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					                                                                 TORTS
                                                          Suter Fall 2000
                                                         Table of Contents

I.     Negligence .............................................................................................................................. 3
     A. DUTY: Can this P sue this D? ............................................................................................ 3
       1. Foreseeability .................................................................................................................. 3
       2. Misfeasance/Nonfeasance ............................................................................................... 3
       3. “Mere” Nonfeasance, BUT ............................................................................................. 3
       4. Voluntary Assistance ...................................................................................................... 4
       5. Special Relationship........................................................................................................ 4
       6. Duty to 3rd parties............................................................................................................ 4
       7. Landowner/occupier relationships .................................................................................. 6
       8. Intrafamily Immunity ...................................................................................................... 7
       9. Governmental Immunity ................................................................................................. 7
       10.    Ruinous Liability Concerns ........................................................................................ 8
       11.    Emotional Distress Claims.......................................................................................... 8
       12.    Wrongful Birth and Wrongful Life ............................................................................. 9
     B. BREACH: Has D behaved reasonably? .............................................................................. 9
       1. Objective Reasonable Person Standard .......................................................................... 9
       2. Custom .......................................................................................................................... 10
       3. Statutes .......................................................................................................................... 11
       4. Res Ipsa Loquitur .......................................................................................................... 12
       5. Foreseeability ................................................................................................................ 14
       6. Learned Hand Equation: B < PL................................................................................... 14
       7. Special Standard of Care ............................................................................................... 15
     C. Duty + Breach = Wrongdoing on part of D toward P. ...................................................... 17
     D. CAUSATION ................................................................................................................... 17
       1. Cause-in-Fact ................................................................................................................ 17
       2. Cause-in-Fact Challenges ............................................................................................. 17
       3. Loss of Opportunity for Survival (Past Harm) ............................................................. 17
       4. Enhanced Risk (Future Harm) ...................................................................................... 18
       5. Multiple Ds, Toxic Torts, etc. ....................................................................................... 18
       6. Proximate Cause ........................................................................................................... 19
       7. Intervening Causes ........................................................................................................ 20
     E. Damages ............................................................................................................................ 20
       1. Plaintiff MUST mitigate Damages. .............................................................................. 20
       2. Compensatory Damages ............................................................................................... 20
       3. Considerations in Assessing Compensatory Damages ................................................. 21
       4. Survival and Wrongful Death Actions .......................................................................... 21
       5. Punitive Damages ......................................................................................................... 22
     F. Defenses ............................................................................................................................ 22
       1. Contributory Negligence ............................................................................................... 22
       2. Assumption of Risk....................................................................................................... 23




K. Garrett                                                  Torts (Suter)                                 Fall 2000, Page 1 of 30
II.  Strict Liability ....................................................................................................................... 24
       Abnormally Dangerous Activity ....................................................................................... 24
      A.
     1. Restatement Second Factors (443)................................................................................ 24
     2. Indiana Harbor Factors (Same as R2d) ......................................................................... 24
   B. Product Liability ............................................................................................................... 25
     1. Manufacturing Defect ................................................................................................... 25
     2. Design Defect................................................................................................................ 25
     3. Warning Defect ............................................................................................................. 26
   C. Defenses – See I(F) Above ............................................................................................... 27
     1. Modification or Misuse of Product ............................................................................... 27
     2. Comparative Fault ......................................................................................................... 27
III.   Intentional ......................................................................................................................... 28
   A. Assault............................................................................................................................... 28
     1. Elements ........................................................................................................................ 28
   B. Battery ............................................................................................................................... 28
     1. Elements ........................................................................................................................ 28
     2. Defenses ........................................................................................................................ 28
     3. Damages ........................................................................................................................ 29
   C. False Imprisonment ........................................................................................................... 29
     1. Unlawful Restraint/Confinement .................................................................................. 29
     2. Mens Rea ...................................................................................................................... 29
   D. Intentional Infliction of Emotional Distress ..................................................................... 29
     1. Elements ........................................................................................................................ 29
     2. Public Figures ............................................................................................................... 29
   E. Defamation ........................................................................................................................ 30
     1. Definition ...................................................................................................................... 30




K. Garrett                                                Torts (Suter)                                 Fall 2000, Page 2 of 30
                                           TORTS
                                        Suter Fall 2000
Suter’s Continuum:
No Fault                Intentional Torts                 Negligence              Strict Liability
No recovery             CX, Intended                      Duty, Breach, CX        CX

      Determining Recovery Becomes Easier 
       Greater Moral Culpability 
Considerations for the imposition of liability:
       Fairness
       Compensation
       Deterrence
       Punishment
       Wrong-doing

Negligence
DUTY: Can this P sue this D?
Foreseeability
                        a. Would a reasonable person in the position of the D have foreseen
                           this risk of harm to P in the absence of care?
                               Factors of Duty:
                                    o Special Relationship
                                    o Foreseeability
                                    o Reliance
                                    o Nonfeasance v. Misfeasance
                                    o Voluntary assumption of aid
                                    o Breach of liability
Misfeasance/Nonfeasance
                        b. Generally duty exists in cases of misfeasance.
                           (1)     Palsgraf (dissent) – actor owes duty of care to general public –
                           those likely to be injured by act AND all those injuries proximately
                           caused by act.

“Mere” Nonfeasance, BUT
                        c. Nonnegligent injury: Duty to prevent further harm.

Maldonado v. Southern Pacific Transp. Co. (n4, 120): Train jerked as P tried to board. P fell under
wheels and his arm was severed. RULE: D employees had a duty to prevent further harm when they
knew P had fallen and did nothing to help.
                        d. Nonnegligent creation of risk: Duty to warn or remove hazard.

Simonsen v. Thorin (n6, 121): D knocked utility pole into street, and P hit the pole. RULE: D had duty to
warn or remove hazard even though not liable for creating the hazard.




K. Garrett                                Torts (Suter)                      Fall 2000, Page 3 of 30
Voluntary Assistance
                        e. Even if nonfeasance
                        f. No duty to rescue, BUT
                        g. If D rescues voluntarily  duty because
                           (1)    D is preventing someone else from rescuing
                           (2)    Want to encourage careful, not careless, rescuing

Farwell v. Keaton (125): Farwell and Seigrist, two friends, were attacked. Seigrist attempted to treat
Farwell, but after two hours left him in a car in his grandparents’ driveway. Farwell died 3 days later.
RULE: One who voluntarily comes to the aid of another in peril, or has a special relationship with another
in peril, has a duty to rescue the party in peril if the rescue can be accomplished without risking personal
danger.

Ronald M. v. White (n2, 129): Group of kids injured when driver was under the influence. D, members
of the group not under the influence, had no duty to the others to restrain the driver.

H.R. Moch Co. v. Rensselaer Water Co. Cardozo (n9, 131): D water company contracted to supply water
to the city. Moch’s warehouse burned down because a sufficient quantity of water was not available to
firefighters. RULE: Third party who is not a party to a contract but benefits from its performance may
not recover for a contracting party's NONfeasance.
                        h. Good Samaritan Laws in some jurisdictions.

Special Relationship
                        i.   Even if nonfeasance
                        j.   Custodial – vulnerable, dependant
                        k.   Business
                        l.   Reliance – expectation
                             (1)    Restatement § 315-318
                                        Parent-child
                                        Master-servant
                                        Possessor of land or chattels-user of land or chattels

Harper v. Herman (116): P dove off D’s boat into shallow water and was paralyzed. RULE: No special
relationship between boat owner and guest and no duty to warn. No duty for nonfeasance.
                                       (b) Morgan v. County of Yuba (n7, 122): D sheriff promised to
                                       warn P’s decedent before releasing man who had threatened her.
                                       D failed to warn and he killed her. RULE: D liable if P’s
                                       decedent relied on his promise to warn and would have acted
                                       differently without it.

Duty to 3rd parties
                        m. Warn or Control
                           (1)   Elements of Duty to Inform: (141)
                                 o   FOS of harm to  - most important
                                 o   Degree of certainty
                                 o   Closeness of connection between  conduct and  injury
                                 o   Moral blame of  conduct
                                 o   Policy of preventing future harm
                                 o   Extent of burden to 

K. Garrett                                 Torts (Suter)                          Fall 2000, Page 4 of 30
                                   o   Consequences to  & the community
                                   o   Availability, cost and prevalence of insurance for the risk
                             (2)       Restatement § 319
                                   o   “One who takes charge of a third person whom he knows or should know to
                                       be likely to cause bodily harm to others if not controlled is under a duty to
                                       exercise reasonable care to control the third person to prevent him from
                                       doing such harm.” (e.g. escape of homicidal maniac or N release of patients
                                       who have contagious diseases.)
                                   o   Dr. NOT liable if he fails to predict & confidentiality is still a concern

Tarasoff v. Regents of the Univ. of CA (140): D’s psych. patient killed Tatiana Tarasoff, and her parents
sued for Dr’s failure to warn. RULE: Because of psychologist’s special relationship with a patient, the
psych. has a duty to warn third parties of the patient’s violent intentions, even if the psych. has no special
relationship with the foreseeable victim.

                                                o   Tarasoff – Majority Rule. CA: Victim must be
                                                    identifiable; TX, VA reject Tarasoff

Pate v. Threlkel (n3, 147): D surgeon should have known that patient’s adult children could likely
develop carcinoma. RULE: Dr. had duty to inform adult children of patient that they had a genetic
predisposition for the same kind of cancer found in parent.

Safer v. Pack (handout): Dr. had duty to warn third party directly of genetic link for colon cancer when
third party is identifiable or harm may be averted or lessened through a warning and warning doesn’t
place a large burden on Dr.

Kelly v. Gwinnell (157): Zak, social host, served alcohol to intoxicated friend who Zak knew would be
driving. MINORITY RULE (NJ): A host who serves liquor to an adult social guest, knowing both that he
is intoxicated and will be driving, is liable for injuries to a third party. NJ LEGISLATIVE RESPONSE:
Limited – Social host has limited liability for willfully and knowingly providing alcoholic beverages to a
person who was visibly intoxicated in the host’s presence under circumstances manifesting reckless
disregard of the consequences.

Dram Shop Acts: Imposes civil liability on commercial establishments that serve alcohol to intoxicated
guests. Rule in most states. Bar has a duty because they are receiving a benefit.

Some jurisdictions Dr. has no duty, but does have a privilege to warn third parties about HIV.
                         n. Negligent entrustment

Vince v. Wilson (152): P was injured in a car accident with D’s grandnephew. D bought the car for her
grandnephew knowing that he did not have a license, had failed the driving test several times, and abused
alcohol and drugs. RULE: The negligent entrustment theory requires a showing that the entrustor knew
or should have known some reason why entrusting the item to another was foolish or negligent.

Palma v. U.S. Industrial Fasteners (n5, 155): Truck owner breached a duty to the public when he left his
keys in a 2-ton truck in bad neighborhood. Ct says high FOS, low burden to community of imposing a
duty, low burden to D.




K. Garrett                                    Torts (Suter)                        Fall 2000, Page 5 of 30
Landowner/occupier relationships
                         o. Traditional Approach (MAJORITY)
                            (1)    Invitee: Express or implied invitation to enter or use another
                            person’s premises, such as a business visitor or a member of the public
                            to whom the premises are held open (material benefit or property held
                            open to the public)
                               o   Warn of hidden dangers
                               o   Inspect and Discover dangers
                               o   Make premises safe
                             (2)     Licensee: One who has permission to enter or use another’s
                             premises, but only for one’s own purposes and not for the occupier’s
                             benefit (Vast majority of jurisdictions make a social guest a subclass
                             of licensees) – licensees are on property for their own purpose and
                             must take the premises as they find it. Not extending invitation to
                             public at-large. (n1, 168) rationale - social guests don’t expect hosts to
                             go to special efforts above what they do for themselves. Homeowners
                             insurance – decreases the direct cost to the host, so it would make it
                             easier to call the guest an invitee.
                               o   Warn of Hidden Dangers

Britt v. Allen County Community Junior College (n7, 169): Salesman’s foot. RULE: Duty to act with
due care when affirmative action. Duty to warn licensee of hidden dangers on premises.
                             (3)    Trespasser: Person who enters land without possessor’s
                             permission
                               o   Undiscovered – no duty of care owed to a trespasser
                               o   Child –
                                      Owner knows of frequent use by children
                                      Risks children don’t appreciate makes unsafe
                                      Expense of protecting is low
                                      Owner knows or should know of danger
                               o   Frequent or Anticipated – Duty: reasonable care to warn of know
                                   dangers.

Carter v. Kinney (165): P slipped on ice while going to D house for a Bible study. RULE: A person is an
invitee if the possessor invites with an expectation of a material benefit or if the premises are thrown open
to the public in such a way as would imply a warranty of safety. Carter was a licensee, not an invitee.
                         p. Rowland Approach (MINORITY)

Rowland v. Christian (172): P injured by broken faucet handle. RULE: Duty to warn or repair regardless
of status.
                         q. Criminal Activity

Kline v. 1500 Mass. Ave. Apts. (n7 197): Landlord has a duty to make common areas safe

Sharon P. v. Arman, Ltd. and Ann M. v. Pacific Plaza Shopping Center (handout): Commercial landlord
has a duty to take reasonable steps to secure common areas against FOS criminal acts.




K. Garrett                                  Torts (Suter)                      Fall 2000, Page 6 of 30
Intrafamily Immunity
                         r. Parent-Child: Can sue for intentional harms but not for
                            Negligence.

Zikely v. Zikely (189): Child burned by hot bath water. RULE: No cause of action for negligent
supervision.

Gibson v. Gibson (n4 193): Reasonable parent standard.

Schlessinger v. Schlessinger (n9 195): Third party can’t bring parent into suit if child could not have sued
directly.

Nolechek v. Gesuale: EXCEPTION – parent created a public risk when she gave a motorcycle to a child
who was blind in one eye, had poor vision in the other, and didn’t have a license. Child died in accident –
allowed to sue.
                         s. Spousal Suits: Can sue for intentional and negligent harms.

Governmental Immunity
                         t. Municipal and State
                                Proprietary – NO immunity, Negligence analysis
                                 o Supplementing private sector, e.g. buildings, roads
                                Governmental – ABSOLUTE Immunity
                                 o Discretionary Functions: Protecting Public, public health, Education,
                                     Elections, Taxes
                                 o Policy Choices – Even if behavior is unreasonable, choices are protected
                                 o 911: Direct contact with victim and reliance
                                 o EXCEPTIONS:
                                      Creation of risk
                                      Beginning of rescue
                                      Reliance
                                Qualified Immunity
                                 o Planning Decision: must have a rational basis for making decision, BUT
                                     decision is not evaluated. Was decision made arbitrarily?
                                 o Implementation: Negligence evaluation – Once decision was made, was it
                                     implemented reasonably?

Friedman v. State of New York (210): State failure to construct a median barrier. RULE: Once decision
is made, duty to implement reasonably.

Riss v. City of New York (198): Pugach threw lye in Riss’s face. RULE: Police not liable for failing to
protect.

Schuster v. City of New York (n1 203): P killed after identifying wanted criminal. RULE: Police liable
for failing to protect because they had acted affirmatively not passively.

Sorichetti v. City of New York (n2 203): Child mutilated by father. RULE: Police liable because they
had assured mother that they would act and protect child.
                         u. Federal - Federal Tort Claims Act (1946)
                                Allows suits for property damage, personal injury or death caused by the
                                 negligent or wrongful act or omission of any federal employee while acting in
                                 the scope of his employment.

K. Garrett                                  Torts (Suter)                        Fall 2000, Page 7 of 30
                                    o Was there a choice?
                                    o Was it a policy kind of choice?
                                    o If yes, absolute immunity.
                                   Discretionary functions are immune, but definition of discretionary is unclear.

Berkovitz v. US (216): Contaminated polio vaccine. RULE: If agency fails to follow its own guidelines –
NO immunity. If agency follows its own guidelines and finds it unsafe, but licensed it anyway – NO
immunity. If agency follows its own guidelines, but the guidelines are later determined to be inadequate,
IMMUNITY – policy choice.

Ruinous Liability Concerns
                        v. Liability would ruin the tortfeasor, so no duty if no privity of
                           contract.

Strauss v. Belle Realty Co. (133): P fell down in the common area of his apartment during a citywide
power failure. RULE: A utility does not owe a duty of care to the landlord’s tenant because the utility has
only contracted with the landlord.

Emotional Distress Claims
                        w. Physical Impact Rule – If P was physically injured by D, courts
                           generally allow pain and suffering.
                        x. Special Cases
                           (1)    Mishandling of a corpse
                           (2)    Mistaken telegram of death
                        y. Direct Victims
                                        Zone of Danger
                                                  KAC                                    GAMMON
                                 - Zone of Danger                           - FOS of ED (reasonable person could
                                 - Reasonable fear for safety               not cope)
                                 - Severe ED                                - Severe ED
                                 - Physical Manifestations                  - NO physical manifest. required

KAC v. Benson (226): Patients sue gynecologist with HIV. RULE: Unreasonable fear, not in the ZOD.
Gammon v. Osteopathic Hospital of Maine (234): Severed leg. RULE: FOS ED = recovery
                        z. Indirect Victims – Bystander Cases:
                           (1)    Analyze Duty, Breach, Cause, Damages to Victim THEN
                           analyze indirect victim – no need to go through duty, breach, cx,
                           damages for indirect victim.
        FOS               Dillon                       Portee                 ZOD (Johnson)             NO Duty
     Easy        - Family                     - Family                   - Family                      No
     recovery    - Observe Accident           - Observe accident &       - Zone of Danger              Recovery
                 - Proximity                  Proximity                  - Severe ED
                                              - Severe injury to V
                                              - Severe ED

Portee v. Jaffee (238): Mother watches son die in elevation shaft.

Johnson v. Jamaica Hospital (251): Parents not in the zone of danger when infant is kidnapped from the
hospital.



K. Garrett                                     Torts (Suter)                         Fall 2000, Page 8 of 30
                       aa. Reasons for Court reluctance to grant recover for ED w/o physical
                           injury
                              Hard to prove Ed
                              Fear of fraud
                              Fear of excessive claims
                              Skepticism (no real damage)
                              Ineffective deterrence

Wrongful Birth and Wrongful Life
                       bb. Wrongful Birth: P is parent – allowed by most courts
                       cc. Wrongful Life: P is child – NOT allowed by most courts. (Allowed
                           by NY, NJ, CA – recovery is offset.
                       dd. Wrongful Pregnancy: P is parent – sterilization didn’t work

Greco v. US (257): Allowed wrongful birth, NOT wrongful life. Recovery allowed for extraordinary
medical and custodial expenses and emotional distress, but not for loss of consortium. NO offset rule.
                                      (b) Martinez v. Long Island Jewish Hillsdale Medical Center
                                      (264): Mother allowed to recover for emotional distress after
                                      having an abortion based on erroneous information from her Dr.
                                      that child would have small or no brain.

BREACH: Has D behaved reasonably?
Objective Reasonable Person Standard
                       ee. Would a reasonable person under the same circumstances have
                           acted the same way as D? Conduct matters, not state of mind.
                           Negligence does not look at intention.
                       ff. Factors of Due Care
                           (1)     FOS
                           (2)     Feasibility
                           (3)     Custom
                           (4)     Plaintiff’s Conduct
                           (5)     Value of Activity
                           (6)     Degree of Danger
                       gg. Intoxication – NOT an excuse for unreasonable conduct
                       hh. Exceptions
                           (1)     Children – Standard is a reasonable child of similar age,
                           intelligence, etc., UNLESS the child is engaged in an adult activity.

< 6 conclusive presumption – not negligent
                                       (b) 7 – 14 rebuttable presumption
                           (2)    Physical Attributes or Disability – Standard of reasonable
                           person with same physical attributes or disability




K. Garrett                               Torts (Suter)                     Fall 2000, Page 9 of 30
                            (3)       Mental Capacity

                                          Slight Mental Deficiency – No excuse – still reasonable person
                                              standard

                                          Extremely Low Intelligence – Majority View: not capable of
                                              Negligence

                                          Insanity – Majority View: reasonable person standard. Minority
                                              View: If not capable of appreciating or avoiding danger, then
                                              not Negligent

Sudden Illness or Unconsciousness – Not Liable if Not FOS

Hammontree v. Jenner (3): D had a seizure and drove through P bicycle shop, injuring P. No
liability if not FOS
                                  (4) Emergency Doctrine -
Custom
                        ii. Persuasive but not determinative.
                        jj. Custom relates to feasibility (B factor).
                        kk. If D followed custom, MAY be evidence of Reasonable Care – not
                            conclusive. Custom does not define the standard of care (except in
                            malpractice cases).

United States v. Carroll Towing Co., Learned Hand (35): Barge broke away from pier and sunk due to D
negligence in shifting mooring lines. P - contributory negligence in not having bargee on board to
prevent accident. RULE: If B < PL, then Negligence. If it was custom not to have bargees on board at
night, it may be that the situation is one where custom should control.
                        ll. Failure to follow custom is irrelevant if D used reasonable care

Trimarco v. Klein (58): P injured by shattered bathtub glass door argued that custom was to use tempered
safety glass. RULE: Custom and usage is only one factor in determining reasonable care. Custom is
persuasive evidence, BUT custom must also be reasonable. BUT

Levine v. Russell Blaine Co. (n5, 62): P cut hand on rough rope on dumbwaiter and infection led to
amputation. RULE: If the purpose of the customary use of smooth rope was to avoid such injuries, the
evidence of the custom was admissible. BUT

Garthe v. Ruppert (n6, 62): P slipped on wet brewery floor. Evidence that one brewery had developed a
way to keep the floors dry was NOT admissible as evidence of custom. RULE: Not “permitted to take 1
or 2 instances as a gauge or guide in place of the custom of the trade.
                        mm. The fact that something is NOT a custom, does not necessarily
                          mean that D was reasonable – may just not be the custom YET

The T.J. Hooper, Hand (n2, 60): Tug did not have a radio, so it did not learn of a storm in time, and it
sunk along with the barges it was towing an their cargo. RULE: Showing that radios were not customary
on tugs did not prove that D was reasonable in not having a radio. May just not be the custom YET.
BUT


K. Garrett                                  Torts (Suter)                   Fall 2000, Page 10 of 30
LaVallee v. Vermont Motor Inns (n4,61): P injured during a power outage at hotel. Argued that D should
have installed emergency lighting, but D showed evidence that this was not a custom. RULE: “While
industry custom is not conclusive…, it is a useful guide, unless it is apparent that under the particular
circumstances of the case a reasonable person would not conform to the industry-wide custom.”
                         nn. Custom is a jury question.
Statutes
                         oo. Statutory Purpose
                             (1)     Objective – Was the statute designed to protect safety?
                             (2)     Class – P is part of Class of persons the statute was designed to
                             protect
                             (3)     Type of Harm – The harm suffered is what the statute was
                             meant to prevent
                                        Narrow – sheep overboard
                                        Broad – radiator on construction worker’s head
                             (4)     Standard – The required standard of conduct is clearly defined
                             in the statute

Platz v. City of Cohoes (n8, 70): P injured by obstruction in the road, negligently left by city. D argued
that P would not have been injured if they had obeyed a statute that forbids driving on Sunday. RULE:
Statute designed to protect public order not public safety, NOT applicable to D negligence.

De Haen v. Rockwood Sprinkler Co., Cardozo (n8, 70): P injured when radiator fell down shaft that did
not have the statutorily required railing. RULE: Injury was in the “zone of apprehension” even though it
was not the exact injury the statute was designed to prevent.

Gorris v. Scott (n10, 73): D ship owner failed to build pens for sheep in compliance with Contagious
Diseases Act, and sheep were washed overboard. RULE: Statute must be designed to prevent the harm
that was suffered.
                         pp. Type of Statute: Standard of Care v. Rules of Conduct Statute
                             (1)   Negligence Per Se: Standard of care
                                        Statute defines reasonableness
                                        Breach of duty as a matter of law unless excuse
                                        Excuse must be extreme
                                        Judge evaluates excuse
                                        E.g. Rule of the road to keep public safe (Martin v. Herzog)
                             (2)     Rules of Conduct
                             (3)     Evidence of negligence, but NOT conclusive
                                        Excuse if following statute would have been more dangerous than non
                                         following statute
                                        Jury evaluates excuse
                             (4)     Rule of conduct to keep pedestrians safe (Tedla v. Ellman)

Baltimore & Ohio RR v. Goodman, Holmes (48): Goodman should have gotten out of his car to make
sure RR crossing was safe. RULE: Question of Due Care generally up to the jury, but when standard of
conduct is clear, it should be laid down by the Courts. BUT

Pokora v. Wabash Railway Co., Cardozo (50): Even if Pokora had gotten out of his car to look, he still
could not have avoided the danger. RULE: “Standards of prudent conduct are declared at times by courts,
but they are taken over from the facts of life. *** …need of caution in framing standards of behavior that
amount to rules of law.” Limited Goodman.

K. Garrett                                  Torts (Suter)                      Fall 2000, Page 11 of 30
Akins v. Glen Falls City School Dist. (52): NY C of A held that there was no basis for the jury to find the
school district was negligent when Pokora was hit by baseball when not standing behind a large backstop.
RULE: Jury should be allowed to determine reasonableness based on current community standards and
current technology.
                         qq. Civil Liability
                             (1)    MAJORITY VIEW: Statutory violation is Negligence PER SE

Martin v. Herzog, Cardozo (63): Martin killed when his buggy was struck by Herzog’s car. Martin was
violating statute by driving without lights. RULE: Unexcused omission of a statutory requirement is
negligence PER SE. Must show that omission contributed to the damages to be contributory negligence.
JUDGE MAY NOT INSTRUCT A JURY TO DISREGARD A STATUTE. Judge will decide acceptable
excuse.
                             (2)    MINORITY VIEW: Statutory violation is only some evidence
                             of Negligence that may be outweighed by other evidence showing due
                             care, BUT if statute explicitly states that its violation = civil liability,
                             then Minority View will impose liability.

Clinkscales v. Carver, Trainer (n4, 65): Ran stop sign that had been erected under ineffective ordinance;
no criminal liability. RULE: Limit of criminal liability does not affect civil liability. Treat statutes like
custom.
                         rr. Excuses
                             (1)   Compliance would be more dangerous than noncompliance

Tedla v. Ellman (66): P struck by D car while walking on wrong side of road because of heavy traffic on
the right side of the road. RULE: Violation of a safety statute may be excused if a greater risk of harm
would have resulted from complying with the statute.
                             (2)     Compliance is impossible
                             (3)     D was faced with emergency he did not create
                         ss. Obsolete Statute – court will ignore evidence of statutory violation
                             is statute has not been enforced in a long time, or if it is without
                             foundation

Res Ipsa Loquitur
                         tt. Inference or presumption of Negligence (duty/breach) by the mere
                             fact of the accident having occurred – prima facie case  gets case
                             to jury.

Byrne v. Boadle (80): P injured by Flour Barrel falling out of a window. MINORITY VIEW - RULE: D
must prove NOT negligence. Most courts do NOT shift burden of proof.

                         uu. Elements (OPEC) – established with Preponderance standard
                             (1)     Ordinarily a type of accident that would not normally occur
                             without negligence
                             (2)     P was free from fault – P did not contribute through voluntary
                             act (not required in all jurisdictions)
                             (3)     Exclusive Control – D had exclusive control over the
                             instrumentality that caused the injury


K. Garrett                                   Torts (Suter)                     Fall 2000, Page 12 of 30
Anderson v. Service Merchandise (83): P injured when light fell from ceiling. Sylvania had contract with
Service Merchandise to maintain the lights, but Service employees changed light bulbs. RULE: Must
have exclusive control over the instrumentality for liability. Service Merchandise had non-delegable duty
to customers, but Sylvania did not have exclusive control.
                            (4)     Frequently, P does not have access to the evidence. This may
                            be persuasive, but it is not an explicit requirement.
                            (5)     Courts divided on use of expert witnesses in Res Ipsa cases.
                        vv. D rebuttal evidence
                            (1)     MAJORITY VIEW: (NY) PERMISSIBLE INFERENCE of
                            negligence: jury could infer D was Negligent, but doesn’t have to. D
                            does NOT have to rebut to win. Usually goes to jury, but P can win
                            directed verdict.

Farina v. Pan American World Airlines (n7, 87): P can win directed verdict even in permissible inference
states, but res ipsa is usually not enough to win case.

Leonard v. Watsonville Community Hospital (n9, 87): One of the doctors proved that he had not worked
on the upper abdomen where the Kelly clamp was left in patient. RULE: It is possible that D can rebut so
effectively that D wins directed verdict.
                            (2)    MINORITY VIEW: (CO, KY, CA) REBUTTABLE
                            PRESUMPTION of negligence. If D does not rebut, P wins. D has
                            the Burden of Production.
                            (3)    MINORITY VIEW 2: (Miss, La) SHIFT Burden of Proof to D
                            (both Persuasion and Production).
                                      MAJORITY                 MINORITY 1                  MINORITY 2
                                 NY                       CA, KY, CO                  Miss, LA
                                 Permissible              Rebuttable Presumption      Shift Burden of proof
                                 Inference                                            to D
                                 D may win w/no           D no rebuttal - P wins      Persuasion &
                                 rebuttal                 Burden of production        Production
                                                          shifts to D

                        ww. Multiple D
                          (1)     Res Ipsa can be applied to 2 or more D even though only one
                          was negligent if they were all involved with activities surrounding the
                          injury and it is difficult to pinpoint the person who actually caused the
                          injury – treats the group as a single entity.

Ybarra v. Spangard (90): (CA) P injured during surgery couldn’t know which member of surgical team
was responsible for paralysis. RULE: Can use Res Ipsa, and each D is responsible for rebutting the
presumption of negligence. Rationale: Ds have more access to evidence than P, and Drs. will not usually
testify against each other. BAD Res Ipsa case – stretched res ipsa as far as it would go.
                                        (b) Barrett v. Emanuel Hospital (97): (OR) Rejected Ybarra –
                                        arguing that modern discovery practice eliminates the need for
                                        Ybarra, P must establish that a particular D caused harm, and
                                        unconscious V could be protected through strict L.




K. Garrett                                Torts (Suter)                      Fall 2000, Page 13 of 30
Foreseeability
                        xx. FOS and feasibility

Adams v. Bullock, Cardozo (31): P electrocuted when the 8 ft. wire he was carrying hit trolley lines.
RULE: Duty to adopt Reasonable precautions to minimize possible danger. NOT Negligent for not
protecting against unFOS, extraordinary injury that would be extremely difficult (unfeasible) to prevent.

Braun v. Buffalo Gen. Elec. Co. (n2, 32): P construction worker electrocuted and killed when he touched
wires with expired insulation. RULE: Negligent for failing to prevent FOS injury that would have been
feasible to prevent.

Greene v. Sibley, Lindsay & Curr Co., Cardozo (n3, 33): Woman turns and trips over kneeling mechanic.
RULE: Duty to warn would create an unreasonable Burden, unfeasible.
                        yy. Notice
                            (1)     Constructive Notice – defect must be visible and apparent and
                            it must exist for a sufficient length of time prior to the accident to
                            permit D’s employees to discover and remedy it.

Negri v. Stop & Shop (76): P injured when he slipped on broken “dirty and messy” baby food jars.
RULE: D SHOULD HAVE KNOWN  Constructive notice.

Gordon v. American Museum of Natural History (76): P slipped on waxy paper on the museum steps.
RULE: No evidence of constructive notice – not dirty or torn, no witnesses noticed hazard prior to
accident.
                            (2)     Actual Notice
                            (3)     Mode of Operation – In some states the supermarket customer
                            may be able to recover arguing that by choosing self-service, the
                            owner has agreed to assume responsibility for the conduct of
                            customers who drop items on the floor or are careless. No need to
                            prove actual or constructive notice “if proprietor could reasonably
                            anticipate that hazardous conditions would regularly arise.” Rationale:
                            owner gains pecuniary benefit from requiring customers to perform
                            tasks previously carried out by employees.

Learned Hand Equation: B < PL
                        zz. B = Burden to Prevent Harm: cost of prevention & feasibility
                        aaa. P = Probability of harm occurring: FOS
                        bbb. L = Severity of Harm (Loss)/Magnitude
                        ccc. If B < PL, then N; If B > PL, then not N

United States v. Carroll Towing Co., Learned Hand (35): Barge broke away from pier and sunk due to D
negligence in shifting mooring lines. P - contributory negligence in not having bargee on board to
prevent accident. RULE: If B < PL, then Negligence

McCarty v. Pheasant Run, Posner (n4, 38): Woman assaulted in hotel room. RULE: Posner upholds jury
verdict for D, saying that Hand formula “has greater analytic than operational significance.”




K. Garrett                                 Torts (Suter)                   Fall 2000, Page 14 of 30
                                        (c) Bolton v. Stone (n7, 39): Cricket ball hit woman in her yard
                                        across the street from cricket field. RULE: B > PL  no
                                        negligence.
                        ddd. Social Utility: Goes to B factor
                           (1)  Does the risky activity have a high social utility (e.g., cars)?

Chicago, Burlington & Quincy R. Co. v. Krayenbuhl (n3, 37): Child’s leg severed while playing in train
yard. RULE: High social utility demands the use of machinery (but should have used a lock to prevent
injury).
                        eee.    If B = PL, then party with the burden of proof loses.

Special Standard of Care
                        fff. MEDICAL MALPRACTICE
                             (1) Professional Standard of Care
National Standard
Locality Rule
                            (2)    Success is Not Guaranteed – only requires professional to act
                            with the requisite amount of skill
                            (3)    Differing Schools of Thought – Dr. can choose any reasonably
                            accepted school of thought
                            (4)    Specialists – held to a higher standard than professionals
                            without a specialty
                            (5)    Novices – newly licensed professionals held to the same
                            professional standard as experienced professionals
                            (6)    Medical Equipment – sometimes juries can consider the
                            medical equipment that was available
                            (7)    Informed Consent – Dr. must inform patients of risks that are
                            inherent in medical procedures, unless the treatment is given in an
                            emergency situation and the patient is incapable of giving consent.

                                        Good Cases – elective surgery or experimental treatment. Bad
                                           Cases – when patient is seriously ill or injured.

                                        DUTY/BREACH – SCOPE OF DISCLOSURE – what Dr.
                                          should tell
                                                1.   Professional Standard (Traditional) – set by Drs.
                                                2.   Reasonable Patient Standard (Modern)
                                                3.   Individual Patient Standard (Minority)

MATERIAL INFORMATION
                                                1.   Magnitude
                                                2.   Probability
                                                3.   Reasonable Alternatives
                                                4.   Benefits & Risks of having or not having treatment

TEST FOR MATERIALITY OF RISKS
                                                1.   Define existence and nature of risk and likelihood of its
                                                     occurrence – Expert Testimony needed.
                                                2.   Trier of fact determine if probability of risk is something
                                                     a reasonable patient would consider – would a reasonable

K. Garrett                                Torts (Suter)                       Fall 2000, Page 15 of 30
                                                      patient attach significance to the specific risk – NO
                                                      Expert Testimony needed. Would a reasonable person
                                                      have chosen differently if informed? (Minority Korman
                                                      (Alaska) would P have chosen differently if informed?)

CAUSATION
                                                 1.   But for the failure to inform, patient would not have
                                                      consented
                                                 2.   Proximate Cause of injury

DAMAGES
                                                 1.   Courts – risks must manifest; must have physical damages
                                                 2.   Scholars – lack of autonomy IS the damage; not being
                                                      able to choose based on all the information

Exceptions – Therapeutic Privilege:
                                                 1.   If full disclosure would have a detrimental effect on
                                                      physical or psychological well-being of patient.
                                                 2.   Patient incapable of consent – mental disability or
                                                      infancy.
                                                 3.   Patient has requested not to be told.
                                                 4.   Emergency.
                                                 5.   Risk known to patient or so obvious as to justify
                                                      presumption of knowledge.
                                                 6.   Relatively remote risks inherent in common procedures.
                                                 7.   Physician does not know and should not have been aware
                                                      of risk.

Korman v. Mallin (108): Scarring after breast reduction surgery. RULE: Patient request for additional
information can be a guide to indicate whether information was adequate.
                                                 1. Consent for is presumptive evidence, but can be
                                                     rebutted.

Truman v. Thomas (112): (CA 4-3 decision) Dr. held L for consequences of patient refusing treatment
because he did not advise patient of dangers of NOT receiving treatment.

Pauscher v. Iowa Methodist Medical Center (112): P died after D performed medical procedure without
informing her of risks. RULE: Standard for Dr.’s duty to disclose is governed by what each patient
WANTS to know, so expert testimony of professional standard for disclosure of risks NOT necessary.
Dr. must assert a defense justifying the nondisclosure.
                                    TRADITIONAL/MAJORITY               MINORITY              SUBJECTIVE
                                 Professional standard set by Drs.     Reasonable            What THIS patient
                                                                       Patient would         wants to know
                                                                       want to know

                            (8)     Expert Testimony – necessary unless negligence is obvious to
                            a lay person (e.g., amputated the wrong leg). Can be used with Res
                            Ipsa in some states.

Connors v. University Associates in Obstetrics & Gynecology (103): “In an effort to become pregnant,
plaintiff underwent surgery. After the surgery she lost all function in her left leg.” RULE: Could use
expert testimony in res ipsa.

K. Garrett                                 Torts (Suter)                       Fall 2000, Page 16 of 30
Purtill v. Hess (99): RULE: Expert MUST be
                                                 1. Licensed member of the school of medicine about
                                                    which he proposes to testify.
                                                 2. Familiar with the methods, procedures, and
                                                    treatments ordinarily observed by other physicians in
                                                    either D’s community or a similar community.
                                                 3. THEN – Trial Court has the discretion to determine
                                                    whether the expert is qualified and competent to
                                                    state his opinion.
                                                 4. BUT - Expert does NOT have to have same specialty as
                                                      D Dr. Jones v. O’Young (98)
                        ggg. COMMON CARRIERS
                           (1) MAJORITY VIEW: Heightened Standard of Care – B < PL +
                           X
                                (2) Kozinski arguing for higher DEGREE of care NOT higher STANDARD of
                                care. B<PL NOT B<PL+X. P would argue higher STANDARD.

Andrews v. United Airlines, Kozinski (currently 9th Cir.) (54): P injured when bags fell out of an
overhead bin on airplane. RULE: Common Carriers owe a duty of the utmost care and vigilance of a very
cautious person toward its passengers. D responsible for even the slightest negligence and is required to
do all that human care, vigilance, and foresight reasonably can do under the circumstances consistent with
the character and mode and practical operation of the business.

Duty + Breach = Wrongdoing on part of D toward P.

        CAUSATION
                Has D’s wrongdoing CAUSED compensable harm to P?
Cause-in-Fact
                        hhh. Jury Question – More likely than not
                        iii. But-for causation (don’t forget to mention this!!!)

Stubbs v. City of Rochester (294): Whether city mixing up water lines caused P’s typhoid fever. RULE:
P does not have to rule out ALL other possible causes. Must show cause was a REASONABLE
CERTAINTY. Correlation does not necessarily show Causation.

Cause-in-Fact Challenges

Loss of Opportunity for Survival (Past Harm)
                                        Loss of Opportunity < 50%               Wrongful Death > 50%
                                     Proportional Recovery                Full Recovery

Falcon v. Memorial Hospital (300): Mother died after childbirth. Loss of opportunity of 37.5% chance of
survival. RULE: Preponderance of the evidence that there was a lost chance for survival. Proportional
recovery allowed if < 50% chance of survival. Wrongful Death = Full recovery if > 50% chance of
survival.




K. Garrett                                 Torts (Suter)                    Fall 2000, Page 17 of 30
Enhanced Risk (Future Harm)
                          jjj. Enhanced Risks = Future costs of disease & Pain and Suffering,
                               lost earnings, medical expenses
             Petriello                             Mauro                          Mariani (Two-disease)
Easiest for R, but rarely used      Intermediate                           Hardest for P
Can recover for < 50% risk          Can recover if > 50%                   Manifestation of disease for
                                                                           recovery
Recovery proportional to risk       Recovery proportional to risk          Full recovery
Optimal deterrence                  Optimal deterrence                     Optimal deterrence
Under/over compensation             Under/over compensation                Optimal compensation
                          kkk.
                          lll. Medical Surveillance
                                                                     Mauro
                                          - Significance/Extent of Exposure
                                          - Toxicity
                                          - Seriousness of disease
                                          - Relative increase in risk
                                          - Value of early diagnosis
                                          - Manifestation of physical injury??
                                          - Minimum threshold of absolute (not just relative) risk??
                          mmm.
                          nnn. Emotional Distress: Use Mauro or Potter, THEN go to KAC
                             and Gammon analysis.
                                                      Mauro                              Potter
                                          Reasonable concern based on      Fear must be based on > 50% risk
                                          enhanced risk
                                          Exposure to toxin                Exposure to toxin
                                          Physical Injury?                 No physical injury required

Mauro v. Raymark Industries (311): Enhanced risk of cancer after exposure to asbestos.

Multiple Ds, Toxic Torts, etc.
                          ooo. Concert in Action – J&S L (all drag racers liable)
                          ppp. Single Indivisible Injury – J&S L (2 people cause 1 harm, e.g. 2
                               doctors in Ybarra v. Spangard)
                          qqq. Alternative Liability – J&S L (Summers v. Tice (325): both D’s
                               shoot negligently, but don’t know who caused injury, BUT if 1 D is
                               NOT negligent, then NO liability for either  no recovery. Shift
                               of burden of proof to D’s to prove each was NOT responsible for
                               the harm.)
                          rrr. Concurrent Causes – J&S L (both D’s start fire
                               simultaneously)
                          sss. Successive Causes – Only First party liable 100%, but reduced
                               damages if second cause is an act of God.
                          ttt. Market Share

Hymowitz v. Eli Lily (329): DES case. Several Liability only based on National Market Share.
                                                          Fungible Product
                                                          Parallel Activity

K. Garrett                                 Torts (Suter)                       Fall 2000, Page 18 of 30
                                                           Injury occurs years later
                                                           P can inculpate (100% Liability if P knows exact D)
                                                            (traditional)
                                                           D CANNOT exculpate (Still pays market share even
                                                            if D did not make blue pill) (nontraditional)
                         uuu. Problem: Most harms have many but-for causes
                            (1) Which are actionable?
                            (1)    Leads to proximate cause analysis

                Proximate Cause
                        Is harm to P sufficiently connected or related to D’s wrongdoing to impose
                         L (consider policies of tort law)
                         vvv. Question of law for Judge
                         www. Factors contributing to Proximate Cause (373)
                                         But-for causation
                                         Natural and continuous sequence of cause and effect
                                         Direct connection without too many intervening causes
                                         FOS: Type, Extent, Manner, Plaintiff
                                         Nearness in time and space
                                         Policy considerations
                         xxx.      Directness– Closeness in time and space

In Re Polemis (352): Plank fell and sparked a fire that resulted in burning ship. RULE: If FOS general
harm, then liable for UNFOS type or extent of harm only if negligent act was the DIRECT Cause of the
damages.
                         yyy. Foreseeability (of what?)
                            (1)  Type of Harm – Majority Rule: Must be FOS

Wagon Mound (353): Oil spilled from ship, then spark from P’s wharf ignited the oil on the water, which
burned the wharf. RULE: UNFOS type of harm was not the DIRECT cause.
                             (2)      Extent of Harm (Eggshell P) – doesn’t have to be FOS

Steinhauser v. Hertz Corp. (345): Car accident caused daughter’s schizophrenia. RULE: Take victim as
you find her – Eggshell Skull Plaintiff Rule. If general harm is FOS, then D is liable for the full extent of
the damages.
Property?
                             (3)      Manner – usually intervening causes

McLaughlin v. Mine Safety Appliances Co. (360): P suffered third degree burns from warming blocks
used by firefighter and nurse in rescue. RULE:
                                              o   Gross Negligence = Superseding cause = NO liability;
                                              o   FOS Mere Negligence = Liability;
                                              o   UNFOS mere Negligence = unclear.

Restatement View (Kush by Marsalek) § 447 & § 449(Dissent):
                                              o   FOS Mere Negligence = Liability
                                              o   Likely Gross Negligence or Criminal act = Liability

Hines v. Garrett (n4 364): Woman raped in bad neighborhood when train dropped her off 1 mile past her
stop. RULE: Followed Restatement.


K. Garrett                                  Torts (Suter)                      Fall 2000, Page 19 of 30
                                (4)     Plaintiff – Is there a duty to this P

Palsgraf v. Long Island RR Co. (366) (Dissent = Now Majority Rule): Scale fell on Palsgraf on train
platform when fireworks exploded. RULE: Duty owed to the world if MISfeasance. Duty is only a
question if NONfeasance. (Cardozo – sphere of duty)

Rescuer Doctrine (375-78): Original tortfeasor also liable for injuries sustained by rescuers if immediate
rescue. Moore v. Shah (376): donation of kidney NOT near in time and space – Not covered by rescuer
doctrine.
  Personal Injury            UNFOS Type of Harm                                Independent, Intervening Cause
   Steinhauser         Wagon Mound           Polemis                         Wagon Mound               Polemis
L for UNFOS Type      NO Liability    Liability IF Direct                 Liability IF FOS      Unclear, probably
and Extent                            Cause                                                     liable

      Probability of Recovery                    Unexpected                                    Case
Low                                     Type of harm                       Polemis & Wagon Mound
Better                                  Extent of harm                     Steinhauser
Depends                                 Manner of harm                     McLaughlin
Majority                                Victim                             Palsgraf (dissent = majority Rule)

Intervening Causes
                                             RS                       McLaughlin                      Pridham
                                 - If FOS, doesn’t cut off      - Egregious intervening      - Creation of special risk
                                 Liability even if              cause cuts off liability      intervening cause does
                                 intentional, reckless or                                    not cut off liability
                                 criminal

                         zzz.         FOS

Hines v. Morrow (n8 365): Peg leg case. P wants to simplify facts to make causation look more direct. D
wants to show long chain of events.
                         aaaa. Creation of Special Risk

Pridham v. Cash & Carry Building Center (n7 351): Negligent driver liable for damages when ambulance
driver has a heart attack. RULE: Driver created a special risk. FOS that injured victim of car accident
would travel to hospital in ambulance  driver liable for full extent of injuries. Must be close in time and
space. If long hospital stay, eventually too attenuated for driver to be liable.
                         bbbb. Level of egregiousness (gross N – criminal act)

Damages

                 Plaintiff MUST mitigate Damages.
                         cccc. Purpose of damages is to restore P to position before D’s
                            negligence.

Compensatory Damages
                         dddd. Goal is to pay for harm caused
                         eeee. Pecuniary Losses
                            (1)   Medical Expenses (past and future)

K. Garrett                                      Torts (Suter)                         Fall 2000, Page 20 of 30
                                      Surgery
                                      Medication
                                      Therapy (physical, psychological, etc.)
                                      For how long?
                           (2)    Lost Income and Earnings (past and future) (factors to
                           determine)
                                      Pre-injury earning capacity (current and anticipated)
                                      Earnings at time of injury
                                      Required capacities for pre-injury employment
                                      Impairment of these required capacities
                                      Earning capacity in alternative employment, if any
                                      Expected duration of disability
                                      Life expectancy/likely duration of career
                            (3) Property Damage
                       ffff. Non-pecuniary Losses
                            (1) Pain and Suffering
                                      Need Awareness in ALL Jurisdictions

Seffert v. L.A. Transit Lines (614): P dragged by bus. RULE: Test to determine if P&S damages are too
high – Must shock the conscience and suggest passion, prejudice or corruption on the part of the jury.
                           (2)     Loss of Enjoyment of Life (Hedonic Damages)
                                      Need Awareness in Majority of Jurisdictions

McDougald v. Garber (632): P permanently comatose. RULE: Must be aware to receive LEL damages,
otherwise the damages would not be compensatory, but rather punitive.
                           (3)     Emotional Distress (use KAC or Gammon)

Considerations in Assessing Compensatory Damages
                       gggg. Usually lump sum
                       hhhh. Tax Free – should jury know?
                       iiii. Discount to present value
                       jjjj. Further considerations for adjustments (depends on
                             Jurisdiction)
                             (1)    Interest on investment (not tax free)
                             (2)    Inflation
                             (3)    Relationship between inflation and interest (cancel out?)

Survival and Wrongful Death Actions
                       kkkk. Almost all determined by statute
                       llll. Survival Actions (on behalf of decedent)
                             (1)    Actions for personal injuries which survive death of the person
                             for damages decedent could have claimed before death if still alive
                                      Pain and Suffering (up to time of death – not available in some
                                       jurisdictions)
                                      Loss of earnings to date of death
                                      Loss of Enjoyment of Life
                                            o Most states treat this as a factor in P&S
                                            o Minority prohibit recovery for LEL
                                            o Very small minority treat LEL as separate from P&S (dissent
                                                 in McDougald)

K. Garrett                                Torts (Suter)                      Fall 2000, Page 21 of 30
                       mmmm.        Wrongful Death Actions
                         (1)    Actions brought on behalf of survivors for losses suffered
                         because of death of decedent
                                     Expected lifetime earnings of decedent
                                          o Less living expenses or contributions
                                     Loss of Consortium (many Jurisdictions)
                                          o Housekeeping, buying necessities, gardening, etc.
                                          o Advice, moral training education (some courts allow for
                                               children, too)
                                          o Emotional loss technically NOT included
                                     Loss of Guidance or Advice
                                          o Allowed in a few states where Loss of Consortium is NOT
                                               allowed
                                     Emotional Distress
                                          o Few states allow

Punitive Damages
                       nnnn. In excess of compensatory damages - exemplary damages
                       oooo. To punish D for wrongdoing
                       pppp. Limited to Egregious wrongdoing
                          (1)    Serious misconduct with bad intent or bad state of mind.
                          Reprehensible behavior.
                                     Malice, Ill Will, Intent to injure
                                     Sometimes Wanton conduct with conscious indifference to risk
                           (2)    Higher level of wrongdoing than carelessness
                                     Even Gross Negligence usually is not enough
                           (3)    Sample Statutory language: “Where D has been guilty of
                           oppression, fraud, or malice, express or implied”
                           (4)    Often limited to some kind of intentional or near-intentional
                           harm
                                     Offensive Assault and Battery, False Imprisonment, Fraud, Defamation
                       qqqq. Taxable & Insurance almost never covers punitive damages
                       rrrr. Guideposts of Excessiveness/Reasonableness
                          (1)   Reprehensibility of conduct
                          (2)   Ration to compensatory damages
                          (3)   Sanctions for comparable misconduct

BMW v. Gore (handout): BMW sold Gore a repainted car as new. RULE: Guideposts for determining
reasonableness of punitive damages. Grossly excessive and arbitrary damages violate 14th Amendment
Due Process Clause.

Defenses

Contributory Negligence
                       ssss. Pure Comparative Approach
                           (1)     If P’s behavior was UNREASONABLE, then use Negligence
                           Analysis
                           (2)     D has burden to prove P’s contributory negligence in most
                           jurisdictions

K. Garrett                               Torts (Suter)                    Fall 2000, Page 22 of 30
                            tttt. Uniform Comparative Fault Act
                                 (1) Recovery is proportional to fault
                                   Plaintiff Behavior            Defendant Behavior                      Result
                            Negligent                         Reckless                           Compare Fault
                            Reckless                          Negligent                          Compare Fault
                                                                                                 Some Compare & Some
                            Criminal                          Negligent
                                                                                                 Bar Recovery

Assumption of Risk
                                                                   Tunkl (Maj)
             Express                        Valid Contract?                             NO Duty           NO Recovery
                                                                   Dalury (Min)
   Implied         Primary               Sports                    The Flopper        NO Duty           NO Recovery
 (Voluntary &                            UNReasonable AR           Davenport          Br. of Duty       Comparative N
                       Secondary
  Knowing)                               Reasonable AR             Emergency          Br. of Duty       Full Recovery
                            uuuu. Can only assume the risk of Negligence. Cannot waive for
                               recklessness or criminal conduct.
                            vvvv. Express Assumption of Risk = No Recovery
                               (1)    Tunkl Factors (Majority) – Invalid as Against Public Policy IF:
                                                Suitable Public Regulation
                                                Importance – service is a practical necessity
                                                Open to the public
                                                Bargaining Equality
                                                Standard Adhesion Contract
                                                Risks are under control of the seller

Tunkl v. Regents of Univ. of Cal. (407): Tunkl had to sign waiver for admission to hospital. RULE: not a
valid contract – against public policy.
                                   (2)       Dalury v. S-K-I, Ltd. (Minority - Vermont)
                                                Waiver contract at ski resort void as against public policy because
                                                     o Open to public
                                                     o Higher duty of care for invitees
                                                     o Resort has ability to make safe
                                                Too Broad – opens door for invalidating all contracts with public
                                                 businesses

Barnes v. New Hampshire Karting Ass’n (n6 411): Waiver valid for kart races. Not an essential activity
and can “vote with feet.”
                            wwww.         Between Express and Implied
                               (1)    Waiver printed on ticket or posted on signs can be upheld IF
                               brought to P’s attention
                            xxxx. Implied Assumption of Risk
                               (1)    Must be Voluntary and Knowing
                               (2)    Primary = NO Recovery
                                                Sports participants and spectators – Implied assumption of risk

Murphy v. Steeplechase Amusement Co. (413): Cardozo, Coney Island – The Flopper case. RULE: No
recovery for assumption of FOS risk. If obscure danger, then no assumption of risk because P had no
knowledge of risk.
                                   (3)       Secondary
                                                UNReasonable = Comparative Negligence = Reduced Recovery


K. Garrett                                         Torts (Suter)                        Fall 2000, Page 23 of 30
Davenport v. Cotton Hope Plantation Horizontal Property Regime (handout): Dark stairway case. RULE:
UNReasonable Assumption of Risk because their was an alternative.
                                        Reasonable = Full Recovery
                        yyyy. Firefighter’s Rule
                           (1)   Officers cannot sue IF”
                                        Injured in scope of job
                                        Reasonable anticipation – FOS
                                        Alleged tortfeasor brought officer to the scene
                            (2)      Exceptions
                                        Independent Tortfeasor Bars Rule – Especially if AFTER the act that
                                         brought officer to the scene
                                        Treated as Licensees – Duty to warn of hidden dangers
                                        If officer is there for NON-emergency reason, officer can sue

Day v. Caslowitz (handout): Police office slipped on ice while investigating security alarm at D’s home.
RULE: Officer’s suit barred if injured while on the job.

Strict Liability
Abnormally Dangerous Activity

Restatement Second Factors (443)
                        zzzz. Existence of high degree of risk of some harm to the person,
                           land or chattels of others
                        aaaaa. Likelihood that the harm that results from it will be great
                        bbbbb.        Inability to eliminate the risk with the exercise of
                           reasonable care
                        ccccc. Extent to which the activity is not a matter of common usage
                        ddddd.        Inappropriateness of the activity to the place where it is
                           carried on
                        eeeee. Extent to which its value to the community is outweighed by its
                           dangerous attributes

Indiana Harbor Factors (Same as R2d)
                                 Focused on ACTIVITY not chemical
                        fffff. Do NOT have to show ALL factors
                        ggggg. Great probability of harm
                        hhhhh.        Magnitude
                        iiiii. Not preventable with due care
                        jjjjj. Uncommon usage
                        kkkkk.        Location
                        lllll. Value to community

Indiana Harbor Belt RR v. Cyanamid (444): Posner, Chemical Leak in switchyard

Yukon Equipment v. Fireman’s Fund Ins. (n4 450): Storage of dynamite is abnormally dangerous.
MINORITY RULE: Disregards social utility and only considers risk.


K. Garrett                                 Torts (Suter)                        Fall 2000, Page 24 of 30
Fletcher v. Ryland and Ryland v. Fletcher (431): Water reservoir broke and filled coal mine. COMMON
LAW RULE:
                                            Not Naturally on land, AND
                                            Mischievous if it escapes, OR
                                            Non-Natural Use


Product Liability

Manufacturing Defect
                        mmmmm.      Product clearly deviates from what manufacturer
                          intended
                          (1)    Duty to ALL FOS users: (MacPherson)
                                            Knowledge/probability P will use product
                                            Probability of danger – latent or hidden danger
                                            Remoteness of relation – buyer, passenger, bystander
                            (2)     Defective IF
                                       Seller in business of selling product
                                       Expected to and does reach consumer/user/(bystander if FOS)
                                       Without substantial change
                                       Causes harm
                            (3)     Who can be held Strictly Liable?
                                       Ability to make product safer or influence manufacturer
                                       Risk-spreading
                                       How product enters chain of distribution
                                       Who makes representations about product
                                       Ease P’s burden

MacPherson v. Buick (473): (Cardozo, 1916) Rotten wooden wheel. RULE: Eliminated privity
requirement. Duty to ALL FOS users.

Escola v. Coca Cola Bottling Co. of Fresno (479): (Traynor, 1944) Waitress injured when bottle exploded
in her hand. RULE: Strict Liability for products that have latent defects.
                                         (c) Elmore v. Am. Motors Corp. (n5(c) 485): FOS bystanders
                                         can sue.

Design Defect
                        nnnnn.         Consumer Expectation Test – Soule
                           (1)      P wants CE Test for Hidden Risks/Latent Defects
                           (2)      Factors
                                       Product used as intended OR
                                       Reasonably FOS way AND
                                       Dangerous to an extent beyond that which would be contemplated by
                                        the ordinary consumer who purchases it, with the ordinary knowledge
                                        common to the community as to its characteristics. (Comment i, §
                                        402A)

Cronin v. J.B.E. Olson Corp. (493): Bakery tray hits truck driver propelling him through windshield.
RULE: Eliminated “unreasonably dangerous” requirement.



K. Garrett                                  Torts (Suter)                     Fall 2000, Page 25 of 30
Barker v. Lull Engineering (494): Driver injured when high-lift loader overturned on slope. RULE: Can
sue when product is used as intended OR in a reasonably FOS way.

Soule v. General Motors (495): In accident, wheel collapsed into floorboard and crushed driver’s ankles.
RULE: “Crashworthiness” defect made injuries worse.

                         ooooo. Risk/Utility Test – Ortho Factors (R3d)
                            (1)    P wants R/U for Open and Obvious Risks
                            (2)    Especially for technical issues with experts
                            (3)    Ortho Factors (507)
                                         Utility
                                         Safety aspects/probability and magnitude of danger
                                         Availability of substitutes
                                         Manufacturer’s ability to prevent harm
                                         User’s ability to prevent harm
                                         User’s awareness of dangers
                                         Feasibility of spreading the loss

Camacho v. Honda Motor Co. (504): P’s legs injuries worse because motorcycle didn’t have crash bars.
Contains R/U Test.

Dreisonstok v. Volkswagenwerk (n8 511): No good substitute for VW Bus. The feature that decreases
safety is the feature that makes it popular.

Dawson v. Chrysler (n12 514): Driver crushed when car wrapped around pole. Illustrates problem with
standards that differ in jurisdictions for nationally sold products. Manufacturer can’t predict best choice.

Warning Defect
                         ppppp.           Instructions to Make Safe – Adequacy of Warning
                                         Can combine with Design Defect – e.g. child-proofing medicine
                                          bottles, the warning alone would not be enough
                             (1)     Intensity
                             (2)     Comprehensibility
                             (3)     Specific Risks Identified
                             (4)     Precautions and Consequences of not following warning
                             (5)     Characteristics of addressee
                                         Must reach the likely user

Hahn v. Sterling Drug (522): Four-year-old drank Campho-Phenique. RULE: Adequacy of warning is a
jury question.

Morgan v. Faberge (n3(a) 526): P tried to scent candle by pouring cologne over it. RULE: Cost of giving
warning so small, almost always will favor giving the warning.

Cotton v. Buckeye Gas Prods. Co. (n4 527): Propane tanks exploded. RULE: If all possible dangers were
listed, it would lessen the intensity of serious risks.




K. Garrett                                  Torts (Suter)                      Fall 2000, Page 26 of 30
                       qqqqq.           Addressee
                          (1)        Learned Intermediary – addressee is Dr.
                                        Exception: addressee is patient for mass immunization
                            (2)      Bulk Supplier – Courts divided
                                        Addressee is supplier and supplier has duty to warn consumer, OR
                                        Addressee is consumer
                       rrrrr. Inherent Risks and No Warning
                                        If product CANNOT be made safe, then warning saves it from being a
                                         defective product because the consumer can choose to accept benefit
                                         and risk OR to not use product.
                            (1)      Known or Reasonably Scientifically knowable
                            (2)      True Choice Judgment – Magnitude
                            (3)      Significant Medical Evidence, NOT Speculative – Certainty

Carlin v. Superior Ct. of Sutter County (handout): FDA says manufacturer cannot warn when scientific
studies conflict. Must warn when significant medical evidence indicates serious safety hazards.
Definition of “knowable” unclear. Suter thinks it means known to someone in scientific community, but
not know to D. Could mean knowable with further research.

                       sssss. Causation = Heeding Presumption
                           (1)   D must show this P would NOT have heeded even an adequate
                           warning

Defenses – See I(F) Above

Modification or Misuse of Product

                                         FOS Modification or Misuse              CAN Recover
                 Majority                FOS N Modification or Misuse            Reduces Recovery
                                         UNFOS Mod, Misuse, or Neg               NO Recovery
                 Minority (Jones)        Any Modification or Misuse              NO Recovery

Jones v. Ryobi, Ltd. (516): Press operator case. RULE: Majority – Modification is a defense = NO
liability. Dissent – FOS modification is not a defense = Strict Liability

Comparative Fault
                       ttttt.     Reduces damages, NOT a complete bar to recovery

Daly v. General Motors (560): P thrown from car when door handle button punched as car hit railing. P
drunk, not wearing seat belt, and door was not locked. RULE: Extended comparative fault to products
liability cases.




K. Garrett                                  Torts (Suter)                     Fall 2000, Page 27 of 30
Intentional
Assault

               Elements
                       uuuuu.        Intent to cause harmful or offensive bodily contact to
                          victim or a third party OR
                       vvvvv. Intent to cause apprehension of imminent bodily harm AND
                       wwwww.        Reasonable apprehension or fear of imminent bodily
                          harm.
                       xxxxx. If D knows of P’s unreasonable fear/hypersensitivity, and acts
                          intending to cause fear = assault.

Battery

               Elements
                       yyyyy. Intent to Cause Harmful Contact or Offensive Touching
                          (Purpose)
                       zzzzz. Intent to act in a way that is substantially certain to cause
                          physical contact (Knowledge)
                              (1) Subjective Test – What D ACTUALLY knew
                       aaaaaa.        Does NOT have to be direct contact with physical body.
                              (1) E.g. touch camera, throw ball, sic dog on…
                       bbbbbb.        Offensive to Whom
                              (1) Most courts – Touching or Contact without consent
                              (2) Objective Test – RS: Offends reasonable sense of personal
                              dignity
                              (3) Subjective Test (Many courts) – If D KNOWS P will find
                              contact offensive

Defenses
                       cccccc. Express Consent – self-defense
                       dddddd.       Implied Consent – social understanding (e.g. crowded
                          subway)

Garratt v. Daly (802): P broke her hip when 5 year-old pulled chair out. RULE: Must intend to cause
harm or act in a way that is substantially certain to cause harm.

Picard v. Barry Pontiac-Buick (811): Mechanic touched TV camera. RULE: Camera is part of her
“person.” Battery does not have to be direct contact with physical body.




K. Garrett                                Torts (Suter)                   Fall 2000, Page 28 of 30
Damages
                       eeeeee. Mere touching without consent – Non harmful: Nominal
                           Damages
                       ffffff. Harmful Contact: Compensatory (P&S) Damages

False Imprisonment

Unlawful Restraint/Confinement
                       gggggg.          Physical Barriers
                       hhhhhh.          Physical Force
                       iiiiii. Actual or Implied Threats of Physical Force
                       jjjjjj. Duress
                       kkkkkk.          Asserted Legal Authority
                            (1)     Fear of loss of job can be enough for duress, BUT staying to
                            protect reputation is NOT enough.
                            (2)     If P remains voluntarily – NOT false imprisonment

Lopez v. Winchell’s Donut House (814): P questioned in back room about alleged theft. RULE: Usually
a jury question, but P said she never feared for her physical safety, so no false imprisonment.

Mens Rea
                       llllll. Actual Intent
                       mmmmmm. Courts divided on legal intent (Suter says legal intent
                            should count)

Intentional Infliction of Emotional Distress

Elements
                       nnnnnn.      Intentional or Reckless Conduct
                       oooooo.      Outrageous conduct that offends generally accepted
                          standards of decency and morality
                       pppppp.      Causation
                       qqqqqq.      Severe emotional distress
                          (1)   Outrageousness is a norm that changes with time
                                      No specific act – doesn’t have to be fraud or misrepresentation
                                      Mere insults usually not outrageous

               Public Figures
                       rrrrrr. Cannot sue for IIED unless they could also sue for defamation.

Womack v. Eldridge (821): P’s picture brought to child molestation trial. RULE: Established Elements
above. Found for plaintiff.

NY Times v. Sullivan (830): RULE: To sue for defamation, Public figures must prove that D knew
statement was false or recklessly uttered it without caring whether it was true or false.



K. Garrett                               Torts (Suter)                       Fall 2000, Page 29 of 30
Hustler Magazine, Inc. v. Falwell (830): Jerry Falwell sued for parody ad in Hustler. RULE: Public
figures cannot sue for Intentional Infliction of Emotional Distress unless they could also sue for
Defamation. First Amendment interests exceed individual interests.

                    Assault & Battery             False Imprisonment                        IIED
             Actual Intent/Knowledge         Actual Intent/Knowledge          Actual Intent/Knowledge
             Legal Intent (substantial       Courts Divided on Legal Intent   Legal Intent (minority)
             certainty)


Defamation

Definition
                              ssssss. Claim about a person that causes reputational harm.
                                      (1) Slander – oral
                                      (2) Libel – Written
                                      (3) Must be published




K. Garrett                                   Torts (Suter)                    Fall 2000, Page 30 of 30

				
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