker (murder is unforeseeable type of harm after tire failure)
            g. Herrera (was foreseeable type of harm and P)
            h. Sheckells (D failed to warn against lack of protection for foreseeable impacts)
   II.      Unforeseeable Manner of Harm: foreseeability not really required
            a. Injury to P is foreseeable and the type of injury is foreseeable, but the injury occurs in a bizarre
               manner
            b. Palsgraf (maybe – unforeseeable that explosion would cause scales to fly off and hit P)
            c. Marshall (P injured in roughly the same time and place was foreseeable, so exact manner in
               which injury occurred can be unforeseeable)
            d. Kinsman (unforeseeable manner of harm because wouldn’t expect barges to dam a river)
            e. Weirum (could foresee some kind of harm, just not specific car accident)
   III.     Unforeseeable Extent of Harm: foreseeability irrelevant
            a. Eggshell skull – foreseeable Ps who suffer an unforeseeable extent of harm
                    i. Take the victim as you find him, because:
                                                        21
                                1. Really hard to prove how much injury something will cause
                                2. Can always foresee a thin-skulled P, statistically speaking – might deter risky
                                    behavior
                 b. Wagon Mound II (preserves D’s liability for unforeseeable extent of foreseeable harm to
                    foreseeable P)
                 c. Kinsman (D takes Ps as he finds them – should be responsible for full extent of injury from
                    barges)
       IV.       Unforeseeable Plaintiff: foreseeability most often required
                 a. Palsgraf (unforeseeable that negligently helping a man onto a train would cause P down the
                    track to be injured)
                 b. Tarasoff (when there’s a special relationship, D owes duty of care to persons who are
                    foreseeably endangered by his conduct)
                 c. Marshall (maybe…)

Products Liability
  I.         Historical basis: Negligence (risk utility test); Warranty (implied); Strict liability (liability without fault
             – products liability has moved away from this)
                 a. Note: Breach and Duty = Defect
                 b. Ps still have to prove causation
 II.         Types:
                 a. Manufacturing defects
                         i. Features in a few products that make them different from or inferior to majority of units
                            on same line
                 b. Design defects
                         i. Shared by every unit in a product line
                        ii. Fact that appropriate regulatory body ok-ed the design/product is evidence of no
                            negligence, but not dispositive
                 c. Marketing defects (failure to warn)
                         i. Fact that appropriate regulatory body ok-ed the label is evidence of no negligence, but
                            not dispositive
III.         Manufacturing Defects
                 a. Notes: ―unreasonably dangerous‖ is not codified in TortsA
                        i. Jacques: if the car has a defect and it hurts someone, should be liable – don’t seem to
                           need unreasonably dangerous
                 b. MacPherson v. Buick Motor Co. (1916) (pg. 453) P bought car from retailer who bought from
                    mfr. Car collapsed because wheel was made of defective wood.
                        i. Holding: The manufacturer of a finished product owes a duty of care and vigilance to the
                           user of that product, even where the user is not the immediate purchaser, if such use is
                           reasonably certain to place the user in danger when the product is negligently made.
                       ii. Historically had to have privity (contractual relationship between the parties) in order to
                           sue
                               1. Brought as no duty case, so thrown out by trial court because no privity
                      iii. Thomas v. Winchester: nature of thing makes it dangerous when negligently made
                               1. Different from poison – poison is always harmful, whereas cars have human
                                   element
                               2. Nature of automobile is dangerous
                      iv. Foreseeability argument?


                                                               22
                  1. Car has three seats – foreseeable it would be used by others parties; in fact,
                      retailer was least likely to use it
          v. Times have changes – travel today is more dangerous than in stage coach days
         vi. Lack of consistency – hard for primary conduct compliance
        vii. Open floodgates of litigation – slippery slope – how far removed can you be and still sue?
       viii. Legislature should decide
c.   Henningsen v. Bloomfield Motors, Inc. (1960) (pg. 458) P’s wife injured while driving car –
     kind of fell apart. P had signed contract with dealer stating there were no warranties, but P didn’t
     read the contract.
           i. Rule: When mfr and a dealer put new automobile in the stream of trade and promote its
              purchase by the public, an implied warranty that it is reasonably suitable for use as such
              accompanies it into the hands of the ultimate purchaser, despite any contractual
              provisions to the contrary.
          ii. Breach of warranty: UCC §2-314: know that products shouldn’t be defective when you
              sell them
        iii. Times have changed with respect to customers – nature of product market has changed
                  1. Customers don’t buy directly from mfr anymore
         iv. Lack of competition among auto mfrs – same basic warranties
                  1. People should be able to sue when they are hurt and be compensated
                  2. No incentive for mfrs to make cars safer
                  3. Consumer has no chance to change warranty – unequal bargaining power
          v. Other parties likely to use – family car
         vi. Loss spreading – put burden on mfr (not retailer) because can most easily/cheaply
              minimize costs of accidents and distribute losses amongst other consumers
                  1. Retailers can’t do that
        vii. Movement is gathering momentum among other courts (sometimes a big factor in
              opinions)
       viii. Need for justice sometimes requires changing laws
d.   Greenman v. Yuba Power Products (1962) (pg. 464)
           i. Holding: P just had to prove he was injured while using the product in the usual way –
              couldn’t be expected to know it was defective
          ii. Traynor announced strict liability standard for defective products
e.   Vandermark v. Ford Motor Co. (1964) (pg. 465) Six weeks after purchase, P was driving car
     when he lost control and it went off the road.
           i. Rule: An automobile manufacturer is strictly liable when someone is injured as a result
              of a defect that was present in the car it manufactured when the manufacturer's authorized
              dealer delivered it to the purchaser. An automobile dealer is strictly liable in tort for
              personal injuries resulting from defects in cars it sells.
          ii. Proof of defect: P’s burden – described how car behaved; P’s expert testified problem
              was caused by design, mfr, assembly defect
                  1. Sounds like res ipsa, but might be circumstantial evidence – P had control here
                  2. Courts tend to allow circumstantial evidence – unclear in TortsA
        iii. Source of defect doesn’t matter with strict liability – component supplier is irrelevant
                  1. Only way P gets out is if it’s solely the result of causes other than product defect
f.   Restatement (2nd) (1965) (pg. 467) (persuasive): §402A: Unreasonably dangerous
           i. Article sold must be dangerous to an extent beyond which would be contemplated by the
              ordinary consumer who purchases it, with ordinary knowledge common to the
              community as to its characteristics.
          ii. In Tortsa, unreasonably dangerous:
                                                 23
                       1. Basic components of dangerous instrumentalities failing for no reason (e.g.,
                          brakes; pulling/shimmying in Vandermark; steering system cracking in
                          Henningsen; wheel exploding while driving in MacPherson)
        g. Restatement (3rd) (pg. 471) (persuasive): §3: Circumstantial evidence
                i. May infer that product defect caused P harm when:
                       1. It was of a kind that ordinarily occurs as a result of product defect, and
                       2. It was not solely the result of causes other than product defect existing at the time
                          of sale or distribution
        h. Problem 28: Wine glass shattered in guy’s hand.
                i. P: unreasonably dangerous under strict liability; injured while using the product as it was
                   intended to be used
               ii. D: glasses break; maybe P was holding glass too hard
        i. Hypo: Solomon sticks his head out the window to back down his driveway. The window doesn’t
           open and he chooses to back out anyways – hits a kid on a tricycle.
                i. Distinguish from other cases about what is unreasonably dangerous
                       1. Malfunctioning window is not dangerous the way failing brakes, etc. are
               ii. Could have hit kid regardless of window going down
             iii. Noticed window didn’t go down but chose to back out anyway
              iv. Jacques’s arg: the defect caused the injury, so liable
IV.   Causation
        a. U.C.C. says P must show: product caused injury; was distributed by D; and but for the defect, the
           accident either wouldn’t have happened or wouldn’t have been so harmful; must also show
           resulting injury was within the range of foreseeable risks created by the defect
        b. Might be intervening 3rd parties that save D from liability
        c. ―Substantial factor‖ – part of alternative ways of proving factual causation when but-for test
           doesn’t work
        d. Daubert: judge has discretion to determine credibility of scientific experts
                i. Standard is no longer ―general acceptance‖ in the scientific community
               ii. Allows judges to weed out junk science
V.    Defenses
        a. Restatement (2nd) (pg. 487) (persuasive): §402A, comment n.
                i. P’s contributory negligence isn’t a defense when P merely failed to discover a product
                   defect or guard against the possibility of its existence. Assumption of risk is still valid. If
                   the user or consumer discovers the defect and is aware of the danger and proceeds to
                   unreasonably use the product and is injured, P is barred from recovery.
        b. Union Pump Co. V. Albritton (1995) (pg. 482) P helped coworker put out a fire from defective
           pump made by D and then was told to close a valve made by D. Took an unsafe route to close
           the valve because there might have been an emergency situation. Upon reaching the valve, were
           told they didn’t have to close it. Chose to walk back the same, unsafe way. P injured when she
           slipped on the pipe rack, which was wet from the fire and P was still wearing boots. P alleged
           that but for D’s defective pump and fire, she would never have slipped on the rack.
                i. Holding: The fire was extinguished and P was leaving the scene. Pump only created the
                   condition that made P’s injuries possible – too remotely connected to constitute legal
                   cause of P’s injuries.
               ii. D: whatever its fault was had come to rest; P’s alleged harm was the result of some other
                   force(s) (Marshall)
                       1. Merely furnishing the condition that made P’s injury possible (different than
                           Herrera, where D was found liable)

                                                      24
                iii. Restatement (2nd) §431: D’s conduct had must have had such an effect in producing the
                      harm as to lead a reasonable man to regard it as a cause… Legal cause is not established
                      if D’s conduct or product does no more than furnish the condition that makes P’s
                      injury possible
                 iv. Concurrence: Two-step approach:
                          1. Were D’s actions or product defect the cause-in-fact of P’s injury? (but-for)
                          2. Do the policies at the heart of the cause of action dictate a further limitation on
                               liability?
                                    a. Here, P chose needlessly dangerous path
                  v. Dissent: Incident was not over – P was still wearing boots for fighting the fire
         c. Murray v. Fairbanks Morse (1979) (pg. 488) P was installing D’s electrical control panel and
             standing improperly when a cross-member gave way and P fell and was injured.
                   i. Rule: A plaintiff's comparative fault which is a cause in fact of his injuries may allow a
                      proportionate reduction in his recovery even where the award is based upon the strict
                      liability of the defendant.
                  ii. Court found that unreasonable assumption of risk is a valid defense in a strict liability
                      action
                          1. Some products, like swimming pools, have some risk but it’s reasonable for
                               consumers to assume this risk
                iii. Unreasonably dangerous refers to D’s product, not D’s conduct – P need not prove D’s
                      faulty conduct to recover
                 iv. Consider how much of the injury was caused by product defect and how much was
                      caused by P’s actions
                  v. Goals of strict liability:
                          1. Relieve P of proof problems , but comparative fault doesn’t make it any harder for
                               P; P still only needs to prove existence of defect causally linked to injury
                          2. Absolute bar to recovery would shift total loss to P
                          3. Under comparative system, future cost of D’s product will represent the danger it
                               has caused and not the danger caused by P’s own fault (loss spreading)
                 vi. Court left open whether comparative fault applies to AOR and product misuse
                vii. Restatement (3rd) §8 (persuasive): To assign shares of responsibility, consider nature of
                      person’s risk-creating conduct, including any awareness of indifference with respect to
                      risks of the conduct or intent of harm of conduct, and the strength of the causal
                      connection between the person’s conduct and the harm
VI.   Design Defects: Even when there’s a warranty, failure to warn, warning, etc., can still bring claim that
      product was defectively designed. Even if warning reduces risks to certain extent, if change in design
      could have further reduced risks, P can still pursue design defect case.
         a. McCormack v. Hankscraft Co. (1967) (pg. 496) Toddler was disfigured when boiling water
             spilled out of vaporizer. Cap of vaporizer reservoir that prevented water from spilling out was
             not attached in order to let steam escape.
                   i. P required to offer a reasonable alternative design
                          1. Design that is safer and not prohibitively more expensive
                          2. Expert testified that it would be possible to design a cap that fit tightly and which
                               still let steam escape
                  ii. Rule: If a manufacturer knows or should know that the use of its product involves danger
                      not obvious to the consumer in the use of the product, and the manufacturer fails to warn
                      consumers of that danger, the manufacturer has violated his duty of due care to the
                      consumer.
         b. Restatement (3rd) (pg. 502) (persuasive): §2, comment l
                                                          25
        i. When a safer design can be implemented, adoption of the safer design is required over a
           warning that leaves risks
       ii. Warnings may be ineffective because users may not read them or follow instructions or
           heed warnings
c. Troja v. Black & Decker Manufacturing Co. (1985) (pg. 503) P amputated his thumb while
   using a radial arm saw because the guide fence was removeable. P originally failed to provide
   evidence as to economic feasibility of proposed alternative, or of the existence of adequate
   technology available in 1967 when the saw was made
        i. Holding: P didn’t provide sufficient evidence of design defect or possible alternative
           design. D wins.
       ii. Restatement §402A requires court to weigh the utility of risk inherent in the design
           against the magnitude of the risk
      iii. Wade [balancing] test - whether manufacturer’s design is unreasonably dangerous
               1. Usefulness and desirability of the product to user and public
               2. Safety aspects of the product – likelihood of causing injury and seriousness of
                    injury
               3. Availability of a substitute product which would meet the same need and not be as
                    unsafe [problem: people assume the more expensive version is safer; poor people
                    might be harmed because can only afford cheap version]
               4. Manufacturer’s ability to eliminate the unsafe character of the product without
                    impairing usefulness or making it too expensive to maintain its utility
               5. Users ability to avoid danger by the exercise of care in the use of the product
               6. User’s anticipated awareness of dangers inherent in the product and their
                    avoidability because of general public knowledge or suitable warnings or
                    instructions
               7. Feasibility of the manufacturer spreading the loss by setting the price of the
                    product or carrying liability insurance
      iv. D’s failure to secure the guide fence was not inherently unreasonable
       v. Rule: For a personal injury plaintiff to state a prima facie defective design case, evidence
           that a reasonable alternative exists must be presented.
d. Restatement (3rd) (pg. 506): §2b (adopted in Parish)
        i. A product is defective in design when the foreseeable risks of harm posed by the product
           could have been reduced or avoided by the adoption of a reasonable alternative design by
           the seller… and the omission of the alternative design renders the product not
           unreasonable safe
       ii. Some products are so manifestly/inherently unreasonable that even as properly designed
           that are defective, i.e. an exploding cigar. Shouldn’t even be made.
               1. Product must have low social utility and extremely high degree of danger that so
                    outweighs its social utility that no reasonable person would use the product
      iii. Commonly and widely distributed products like alcohol, firearms, and above-ground
           pools are not inherently unreasonable, but can be proven so if defectively manufactured
           or sold with improper warnings
      iv. Legislatures can consider the desirability of commercial distribution of some widely used
           and consumed, but nevertheless dangerous, products better than courts
       v. In determining whether an alternative design is reasonable, consider factor such as:
           magnitude and probability of foreseeable risks of harm, instructions and warnings
           accompanying the product, and nature and strength of consumer expectations regarding
           the product.

                                            26
                 vi. Consider the likely effects of alternative design on production costs; product longevity;
                      maintenance, repair, and aesthetics; range of consumer choice among products.
                vii. Alternative design can’t simply eradicate the risk that caused the harm if it produces other
                      risks.
               viii. Expert doesn’t have to have prototype, but alternative design proof must be reasonable
           e. Parish v. Jumpking, Inc. (2006) (pg. 508) P injured while doing back flip on trampoline made
              by D. Court granted SJ for D.
                   i. Judge decided no p.c. as a matter of law (would normally go to jury)
                          1. In products liability, judge more likely to take issue of causation or p.c. away
                             from jury
                  ii. Trampolines not inherently dangerous, unlike exploding cigars for which social utility is
                      so low and degree of danger so high
                          1. Product would have to be extremely dangerous with very low social utility –
                             would tug against the very grain of the way you were raised
                 iii. For widely distributed products, legislature is better at deciding, but even though
                      trampolines are widely distributed, they are not that dangerous compared to a lot of other
                      normal activities (cause fewer injuries each year and are good for exercise)
                 iv. P also alleged inadequate warnings
                          1. Restatement §2(c): product is defective because of inadequate instructions or
                             warnings when the foreseeable risks of harm posed could have been reduced or
                             avoided by warnings or instructions
                          2. Trampoline had very clear warnings. Grant SJ for D.
                          3. Restatement: Individual users must bear appropriate responsibility for proper
                             product use; unfair for careful consumers to pay for careless users’ litigation costs
Yes, inherently unreasonable  liability/no balancing test       No, not inherently unreasonable
Exploding cigar                                                  Trampolines (Parish)
                                                                 Radial arm saw (Troja)
                                                                 Alcohol, above-ground swimming pools

Factors:   -Functionality/social utility (cigars are for pranks – no other purpose)
           -Intended use – how you use it
           -How widespread/frequently used (using consumers to gauge social utility)
                -If widespread, legislature should control
                -But people aren’t rational – just because lots of people use something, doesn’t mean it’s not
           inherently unreasonable
                -And shouldn’t we regulate it more if lots of people are using a dangerous thing?

           f. Problem 29 (pg. 512): P’s leg cut off during car crash in compact car.
                  i. Is it inherently unreasonable?
                          1. There was an alternative car of this genre that didn’t fail the safety test, so this
                             one has no social utility, although gas mileage provides some utility
                          2. Even if you use the car as intended and someone hits you, can be harmed
                 ii. Get to jury on design defect? Balancing test
                          1. Prove there’s a reasonable alternative design – Daubert consideration for our
                             expert
                          2. D: reducing fuel efficiency would cause people not to buy these; if there was a
                             reasonable alternative design, would have been on the market
                          3. P: maybe one of the other cars in the test did have a better design
                          4. Need to know price difference for alternative design
                                                        27
  g. Heaton v. Ford Motor Co. (1967) (pg. 514) Pickup truck hit a five inch rock, which damaged
     the wheel assembly, while traveling at highway speeds. Miles later, the truck tipped over.
          i. In many cases where there is no evidence to prove what kind of manufacturing defect
             existed, P can still recover by proving the product did not perform in keeping with the
             reasonable expectations of the user – inference of defect. If it did not meet user
             expectations, jury can decide.
         ii. However, high speed collisions with rocks are not so common that the average person
             would know from personal experience what to expect. Jury wouldn’t be equipped to
             decide whether this wheel failed to perform safely as ordinary consumers expect.
                 1. In ordinary negligence cases, reasonableness of D’s conduct goes to jury because
                      juries can judge right and wrong, but this is different.
        iii. Advertising suggested strength and durability, but that’s not enough for jury to determine
             expected breaking point of a wheel, especially at highway speeds.
        iv. Rule: Where a product fails in circumstances not within the normal experience of a jury,
             a defect must be proven by evidence of what the reasonable expectations regarding the
             product are. D granted SJ.
         v. Dissent: consumers would expect truck to withstand 1-inch rock, but not 2-foot rock.
             This case is somewhere along that continuum, but jury could reasonably conclude that the
             wheel was unreasonably dangerous in this case. Also consider whether mfr could foresee
             this happening to the truck.
        vi. Note: if you can’t use Heaton consumer expectations test, move to risk utility box –
             need experts
  h. Soule v. General Motors Corp. (1994) (pg. 518) Driver-side wheel broke free and crushed
     floorboard inward during an accident, badly injuring P’s ankles.
          i. Ps can only prevail under consumer expectations if questions of whether the product is
             defective are questions a jury is equipped to answer based on everyday experience,
             regardless of expert opinions about the merits of the design – can’t use technical expert
             witnesses to explain what ordinary consumers should expect.
         ii. If P tries to show the product failed expectations and therefore was defective, D can’t
             argue risk utility using experts
                 1. Cites Barker (pg. 517) – can use EITHER consumer expectations or risk utility
                      (―excessive preventable danger, unless benefits outweigh the risks‖)
        iii. Must determine if circumstances of product failure create an inference of product defect
             under consumer expectations
        iv. This was a complicated design issue, so needed experts to explain, however, error was
             harmless because P’s strategy was to focus on design defect, not on consumer
             expectations, so jury must have decided based on design defect. Judgment for P stands.
i. Problem 30 (pg. 524): same facts as 29.
          i. Get into consumer expectations under Heaton/Soule?
                 1. Not that complex a problem; don’t need experts to explain the defect because
                      people know compact cars are less safe; people also generally think the engine
                      shouldn’t crush your legs in a crash at 40 m.p.h.
         ii. If yes, will we win?
                 1. D: no one expects to get into an accident with a bigger car and walk away
                      unscathed
                 2. P: if you’re acting reasonably, the engine shouldn’t collapse on you; severity of
                      harm is worse than you’d expect for low impact crash
                          a. Expect mfr won’t entirely eliminate safety for fuel efficiency purposes
        iii. If we can’t, how does it come out under the balancing test?
                                                28
VII.   Failure to Instruct or Warn: inadequate warnings = duty and breach
          a. P must say what the warning should have said
          b. Restatement (2nd) (pg. 524) (persuasive): Comment j.
                  i. Seller is not required to warn with respect to products or ingredients in them which are
                     only dangerous when consumed in excessive quantity or over a long period of time when
                     the danger is generally known and recognized
                 ii. Seller must warn when he knows of the risks or should have known
                iii. Where a warning is given, a seller may reasonably assume it will be read and heeded
                         1. Possible heeding presumption in TortsA
                         2. Could get an expert to say that no one reads warnings and the presumption is at
                             odds with how people actually behave
                         3. Hard to provide evidentiary demonstration that someone would actually follow a
                             warning
          c. Sheckells v. AGV Corp. (1993) (pg. 525) P sued motorcycle manufacturer after accident,
             alleging that the helmet wasn’t as safe as the average consumer expects or as the manufacturer
             advertised; D failed to warn against lack of protection for foreseeable impacts
                  i. Holding: Failure of helmet to protect rider at the speed P was going is not an open and
                     obvious danger. Helmet’s inability to protect rider at such speeds was not obvious by
                     observation, and can assume a consumer will expect more from ―the single most
                     important piece of safety equipment‖ that he owns. P gets to jury.
                 ii. In TortsA, mfr is liable for failure to warn if it
                         1. Knows or has reason to know that the chattel is or is likely to be dangerous for the
                             use for which it is supplied, and
                         2. Has no reason to believe that those for whose use it is supplied will realize the
                             dangerous condition, and
                         3. Fails to exercise reasonable care to inform them of its dangerous condition
                iii. D must warn of all dangers not open and obvious; no need to warn if danger is open
                     and obvious
                         1. Why not warn of all known risks or open and obvious dangers?
                                 a. Too many and people won’t read
                                 b. Might dilute more significant risks
                                 c. No point in warning about dangers people know about
                                 d. Takes away individual responsibility (duty to care for self) – shouldn’t
                                     place all responsibility on mfr or there’s no incentive for product users to
                                     take care
                                 e. No additional safety benefits from warning about known risk
          d. Hon v. Stroh Brewery Co. (1987) (pg. 528) P died from pancreatitis at 26 for drinking 8-12 of
             D’s beers every week for six years. Court rejected D’s open and obvious argument because the
             general public is unaware that moderate consumption can have serious adverse effects.
                  i. Warning should have said: Even moderate use over long periods of time can cause
                     problems – see your doctor (?)
          e. Restatement (3rd) (pg. 529) (persuasive): §2(c)
                  i. Product is defective because of inadequate warnings/instructions when the foreseeable
                     risks of harm posed by the product could have been reduced/avoided by the provision of
                     reasonable instructions/warnings, and the omission of such warnings renders the product
                     not reasonably safe.
                 ii. Comment j: Seller not liable for failing to warn/instruct regarding risks that should be
                     obvious to or generally known by foreseeable product users (see Sheckells for reasoning)
          f. Problem using warning from Parish:
                                                        29
        i. P: warning says nothing about how the fun ring doesn’t reduce further possibility of harm
               1. It’s safety device that comes with the product, so assume it’s going to protect you
       ii. D: it’s called a fun ring and it had its own warning that said don’t do back flips
      iii. P: warning says something about adults, but not children; fun ring warning should be
           limited to the dangers it mitigates
      iv. D: a helmet protects the head, but it’s unclear what a fun ring is supposed to protect
g. Problem 31 (pg. 530): Mother gave baby PB&J sandwich, which kid choked on and suffered
   brain damage. P alleged PB co. failed to warn of dangers of feeding to young children.
        i. D: open and obvious danger (everyone has had PB and knows it’s sticky)
               1. A lot of foods don’t have baby warnings on them; if this co. had to, lots of
                    companies would
               2. Babies can choke on almost anything; mother took the risk in feeding it to her
               3. Distinguish Sheckells
                        a. P: but motorcycle and trampoline are obviously dangerous, so less need
                            for a warning; PB is dangerous, but not open and obvious, so need
                            warning
                        b. D: Bambi didn’t market to babies, whereas motorcycle co. marketed
                            helmet for that specific use
h. Gray v. Badger Mining Corp. (2004) (pg. 531): P was injured foundry worker who sued sand
   distributor for failing to warn him and his foundry about dangers of breathing silica.
        i. Holding: Warning didn’t say anything about the kinds of respirators to use although did
           warn the foundry about dangers of silica. Neither P nor the foundry had sophisticated
           knowledge of proper respirators. P can get to jury.
       ii. D: no duty to warn because it warned an intermediary
      iii. In general, supplier has duty to warn if reasonably foreseeable that injury could occur
           with use
      iv. Restatement (2nd) §388: Supplier is liable for injuries caused by product used as intended
           if he:
               1. Knows or should realize the product is or is likely to be dangerous for the use for
                    which it’s supplied, and
               2. Has no reason to believe that the intended users will realize the dangerous
                    condition, and
               3. Fails to exercise reasonable care and inform them of its dangerous condition
       v. Learned intermediary: defense that D didn’t have to warn end user because
           intermediate user either knows about the risk or was warned about the risk
               1. Seems to be that if it’s easy to warn the end user, D should, but doesn’t clarify the
                    scope
i. Prescription drugs and learned intermediary:
        i. If drug mfr warned doctors, they should warn patients
       ii. However, considerations of the extent to which mfrs now market directly to users, with
           T.V. ads
               1. Notes case about birth control pill said that drug co. has duty to warn end user
                    (pg. 539)
               2. Restatement (3rd) (pg. 540) (persuasive): Drug is not reasonably safe because of
                    inadequate instructions/warnings if instructions/warnings are not provided to:
                        a. Prescribing and other healthcare providers who can reduce the risks of
                            harm, or


                                            30
                                 b. the patient, when the mfr knows or has reason to know that health care
                                    providers will not be in a position to reduce the risks of harm in
                                    accordance with instructions/warnings


Damages
Purely Consequential Economic Loss
  I.   J’Aire Corp. v. Gregory (1979) (pg. 349) P’s restaurant was closed while contractor undertook
       construction work pursuant to contract with lessor. Whether contractor was responsible for economic
       damages when he breached the contract with the lessor by not completing work in a timely manner
           a. Factors in determining a duty of care
                    i. Extent to which the transaction was intended to affect the plaintiff
                   ii. Foreseeability of harm to the plaintiff
                  iii. Degree of certainty that the plaintiff suffered injury
                  iv. Closeness of the connection between the defendant’s conduct and the injury suffered
                    v. Moral blame attached to defendant’s conduct
                  vi. Policy of preventing future harm
           b. Rule: A contractor must use reasonable prudence to protect the owner's business from
               foreseeable damages due to a delay in completion of the work. Foreseeability is crucial.
               Economic damages should be limited to where risk of harm is foreseeable and is closely
               connected with D’s conduct, where damages are not wholly speculative, and the injury is not part
               of P’s ordinary business risk.
           c. Negative consequences include: excessive liability, fraudulent claims, speculative nature of
               damages, BUT above factors will limit these
 II.   People Express Airlines, Inc. v. Consolidated Rail Corp. (1985) (pg. 352) Train car spilled chemicals
       and forced the surrounding area to be evacuated. P was a commercial airline that had its business
       interrupted by this evacuation.
           a. D breached duty of care to avoid risk of economic injury to particularly foreseeable plaintiffs
                    i. P airline falls within this class because they were near the area; P’s operations would
                       obviously be disturbed by something like this; Corp. knew effects of chemical spill and
                       knew area would need to be evacuated in such a situation
           b. Court established the readily identifiable class approach to recovery for economic loss
           c. Rule: Purely economic losses are compensable without physical injury or property damage if the
               plaintiff is within an identifiable class of persons whom the negligent defendant knows or has to
               reason to know are likely to suffer damages from its conduct.
III.   Problem 22: Car accident harms only two employees sent to fix fridge at restaurant scheduled to have
       large party.
           a. Fridge co: D hit Ps during normal business hours – p.c. of economic loss, which flows from
               damage to truck
           b. Restaurant: just like J’Aire – contractual agreement like J’Aire, but no special relationship here

Contributory Fault: Because of something P did, barred from recovering – not current in Torts A
  I.   Butterfield v. Forrester (1809) (pg. 359) D left a pole obstructing the highway which the P struck while
       riding his horse violently. Was light enough to see the pole if riding at reasonable speed.
           a. Holding: Plaintiff barred from recovering because was riding too quickly. One person being at
               fault won’t dispense another from taking ordinary care.
           b. Rule: P can’t recover where his lack of due care contributed to the occurrence of the accident.


                                                      31
          c. Purpose of tort law: to encourage people to behave to reasonable standard. Don’t want Ps
             engaging in risky behavior just to try to recover.
                 i. Responsibility: assigning correct fault for harm
                ii. Fairness: between two parties – both have acted wrongly
               iii. Relation between Ps and government: P doesn’t have right to scarce state resources
                    when P hasn’t taken due care

Comparative Negligence (TortsA switched after Butterfield and Meistrich)
  I.   Pure: Ps damages reduced according to percentage of fault (TortsA law)
           a. Modified: P can’t recover if 50% or more responsible.
 II.   Uniform Comparative Fault Act (1996) (pg. 372) Legislature wanted to codify and clarify common
       law
           a. §1(a): Comparative fault exists
           b. §1(b): Fault includes: breach of warranty, misuse of products, unreasonable secondary
              assumption of risk, and unreasonable failure to avoid injury or mitigate damages. Also applies to
              strict liability [like in Mauro].
           c. §2(a): Jury makes decisions, unless no jury.
                   i. §2(a)(1): Will decide total harm suffered AND
                  ii. §2(a)(2): Percentage of total fault each claimant is responsible for
           d. §2(b): To determine percentages of fault, factfinder will look at nature of the conduct of each
              party at fault and the extent of the causal relations between the conduct and the damages
              claimed.
                   i. Seems to indicate that reprehensibility is a factor – jury decides how to give weight
           e. §2(c): Court enters complete judgment against every party and sets up contribution percentages
              among jointly and severally liable parties. Each of those parties is initially responsible for P’s
              entire claim against Ds.
           f. §2(d): If one D can’t pay, within a year, P can ask court to reapportion his share among other Ds
              according to their respective percentages of fault. Party would couldn’t pay is still subject to
              contribution and liability to claimant.
           g. §3: Claim and counterclaim can’t be set off unless parties agree. Basically, you pay the
              difference.
           h. §4: Contribution: right to go after other parties to get money back if you paid more than your
              equitable share.
           i. §5: Enforcement of contribution.
           j. §6: If there’s a release, covenant not to sue, or other agreement, claim against other parties is
              reduced by the amount of the released person’s equitable share of the obligation
                   i. If one D is immune or is phantom tortfeasor, other parties seem to have to pick up
                       immune guy’s share, but it’s not clear in the statute. Either P or Ds get shafted; better for
                       P to recover than for Ds to get off easy.
                  ii. In TortsA, we want P to be able to recall; should get the windfall over D
III.   Problem 24 (pg. 370): Geyer got into car accident in which Moreland was negligent but Geyer also
       knew his brakes weren’t working right (after having gotten them fixed recently at repair shop) and he
       wasn’t wearing a seatbelt.
           a. Geyer was speeding, not wearing a seatbelt, and knew something was wrong with his brakes
                   i. Chose to keep driving with brakes issue and was speeding
           b. Repair shop screwed up the brakes, but Geyer recognized it and chose to drive
                   i. But-for causation – even if shop had done the brakes right, accident still would have
                       occurred because Moreland pulled out in front of him
                  ii. Did G sign contract with shop negating liability?
                                                         32
IV.   Assumption of Risk
        a. Express assumption of risk: contract law – litigation of whether contract is enforceable as a
           matter of public policy
        b. Implied assumption of risk: from conduct of P’s course of action, draw legal conclusion that P
           assumed the risk, so P can’t recover or recovery is reduced if folded in comparative negligence
                i. Primary: no duty/breach to protect against that particular risk (not an affirmative
                   defense)
                       1. Ds want this because if there’s no duty/breach, P can’t recover; gets JMOL
               ii. Secondary: affirmative defense – like contributory negligence – some unreasonable
                   choice or conduct by P that should be taken into account in precluding D from liability or
                   reducing P’s damages; only P taking an unreasonable risk is a defense
                       1. Ps want this because if there was a breach, P can still recover/get to jury;
                           wants survive motions to dismiss; if gets to jury, D will want to settle
        c. Meistrich v. Casino Arena Attractions, Inc. (1959) (pg. 362) P continued ice skating cross-hand
           even though felt skates slipping; D made ice too slippery.
                i. Holding: skating cross-hand, knowing your skates slip, goes to jury as contributory
                   negligence argument
               ii. Secondary assumption of risk – court takes D’s breach as established, so D’s burden to
                   prove P’s contributory negligence
                       1. Could try to recharacterize as primary AOR – ice skating is an inherently risky
                           activity (ice always hard and slippery), so no duty to guard against injuries
              iii. Assumption of risk framed as subjective matter: did P know or should P have known of
                   the risk; more frequently viewed objectively today
              iv. Future use:
                       1. D would say, Meistrich was before comparative fault and court wanted P to be
                           able to recover something because D did something bad as well
                       2. P would use Meistrich to say he can recover
               v. General notes:
                       1. Court folds reasonable secondary assumption of risk defense into contributory
                           negligence
                               a. Assumption of the risk is a defense distinct from contributory negligence.
                               b. Under the Restatement (§496A-§496G) (persuasive, pg. 364) assumption
                                   of risk is a defense if P either expressly accept a known risk or if his
                                   conduct manifests understanding of the risk and voluntary acceptance of
                                   that risk.
                                        i. P does not assume a risk if, as a result of defendant's conduct, P
                                            has no other way to avoid the harm.
        d. Knight v. Jewett (1992) (pg. 374) P was playing touch football with D and others. Either D ran
           into P and stepped on her finger or D unsuccessfully tried to intercept a pass and collided with P.
                i. Holding: A participant in an active sport breaches a legal duty of care to other
                   participants only if the participant intentionally injures another player or engages in
                   conduct that is so reckless as to be totally outside the range of the ordinary activity
                   involved in the sport.
               ii. Could be duty or breach, but breach probably stronger
              iii. Primary AOR: no breach if P hurt during touch football unless injury is really
                   egregious AND P agreed to play, so no duty to guard against injuries because inherently
                   risky activity
                       1. Jury normally decides breach, so because judge granted SJ here, suggests it was a
                           no duty case
                                                      33
                iv. Problem with Meistrich approach is that under comparative negligence, creates the
                     possibility that P who reasonably assumes a risk gets nothing and P who unreasonably
                     assumes a risk gets something
                 v. In contrast, Knight court folds all assumptions of risk – both reasonable and unreasonable
                     – into comparative negligence
                         1. Give all information to jury who will presumably allocate less fault to a plaintiff
                             who reasonably assumes a risk
          e. Problem 23 (pg. 364): Dooley was driving home drunk and saw DeVrees on side of road, with
             dead car. D told her he was drunk and she should probably wait, but she was cold and told him
             she could drive. He refused but she got in anyway. He crashed the car and she was injured.
                  i. Primary (D likes):
                         1. Be wary of inherently risky activity because both ice skating and touch football
                             are inherently risky
                         2. P: drunk driving is not the same as touch football; this outside the range of normal
                             activity – blatantly reckless
                 ii. Secondary (P likes):
                         1. P: D breached duty to not drive drunk… but P chose to ride with him anyway
                         2. D: P made a conscious, reckless choice to get in the car, and she didn’t have a
                             blanket with her

Compensatory Damages: Amount necessary to restore P to pre-injury condition
  I.   Types:
           a. Economic/Pecuniary: reasonably easy to put monetary value on – medical expenses, lost wages,
              loss of earning capacity
           b. Non-Economic: notoriously hard to value, no agreement on what to tell juries – pain and
              suffering (P/S), loss of enjoyment of life (hedonic damages)
 II.   Rationale:
           a. Purpose/function of tort law: torts as compensation or as form of justice
                   i. If torts is about deterrence (or regulating risky behavior) maybe compensatory damages
                      should be measured differently
III.   Process for Deciding:
           a. What is this case worth?
           b. What do we want to settle for and when?
           c. Likelihood of success on liability?
           d. Likely damages jury might award?
IV.    Collateral Source Rule: Evidence that P has already recovered or will recover from some 3rd party (like
       insurance) is not admissible in torts case
 V.    Williams v. Bright (1997) (pg. 546)
           a. Holding: P’s religious beliefs can/should be a factor in determining the reasonableness of not
              mitigating her injuries
           b. Ct.’s arguments for why lower court gave wrong jury instructions:
                   i. Didn’t let jury decide reasonableness of P’s religious belief or reasonableness of her
                      actions considering her beliefs
                  ii. Bad because state basically endorsing her beliefs (although problems with 1st amendment
                      to make judgments relating to religion)
                 iii. Jury’s job to decide mixed question of law and fact
           c. Fairness: D has to pay for P’s religious belief
                   i. Counter: D has to take P as he found her – eggshell skull theory – religion doesn’t count
                      as eggshell skull
                                                         34
                   ii. Counter: Jehovah’s Witnesses choose to believe that – not inherent – how volitional
                       really are beliefs?
                           1. P should be more careful if she knows she can’t have blood transfusions
                           2. If you do have an eggshell skull, probably don’t have a duty to be more careful
           d. Primary conduct:
                    i. Don’t want people refusing treatment if they know they can be compensated
                   ii. BUT she was paralyzed as a result of not getting treatment – not exactly a great windfall
 VI.    Coyne v. Campbell (1962) (pg. 552) Injured doctor didn’t have to pay for treatment because received it
        from others in his office. Can P still recover for medical expenses if there were none?
           a. Holding: can’t recover for treatment costs if you didn’t pay anything for treatment
           b. Institutional competence: Drinkwater said P can only be paid for what he paid the doctor and the
               legislature failed to overturn this so condoned it
                    i. Court made the rule in the first place, so legislature probably left it to them
                   ii. Leg not a coherent body with one thought; only meets a few times each year, not lawyers,
                       but elected by constituents and could looked at effects on case numbers, insurance, etc.
                  iii. Court: only sees a few actual cases
           c. Dissent: treatment from doctor friends should be counted under collateral source rule and
               shouldn’t be made public; nurse treated him during office hours, so technically did pay for loss
               of other patients
                    i. In this case, Ds get windfall because don’t have to pay for injury caused. If anyone gets a
                       windfall, shouldn’t it be P, who was actually injured?
           d. Problematic:
                    i. People shouldn’t have to consult lawyers to determine if they’ll be reimbursed for
                       helping others with free treatment
VII.    Problem 32 (pg. 556): P is recovering drug addict and member of religion eschewing pain meds. Has
        undergone free, experimental treatment from possible quack doctor.
           a. Ask for money based on continuing treatment with Dr. Wolverton or based on standard drug
               therapy?
                    i. Would she consider going with traditional meds if she could recover more? Standard
                       meds would get us more money, but client would rather go for experimental
           b. Continuing with Wolverton:
                    i. Distinguish Williams: our P has chosen some treatment but other P didn’t; other P was
                       paralyzed and treatment would have cured her, ours only has slight pain and it’s going to
                       need to be managed forever; other P’s was one-time conflict (but would make her
                       impure), ours is for life
                           1. Use eggshell skull, because addiction, unlike religion, is a disease, although orth
                                surgeon says not addictive
                   ii. Can’t recover for med expenses, unless you argue that because she’s volunteering for
                       science, is giving him something
           c. Standard treatment
                    i. Will increase psychiatric distress – jury would decide whether actions or anguish are
                       reasonable
VIII.   Using Race as Factor in Damages
           a. About P/S and medical expenses for rest of life
           b. Black males worst off, white women best off
           c. No, don’t use race: socioeconomic factors confound race; races are mixed; perpetuates
               inequality; against public policy (not the purpose of law); eggshell skull is about idiosyncratic
               individual, to help people who have been harmed, not sued to preclude recovery
 IX.    Future Earning Capacity over Course of Career
                                                        35
       a. Ruzzi v. Butler Petroleum Co. (1991) (pg. 558) P injured when gas tanks exploded. Was able to
          get another job that paid as much but wasn’t as demanding.
               i. Has the economic horizon of the disabled person been shortened because of the injuries
                  caused by D?
                       1. Has nothing to do with actual earnings.
              ii. Holding: Fact that Ruzzi was able to earn as much as before but at less demanding job is
                  immaterial. If he lost this job or had to take time off injuries, would have to re-enter job
                  market at serious disadvantage.
             iii. Need to consider: basic earning capacity; percentage that capacity has been diminished;
                  duration of disability; life expectancy.
       b. Mauro v. Raymark Ind., Inc. (1989) (pg. 562) P inhaled asbestos fibers throughout career. Has
          mild problems now which may become worse. Wanted to recover for future medical expenses
          because of enhanced risk of developing cancer.
               i. Application of general rule for what you can recover in prospective damages
              ii. Holding: P can only recover now if chance of injury occurring is greater than 50%
             iii. Might be able to use increased risk, but unclear in TortsA
             iv. Disease has to be medically reasonable to occur
                       1. Increase insurance premiums
                       2. Hard to prove causation
                       3. Hard for juries to decide
              v. Ps shouldn’t be barred from bringing suit when disease actually hits
       c. Grayson v. Irvmar Realty Corp. (1959) (pg. 567) P studied music and hoped to become an opera
          singer. Hurt her leg and hearing when she feel on sidewalk on D’s premises. Jury gave her
          $50,000 because of her potential as a singer; D appealed because it was excessive.
               i. Holding: in determining award, jury may consider P’s talent, received training, training
                  likely to receive, chances of becoming professional, other accidents that might also
                  prevent P from reaching her goal; jury must realize that it’s assessing not future earning
                  capacity, but the opportunities for a practical chance at such future earning capacity.
                       1. Here, P was serious about her career, but hadn’t received any recognition for
                          talents aside from teachers. Verdict >$20K is excessive.
                       2. Must be more than ―a gleam in the eye‖
              ii. Whether jury can award P for probable future earnings when the person has yet to earn
                  serious income yet in that field. Hard with children because no idea what their talents are.
                  Chances of becoming professional artist/musician, athlete, or actor are slim.
             iii. Those with rare and special talents can recover for the costs of developing those talents.
             iv. Notes: also hard to put value on homemaker or someone who worked sporadically. Often
                  try to put market value on homemaker’s services. Fair amount of speculation allowed
                  with children.
       d. Problem 33 (pg. 575): Plumber P lost arm in car crash; forced to sell business because could no
          longer be a plumber. Was already considering becoming a minister.
               i. P: Under Ruzzi, economic horizon was shortened by the accident, but concede that was
                  planning on becoming a minister?
              ii. Mauro and Grayson are against speculation about becoming a minister, esp. if a gleam in
                  the eye; but he’s an adult and going to school for it now; took accident as sign from God;
                  will never be a plumber again.
X.   Non-Economic Damages:
       a. Pain & Suffering: physical pain and mental anguish; often majority of damage award; has
          become target in tort reform (damage caps)

                                                   36
         b. Hedonic Damages (loss of enjoyment of life): activities P used to enjoy – value should be
            assigned to loss of ability to do these activities
                 i. Purposes:
                        1. If tort law is about ability of person to bring claim against person who has
                            wronged him, lost wages and medical expenses don’t capture the full measure of
                            the wrong
                        2. Not enough deterrence if just economic damages, because not all tort actions will
                            be brought – underdeterrence problem
                        3. If lawyers get 1/3 of award, Ps not made whole – non-economic damages allow
                            lawyer to get paid and Ps to get made whole
                        4. Horizontal fairness – similarly situated Ps should recover the same amount
                ii. What do we tell the jury?
                        1. Do what’s fair
                        2. Per diem – used on P/S – per day, over period of time
                        3. How much is it worth to you (Walters’s esophagus)
         c. Walters v. Hitchcock (1985) (pg. 575) D doctor was doing simple procedure on P and ended up
            cutting into her esophagus which later became infected. Had to replace esophagus with part of
            intestine; pretty damn grim now.
                 i. Holding: $2 million verdict with only $59K in economic damages doesn’t shock the
                    conscience of the Ct.App. when P suffers serious permanent pain, embarrassment; can’t
                    lead normal life
                ii. Ratio of non-economic to economic damages
               iii. Not much reasoning here, but jury doesn’t have to give reasons, so why should Ct. App.?
                    Can argue anything based on this opinion
         d. McDougald v. Garber (1989) (pg. 580) P underwent c-section and was deprived of oxygen,
            resulting in severe brain damage.
                 i. Holding: 1) P must have cognitive awareness to get hedonic damages; 2) can’t separate
                    loss of enjoyment from P/S
                ii. Two separate estimates have higher degree of error; award twice for overlapping
                    elements
               iii. Dissent: thinks juries are competent enough to decide hedonic damages and P/S
         e. Jones v. Harris (2005) (pg. 595) P alleged injured back from car accident, despite evidence that
            might have existed before. Same posture as Walters (damages must shock the conscience to be
            overturned – abuse of discretion is deferential to lower court)
                 i. Holding: jury made credibility determination and believed testimony that P’s injury was
                    caused by accident; had p/s and needs help with everyday things, can’t be active, and lost
                    job; jury also awarded husband for loss of consortium. These damages don’t shock the
                    conscience of the court.
         f. Problem 34 (pg. 586): P fell in mall and hurt back. Had some back pain before the incident.
            Pain got much more serious. May affect future promotion. Seems to be improving without
            surgery.
                 i. Economic: medical expenses, possible surgery (?); future earning capacity (although
                    may recover and attain that)
                        1. Could use Mauro, but that was about increased risk/toxic torts; the condition has
                            already manifested itself here
                ii. Non-economic: per diem calculation OR amount partner suggests for small case (3 times
                    economic loss)
Punitive Damages
 I.   Purposes:
                                                    37
           a. Punish especially bad behavior?
                    i. BUT, only supposed to punish D for what he did, not for who he is (Mathias), but if it’s a
                       corp., can make litigation so costly for individual that corp. worth should be considered
                   ii. Notion that because D got caught, should be punished twice for others who don’t get
                       caught
                           1. Why should this P get the windfall? Better than D getting the windfall
                           2. Some states award punitive damages to the state
                           3. Purpose of tort law to hurt/deter wrongdoers, or make Ps whole
           b. Deter anti-social behavior unlikely to be detected victims?
           c. Common law basis
                    i. Standard of conduct
                   ii. Purposes of punitive damages
 II.   Mathias v. Accor Economy Lodging, Inc. (2003) (printout) Ps sued Motel 6 for bed bugs. Jury
       awarded each P $186K in punitive and $5K in compensatory. Court said it wasn’t excessive.
           a. Standard of conduct:
                    i. Knowledge of problem, with multiple opportunities to fix
                   ii. Relatively cheap to fix
                  iii. Profit motive
                  iv. Foreseeability of harm
                   v. Lying – claiming they were ticks
           b. Purposes of Punitives:
                    i. Deter dignitary wrongs where there might not be great compensatory damages
                   ii. Civil alternative to criminal prosecution of minor crimes
                  iii. Limit D’s ability to profit from its fraud by escaping detection
                  iv. Retribution – morality; sending a message; Ds got what they deserved
                   v. Someone had to sue the hotel – visitors may not report it, so may not get caught
                  vi. General deterrence – manager was irrational, so won’t help him, but might deter others
                 vii. Hotel chain has the money to mount aggressive defense – lengthy and expensive – which
                       is not worth it for individual to bring suit
III.   State Farm v. Campbell (2003) (pg. 612) P negligently caused car accident. SF refused to settle and
       took case to court. P agreed to give crash victims 90% of bad faith claim against SF. Jury awarded $145
       million in punitives and $1 million in compensatory. Court, using Gore guideposts, said reinstating the
       award was error.
           a. BWI v. Gore (1996): S.Ct. court refused to sustain $2 million punitive with only $4K in
              compensatory.
                    i. Guideposts:
                           1. Reprehensibility of D’s misconduct
                                   a. Standard of conduct
                           2. Disparity between actual/potential harm (compensatory damages) suffered by P
                               and the punitive award
                                   a. What ratio is ok when?
                           3. Difference between punitive damages awarded by the jury and the penalties
                               imposed in comparable cases
           b. Standard of conduct: all Mathias standards apply
                    i. D: Mathias was about human health and safety; this is about insurance
                           1. What we did is acceptable in some states
                           2. Tried to settle eventually and got sued anyway
                           3. The verdict in the trial was an accident; bed bugs were intentional
                           4. Bad faith insurance is different than bed bugs
                                                          38
           c. Compensatory damages would do the trick
                    i. Only 1 guy sued, but how many were screwed in 20 years of PP&R?
                   ii. SF was only willing to pay when they saw he was coming for them
                  iii. D’s wealth – can litigate aggressively
                  iv. Fraud suits – criminal system of relief, higher pleading requirements – comparable cases
                   v. Retribution – shouldn’t get away with it – morality
           d. Ratio: if it exceeds 10:1, probably frustrates DPC because no notice of possibility of paying so
              much
                    i. Used 4:1 in Gore
IV.    Williams v. Philip Morris (2006 (pg. 621) P’s husband died from lung cancer from smoking. Alleged
       co. had run fraudulent ad campaign to exploit husband’s addiction. Jury awarded $79.5 million in
       punitives compared to $800K in compensatory. Courts are still fighting over this.
           a. Holding: evidence of harm to non-parties can’t be used to punish, but can be used as evidence of
              reprehensibility/bad conduct
                    i. Nonsensical because reprehensibility leads to punishment…
           b. D: against DPC for D to be punished for something not held liable for in court
                    i. Plenty of other evidence so don’t need this for reprehensibility
                   ii. Duplicating awards

Torts Problem:
After damages, go to comparative fault if it goes to trial
What happens if someone doesn’t/can’t pay?
   I. Reckless driver claim
          a. Factual cause – had slower reflexes because of drug
                  i. Earlier in the evening had been zipping around – didn’t show any signs of slow reflexes
                 ii. Another cause was sufficient in itself to cause the accident (Kingston) – but-for my
                     negligence even if I had not been speeding, the harm would have occurred anyway,
                     because of my slower reflexes
                iii. Multiple sufficient causes – another way to talk about multiple successive causes (Dillon
                     and Kingston)
                iv. Don’t make factual cause args –are always multiple but-for causes of an accident
          b. No proximate cause- could make superseding cause argument, but timing doesn’t quite work –
             usually occurs after D’s negligent conduct
                  i. Not really a viable prox cause arg here
                 ii. Say something about the brakes – after he tried to brake, they locked (intervening cause?)
                         1. Unforeseeable manner of harm because sports cars are known to brake well,
                             brakes not supposed to lock
          c. No really viable negligence defense claims
          d. Insurance Policy Exclusion clause:
                  i. State Farm went to jury – looked at what that particular plaintiff knew
                 ii. Might not have been speeding – might not have even been intentional
                iii. Language in the clause – pg. 66 State Farm clause
                         1. Hypo says ―reasonably expected to result in injury‖ – broader than State Farm –
                             even negligent conduct might be included here
                         2. OR might just be clarifying what’s included in injury and therefore isn’t broader
                iv. If you define policy that broadly, car insurance wouldn’t provide any protection to people
                         1. But it was particularly egregious, so shouldn’t be covered
                         2. He has no assets – want Ps to be able to recover when D can’t pay, especially for
                             egregious acts
                                                      39
        e. Settling with insurance co.
                 i. Consider likelihood of being excluded under the policy – if chance of exclusion is high,
                    insurance co. isn’t willing to pay much, might settle for very little
                ii. Consider likelihood of success of negligence claim
II. Pharmaceutical co.
        a. Failure to warn:
                 i. Defectiveness: knew there was a defect (makes you drowsy); have to warn about things
                    not open and obvious
                        1. Reasonable for the company not to warn about this risk?
                     Failure to warn goes to jury                Doesn’t go to jury
                      Sheckells                                  Jumpking (trampoline)
                        2. Issues about side effects when you don’t take properly
                ii. Learned intermediary
               iii. Heeding presumption (implicit in our cases? Even though not law?)
               iv. Argue that Restatement (3rd) should be adopted (pg. 540)
        b. Design defect
                 i. Defect: get in Soule consumer expectations box (tends to be more favorable for Ps) –
                    whether expert testimony is necessary on this issue
                        1. Risk utility – compare risk utility relevant facts in this fact pattern
                        2. D might point to Restatement (3rd) (pg. 540)
III. Auto Mfr.
        a. Design Defect:
                 i. Get into Soule consumer expectations box (use our car cases) then go to risk utility
                        1. How you categorize alternative designs – alt sports cars or just alt cars?
                        2. Evidence of no defect is the fact that appropriate reg body passed both car and
                            drug
IV. Damages
        a. Economic damages:
                 i. Medical bills – insurance co. paying for things not issue under collateral source rule
                ii. Future wages – whether Ed was going to become CEO – speculative future earning
                    capacity?
        b. Noneconomic damages:
                 i. Loss of enjoyment – football
                ii. Pain and suffering
        c. Punitive Damages:
                 i. Against who?
                ii. More likely against Ryan, but he has no money
                        1. Scrutiny under 2-part test
        d. Joint and several liability
                 i. All three parties on the hook for whole amount
                ii. Portion of responsibility given to each party
                        1. Even if Ryan can’t pay, other parties will be forced to pick up his slack
                        2. How Ryan’s share allocated amongst the others affects what you might settle for
                            against the companies
               iii. Phantom tortfeasor – police officer – immune from liability – doesn’t fall under UCFA,
                    but Restatement says other parties have to deal with it
V. Conclusion: what would the case likely settle for considering all of this?
VI. Question B: assume insurance co. has broad obligation to defend – reservation of right – defend now
     and dispute coverage later
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a. Crisci – tell insured the co. will contest coverage under exclusion clause, so might want own
   lawyer; professional obligation to represent Ryan, so to certain extent, need not get own counsel
        i. Might consider it to be a good idea to get own counsel so we can make joint decisions
           about settlement – how likely you think this chain of events will lead to bad faith claim
       ii. How encouraging him to get own lawyer will factor into bad faith claim
      iii. Co. might want to pay for lawyer for him since he can’t afford one – really cover butt




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