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                                               I. THEORIES OF TORTS
1. Instrumental: Perry is often critical of this school, which is often clearer but doesn‟t provide the fairest or most
consistent result. Association w/ Law and Economics school.
         Posner- law should maximize efficiency; market deterrence. Result oriented.
         Coase (economist)- All actions have mutual causation and reciprocal costs. No actor/victim dichotomy. Costs
            should be and are shared b/t parties. Entitlement should be given to party who values it most, to reduce
            transaction costs, but they‟ll bargain for it anyway. Maximizing productivity and thus social good.
         Learned Hand- If B>PL, then no liability. Minimize costs.
         Calabresi- strict liability for enterprises, based on loss spreading, b/c price of a product should reflect all of
            its true costs to society.
2. Relational- Moral Theory of Negligence- actions should satisfy categorical imperative.
         Holmes- negligence based on foreseeability.
         Epstein- moral libertarian; tort law is a comparison of responsibility, b/t  and , for bearing loss [strict
            liability for own actions] More process oriented. Negligence is immaterial. Price of good should reflect its
            true costs to society.
         Cardozo
         Andre ws- Strict liability for negligent act (Palsgraf dissent)
         Weinrib- the plaintiff had to be within the class of persons whose rights were foreseeably affected by the
            defendant's unreasonable creation of risk. Instrumental approach is immoral.
Application of Theories
         Bamford v. Turnley(1862 UK)- Kiln built by  bothered neighbor. Ct held for .
         Utilitarian calculus : fairness requires party that gains from creating public good to compensate losing party
            (b/c if it‟s in public good, there‟s net benefit), and if there isn‟t net benefit, it isn‟t in public good, so  should
            be compensated (compensation either way, like strict liability).
                                               II. STANDARD OF CARE
Conduct that falls below the standard of care that a reasonable person would demonstrate under similar circumstances.
To be determined by jury(?)
Evolution of Fault Standard:
        Fault Standard: Proof of fault, negligent or intentional, becomes a the basis for a cause of action.
        Brown v. Kendall(1850 MA)-  accidentally hit  w/ stick while breaking up dog fight. No liability when
           lawful actions are performed in a reasonable and proper ma nner. (Overrules old standard of Trespass, whose
           strict liability discouraged action and stifled industry in general.)
        Weaver v. Ward(1616 UK) Man shot while crossing firing range. Evolution of fault standard: “No man shall
           be excused of a trespass except that it may be judged utterly without his fault.” In other words,  was author
           of own misfortune. Inevitability as a defense allowed negligence in through the back door.
        Reynolds v. Clarke(1726 UK)- Indirect harm, when  left log in highway, wasn‟t covered in “Case”.
A. Fault v. Strict Liability: History and Theory
        Strict Liability & Negligence: Strict liability is not based on negligence; it‟s based on an absolute duty to
           duty make something safe.
        Hammontree v. Jenner(1971 CA)- Epileptic driver not liable for auto wreck b/c he wasn‟t negligent in
           driving w/ doctor‟s approval. No strict liability in auto cases; loss lies where it falls.
                                             B. THE STANDARD OF CARE:
1. THE STANDARD OF CARE- Standard of care is doing (or not doing) what a reasonably prudent person would (or
wouldn‟t) do in a similar situation.
    a. ELEMENTS OF A TORT OF NEGLIGENCE
        1) Duty of Care: concerned with relationship between the parties. Did one party have obligation to look out
           for the other?
        2) Breach of Standard of Care: distinct theoretical requirement (see below)

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         o  put to jury as what a reasonable person would have done.
           3) Plaintiff Must Suffer Loss
           4) Causation Requirement: ‟s loss must have been caused by , as determined of fact.
           5) Proximate Causation: asks questions about nature of the chain of causation. Is chain of causation of the
            right kind, such that a judgment of liability is warranted? How responsible is  for his role in chain of events
            as it relates to injury to ? (this is a question of policy or principal)
     b. DEVELOPMENT OF STANDARD OF CARE:
          Chicago v. Krayenbuhl(1902 NE)–children playing on RR turntable, one loses his leg; lock is so cheap that it
            should be used; public good demands it. [like Hand formula?]
          U.S. v. Carroll Towing (1947)-  let ‟s boat crash b/c he didn‟t attend to it.  was thus liable, because
            burden didn‟t outweigh PL.
          Learned Hand formula: B>PL. where burden of protection against an accident is higher than probability
            of injury times injury‟s cost (loss),  isn‟t liable. Creates incentive for lowest cost avoider to be responsible
            for precaution. Difficult to apply in real world. [Posner prefers this system to regulation.]
         o Proble ms with Learned Hand Formula:
                          Hard to assess the factors- probabilities are uncertain; it‟s costly.
                          Value of life- works in the middle, but not in the extremes (Ford Pinto case)
                          Instable- very different results when numbers are close (could go either way- Epstein)
          
 Grimshaw v. Ford Motor Co. (1981 CA) Cost of prevention was more than cost of damages. Hand formula
            would have said no negligence. Clearly unacceptable to society. Punitive damages tip BPL in favor of
            prevention by artificially increasing liability for injury.
          Defenses and Qualifications of Hand Formula:
                    McCarty v. Pheasant Run(1987 7th ) Guest assaulted in hotel room; claims should have a better lock;
                    Posner says jury gets to use the Hand formula roughly even though exact numbers available and ct.
                      can‟t set aside. Posner: Hand formula has “greater analytic than operational significance.”
                    Posner is endorsing Hand formula and responding to criticism that it is unexact. 

                    Moisan v. Loftus: AA- Hand says #‟s will never be precise enough to evaluate neg. through his
                      formula. 

          Bolton v. Stone(1951 UK) Cricket ball hits woman in alley not commo nly used; standard of negligence not
            met. Accident was not reasonably foreseeable. [like Hand formula, but only uses PL, not B]
    c. FORESEEABILITY:
          Adams v. Bullock(1919 NY) Cardozo-  not liable b/c it wasn‟t reasonably foreseeable that boy would swing
            whip underneath bridge and get shocked; thus no negligence.
          Braun v. Buffalo(1911 NY) danger of uninsulated wires was foreseen, so  was liable for failure to take
            further precaution.
          Green v. Sibley(1931 NY) Cardozo: mechanic not liable when customer tripped over his leg while he was
            kneeling b/c that was beyond the requirement of ordinary precaution.
          Bolton v. Stone(1951 UK) Rare cricket home run hit  in head. Harm not reasonably foreseeable;  didn‟t
            create substantial risk.
          The Wagon Mound II(1961 UK)  only recovers for foreseeable damage to wharf, not for fire.
                                      2. THE REASONABLE PERSON- Decided by jury.
          The reasonable person sets the standard of care; the jury defines it.
          NSPCA v. Hudson(UK)- Dog pee on electric fence. Because reasonable perso n should have foreseen the risk,
            it‟s unimportant that  may not have [note-this was a criminal case]
         o Objective standard (generally used in Tort Law)
         Judge or Jury Question?
          B & O Railroad v. Goodman(1927)-  should stop & look both ways before crossing. Railroad owed  no
            duty of care. Holmes: judges should take decision away from jury when he sees same cases repeatedly and
            determine standard himself [overturned in Pokora].


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        Pokora v. Wabash Ry.(1934 US)- Obstructed view RR crossing. Cardozo: there was little  could‟ve done
         w/o ‟s bell/whistle. Overturns Holmes‟s rule that railroad owed no duty of care. Criticizes Holmes‟s judicial
         rulemaking.
        Akins v. Glen Falls(1981 NY) School owed no duty to protect spectators on 3 rd baseline from foul balls, so
         no negligence. Didn‟t go to jury.
       Common Carrie rs:
        Bethel v. NYC Transit (1998)-  hurt when bus chair collapsed under him. Common carriers (in NY) no
         longer held to higher standard of care; reasonable person would use extra caution in high risk situations, so no
         need for higher standard.
        Andrews v. United Airlines(1994 9th ) Falling luggage. Heightened duty for common carrier to protect  as
        long as it‟s practical to do so (other airlines did).
      Mental Impairment:
       Roberts v. Ransbottom(1980)  has stroke and drives impaired, causing damage.  liable b/c he had some
        control, since he‟s still conscious. Holmes: objective standard- no need for capacity, as long as you‟re
        conscious. Total lack of consciousness needed.
       Bashi v. Woodarz(1996)- mental illness not an excuse; sudden mental deficiency (“wigging out”) doesn‟t
        excuse from standard of care.
       Vaughan v. Menlove(1837)- same standard regardless of intelligence
       Superior Attributes- higher degree of knowledge creates a higher standard of care than a normal person.
      CHILDREN- objective standard of care based on age and experience.
           But, when kids do adult things (e.g., drive a car) they‟re held to adult standards.
      o Mastland v. Evans(1993 IA) Develops Two part test: 1st subjective – what was capacity of this particular
        child, given age, experience & intelligence, the 2nd objective – how would reasonable child of like capacity
        have acted?
      o Ellis v. D’Angelo(1953 CA) 4yr hold sued for neg push babysitter to floor; ct says that 4 yr olds don‟t have
        mental cap for foresight by which they could be found negligent. (Some states just draw neg line at 6 or 7 yrs,
        & use rebuttable presumption from 7 to 14.)
      o Dellwo v. Pearson(1961 MN) – EXCEPTION – 12 yr old driving boat, unfair to public to allow a minor
        involved in adult activity not to be held to any standard of care; ct holds in op of car, plane, or powrbt, minor
        is held to same SOC as adult.
      o Goss v. Allen(1976 NJ) 17 yr old skier hits . ct. says skiing is activity of all ages; not adult activity so held to
        minor standard; court recognizes that 18 is an arbitrary line, but all age lines would be.
      o Stevens v. Veenstra(1997 MI) 14 yr old held to adult standard when taking first driver‟s ed class; learning sit
        doesn‟t supercede the dangerous nature of the activity, & the reason for holding a minor to the adult standard.
    EMERGENCY DOCTRINE- Levy v. DeNardo(1999) Reasonable standard of care is lower in emergencies; only
        honest exercise of judgment required. [being phased out]
       Rest.§892D- Emergency Action w/o Consent- No liability for injury, even w/o consent if:
       (a) Emergency makes it necessary or apparently necessary, in order to prevent harm to , that  act before
        there‟s opportunity to obtain consent from  or one empowered to consent for him, and
       (b)  has no reason to believe that , if he had the opportunity to consent, would decline.

2. ROLE OF CUSTOM- did custom reasonably induce reliance by ? did it excuse ?
       Custom can raise standard of care but not lower it.
       Trimarco v. Klein(1982 NY) Glass shower door. Jury decides what custom is and if it‟s reasonable for  to
         rely on it or for  not to follow it.
       Levine v. Russell(1937 NY) Rough rope on dumbwaiter. If  shows custom of using smooth rope is to avoid
         these kinds of injuries the evidence is admissible. If they use it for another reason (i.e. faster), not admissible.
       TJ Hooper(1932 2nd) Tug sank; it didn‟t have radio. Even though custom was to not have radio, it fell below
         the standard of care. Custom is a floor, not a ceiling; it has to be reasonable. Universal disregard isn‟t an
         excuse.
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         Robinson v. D.C.-  hit by police van while jaywalking. Common violation of statute doesn‟t excuse liability.



  3. ROLE OF STATUTES- Violation of statute isn‟t negligence per se
      Harm caused must be type of harm statute intended to prevent, and  must be in class protected by statute.
      Rest §286: Violation of criminal statute determines civil liability only b/c the court accepts it as setting the
         standard of care-
      Martin v. Herzog(1920)-  had no headlight, despite statute. Cardozo uses negligence per se rule. Doesn‟t go
         to jury.
     When does Statute Create Liability?
      Clinkscales v. Carver-  runs unauthorized stop sign. Violation of criminal statute determines civil liability
         only b/c the court accepts it as setting the standard of care- Rest §286. Sign induced reliance.
      R EST. §874A- Duty Created by Statute: When a statute protects a class of people or protects from a type of
         harm, the court can impose a duty in tort when that interest is violated by .
      Uhr v. East Greenbush School(1999 NY)-  school failed to perform scoliosis tests required by statute, but
         statute didn‟t create civil liability for school [public policy argument] Sheehy test:
     o is  part of class intended to be protected by statute?
                       Would recognizing private right of action promote legislation‟s purpose?
                       Would creation of right of action be consistent w/ legislative scheme?
 Excuses: R EST. § 288A. Excused Violations: Violation is excused for lack of capacity (Bassey), ignorance,
     emergency, or when compliance would increase harm (Tedla).
     When Statute Increases Risk:
      Tedla v. Ellman(1939)- ‟s walk on wrong side of hwy. When statute increases risk of harm it tries to avert,
         it isn‟t standard of care- Rest. §288(a)
     When no Capacity to follow Statute:
      Bassey v. Mistrough- rear ended w/o lights on b/c electric failure. Violation of statute excused in lack of
         capacity.
     When violation of statute is Customary:
      Robinson v. D.C.-  hit by police van while jaywalking. Common violation of statute doesn‟t excuse liability.
     When harm is Outside Purpose of Statute:
      Platz v. City of Cohoes(1882) Sunday driving. Violation of statute is only negligence if harm to  is what
         statute tried to prevent.
      Gorris v. Scott (1874 UK) – Statute required sheep pens to prevent disease outb reak, not washing overboard,
         so no liability.
      DiPonzio v. Riordan- car ignition on at gas station rolls into guy; ct rules that stat was meant to prevent fires,
         not accidents.
      Rushink v. Gerstheimer (1981 NY)- stole ‟s car b/c keys left in ignition and crashes. Statute to prevent
         theft, not wrecks.
     Secondary Intent of Statute:
      DeHaen v. Rockwood Sprinkler(1932)- Radiator falls down shaft. Cardozo: violating a statute is negligent
         even if averting that precise type of harm is only a secondary purpose of statute.
      LICENSING: Brown v. Shyne (1926 NY) – chiropractor hurt patient using treatment only licensed M.D. could
         perform; ct held  to standard of M.D., but that jury should not be told about violation of licensing statute.
     When compliance with Statute isn’t Sufficient:
      Alvarado v. J.C. Penney (1990 KS)–  burned, nightgown burned b/c of open gas heater;  claimed
         compliance with KS Product Liability Act; court found “compliance with regulatory standard was not
         conclusive.”
      Edwards v. Basel Pharmaceuticals (1997 OK) – smoker dies of nic induced heart attack while smkng &
         wearing 2 nic patches; D said compliance with FDA warning req‟s should suffice; ct held that compliance not

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         necessarily = no liab, ‟s duty to consumer “is governed by the common law of that state, not the regulations
         of the FDA.” Statute is floor, not ceiling.
      Hubbard-Hall Chemical v. Silverman (1965 1st) 2 migrant farm workers killed by contact w/ insecticide;
         Dept. of Ag found warning labels conformed to Cong reqs; did not elim liab; jury could reasonbly fnd neg b/c
         warning insufficient (no skull logo, just English).
                                            D. PROOF OF NEGLIGENCE
 SLIP and FALL CASES
     When  had NOTICE:
      Negri v. Stop & Shop (1985 NY) –  fell in store, mess could have been there for 2 hrs, store had notice or
         could have discovered, no reason to dismiss case.
      Howard v. Wal-Mart (1998 7th) – Q was whether  had provided enough ev for which a jury could find
         puddle of soap was from another employee rather than from another customer. Posner: ev tipped in ‟s favor
         “only by a hair‟s breadth,” & then dissertated on whether this was enough. Note: damages in this case were
         $275k.
     When  had NO NOTICE
      Gordon v. American Museum of Natural History (1986 NY) –  fell on steps, no actual notice of waxy
         paper. Constructive notice requires a “defect must be visible & apparent & it must exist for a sufficient length
         of time prior to the accident to permit defendant‟s employees to discover & remedy it.” Paper was not dirty or
         worn, could have just blown there. General awareness of litter does not constitute notice. Complaint
         dismissed.
      Faricelli v. TSS Seedman’s (1999 NY) –  slipped on blackened banana peel; but ct said insufficient proof of
         notice.
     Evidence of Notice:
      Moody v. Haymarket Assoc’s (1999 ME)-  S&F on wet floor sued for not drying or warning; evidence
         saying area had been free of accidents for 2 yrs prior was not admissible. Question is what happened that day.
     Business Practice Rule:
      Randall v. K-Mart (1998 2nd)-  S&F on birdseed couldn‟t prove constructive notice, invoked “business
         practice” rule that says that certain business practices create “foreseeable risk of harm to invitees.” VT ct
         found that under those conditions merchant was obliged to anticipate danger. But apls ct refused to apply BP
         rule since no ev on how birdseed was sold, no way to know how self-service birdseed would create a
         foreseeable risk.
      Lanier v. Wal-Mart (2003 KY) – ct. overruled precedent that when S&F on wet spot in self-serve store,
         burden shifts to store to “negate inferences of negligence.”
                                                        RES IPSA
     R EST. 328(D) RIL: 1) Past experience shows that such harm usually don‟t occur w/o negligence; 2) Basis of past
     experience is common knowledge, but expert testimony can aid in specialty cases.
      Byrne v. Boadle (1863 UK) – S EMINAL CAS E: Barrel of flour falls on  form 2nd floor of shop;  could not
         present specific ev as to accident. Ct finds that store had a duty to keep barrels from rolling out & that a barrel
         could not roll out with some negligence. Doctrine of RIL: burden shifts to  to prove no negligence.
     3rd Party Qualifications to RIL:
      Larson v. St. Francis Hotel (1948)  ped hit by chair thrown from one of ‟s hotel rooms;  proved injuries
         & rested; ‟s motion for nonsuit granted. Could 3rd party have been a superceding cause? Not directly
         analogous to barrel rolling out of warehouse.
      Dermatossian v. NYC Transit (1986)  must show no 3rd party negligence -  hit head on defective grab
         handle on bus as standing up to leave bus, presented no ev of neg. No RIL:  did not establish that  had
         control of the grab handle to sufficiently show that defect was caused by another passenger.
      Connolly v. Nicollet Hotel (1959) But duty to control 3rd party danger?: Nat‟l JrCCom takes over hotel;
         management knew things were being thrown out windows for days before accident; manager sent memo
         saying to turn other cheek; following night ped hit by object lost eye; ct majority found for  saying hotel


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       took no steps to ameliorate known danger (i.e. increased patrolling). Dissent, relying on Larson, said not
       management‟s resp. to patrol every patron.


    RIL Explained & Destruction of Evidence
     McDougal v. Perry (1998 FL) -  hit by loose tire from truck; RIL is a rule of evidence that provides an
       inference of negligence– requires (1) thing be under ‟s control, (2) accident would not have occurred in the
       ordinary course of events w/o neg on the part of the  in control. An injury does not indicate negligence; 
       may use RIL in rare instances in which acc would not have occurred w/o neg. Many accidents occur w/o neg.
       In this case, spare tire flying through air is the type of accident, based on common experience & gen‟l
       knowledge, would not occur “but for the failure to exercise reasonable care by the person who had control of
       the spare tire.”  is not required to disprove all other theories of accident when evidence is available. In this
       case, chain & securing device were in possession of  & weren‟t preserved.
     Leonard v. Watsonville Hospital (1956) – CAN  beat RIL & get JAML? – 6 in. clamp left in . Ct initially
       held RIL applied to 3 md‟s, surg nurse, & hosp. Ct then took testimony that showed that 3 rd doc didn‟t use
       this type of clamp, so case against 3rd doc dismissed.
     Abbott v. Page Airways (1969) – Res Ipsa & NEG AT SAME TIME? ‟s husband died in helicopter
       accident; ‟s seeks RIL from accident & neg from pilot‟s drinking. Can  use both RIL & attempt to prove
       neg? Yes. Most courts agree.
     Fowler v. Seaton (1964 CA) – impact of modern discovery: 4yr old gets concussion at nursery; enough for
       RIL? Majority says yes, dissent says discovery could have obtained ev to show neg or not.
     Helton v. Forest Park Baptist Church (1979 Ky) – BUT SEE – 2 ½ yr old gets eye injury at church child
       care; RIL? No. Ct said, RIL “inapplicable where the instrumentality producing the injury or damage is
       unknown or is not in the exclusive control of the .”
     Ybarra v. Spangard(1944 CA)- ‟s shoulder injured during appendectomy. Res ipsa can be proven
       circumstantially, and shifts burden of proof to the multiple ‟s.
     Barrett v. Emanuel Hospital (1983 ) – YBARRA REJECTED – (1) modern discovery casts doubt on need for
       this approach, (2) RIL should only be allowed to infer neg on a particular defendant, (3) special protections
       for unconscious patients could be provided in other ways, i.e. strict liability, respondeat superior. Cmplt
       dismissed. Similar dismissal in Spannaus v. Otolaryngology Clinic (1976) – sim fx to Ybarra, except anesth
       was not sued.
     Firemen’s Fund Amer. Ins. v. Knobbe(1977 NV)- LIMIT OF YBARRA - Ins co seeks to recover for fire
       payments made to hotel after room fire from ‟s smoking in room;  seeks RIL, can‟t say which  caused
       fire. Ct held for ‟s & rejected Ybarra, agreeing with Traynor who dissented in Raber v. Tumin & warned
       against extending Ybarra too far b/c under Ybarra  hit by falling flower pot from bldg may recover against
       all tenants if unable to ID who dropped pot.
     Inouye v. Black (1965) – BUT ONE D MAY PROVE NOT NEG - stainless steel wire in P‟s neck; wire
       fractured & caused damage; RIL inap b/c common experience showed D‟s neg as one of several possibilities,
       but not probability; Hosp may have damaged wire; non-suit upheld for surgeon on ev that he did all right.
       Note: Result may have been diff if all poss D‟s before court.
     Judson v. Giant Powder Co. (1895) – WHAT IF NO EV TO REBUT? - D‟s nitroglycerine factory explodes,
       killing all who could have explained what happened. P, whose prop damaged, seeks damages; ct. held ev suff
       to withstand nonsuit.
                           E. THE SPECIAL CASE OF MEDICAL MALPRACTICE
    Res Ipsa (see RIL section for more)
     Robbins v. Footer(1977 DC)- Customary practice of doctors is dispositive. Rest.§328D (RIL) encourages use
       of expert testimony in med mal res ipsa cases; doc‟s held to general professional standard of care.
     Ybarra v. Spangard(above)- res ipsa- Hurt shoulder in unrelated surgery (see RIL section)



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      States v. Lourdes Hospital(2003 NY)- ‟s arm hurt while unconscious for surgery. Expert witness can testify
       regarding first part of res ipsa test, that accidents of this kind don‟t normally occur w/o negligence, „bridging
       the gap‟ between common lay knowledge and common knowledge among specialists.
    Standard of Care in Med Mal:
     Sheeley v. Memorial Hospital(1998)- Customary Practice: OB/GYN testified against 2nd yr resident. 1)
       Witness in med mal need not be same specialty as ; standard of care for a procedure is same no matter what
       specialty you are. 2) Similar locality rule (for customary practice testimony) no longer applies.
     Robbins v. Footer- CUSTOMARY PRACTICE IS DISPOSITIVE (see above)
    Consent:
     Matthies v. Mastromonaco(1999 NJ)-  prescribes bed rest instead of surgery. Reasonable Patient Approach:
       objective test favoring ‟s- Physician has duty to present reasonable course of options to patient, giving
       information about risks associated with all medically reasonable alternatives wherever a reasonable patient in
       a similar situation would have considered the risks material.
    o Causation Test- if  would‟ve made same choice doc did, ‟s not liable under Reasonable Patient rule.
    o Reasonable Doctor Approach- Alternatively, many states, e.g. NY, use standard that is based on custom of a
       reasonable
     [add Ashe, etc. from bonjour]
     Morgan v. MacPhail (1997) – PA ct holds injections were not invasive; not same as surgery; need to inform
        is less.
     R EST.§892D- Eme rgency Action w/o Consent- No liability for injury, even w/o consent if:
     (a) Emergency makes it necessary or apparently necessary, in order to prevent harm to , that  act before
        there‟s opportunity to obtain consent from  or one empowered to consent for him, and
     (b)  has no reason to believe that , if he had the opportunity to consent, would decline.
                                   F. VICARIOUS LIABILITY- Makes employers supervise employees better.
       Christensen v. Swenson(1994 UT):  hit  in car while hurrying back to work to during sanctioned lunch
    break. Employer liable for employee‟s actions when:
       Birkner Test elements are met: (under respondeat superior)
             1- employee doing what he was hired to do
             2- employee‟s conduct happened during normal work hours and spatial boundaries
             3- employee‟s actions were motivated by a desire to serve employer‟s purpose
     Independent Contractors- employers not liable for independent contracts, e/ two exceptions:
     Nondelegable Duty- Employers can‟t escape some duties (X-rays, e.g., in Rossler concurrence)
     Rest§415-416- duty to supervise contractors on land held open to public is nondelegable when work is
        dangerous
     Apparent Agency: 2d Rest.§429- ‟s perception (reasonable belief) is more important in apparent agency
        than reliance. Also, see exceptions RSS 415 & 416 – duty to supervise contractors on land held open to public
        is non-delegable duty, & so is work that independent contractor is hired to perform is dangerous requiring
        special precautions.
     Rossler v. Novak(2003 FL)- Hospital claimed no liability for mistake of Radiology Dept., b/c it was
        technically an independent entity. It lists 3 criteria for apparent agency:
    o 1- employee represented as an agent of principal
    o 2-  relies on this representation
    o 3- reliance caused  detrimental harm (detrimental reliance)
                      note- if , having been given a choice, would have done same thing, then this wasn‟t a detrimental reliance, at
                       least not upon the apparent agency. [this is the counter-factual question criterion]
       Ybarra v. Spangard(above)- nurses are agents of surgeon controlling operating room, so doc‟s liable for
        nurse‟s negligence.




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III. THE DUTY REQUIREMENT: PHYSICAL INJURIES
A. Introduction
        Palsgraf v. Long Island RR(1928 NY)- Cardozo: Reasonable foreseeability case.  owed no duty of care to 
          b/c it wasn‟t reasonably foreseeable that ‟s actions would harm ; no jury question. Andrews dissent
          advocated strict liability when  is negligent. [Posner would‟ve agreed w/ Andrews but for deterrence
          purposes, using tort as criminal law punishing negligence.]
                                        B. (No) Affirmative Obligations to Act
        Rest.3d.§37- No Duty of Care when you didn’t create risk of physical harm.
            But Comment (c) points out that you look at entire act (so failing to hit breaks is an act, not an omission)
            Harper v. Herman(1993 MN)-  had no duty to warn  about shallow water, even though  knew about it,
             b/c R.§314: there was no special relationship; superior knowledge doesn‟t convey duty:
         o Rest.§314A: special relationship: common carrier, innkeeper, host, legal custodian, etc.
         Epstein “Strict Liability”(1973)- Don‟t want to force people to act; it would degrade liberty and cheapen
         altruism. We should recognize egoism (I won‟t save you when risk is only slightly lower for me)
Exceptions- Affirmative Duty Exists When:
i. Duty to Mitigate Risk or Harm You Created
          Simonsen v. Thorin(1931 NE)-  had duty to remove utility pole that he knocked down into street, even
             though it wasn‟t negligent.
         o Rest.§322- Duty to aid another harmed by actor‟s conduct.
          Maldonado v. Southern Pacific(1981 AZ)-  had duty to mitigate ‟s injury when  fell on tracks after ‟s
             train non- negligently bumped and  left  there. Rest.§322 (above)
ii. Undertaking to Help, or Creating Reliance:
          Farwell v. Keaton(1976 MI)-  beaten up badly while out w/ , who drives  around for hours and then left
             him at parents‟ house.  would‟ve lived w/o ‟s negligence.  was liable b/c [of duty of co-adventurer], and
             attempt to help creates reliance:
         o Rest.§323- undertaking to render services for another creates liability if  is left worse off
         o Rest.§324- Once you start helping someone who‟s helpless you can‟t leave them worse off.
          Zelenko v. Gimble Bros(1935 NY)-  liable for taking injured  to back room and just leaving him.
             Rest.§323 and 324 (see above).
         Failure to Warn:
          Morgan v. County of Yuba-  sheriff liable for failing to warn , despite telling  he would, of prisoner‟s
             release when he kills her.
          Tarasoff- Doctor should have warned of patient‟s intent to murder (see below)
         Utility Companies
          Moch v. Rensselaer Water(1928 NY)-Cardozo: no duty to  whose house burnt down when  failed to
             provide water to fight fire, b/c it was failure to provide a benefit (omission), not commission of a wrong.
             Public policy doesn‟t support this extension of liability either.
         o Clay Electric(2003 FL)- disagrees w/ Moch;- duty to maintain street lights
          Strauss v. Belle Realty(1985 NY)-  power company owed no duty to  hurt in common area during
             blackout, b/c  wasn‟t ‟s customer outside of his unit. Also, ct wants to avoid crushing liab ility for public
             utility. Ct is drawing line.
          Food Pageant v. Con Edison(1985 NY)- During same blackout,  liable to customer for spoiled food.
          Palka v. Servicemaster(1994 NY)- liable failure to maintain fan at hospital that fell on nurse relied on .
iii. When Third Persons Owe Duty:
    a. Misfeasance:
          Randi W. v. Muroc School(1997 CA)-  liable to molested  for negligently making affirmatively
             misrepresented about teachers sexual misconduct, even though no duty to come forward. Harm was
             foreseeable. Rest.§310- Intentional Misrepresentations
          Bryan v Watchtowe r- Church not liable to  for distress caused by its member‟s behavior; no foreseeability.

8                                                                                                                          8
   b. Nonfeasance- Doctor’s Duty to Control Othe rs?
         Tarasoff v. Regents of U.C.(1976 CA)- psychiatrist had duty to warn , murder victim, that patient was
            going to kill her. “The protective privilege [of doctor patient relationship] ends where the public peril begins.”
            [Public policy argument justifies decision where tort principals couldn‟t]
         Rest. §315(a)- Duty to Control- special relationships b/t the actor and a third person (e.g. a parent and his
            child) where third person is the one posing a risk
        Parent’s Duty to Control- Rest.§316- Parents liable if they knew or should‟ve known child presented risk and
            needed to be controlled. Not followed in Kienenberger(1993) or Brahm v. Hatch(1994).
        Doctor’s Duty to People Other than Patient
         Reisner v. UC(1995 CA)- doctor liable when he didn‟t tell patient blood transfusion had HIV and she had
            sex w/  3 yrs later, infecting him. Duty extended to .
         Pate(1995 FL)-  doctor didn‟t tell patient‟s kids their mother had genetically transferred cancer. ‟s liable to
            kids when earlier discovery would‟ve made cancer treatable.
         Taylor v. Smith(2004 AL)- Doctor liable to  hurt in wreck caused by patient to whom  prescribed drugs,
            despite knowledge she was abusing other drugs; but see:
         Conboy v. Mogeloff(1991 NY)- doctor let patient drive on drugs he prescribed. No duty to patient‟s kids
            hurt in auto crash. Perry disagrees.
         Tenuto v. Lederle Labs(1997 NY)-Doctor liable or failure to tell infant‟s dad that contact w/ baby‟s poop
            after immunization can give him polio.
        Rest.§321- Duty to Warn even if actor‟s knowledge of risk comes after act occurred.
         Tresemer(1978 CA)- Duty to warn  of problem w/ medical device, even yrs later.
         Uhr v. East Greenbush School(1999 NY)-  school failed to perform scoliosis tests required by statute, but
            statute didn‟t create civil liability for school [public policy argument] Sheehy test:
        o is  part of class intended to be protected by statute?
                         would recognizing private right of action promote legislation‟s purpose?
                         would creation of right of action be consistent w/ legislative scheme?
         Cuyler(2004 7th )-  hospital failed to notify anyone when babysitter was beating child, despite statute
            requiring it. No liability when babysitter beat child to death. No affirmative duty to warn.
         Connolly v. Nicollet Hotel (1959) Duty to control 3rd party danger: Nat‟l JCCom takes over hotel;
            management knew things were being thrown out windows for days before accident; manager sent memo
            saying to turn other cheek; following night ped hit by object lost eye; ct majority found for  saying hotel
            took no steps to ameliorate known danger (i.e. increased patrolling). Dissent, relying on Larson, said not
            management‟s resp. to patrol every patron.
    iv. Good Samaritan Statutes- protect good Samaritans for negligence (but not gross negligence), removing
          disincentive for helping people. Some go as far as to impose a duty of easy rescue, as in VT: Crime not to
          rescue; person must give reasonable assistance if w/o danger or peril to himself.
v. Social Host Liability:
         Reynolds v. Hicks(1998 WA)-  social host who gave alcohol to minor at wedding owes no duty to person
            minor hits in car. If minor had hurt himself, ‟s would be liable.
C. Negligent Entrustment:
         Vince v. Wilson(1989 VT)- grandmother liable for wreck for giving  money for car despite of failed
            driving tests and drug habit.
         Rest.§390-Negligent Entrustment: there is liability for giving someone, directly or through third party,
            something that it is reasonably foreseeable that they‟ll cause harm with.
D. Duties of Landowne rs
        Trespassers- on property w/o permission. no duty except to avoid willful injury; reasonable care in active
        conduct owed once discovered or if frequent trespasser. [special rule for kids]
        Licensee- Permission to enter onto land but not w/ expectation for a material benefit to owner (e.g. social guest,
        plumber). Duty to protect them from dangers which owner is aware of. [abolished in many states]


9                                                                                                                           9
       Invitee- on property through public invitation or b/c owner expects the possibility of a material benefit (e.g. a
       store). Owner has duty to take reasonable steps to protect invitee from dangers that are known as well as those
       that could be found through inspection, and to warn them when such dangers exist.
        Carter v. Kinny(1995 MO)-Owner not liable for bible group guest who slipped on ice in driveway b/c  was
           only licensee; thus only duty to warn of known dangers.
        Heins v. Webster County(1996 NE)- at hospital socially to visit daughter as well as to inquire about playing
           Santa. Ct abolishes distinction b/t licensee and invitee, replacing it w/ duty of reasonable care for permissible
           entrants.
        Kline v. 1500 Mass. Ave(1970 DC)-Landlord should‟ve made efforts to protect tenants from crime.
        Posecai v. Wal-Mart(1999 LA)-  not liable for  getting mugged in parking lot, b/c evidence of similar
           crimes in area didn‟t prove that this type of crime was foreseeable. Ct used balancing test to determine
           standard of care: foreseeability of harm is balanced with burden on  of preventing it.
        Boyd v. Racine(1973 IL)- Bank teller owed no duty to hostage when robber backed up threat by killing
           hostage. Ct doesn‟t want to encourage bank robberies.
        KFC(1997 CA)- owed duty to scared hostage (for emotional harm) to comply to robber‟s demands.
E. Intrafamily Duties
        Broadbent v. Broadbent(1995 AZ)- Kid sues mom for negligently letting kid fall in pool, suffering brain
           damage. No parental immunity for negligent supervision. Reasonable Parent Test: parent‟s conduct judged by
           what a reasonable and prudent parent would do in the circumstances.
        Holodook(1974 NY)-NY abolished parental liability w/ exception of negligent supervision; Zikely
           strengthens parental immunity.
        Bonte v. Bonte(1992 NH)- Mother liable to fetus for harm in utero if it‟s born alive; but see:
        Remy v. MacDonald(2004 MA)-Mother owes no duty to fetus.
        Lundman v. McKown(1995 MN)- Christian Scientists liable to child for refusing medical care for religious
           beliefs.

                       IV. THE DUTY REQUIREMENT: NONPHYSICAL HARM
Emotional loss is more like normal torts, such as harm to person, where there is a general duty to the world. Economic
loss is different from those rights. Economic interest are, b/c we‟re in a market economy, inherently vulnerable from
innumerable causes.
A. EMOTIONAL HARM
Zone of Danger: Falzone v. Busch(1965 NJ)- Car hit husband and almost hit wife, making her emotionally ill.  is
             liable b/c ‟s in Zone of Danger. Near miss was breach of duty; emotional distress was foreseeable
             consequence of breach. Emotional damage must be physically manifested.
          R.J. v. Humana(1995 FL)- is rare limit to Falzone; it required , wrongfully diagnosed w/ HIV, to receive
             medication to recover. Emotional damage wasn‟t enough (this is atypical)
          Wooden v. Raveling(1998 CA)- recovered for emotional distress for near miss from car wreck.
          Lawson v. Management Activities(1999 CA)-  denied recovery for fear of being hit when plane crashed
             near them.
          Quill v. Transworld Airlines(1985 MN)- Ct awarded damages for anxiety from being in plunging plane.
          Metro-North v. Buckley(1997 US)- no recovery for exposure to asbestos until you show symptoms.
1. Needle-Stick (HIV) Cases
          Potter v. Firestone(1993 CA)- no recovery from exposure to toxic waste until symptoms arise or fear of
             increased chance of cancer (must be at least 50%) is based medical/scientific opinion.
          Williamson v. Waldman- Eggshell Psyche  stuck by negligently discarded needle; feared getting HIV.
             Eggshell Psyche rejected.
2. Mishandling of Corpses: by hospital or funeral home causes emotional distress; recoverable w/o zone of danger.
          Gammon v. Osteopathic Hospital(1987 ME)- given bag full of body party parts after his dad died (they
             weren‟t his). Cause of action for foreseeable harm.

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3. Telegram Cases: one way or another (often by telegram),  negligently and erroneously informs  that a relative has
died.  suffers emotional distress before finding out of mistake.
         Baker v. Dorfman-recovery for mistakenly telling  he had HIV.
4. Spectators of Death and Destruction
         Portee v. Jaffee(1980 NJ)- Recovery allowed for watching son slowly die over 4 hrs stuck in elevator door.
        o Factors: ‟s negligence caused injury; relationship b/t victim and ; ‟s proximity to injury; distress from
            injury.
         Barnhill v. Davis(1981 IA)- son sees mom injured through rearview mirror. Son recovered b/c he suffered
            extreme distress b/c of witnessing what ‟s negligence caused.
         Barnes v. Geiger(1983 MA)-Mother didn‟t recover when she (mistakenly) thought child she saw killed in
            accident was hers.
         Bovsun v. Sanperi(1984 NY)- Only members of immediate family who are in zone of danger can recover for
            watching harm to family member.
         Elden v. Sheldon(1988 CA)- ct dismissed claim of emotional distress for watching harm when couple
            unmarried.
         Pizarro(2002 NY)- No claim for watching stranger decapitated.
         Johnson v. Jamaica Hospital(1984 NY)-Parents can‟t recover when baby was temporarily stolen from
            hospital. No duty to parents b/c they‟re outside zone of danger. Perry disagrees.
         Kalina- no recovery for circumcision by doctor, not moil.
B. ECONOMIC HARM
         Nycal Corp. v. KPMG(1998 MA)-  relied on ‟s audit report to buy stock.  sued  for lost money. No
            recovery.  had no duty to , b/c no contract b/t them. 3 methods to find liability:
        o Foreseeability Test: reliance was foreseeable.
        o Near Privity Test: foreseeable detrimental reliance, and relationship approaches privity.
        o Rest.§552:  must provide the info specifically for .
         Glanzer v. Shepherd(1922 NY)-  incorrectly weighed beans for ‟s contract. Recovery for detrimental
            reliance.
         Petrillo v Bachenberg(1995 NJ)- recovery for  even though he wasn‟t ‟s client.
         Barcelo v. Elliot(1996 TX)- Heirs recovered for losses from lawyer who botched will. (States go both ways
            on this.)
         532 Madison Ave. v. Finlandia(2001 NY)-  sues for economic loss when ‟s construction blocks entrance
            to ‟s store. No recovery b/c no special relationship and beyond scope of duty.
         Byrd v. English(1903 GA)-Factory shut down b/c of blackout. Exclusionary rule precludes recoery for public
            policy.
         Rickards v. Sun Oil(1945 NJ)-  damages bridge, only way to ‟s store. No recovery b/c economic interests
            are vulnerable by definition. Economic loss only protected by contract.
C. WRONGFUL BIRTH AND WRONGFUL LIFE
Wrongful Birth
         Emerson v. Magendantz(1997 RI)- Doctor negligently tied ‟s tubes. ‟s liable for increased costs of baby‟s
            birth defect, but not basic costs of baby, n/c he wasn‟t on notice of genetic history.
Wrongful Life
         Life can‟t be an injury, no matter how difficult it is or how much suffering it caused. Thus kids can‟t sue for
            being born, no matter how disfigured.
         Martinez(1987 NY)- She aborted baby on bad information from doctor. Recovery for emotional distress
            allowed.




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                                                   V. CAUSATION
                                                  A. CAUSE IN FACT
1. General
        Rouleau v. Blotner(1931 NH)- But For Test- recovery not allowed b/c ‟s negligent failure wasn‟t causal.
        Rest.§431- action is a cause if it was a substantial factor in bringing about the harm.
        Rest.§432- Substantial factor is a but- for cause, or two independently acting sufficient forces.
        NESS test: if cause is a Necessary Element of [any] Sufficient Set of actions that could have caused action.
                                              2. CAUSAL UNCERTAINTY
        Kingston v. Chicago & Northwestern Ry- 2 Fires: (1927 WI)  set on of two fires, each of which would‟ve
           destroyed ‟s property on its own had they not combined. [NESS test] If other fire had been natural, 
           wouldn‟t have recovered at all:
       o Basic Tort Damages Principal: put  in the position he would have been in had the tort not occurred.
        Dillon v. Twin State(1931 NH)-Kid falls off bridge, shocked when grabs electric wire, but would‟ve
           died/been crippled anyway. B/c electrocution wasn‟t but- for cause of death, ‟s only compensated for
           decedent‟s pain from shock. [actually a damages case]
        Haft v. Lone Palm Motel(1970 CA)- Failure to obey statutory requirement of lifeguard or warning sign
           shifted burden to  of proving it‟s negligence wasn‟t causal. [not good law]
        Zuchowicz v. U.S.(1998 2nd)-Calabresi:  negligently prescribed  overdose; she contracted rare disease, but
           not enough data to prove it. Expert speculation about causation allowed. Also:
       o if (a) a negligent act was deemed wrongful b/c that act increased the chances that a particular type of accident
           would occur and (b) a mishap of that very sort did happen, this was enough to support a finding of causation.
           [burden shifted]
       o General causation can be a substitute for actual causation. Like res ipsa, or strict liability for negligence. Perry
           disagrees.
        Basko v. Sterling Drug(1969 2nd) blinded when taking 2 drugs. Unclear what caused it. Burden shifts to ‟s.
Loss of Chance- must be material & substantial result of breach of duty (e.g., not 2%);  must‟ve actually suffered loss.
        Alberts v. Schultz(1999 NM)- seeks to recover chance lost by doctor‟s negligence in delaying treatment.
           Concept valid in NM, but not in this case b/c no proof of causation.
        Beswick v. City of Philadelphia(2001 PA)-Negligent 911 operator reroutes ambulance. Decedent lost of 34%
           chance of survival; jury decides if that‟s material. See Rest.§323.
        Perry Article- risk, in and of itself, is not a tort. Harm must result.
3. Multiple Defendants
        Summers v. Tice(1948 CA)-  shot in face when 2 ‟s shoot in his direction. No way to know which .
           Burden of proof shifted to ‟s.
        Hymowitz v. Eli Lilly(1989 NY)-‟s mothers all took drug causing cancer in ‟s. No way of knowing which
           manufacturer caused specific injury. Only several liability; not jointly liable. NY doesn‟t allow exculpation.
       o Market Share Theory: each  is liable for the percentage of the damage to each  that corresponds with its
           percentage share of the national market. From Sindell, which bases market share on national market.
4. The Indeterminate Plaintiff
        Agent Orange(1984 NY)-‟s were Vietnam vets who were exposed. Each member received amount of full
           recovery multiplied by increase in risk of cancer.
5. The Special Case of Toxic Harms
       Ct generally may not make  pay for monitoring costs, to save money for actual victims.
                                                 B. PROXIMATE CAUSE
        First establish cause- in-fact. Generally, harm must fall w/in scope of risk that made ‟s conduct negligent.
1. Unexpected Harm
        Benn v. Thomas(1994 IA)- is liable for unforeseeable heart attack resulting from rear-ending  w/ heart
           condition:
       o Eggshell Plaintiff Rule: Negligent  takes  as he is, even if condition leads to unforeseeable injury.
        Steinhauser v. Hertz(1970 2nd)-‟s schizophrenia set off by car wreck caused by negligent .
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       o Eggshell Psyche: Emotional harm included in eggshell  rule
        Pridham(1976 NH)-  liable when  injured by  is further injured in ambulance wreck on way to hospital.
        Wagner v. Mittendorf(1922 NY)- liable when he caused ‟s broken leg and  re-breaks leg when crutch
          slips later.
        In re Polemis(1921 UK)- drops plank into ‟s hold, causing spark which wasn‟t reasonably foreseeable and
          caused fire, destroying ship.  found liable b/c damage was foreseeable from negligently dropping the plank,
          even if this type wasn‟t.
        The Wagon Mound II(1961 UK)- negligently dumped oil in harbor. 2 days later, spark from ‟s ship sets
          oil on fire and destroys ‟s ship; oil also foreseeably damaged wharf.  only recovers for foreseeable damage
          to wharf, not for fire.
        Smith v. Leech Brain(1962 UK)-  burnt on lip by ‟s negligence.  liable for cancer b/c injury to lip was
          foreseeable, even if cancer occurred b/c  was predisposed to cancer. Wagon Mound is only an exception to
          eggshell  rule.
2. Superseding Causes
        Sufficiently egregious or intentional activity (often criminal acts) can break the chain of causation, unless
          superceding cause was foreseeable.
        Berry v. Sugar Notch Borough(1899 PA)- Darting Out- Speeding trolley wasn‟t liable to  when tree fell
          on him in trolley; even though speeding was but-for cause, it wasn‟t proximate cause.
        Doe v. Manheimer(1989 CT)- Owner of lot not liable for rape occurring behind negligently maintained
          shrubs in hood. Rapist is superceding cause.
        Gaines-Tabb v. ICI Explosives(1998 10th )-  not liable for selling explosives grade fertilizer to McVeigh, b/c
          bombing wasn‟t foreseeable and McVeigh was superceding cause.
        Hines v. Morrow(1921 TX)-Peg leg caught in hole negligently maintained by . Exact consequences don‟t
          have to be foreseen to find negligent.
        Hines v. Garrett(1921 VA)- Hobo rape case. Intervening criminal conduct didn‟t insulate common carrier
          from liability.
        Addis v. Steele(1995 MA)-  liable for negligently failing to provide fire exit lights, even though fire was
          started by arson.
3. Unexpected Victim
        Palsgraf(1928 NY)-  wasn‟t proximate cause of ‟s harm, b/c harm wasn‟t foreseeable. Perry disagrees,
          thinks it should be in foreseeability (he agrees w/ Cardozo; modern Torts agree w/ Andrews, hence case is in
          Proximate Cause section.)


                                                  VI. DEFENSES
A. The Plaintiff's Fault
Note- When  intended to create an unreasonable risk, it‟s recklessness, not negligence.
1. Contributory Negligence-  barred from recovery under this scheme (no longer applied) if he was negligent at all.
        Pure Comparative Negligence- ‟s damages reduced by ‟s degree of fault, regardless of fault.
        Modified Comparative Negligence:
       o Equal Fault Bar- must be less at fault than 
       o Greater Fault Bar-  must be equal or less at fault, e.g., IA.
        Unit Rule (Aggregation): ‟s fault compared w/ all ‟s combined.
        Individual Comparison: ‟s fault compared w/ each individual .
        Uniform Comparative Fault Act: (not widely followed)
       o Section 1(a)- Pure scheme; explicitly abolishes last clear chance doctrine (which was a contributory fault bar).
          1(b)- definition of fault is very broad.
        Barker v. Kallash(1984 NY)-juv.  barred from recovering against co-conspirator in pipe-bomb making, b/c
          ‟s knew it was illegal.

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            Ashmore v. Cleanwel(1983 OR) juvenile  not barred from recovery against cleaning product manufacturer
             b/c product misuse isn‟t complete bar when it‟s foreseeable. Punishment is penal. not civil
         Veazy v. Elmwood(1994 LA)- landlord liable when tenant was raped, b/c duty was to protect  from this
             type of harm, even though rapist was mostly at fault. Allowing comparative fault would reward  for result of
             his negligence. These types of fault can‟t be compared.
         Scott v. City of L.A(1994 CA)-Ct set aside allocation of 99% fault to County, not abusive parent. Fault
             system varies by state.
         Hutchernson v. Phoenix(1998 AZ) 911 operator gave call for help low priority. Ct upheld allocation of 75%
             fault to negligent 911 operator and 25% to murderer.
         Chianese(2002 NY) Owner liable when tenant attacked in hallway, b/c otherwise several liability wouldn‟t
             exist w/ intentional torts.
Derivative Fault- in derivative actions (when suing for loss of consortium or wrongful death), negligence of third party
(e.g. wife, decedent) is imputed to  in the suit.
DUTY TO MITIGATE- can reduce damages, but can‟t bar recovery like Contributory Negligence.
         Fritts v. McKinna(1996 OK)- died in surgery needed b/c of drunk driving wreck.  sued for med mal. ‟s
             drinking problem only relevant for damages, b/c of shorter life expectancy. Doctor can‟t allege contributory
             negligence based on how  ended up in hospital.
         Hall v. Dumitru(1993 Ill)-No duty to undertake a risk (in this case undergo surgery) to mitigate damages.
         Waterson v. GMC-  can‟t lose more than 50% of damages for failure to mitigate (by wearing
             seatbelt/helmet) [ct considered community standard]. States disagree about this.
B. Assumption of Risk
         Murphy v. Steeplechase(1929 NY)-  not liable for ‟s injury on amusement park “Flopper” ride b/c  could
             reasonably expect risk.
         Knight v. Jewett(1992 CA)-  assumes risks of rough play when playing touch football. Heightened standard
             of recklessness.
         Akins v. Glen Falls(1981 NY) School owed no duty to protect spectators on 3 rd baseline from foul balls, so
             no negligence. Didn‟t go to jury. Baseball spectators assume risk of foul balls.
         Davenport(1998 SC)  can‟t recover when he fell after consistently and unnecessarily using unlit stairs in
             dark.  assumed risk b/c he understood and voluntarily chose it. SC abolishes absolute assumption of risk bar,
             using equal fault bar instead.
        Primary Assumption of Risk- some activities are inherently risky, e.g. foul balls. No duty; ‟s knowledge not
        required. Swimming pools too.
        Secondary Assumption of Risk-‟s assumption of risk causes ’s ordinary duty dissipates (e.g. Davenport)
         Firefighte r’s Rule : version of occupier‟s liability to licensee. Owner must notify the m of known risks, but
             no duty to inspect. Cops too. Levandowski v. Cone (no recovery on someone else‟s property)
C. Preemption- fed law creates floor, but usually not ceiling.
         Geier v. American Honda(2000 US)-Car didn‟t have airbag. Fed law prohibiting this claim trumps state
             recognition of claim b/c fed sche me was comprehensive.
         Cipollone(1992 US)- State law preempted by fed law if there‟s an express conflict or congress intended to
             thoroughly regulate the field.

D. EMERGENCY DOCTRINE- Levy v. DeNardo(1999) Reasonable standard of care is lower in emergencies; only
       honest exercise of judgment required. [being phased out]
      Rest.§892D- Emergency Action w/o Consent- No liability for injury, even w/o consent if:
      (a) Emergency makes it necessary or apparently necessary, in order to prevent harm to , that  act before
       there‟s opportunity to obtain consent from  or one empowered to consent for him, and
      (b)  has no reason to believe that , if he had the opportunity to consent, would decline.




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                                           VII. PRODUCT LIABILITY
A. Introduction- Establishme nt of Duty to Consume r
        Old view required privity, but no longer. This allowed more product liability claims.
        MacPherson v. Buick(1916 NY) Cardozo- Wheels fall off car driven by secondary buyer. Privity not
            required for product liability. Foreseeability creates duty of care. Overturned Winterbottom.
Implied Warranties-Originally implied into particular contracts. However, UCC allows manufacturer to disclaim these
warrants. It essentially implies a duty.
        Warranty of Merchantability- product has to be fit for ordinary purposes for which such goods are sold. It
            includes a standard of reasonable safety.
       o Ryan v. Progressive Grocery(1931 NY) needle in bread.
        Warranty of Fitness- for a particular purpose; applied when a purchaser relies, to a seller‟s knowledge, on a
            seller to select suitable good for a particular purpose that the purchaser has made known to seller.
        Baxter v. Ford Motor(1932)- recovers when windshield  claimed was shatterproof shattered.  recovered
            from both retailer and Ford b/c of express warranty and detrimental reliance.
Rest.3d moves to true strict liability for design defect, manufacturing defect, and warning/instruction failures.
B. Design Defects
        Barker v. Lull(1978 CA)- The burden of proof is on  to show that there was a reasonable alternative design
            (CA only). two tests to prove design defect:
          o 1) consume r expectation test-no expert testimony allowed. Default when practical. Looks at consumer.
          o 2) risk-benefit test- using expert testimony. Adopted in Rest.3d§2(b) as default. Looks at manufacturer.
        Soule v. GMC(1994 CA)-‟s ankles crushed during crash when wheel fell inward.  not liable b/c design
            dangers didn‟t outweigh benefits.
        Camacho v. Honda(1987 CO)-Liability for failing to either provide motorcycle leg guards or warn of danger.
            Used risk-benefit, but dissent advocated consumer expectations.
        Vassallo v. Baxter Healthcare(1998 MA) Breast implants. Hindsight- No hindsight evaluation of risk in
            warrant of merchantability (but duty to warn). Rest.§402A- Manufacturer liable for reasonably foreseeable
            risks and whatever does or should result from reasonable testing.
        Green v. Smith(2001 WI) Consumer expectations test made  liable for risk of allergic reactions to latex
            gloves. Strict liability.
       o Rest.3d - approaches warning/design defects in product liability like negligence- liability exists if it was
            reasonably foreseeable and could have reasonably been fixed.
C. Manufacturing Defects- Strict Liability, or at least RIL
        Escola v. Coca Cola(1944 CA)  liable when bottle breaks in ‟s hand during normal use, b/c Res Ipsa.
        Hennington v. Bloomfield Motors(1960 NJ)- extends strict liability beyond food cases to products generally.
       o Rest.§402A- commercial liability for defective condition or unreasonably dangerous products.
        Greenman v. Yuba Power(1963 CA)- liable for injury for defect in lathe; no privity; strict liability in CA.
        Vandermark v. Ford(1964 CA)- can‟t insulate against manufacturing defect b/c of retailer‟s failure to
            inspect brakes.
        Welge v. Planters(7th 1994) –  injures hand while refastening peanut jar lid; although theory of defect
            unclear,  is liable for all consequences of selling a defective product even if defect introduced w/o any fault
            of manufacturer or supplier or supplier‟s supplier.
        Price v. General Motors – ‟s theory of steering fluid defect dismissed because of destruction of car & lack
            of evidence substantiating P‟s claims (no maintenance record, etc.) BUT SEE:
        Daniels v. GNB – DESTROYED EVIDENCE- evidence is still admissible for defective product.
D. Safety Instructions and Warnings
        Hood v. Ryobi(1999 4th )-Manufacturer not liable for consumer misuse b/c it wasn‟t foreseeable. General
            warning not to remove saw guard sufficient. No need to list potential harms.
        Pittman(1994 TN)-Warning has to indicate (1) scope of danger, (2) extent or seriousness of harm, (3)
            physical aspects of the warning must be adequate to alert a reasonably prudent person to danger, (4) simple

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            directive warning may be inadequate when it fails to indicate the consequences that might result from failure
            to follow, (5) the means to convey warning must be adequate.
         Hubbard-Hall Chemical v. Silverman (1965 1st) – 2 migrant frm workers killed by contact w/ insecticide;
            Dept. of Ag found warning labels conformed to Cong reqs; did not elim liab; jury could reasonbly fnd neg b/c
            warning insufficient (no skull logo, just English).
         Edwards v. Basel(1997 OK)- died while smoking on 2 nicotine patches. Doctor liable b/c didn‟t warn him
            of risk.
        o FDA require ments set minimum requirements for warning, but they don‟t replace state or federal guidelines
            requiring anything additional.
Learned Interme diary Rule: B/c patient and the manufacturer justifiably rely on the doctor‟s decisions regarding risks
to the specific patient and reasonable warnings, no duty of manufacturer to warn consumer directly.
         Exceptions to rule- warning required when:
        o Mass immunizations
        o When FDA mandates direct consumer warnings
        o During direct consumer marketing
         No duty to change designs preventing allergic reactions when benefit outweighs harm to few.
E. Defenses
         GMC v. Sanchez(1999 TX)-‟s car fell out of „Park‟ due to ‟s negligence.  says no way to design around
            flaw. Sanchez was at fault, so got 50% damages- comparative liability. no duty to discover defects, but duty
            to read manual, take reasonable precautions.
        Enhance d injury- Whitehead(1994 TN) in cases where the crash is ‟s fault but his injuries are enhanced due to
            design defect, there should be apportionment. Rejected in D’Amario (2001 FL).
                                               VIII. Intentional Torts
Intentional Torts: Battery, Assault, False Imprisonment, Trespass to Chattels, Trespass to Land
       Battery
        Garratt v. Dailey(1955 WA)- pulls out chair before  sits down. BATTERY:  had to prove  had purpose
           or acted w/ knowledge substantial certainty of resulting harm.
        Wishnatsky v. Huey(1998 ND)-Slamming door in ‟s face wasn‟t Battery. Rest.§19-com.(a)-undue
           sensitivity as to personal case doesn‟t create battery.
       Assault & Batte ry
        Picard v. Barry Pontiac-Buick(1995 RI)- Touching camera and threatening constituted battery/assault.
           Battery touching need not be to actual person; credible threat beliweved by  is enough for assault.
       False Imprisonment
        Lopez v. Winchell’s Donut House(1984 IL) For the tort FI, confinement must be against ‟s will and if
           consent, then no FI. Ct found no real constraint,  felt compelled to stay (due to moral pressure); insufficient.
   Defenses:
       Consent- 2 elements: 1) there was consent, 2) consent was valid.
        Hart v. Geysel(1930 WA)- No recovery b/c  consented to the illegal prizefight in which he died. Consent
           was valid even though activity was illegal (but see pipe-bomb cases in assumption of risk)
        Barbara v. John-  lied about being infertile. Impregnating  was outside scope of consent.
        O’Brien-  didn‟t openly object to inoculation on cruise ship, so consent was implied.
       Self Defense
        Courvoisier v. Raymond(1896 CO)  was chasing away rioters and mistakenly shot cop who tried to
           intervene. No liability b/c  reasonably believed life was in danger.
       o Majority Rule: No liability if ‟s act of self-defense was a reasonable mistake.
       o Minority Rule: Only allows for mistake when  unreasonably created appearance of attack.
       Defense of Prope rty
        Katko v. Briney(1896 IA) Traps harming intruder only justified to prevent danger to person, not property.
       Private Necessity
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        Vincent v. Lake Erie(1910 MN)  had to pay for ship‟s damage to ‟s dock.




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