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					                                 Torts Outline, Allen Fall 2006


I. When should accidental injuries result in liability?
       A. There are tort claims for some, but not all, unintentional injuries
               1. Must be negligence
               2. Hammontree v. Jenner – Epileptic Driver – Where an epileptic who was
                   appropriately managing his disability suffered an unexpected seizure while
                   driving and drove through the window of a bicycle store, the driver was not
                   liable for injuries and property damage because he was not negligent and strict
                   liability did not apply.
II. Liability for Negligence, Generally
       A. Generally
               1. A cause of action for negligence requires the plaintiff to show that:
                       a) Defendant had a duty of care to the plaintiff
                       b) Defendant breached that duty of care
                       c) The breach was the legal cause of
                       d) Plaintiff‘s injury
               2. Negligent acts are defined as those that fall below an applicable standard of
                   care (duty).
               3. If a court upholds a cause of action for negligence, compensatory and punitive
                   damages are available. Compensatory damages include:
                       a) Medical expenses
                       b) Lost wages
                       c) Loss of consortium
                       d) Pain and suffering
       B. Vicarious Liability
               1. Respondeat superior – Employers are vicariously liable for torts committed by
                   their employees while the employee is acting within the scope of their duty.
                       a) Factors to consider:
                                (1) Employee‘s conduct must be of the general kind the employee
                                    is hired to perform, or ―the employee must be about the
                                    employer‘s business and the duties assigned by the employer,
                                    as opposed to being wholly involved in a personal endeavor‖
                                (2) Employee‘s conduct must occur substantially within the hours
                                    and ordinary spatial boundaries of the employment
                                (3) Employee‘s conduct must be motivated, at least in part, by the
                                    purpose of serving the employer‘s general interests
                       b) Christenson v. Swenson – Guard gets soup – Where a guard left the
                            premises briefly to pick up lunch from a nearby shop as allowed by the
                            employer and was involved in an accident, the guard was sufficiently
                            acting within the scope of her duty and the employer could be held
                            liable for the accident under a theory of respondeat superior.
                       c) Ybarra v. Spangard – Court notes that a surgeon may be responsible
                            for the negligence of his nurses during surgery under a theory of
                            respondeat superior (even where the surgeon and nurses are all
                            employees of a hospital)
               2. Principal-Agent Liability – As a general rule, a principal may be held liable
                   for the acts of its agent that are within the course and scope of the agency.



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                                 Torts Outline, Allen Fall 2006


                     a) Factors to consider:
                             (1) Express authority – Was the agent expressly authorized to
                                 undertake the action on behalf of the principal?
                             (2) Apparent authority (Roessler v. Novak) – Authority which a
                                 principal knowingly tolerates or permits, or which the principal
                                 by its actions or words holds the agent out as possessing.
                                 Apparent agency exists if all three of the following elements
                                 are present:
                                     (a) A representation by the purported principal
                                     (b) A reliance on that representation by a third party
                                     (c) A change in position by the third party in reliance on
                                         the representation
                             (3) Inherent authority – Where an agent appears to act with the
                                 authority of the principal based upon title or position and the
                                 usual authority that comes with it
                     b) Roessler v. Novak – Contractor radiologist misread scans – Where a
                         patient was seriously injured because a contracting radiologist misread
                         diagnostic scans, the hospital could be held liable for the injury under
                         an agency theory of liability.
              3. Parents – Parents are not liable for the torts of their children but may be liable
                 for negligent supervision.
III. Duty
        A. Is there a duty?
               1. Special Relationships
                      a) Joint Social Venture
                             (1) Farwell v. Keaton – Chasing girls (140) -- Defendant friend,
                                 upon taking control of his incapacitated buddy, assumed a duty
                                 to get help for the buddy. When the defendant did not get help
                                 in a timely manner and abandoned the buddy in the backseat of
                                 a car in his grandparents‘ driveway, resulting in coma and then
                                 death for the buddy, the defendant is liable for the result.
                      b) Custodial
                             (1) Persons who have custody of another person under
                                 circumstances in which that other person is deprived of normal
                                 opportunities of self-protection
                      c) Doctor-Patient
                             (1) Informed Consent
                                     (a) The doctrine of informed consent requires a physician
                                         to obtain a patient‘s consent for medical treatment
                                     (b) To obtain a patient‘s informed consent to one of several
                                         alternative courses of treatment, the physician should
                                         explain medically reasonable invasive and noninvasive
                                         alternatives, including the risks and likely outcomes of
                                         those alternatives, even when the chosen course is
                                         noninvasive




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            Torts Outline, Allen Fall 2006


                 (c) Failure to obtain any consent for medical treatment,
                     except in cases of emergencies, can lead to a cause of
                     action for battery (an intentional tort).
                 (d) It‘s not the patient‘s duty to ask about the risks
                     involved. It‘s the doctor‘s duty to tell her.
                 (e) Matthies v. Mastromonaco – Non-surgical option (123)
                     -- Where a defendant doctor did not explain all the
                     available treatment options to the plaintiff because the
                     doctor believed the surgical options were potentially
                     dangerous to the plaintiff, and instead suggested only
                     the non-surgical option which left the plaintiff unable to
                     walk, the defendant was liable for injuries caused to
                     plaintiff under the doctrine of informed consent.
d)   Doctor-Third Party
        (1) Where the psychologist/psychiatrist has reason to believe that a
            patient will harm a third party, the psychologist/psychiatrist has
            a duty to warn the third party. Here, the therapist has special
            knowledge of the danger and has the potential ability to affect
            the actions of the patient. The third party is a beneficiary of the
            special relationship between the therapist and the patient
        (2) Tarasoff v. Regents of the University of California – Psych
            must warn (157) -- Where a therapist and hospital attempted to
            have a patient detained for threats made regarding a third party
            but did not warn the third party of the threats, the defendants
            could be held liable for the subsequent death of the third party
            at the hands of the patient.
e)   Common Carrier
f)   Landlord/Tenant
g)   Landowner/Entrant
        (1) The duty for landowners differs in many jurisdictions
            depending on the status of the land entrant. There are three
            types of entrants:
                 (a) Trespassers – No invitation to enter and no permission
                     to enter
                          (i) No duty to trespassers
                          (ii) Exception: Child trespassers – Landowners
                               may be held liable for physical harm to a
                               trespassing child caused by an artificial
                               condition upon the land if:
                                   (a) The place where the condition exists is
                                       one upon which the possessor knows or
                                       has reason to know that children are
                                       likely to trespass
                                   (b) The condition is one of which the
                                       possessor knows or has reason to know
                                       and which he realizes or should realize



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Torts Outline, Allen Fall 2006


                        will involve an unreasonable risk of
                        death or serious bodily harm to such
                        children,
                    (c) The children because of their youth do
                        not discover the condition or realize the
                        risk involved in intermeddling with it or
                        in coming within the area made
                        dangerous by it, and
                    (d) The utility to the possessor of
                        maintaining the condition and the burden
                        of eliminating the danger are slight as
                        compared with the risk to children
                        involved and
                    (e) The possessor fails to exercise
                        reasonable care to eliminate the danger
                        or otherwise to protect the children
   (b) Licensees – Invitation to enter but no benefit to the
       landowner (i.e. social guest)
           (i) Reasonable care to protect from dangers of
                which the landowner is aware
           (ii) Duty to repair dangers of which the landowner
                is aware rather than to fix them
           (iii)Some courts or states recognize social guests as
                a separate category
           (iv) Carter v. Kinney – Bible study fall (195) --
                Where the plaintiff entered the defendant‘s
                property for a bible study and slipped on ice that
                had formed overnight that the defendant was not
                aware of, defendant was not liable for the
                plaintiff‘s injuries. The plaintiff was and
                licensee, not an invitee, and the defendant only
                had a duty to warn the plaintiff of dangers of
                which he was aware.
   (c) Invitees – Invitation to enter and some benefit to the
       landowner (i.e. potential customer, ticket holder)
           (i) Duty to protect with reasonable care
           (ii) Duty to perform a reasonable inspection
           (iii)Duty to repair dangers that might be likely to
                injure someone on the property
   (d) Heins v. Webster County – Santa Claus falls (201) --
       Where a man visited a hospital to see his daughter who
       was employed by the hospital in addition to
       coordinating plans for playing Santa Claus and where
       he slipped and fell in the doorway due to ice and snow,
       injuring his hip, the court held that the licensee-invitee
       distinction should be abandoned and instead owners



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                  Torts Outline, Allen Fall 2006


                          and occupiers have the duty to exercise reasonable care
                          in the maintenance of their premises for the protection
                          of lawful visitors; the case should go to trial. Factors to
                          consider:
                              (i) The foreseeability or possibility of harm
                              (ii) The purpose for which the entrant entered the
                                   premises
                              (iii)The time, manner, and circumstances under
                                   which the entrant entered the premises
                              (iv) The use to which the premises are put or are
                                   expected to be put
                              (v) The reasonableness of the inspection, repair, or
                                   warning
                              (vi) The opportunity and ease of repair or correction
                                   or giving of the warning
                              (vii) The burden on the land occupier and/or
                                   community in terms of inconvenience or cost in
                                   providing adequate protection
      h) Social Hosts
              (1) They have a duty to warn about known dangers only, but have
                  no duty to inspect and find dangers.
                      (a) Harper v. Herman – Boat diver (134) -- Defendant boat
                          owner was not liable for injuries suffered by an adult
                          passenger who dove head first without notice into
                          shallow water.
                      (b) Reynolds v. Hicks – Drunk nephew at wedding (183) --
                          Defendant bride and groom, as social hosts, were not
                          held liable for the injuries suffered by the victims of a
                          car accident caused by the defendants‘ underage
                          nephew who became intoxicated at the wedding
                          reception. The court held that social hosts have a
                          different level of liability than do commercial vendors,
                          in part because the commercial vendors are in a better
                          position to monitor the situation.
      i) Privity
2. Undertaking
      a) Once a person takes control of a situation, he assumes a duty of
          reasonable care. This is the ―undertaking‖ theory.
              (1) Farwell v. Keaton – Chasing girls (140) -- Defendant friend,
                  upon taking control of his incapacitated buddy, assumed a duty
                  to get help for the buddy. When the defendant did not get help
                  in a timely manner and abandoned the buddy in the backseat of
                  a car in his grandparents‘ driveway, resulting in coma and then
                  death for the buddy, the defendant is liable for the result.
3. Foreseeable Victims




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                   Torts Outline, Allen Fall 2006


       a) Where the plaintiff‘s conduct results in foreseeable harm, plaintiff may
          be held liable. This is because, as a general rule, all persons have a
          duty to use ordinary care to prevent others from being injured as a
          result of their conduct
       b) Adams v. Bullock – Swing a long wire – Where a trolley company, in
          the lawful exercise of its business, runs a live wire underneath a bridge
          protected by an 18 inch parapet, it was not liable when a child swung a
          long wire and connected with the live wire, causing electrocution,
          because ordinary caution did not involve forethought of this peril.
       c) Randi W. v. Muroc Joint Unified School District – Letters of rec (148)
          Where four school district defendants wrote positive letters of
          recommendation misrepresenting the character and qualifications of a
          former employee when the employee resigned at each district under
          allegations of sexual misconduct with students and unqualifiedly
          recommending the teacher for any position, the school districts could
          be held liable for the former employee‘s subsequent sexual misconduct
          against a student at a fifth school district.
4. Affirmative Duty to Act
       a) There is generally no affirmative obligation to act unless there is some
          sort of special relationship between the parties.
       b) However, one may be liable for failing to help in a non-negligent
          injury (i.e. train hits passenger while departing from a station and
          doesn‘t stop but continues to run over passenger repeatedly as train
          cars pass)
       c) Superior knowledge of a dangerous condition by itself, in the absence
          of a duty to provide protection, is insufficient to establish liability in
          negligence. Harper v. Herman.
       d) One may be liable for non-negligent creation of risk (i.e. driver hits a
          utility pole but not as a result of his own negligence, then fails to stop
          to warn others of the fallen pole or fix the problem himself) – this
          would invoke an affirmative duty.
5. Intervening Criminal Acts
       a) In cases where the plaintiff is a victim of a crime committed by a third
          party on the defendant‘s land, liability for injury generally hinges on
          the foreseeability of the injury. There are four main tests used to
          determine whether the harm was foreseeable:
               (1) Specific harm rule – (outdated) A landowner does not owe a
                   duty to protect patrons from the violent acts of third parties
                   unless he is aware of specific, imminent harm about to befall
                   them
                       (a) Courts have generally agreed that this rule is too
                           restrictive in limited the duty of protection that business
                           owners owe their invitees
               (2) Prior similar incidents test – Foreseeability is established by
                   evidence of previous crimes on or near the premises




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                          Torts Outline, Allen Fall 2006


                     (3) Totality of the circumstances test – Number, nature and
                          location of prior similar incidents, but the lack of prior similar
                          incidents will not preclude a claim where the act was
                          foreseeable
                     (4) Balancing test – Balances foreseeability of the harm against the
                          burden of imposing a duty to protect against the criminal act
                              (a) Posecai v. Wal-Mart – Wal-Mart robbery – Where a
                                  customer of Wal-Mart is robbed in the parking lot, and
                                  the neighboring area has a high crime rate, though the
                                  parking lot itself does not have a history of crime, the
                                  court used a balancing test of weighing the
                                  foreseeability of harm against the burden of imposing a
                                  duty to protect against the criminal acts of third persons
                                  to decide that Wal-Mart did not have a duty to protect
                                  the customer against criminal acts of third persons.
     6. Miscellaneous
             a) Brown v. Kendall – Dog whacking – Where a man was using a stick to
                 separate two fighting dogs and accidentally hit the other dog‘s owner,
                 causing severe injury to his eye, the court found the man was not liable
                 because the man committed a lawful act with due care. Plaintiff has to
                 prove that defendant didn‘t use due care.
B. What is the duty?
     1. Duty generally
             a) Baltimore & Ohio Railroad Co. v. Goodman -- – Get out and look (60)
                 -- Where a man failed to slow at a railroad crossing where the view of
                 the tracks were partially blocked by a building, obscuring the
                 oncoming train, and was hit and killed, the court held that the driver
                 should have known to slow down or stop to make sure there was no
                 oncoming train if he couldn‘t see the tracks and thus could not recover
                 for his injuries.
             b) Pokora v. Wabash Railway Co. (62) – Don‘t get out and look -- Where
                 a man had absolutely no way of spotting an oncoming train unless he
                 approached the track so nearly that he could not escape the train, the
                 court held that the driver was not required to get out of the truck to
                 look as suggested by Goodman. Instead, the court applied a
                 reasonable person standard and held that the railroad could be liable
                 for the injuries should a jury decide so.
     2. Reasonable Person Standard
             a) The usual standard of care is that of a reasonable person of ordinary
                 prudence under the circumstances. This is the ―reasonable person
                 standard.‖
             b) A reasonable person strives to avoid foreseeable injuries.
             c) A reasonable person takes measures to prevent accidents where the
                 preventative measures cost less than the probability of injury
                 multiplied by the gravity of the injury (B<PL). See United States v.
                 Carroll Towing.



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                          Torts Outline, Allen Fall 2006


     3. Lower Standards
            a) Reasonable child standard
                     (1) Children engaged in non-adult activities are compared to a
                         standard of children of like age, intelligence, mental capacity,
                         training and education
                             (a) Children that are engaged in adult activities are held to
                                 a reasonable person standard
            b) Physically handicapped
                     (1) People with physical disabilities are held to a standard of
                         reasonable persons with similar physical disabilities.
                             (a) Persons with mental disabilities are held to the
                                 reasonable person standard and get no lowered standard
                                 based on their lower capacity for understanding.
     4. Higher Standards
            a) Professionals
                     (1) Professionals are held to the national standards of other
                         practicing professionals in their specialty
                             (a) Sheeley v. Memorial Hospital – Specialized experts –
                                 Expert witnhess was not required to be from the same
                                 locality as the defendant because a national standard of
                                 care applies to medical professionals, not a local
                                 standard of care. Also, the expert could be a specialist
                                 and testify about the acts of a general practitioner that
                                 fell within the specialist‘s field
            b) Common Carriers
                     (1) Andrews v. United Airlines, Inc. – Overhead bins (66) -- Where
                         an airplane passenger was injured by luggage falling from an
                         overhead compartment and it was a fairly common occurrence
                         on airplanes, common carrier could be held liable for violating
                         a duty of utmost care and case should be submitted to a jury.
                     (2) But see Bethel v. New York City Transit Authority –
                         Wheelchair seat case – Where a disabled man was hurt on a
                         negligently maintained wheelchair accessible seat on a bus, the
                         court held that the defendant bus owner was not liable because
                         the appropriate standard of care was not ―utmost‖ care as
                         previously required of common carriers, but ―ordinary care.‖
            c) People with Special Skills
                     (1) Expected to use those skills
     5. Difficult Situations – Emergencies
C. B<PL
     1. United States v. Carroll Towing Co.—Absent Bargee – Where a barge
        carrying cargo owned by the United States broke free in a busy harbor after
        being negligently secured by Carroll Towing‘s tugboat employees, causing
        significant damages and loss of cargo, the plaintiff barge owner could be held
        liable for the extended absence of its bargee, whose presence would likely
        have prevented the damages.



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                                 Torts Outline, Allen Fall 2006


                      a) This case contains Judge Learned Hand‘s famous equation, B<PL,
                         which finds that there is liability where the burden of taking adequate
                         precautions is less than the product of the probability of injury
                         multipled by the gravity of the resulting injury.
                      b) The barge‘s owner could be held liable here because the cost of
                         keeping a bargee on board during the busy hours of the harbor was
                         much less than the probability of the injury (likely) multiplied by the
                         extent of the injury (high).
IV. Breach of Duty
       A. Proving Breach
              1. Constructive Notice and Failure to Act
                    a) Negri v. Stop and Shop, Inc. – Baby food jars (87) – Where a plaintiff
                        fell backwards on broken baby food jars and was injury, no witness
                        heard the jars break in the 20 minutes prior to the accident, and the
                        aisle had not been cleaned or inspected for two hours, this
                        circumstantial evidence was not insufficient as a matter of law to
                        permit the jury to draw the inference that the defendant should have
                        known about and remedied the dangerous condition.
                             (1) The food had apparently been there long enough that the store
                                 could have constructive notice of it.
                    b) Gordon v. American Museum of Natural History – Wax paper on
                        museum steps (88) -- Where a plaintiff slipped and fell on a piece of
                        wax paper on steps near a museum concession stand but could provide
                        no evidence that the museum knew or should have known of the
                        presence of the dangerous condition, the court held the museum was
                        not negligent.
              2. Violation of Statute‘s Purpose May Be Negligence
                    a) If a statute is promulgated for the protection of a party and the other
                        party violates the statute, violation of the statute is negligence per se.
                             (1) Martin v. Herzog—Buggy in the dark – Where plaintiff‘s
                                 buggy had no lights on while driving in the dark and is hit by
                                 defendant‘s oncoming vehicle that drifts left of center on a
                                 curve but has no warning of the other vehicle because of the
                                 lack of lights, the plaintiff was negligent per se on account of
                                 violating the statute, and the jury may not find otherwise.
                    b) If a statute is promulgated for the protection of a party and that same
                        party violates the statute in order to lessen the danger under the
                        circumstances, violation of the statute is not proof of negligence.
                             (1) Tedla v. Ellman – Walking with traffic – Where pedestrians
                                 were walking on the wrong side of the road against the statute
                                 to avoid the busier side of the road and were subsequently hit,
                                 violation of the statute could not be used as proof of negligence
                                 because there was a good reason for such violation.
                                     (a) The court held violation of the statute was not
                                         negligence per se when violating the statute would




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                   Torts Outline, Allen Fall 2006


                           further the purpose of the statute more than obeying the
                           statute.
      c) If a statute is promulgated for the protection of a party and the
          violation of the statute results in the injury of a third party, violation of
          the statute is not proof of negligence.
              (1) Reynolds v. Hicks – Defendant bride and groom not liable for
                  providing alcohol at wedding reception to underage nephew,
                  who subsequently drove a car and injured plaintiffs. The
                  statute outlawing giving alcohol to minors had several
                  exceptions allowing minors to obtain alcohol (i.e. from parents,
                  for medicinal or religious reasons) that undercut the argument
                  that the statute was enacted to benefit third parties.
      d) Key: If the violator of the statute acts consistently with the policy
          behind the statute, violation of the statute is not per se negligence.
              (1) So in Martin v. Herzog, the policy behind the statute was to
                  protect all the drivers on the road. Violating the statute was
                  against the policy because there wasn‘t a good reason to drive
                  without headlights at night.
              (2) In Tedla v. Ellman, however, the policy behind the statute was
                  to protect the pedestrian. In that case, the heavy traffic on the
                  ―correct‖ side of the road would have been more hazardous.
                  The plaintiffs acted consistently with the policy behind the
                  statute when they moved to the ―wrong,‖ but nearly empty,
                  side of the road.
      e) Even if the defendant does violate a statute and the plaintiff is harmed
          as a result, there may not be a private right of action. See Defenses,
          below.
3. Res Ipsa Loquitur
      a) This rule permits, but does not compel, an inference of negligence
          under certain circumstances.
      b) The plaintiff must establish:
              (1) That the instrumentality causing the injury was under the
                  exclusive control of the defendant;
                       (a) But note that in Ybarra v. Spangard, the unconscious
                           patient was not required to show what the exact
                           instrumentality was that caused his injury
              (2) That the accident is one that would not, in the ordinary course
                  of events, have occurred without negligence on the part of the
                  defendant; and
              (3) That the accident cannot be due to any voluntary action or
                  contribution on the part of the plaintiff
      c) Essentially, but for the failure of reasonable care by the party in
          control of the injury-producing object, the accident would not have
          occurred
      d) The conclusion of negligence in a res ipsa loquitur case generally
          relies on a matter of general knowledge or the basis of past



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                                 Torts Outline, Allen Fall 2006


                        experiences common to the community. However, expert witnesses
                        can be used in res ipsa loquitur cases involving medical malpractice.
                            (1) States v. Lourdes Hospital – Experts for res ipsa, ovarian cyst
                                (119) -- Where a plaintiff undergoes surgery for removal of an
                                ovarian cyst and awakes with an arm injury, the plaintiff may
                                use expert witnesses to ―bridge the gap‖ between the jury‘s
                                common knowledge and experience and the specialized
                                knowledge of physicians to determine whether an injury would
                                have occurred without negligence under a theory of res ipsa
                                loquitur.
                    e) Generally in res ipsa loquitur cases, direct evidence of negligence is
                        not available, but to apply the doctrine, it is not required that no direct
                        evidence be available.
                    f) Byrne v. Boadle—Flour barrel – Where the defendant was a dealer in
                        flour and the plaintiff was hit by a barrel of flour falling from
                        defendant‘s shop, the injury was prima facie evidence of negligence
                        under the doctrine of res ipsa loquitur and it was the defendant‘s
                        burden to prove he was not negligent.
                    g) McDougald v. Perry – Spare tire (95) -- Where a plaintiff was injured
                        by a spare tire that fell from beneath the defendant‘s truck onto
                        plaintiff‘s car, res ipsa loquitur applies.
                    h) Ybarra v. Spangard – Appendectomy becomes paralyzed arm (102) --
                        Where a plaintiff undergoes an appendectomy and awakes with a
                        paralyzed arm, res ipsa loquitur applies and the plaintiff may recover
                        even though he cannot show exactly which defendant caused the
                        injury. In this case, the plaintiff was not required to prove what
                        instrumentality caused the injury. It was enough to show that the
                        plaintiff was unconscious and whatever happened must have been
                        caused by the medical staff caring for him.
              4. Professional Standards
              5. Customs and Social Norms
                    a) Trimarco v. Klein – Shower door customs (69) -- Where a tenant is cut
                        badly on a thin glass shower door that most apartment managers would
                        have replaced years ago with a thick and tempered glass door because
                        of the known dangers associated with such thin doors and where such
                        replacements were the custom, apartment managers could be held
                        liable for negligence.
                            (1) Must weigh the reasonableness of the custom with the
                                reasonableness of the defendant.
              6. Negligent Entrustment
V. Causation
     A. Cause in Fact
             1. ―But for‖ Test
                   a) ―But for‖ the defendant‘s negligence, the injury would not have
                       occurred
             2. Substantial Factor (more than one ―but for‖ cause)



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                   Torts Outline, Allen Fall 2006


        a) Whether the defendant‘s negligence was a substantial factor in the
            occurrence of the injury (generally used where there are multiple
            sufficient causes of the injury)
        b) But for causation is required before a substantial factor exists. The
            substantial factor test was developed to resolve the problem the ‗but
            for’ test presents when two independent forces are each capable of
            causing the harm. The Third Restatement of Torts rejects the
            substantial factor approach because of confusion and misuse in the
            factual cause context to conclude that one party‘s negligence
            outweighs another‘s thereby exonerating the latter from liability, thus
            imposing a more rigorous standard on the plaintiff than the but for
            standard
3. It is the plaintiff‘s burden to prove cause.
        a) If two or more possible causes exist, for only one of which a defendant
            may be liable, and a party injured establishes facts from which it can
            be said with reasonable certainty that the direct cause of the injury was
            the one for which the defendant was liable, the plaintiff isn‘t penalized
            for not showing that it was certain that the defendant caused the injury.
            Stubbs v. City of Rochester.
                (1) Stubbs got typhoid when the city‘s water supply mixed with a
                     contaminated source for several months. Although Stubbs
                     couldn‘t prove with certainty that the water caused his illness,
                     it could certainly be inferred from the facts as presented. Case
                     was remanded for new trial.
                (2) Zuchowicz v. United States – Overdose causes PPH – Where a
                     woman is mistakenly prescribed a double-dose of danocrine for
                     several months, subsequently develops Primary Pulmonary
                     Hypertension, and dies while waiting for a lung transplant, the
                     court found the plaintiff‘s expert testimony persuasive that the
                     double-dose was a substantial factor in plaintiff‘s illness. The
                     court established four factors to determine whether the
                     reasoning or methodology underlying the expert testimony was
                     scientifically valid and could be applied to the facts of the case:
                          (a) Whether the theory can (and has been) tested by the
                              scientific method
                          (b) Whether the scientific theory or technique has been
                              subjected to peer review and publication
                          (c) The known or potential rate of error
                          (d) Whether the theory is generally accepted
4. Lost chance
        a) Plaintiff alleges that something the doctor didn‘t do deprived them of a
            chance for a better medical outcome than what they got
        b) Alberts v. Schultz – Lost chance leg – Where a man claimed that had
            his doctor acted more quickly and appropriately, he might not have
            had to get his leg amputated, the court acknowledged this was a valid
            cause of action but found that the plaintiff had not proved that he was a



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                good candidate for the alternative treatment he claimed would have
                saved the leg
                    (1) A lost chance claim must prove duty, breach, loss and
                        causation and differs from malpractice only in the nature of the
                        harm for which relief is sought
                    (2) The causal connection between the negligence and the resultant
                        injury must be medically probable
                    (3) Proof of a ―reasonable degree of medical certainty‖ that there
                        was a loss of chance due to negligence is almost always
                        established though expert testimony
                    (4) The court must consider the underlying injury caused by the
                        presenting problem and the exacerbation of the presenting
                        problem which evinces the chance that has been lost
                    (5) Calculation of damages is apportioned by valuing the chance of
                        a better result as a percentage of the value of the entire life or
                        limb
      5. Increased risk of future harm
      6. Multiple potential tortfeasors (joint and several liability)
             a) Summers v. Tice – Both men shot -- Where a man was hunting and two
                other hunters negligently fired shots in the man‘s direction resulting in
                injury to the man‘s eyes face, the court held that both hunters can be
                held joint and severally liable despite the fact that the shot causing the
                injury was from one or the other and they were not acting in concert
                and the plaintiff could offer no evidence as to which defendant‘s shot
                caused the injury. The court found that to hold otherwise would
                exonerate both from liability although each was negligent and the
                defendants are in a better position to offer evidence to determine
                which one caused the injury (similar to Ybarra v. Spangard).
             b) Hymowitz v. Eli Lilly & Co. – DES daughters -- When it is later
                discover that the use of a drug leads patients‘ daughters to develop
                cancer but it is impossible to identify which defendant drug companies
                supplied the drug to the patients, the court held that plaintiffs could
                apportion liability under a market share theory and recover in a
                products liability case against all of the companies manufacturing and
                marketing the drug
B. Proximate Cause
      1. Directness
             a) In re Arbitration between Polemis & Furness, Withy & Co. – Slipping
                board causes explosion -- Where stevedores employed by defendants
                slung benzene across a wooden board, which fell, causing the ship to
                catch on fire, the court found that as defendants were negligent in
                transferring benzene, they are liable for all directly caused injuries,
                even those that are not foreseeable
      2. Foreseeability
             a) General Cases




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                            (1) Overseas Tankship v. Morts Dock and Engineering Co.
                                (Wagon Mound case) – Welding boats and oil spill -- Where
                                defendant‘s ship spilled oil near plaintiff‘s wharf and where 2
                                days later that oil caused a rag to catch on fire, leading to
                                damages to wharf and equipment, the court overruled Polemis
                                and held that defendant should not be liable for all unforeseen
                                consequences, instead only those harms that a reasonable
                                person would foresee
                            (2) Doe v. Manheimer – Bushes don‘t rape people -- Where
                                plaintiff was abducted and taken behind overgrown vegetation
                                on defendant‘s property where she was sexually assaulted in
                                daylight, the court found that defendant‘s actions were not a
                                proximate cause (substantial factor) of the assault, as he would
                                not have reasonably foreseen that his overgrown vegetation
                                would cause a violent criminal assault
                            (3) Palsgraf v. Long Island Railroad Company – Fireworks
                                package -- Where a train guard assisted a man boarding a train
                                and negligently pushed a concealed package of fireworks onto
                                the track where they exploded injuring plaintiff, who was
                                standing on the platform, the court found that the train owed no
                                duty to plaintiff because as she was an unexpected victim and
                                suffered an unexpected injury, there was no foreseeable harm
                      b) Eggshell Plaintiff
                            (1) Benn v. Thomas – Eggshell has heart attack after accident --
                                Where defendant negligently caused a car accident and
                                plaintiff, who had a history of coronary disease, suffered
                                injuries and died of a heart attack 6 days later, the court held
                                that the jury can be instructed on ―eggshell plaintiff‖ rule and
                                defendant may be liable for all injuries he proximately causes,
                                regardless of foreseeability
VI. Injury
       A. Physical Impact
             1. Metro-North Commuter Railroad Company v. Buckley – He might get
                asbestosis – Where a railroad worker was exposed to asbestos for years in the
                course of his employment but experienced no adverse symptoms, the court
                dismissed his claim for negligently inflicted emotional distress under the
                Federal Employers‘ Liability Act because case law interpreted FELA to
                require a physical impact rather than mere exposure and because common law
                precedent denies recovery to those who are disease and symptom free
       B. Emotional
             1. Where negligence causes fright from a reasonable fear of immediate personal
                injury, which fright is adequately demonstrated to have resulted in substantial
                bodily injury or sickness, the injured person may recover if such bodily injury
                or sickness would be regarded as proper elements of damage had they
                occurred as a consequence of direct physical injury rather than fright.




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       a) Falzone v. Busch – Wife almost gets hit -- Where a wife, while sitting
           in a legally parked car, watched her husband get hit by a car driven by
           the defendant, which then stopped just short of hitting the wife, and
           where the wife was not physically injured, the court allowed the wife
           to recover only for emotional injuries. (This overturned previous case
           law that said you couldn‘t recover for emotional injuries only.)
2. A plaintiff without physical injuries may recover for negligent infliction of
   emotional distress where the situation was likely to cause emotional distress
       a) Gammon v. Osteopathic Hospital of Maine, Inc. – Leg in a Bag –
           Where a hospital gave a man a bag purported to contain his dead
           father‘s personal effects, but instead it contained a severed leg from
           another man, the court allowed the claim of negligent infliction of
           emotional distress to proceed without evidence of physical impact,
           objective manifestation, underlying tort, or special circumstances.
           Grieving families are especially vulnerable and a jury could find the
           defendant was negligent
3. Plaintiffs can recover in certain circumstances from witnessing the death or
   injury of another, even when there is no potential of personal injury to the
   plaintiff
       a) Three factors to determine whether an emotional injury would be
           compensable because ―foreseeable‖ (from Dillon v. Legg):
               (1) Whether plaintiff was located near the scene of the accident as
                   contrasted with one who was a distance away from it
               (2) Whether the shock resulted from a direct emotional impact
                   upon plaintiff from the sensory and contemporaneous
                   observance of the accident, as contrasted with learning of the
                   accident from others after its occurrence
               (3) Whether plaintiff and the victim were closely related, as
                   contrasted with an absence of any relationship or the presence
                   of only a distant relationship
       b) Required factors to prove (from Portee v. Jaffee):
               (1) The death or serious physical injury of another caused by
                   defendant‘s negligence
               (2) A marital or intimate familial relationship between plaintiff and
                   the injured person
               (3) Observation of the death or injury at the scene of the accident
               (4) Resulting severe emotional distress
       c) Portee v. Jaffee – Elevator kid – Where a child got stuck between the
           elevator door and wall in an apartment building and was dragged three
           floors upwards, then later died while his mother watched the
           emergency personnel attempt to free him, the court held that the
           mother could sustain a claim of action for negligent infliction of
           emotional distress against the landlord.
       d) Johnson v. Jamaica Hospital – Kidnapped baby -- Where an infant
           was abducted from a hospital during a bomb threat and was not
           returned to her parents for 4 ½ months, the court found that the



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                   hospital was not liable to the parents for negligent infliction of
                   emotional distress because the hospital‘s duty of care extended only to
                   the patient, not the patient‘s family.
C. Economic
      1. In these cases, there is no personal injury or property damage to the plaintiff.
      2. Traditionally, the courts have not protected economic interests as extensively
          as those involving physical security of a person and property – even when the
          harm was inflicted intentionally, by fraud
      3. Robinson Dry Dock & Repair Co. v. Flint – No recovery for economic harm
          where boat repairs were not finished in time for a chartered tour
      4. Accountants and Economic Harm: Nycal Corporation v. KPMG Peat
          Marwick LLP – KPMG had a contract with Gulf and prepared an audit report
          pursuant to such. In reliance on the audit report, Nycal bought lots of Gulf
          stock. Gulf went bankrupt three years later and Nycal lost significant amounts
          of money. Nycal sued KPMG claiming the report materially misrepresented
          Gulf‘s financial condition. The court found that KPMG could not be held
          liable for economic injury to Nycal pursuant to Restatement § 552, which
          states:
              a) ―One who, in the course of his business, profession or employment, or
                  in any other transaction in which he has a pecuniary interest, supplies
                  false information for the guidance of others in their business
                  transactions, is subject to liability for pecuniary loss caused to them by
                  their justifiable reliance upon the information, if he fails to exercise
                  reasonable care or competence in obtaining or communicating the
                  information.‖
              b) Liability is limited to:
                       (1) ―loss suffered (a) by a person or one of a limited group of
                           persons for whose benefit and guidance he intends to supply
                           the information or knows that the recipient intends to supply it;
                           and (b) through reliance upon it in a transaction that he intends
                           the information to influence or knows that the recipient so
                           intends or in a substantially similar transaction.‖
      5. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. –
          Defendant‘s building collapsed due to negligence during a construction
          project. The collapse closed many streets in Manhattan and forced the
          plaintiff to close its doors for weeks. The court finds that a landowner who
          engages in activities that may cause injury to persons on adjoining premises
          surely owes those persons a duty to take reasonable precautions to avoid
          injuring them. However, a landowner does not hold a duty towards an entire
          neighborhood to protect them from purely economic harm.
D. Increased Risk
      1. See Metro-North Commuter Railroad v. Buckley
E. Wrongful Birth/Life
      1. Wrongful birth cases are typically brought by parents, whereas wrongful life
          claims are typically brought by children




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              2. There is typically a cause of action when a physician negligently performs a
                  sterilization action, but the measure of damages differs depending on your
                  jurisdiction:
                      a) Limited recovery (majority rule) – compensation for the original
                           procedure, the medical and hospital caosts of the pregnancy, the
                           expense of subsequent sterilization procedure, loss of wages, and
                           sometimes for emotional distress, loss of consortium, and child rearing
                           costs
                               (1) Emerson v. Magendantz – When a woman undergoes a tubal
                                   ligation in order to prevent the birth of another child and the
                                   procedure is done negligently and the woman gives birth to a
                                   child with congenital birth defects the court opted for a
                                   ―limited recovery rule‖ and held that the woman may recover
                                   for the medical expenses of the ineffective sterilization and
                                   subsequent sterilization, the medical expenses for the unwanted
                                   pregnancy including prenatal, delivery, and post natal care, loss
                                   of wages, and loss of consortium to her spouse
                      b) Full Recovery rule (two jurisdictions) – Allows recovery of all
                           damages that are reasonably foreseeable and that would result from the
                           negligent performance of the sterilization procedure.
                               (1) Some courts adjust for benefits conferred by the pregnancy
VII.   Defenses
       A. Government Immunity -- The government can only be sued to the extent that it
          allows itself to be sued (generally, by legislation).
              1. Police protection cases – Generally, there is no duty to provide police
                  protection unless there is a special relationship, which elements are (See Cuffy
                  v. City of New York):
                      a) An assumption by the municipality through promises or action, of an
                           affirmative duty to act on behalf of the party who was injured
                      b) Knowledge on the part of the municipality‘s agents that inaction could
                           lead to harm
                      c) Some form of direct contact between the municipality‘s agents and the
                           injured party
                      d) That party‘s justifiable reliance on the municipality‘s undertaking
                      e) Example police protection case: Riss v. City of New York – Stalker to
                           hurt me (230) -- Where a woman notified police she was being stalked
                           by an ex-boyfriend but police did nothing and woman was
                           subsequently injured by a thug hired by the stalker, the court refused to
                           hold the police liable in tort for protection of members of the public
                           because that would amount to the court determining how police
                           resources should be allocated without predictable limits.. (If the police
                           had said they would take action and failed, however, they might have
                           been liable.)
              2. Liability for Employee Negligence




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      a) Municipalities can be held liable for the negligence of their employees,
           but a distinction is drawn between ―discretionary‖ and ―ministerial‖
           governmental acts
      b) Discretionary acts – conduct involving the exercise of reasoned
           judgment
               (1) May not result in the municipality‘s liability even when the
                    conduct is negligent
      c) Ministerial acts – conduct requiring adherence to a governing rule,
           with a compulsory result
               (1) May subject the municipal employer to liability for negligence
               (2) To make a claim for negligence, the plaintiff must still show
                    that the municipal employee had a duty of care towards the
                    plaintiff
                        (a) Must be more than a duty owed to society in general
                        (b) Is the governing rule for the benefit of the plaintiff?
                        (c) Is there a special relationship between the plaintiff and
                            employee? (Use Cuffy test, above)
               (3) Example case: Lauer v. City of New York – A medical
                    examiner initially declared a child‘s death as a homicide,
                    casting suspicion on the parents. After further examination, the
                    death was found to be a result of a ruptured brain aneurysm,
                    but the medical examiner didn‘t correct the autopsy report or
                    death certificate and failed to notify law enforcement
                    authorities. Parents lost on a claim of negligent infliction of
                    emotional distress because there was no duty of care towards
                    the parents. The law governing the medical examiner‘s job
                    required reports to the district attorney and was not meant to
                    protect suspects. Additionally, there was no special
                    relationship between the plaintiff and the medical examiner.
3. Traffic cases
      a) Municipalities owe to the public the absolute duty of keeping ts streets
           in a reasonable safe condition
      b) In the field of traffic design engineering, the State is accorded a
           qualified immunity from liability arising out of a highway planning
           decision
      c) A governmental body may be held liable when its study of a traffic
           condition is plainly inadequate or there is no reasonable basis for its
           traffic plan.
      d) Example case: Friedman v. State of New York—Where a driver was
           sideswiped causing her to swerve into oncoming traffic where she was
           hit head-on, the court held that where a proper study had been done
           determining no median was necessary, the municipality is not liable,
           but where a study had been done recommending a median and more
           than a reasonable time to implement the median had passed before the
           accident, the municipality is liable.
               (1) Nondelegable duty to keep streets safe



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              (2) Duty exercised through
                      (a) Planning and decision; and
                      (b) Execution of planning and decision
              (3) Qualified immunity for planning and decision (no immunity in
                  some cases)
              (4) What cases? Where planning and decision process is plainly
                  inadequate or unreasonable municipality duty boud to keep
                  streets safe may be liable
4. Federal Torts Claim Act
      a) District court has exclusive jurisdiction over tort claims against US
          government for injury or loss of property, or personal injury or death
          caused by the negligent or wrongful act or omission of any employee
          of the Government while acting within the scope of his office or
          employment, under circumstances where the United States, if a private
          person, would be liable to the claimant in accordance with the law of
          the place where the act or omission occurred
      b) No jury
      c) No punitive damages or pre-judgment interest
      d) 25% fee limit on attorney fees
      e) Exemptions:
              (1) Discretionary functions
              (2) Postal issues
              (3) Intentional torts
              (4) Treasury and money regulation
              (5) Combatant activities of the military
              (6) Claims arising in a foreign country
      f) Test to Determine Liability Under FTCA– From U.S. v. Gaubert, as
          applied in Cope v. Scott:
              (1) Step One: Does any federal statute, regulation, or policy
                  specifically prescribe a course of action for the employee to
                  follow?
                      (a) Yes. The course of action was prescribed and the
                           employee had no choice
                              (i) Did he follow the directive?
                                      (a) No: Government is not immune
                                      (b) Yes: Government is immune
                      (b) No. The employee had a choice . Discretionary acts
                           may have immunity.
                              (i) Are the challenged discretionary acts of the
                                  employee of the sort Congress intended to
                                  shield (i.e. susceptible to policy judgment and
                                  exercise of political, social, or economic
                                  judgment)?
                                      (a) Yes: Immunity under FTCA
                                          Discretionary Function exception, 2680a




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                                                (b) No: No immunity. Government is liable
                                                    under the FTCA for negligence.
B. No private right of action
       1. Even if the defendant does violate a statute and the plaintiff is harmed as a
           result, there may not be a private right of action. (Usually the defendant here
           would be a governmental entity) The test to determine whether there is a
           private right of action is as follows (from Uhr v. East Greenbush Central
           School District):
               a) Whether the plaintiff is one of the class for whose particular benefit
                    the statute was enacted
               b) Whether recognition of a private right of action would promote the
                    legislative purpose
               c) Whether creation of such a right would be consistent with the
                    legislative scheme
               d) Uhr v. East Greenbush Central School District – Scoliosis screening
                    (168) -- Where a school district failed to conduct required scoliosis
                    screenings as required by law and a child‘s condition progressed to her
                    detriment, the parents had no private right of action because the statute
                    specifically provided the school district was not liable for failure to
                    conduct the screening, the law didn‘t mention a private right of action,
                    and the law already included an enforcement mechanism.
C. Pre-emption
       1. Geier v. American Honda Motor Company-- Where Congress has granted a
           regulatory authority such as the Department of Transportation with the power
           to impose standards, and where those standards include an array of choices
           (such as airbags among other passive safety devices) but mandates none of
           them, a state-law tort claim that rests merely on the car manufacturer‘s
           negligence in failing to have one of those options is pre-empted by the
           agency‘s regulation
D. Good Samaritan laws – Not every state has them, but if a passerby sees someone
   injured and stops to help, they may be covered under the state‘s Good Samaritan law.
E. Firefighter Rule
       1. Levandoski v. Cone-- Where a person has disregarded a police officer‘s orders
           to stop, and where the officer has good reason to believe the person is carrying
           illegal drugs, and where the person runs away and the officer falls and is hurt
           while pursuing him, the person is liable for the officer‘s injuries because it
           was reasonably foreseeable the officer would be injured pursuing the person.
               a) The court declined to expand the Firefighter‘s Rule from premises
                    liability
F. Assumption of Risk
       1. This doctrine is not an absolute bar to recovery in a comparative fault scheme.
       2. Express Agreements
               a) Where a plaintiff had signed a form releasing ski resort from liability
                    and where he then becomes injured after colliding with pole in control
                    maze, the court held that b/c of public interest, the ski resort cannot




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                    waive responsibility for their own negligence, as they have a duty of
                    care to keep their premises reasonably safe.
        3. Implied Assumption of Risk
                a) Murphy v. Steeplechase Amusement Co.-- Where an amusement park
                    ride‘s name and appearance transparently presented its risks (falling
                    and flopping) to everyone, and where the risks constitute the point of
                    the ride, and where there had not been a history of injuries such that
                    the ride was so dangerous it shouldn‘t continue to operate, a man‘s
                    choice to step onto the ride constituted assumption risk, and he could
                    not recover for his injuries.
                b) Davenport v. Cotton Hope Plantation Horizontal Property Regime --
                    Where an apartment building had three usable stairways, and where
                    one of those stairways was hazardous due to lack of lighting, a
                    resident‘s decision to climb the staircase despite his knowledge of the
                    danger will not bar him from recovery under comparative fault unless
                    his negligence exceeded the defendant‘s.
G.   Contributory Negligence
        1. Exceptions: Last clear chance, discovered peril
        2. Alabama and a couple of other states still retain
        3. At common law, this was an absolute defense
H.   Last Clear Chance
        1. Counter defense to claims of contributory negligence
        2. Last chance says that in a situation where the plaintiff had been contributorily
            negligent, if the defendant had the last opportunity to avoid the consequences
            of their own or the plaintiff‘s negligence, the plaintiff may recover
I.   Discovered Peril
        1. Counter defense to claims of contributory negligence
        2. Exception: Discovered peril – if the plaintiff and defendant are both negligent
            but the negligent defendant observed the plaintiff in a position in helpless peril
            but did nothing.
J.   Comparative Fault
        1. ―Pure‖ – Dozen or so states, Fed. Statute
        2. If P 20% at fault, D1 20%, D2 60%. Under a pure system, the plaintiff could
            recover 80%
        3. Greater or equal fault bar (thirty or so states)
        4. Slight/gross (few states) – Court asks jury whether defendant‘s negligent was
            gross compared to the plaintiff‘s slight negligent? Where there is not a gross
            imbalance of fault towards defendant, plaintiff may not be able to recover. So
            in the case above, P would be able to recover against D2 but not D1
        5. Serves to reduce the liability of the defendant
                a) What happens to joint and several liability with comparative fault?
                    (Some states say yes and other say no.)
                b) What happens if you have an absent defendant that probably was
                    negligent but can‘t find them? Do we ask the jury to assign a
                    percentage to the absent defendant?




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                     c) Understand that we have comparative fault, that there are four versions
                          of it, and that there are certain issues courts are working
              6. Fritts v. McKinne -- Where defendant surgeon negligently performed a
                 tracheostomy on plaintiff, who had been admitted into the hospital 5 days
                 earlier after a drunk driving accident, the court held that the plaintiff‘s
                 negligence that necessitated his medical treatment was irrelevant, not
                 contributory, to the subsequent medical negligence.
      K. Privity
              1. Where the negligence involves a contract, there may be no duty of care if it is
                 not specified in the contract.
              2. Strauss v. Belle Realty Co. – Power outage (176) -- Where a plaintiff had a
                 contract with the utility company for electrical service in his apartment and
                 the defendant landlord had a contract with the same company for electrical
                 service in the common areas of the building, and where plaintiff was injured
                 in a common area of the building due to lack of lighting during a power
                 outage, the utility company was not liable to the plaintiff for his injuries
                 because the utility company‘s duty to provide power to the common area was
                 through a contract with the landlord and the plaintiff was not a third-party
                 beneficiary to the contract because of ―crushing liability‖ concerns. (Note that
                 in this case, the court might have found liability without privity, but the court
                 was trying to limit the liability caused by the black-out on ―crushing liability‖
                 public policy grounds.)
      L. Parental Harm
              1. Parental Immunity – This common law immunity is eroding in the courts.
                 Originally, it was disallowed because courts didn‘t want to disturb tranquility,
                 undermine discipline, or create a temptation for collusion or fraud by allowing
                 children to sue parents. Now, however, parents are held to a reasonable parent
                 standard and can be liable when they fail to take reasonable caution to protect
                 their child from harm
                     a) When parents are sued for their child‘s injuries, the homeowner‘s
                          insurance may step in to pay the judgment
                     b) Broadbent v. Broadbent – Where a parent stepped away from her
                          toddler for a moment to answer the phone and the child fell into the
                          pool and suffered total incapacitation, the child could sue the parent
VIII. Strict Liability
      A. Development of Strict Liability
              1. Typically, there is strict liability for the following:
                     a) Wild animals – Restatement (Second) of Torts Section 507
                     b) Livestock – Restatement (Second) of Torts Section 504
                     c) Abnormally dangerous domestic animals (i.e. pit bulls)– Restatement
                          (Second) of Torts Section 509
                               (1) No strict liability from not abnormally dangerous domestic
                                   animals – Restatement (Second) of Torts Section 518
                     d) Escaping hazards/peril – some judges emphasize the fact that the
                          defendant was holding on his land a hazard that escaped onto the
                          property of someone else.



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      (1) Fletcher v. Rylands (506)/ Rylands v. Fletcher (511) – Where
          a person has lawfully brought something onto his land, such as
          water, that remains harmless while contained, as in a reservoir,
          and the thing escapes and causes damage to a neighbor‘s land,
          that person is responsible for all the natural consequences of
          the thing‘s escape.
              (a) Exceptions: ―out of character‖ behavior, acts of God,
                  contributory negligence
e) Abnormally Dangerous Activities – Section 519 of the Restatement
   (Second) of Torts
      (1) Six factors to determine whether an activity is abnormally
          dangerous – Section 520 of the Restatement (Second) of Torts,
          cited in Indiana Harbor Belt Railroad Co. v. American
          Cyanamid Co. (519):
              (a) The risk (probability) of harm was great
              (b) The harm that would ensue if the risk materialized
                  could be great
              (c) Such accidents could not be prevented by the exercise
                  of due care
              (d) Whether activity is a matter of common usage
              (e) Appropriateness of the activity to the place in which it
                  took place
              (f) Extent to which its value to the community is
                  outweighed by its dangerousness
      (2) Explosives: Sullivan v. Dunham (514) – Where a landowner is
          performing a legal but hazardous activity (like blasting a tree),
          and where the direct consequences of that act trespass on
          another‘s property (like throw a piece of wood onto the
          highway), and where a person is harmed by the piece of wood,
          the landowner is liable for the harm despite there being no
          negligence in the performance of the act
              (a) The court distinguished direct and immediate effects
                  (the wood flying through the air and striking the
                  property) from indirect, consequential effects (property
                  damage due to the earth shaking as a result of a blast);
                  there is liability for the former, but not for the latter
              (b) The court also distinguished intentional hazardous acts
                  from accidents; no liability for the consequences of
                  accidents (steam boiler explosion – Losee v. Buchanan
                  page 512) if there was no negligence that caused them
      (3) Transporting Hazardous Materials:
              (a) But see: Indiana Harbor Belt Railroad Co. v.
                  American Cyanamid Co. (519) -- Where a manufacturer
                  is shipping a hazardous chemical, and where there a
                  many other more hazardous chemicals, and where there
                  is no suggested replacement for said chemical, there is



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                                          no basis for strict liability, and the general rules of
                                          negligence will apply when there is a spill. (Essentially
                                          this wasn‘t hazardous enough for strict liability)
              2. Assumption of risk survives as an affirmative defense to strict liability.
                 Section 503.
       B. Theoretical Perspectives
              1. Goals-Oriented Approach for Abnormally Dangerous Activities (Joseph King,
                 page 534)
                      a) Loss-Spreading (ex post)
                              (1) Distributive justice goal helps to spread otherwise devastating
                                  losses among a broad array of people
                                      (a) Privately: Insurance
                                      (b) Publicly: Government-based loss-spreading
                      b) Loss Avoidance (or Risk Reduction) (ex ante)
                              (1) Imposes accident costs on those who engage in the activity as a
                                  deterrence goal
                      c) Loss Allocation (or Internalization) (ex ante)
                              (1) Promotes better-informed choices
                              (2) Encourages investment in safety
                              (3) Discourages investment in more hazardous products
                      d) Administrative Efficiency
                              (1) Removes cost of proving fault
                              (2) Promotes recovery where evidence was destroyed or
                                  unavailable
                      e) Fairness
                              (1) Person or company who benefits from ultimately injurious
                                  activity should be liable (he who benefits should pay)
                      f) Protection of Individual Autonomy
IX. Product Liability
       A. Introduction
              1. MacPherson v. Buick Motor Co. (550) – Where it is reasonably certain that a
                 thing, if negligently manufactured, will put life or limb in danger, as a car
                 with a defective wooden wheel, the final-stage manufacturer of that product
                 will be liable for defects even where that manufacturer was not the
                 manufacturer of the wheel if there is evidence the defects could have been
                 discovered by reasonable inspection.
                      a) ―If the nature of a thing is such that it is reasonably certain to place life
                          and limb in peril when negligently made, it is then a thing of danger.‖
                      b) ―If to the element of danger there is added knowledge that the thing
                          will be used by persons other than the purchaser, and used without
                          new tests, then, irrespective of contract, the manufacturer of this thing
                          of danger is under a duty to make it carefully.‖
                      c) Privity was not necessary here because the consequences of negligence
                          were foreseeable.
              2. Escola v. Coca Cola Bottling Co. of Fresno (556) -- Where a soda bottling
                 company produces and distributes a bottle of soda and it later explodes in a



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                           Torts Outline, Allen Fall 2006


            waitress‘s hand, and the bottling company can show the bottle was not
            defective when it came to the bottler, the bottling company is liable under res
            ipsa loquitur, though it cannot be shown whether it was a defect in the glass or
            too much pressure that caused the explosion, because the explosion does not
            ordinarily happen where there was been an exercise of due care, and the
            instrumentalities for manufacture and inspection were in exclusive control of
            the bottler.
                a) Concurrence by Traynor – Argues for strict liability instead of res ipsa
                    loquitur.
        3. How to bring a claim:
                a) Negligence – Seller breached duty of care
                b) Warranty – Product unfit for sale (contracts + torts)
                c) Products Liability – Strict liability for defective product
                d) Can try all three or a combination of claims depending on the situation
B.   Section 402A, Restatement (Second) – Page 566
        1. One who sells any product in a defective condition unreasonably dangerous to
            the user or consumer or to his property is subject to liability for physical harm
            thereby caused to the ultimate user or consumer, or to his property, if
                a) The seller is engaged in the business of selling such a product, and
                b) It is expected to and does reach the user or consumer without
                    substantial change in the condition in which it is sold.
        2. The rule stated in Subsection (1) applies although
                a) The seller has exercised all possible care in the preparation and sale of
                    his product, and
                b) The user or consumer has not bought the product from or entered into
                    any contractual relation with the seller.
C.   Section 2, Restatement (Third) – Page 567
        1. A Product:
                a) Contains a manufacturing defect when the product departs from its
                    intended design even though all possible care was exercised in the
                    preparation and marketing of the product;
                b) Is defective in design when the foreseeable risks of harm posed by the
                    product could have been reduced or avoided by the adoption of a
                    reasonable alternative design by the seller or other distributor, or a
                    predecessor in the commercial chain of distribution, and the omission
                    of the alternative design renders the product not reasonably safe;
                c) Is defective because of inadequate instructions or warnings when the
                    foreseeable risks of harm posed by the product could have been
                    reduced or avoided by the provision of reasonable instructions or
                    warnings by the seller or other distributor, or a predecessor in the
                    commercial chain of distribution, and the omission of the instructions
                    or warnings renders the product not reasonably safe.
D.   Manufacturing Defects
        1. Defects must be latent, not patent
        2. Must eliminate other potential causes for the defect
E.   Design Defects



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                   Torts Outline, Allen Fall 2006


1. Two tests for design defects from Soule v. General Motors Corporation
   (below)
       a) Consumer expectation test – Product failed to perform as safely as an
           ordinary consumer would expect when used in an intended or
           reasonably foreseeable manner
                (1) Note: Hard to use if people don‘t know enough about the
                    product to have expectations
                (2) Note: If something is obviously hazardous, people will expect
                    it to be hazardous so there would be no liability here under this
                    test.
       b) Risk/Utility Test – Whether the design of a product is such that the
           risk imposed by that design on the consumer/user are outweighed by
           the benefits of the design. Five factors to consider:
                (1) Gravity of posed danger
                (2) Likelihood that danger would occur
                (3) Feasibility of safer alternative
                (4) Financial cost of improved design
                (5) Adverse consequences to product and consumer of an
                    alternative design
       c) Jurisdictions differ on which test/tests they use for this.
       d) If your state has adopted the Third Restatement, the court only applies
           the risk/utility test but can consider consumer expectations.
2. Risk/Benefit vs. Consumer Expectations: Soule v. General Motors
   Corporation (571) – Where the subject matter of a products liability claim is
   highly technical such that a juror cannot be expected to make assessments
   based on the consumer expectations test, for example, when as a result of a car
   crash the floorboards of a car have smashed the consumer‘s ankles, it is error
   to instruct the jury on the consumer expectations test, but if voluminous
   evidence was presented on the risks and benefits of the design, the error will
   not be reversed, as it is highly unlikely the jury did not actually make their
   decision by weighing the risks and benefits.
3. Crashworthiness Doctrine: Camacho v. Honda Motor Co., Ltd. (584) --
   Where a man bought a motorcycle without crash bars, an optional device, the
   man was in a motorcycle accident and suffered severe leg injuries and so sued
   various parties in the chain of distribution claiming that the absence of crash
   bars made the product defective under a strict liability analysis, the court
   accepted the crashworthiness doctrine and rejected the contention that
   motorcycle manufacturers should be exempt from liability because serious
   injury to users of that product is foreseeable.
       a) Crashworthiness doctrine: (adopted by a majority of courts, including
           here) – a motor vehicle manufacturer may be liable to negligence or
           strict liability for injuries sustained in a motor vehicle accident where a
           manufacturing design defect, though not the cause of the accident,
           caused or enhanced the injuries
       b) Factors in determining whether a product is unreasonably dangerous:
                (1) Usefulness and desirability of the product



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                          Torts Outline, Allen Fall 2006


                     (2) Safety aspects of the product
                     (3) Availability of a substitute product
                     (4) Manufacturer‘s ability to eliminate the unsafe character of the
                         product without impairing its usefulness
                     (5) User‘s ability to avoid danger by exercise of care
                     (6) User‘s anticipated awareness of the dangers inherent in the
                         product and their avoidability
                     (7) The feasibility on the part of the manufacturer of spreading the
                         loss by setting the price of the product or carrying insurance
      4. Section 3 of the Products Liability Restatement -- Circumstantial Evidence
          Supporting Inference of Product Defect
              a) It may be inferred that the harm sustained by the plaintiff was caused
                 by a product defect existing at the time of sale or distribution, without
                 proof of a specific defect, when the incident that harmed the plaintiff
                     (1) Was of a kind that ordinarily occurs as a result of product
                         defect and
                     (2) Was not in the particular case solely the result of causes other
                         than product defect existing at the time of sale or distribution
F. Safety Instructions and Warnings
      1. Warnings Must Be Reasonable:
              a) A manufacturer may be liable for placing a product on a market that
                 bears inadequate instructions and warnings or that is defective in
                 design. Hood v. Ryobi America, below.
              b) A warning need only be one that is reasonable under the
                 circumstances. Hood v. Ryobi America, below.
              c) A clear warning doesn‘t need to include all the specific possibilities
                 that could happen if the warning is ignored.
              d) Products liability law generally requires a manufacturer to warn
                 consumers of danger associated with the use of its product to the
                 extent manufacturer knew or should have known of the danger.
                 Edwards v. Basel Pharmaceuticals.
              e) Factors for determining whether the warnings on prescription drugs
                 are adequate (Pittman v. Upjohn):
                     (1) Adequate indication of the scope of the danger
                     (2) Reasonable communication of the extent or seriousness of the
                         potential harm resulting from misuse
                     (3) The physical aspects of the warning must be adequate to alert a
                         reasonably prudent person to the danger
                     (4) A simple directive warning may be inadequate when it fails to
                         indicate the consequences that might result from a failure to
                         follow it
                     (5) The means to convey a warning must be adequate
              f) Hood v. Ryobi America Corp. (596) – Where a man purchased a
                 Ryobi miter saw, fully assembled including two blade guards shielding
                 nearly the entire saw blade, a number of warnings appeared in the
                 operator‘s manual and were affixed to the saw itself, that the man read,



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                          Torts Outline, Allen Fall 2006


                  that the saw should only be used with the guards in place, the man
                  removed the guards, anyway, and had an accident where the saw
                  amputated his left thumb and partially lacerated his right leg, the court
                  held that Ryobi‘s warnings were clear and unequivocal, providing
                  sufficient warning to apprise the ordinary consumer that it is unsafe to
                  operate a guardless saw.
      2. Learned Intermediary Doctrine:
             a) ―Learned intermediary doctrine‖ – exception to manufacturer‘s duty to
                  warn the ultimate consumer if the manufacturer adequately warns
                  prescribing physicians of the dangers of the drug. Two exceptions to
                  the learned intermediary doctrine: mass immunizations (may not have
                  a physician-patient relationship) and where FDA mandates that the
                  warning be given directly to the consumer – Edwards v. Basel
                  Pharmaceuticals.
             b) See factors about warnings on drugs, above
             c) Edwards v. Basel Pharmaceuticals (607) – Where a man died of a
                  nicotine-induced heart attack as a result of smoking cigarettes while
                  wearing two nicotine patches, and where his wife brought a wrongful
                  death suit against the manufacturer of the nicotine patches under the
                  theory that the warnings on the packet insert were inadequate to warn
                  her husband of the risk of smoking and overuse of the patches, the
                  court held that the nicotine patches fall under the FDA mandated
                  warning exception to the learned intermediary doctrine and so the
                  manufacturer can be liable when failure to warn the customer can
                  render the drug unreasonably dangerous (state products liability law
                  must be applied to determine the adequacy of the warnings).
      3. Warning of Reasonably Foreseeable Risks: Vassallo v. Baxter Healthcare
         Corporation (612) -- Where a plaintiff claimed that silicone breast implants
         manufactured by the defendant company had been negligently designed,
         accompanied by negligent product warnings, and that defendants breached the
         implied warranty of merchantability, the court upheld the jury verdict on the
         negligence and warranty counts but revised the state liability law concerning
         the implied warranty of merchantability and rejected the state‘s effective strict
         liability for failure to warn and adopted the Third Restatement.
             a) A manufacturer is liable for failure to warn or provide instructions
                  about risk which are reasonably foreseeable at the time of sale or could
                  have been discovered by way of reasonable testing prior to marketing
                  of the product;
             b) Manufacturers will be held to the standard of knowledge of an expert
                  in the appropriate field and will remain subject to a continuing duty to
                  warn (at least purchasers)of risks discovered following the sale of the
                  product at issue.
G. Defenses to Products Liability
      1. Assumption of risk
      2. Product met expectations of consumer
      3. Consumer misuse of product



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                         Torts Outline, Allen Fall 2006


     4. State-of-the-art defense – at the time the product was sold, the design was
        about as good as it could possibly be
     5. Open and obvious
     6. Some states use comparative fault in products liability cases. Other states use
        comparative liability. A small minority of states uses ―equitable
        apportionment‖ whereby responsibility is apportioned to all parties. They
        mean exactly the same thing.
            a) ―Fault‖ is a problematic term because this is supposedly a no-fault area
                 of liability
     7. General Motors Corporation v. Sanchez (620) -- Where a man drove to a
        corral to feed animals and stopped to shut a gate and mis-shifted into what he
        thought was the ―park‖ gear but was actually a neutral position between park
        and reverse and the truck slipped into reverse and pinned him between the
        truck and the gate causing him to bleed to death and the jury found the man
        50% responsible for the accident but the trial court disregarded this finding:
        the Supreme Court of Texas held that the man‘s negligence in failing to
        perform any of the safety measures described in the owner‘s manual went
        beyond a failure to discover or guard against a product defect (which is not a
        defense for strict liability) and accepted a comparative responsibility defense
        and reduced the damages award by 50 percent because more is expected of a
        consumer where there is a licensing requirement and public policy favors
        reasonable conduct by consumers regardless of whether a product is defective.
H. Work-Related Injuries
     1. Jones v. Ryobi, Ltd. (629) -- Where a woman is injured in using a printing
        press whose guard has been removed the court upheld the district court‘s
        judgment as a matter of law because to recover on a theory of strict liability
        for defective design the plaintiff must show that her injury was a direct result
        of a defect that existed when the press was sold and when a third party‘s
        modification makes a product unsafe the seller is relieved of liability even if
        the modification is foreseeable.
            a) There was sufficient evidence, even taking into account the
                 obviousness of the concealed danger, that duplicator was unreasonably
                 dangerous and thus was defectively designed: the duplicator could
                 have been equipped with external adjustment handles and the fact that
                 most machines have their guards removed is evidence that the
                 duplicator was incapable of operating efficiently according to industry
                 standards. This case should have gone to the jury.
     2. Liriano v. Hobart Corp. (633) – Hand in the meat grinder – Where a grocery
        store removed the safety guard on a meat grinder and no warnings about doing
        so were displayed on the machine, and where a seventeen-year-old employee
        who had recently immigrated to the country was not trained on the machine
        and lost his forearm and hand, the maker of the machine could be held liable
        for failure to warn even where the substantial modification defense would
        preclude liability on a design defect theory.
            a) The court noted that manufacturers could be held liable for failure to
                 warn against the dangers of foreseeable misuse of its product,



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                                 Torts Outline, Allen Fall 2006


                        sometimes even after the product has been sold, especially where the
                        manufacturer becomes aware of the product being misused after sale.
                   b) The court noted that a safety device is often the most effective way to
                        communicate that operation of the product without the device is
                        hazardous
                   c) When a warning adds nothing to the user‘s appreciation of the danger,
                        no duty to warn exists
                   d) The court wasn‘t supposed to determine whether the manufacturer was
                        actually liable; they were just answering a question from the federal
                        court
           3. Enterprise Responsibility for Personal Injury Vol. II Approaches to Legal and
               Institutional Change (644)
     I. Beyond Products?
           1. Royer v. Catholic Medical Center (648) – Where plaintiff undergoes a knee
               replacement and has to undergo a second operation to replace a defective
               prosthesis and the plaintiff sues the Catholic Medical Center which performed
               the operations and provided him the prosthesis for strict liability, the court
               held that the prosthetic device is merely incidental to providing a
               service although the defendants charged separately for the prosthesis and
               earned a profit on the ―sale‖ the CMC provided the prosthesis and the surgeon
               performed the service.
                   a) Because the policy rationale underlying strict liability does not
                        support the extension of the doctrine here because there is no
                        possibility of negligence and would result in higher health care costs
                        for all patients and impose an unreasonable burden on physicians and
                        hospitals to test or guarantee products used in hospitals by doctors;
                        research and innovation would also be inhibited.
     J. Intersection of Tort and Contract
           1. Economic loss rule normally limits recovery to injuries to people and
               property. If something damages just itself, no economic recovery and
               recovery should be under a warranty action not a tort action.
                   a) East River Steamship Corp. v. Transamerica Delaval Inc. (656) --
                        Where turbines malfunctions on ship and plaintiffs bring tort claims
                        against defendant manufacturer for lost income and the cost of
                        repairing the ships while they were out of service the court adopted the
                        majority-land based approach and held under admiralty law that a
                        manufacturer in a commercial relationship has no duty under either
                        negligence or strict products liability theory to prevent a purely
                        economic loss because a tort action could subject the manufacturer to
                        indefinite damages and it would be difficult for a manufacturer to take
                        into account the expectations of persons downstream who may
                        encounter the product and this claim is most naturally understood as a
                        warranty claim under contract law where parties can insure and
                        allocate the risks.
X. Damages
     A. Compensatory Damages



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                   Torts Outline, Allen Fall 2006


1. Seffert v. Los Angeles Transit Lines – Where a woman is caught in a bus door
   resulting in serious painful disabling and permanent injuries, the court finds
   that the jury verdict of $187,903.75, including $134,000 for pain and
   suffering, was high, however not so high as to shock the conscience and give
   rise to the presumption that it was the result of passion or prejudice on the part
   of the jurors.




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