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Torts Outline
I. Introduction to Torts (p. 2) A. Intentional Torts 1. Battery – intend un-consented to contact that is harmful or offensive & that causes harm 2. Damages – thin shin rule 3. Other intentional torts – assault (no contact), offensive battery, trespass, trespass to chattels 4. Defenses a. Consent – any unlawful touching is battery (Mohr), can’t consent to illegal act (Hudson) b. Insanity (weak) – must have same intent as a sane person – intent to contact – just will, no intellect c. Self-defense – if it was a reasonable mistake, no liability (Courvoisier) d. Necessity – I can use your property, if necessity arises (Ploof) – but I must pay for damage (Vincent) B. When Should Liability be Imposed? 1. N – if no one at fault, let losses lie where they fall – not all harms recoverable 2. SL – you must pay no matter what (boat owner & epileptic pay – Hammontree) II. Negligence (p. 11) A. Emergence of Negligence 1. Early Causes – no one excused from trespass unless not at fault (Weaver) 2. N or SL? – look to intent and due care – N (Brown v. Kendall); non-natural use = SL (Fletcher) B. The Reasonable Person – objective – lowered for children doing child activities & insanity C. Calculus of Risk – Hand (D is N if P * L > B) D. Surrogates for the Reasonableness Calculus – custom, statutes & regulations, judge & jury allocation, RIL III. Defenses (p. 24) A. Contributory Negligence – must be cause in fact of harm (Smithwick) – P might get away with some N B. Last Clear Chance – if D can prevent harm, must try to, even if P was cont. N C. Assumption of Risk – primary (no N in first place), secondary (D was N, but P assumed risk) D. Comparative Negligence – compare N, not causal allocation IV. Causation (p. 25) A. Cause in Fact 1. Generally – causal relationship between D’s act and P’s injury 2. Lost Chance – RM under traditional tort doctrine (Herskovits) 3. Joint Causation – did this party really cause this harm? – market share liability (Skipworth) B. Proximate Cause 1. Intervening Actor – intentional tort breaks the chain, harm within the risk 2. Foreseeability – unforeseen: extent of injury, type of harm, plaintiff (extent of injury no good – thin shin) 3. Emotional Harms – P: close proximity, shock arose from experience of accident, closely related to victim 4. Economic Harms – no recovery for pure eco. loss if no injury – except: deter D & spec. relationships V. Strict Liability (p. 30) A. Introduction – blasting, wild animals, manufacturing defects, non-natural use, innkeepers, fires, carriers B. Abnormally Dangerous Activities – blasting is non-reciprocal risk (Spano) – if activity is impt enough, use N VI. Products Liability (p. 31) A. Historical Origins – duty to 1st purchaser – except: imminently dangerous, guest use, seller knows & no warn B. Manufacturing Defects – SL – whether or not defect & whether or not product caused the harm C. Design Defects – N – what would reasonable consumer have expected? – patent defect = no defect D. Failure to Warn VII. Tort Reform (p. 33) A. Gallanter – hostile to tort reform B. Proposed reforms – change: evidentiary standards, damages rules, joint & several liability, punitive damages
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I. Introduction to Torts A. Intentional Torts 1. The Elements of a Tort: Battery a. Vosburg v. Putney i. Facts (a) Defendant, age 11, kicked the plaintiff, age 14 (1) Defendant kicks plaintiff lightly (2) Defendant has previous injury about the knee from sledding (3) Kick activated an otherwise healing injury (4) Operations and bone loss – lost use of the leg (5) No intent to harm (found by jury) (6) Doctor didn’t come for days; could harm have been lessened? (b) First trial awarded plaintiff $2,800 (c) Defendant appeals and the judge agrees that something went wrong in the first trial (d) On the second trial, the plaintiff won again - $2,500 (e) Defendant appealed again ii. Legal Issues (a) For liability (in battery), must a defendant intend to do harm? (1) No, the defendant must only intend to act, not harm (b) Is liability for battery limited to the expected damages, or can the defendant be held liable for all damages? (1) Defendant is liable for all damages, not just expected ones (c) To be a tort victim, you have to be harmed under certain circumstances; not all harm counts b. Battery Elements i. Battery – harmful or offensive contact that results from acts intended to bring about that contact ii. Rule - To commit a battery you must intend un-consented to contact that is harmful or offensive & that causes harm (a) Intent (1) Must intend the contact that is harmful or offensive, but not the harm that results (2) Don’t really have to contact a person – pulling chair out from under a person (b) Consent (1) The idea is that there is trespass upon the body (2) There has been physical invasion of my person by you, your person, or an object under your control (3) The tort of battery has a robust recognition of the autonomy rights of the individual to control the ways in which he is touched (c) Reasonableness (1) Would a reasonable person in your situation be offended? (2) This protects against the unusually offensive plaintiff iii. Alternatives to our intent rule (a) If we required intent to harm: (more limited) (1) This would require us to go further into the defendant’s head (2) This introduces the risk that we would let a defendant reduce the risk of his liability (b) If we didn’t care about intent: (more expansive) – inverts the problems from above (1) We wouldn’t have to get into defendant’s head at all (2) Without intent, we must delve into causation (3) Without intent, it is unclear who the least cost avoider was (4) Intent gives us a nice place to cut off liability (i) If the actor intended the contact, we are comfortable assigning causation to the actor c. Damages i. Principle – take the victim as you find him
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(a) “Thin Shin Rule” – If you happen to kick someone with a thin shin, you have to pay for all damages that they suffer ii. If you intended to do it, a reasonable person would expect some kind of damage – that makes your behavior tortuous (a) Once you have the requisite intent, you are responsible for all the damages that ensue, even if they are more than what you expected (as long as they are of the same kind as what you would expect) iii. Deterrence – society should make Putney pay for the consequences of the kick iv. Compensation – once someone has committed a tortuous act, we want to make the victim whole v. Two questions: (a) Who was in the best position to avoid causing this harm? (1) McCormack would say Putney should have avoided it (2) Others might say that Vosburg is in the best position to avoid the harm (b) Do we want a system in which we try to make sure that the person who can avoid the injury at the least cost should do so? (1) Putney could avoid it at least cost because he’s being anti-social (2) But Vosburg might be in best position by staying home or wearing shin guard vi. Expected amount of damages? (a) We would have to get into questions about what the expected damages were (1) This makes us imagine the typical kick – how much harm would it typically cause (2) We could make – “what would a reasonable person expect to happen?” (b) Jury would have to decide how much harm they would expect to happen (c) It’s easier to look at what really happened than what would typically happen d. Causation i. Must show that the duty and breach in question are the cause of the harm that you are trying to recover (D’s action more likely than not caused P’s harm) ii. Huge causation question that is avoided by doctor’s testimony (a) Doctor testified that it was the kick that caused the harm of the leg (b) There was then admissible evidence in the record saying the kicked caused the harm iii. Do we think the kick caused the injury? (a) It seems unlikely that a single kick could cause this much harm (b) This is called cause in fact – whether, as a factual matter, did this kick actually lead these consequences to occur (1) If, in fact, the kick lead to enough harm that they had to do surgery, even if the doctor screwed up, it is the cause in fact (2) If this action didn’t take place, what would have resulted? (c) There is a possibility that this is simply coincidence – no causal connection (d) Another possibility – the kick did spur the injury, but his leg was so sensitive that it was inevitable to happen (1) Putney’s lawyer would argue that Putney didn’t cause the harm; he only caused it to happen today (e) Proximate cause (1) Isn’t really cause at all (2) It’s a policy judgment – are we going to hold you responsible? (3) If it’s a kind of harm that you could foresee, you are liable (4) If it’s a harm that you couldn’t foresee, you’re not liable iv. Distinction between type/kind of harm gets fuzzy (a) With intentional torts, the boundary line is pretty far out there, since you intended the contact v. Tricky category of causation (a) This is when the real answer to the question of what caused your harm is “we don’t know” (b) What do we do when the honest answer is “we don’t know”?
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(1) Should we let the plaintiff get in front of a jury and let them decide? (c) How much causation evidence should we require to compensate victims? 2. Other Intentional Torts: a. Assault and Offensive Battery i. Assault (a) Incomplete batteries (b) Intent, but no contact (c) No physical harm required ii. I. de S. and Wife v. W. de S. (a) Facts (1) Defendant was going to buy wine (2) He strikes the door with a hatchet (3) She asks him to stop (4) He strikes the door again (5) She is not physically harmed or even contacted (b) What was the harm done to her? (1) She has been made to be scared (2) She is put in “imminent apprehension of fear” (c) Common law tort is never construed in a terribly narrow way (1) However, there might need to be some limits (d) What if W. de S. is just a really scary guy? (1) It doesn’t matter that she ordered him to stop (2) Has she been assaulted if a scary guy knocks on the door? (e) What can count as a specific action? (1) Normally, words alone aren’t sufficient to establish an assault (2) However, words and circumstances together may establish an assault (i) We can’t lower the standard to only words or a person without a bad reputation will walk through the world committing assaults (f) We are largely going to infer intent from your actions (1) To say, “I really didn’t mean to cause fear” isn’t going to cut it iii. Tuberville v. Savage (a) Plaintiff, with his hand on his sword, said,“If it were not assize-time, I would not take such language from you” (b) Defendant beat up the plaintiff as a result (c) Defendant is claiming that he was provoked – self-defense, in a way (d) Plaintiff is saying that it is a conditional threat, making it obvious that he wasn’t going to do it (e) What is the best argument for defendant? (1) The plaintiff put his hand on his sword (2) The action is what showed the intent (3) Even if he implied that he was going to do it after assize-time, assault can’t be that far in the future (f) Intent can be just to make you afraid of harmful or offensive contact (1) If I aim a gun at you, it can be assault even if the gun isn’t loaded (2) Even if you know the gun isn’t loaded, it could be assault (g) For battery, your knowledge doesn’t matter iv. Offensive battery – battery without any physical harm b. Trespass – Dougherty v. Stepp i. Plaintiff walked onto Defendant’s land and surveyed it. They caused no harm ii. Simply from the invasion of my real property, we prefer the tort iii. You must prove that some actual damage is caused by the intrusion iv. For intangible intrusions, we are going to have a higher standard before we recognize the harm
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c. Trespass to Chattels – Intel Corp. v. Hamidi i. Why are we more lax for personal property than real property? (a) People will touch and mess with personal property in every day life (b) The home has historically been protected and revered (c) It’s easy to move personal property away from someone ii. Idea: the internet should be thought of as real property (a) Websites are virtual places (b) There are huge costs to moving your website or email address (c) AFF the internet is more like wide open property (1) By default, everyone is invited to sit on my property (2) If I put up a fence, people should stay out – security restricted areas (3) If someone hurts my land, they are trespassing iii. If the messages had been so voluminous to cause damage, there would be trespass to chattels iv. Epstein (a) There ought to be liability here (b) Practically speaking, companies aren’t going to have limits, since they see the advantages to open communication (c) You are allowed to do something until you are told to stop v. Others disagree (a) Epstein is inventing a new tort that doesn’t fit old ones (b) Should be dealt with through social norms and technology vi. Maybe we should look at self-help remedies (a) Emails could simply be blocked (1) Court needs to decide how overt to be – what the consequences should be 3. Defenses to Intentional Torts a. Consent and Its Limits i. Mohr v. Williams (104 N.W. 12 – Minn. 1905) (a) Facts (1) D examined P’s ears, advised operation on right ear (i) Couldn’t diagnose left ear, due to foreign substances in it (2) Plaintiff talked to her family physician, consulted with defendant, and consented to operation (on her right ear) (3) While under anesthesia, doctor examined her left ear and concluded that it was worse – should be operated on; family doctor agreed (4) Operation was skillfully performed and successful (5) Plaintiff claimed that the operation impaired her hearing, injured her person, and was assault & battery (since she didn’t consent) (6) Trial resulted in verdict for plaintiff of $14,322.50 (7) Trial judge ordered that the verdict was excessive – new trial called (b) Issue (1) Does assault and battery require wrongful intent or negligence on the part of the actor? NO (c) Reasoning (1) Defendant claims that it wasn’t assault and battery: (i) The operation was necessary for her health (ii) There was no negligence on doctor’s part (iii) There is no evil intent (2) “The act of defendant amounted at least to a technical assault and battery” (3) Since the operation was performed without consent, it was unlawful (4) “Any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery”
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(5) This isn’t like criminal prosecution – unlawful intent must be shown (6) Affirmed orders of trial judge (d) Next time the surgeon will make sure to get consent ahead of time ii. Kennedy v. Parrott (a) Plaintiff was having an appendectomy (b) During the surgery, the doctor notices cysts on the plaintiff’s ovary (c) The doctor intentionally punctured the cysts (d) The puncture cut a blood vessel, causing plaintiff to develop phlebitis in her leg (e) Court didn’t allow her action for trespass (1) “surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision” (f) If you are in the middle of an operation, you happen to find something that requires treatment, we should be lenient to allow this iii. Practical solution (a) Doctors frequently require consent forms (b) They have a paragraph that says the doctor can do things other than what they said iv. When has a person consented? v. If you behave in a way such that a reasonable person would say that you consented, that is enough vi. Hudson v. Craft (a) Plaintiff participated in a boxing match at a carnival and was injured (b) P is suing the promoter of the boxing match (c) Promoter’s defense (1) He’s not the one who caused the injury (2) P consented to participating in a dangerous game (d) Question: Is consent a valid defense when the activity was illegal? (e) What we might like to say: volenti non fit injuria (volunteers have no recognizable injury) (f) Majority principle: you can’t consent to an illegal activity, because the state is involved (1) We’ll act as if you didn’t consent at all (2) This is a deference to legislative judgment (3) Tort law should respond to the structure of the legislative pronouncement about what is and isn’t allowed in boxing (4) Court doesn’t have to decide between majority and minority rules (5) It applies its approach only to the promoter (6) Given the existence of criminal law making prize fighting illegal, with the end of protecting boxers from themselves, we will make the promoter liable for the injuries (g) Different ideas: (1) Does the minor know that the boxing is illegal? Can’t he consent? (2) But the promoter lured him into the situation (h) Consequentialist (1) If we don’t want to have people fighting each other, what should we do? (2) If the promoter has to pay, he might not have fights (3) But then participants won’t worry about getting injured – they can plan to recover from the promoter (4) But the participants will be highly unlikely to have knowledge about torts and the legal rules (5) The promoter will be more likely to know the legal rule (i) Restatement of Torts (1) Persuasive authority, but not mandatory (2) It’s a good starting point as to what courts are likely to do (3) Takes the minority view: recognize consent even though the invasion is a crime
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(4) But there is an exception – liability exists if a person in a particular class of people, protected by law, participates vii. Sports and Torts (a) See what’s at stake when you give jury instructions about how to interpret rules (b) Some people wanted to search for proxy criteria (external criteria, outside the legal system, would determine if a person has access to courts for remedy) (1) If the sport has its own reprimand system, no ability to sue in court (2) Some people wanted to use rules of the game to delimit torts (i) Presumably, what you consent to is within the rules of the game (ii) What if the rules say “anything at all goes” – will we not let you consent to absolutely dangerous activities? (iii) Do we respect autonomy enough to let people consent to stupid things? Or is it a moral issue that you can do what you wish? (iv) What if the rules are unclear? If the activity is way outside any possible rules, it ought to be a tort (v) What about activity that is outside the rules, but part of the game? (3) Intent (i) Should it simply be intent to contact, or also intent to harm? What about recklessness? b. Insanity (weak defense) i. Rule – insane person must have the same intent as a sane person; he must have intent to contact (a) Lines are drawn between sleep walker and crazy person & nine-month-old and three-year-old ii. Hypothetical (a) I am wandering down the street (b) A woman jumps out of the bushes, grabs a stick, and starts hitting me (c) If I sue, will I recover? – yes (1) Fairness (2) Incentive for caretaker to be more careful (3) Keeps tort system from getting involved in mental state of D iii. McGuire v. Almy (Mass. 1937) (a) Facts (1) P was employed to take care of D, an insane person (2) P was on “twenty-four hour duty,” living in a room next to D (3) D had a violent attack while locked in her room (4) D told P and the maid that she would kill them if they entered the room (5) P and maid thought it best to remove the broken stuff from the room, to protect the D (6) When the D’s brother-in-law arrived, they entered the room (7) As P approached D to get the furniture leg from her, D struck P on the head (b) Issue (1) Is an insane person liable for intentional damage to the person or property of another? – YES (c) Reasoning (1) An insane person should be held to the same standard as everyone else (2) Intent must be present – “the insane person, in order to be liable, must have been capable of entertaining that same intent and must have entertained it in fact” (3) The court intentionally stops here, since this is all that is needed for the present case (4) The jury did find that D was capable of having and did have intent to strike and injure P, and that she acted on that intent (5) D’s argument – P assumed the risk of harm when she entered the room (i) Court rejects this – the risk wasn’t obvious until P entered the room iv. Do we want to let someone recover if they negotiated about the risk, got paid for it, and then got harmed?
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c. Self-Defense – Courvoisier v. Raymond i. Rule – If it was a reasonable mistake, there will be no liability (a) The innocent, third-party police officer must bear cost of the harm ii. Facts (a) The street was well lit, Raymond identified himself as a police officer, but C shot him (b) D claims that Raymond approached in a threatening manner and that a reasonable man in the situation would believe his life was in danger (c) Judge instructed the jury: If you believe that P wasn’t assaulting D at the time of the shooting, you must find for P iii. What are the problems with this instruction? (a) If D believes he is being assaulted, and he’s not, is the person off the hook? (b) What do we do about reasonable mistakes? (c) Is it reasonable to believe that you’re threatening me? d. Insanity i. There doesn’t have to be intellect, just will ii. Purely reflexive action doesn’t count iii. Sleep walking wouldn’t reach the idea of the will here iv. On the one hand, the notion of the will is incredibly important v. When we find the insane person liable, it is essentially a form of strict liability e. Necessity i. Rule – I can make use of your property for my benefit, when necessity arises ii. Ploof v. Putnam (a) Facts (1) P was sailing with his family (2) A “sudden and violent tempest” came along, and P moored his boat to D’s dock (3) D’s servant unmoored the boat, whereupon it was driven ashore, injuring P and his family (4) Two counts in the claim: (i) Trespass – D, through his servant, unmoored the boat (ii) Case – It was the duty of D to permit P to moor his boat and to let it remain moored until the storm blew over; however, D (through his servant) negligently disregarded this duty (b) One party is permitted to do something that isn’t ordinarily allowed, because of the circumstances (c) Self defense (1) Normally you can’t batter people or trespass (2) But we will allow it under certain circumstances (d) Emergency (1) I can’t normally cut you open and operate on you (2) But if you are dying, I can (e) Emergency is more like Ploof (1) With self-defense, the case is you doing something that makes me respond (2) With Ploof, P simply owns the dock (f) But the person is doing it for his own good – self-defense and necessity (g) Court says that I should be able to make use of your property for my benefit, when necessity arises (h) A person may “sacrifice” someone’s personal property to save his life or the lives of others iii. Vincent v. Lake Erie Trans. Co. (a) Rule – (strict liability) you have to pay, even though you acted reasonably and didn’t have a choice (b) Ship-owner moored to the dock, and kept re-tying it (c) The dock was damaged as a result
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(d) Ship-owner should pay (1) If you take from someone in a time of need, you should pay it back when you can (2) BUT, the ship-owner was fulfilling a contractual obligation to be at the dock (3) However, the dock owner could have charged more to be moored at the dock at all (e) One of the problems – what to do when no one is particularly at fault (1) We don’t really want the ship-owner to have behaved differently (2) Maybe we should have clear default rules (f) How would the situation have changed if the ship should have left already? (1) One witness testified that the ship might have been able to get into a slip before the storm, which wouldn’t hurt another ship or the dock (g) There is a kind of unjust enrichment if you don’t pay (h) Several possible rules (1) The dock owner assumed the cost when he built the dock (2) The ship benefited – should have to pay the cost (3) Let the costs all lie where they fall; it will even out (i) How does this fit in with tort objectives? (1) It forces me to internalize the costs to the other party (2) It might force the ship-owner to think about the consequences before docking (3) It neutralizes what might be my own strategic behavior (j) Is there any other rule that would internalize the costs to others? (1) I should have to pay you whatever I saved (i) This causes me to be indifferent (ii) This forces us to argue about what would have happened if I had taken another action (2) Give the dock owner an incomplete privilege to exclude (i) This avoids the question about who pays if he does dock (3) Reasonableness (i) You could reach the same result by giving a complete privilege, but only in those circumstances where tying the boat up is reasonable (ii) This would mean that Vincent boat owner wouldn’t have to pay (k) Strict liability vs. negligence (1) Negligence (i) This forces us into the definition of “reasonable” (ii) When you have behaved reasonably, we will let the costs lie where they fall (iii) D behaved reasonably so P can’t recover (2) Strict liability (i) Prevents us from having to ask what damages would have resulted (ii) We don’t have to get into the murky question whether or not the behavior was reasonable (iii) D must internalize the costs of his actions (l) Contracts – legal rule might not matter (1) Suppose that boat owner has complete privilege (i) The dock owner will increase the price for each ship that docks (ii) The ship owner will increase his costs (2) If boat owner has to pay, he will increase his costs (3) Either way, the costs are going to be passed along (4) Insurance (i) It may be that dock owners can insure themselves cheaper than boat owners (ii) Alternatively, docks might be relatively uniform in value – ship masters might have better information about the relative value of their ships – sometimes it would be better to let the ship be destroyed rather than tie it up (iii) But there might be an idiosyncratic, golden dock owner – shipmaster might not know
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(5) If we give a complete privilege to ship owner, dock owner will bargain with him (6) When transaction costs are low, and it’s not stranger on stranger interaction, the legal rule doesn’t matter much (7) Most of the time in torts, the transaction costs are very high (i) Many of them are between strangers (ii) Negotiation is difficult or impossible most of the time B. When Should Liability be Imposed? 1. Hammontree v. Jenner a. Not credible to imagine that there could have been a contract solution b. D is driving along and has a epileptic seizure (hadn’t had one in 14 years) c. D is complying with doctor’s orders and DMV regulations d. D crashes into bicycle shop e. Negligence – if no one is at fault, we let losses lie where they fall f. Tricky part – how far are we prepared to go with making him responsible for his epilepsy? i. What about people who sneeze while driving? ii. What about narcoleptics? g. If you have a condition where you might have an accident, what would you do? i. Maybe relocate: (a) To somewhere with fewer people (b) To somewhere that doesn’t require driving ii. Reduce driving altogether h. Overall, one of the things strict liability can do is to reduce your activity level, but it doesn’t necessarily make you engage in the activity with any more care i. Negligence is not very good at getting people to adjust their activity level ii. Difficulty, the slippery slope problem – when do you become responsible for the actions? iii. We can say – let’s use strict liability when you have knowledge about your condition (a) But this gives people a big incentive to cover up their conditions (1) But the benefits of treatment might outweigh the risks of getting help i. Strict liability – boat owner & epileptic would pay j. Absolute liability – epilepsy is almost like a red herring k. Are the risks reciprocal? i. Does everyone share and bear them, or do some people get hurt more than others? l. Opinion relies on precedent more than argument m. P relies on precedent – driver, like a manufacturer, ought to be strictly liable n. An appeals court will not likely extend the law – principles of legality o. Negligence i. One of the consequences is that not all harms are recoverable – only ones where people weren’t reasonable 2. The Thorns Case (1466) a. D was cutting a hedge on the edge of the property, thorns fell onto P’s land b. D went to get the thorns and stomped the P’s crops c. D’s arguments i. He didn’t intend for the thorns to fall ii. He was careful d. You did this act that caused some thorns to fall on my property; you trespassed on my property to get them back e. Is what D did here a crime? i. No – it doesn’t matter f. Used to, in order to recover, torts had to be violent breach of the peace g. Cattle example is different – may not have had any control h. Incomplete privilege of necessity
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i. Choke cares about the degree of care that was used; Littleton doesn’t care i. If you couldn’t have done it better or in any other way II. Negligence A. Emergence of Negligence 1. Early Cases and the Forms of Action a. Weaver v. Ward (England 1616) i. D, a trained soldier, accidentally shot P, during a military exercise ii. No one shall be excused from a trespass, unless it is totally without his fault iii. Why would you say that D shouldn’t have to pay? (a) They are both participating (b) Maybe participation means that you accept the risk of what might happen (c) We would at least raise the question about whether they had assumed the risk iv. It still looks basically like strict liability (a) Even though it was unintentional, he has to pay v. Defenses (a) If the D is without fault, he shouldn’t pay (1) Ex: the gun discharged without being touched (2) Ex: A hits B with C’s hand (3) If I discharge the weapon and you get in the way (b) General denial – I don’t have to pay because it was not my act (1) If several people were standing around, you could claim that it wasn’t your weapon vi. They don’t find him utterly without fault in this case vii. There are times when a general denial isn’t appropriate, but you still shouldn’t have to pay viii. Inevitable accident (a) Some accidents are so inevitable that we won’t hold you responsible as the causer b. Writ system i. Claim had to fall into one of the existing writs in order to have a case ii. There were islands of law in a sea of non law (a) Much behavior in the world didn’t fit into any of the categories iii. If you fell within a drop of law, defenses were few iv. Trespass largely operated under strict liability (a) For a while, this was the only tort v. What is a trespass? (a) Something that resulted form D’s forceful and direct act (b) Intent & accident weren’t important (basically) (c) Harm had to be the direct consequence of what D did through his action vi. Nature of trespass – use of force & breach of king’s peace vii. Recovery was permitted even when it wasn’t a violation of the king’s peace (a) P takes horse to smith for care; mistreated and dies; P sues (1) There is no breach of peace, but you have to claim there is (b) Pleading takes on a fictional element (c) Gradually, this led to “case” – first known as trespass in a similar case viii. Trespass – direct injury ix. Case – indirect injury x. Trespass was a lot closer to strict liability (a) Inevitable accident (1) Defense – D had to bring it up and prove it (2) Narrowly understood xi. Trespass – two ways to plead (a) General denial – it didn’t happen, or it didn’t cause harm (b) Special denial
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xii. Case (a) Had to prove something much more like negligence (b) Must show that D is actually at fault xiii. Would rather sue in trespass if you can – easier for P to win xiv. Negligence came in through the back door xv. Procedure was very important xvi. It was hard to know whether to plead trespass or case c. Scott v. Shepherd (England 1773) i. Facts (a) D threw a firecracker into an open market (b) It landed on Yates’ stand, who threw it to Willis, who threw it to Ryal, who hit P with it (c) P lost site in one of his eyes (d) P sued D for trespass and assault ii. Question: Can the string of actions be tied back to D for trespass? iii. Traditional argument (Blackstone) (a) D can’t be held liable under trespass (b) D’s action ended when the squib landed on Yates’ stand iv. Other view (DeGrey) (a) D intended to throw the squib and create trouble (b) Someone got hurt, so D should be responsible (c) This is a moral argument, but not traditional (d) Could you argue that this was direct harm? (1) Redefine “direct” (2) The three people in the middle weren’t free agents (3) They were simply being reflexive and compelled to toss the squib on (4) Two ways to argue this: (i) Because the people aren’t thinking, they are more like forces being acted against If I threw a bouncing ball and it hit someone, we wouldn’t say that I wasn’t at fault But this isn’t simply bouncing – they are catching and throwing (ii) When I threw this into the market, what was the expected result? It would move around and come to rest Even though other people were involved, it was still my action (e) All subsequent throwing is a continuation of the force of the first act v. How does Blackstone deal with wild animals? (a) Some people argue that this is like letting a wild beast loose in the market (b) Animals have wills of their own – they can’t be easily stopped (c) Owner should be liable (1) It is one continuous act (2) The intervening actor doesn’t fully control the beast 2. Negligence or Strict Liability? a. Brown v. Kendall (Mass. 1850) i. Key facts to find liability under traditional tort – P’s lawyer (a) P was hit directly and violently by D with a stick ii. What is the question the court is faced with? (a) Jury instruction – if it was not a necessary act to separate the dogs, D is responsible for his actions, unless he used extraordinary care iii. This is sort-of like an inevitable accident iv. What instruction would D want for jury? (a) If the jury finds that this act was done without intent, then they should examine whether reasonable care was used (b) Should only find for P if they find that D acted without reasonable care
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v. Court (a) The right instructions look to intent & due care (b) New trial ordered (1) P has to prove that the D was negligent vi. Under these new instructions, why should D still have to pay? (a) P must tell the jury a story where the D wasn’t being reasonably careful (b) P – P was standing several steps back & D wielded the stick wildly (c) D – P wasn’t helping and stood right behind D vii. CHANGE in the law (a) This is a change in the law – direct harm had always been enough (b) No longer will direct, consequential force automatically mean liability (c) Strict liability came to almost be invisible (d) Industrial revolution (1) Negligence made companies less responsible for harm (2) This made the cost of business less, helping fledgling industries (e) Horwitz – argues for this transformation; legal doctrine developed to provide aid to industries (f) Negligence became dominant everywhere (g) There were occasional pockets of strict liability b. Fletcher v. Rylands i. Facts (a) D’s reservoir broke, flooding P’s property (b) D selected competent engineers and contractors (c) There were coal mining shafts (filled with soil) in the subsoil below the reservoir (d) D’s workers became aware of the shafts, but didn’t suspect that they were connected with a mine (e) When the reservoir filled with water, it flowed through the shafts and out through P’s mine ii. Blackburn (a) P must bear the loss, unless he can show that it is the result of a default on the part of D (b) The person who brings something dangerous onto his land must bear the loss if it escapes (c) When damage is done to personal property (or even to a person) by collision, there must be negligence in the party doing the damage to render him legally responsible (d) The P didn’t take any risk upon himself iii. Cairns (a) If D was using his land in a natural way, P would have to protect himself from water runoff (b) Since D was doing something unnatural, he is liable if it injures P iv. Cranworth (a) If a person brings something onto his land that could damage his neighbor (if it escaped), he assumes liability (b) D brought large quantities of water onto the land, damaging P c. Brown v. Collins (N.H. 1873) i. Facts (a) P owned a stone post with street lamp on it (b) D was on his wagon, waiting for a train to go by (c) Horses became frightened, struck the post, and threw D from the wagon ii. Court (Doe) (a) D was using ordinary care and skill in managing the horses, until they became frightened (b) No actual fault on D’s part (c) Everything a man can bring on his land is capable of escaping (d) D wins B. The Reasonable Person 1. Vaughn v. Menlove
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a. Facts i. Menlove had a haystack, which caught fire, destroying Vaughn’s property ii. Jury found for P, but D appealed (jury given wrong instructions) b. Issue i. Should the standard be a reasonable person OR did you act to the best of your ability? ii. P argues that D should behave with ordinary prudence iii. D argues that he is liable only if he failed to act to the best of his judgment c. What community do we consider? i. D is engaging in the activity of farming ii. What do we expect of someone who is choosing to engage in the activity? d. Objective standard i. Even if you truly didn’t know, you should have known ii. Any reasonable person would have at least heeded the warnings e. Middle ground i. Not judging by own personal abilities ii. Not judging with a Platonic form f. Reasonable person i. Doesn’t get tired or bored ii. Not careless or clumsy iii. Doesn’t have slow reflexes iv. Has no sensitivities to gender, class, race 2. Standard is lowered in some instances a. Children i. Have a lower standard for child activities (bike riding, rollerblading, etc.) ii. Don’t lower the standard for children driving cars, because adults can’t tell that a child is driving iii. The more child-like an activity, the more willing parties are to let the jury consider age iv. Kids need to make mistakes b. Old age i. Even though the old man is driving as well as he can, we don’t subjectivize (Roberts v. Ring) ii. Old people should know their own limitations iii. Subjectivize sometimes c. Insanity i. These individuals don’t appear to be children, but they have the mental age of a child ii. Fairness argues that their standard should be lowered iii. Common law – actors with mental disabilities don’t get a relaxed standard iv. Breunig v. American Family Insurance Co. (Wis. 1970) (a) Rule – focus on forewarning; if in doubt, send it to the jury (b) Facts (1) P’s car was struck by a car driven by Veith, insured of the D (2) Veith had a mental aberration which rendered her unable to drive (3) Jury found Veith negligent, since she knew about her condition (4) D appeals from award of $7,000 for P (c) Reasoning (1) Veith was subject to a mental delusion (2) The question is whether she had forewarning (3) D argues that V had no warning about her delusion (4) P argues that V did have evidence and that insanity shouldn’t be a defense (5) Court allows for insanity as a defense in some cases (i) Seizure, heart attack, or fainting all remove liability (6) V’s visions started happening back in August, 1965 (7) Evidence of forewarning isn’t strong, but it is there
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(8) Judgment for P (d) Analysis (1) Court is asking for the impossible – if you had been a reasonable person, would you have known that the episodes posed a danger? (2) This standard might also provide an incentive for people to not seek medical help – no medical trail d. Physical disabilities i. More likely to have a reduced standard, as long as the activity is appropriate e. In practice, there is quite a bit of contextualization on the jury’s part 3. Benefits to Objective Standard a. Behavioral – objective standard provides incentive for people to learn about an activity before jumping in b. Administrative – Jury makes decision based on their experience of the world and what they have learned from the evidence 4. When are juries least likely to have a grasp on reasonableness? a. When juries don’t have shared experiences to draw on i. Like complicated workers comp cases, which medical procedures are appropriate, etc. b. Lawyers have to educate the jury about what constitutes reasonableness, and they ultimately hear a “battle of the experts” C. Calculus of Risk 1. Blyth v. Birmingham Water Works a. Double-edged tension: If this really is a shockingly cold year, it helps the defendant i. You can’t be expected to design a system to withstand the unforeseeable ii. In contrast, you can’t argue that it was “colder than average.” Colder than average is to be expected b. If laying the pipe another foot deeper would have prevented this accident, but would double the cost of installing the water works, would it be worth it? c. What about the argument that the plaintiff could have removed the ice from the stopper himself? d. Two kinds of claims that the plaintiff could make here: i. Defective system design claim ii. Failure to inspect e. Best defense: How unusual the frost was, couldn’t be expected to guard against it f. Best P argument: Defendant in better position, once the cold occurred, to prevent the problem 2. Eckert v. Long Island R.R. a. Rule – going to allow him to attempt rescue, unless it’s reckless b. Was the decedent contributorily negligent? c. Was his behavior reasonable under the circumstances? d. First, did decedent have a duty to rescue the child? i. He didn’t have a legal duty to rescue ii. The law does approve of such a risk, although not if his effort was futile, was unlike it e. In considering the decedent’s contributory negligence, you must consider whether the value of the child’s life and the probability that rescue attempt would be successful would make the decedent’s actions in regard to his own safety reasonable f. Court says it wouldn’t be reasonable to do this to protect property g. This isn’t necessarily your typical cost-benefit analysis i. Under pure cost-benefit it wouldn’t be worth it, but it might well still be ok ii. Probably at least a jury question because of the immediacy of the circumstances and the fact that people have to make quick decisions h. We sympathize with the urge to give help, and we don’t want to let the RR off the hook even though the rescuer saved the child’s life i. Dominant approach: kind of cost-benefit analysis, but a forgiving one. j. Eckert invites us to consider what risks are WORTH taking.
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3. Cooley v. Public Service Co. a. If the P can show D could have done something differently, why does that help their case? i. Untaken precautions fit both into cost-benefit language and reasonableness language ii. The more you can show this alternative would have been easy, inexpensive, possible, the easier it is to persuade a fact-finder that D should have taken these measures b. Defense arguments: i. The magnitude of the risk was so tiny, so remote, shouldn’t have had to protect against it (reasonableness) ii. Challenge the idea that there really was a feasible untaken precaution (too expensive, or would create other harms) c. Haven’t discussed the issue of whether the power wires should be there in the first place d. Negligence calculation may discourage you from thinking about “activity levels,” or how often you participate in the activity in the first place i. Negligence may encourage people to over engage in an activity because it doesn’t invite the question of whether you should have engaged in the activity in the first place ii. Goes back to Hammontree, where strict liability might have encouraged Jenner to drive less often (a) Would strict liability have made the power company to be any more careful? (b) Generally speaking, strict liability does not encourage people to be more careful. Does effect where the costs will lie. People won’t invest any more in precautions with two exceptions, increase investment in research e. Strict liability vs. contributory negligence i. Underlying intuition, defendant was unreasonable in failing to take cost-efficient, effective precaution ii. Product liability and design litigation. Often have companies facing the issue in Cooley of liable if you do, liable if you don’t iii. Want an approach that will let defendants argue clearly to the jury that what may have helped in one case could have caused a problem in another D. United States v. Carroll Towing 1. Hand calculus a. Formula – D is negligent if --- P * L > B b. P = how likely harm? c. L = how much harm would you expect to occur (both in kind and amount)? d. B = burden of preventing harm: i. What are research costs to determine measures? ii. What measures are possible? iii. How much do measures effect reduction of risk of harm? iv. What is cost of precaution? 2. Nice as heuristic device a. Simple model that helps us understand what generally may occur in ct consideration of cases b. In practice, difficult to think about what is right precaution, accident costs, time periods, converting numbers into similar terms 3. Forces us to be concrete about what we need to consider to determine negligence, but problem is determining each of these factors and then actually bringing together 4. Hand formula not introduced to juries in formal ways. 5. Hand calculus invites us to turn everything into numbers a. What might result from such calculations is that potential P will over invest in safety to avoid litigation costs (jury misinterpretation issues) when you with perfect knowledge know PL=B (i.e., shouldn’t be spending $200 to stop $100 of damage costs, but since these are expected values, juries or others may determine costs are higher and inefficiency occurs) b. Under strict liability, potential P will never overspend, assuming risk neutrality b/c will always rather pay $100 instead of $200 – internalization of all costs
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c. Thus, process costs under negligence principle create issues that theory of Hand formula would suggest 6. Recognition that not all accidents are worth it financially to prevent from occurring even though possible to prevent a. Hand formula provides a normative answer that pushes us toward efficiency b. If part of goal of tort law is incentive-effects, we should look to economic factors c. Also consider how D acts when threatened with liability? 7. D could est. that behavior is rooted in custom a. That it is normal to leave barge after safely tied b. Not liable and won’t change behavior (not economically efficient per se) c. Coase rule said that legal rule shouldn’t matter in certain situations if there is a way to bargain around it (could someone else have paid bargee to stay on board)? d. However, the Coase theorem only holds true if transaction costs are low and someone is there to bargain with in first place. e. Strict liability will not induce greater care, just where distribution of cost falls. 8. (1st number is P’s cost of care) (2nd number is D’s cost to care) D (tug)/P (barge) Take care Don’t take care Take care 200,100 0,100 Don’t take care 200,0 250,0 a. Whether use theory of negligence without contributory negligence or strict liability with contributory negligence gets you to same place – lower left box (highlighted) b. Hand rule may not matter when have contributory negligence and both are bad solutions (a) Add numbers in box together to get total social costs of accident prevention (b) So why not go for upper right (bottom left is inefficient) ii. Efficiency created by theory of least cost avoider (a) Whoever could prevent accident at cheapest cost should do it (b) Puts us in upper right – D doesn’t have to shoulder cost of care, P does c. In essence, the least cost avoider theory is a form of strict liability i. Don’t ask if cheaper than cost of accident, but rather cheaper than cost for other party ii. Unlike negligence and strict liability, with contrib. neg, it is efficient particularly in situations where could get to better solution (move from minimal accident prevention to more efficient system) d. One of problems is whether you are in comparatively better position to compare (ability to know what the values are for the other party to take care). However, in world of perfect information, allows us to get to most efficient solution. e. Another solution is bargaining (Coase) i. If in position to bargain with one another, maybe don’t need to worry about any of legal rules ii. Even under negligence, P might pay D 150 to have D take care while P does nothing iii. Cheaper for P than spending 200 but also nets D 50 f. Essentially a one owner principle at work i. Imagine same person on both sides of equation ii. Take safety precautions and accrue benefits iii. Spend money for safety up to point when gets higher return than cost of accidents themselves iv. Spend $100 to get at least $101 in accident savings v. What saying with Hand formula is that we are not expecting them to spend anymore for others safety than what spend on own safety g. Hand calculus fits awkwardly with special duties of care i. Cost benefit and hand don’t fit very well with sudden emergency doctrine or heightened duty of care – why? ii. Perhaps b/c heightened duty of care requires expenditure beyond normally needed (how much more?) h. Reasonableness can mean:
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i. Cultural construct ii. Cost-benefit analysis iii. Custom – particularly when juries unsure of typical behavior in given scenarios (do we want to import the specialized knowledge of experts about duty of care into tort system?) E. Surrogates for the Reasonableness Calculus 1. Custom Can be considered as evidence of negligence, but not dispositive on question of whether exhibited negligence a. Non-professional i. Titus v. Bradford, B. & K.R. Co. (Pa 1890) (a) Rule – failure to comply with custom can be evidence of negligence (b) D argues that followed standard practice and custom of tying down blocks with telegraph wire (c) If is custom dispositive, recast argument around whether custom existed (1) Need to introduce evidence that there is variation b/w companies practices – one of many practices and not safest practice (d) Problem of custom rule is that it dampens innovation (1) Might have better idea as to particular practice, but not completely safe (not completely safe, but more safe than conventional practices) (2) Fear of suit for violating custom (increase liability by looking for new methods) (e) Also implicit is possible collusion that might push companies in industry toward what is cheap rather than more efficient systems to increase safety (f) Perhaps one thing in terms of benefit of custom is as minimum std for negligence (1) Who’s more likely to get degree of safety right (participants in industry v. jury) (2) Also possible that trading safety for higher wages (to hold companies negligent, ct would be unmaking an agreed to bargain) (g) P could argue inadequate inspection of train before leaving, esp. in light of non-std way of putting cars together, or even could use subsidiary custom to refute argument – others use bolts on wood instead of telegraph wires ii. Mayhew v. Sullivan Mining Co. (Me. 1884) (a) Ct dismisses D’s attempt to bring in custom re hole in ground in mine (1) Gross negligence supersedes notion that all are doing as standard practice (custom) (2) Of course putting hole in ground in dark mine is unreasonable (b) But is it reasonable to have erected warnings? (1) Candle – explosion, barriers – more impediments, signs – not that helpful (2) Perhaps at min tell independent contractor about hole (c) At very least we should have heard from experts to see if they might dislodge our intuition that dangerous custom is dangerous or not (d) P can argue that custom can have less weight since he is independent contractor (he may not know custom due to stranger relationship and so unfair for him to assume the risk) iii. The TJ Hooper (NY 1931) (a) Having radios on tugs constitute custom? (b) Cox in first trial – yes there is custom (c) Hand – does not agree with Cox (1) No custom of providing radios (many have owned but not furnished or supervised by owners so no general custom) (2) Relationship b/w custom and reasonable care – not strictly equivalent so preserves decision for ct (p. 193 – “Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure … Cts may in the end say what is required …”) (d) Could be essentially saying that Hand formula rules and when custom lines up with this, custom rules as well in determining negligence ~ Carol Towing (reluctant to make custom a proxy is to
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keep industry from colluding to not meet required std of care that comes out of Hand) – be wary that juries will know better than industry (e) Where reach competitive bargain, look to Titus; when not able to reach competitive bargain, look to Hooper (f) What does the custom represent in TJ Hooper? (g) Suppose it was your job to figure out if there was a custom – what would you do? – consult experts (h) Did the person who hired the tugboat think it was unreasonable not to have a good radio on board? (i) Did the person assume the risk? (j) Price example (1) Tug insure cargo - $104 (2) Tug provide radio - $103 (3) Cargo owner insure - $2 + $100 (k) What would you do? (1) If you can buy insurance for $2, you will choose to do so (2) If you are a repeat player, you will definitely want the cheapest solution (l) The parties can allocate the loss among themselves – least cost avoider (m) The parties might be engaging in their own kind of Hand formula (n) If cargo owners and tugboats keep agreeing on the same solution, a custom would arise (o) Custom – might be an embodiment of the negotiations of repeat players (p) If we believe this is what the custom is, should courts be able to redo it? (1) It’s inefficient for courts to intervene and disrupt the customs that parties have come up with (2) If an idiosyncratic person wants a radio, he can bargain for it (q) At least sometimes, there might be arguments for a Titus view over TJ Hooper (1) Sometimes courts should be weary of messing with customs (r) RISK – the custom will solidify and be hard to change, even if it’s not the best solution (s) RISK – there are externalities that the parties don’t consider when the custom is forming (t) One approach would be to invite courts to make every problem polycentric (1) Should ask – was this a reasonable way to behave with respect to everyone? (2) This might be problematic (i) Do we let you say that this is unreasonable for the collective consequences? (ii) Legislatively, this is the question to ask (3) Negligence centers upon a duty and breach of duty to me (u) Should the tugboat owners be able to use the custom as a defense against the pleasure boat owner? (1) No – the pleasure boat owners weren’t part of the bargaining relationship – they are strangers (2) We should be a lot more weary of making custom dispositive on the question of reasonableness (3) We shouldn’t just say that Titus gets it right either (4) If there are significant externalities to the custom, that gives me a chance to make the argument that not having a radio was unreasonable (5) If enough cases arise, the tugboat owner will have an incentive to lower the cost of providing a radio (v) The convention might be stalled (1) What was once an efficient solution might no longer be (2) The parties may not try to negotiate out of the custom, since the savings might not be so great (w) Titus
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(1) You can argue that the person has the information (2) You could say that we should give great deference to custom (x) See (1) There are times when the courts ought to be reluctant in displacing custom – when we see that custom did arise out of bargaining relationship (2) There are going to be times – changes in technology, externalities, aggregated harm – when custom shouldn’t be used (3) Custom should be able to be introduced into evidence (4) Clearly we don’t want custom to be dispositive in cases involving strangers or nonstrangers who can’t bargain for safety b. Professional i. Rule – custom is dispositive – (more like Titus) – if you complied with custom, you’re off the hook ii. Lama v. Borras (a) Patient had back pain, ended up having surgery (b) Claims (1) Failure to meet the standard of care – conservative treatment (2) Premature discharge after surgery (c) Standard of care – national standard (d) Custom = standard of care iii. Helling v. Carey (a) Optomologist fails to test for glaucoma in a young woman (b) Trial court found jury verdict for D (c) SC granted directed verdict for P – failure to test for glaucoma is liable as a matter of law (d) Two ways to read this: (1) Do every test in the book (2) Cost-benefit calculation (rejecting Hand rule) (i) Do simple, cheap tests that can eliminate possibilities (e) In general, courts have stuck to custom being dispositive iv. Canterbury v. Spence (a) Facts (1) Physician performed laminectomy in a minor (2) After surgery, P fell out of bed, incurring near-complete paralysis (3) Complaint (i) Dr. S – negligence in performing the laminectomoy & failure to inform P of the risks beforehand (ii) Hospital – negligent post-op care (4) Directed verdict entered for D, on grounds that P had no evidence (5) Court of appeals reversed, finding a prima facie case for negligent performance and failure to disclose risks (b) Elements of informed consent (1) Doctor had a duty to disclose material facts (2) Doctor didn’t disclose material facts (i) Big risk – from patient’s view No experts Testimony from the patient Which risks would reasonable patient want to know about? Doctor is required to take into account special knowledge about patient’s circumstances (ii) Little risk – from doctor’s view Bring in experts – other doctors ordinarily disclose it
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(3) Patient didn’t already know the facts (4) A reasonable person would have decided differently (c) Patients must disclose idiosyncracies & doctor must anticipate what patient will want to know (d) Two exceptions (1) Emergency – if someone can’t make treatment decisions, we don’t require disclosing risks (2) If doctor thinks the disclosure will genuinely harm the patient, doesn’t have to disclose (e) Informed consent does force patients, to some extent, to participate in the choices being made with respect to their health (f) For informed consent, we don’t defer to their own standard 2. Statutes and Regulations a. Two questions: i. What’s the rationale for saying that statutes have something to say? ii. Assuming they have something to say, what should their weight be? – dispositive, evidence, etc b. Osborne v. McMasters (Minn. 1889) i. Rule – statutes are sometimes negligence per se (if you do it, you are negligent) ii. Person died from drinking poison that wasn’t labeled iii. Even if there were no statute, that wouldn’t mean that P is out of luck (a) If it’s a custom to label poison and I don’t do it, I’m not complying with custom iv. D violated the statute, but why should that be negligence? v. Two possible ways to frame the situation (a) Legislature is giving us a standard of care by saying “people shouldn’t sell poison without labels” (1) Reasonable people don’t break laws (2) Any time you break the law you should incur civil liability (b) Legislature was probably trying to reduce poisoning by ignorance – mandatory labels (1) Hand Calculus – cost-benefit analysis (2) Does it make sense to ask the jury to do a cost-benefit analysis if the legislature has already done one? – efficiency gains (3) If relationship between injury & purpose of legislation is close – might not let the jury ask an open-ended fuzzy question (4) Should use the statute as negligence per se vi. The more we think the statute was to prevent certain risks & the activity in question creates that risk, we say it is negligence per se vii. What do we look at in deciding? (a) Statute – prohibited drug store from being open on Sunday (1) This would not provide for a negligence per se claim (2) Probably not be able to introduce this at all (b) Statute – every container of poison must say “poison” and have a skull & cross bones (1) If I label it “poison” but don’t have the skull & cross bones (2) D violated the purpose of the law (3) But if you think the purpose is to help people who don’t read English, it cuts against literate people (4) The purpose of both elements is to protect everyone – make sure people notice it viii. Best claims for using statute for negligence per se (a) Clearly a safety statute (b) When P is in the group of people who are protected (c) The kind of harm that P sustained was foreseeable & intended to be prevented c. Gorris v. Scott (England 1874) i. Purpose of the statute was to contain animal diseases ii. Sheep weren’t penned up, and washed overboard
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iii. Imagine that having these special pens would’ve prevented overcrowding (preventing spread of disease), but would also have prevented other harms for marginal cost of $0 (a) It might be that we should impute these marginal benefits (b) There might be some things that, standing alone aren’t worth the cost (c) If we take the benefits together, it makes the precautions worthwhile d. Martin v. Herzog (N.Y. 1920) i. What procedural effect does violation of statute have? ii. Evidence iii. Prima facie evidence – presumption of evidence that you can rebut iv. Court – unexcused violation of the statute is negligence v. If we just said, “violate the statute, that’s negligence” – it’s clear (a) Makes it easier for juries to decide (b) Might not even go to jury – JML (c) It tells common people how to behave vi. There are instances where it is reasonable to drive without lights on vii. In some cases we want to allow excuses – this promotes individualized justice viii. What’s the downside to allowing excuses? (a) If we allow in excuse, it affects litigation side of things (b) On behavior side, it might affect life ix. Why allow excuse? (a) This risk is hypothetical (b) Most of the time, you won’t have a plausible excuse (c) Negligence per se saves enter (d) Cases in the middle will get litigated (e) Many of the cases that are litigated involve excuse, but not all are litigated x. What’s really at stake – will P get to the jury? e. Licensing – Brown v. Shyne (NY 1926) i. Rule – courts are more reluctant to consider licensing violations to be negligence per se, than safety statutes; at the very least, lack of license is evidence of negligence ii. Majority (a) It doesn’t matter if a person has a license or not (b) The license doesn’t cause the person to exercise due care and skill (c) The question of a license or its absence isn’t, by itself, admissible (d) It’s not negligence per se to not have a license (e) Lack of license isn’t even really probative of a license iii. How does P argue? (a) We don’t ask a physician for his license (b) If we can’t introduce the lack of a license, there is a disconnect between life and court (c) Show how a licensed professional would have done the treatment (d) Show that the D’s conduct didn’t live up to the standards of a licensed professional f. Car accidents – Ross v. Hartman i. Is it negligence if you leave your keys in the car, a thief steals it, and runs over someone? (a) No – thief was intervening actor that owner couldn’t control (b) What if there is a statute that makes it a crime to leave keys in an unlocked car? (1) If we think that the purpose of the statute is partly to keep your car from getting stolen by people who might drive carelessly, it should be negligence per se (c) Part of what makes your actions negligent is that someone might come along and take advantage of it ii. Lending car to friend & friend runs over someone (a) If there was something unreasonable about lending him the car, you can be held liable (b) If you have done reasonable inquiry and he’s a reasonable driver, you’re ok
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(c) Foreseeability of the person’s actions, given what you knew or should have known 3. Judge and Jury Allocation a. Distribution of power i. Who decides the facts? (a) Jury (b) If reasonable jurors couldn’t disagree, judge can decide ii. Who decides what the standard of care is? – judge – through jury instructions iii. Jury applies standard of care to the facts iv. Jury decides if D’s action is a legal cause of harm v. Judge decides if P’s injury is legally compensable vi. Amount of damages – jury vii. Judge can reclaim power if reasonable jurors couldn’t disagree b. To get to jury, there has to be a dispute as to a material issue – reasonable person could decide either way c. Directed verdict creates a legal rule d. Can’t we develop a nice rule about what constitutes negligence at a railroad crossing by a driver? i. Baltimore and Ohio R.R. v. Goodman (US 1927) (a) “Stop, look, and listen” rule (1) If you can’t tell if a train is coming, get out of your car and look (b) If you don’t do these things, you are negligent (c) The kind of rule that Holmes is talking about (he wrote the opinion) ii. Pokora v. Wabash Ry. (US 1934) (a) P didn’t get out of the car (b) Under Goodman rule, P should’ve gotten out to look (c) Note: parallels with negligence per se (d) But getting out and looking here would be more dangerous (e) There must be a case by case analysis iii. If even railroad crossing accidents have so many varieties that we can’t make a rule, we should be pessimistic about making rules generally e. If there is a rule that governs the case, there is nothing for the jury to decide 4. Res Ipsa Loquitur a. If P doesn’t have direct evidence of N, but the accident is self-suggestive of N, we will infer N b. Reminds judge and jury that circumstantial evidence is ok i. Ex: slip down at grocery store, see banana peel where you slipped – it probably made you fall ii. Byrne v. Boadle (p. 261) (a) Barrel of flower fell on P (b) Probable cause – N in the lowering or equipment – but it’s possible D wasn’t N c. Operates almost to shift burden of proof to the opposing party i. Most of the time it’s permissive inference – “jury, you may find N, but you don’t have to” ii. Newing v. Cheatham (p. 268) (a) Plane, owned and piloted by D, crashed (b) Circumstantial evidence that plane ran out of fuel – most likely caused by N (c) P tries to eliminate as many possible causes & provides circumstantial evidence for pilot error (d) Court – directed verdict for P d. Smokes out evidence (less significant because of modern discovery) i. Galbraith v. Busch (p. 265) (a) RIL not allowed (b) P was passenger & tried to sue driver after car swerved from highway (c) Since I was passenger, I should be able to provide evidence about what happened in the car ii. Pfaffenbach v. White Plains Express Corp. (p. 265) (a) RIL allowed
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(b) Stranger hits me out of nowhere – no way to figure out what happened – N = most likely cause iii. Ybarra v. Spangard (p. 276) (a) P had pain in shoulder after appendectomy (b) Most likely cause – some kind of mishandling while transferring him (c) Court allows collective suit using RIL, saying someone was N (d) Shifts burden of production to Ds – must explain, or will be held liable collectively (e) They probably aren’t all liable, but might cover for each other (f) Ex: if people act separately, then join products, not use RIL – parties weren’t together e. Used when D might have evidence to smoke out & it wouldn’t be provided without burden shift f. Cost of RIL – burden shifting with persuasion – if no one N, or N party conceals it, looks like SL g. Colmenares Vivas v. Sun Alliance Insurance Co. (p. 268) i. Two explanations for handrail stopping – N maintenance or manufacturing issue ii. If, for the majority of the time, this happens due to N, RIL should apply iii. RIL only appropriate when we can say that most of the occurrences like this are due to N iv. RIL allowed h. Burdens (most of time) – production to D, persuasion stays with P i. Error-reducing strategy i. For harms where P has a really hard time meeting production burden, D will always win with JML ii. With RIL, P can get to a jury iii. Even if P always wins, it will lead to fewer aggregate errors than if P always loses III. Defenses A. Contributory Negligence 1. If P is cont. N, bars recovery – but P might get away with some N 2. Butterfield v. Forrester (p. 288) a. If P had been riding with ordinary care, he would’ve seen the obstruction in the road b. P also has a duty to use ordinary care 3. Gyerman v. United States Lines Co. (p. 293) a. Fishmeal sacks fell on P – custom wasn’t followed in stacking them & D breached statutory safety duty b. But P had duty to report situation to his supervisor c. Court – P’s failure to report was cont. N, but don’t know whether this caused the accident i. Remanded – D must prove that reporting the accident would’ve helped 4. Cont. N might risk under-deterring Ds – but doesn’t – D can’t count on winning with it 5. Smithwick v. Hall & Upson Co. (p. 299) a. P was told not to go to east end of platform – no railing, might fall off – P did it anyway b. House buckled, injuring P c. P’s N was cause in fact, but not cont. N (P’s N didn’t increase the risk) 6. Mahoney v. Beatman (p. 299) a. P is speeding; D crosses into P’s lane and runs into him b. Actual fact of the collision didn’t depend upon P speeding c. TC – D’s N caused P to swerve off the road, but P’s speeding made situation worse – nominal damages d. SC of CT – D responsible for all damages to P’s car 7. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (p. 300) a. Train emitted sparks that caught P’s flax stacks on fire b. H – what to do about life on a crowded planet & reciprocal causation i. Looks to reasonableness of spark distribution – P doesn’t get complete use of all of his property c. M – clear cut; use your property as you will; be literalist about invasions d. Under M approach, train caused the harm & P recovers e. Under H approach, uses are conflicting 8. CL – cont. N is a complete defense a. If P is cont. N, no recovery (even if D was N) b. If P recovers, even when N, P isn’t deterred
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c. But if P doesn’t recover, D isn’t deterred B. Last Clear Chance 1. Fuller v. Illinois Central R.R. (Miss. 1911) (p. 308) a. Facts – P was in his buggy on RR track – train hit him, without even slowing down b. Ruling – D saw P and should’ve at least sounded the horn – D had last clear chance to avoid injury 2. If, after P has been N, you can prevent the harm, you can’t hide under P’s cont. N 3. T3 – D has opportunity to prevent the harm – should take it 4. Limits the reach of cont. N as a total defense 5. Restatement (Second) a. § 479 – helpless plaintiff i. P who was cont. N can recover if (a) P unable to avoid harm and (b) D doesn’t take chance to avoid b. § 480 – inattentive plaintiff i. P who could discover the danger can recover if D (a) knows of P (b) has reason realize P is inattentive (c) N in failing to avoid the harm C. Assumption of Risk 1. Murphy v. Steeplechase Amusement Co. (N.Y. 1929) (p. 322) a. P was injured on the Flopper – it jerked, should have a rail, and was dangerous b. Merely by going to Coney Island, P assumed the risk 2. Must have limits to the risk you are assuming a. If P could show that the Flopper jerked as a result of a defect, wouldn’t be assumption of risk b. One solution – contractual – define in advance what you’re assuming 3. Without assumption of risk, we go closer to SL (you pay every time someone is injured) 4. It allows idiosyncratic evaluation of an activity – we can choose our own level of risk preference 5. Primary v. secondary a. Primary – like saying there is no N in the first place b. Secondary – D was N, but P assumed the risk in some way c. Where is Murphy? i. Primary – probably no N – it’s reasonable to offer a dangerous ride – danger is open & obvious ii. Secondary – even if defective, P assumed risk – but if clear evidence of defect, P didn’t assume that 6. Two questions: a. Do I think the basic story of the D is unreasonable? b. If I think that the D was unreasonable, did the P contract for the ability to participate anyway? 7. Contracting out of tort system – when should we permit – if allowed, how explicit must parties be? 8. Risk premium – if people are getting something in exchange for risk, shouldn’t be able to claim N later 9. Advantages – encourages autonomy 10. Disadvantages – risk of market failures, lack of asymmetry of information D. Comparative Negligence 1. Comparing parties’ N to one another 2. Comparative fault v. comparative N a. Technically, comp. N is about comparing N, not causal allocation b. However, if there is a way to allocate the cause, D would try to make the argument c. Or, D could argue from causation standpoint – Nash caused $200, chauffeur caused $5650 d. Often, if you can persuade the jury that the speeding caused the big harm, it might help jury rethink badness (most of the time, speeding causing problems; most of the time, veering lanes is ok) 3. Failure to wear seat belt a. Wearing seatbelt wouldn’t be a problem if D hadn’t hit b. Some states disallow seatbelt defense – N drivers shouldn’t get off because victim wasn’t buckled up 4. Advantage – it’s not all or nothing IV. Causation A. Cause in Fact 1. Generally – causal relationship between D’s act and P’s injury must always exist
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a. New York Central R.R. v. Grimstad (p. 394) i. P claims – but for the barge owner’s N in failing to have life-preservers on board, her husband wouldn’t have drowned ii. Too speculative to have gone to the jury iii. Could widow sue tug owner & get to jury? – but for tug owner’s bump, De wouldn’t have fallen iv. Burden of proof – 51% chance that, had there been a life-buoy, De would’ve survived v. Difficult part – probability that she could’ve saved her husband is only 20% – P shouldn’t win (a) But if this happened 100 times, 20 people could’ve been saved – boat owner under-deterred (b) Could make owner pay 20% in all cases (proportional liability) b. Haft v. Lone Palm Hotel (p. 397) i. Facts – father & son drown in pool; statute – hotel must have lifeguard or signs saying “no lifeguard” ii. D would argue that P shouldn’t reach jury – we would’ve had a sign – P wouldn’t have stopped iii. But in some fraction of cases, the sign would matter iv. Recurring miss – P should win sometimes – if follow tort doctrine, P never wins – D is underdeterred v. Court shifts burden to D on causation – must say “it’s more probable than not that P would’ve swam” (a) Might help P win occasionally (1) Helps jury think differently about uncertainty – “if you really don’t know, find for P” (2) Might be a case that suggests this is a time when sign would’ve helped vi. Could make D pay 7% across the board (a) For deterrence, we want to make sure D pays enough in aggregate (b) But it’s unfair for 93 people to get $.07 when they “deserve” $0 c. Zuchowicz v. United States (p. 398) i. Z claims to have developed primary pulmonary hypertension as result of D’s N prescription of an overdose of Danocrine ii. Judge shifts burden to D (almost) – pharmacist clearly N – taking more than maximum dose causes risk (a) If we know the risk is doubled with overdose, courts are willing to shift the burden (b) If risk increases slightly, overdose probably didn’t cause the death – less likely to burden shift – RM iii. If not enough information, P establishes general causation, then D bears cost of uncertainty iv. Honestly, P hasn’t met her burden of proof for general causation v. What do we do when the real answer is “we don’t know”? (a) This N is rare enough that we will never have good data to answer the question (b) If we don’t compensate P, there’s a chance we’re not letting a victim recover (c) If we do compensate P, perhaps an innocent party is paying her vi. If it was known that drug rarely caused PPH, but we don’t know about overdose – RM – burden shift vii. Problem – double boot strapping – Calebresi ignores #1 and shifts burden on #2 (a) Is it more likely than not that Danocrine caused PPH? (b) Is it more likely than not that the overdose caused PPH? d. Expert testimony - General Electric Co. v. Joiner (US 1997) (p. 404) i. J claimed that PCB’s (working as electrician) “promoted” his small cell lung cancer ii. Court – admissibility of experts is not an issue of fact – reviewable under abuse-of-discretion iii. Are juries capable of evaluating expert evidence? – Are courts more capable? 2. Lost Chance a. Herskovits v. Group Health Cooperative (p. 412) i. Can a patient, with < 50% chance of survival, have a cause action against hospital for negligently diagnosing lung cancer, reducing chance of survival by 14%? ii. P must prove D’s N more likely than not caused death
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iii. If Dr. isn’t held responsible, it under-deters Dr. in properly diagnosing P iv. P was harmed by Dr., even if death would’ve happened anyway v. There is a 14% chance that P’s death was fully caused by Dr. vi. RM – under traditional tort, P never wins vii. But we can’t let every P like this sue and get full damages – over-deterrence viii. Think about harm as lost chance – Dr. reduced her chance of living, more probable than not 3. Joint Causation (did this party really cause this person’s harm?) a. Kingston v. Chicago & N.W. Ry. (Wis. 1927) (p. 418) i. Two fires join and burn P’s property; RR set one, other cause unknown ii. Under traditional “but for” causation, P loses against both iii. We allow P to recover from both iv. Joint a several liability applies: (a) When it is a joint enterprise (b) When Ds act independently, but the injury can’t be divided v. Rule: if other fire is natural, you don’t have to pay; when we think the other fire is probably human, we assume it is & shift the burden to you to show that the other fire was either natural or much bigger vi. Most human fires that spread are N – P might not be able to prove the other fire was N b. Summers v. Tice (Cal. 1948) (p. 425) i. Two Ds negligently shot P in hunting accident; Ds knew location of P; view unobstructed ii. Court – Ds are both liable – were both negligent iii. Usually there is no liability for risk creation, when no harm to P iv. What number of hunters would we cut off liability? v. Isn’t each hunter 50.0001% likely to have shot P? – Is that close enough to 51% to find both liable? c. Skipworth v. Lead Industries Association (Pa. 1997) (p. 428) i. Child consistently lead poisoned in home; mother and guardian sue manufacturers ii. Market share liability test (a) All named D are potential tortfeasors (b) Allegedly harmful products are identical and share same defective qualities (fungible) (c) P is unable to identify which D caused injury, through no fault of P (d) Substantially all manufacturers created defective products during relevant time called as D iii. Naked statistical evidence – doesn’t reach jury without other evidence (a) Misses nuances about who did it – 60% of market != 60% of accidents (b) If Blue Bus Co. did it, you should be able to connect them in another way (c) Dislocates markets by disproportionately burdening market dominators – big company nailed (d) Social and cultural norms moderate discomfort about pure statistics 4. Could base system purely on N, not at all on causation a. Focus on probability of injury materializing and potential damages b. Administrative problems – what is average amount of damages? c. Causation is required for expediency B. Proximate Cause 1. Introduction a. Need to find that cause was proximate, not remote in nature b. Acts as policy check – don’t find liability, even though D’s action is cause in fact of P’s harm c. Ryan v. New York Central R.R. (NY 1866) (p. 436) i. Ds set fire to woodshed, P’s house burned – is owner of first building liable? ii. Rule – if not in natural and expected result, not liable (only count up to next building) iii. Won’t make D pay for the entire city – only for the first building iv. Want to deter N fire starting – rule should reach the first building that is not your own d. Berry v. Sugar Notch Borough (Pa. 1899) (p. 440) i. P claims D was N in caring for his tree – P was speeding down street & tree fell on his car
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ii. P says “but for the N of D, tree wouldn’t have fallen” iii. D says “P is cont. N” – if he hadn’t been speeding, he wouldn’t have been harmed iv. Speeding is not the proximate cause of injury – tree falling is not harm within the risk v. Three ways to frame same point (a) P violated a statute, but that harm was not a risk that caused enactment of statute (b) P’s cont. N wasn’t cause of the harm – not harm within the risk (c) P’s speeding was a cause in fact, but not proximate cause of harm 2. Intervening Actor a. D1 burns leaves; D2 spills gas; D1’s fire spreads & burns down P’s house i. N intervening acts are more likely to be seen as foreseeable than intentional ones ii. Georgia Ry. V. Price (Ga. 1898) (p. 442) – RR isn’t found liable to injuries for passenger who was carried past her stop, forced to stay at a hotel & was injured by a kerosene lamp iii. Hines v. Garrett (Va. 1921) (p. 442) – RR carried her past her stop, woman walked through bad part of town & was raped – RR liable iv. In Price, RR tries to fix the mistake, but Hines doesn’t try v. Harm within the risk (a) One of the risks of missing your stop is that you will get hurt walking (Hines) (b) Risk of injury from a kerosene lamp isn’t related to RR’s negligence (Price) vi. Wagner v. International Ry. (NY 1921) (p. 450) (a) RR created the risk that the cousin would fall off the train AND that someone else would try to rescue him (b) P’s own actions created the harm (c) Should at least be open to the argument of liability vii. Ross – leaving keys in the car – might fall into category 4 b. D1 burns leaves; D2 intentionally pours gas; fire burns down P’s house i. No liability for D1 – not foreseeable – intentional torts break the chain ii. If you think neighbor might do exactly this, you might be responsible (RST § 448) c. D1 burns leaves & goes away; fire spreads to P’s property; D2 pours water, but still leaves embers; P’s house burns down i. If I created a N condition, I shouldn’t be off the hook simply because someone tried to help ii. Horton (blasting caps) iii. Price (RR place woman in the care of the innkeeper) iv. Sometimes we say D1 is off the hook because of intervening actor v. D1might be off hook if the dangerous instrumentality is in hands of D2, who has special knowledge (a) Don’t want to let D2 off if he takes inadequate precautions (b) D1 is deterred, since can’t count on D2 coming along vi. If you can argue that D2 had special knowledge OR D1 ended the duty of care, this can limit proximate cause d. D1 is night-watchman, falls asleep; D2 sneaks in & sets fire i. D1’s N is bad because we’re concerned about what D2 did (RST § 449) ii. Night-watchman’s job is to keep people from entering building and committing mischief iii. Intervening actor isn’t a superseding cause iv. Brower v. New York Central & H.R.R. (N.J. 1918) (p. 444) (a) P’s wagon hit at RR crossing, contents probably stolen, RR detectives didn’t protect P’s stuff (b) D argues that thieves intervened (c) Court – RR had detectives to protect its own property – should’ve protected P’s also e. Most limiting approach – D’s conduct is proximate cause only if solely responsible for harm 3. Foreseeability a. Unforeseen extent of injury, type of harm, plaintiff (extent of injury doesn’t help – thin shin rule) b. In Re Polemis & Furness, Withy & Co. (p. 452) i. Spark hitting the hole, igniting petrol, caused the injury – not foreseeable
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ii. Wouldn’t be worried about fire caused from a wooden plank iii. (Cooley – woman hearing sound from touching electric wires wasn’t foreseeable) iv. Once we establish your N, you’re responsible for all damages (a) If you could’ve taken precautions to prevent accident, you should pay v. Can frame D’s N in another way for liability – careless handling of cargo (oil needs more care) c. Wagon Mound (p. 471) (unforeseen kind of harm) i. Shipper negligently allowed oil to be discharged from the ship ii. Wharf owner ordered nothing to be burned or welded iii. D argues – I’ll pay for cleaning up the wharf, but not for the fire iv. Court – D not liable – something must have ignited the oil v. WM Polemis vi. WM II – ship destroyed by fire sues & wins vii. Close to making proximate cause = harm within the risk d. Palsgraf v. Long Island R.R. (NY 1928) (p. 456) (unforeseen plaintiff) i. Man trying to catch a train, guards pull & push him on, man drops fireworks, explosion causes scales to fall on P ii. Woman doesn’t recover iii. Reframe N – it’s all about the dangerous scales – other things could’ve knocked them down iv. No recovery (a) She suffered a different kind of harm – injury to person was unforeseeable (b) Passenger was an intervening actor – RR’s actions didn’t have anything to do with explosives (c) RR doesn’t necessarily know that someone has fireworks (d) Not harm within the risk (WM) v. For recovery (a) RR pushed passenger onto moving train, creating risk that packages might fall (b) Can either argue for Polemis (directness) or Hand calculus e. Two arguments: to court – so remote, as a matter of law, jury can’t find liability; to jury f. Proximate cause and N – part of what makes it un-foreseeable is that it’s not harm within risk g. As long as general type of harm is foreseeable, extent of injury doesn’t need to be (thin shin, Polemis) 4. Emotional Harms a. Fiction – no longer require physical harm – any impact is enough b. Zone of danger – P must be at risk of impact suffer some physical manifestation of emotional harm i. Polemis – once D at risk of creating physical harm, responsible for emotional harms ii. Problem – parents only recover if standing next to child when he is run over (a) But mother’s harm comes from child being killed also – same whether almost hit or not c. New rule i. P in close proximity to accident ii. P’s shock arose from sensory experience of the accident contemporaneously with the accident iii. P and victim are closely related 5. Economic Harms a. No recovery for pure economic loss if no injury to person or property b. Paying for all harm seems incommensurate i. No real sense of where liability would end ii. Ordinary insurance couldn’t cover this iii. Won’t create deterrence problems, assuming there are enough injured people iv. Net economic activity might not have decreased c. Exceptions i. Sometimes permit economic loss recovery when we are worried D won’t be deterred for N without it (a) Union Oil v. Oppen (p. 644) (1) Ps (fishermen) sued oil company for losses they suffer when oil pollution kills the fish (2) Clear existence of net social loss
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(3) If fishermen can’t sue, costs of harming natural resource won’t be internalized by company ii. Special relationships (a) Kind of people where it is predictable they might cause economic harm (b) Accountants, auditors, lawyers, real estate agents, surveyors, etc. (c) Also duty language – duty means that economic consequences for breach are foreseeable (d) People Express Airlines v. Consolidated Rail (p. 1157) (1) RR evacuated due to spill, including everything around them, along with People Express (2) It was a false alarm (3) Court allows recovery – if D doesn’t pay, will evacuate on a whim – must internalize costs (4) No recovery for passengers V. Strict Liability A. Introduction 1. N is our rule – you only pay if you are at fault 2. Who pays when there is no fault? 3. SL is always around the edges 4. SL doesn’t really make people more careful – but it might affect their activity level 5. Gehrts v. Batteen (S.D. 2001) (p. 581) a. Dog bites young girl, after asking owner if ok to pet – no recovery 6. Rule – N for tame animals; SL for wild animals 7. Categories of SL a. Blasting, wild animals, manufacturing defects for products, non-natural use, innkeepers, fires, cattle b. Common carriers (SL for property damage, but not personal injury) 8. Do categories make sense? a. If something stolen from hotel room, most likely explanation = staff stole it – innkeeper can find out b. If your person is injured, you’re more likely to know what happened and have evidence c. For fires, most of the evidence is usually destroyed d. Creates incentive for people to share information – tell neighbor that pond floods (Rylands) B. Abnormally Dangerous Activities 1. Spano v. Perini Corp. (NY 1969) (p. 589) a. Blasting is abnormally dangerous b. Non-reciprocal risk – most of us never engage in blasting – based on fairness / corrective justice c. Instrumental rationales – destruction of evidence & accuracy concerns d. Goal – deterrence and reduction of accident costs 2. Indiana Harbor Belt R.R. v. American Cyanamid Co. (7th Cir. 1990) (p. 599) a. If you are shipping Acrylonitrile, SL doesn’t apply – more of a standard than a rule b. Posner believes N is feasible here – shipping could be made safe – human carelessness caused spill 3. N regime = SL for victims, when harm caused non-negligently 4. Sometimes there is argument that SL should be imposed on victim, if victim has informational asymmetry 5. Even if activity is really dangerous and not common, SL might not apply, if it’s important enough 6. 3rd Restatement responds to 2nd Restatement a. Gets rid of complicated balancing factors b. Only two factors used: i. Still a risk of harm, even if reasonable care used (a little danger might be ok) ii. Not a matter of common usage c. Factor “f” – value to community – completely eliminated 7. Assumption of risk – if you have overt assumption of risk, you don’t recover (§ 523) – if you are knowingly and unreasonably taking on the risk (§ 524) a. But many jurisdictions won’t let it be a defense b. If it’s only my sensitivity that means I’ve been harmed, 524 suggests I don’t recover at all c. Madison (p. 635) – mink farm i. We’re usually not worried about minks when blasting
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ii. But minks are known to be frightened by loud noises iii. Should encourage information sharing VI. Products Liability A. Historical Origins 1. Winterbottom v. Wright (England 1842) (p. 655) a. D supplied coaches for Postmaster; P was driving coach & injured when latent defect broke coach b. P sues manufacturer – might not be able to sue govt., what exactly did Postmaster do wrong? c. Two theories, both rejected – manufacturer only owes duty to immediate purchaser i. General theory – there is a duty to this driver in maintaining coach safely ii. Contract theory – specifically contracted to have this duty 2. U.S. rule same, except: imminently dangerous, guest use by invitation, if seller knows and doesn’t notify 3. MacPherson v. Buick Motor Co. (NY 1916) (p. 657) a. D manufacturers cars, sold one to retailer, who sold to P b. P claims wheel made of defective wood – reasonable inspection would’ve uncovered defect c. Does D owe duty of care to anyone but immediate purchaser? – yes d. Cardozo finds kernels of broader principles in old case exceptions e. “If nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger” 4. Escola v. Coca Cola Bottling Co. of Fresno (Cal. 1944) (p. 665) a. Coke bottle explodes and injures waitress b. Must show – this tends to happen with N & this is more likely to happen with N than any other reason c. Traynor (concurring) admits that SL is radically different i. Loss-spreading (a) It’s better for manufacturer to internalize the costs & we all pay a bit more (b) Critique (1) Maybe it proves too much – why limit to manufacturing defects? (2) P can self insure – consumers might rather have cheaper Coke ii. Administrative efficiency (a) P might not be able to prove N – inaccessibility of evidence (b) SL might be error-reducing strategy – if most of the time this happens with N (c) RIL fits here too (1) RIL – what we are about is N – we won’t make you prove it (2) SL – this is about accidents where there is no N iii. Loss minimization – manufacturers can better reduce hazards 5. Restatements a. Second i. Standard? – sec. 2(a) – this rule applies even though seller exercised all possible care ii. Who? – manufacturer, retailer, distributor (not gifts or occasional seller) iii. Products only iv. Unreasonably dangerous products (I can buy a sharp knife) v. Can’t get off simply with a warning, instead of making product safer vi. Later defect stops liability, as does knowing about risk and using it anyway vii. Almost opposite theory as abnormally dangerous activities b. Third i. Unreasonably dangerous – sounds N-like ii. Must be something wrong with the product iii. Manufacturing – SL (a) Hard to show what went wrong on assembly line (b) Manufacturer gets to set its own norm iv. Design – N (could foreseeable risks of harm been reduced or avoided?) v. Warning – N (could foreseeable risks of harm been reduced by reasonable warnings?)
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B. Manufacturing Defects 1. Central question – whether or not defect & whether or not product caused the harm 2. Speller v. Sears (p. 697) a. Two theories for fire: P – refrigerator; D – stove b. If refrigerator caused fire, was it defective? – parties assume so c. Must exclude other causes d. P shouldn’t have to do more – go to jury 3. Other cases – banana peel, escalator (Culminares), Hirskowitz, Summers 4. Allow circumstantial evidence, but not completely speculative C. Design Defects 1. Consumer expectations test – what would reasonable consumer have expected from the product? a. But consumers might not be the best judges – might expect too much or too little safety 2. Three difficulties in determining design standards a. No clear standard for comparison b. Danger might be better attributed to user c. Consumer choice – safety costs more 3. Risk / benefit analysis – usefulness, safety, likelihood/seriousness of injury, substitute product, cont. N 4. Patent defects (open and obvious) a. Campo v. Scofield (p. 702) – patent defects aren’t defects at all b. Modern approach – consider it a factor 5. Volkswagen of America, Inc. v. Young (Md. 1974) (p. 704) a. D hurled into back of car and ends up dying b. Defect, if there is one, didn’t cause the crash (secondary collision) c. Could say: manufacturers have to design cars that won’t likely crash, not crash-worthy cars d. Court doesn’t like crash-worthiness doctrines e. N standard used 6. Linegar v. Armour of America (8th Cir. 1990) (p. 721) a. Highway patrolman killed during traffic stop – jury found bullet-resistant vest defectively designed b. Was product designed defectively when put to a reasonably anticipated use? c. Many of us, even with full information, will choose less safety to get a cheaper product d. Court – reversed – limitations of vest were obvious D. Failure to Warn 1. Tobacco litigation history a. First wave (1950s) – unsuccessful b. Second wave – 1983-1992 i. Tobacco companies argued – Ps assumed risk (Cigarette Labeling Act pre-empted state court claims) ii. Not entirely unsuccessful c. Third wave i. Class actions – consolidated lawsuits on failure to warn on addictive properties ii. State healthcare reimbursement (a) Brought on equitable grounds of unjust enrichment (b) Settled for $264 billion iii. Secondhand smoke claims – flight attendants settled for $350 million iv. Individual claims – some recovered 2. American Tobacco Co. v. Grinnell (Tex. 1997) (p. 1) a. Court doesn’t buy theory that P wasn’t warned about general health effects b. But P can at least make an argument that he wasn’t warned about addictive properties c. Would warning have made a difference? – heeding presumption that it would d. Subjective standard i. Prevents RM problem ii. Raises problems of proof
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iii. Helps Ds frequently – reasonable people might’ve heeded warning, but you’re not reasonable 3. Graves v. Church & Dwight (N.J. App. 1993) (p. 6) a. P’s smoking leads court to conclude that he wouldn’t heed the baking soda warning b. Not quite a reasonable conclusion – could’ve become addicted early, but become a warning heeder 4. Liebeck v. McDonald’s Corp. (1995) (p. 15) a. It’s concerning that you could be this burnt by coffee b. Some people clearly get utility out of super hot coffee c. Why did P get to jury, while McMahon didn’t? – provided evidence that coffee was 20 degrees hotter 5. McMahon v. Bunn-O-Matic Corp. (7th Cir. 1998) (p. 11) a. Burnt plaintiff doesn’t recover b. Information is cheap to provide, but probably not effective c. There is a limit to how much warning you can put on there d. If the warning can fix the problem, great e. If warning won’t make it safe, the product might be defectively designed 6. Pharmaceuticals – used to, manufacturer had to warn doctor, who would warn patient 7. Obesity lawsuits – seems like attempt to use tort as regulation VII. Tort Reform A. Gallanter – hostile to tort reform 1. Compensation of victims a. Over i. Hard to evaluate real damages ii. D will settle non-meritorious suits quickly b. Under i. Winners must subsidize the losers ii. High stakes suits have the best lawyers – high costs 2. Deterrence a. Over i. Jackpot awards may force people out of business or products off the market ii. High transaction cost – only half of every dollar goes to P’s recovery b. Under i. Many people fail to file valid claims ii. If you were negligent, but in a way that I could imagine myself being, I might not sue c. Tort may be deterring innovation or taking valuable products off the market B. Proposed reforms 1. Change evidentiary standards – clear and convincing evidence – something more than preponderance 2. Change damages rules a. Caps on pain and suffering b. Change collateral source rule – if expenses are paid by insurer, don’t recover that i. Common law – didn’t consider collateral sources 3. Modify joint and several liability – attempt to have juries separate out causal responsibility across parties 4. Limit punitive damages 5. Give some industries full or partial protection from tort liability (Sept. 11 victim fund) 6. Make other kinds of regulation have preemptive effects