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Torts_Outline

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									TORTS OUTLINE
                                                                    TORTS I & II – Prof. Robert Pugsley
                                                   Southwestern University School of Law – SCALE I & II
                                                       November – December, 2003 & March - June, 2004
                                                                                           Ted Finamore
Text: Understanding Torts 2nd Edition by Diamond, Levine & Madden


                                         Table of Contents

A. INTENTIONAL TORTS                                                                                   9
        I.       INTERFERENCE WITH THE PERSON                                                          9
              A.     Battery                                                                           9
              B.     Assault                                                                           9
              C.     False Imprisonment                                                               10
              D.     Intentional Infliction (Causing) Of Emotional Distress (Mental Harm)             10
        II.      INTERFERENCE WITH PROPERTY                                                           10
              A.     Trespass To Land                                                                 10
              B.     Trespass To Chattels                                                             11
              C.     Conversion                                                                       11
        III. PRIVILEGES (Only for Intentional Torts)                                                  11
              A.     Consent                                                                          11
              B.     Self-Defense/Defense Of Others/Defense Of Property                               12
              C.     Recovery Of Property/Recapture Of Chattel                                        12
              D.     Shopkeeper Privilege                                                             12
              E.     Defense Of Land                                                                  12
              F.     Necessity                                                                        12
              G.     Privileged Invasion Of Another‘s Land To Reclaim Chattel                         13
              H.     Authority Of Law                                                                 13
              I. Discipline                                                                           13
B. NEGLIGENCE                                                                                       14
        I.        Rules                                                                             14
             A.       Failure To Exercise That Degree Of Care                                       14
             B.       Elements                                                                      14
             C.       How To Analyze A Negligence Question (Prove The Elements)                     14
        II. Duty to Use Reasonable Care                                                             14
             A.       Duty Only Arises If Δ‘s Conduct Creates A Foreseeable Risk                    14
                       Weirum v. Baime (CA 1975), [L] (Radio Promotion ―Get Here In 10 Minutes‖) 15
             B.       Rescuers And Duty                                                             15
             C.       Legal Relationships And Duty                                                  15
                      People v. Rodriguez, (Cal App 1961) [NL] (Mom Padlocks Kids in House)         15
             D.      Owners And Occupiers Of Land And Duty.                                            15
                      Vaughan v. Menlove, (Eng. Rep. 1837) [N] (Hayrick Fire)   15
             E.      Conduct Of Others And Duty. When You Permit Others On Your Property:             16
             F.      Duty To Those On The Premises                                                    16
             G.      Summary of General Land Entrant Doctrines (Table)                                17
                      Rowland v. Christian, (CA 1968), [L], (Eliminates Visitor Categories in CA)   17
                      Laube v. Stevenson, (CN 1951), [L], (Duty To Warn Licensees)           18

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Torts Outline                                                                     TABLE of CONTENTS

                           Frederick v. Philadelphia Rapid Transit, (PA 1940), [L], (Failure To Mitigate)   18
                           Perez v. Southern Pacific, (Cal. App. 1990), [NL], (No Duty To Trespasser)       19
                           Goll v. Muscara, (PA Super 1967), [NL], (No Duty To Child Trespasser)            19
                           King v. Lennen, (CA 1959), [L], (Invitee vs. Trespasser; Babysitter Lets Boy Drown)
                                     19
               H.       Duty To Invited Passengers in Vehicles                                               20
                         Brown v. Merlo, (CA 1973), [L] (Guest Statute Ruled Unconstitutional – Non
                           Paying Riders Have Right to Sue) 20
                       Massaletti v. Fitzroy, (MA 1917), [NL] (Driver Owes Non-Paying Passenger Same
                           Duty of Care as a Gratutitous Bailee)     20
               I. Lessors And Lessees                                                                20
               J.     Children:Attractive Nuisance Doctrine (Foreseeability is Key)                  20
               K.     Failure To Act (Duty of Affirmative Action)                                    21
                           Tarasoff V. Regents of the University of California, (CA 1976) [L]      21
                           Perils Of Plaintiff 21
                           Ayres v. Hicks (IN 1942) [L] (Duty To Train Employees to Fix Escalator)          22
                           Yania v. Bigan (PA 1959) [NL] (No Duty To Rescue Drowning Guest On Property,
                            If No Negligence)        22
                         Marsalis V. Lasalle (1957) [L] ( Gets Rabies Shots Due To ‘s Failure To Confine
                            Cat)     22
               L.       Calculus Of Risk Cases                                                                 22
                         Blythe v. Birmingham Water Works (Eng. 1856) [NL] (Frosty Fireplug)                22
                         United States v. Carroll Towing Co. (2d. Cir. 1947) [L] (L in contrib. neg.) 23
                         Frankenstein High School Teacher (Sodium Metal + Water = KaBoom!) [L]        23
                         Helmetag‘s Adm‘r v. Miller, 3 Kent‘s Com. (11 Ed.) 462-63 (1884) [L] (Wager
                                                                          th

                            Policy) 23
                         Matthias v. United Pacific Insurance (Cal. App. 1968) [NL] (Insurer Is Not Liable
                            For Dangerous Conditions On Premises – No Duty of Care to 3rd Parties)           23
                         Livingston v. Seaboard Air Line, (SC 1952) [NL] (Child Left w/ Priest is Molested)
                                      23
                         Chase v. Washington Water Power, (ID 1941) [L] (Duty to Maintain Power Lines)
                                      23
        III.        Breach of Duty.                                                                     24
               A.       Balancing                                                                       24
               B.       Special Situations                                                              24
               C.       Physical Attributes Of The Δ                                                    24
               D.       Intoxication                                                                    24
               E.       Mental Capacity                                                                 24
               F.       Children                                                                        24
                         Tyler v. Weed (MI 1938) (Innocent Youth Darts in Front of Car)       24
               G.       Knowledge                                                                       25
                         Delair v. McAdoo, (PA 1936) [L] (Duty To Inspect Tires Before Driving)      25
               H.       Superior Skill, Knowledge And Intelligence                                      25
                         Wright v. Williams, (Cal. App. 1975) [NL] (Need Expert Testimony to Impeach
                            ―Expert‖ Lawyer)25
               I.   Custom And Usage                                                                    25



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 2 of 120
Torts Outline                                                                   TABLE of CONTENTS

                      Helling v. Carey, (WA 1974) (Court Uses Hand Formula Instead of Custom to
                        Evaluate Medical Malpractice) [L] 26
                      Marsh Wood Products Co. v. Babcock & Wilcox Co., (WI 1932) [NL] 26
             J.      Emergency                                                                             26
                      Cordas v. Peerless Transportation Co. (City Court of NY, 1941) [NL] 26
             K.      Good Samaritans                                                                        26
             L.      Temporary Insanity                                                                     26
                      People v. Decina, (NY 1956) [L] (Epileptic Seizure Causes Fatal Car Crash)         26
                      Breunig v. American Family Insurance, (WI 1970) [NL] (Schizophrenic Seizure
                         Causes Crash) 27
                      Hill v. City of Glenwood (IA 1904) [L] (Blind Man Has No Higher Duty of Care)
                                   27
             M.      Professionals                                                                   27
             N.      Lawyers – Unsettled Legal Questions.                                            27
                      Lucas v. Hamm, (CA 1961) [NL] (Avg. Lawyer Doesn‘t Understand Perpetuities)
                                   27
                      Smith v. Lewis, (CA 1975) [L] (Attorney Must Research Unfamiliar Topics)       28
             O.      Rules Of Law                                                                       28
             P.      Violation Of Statute                                                               28
                      Osborne v. McMasters, (MN 1889), [L] (Sale of Poision in Violation of Statute) 29
                      Satterlee v.Orange Glenn School Dist., (CA 1947), [NL] (Bus – Car Crash)           29
             Q.      Proof of breach by circumstantial evidence                                             29
                      Goddard v. Boston & Maine R.R. Co. (MA 1901) [NL] (New Banana Peel)                29
                      Anjou v. Boston Elevated Ry. (MA 1911) [L] (Old Banana Peel)            29
             R.      "Res Ipsa Loquitur, Sed Quid In Infernos Dicet?" (The Thing Speaks For Itself, But
                     What The Hell Does It Say?)                                                           30
                      Byrne v. Boadle (Exch. 1863) [L] (Barrel of Flour Falls On Someone‘s Head) 30
                      Larson v. St. Francis Hotel (Cal. App. 1948) [NL] (Chair Out Window on VJ Day)
                                   30
                      Ybarra v. Spangard (Cal. 1944) [L] (Res Ipsa – Negligent Surgery)     31
                      Goldstein v. Levy – (NY 1911) [L] (Hotel Liable for Fixture (Chandelier) Falling
                                   31
                      Dodger Stadium Hypo, In-Class 3/22/2004, [L], (Fixtures Falling = Negligence) 32
                      Cox v. Northwest Airlines, (7th Cir. 1967) [L] (Plane Crash on a Clear Day)   32
                      Sullivan v. Crabtree, (Tenn. App. 1953), [L] (Wheel-off = RIL)          32
             S.      Imputed Duty Of Care To Third Parties: Balancing Test                                 32
                      Biakanja v. Irving (CA 1958)    32
                      Connor v. Great Western S&L, (CA 1968) [L]( Lender Liability To 3rd Party For
                          Foreseeable Harm Arising FromConstruction Defects)          33
                      Security Federal v. Commercial Investments, (Bkrtcy. D.N.M. 1988) [NL](Lender
                       Not Liabile To Others For Foreclosing on Mortgage) 33
        IV.    Causation in Fact. (Actual Cause)                                                           34
            A.     2 Prong Test Per Harriet:                                                               34
            B.     Proof of Causation                                                                      34
                      Wolf v. Kaufmann (NY 1929) [NL] 34
                      Leuer v. Johnson (Minn. App. 1990) [NL] 35


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                      Page 3 of 120
Torts Outline                                                                   TABLE of CONTENTS

              C.       ―But For‖ Test                                                                      35
                        Kramer Service Inc v. Wilkins (glass from hotel transom fell on P‘s head-got cancer)
                           [L]      35
              D.       ―Substantial Factor‖ Test (For Multiple, Independent Causes)                        35
                        Anderson v. Minneapolis Establishes Substantial Factor Test [L] (D‘s fire merged
                           w/another of unknown origin-both burnt P) 35
              E.       Greatly Multiplies Test                                                             36
                        Reynolds v. Texas & Pacific Railway (La. Ann. 1885) [L]       36
                        Mitchell v. Gonzales (1991) [NL](adults failed to supervise boy, boy drowned) 36
                        State Farm Fire and Casualty Company v. Eri Von Der Lieth 37
        V.       Proximate Cause.                                                                           38
              A.     Direct Causation (No Intervening Forces)                                               38
                      (1)        Polemis 39
                          (2)      Wagon Mound #1            39
                          (3)      Wagon Mound #2            39
                          Ryan v. N.Y. Central RR Co., 1866 [L] Forseeability 39
                          McCahill v NY Transportation      40
                           Palsgraf v. Long Island RR (P standing on platform when man jumps on departing
                            train.   45
              B.       Indirect Causation (Intervening Forces Are Present).                                45
                        Kelly v. Gwinnell46
              C.       Proximate Cause In The Legal Context                                                 46
                          1.       3 year and a day rule:    46
                          2.       Kathleen Quinlan;         46
                          3.       Nancy Cruzan 46
                          4.      Drag Strip Cases 46
                          Commonwealth v Root. racing on highway. one has head-on collision, other gets
                           charged w/ invol mansl. Majority Pos.   46
                        Parsons v. The State (Alabama 1852) (Causation = Shooting; Remand for Jury
                           Instruction)      47
                        People v. McGee (Cal 1947) (Gut Shot in A Card Room, 10 Hours for Dr.)            47
              D.       Agency and Proximate Cause Theories of Felony Murder                                  47
              E.       Shield Exception                                                                      47
                        People v. Washington (Cal. 1965) (Declares Proximate Cause Theory Bullshit) 47
                        Taylor v. Superior Court (Alternative Theory of Prosecution Against Surviving
                          Felons Who Did Not Cause the Death of the Victim). 47
        VI.        Damages.                                                                              48
              A.      Basic Type Of Damages                                                              48
              B.      Collateral Source Rule - (Don't Mention Insurance; Possibility Of Double Recovery) 48
              C.      Duty To Mitigate –                                                                 48
              D.      Negligent Infliction Of Emotional Distress.                                        48
                       Thing v. La Chusa             48
              E.      Unborn Children                                                                    48
                       Sinkler v. Kneale, (PA 1960) [L] (Child Born w/ Defects Has Right to Sue Negligent
                          Driver For Causing Birth Defects) 49
              F.      Wrongful Death And Survival Actions - Only Arise When The Tort Kills The Π.        49


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                       Page 4 of 120
Torts Outline                                                                         TABLE of CONTENTS

        VII.        Defenses (Not For Intentional Torts, Strictly For Negligence)                                 50
               A.       Contributory Negligence –                                                                 50
                           Butterfield v. Forrester, (KB 1809) [NL](Rod Across Road Was Visible)                50
                           Smithwick v Hall & Upson Co (CT 1890), [L](Ice House Collapsed) 50
                           Summers v. Dominguez, (Cal. App. 1938) [L](Hit & Run of Pedestrian)                  51
                          Davies V Mann (Ex 1842) [L] (Last Clear Chance) (Driver Hits Donkey)                  52
                          Independent Lumber Co. v. Leatherwood (CO 1938), [NL](Drivers Collide)                52
               B.       Comparative Negligence (Fault) –                                                           52
                         Li v. Yellow Cab (Cal 1975), [L](Crossing Lanes) 53
                         American Motorcycle has one π and multiple ‘s; joint & several tortfeasors. 53
                         Lecture Notes from Today 4/26/04 55
                         American Motorcycle Association v. Superior Court (1978) (motorcycle accident; s
                            organized/ran race; want to join parents to suit; usually pro rata contribution by
                            statute (= contribution for s); but court allows out under "partial equitable
                            indemnity"         55
               C.       Third Restatement – RTT:AL (p. 403) – Joint and Several vs. Several, + variations         56
                         Different approaches to Joint and Several Liability (p. 406) (from unread case) 56
                         Blazovic v Andrich [L] (NJ 1991) 56
               D.       Assumption of the Risk –                                                                  56
                         Hunn v. Windsor Hotels (West. Virg. 1937) [NL] (Woman Trips Over Forms on
                            Stairs) 57
                    Ford v. Gouin (1992) [NL] (barefoot water skier)                 57
            E.     Statutes of limitations                                                                        58
            F.     Immunities                                                                                     58
        VIII.  Imputed Negligence.                                                                                59
            A.     Vicarious liability                                                                            59
            B.     Imputed contributory negligence                                                                59
        IX.    Joint Tortfeasors.                                                                                 59
            A.     Acts in concert                                                                                59
            B.     Acts not in concert                                                                            60
            C.     Satisfaction and release                                                                       60
            D.     Contribution                                                                                   60
            E.     Indemnity                                                                                      60
            F.     Apportionment of damages                                                                       60
C. STRICT LIABILITY (NO FAULT)                                                                                    61
               A.       Animals                                                                                   61
               B.       Abnormally Dangerous/Ultrahazardous Activities                                            61
                         Spano v. Perini Corp. (NY 1969) [L] (s' garage/car D'ed from blasting, strict
                            liability) Established ―But For‖ strict liability for ultrahazardous activities.     62
                         Commonwealth v. Koczwara, (Penn. 1959) [L] (Absolute Liability But No Jail For
                             Selling Booze To Minors) 62
               C.       Strict Liability vs. Absolute Liability                                                   62
D. PRODUCTS LIABILITY                                                                                             63
        Possible Theories of Liability:                                                                           63
            A.       Intentional tort                                                                             63
            B.       Negligence                                                                                   63
            C.       Breach of Express Warranty (Contract Theories)                                               64

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                Page 5 of 120
Torts Outline                                                                      TABLE of CONTENTS

                       R2nd Torts, §402B               64
             D.       Breach of Implied Warranty (hard to prove this)                                     64
             E.       Strict Products Liability or Strict Liability in Tort                               65
                       R2nd Torts §402A        65
                       Rationale For Imposing Strict Liability               66
                       Learned Intermediary Rule:        70
        Chart: Product Liability Theories of Recovery & Defenses                                          71
                         Winterbottom v Wright (Ex 1842) [NL]    74
                         MacPherson v Buick Motor Co. (NY 1916) [L]               74
                         Henningsen v. Bloomfield motors (N.J. 1960) [L]          74
                         Greenman v Yuba Power Products (CA 1963) [L]     74
                         Escola v. Coca-Cola Bottling Co (CA 1944) Manufacturing       75
                         Peterson v. Lou Bachrodt Chevrolet Co. (Il. 1975)    75
                         Hector v. Cedars-Sinai Medical Ctr. (Cal. Ct. App. 1986)      75
                         Hauter v. Zogarts (Cal. 1975)      76
                         Daly v General Motors (CA 1978) 77
             F.       Manufacturing Defects                                                                77
             G.       R3rd Torts: Products Liability                                                       77
                       §1         Liability of Commercial Seller or Distributor for Harm Caused by Defective
                          Products 77
                       §2         Categories of Product Defect       77
                       §3          Circumstantial Evidence Supporting Inference of Product Defect      77
                       §4        Noncompliance and Compliance with Product Safety Statutes or
                          Regulations     78
                         Rix v. General Motors Corp. (Mt. 1986) 78
                         Prentis v. Yale Mfg. Co. (Mi. 1984)79
                         Welge v. Planters Lifesavers Co. (7th Cir. 1994) (L) 80
                         Friedman v. General Motors Corp. (Oh. 1975)              80
                         Winter v. G.P. Putnam‘s Sons (9th Cir. 1991)81
                         Way v. Boy Scouts of America (Tx. Ct. App. 1993) [NL]         82
             H.       Design Defects                                                                      82
                       Barker v. Lull Engineering (Cal. 1978)      82
                         Soule v. General Motors Corp. (Cal. 1994) 84
                         Vatour v. Body Masters Sports Industries, Inc. (NH ) 85
                         Bethesda v. Johns Manville (N.J. 1982) [L] 86
                         Feldman v. Lederle Laboratories (N.J. 1984) [L]          87
                         Anderson v. Owens-Cornings Fiberglas (Cal. 1991) 87
                           Nowak v. Faberge U.S.A. Inc. (M.D. Penn. 1992)         88
             I.   Strict Products Liability Causation, Damages, Defenses                                  89
                         Dunne v. Wal-mart Stores (La.Ct.App. 1996)               89
                         Daly v General Motors (CA 1978) 90
                         Safeway Stores, Inc. v. Nest-Kart (Cal. )           92
                         Vandermark v. Ford        92
                         Cronin v. Olson 93


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                       Page 6 of 120
Torts Outline                                                                   TABLE of CONTENTS

                         Dixon v. Bell (K.B. 1816) 94
                         Langridge v. Levy (Ex. 1837)      94
                         Winterbottom v. Wright, (Ex. 1842)          94
                         Longmeid v. Holliday (Ex. 1851)    95
                         Torgesen v. Schultz, (NY 1908)     95
                         MacPherson v. Buick Motor Co (NY 1916) 95
                         H.R. Moch Co., Inc. v. Rensselaer Water Co. (NY 1928)       95
                         Cohen v. Brockway Motor Truck Corp.(NY 1943) 95
                         Hoenig v. Central Stamping Co. (NY 1936) 96
                         Henningsen v. Bloomfield Motors, Inc. (NJ 1960)       96
                         Hauter v. Zogarts(Cal 1975)1       96
E. NUISANCE                                                                                             98
        Definition                                                                                      98
            A.       Private - Invasion Of Π‘s Interest In The Use Or Enjoyment Of His Land.            98
            B.       Public - Unreasonable Invasion In The Use Or Enjoyment Of Common Property.         98
            C.       Elements Common To Both Private And Public Nuisance                                98
        Causation                                                                                       99
                         Rogers v. Elliot (1888) page 719 (The ―Quasimoto Must Stop‖ Case)   100
                         Tedescki v. Berger (1907) page 723100
                         Culwell v. Abbott Construction Co (1973) page 727 101
                       Morgan v. High Penn Oil Co. (1953) page 737             101
             D.      How To Analyze A NUISANCE Case                                                    102
                      Carter v. Lee (1973) page 743      103
                      Christopher v. Jones (1964) page 753           103
             E.      Nuisance = intentional and unreasonable.                                          104
             F.      § 29.05 Defenses to Liability for Private Nuisance                                104
                      Spur Industries, Inc. v. Del E. Webb (1972) p. 759 104
                      Nestle v. City of Santa Monica (1972) page 767     105
                      McFarlane v. City of Niagara (1928) page 789 (Heel Caught in Sidewalk)         105
             G.      Abatement of a Nuisance (1976)                                                    106
                      **Puritan Holding Co., Inc. v. Holloschitz (NY 1975) 106
                      Hammonds v. Central Kentucky Natural Gas Co. (KY 1934) 106
F. DEFAMATION                                                                                          108
             A.      Defamatory Statement Concerning Π                                                 108
             B.      Falsity                                                                           108
             C.      Fault                                                                             109
                      2.          N.Y. Times v. Sullivan (1964)      109
             D.      Publication                                                                       109
             E.      Damages                                                                           110
             F.      Defenses                                                                          111
G. INVASION OF PRIVACY                                                                                 113
        Definition - interference with the right to be left alone.                                     113
        I.       Four types of privacy invasions                                                       113
            A.        Appropriation Of Π‘s Likeness For Δ‘s Commercial Benefit Or Advantage            113
            B.        Unreasonable Intrusion                                                           113

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                      Page 7 of 120
Torts Outline                                                                   TABLE of CONTENTS

             C.        Public Disclosure of Private Facts                                         114
             D.        False light in the public eye                                              114
H. CIVIL RIGHTS                                                                                   115
             A.        Definition –                                                               115
             B.        Elements                                                                   115
I. MISUSE OF LEGAL PROCESS                                                                        116
             A.        Malicious Prosection                                                       116
             B.        Wrongful civil proceedings                                                 116
             C.        Abuse of process                                                           116
J. MISREPRESENTATION                                                                              118
        Definition –                                                                              118
K. INTERFERENCE WITH BUSINESS RELATIONS                                                           119
        A.      Types                                                                             119
             A.    Injurious Falsehood –                                                          119
             B.    Interference With Existing Contractual Relations                               119
             C.    Interference With Prospective Contractual Relation                             120




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                 Page 8 of 120
Torts Outline                                                                    INTENTIONAL TORTS



INTENTIONAL TORTS

I.      INTERFERENCE WITH THE PERSON
A. BATTERY - intentional harmful or offensive contact with the π
     1. Elements
        a.   Act, i.e., volitional movement
             It is enough that the Δ sets a force in motion which ultimately produces the result, such as setting
             out food for the π to eat which contains poison.
             Not seizures, sleepwalking, etc.
        b.              Intent - desire or knowledge with substantial certainty that harmful or offensive contact
             will occur It must exist at the time of the act
             Transferred Intent applies here. Variations on transferred intent include:
             (1) Same tort; different person; (2) Same person different tort; and (3) Different person; different
             tort. Mistaken identity is not transferred intent.
        c.   Contact/touching
             ―Contact extends to any part of the body, or to anything which is attached to it and practically
             identified with it, such as clothing, a cane, a paper, or any other object held in the π's hand. The
             same is true of the chair in which the π sits, the car the π occupies or the person against whom the
             π is leaning.‖
        d.   Contact/touching is harmful or offensive
             (1) harmful means that the contact/touching either causes injury or inflicts pain
             (2) offensive means that the contact/touching offends a reasonable person‘s sense of dignity
                   Test: What would be offensive to an ordinary person not unduly sensitive as to personal
                   dignity.
        e.   Damages [NOT NEEDED]
B. ASSAULT -intentional inducing of π‘s reasonable apprehension of a harmful or offensive
     touching
     1. Elements
        a.   Act, i.e., volitional movement
             π must be aware of the threat of contact. It is not an assault to aim a gun at one who is unaware of
             it.
        b.   Intent - desire or knowledge with substantial certainty that π will be placed in reasonable
             apprehension of a harmful or offensive contact.
             Transferred intent applies
        c.   Reasonable apprehension
             Apprehension is not the same as fear. Must be aware at the time. It must be one which would
             normally be aroused in the mind of a reasonable person. Once apprehension has been intentionally
             created, it is NO defense that the Δ reconsidered and desisted or withdrew without doing physical
             harm. If there are known sensitivities, there could be an assault.
             (1) apparent ability v. actual ability
             (2) words alone
             Mere words do not amount to an assault. Words may give character to an act. A movement
             inoffensive in itself may be preceded or accompanied by words which give it a hostile color, as
             where one who has been making verbal threats of violence reaches into a pocket, so that the words
             and the act together create an apprehension that might not otherwise occur.
             (3) threats of future harm
        d.   Contact/touching is harmful or offensive (same as battery)


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 9 of 120
Torts Outline                                                                       INTENTIONAL TORTS

          e.   Damages [NOT NEEDED]
C. FALSE IMPRISONMENT - intentional confinement of the π
      1. Elements
          a. Act, i.e., volitional movement or failure to act (omission)
          b. Intent – desire or knowledge with substantial certainty that π will be confined
               Transferred intent applies
          c. Confinement - overcoming π‘s will to leave in a way that will overcome a reasonable
             person‘s will to leave
               There can be no imprisonment unless the π is aware of it at the time. And, imprisonment need not
               be for more than an appreciable length of time, nor is it necessary that any damage result from it
               other than the confinement itself since the tort is complete with even a brief restraint of the π's
               freedom. If you greatly inconvenience, can be sufficient.
          d. Damages [NOT NEEDED]
               Where any such element of bad intent or wanton misconduct is lacking, and the imprisonment is
               the result of a mere mistake, either as to identify of the party or as to the propriety of arrest or
               imprisonment, punitive damages are denied.
D. INTENTIONAL INFLICTION (CAUSING) OF EMOTIONAL DISTRESS (MENTAL HARM) -
      Extreme and outrageous act by a Δ intended to cause severe emotional distress
      Use the "reasonable person" test unless there is a known sensitivity. Some states require some
      physical manifestation; CA does not.
      1. Elements
          a. Act, i.e., volitional movement
               One who, by extreme and outrageous conduct [words alone can be sufficient], intentionally or
               recklessly causes severe emotional distress to another is subject to liability for such emotional
               distress, and if bodily harm to the other results from it, for such bodily harm. R2nd, Torts, §46.
          b. Intent – desire or knowledge with substantial certainty that π will experience severe
             emotional distress
               Transferred intent does NOT apply.
          c. Extreme and outrageous act. Conduct which exceeds all bounds normally tolerated by
             decent society and extremely likely that mental harm will result
          d. Damages – conduct must result in severe emotional distress (physical manifestation?)

II.       INTERFERENCE WITH PROPERTY
A. TRESPASS TO LAND - intentional unauthorized entry onto π‘s realty
      Any intentional use of another's real property, without authorization and without a privilege by
      law to do so, is actionable as a trespass, without regard to harm.
      When a trespassory invasion is found, the fact that Δ's conduct was socially useful or even
      beneficial to π did not affect liability.
      Trespass and private nuisance are separate fields of tort liability relating to actionable interference
      with the possession of land. They may be distinguished by comparing the interest invaded; and
      actionable invasion of a possessor's interest in the use and enjoyment of his land is a nuisance.
      1. Elements
          a. Act, i.e., volitional movement
          b. Intent - desire or knowledge with substantial certainty that Δ is entering onto a particular
             piece of land
               Transferred intent does NOT apply, even if mistaken.
          c. Unauthorized entry

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 10 of 120
Torts Outline                                                                   INTENTIONAL TORTS

             Particulate matter that can damage, can be a trespass.
        d. π‘s realty
             (1) actual possession or right to immediate possession
             (2) leases
             (3) air space
                  Land, in its legal significance, has an indefinite extent, upwards as well as downwards;
                  whoever owns the land possesses all the space upward to an indefinite extent; such is the
                  maxim of the law. HERRIN V. SUTHERLAND.
             (4) subsurface
        e. Damages [NOT NEEDED, but you are liable for all incurred]
B. TRESPASS TO CHATTELS – intentional interference with π‘s chattel resulting in damage
    If there is a mere intermeddling ~~> Trespass
    If there is a serious intermeddling ~~> Conversion
    1. Elements
        a. Act, i.e., volitional movement; or failure to act or do something
        b. Intent – desire or knowledge with substantial certainty that a chattel will be affected by
           Δ‘s conduct
        c. Interference – Δ did something that only the rightful owner is entitled to do
             Includes unpermitted use, direct dispossession for a brief period of time, or physical damage to the
             property.
        d. π‘s chattel
        e. Damages
C. CONVERSION - intentional interference with π‘s chattel resulting in damage
    If there is a mere intermeddling ~~> Trespass
    If there is a serious intermeddling ~~> Conversion
    The most distinctive feature of conversion is its measure of damages, which is the value of the goods
    converted where the intermeddling falls short of the complete or very substantial deprivation of possessory
    rights in the property, the tort committed is not conversion, but the lesser wrong of trespass to chattels.
    PEARSON V. DODD.
    1. Elements
        a. Act, i.e., volitional movement
        b. Intent – desire or knowledge with substantial certainty that a chattel will be affected by
           Δ‘s conduct
        c. Interference
             D's interference must amount to an assertion of dominion and control which is inconsistent with
             the true owner's rights.
        d. π‘s chattel
        e. Damages (forced sale for the value of the converted property)

III. PRIVILEGES (Only for Intentional Torts)
  A.      CONSENT
    All are invalidated if obtained by mistake, fraud or coercion.
    1. Express – Willingness stated in words or actions that become a substitute for words
    2. Implied – Willingness which is not stated by words
    3. Implied by law (i.e. medical situations)
        Situations where Implied by law consent is NOT effective (need all four things)

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                         Page 11 of 120
                       Torts Outline                                                                     INTENTIONAL TORTS

                               a.    Patient is unable to give consent and no one is there to do so in his behalf
                               b.    Delay would subject the π to risk
                               c.    Under circumstances, reasonable person would consent
                               d.    No reason to believe this one would not have consented

                         B.         SELF-DEFENSE/DEFENSE OF OTHERS/DEFENSE OF PROPERTY
If you harm a 3rd
                           - permits a person to attempt to prevent a tort by the use of reasonable force
party during the           The value of human life and limb, not only to the individual concerned but also to society, so outweighs the
course, there is no        interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a
liability unless you
are negligent.
                           possessor of land has, as is stated in §79, no privilege to use force intended/likely to cause death/serious
                           harm against another whom the possessor sees about to enter his premises/meddle with his chattel, unless
                           the intrusion threatens death or serious bodily harm to the occupiers/users of the premises. Restatement
                           §85.
                           1. Elements
                               a. Prevent a tort by use of force
                               b. Force must be reasonable
                                     That amount of force which appears reasonably necessary to a person in D's shoes. Lethal, serious
                                     or deadly force is not necessary, except in response to lethal, serious or deadly force. When the
                                     invasion is peaceful and occurs in the presence of the possessor, the use of any force at all will be
                                     unreasonable unless a request has been made to depart.

                         C.         RECOVERY OF PROPERTY/RECAPTURE OF CHATTEL
                            - privilege to use force to recapture a chattel which has been taken from your possession (not trying to
                           prevent a tort)
                           1. Elements
                               a. Wrongful dispossession by person who actually took the property or knows of taking
                               b. Prompt action/fresh pursuit
                               c. Reasonable force (the amount of force actually required)
                         D.         SHOPKEEPER PRIVILEGE
                           ―A privilege in favor of a merchant to detain for reasonable investigation of a person whom he reasonably
                           believes to have taken a chattel unlawfully.‖ BONKOWSKI V. ARLAN'S DEPARTMENT STORE.
                           a. Reasonable belief something was stolen
                           b. Reasonable detention for investigative purposes
                           c. Reasonable force (non-deadly)

                         E.         DEFENSE OF LAND
                           a. Prevent a tort by use of force
                           b. Force must be reasonable

                         F.         NECESSITY
                           1. Definition – privilege to reasonably invade the property rights of another in an
                              emergency not caused by the Δ
                               [Emergency, i.e. plane landing in crop fields; liable for actual damages (crop loss)]
                           2. Elements
                               a. Emergency
                               b. Invasion must be reasonable


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                       d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 12 of 120
Torts Outline                                                                   INTENTIONAL TORTS


  G.         PRIVILEGED INVASION OF ANOTHER’S LAND TO RECLAIM CHATTEL

  H.         AUTHORITY OF LAW

  I.         DISCIPLINE
       A person charged with maintaining discipline (i.e. a teacher or parent) may use reasonable force
       in the course of performing that duty.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                   Page 13 of 120
Torts Outline                                                                                  NEGLIGENCE



NEGLIGENCE

I. Rules
  A.           FAILURE TO EXERCISE THAT DEGREE OF CARE
          and caution which a reasonable and prudent person would exercise under like conditions and
          circumstances.
          Degrees
                Slight Negligence – This has been defined as ―an absence of that degree of care and vigilance
                which persons of extraordinary prudence and foresight are accustomed to use.‖ Simply put: a
                failure to exercise great care.
                Gross Negligence – A failure to exercise even that care which a careless person would use. Or, It
                falls short of a reckless disregard of the consequences, and differs from ordinary negligence only
                in degree, and not in kind.
                Willful, Wanton and Reckless – An intentionally done act of an unreasonable character in
                disregard of a known or obvious risk that was so great as to make it highly probable that harm
                would follow.

B.        ELEMENTS
          1.    Duty to use reasonable care. Actor is to conform to a certain standard of conduct for the
                protection of others against unreasonable risk.
          2.    Breach of duty. Failure to conform to the required standard, i.e., engaging in conduct which
                exposes others to an unreasonable risk of harm.
          3.    Causation.
                a. Actual cause (―but for‖ or ―substantial factor‖ tests).
                b. Proximate cause. Reasonably close causal connection between the conduct and the resulting
                    injury.
          4.    Damage. Actual loss or damage is required.

C.        HOW TO ANALYZE A NEGLIGENCE QUESTION (PROVE THE ELEMENTS)
     Exam Tip: Negligence Essay Questions usually require the following analysis:
     1.   Whether Δ owed a duty of care to π.
     2.   What standard of care that duty involved.
     3.   Whether Δ breached that standard of care.
     4.   Whether Δ's breach caused π's injuries (Actual and Proximate Cause).
     5.   Whether π actually suffered any damages that are compensable in negligence.

II. Duty to Use Reasonable Care
     Requires that you act as a reasonable and prudent person would act under the same or similar
     circumstances.
A. DUTY ONLY ARISES IF Δ’s CONDUCT CREATES A FORESEEABLE RISK of injury to
     the π.
          1.    If no foreseeable risk there is no duty.
          2.    If there is a foreseeable risk
                     a. CARDOZO - duty is owed to those in the zone of danger.
                     b. ANDREWS - if duty is owed to one it is owed to all.


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 14 of 120
Torts Outline                                                                                 NEGLIGENCE


WEIRUM V. BAIME (CA 1975), [L] (RADIO PROMOTION “GET HERE IN 10 MINUTES”)
The mere fact that a particular kind of accident has not occurred before does not show that it is one
which might not reasonably have been anticipated.
In a jury trial of an action against a radio station for a wrongful death resulting when youthful motorists, who
were listening to and were engaged in a station contest to locate a disc jockey who was driving about in a
metropolitan area and giving away money prizes, forced the victim's automobile off the roadway, plaintiffs won
a $300,000 judgment.

B. RESCUERS AND DUTY. Generally, there is no duty to rescue. If Δ's own negligence was responsible
     for π's harm, a relation has been created which imposes a duty to make a reasonable effort to give
     assistance and avoid further harm. Where the duty to rescue is required, use reasonable care under the
     circumstances.
C. LEGAL RELATIONSHIPS AND DUTY.
         1.   Special Relationships
              a. Create harm
              b. Increase risk (what position was π in before? after?)
              c. Say or do something upon which π relies
         2.   Privity of Contract
              a. nonfeasance - promise made and broken. No tort recovery; contract recovery. In general,
                  where there is only the promise and the breach, only the contract action will lie, and no tort
                  action can be maintained.
              b. misfeasance - negligence in performance. Possible recovery. When the Δ misperforms the
                  contract, the possibility of recovery in tort is greatly augmented.

PEOPLE V. RODRIGUEZ, (CAL APP 1961) [NL] (MOM PADLOCKS KIDS IN HOUSE)
Criminal negligence requires intent.
Boozehound mom padlocks door from outside and leaves 4 kids inside while she staggers off to the local
watering hole. Neighbor saves 3 of the kids before fire claims life of the youngest child. Trial Court finds
negligence but Appellate Court reverses because no intent. Negligence cannot be inferred from fact that she
was in technical violation of the law when the kid died. Death of child was neither foreseeable nor desired.
Government argued that she was grossly criminally negligent but Appellate Court felt that a fire was not
foreseeable. Also, misdemeanor giving rise to criminal negligence (e.g., misdemeanor manslaughter) must be
of a type likely to cause harm.

D.       OWNERS AND OCCUPIERS OF LAND AND DUTY.
         1. Must exercise reasonable care with regard to any affirmative activities which you engage in.
         2. Reasonable duty to keep premises in repair
         3. Landowner is liable for reasonable risk to those on the street, adjacent to land, etc.
         With regard to most conditions that arise in the state of nature, most courts have held that there is no
         duty upon the landowner to protect persons outside the premises. An exception has evolved with
         regard to trees, and there is agreement that the landowners is liable for negligence if he knows that the
         tree is defective and fails to take reasonable precautions.
         Once a landowner alters a condition of his land, it becomes an artificial one for the purposes of tort
         law, and the owner must exercise reasonable care for the protection of those outside of the premises.

VAUGHAN V. MENLOVE, (ENG. REP. 1837) [N] (HAYRICK FIRE)
A land owner is liable for damages resulting from his failure to maintain his own property in a
reasonably safe condition.
Defendant had a hayrick on his property and plaintiff neighbor would warn him that it was a fire hazard.
Defendant responded that he would chance it. Defendant went on to build a chimney through the hayrick and, of
course, it caught fire. The fire spread to plaintiff‘s land. Ct. instructed jury to find for plaintiff if defendant

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 15 of 120
Torts Outline                                                                                 NEGLIGENCE

didn‘t act like a prudent reasonable person would. Jury found for plaintiff. Defendant appeals on the
instruction—not a reasonable person, but whether defendant (given his low IQ) acted reasonably.

Held for the plaintiff that the standard is reasonable person—not a case by case analysis. Otherwise, there
would be no rule.

Birth of the reasonable person standard. The guy wasn’t the smartest, but he was held to a reasonable/average
standard. Distinction from Williams is that nothing here caused the defendant to become stupid whereas in
Williams his exhaustion caused him to go insane.

E.        CONDUCT OF OTHERS AND DUTY. WHEN YOU PERMIT OTHERS ON YOUR
          PROPERTY:
          1.   If employees, you owe a duty for their acts in the scope of employment.
          2.   Independent contractors - normally not liable unless they are performing a nondelegable
               (inherently dangerous) duty.

F.        DUTY TO THOSE ON THE PREMISES
     1.   TRESPASSER - One who enters or remains upon the land of another without consent or privilege to do
          so.
          Generally, there is no duty to trespassers. There is a duty to refrain from wilfully and wantonly
          injuring, though.
          a) If you (1) discover trespassers, or (2) there are frequent trespassers to a limited area, you have to
                warn the or make that activity safe (for artificial conditions).
          b) (1) There is no duty for natural conditions. (2) No duty to inspect. (3) No duty for dangers of
                which the trespasser is aware.
          CHILDREN TRESPASSERS. A possessor of land is subject to liability for physical harm to children
          trespassing thereon caused by an artificial condition upon the land if:
          a) the place where the condition exists is one upon which the possessor knows or has reason to know
                that children are likely to trespass, and
           b) the condition is one of which the possessor knows or has reason to know and which he realizes or
                should realize will involve an unreasonable risk of death or serious bodily harm to such children,
                and
          c) the children, because of their youth do not discover the condition or realize the risk involve in
                intermeddling with it or in coming within the area made dangerous by it, and
          d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger
                are slight as compared with the risk to the children involved, and
          e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the
                children.
     2.   LICENSEE - One with privilege, express or implied, to enter the land of another for his own purpose
          (ie: social guest, sightseers, salesmen, grandma)
          a) Duty to warn or make safe natural or artificial conditions, of which the owner is aware.
          b) Duty to warn or make safe activities of which the owner is aware.
          c) Duty to warn or make safe activities of third parties on the land.
          d) Warn of hidden dangers of which owner has knowledge.
          e) Refrain from wantonly or wilfully harming trespasser.
          There is no duty to inspect.
     3.   INVITEE - Those who enter premises for business which concerns the owner/occupier, upon his
          invitation, express or implied. They are there for the benefit of the owner/occupier.
          a) There are two tests:
               1) Economic Benefit Approach (economic benefit to owner/occupier)


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 16 of 120
Torts Outline                                                                                  NEGLIGENCE

              2) Public Invitation Approach
           b) Duties
              1) Must warn or make safe, hidden dangers
              2) Must inspect for hidden dangers (reasonable inspection)
              3) Must take care not to injure
              4) No duty to warn of dangers known to invitee
              5) No duty to make safe.
              6) Some jurisdictions hold that there is a duty to protect from crime if foreseeable based on either
              proof of frequency of past crimes or totality of circumstances.
              In all of the following instances, the π was held to be an invitee: (1) those attending free public
              meetings; (2)spectators at public amusements entering on a free pass; (3) free use of a telephone
              provided for the public; (4) entering a bank to get change for a $20 bill; (5) coming to get things
              advertised to be given away; (6) use of state or municipal land open to the public; (7) visitors in
              national park.
              The visitor has the status of an invitee only while he is on the part of the land to which his
              invitation extends. If the invitee goes outside of the area of his invitation, he becomes a trespasser
              or a licensee, depending upon whether he goes there without the consent of the possessor, or with
              such consent.

G.         SUMMARY OF GENERAL LAND ENTRANT DOCTRINES (TABLE)
Type of Entrant     Type of Hazard: Intentional     Type of Hazard: Active           Type of Hazard: Latent
                    or Reckless Conduct             Operations                       Conditions
Trespasser          DUTY TO REFRAIN                 NO DUTY                          NO DUTY
                    FROM CONDUCT
Discovered          DUTY TO REFRAIN                 DUTY OF REASONABLE               Restatement: DUTY OF
Trespasser          FROM CONDUCT                    CARE                             REASONABLE CARE
                                                                                     Alternate View: NO DUTY
Licensee            DUTY TO REFRAIN                 Traditional Common Law:          DUTY TO MAKE
                    FROM CONDUCT                                                     CONDITION SAFE OR
                                                     DUTY OF REASONABLE              GIVE WARNING if: 1. 
                                                    CARE if: 1.  should             should expect that licensee
                                                    expect that licensee will not    will not realize the danger; 2.
                                                    realize the danger; and 2.       licensee actually does not
                                                    licensee actually does not       know or have reason to know
                                                    know or have reason to           or have reason to know the
                                                    know the danger                  danger; 3.  knows or has
                                                                                     reason to know of the danger.
                                                    Modern View:

                                                    DUTY OF REASONABLE
                                                    CARE
Invitee             DUTY TO REFRAIN                 DUTY OF REASONABLE               DUTY OF REASONABLE
                    FROM CONDUCT                    CARE                             CARE


ROWLAND V. CHRISTIAN, (CA 1968), [L], (ELIMINATES VISITOR CATEGORIES IN CA)
A person is liable for damages to a guest on his property if the owner has not acted reasonably to protect
the guest from injury. Although the π’s status as a trespasser, licensee, or invitee may, in light of the facts,
have some bearing on the question of liability the status is not determinative.
 invited P to her apartment. While he was using bathroom, porcelain handle on faucet broke, severing
nerves/tendon of right hand. She knew of crack in porcelain and had asked landlord to fix it, but she didn‘t


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 17 of 120
Torts Outline                                                                                            NEGLIGENCE

warn  of its dangerous condition. Held:  is liable if she didn‘t take reasonable care viz a viz her guest, .
Landowners have a duty of reasonable care in all circumstances. Here,  was aware that faucet handle was
defective and dangerous, that the defect wasn‘t obvious, and that she neither remedied the condition nor warned
 of it. Duty of affirmative action – to notify guests of concealed dangers that the landowner/lessor knows
about. He sued her because she had insurance and he wanted to collect on the insurance policy. She had
renter‘s insurance. P. 150 - See § 1714 of the Civil Code:
         Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to
         another by his want of ordinary care or skill in the management of his property or person, except so far
         as the latter has, willfully or by want of ordinary care, brought the inury upon himself.
But, this exception should not be invoked absent ―unless clearly supported by public policy.‖ P. 150. This is
where the balancing factors from BIAKANJA V. IRVING (CA 1958):
    1.                       The extent to which the transaction was intended to affect the π;
    2.                       The foreseeability of harm to him;
    3.                       The degree of certainty that the π suffered injury;
    4.                       The closeness of the connection between the ‘s conduct and the injury suffered;
    5.                       The moral blame attached to the ‘s conduct;
    6.                       The policy of preventing future harm
    7.                       The availability, cost, and prevalence of insurance for the risk involved (Rowland v.
Christian, (CA 1968)
The Court was moving in the direction of changing or tightening the common law policy that said (p. 151) that
restricted an occupier‘s liability to social guests based on the theory that the guest should not expect special
precautions to be made on his account and that if the host does not inspect an maintani his property the guest
should not expect this to be done on his account. The Court was particularly motivated in Hansen v. Richey,
(Cal. App. ?) where a youth invited to a pool party drowned in a dangerous pool. Negligence was imputed to
the homeowner, not for the dangerous condition of the pool, but for ―the active conduct of a party for a large
number of youthful guests in light of the dangerous condition of the pool.‖
But, p. 152, changes in tort law don‘t apply to admiralty because tort law for trespassers and landowners is
based in feudal law and is tied to the land; not applicable on the open seas. So, the Court concludes that the Ms.
Christian should have warned Rowland of the broken faucet because it was a concealed danger and she failed to
fix it or warn about it. Burke dissents, favoring a bright line rule and not opening the floodgates of litigation.

LAUBE V. STEVENSON, (CN 1951), [L], (DUTY TO WARN LICENSEES)
A landowner may owe duty to warn licensee, of whose presence on land owner becomes aware, of
dangerous condition which owner knows of, but cannot reasonably assume that licensee knows of or
would observe by reasonable use of his faculties.
In mother‘s action against her daughter and daughter‘s husband for injuries sustained by fall on cellar stairway
in defendants‘ home, evidence warranted trial court‘s conclusion that plaintiff did not assume risk and was not
contributorily negligent. A mother, visiting her daughter and her husband in their home, pursuant to standing
invitation, and assisting daughter with household duties and care of her baby, was not an ―invitee‖ or ―business
visitor,‖ but a ―gratuitous licensee,‖ whom daughter owed duty to warn of dangerous condition of cellar
stairway at time of requesting mother to go down such stairs to get a blanket for the baby.
A ―gratuitous licensee‖ is any licensee other than business visitor on land, and term includes social guest, who
is, in a sense, a person temporarily adopted into land possessor‘s family.

FREDERICK V. PHILADELPHIA RAPID TRANSIT, (PA 1940), [L], (FAILURE TO MITIGATE)
The duty of care to avoid injury to trespasser arises even where circumstances are such that likely
presence of trespasser is foreseeable. What constitutes sufficient notice of trespasser’s exposure to a
situation of peril depends upon particular facts.
Many slipped off platform and onto tracks in front of train. Conductor and motorman looked but didn‘t see
anything, so they moved on, passing the train over the π‘s body, cutting off his foot and leg. If a human life is


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                      Page 18 of 120
Torts Outline                                                                                 NEGLIGENCE

at stake, you need to do more than just look with a flashlight (try shouting). If he jumped the turnstile, he would
for-sure be a trespasser.

PEREZ V. SOUTHERN PACIFIC, (CAL. APP. 1990), [NL], (NO DUTY TO TRESPASSER)
No duty of care to trespassers. Must show willful misconduct to collect ( of general intent in Crim Law).
Boy is injured trying to hop train; sues railroad for wilfull misconduct – claiming that the railroad knew he and
other children frequently hopped trains. Statutory immunity for railroad upheld because boy did not have
express permission to board the train. ―Who better to represent the downtrodden idiots of the world than the
personal injury Bar?‖ Pugsley – March 31, 2004

GOLL V. MUSCARA, (PA SUPER 1967), [NL], (NO DUTY TO CHILD TRESPASSER)
In order to hold possessor of land liable for physical harm to children trespassing on the land when the
harm was caused by an artificial condition, possessor must know or have reason to know that
CHILDREN ARE LIKELY TO TRESPASS on the land and know that the condition will involve an
UNREASONABLE RISK OF DEATH OR SERIOUS BODILY HARM to such children and the
children because of their youth would not discover the condition or realize the risk involved and the
utility of maintaining condition and BURDEN OF ELIMINATING DANGER ARE SLIGHT as
compared with risk to children and POSSESSOR FAILED TO EXERCISE REASONABLE CARE to
eliminate the danger or otherwise protect the children.
Trespassing child who was injured critically when he entered dwelling being constructed by owner and fell
from the second floor into the cellar brought suit against the owner. After verdicts were returned of $7,500 for
trespassing child and $500 for his father, the Court of Common Pleas, Montgomery County, Order at No. 64—
11034, Robert W. Honeyman, J., granted owner‘s motion for judgment n.o.v. and the child and his father
appealed. The Superior Court, at No. 791 October Term, 1967, Montgomery, J., held that there was no
evidence to show that owner had reason to know of trespass of children in the house so as to make him liable
for the injuries sustained by the child. Judgment affirmed.

KING V. LENNEN, (CA 1959), [L], (INVITEE VS. TRESPASSER; BABYSITTER LETS BOY
DROWN)
A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by
a structure or other artificial condition which he maintains on the land, if the place where the condition is
maintained is one on which the possessor KNOWS OR SHOULD KNOW THAT CHILDREN ARE
LIKELY TO TRESPASS, and the condition is one of which the possessor knows or should know and
which he realizes or should realize as involving UNREASONABLE RISK OF DEATH OR SERIOUS
BODILY HARM TO CHILDREN, and the CHILDREN BECAUSE OF THEIR YOUTH DO NOT
DISCOVER the condition or realize the risk involved in intermeddling in it or coming within the area
made dangerous by it, and the UTILITY TO THE POSSESSOR OF MAINTAINING THE
CONDITION IS SLIGHT as compared to the risk to children.
Plaintiffs brought this action for damages for the wrongful death of their son, Boyd, who drowned in
defendants‘ swimming pool. A general demurrer to the complaint was sustained without leave to amend, and
plaintiffs have appealed from the ensuing judgment. The pool constituted a dangerous condition and an
unreasonable risk of bodily harm to children of tender years, who could not reasonably be expected to realize or
appreciate the danger, and Boyd was attracted to the pool without knowledge of the danger. The usefulness of
maintaining the pool was slight as compared with the risk involved, and reasonable safeguards could have been
provided at small cost. During the five months immediately preceding the accident, defendants‘ teen-age
daughter had been employed as a baby sitter by plaintiffs for compensation, and in *343 order to entertain
Boyd on these occasions, as defendants knew or should have known, their daughter would bring him to their
home and permit him to play with the animals near the pool, with the result that he became attracted to the
animals and the pool. Due to the frequency of the baby-sitting arrangement the relationship was a continuing
one, and, by reason of the relationship, Boyd on the date of his death was on the premises at the express
invitation of defendants. The judgment is reversed. Dissent favors common law.



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 19 of 120
Torts Outline                                                                                  NEGLIGENCE


H.        DUTY TO INVITED PASSENGERS IN VEHICLES
          Similar to guest on your land; must exercise reasonable care. This is the exact same issue we covered
          in Civil Procedure in Anatomy of a Lawsuit by Hunter.

BROWN V. MERLO, (CA 1973), [L] (GUEST STATUTE RULED UNCONSTITUTIONAL – NON
PAYING RIDERS HAVE RIGHT TO SUE)
California and most states now hold drivers to exercise a reasonable duty of care to non paying
passengers.
In an action for injuries suffered by plaintiff while riding as a nonpaying guest in a vehicle driven by defendant,
the jury rendered a verdict for defendant on plaintiff's cause for willful misconduct. And, in reliance on Veh.
Code, § 17158, precluding recovery by a nonpaying guest in the absence of intoxication or willful misconduct
on the part of the driver, defendant's motion for summary judgment on plaintiff's cause for negligence was
granted. (Superior Court of Butte County, No. 47498, J. F. Good, Judge.)

MASSALETTI V. FITZROY, (MA 1917), [NL] (DRIVER OWES NON-PAYING PASSENGER
SAME DUTY OF CARE AS A GRATUTITOUS BAILEE)
Old rule – lesser degree of care owed to non-paying passengers; analogize to gratuitous bailments.
Social guest accepts ride in chauffer driven car; accident occurs causing injury to guest; guest sues host who
provided the limousine under respondeat superior. Aproaching the question apart from authority we are led to
the same conclusion. Justice requires that the one who undertakes to perform a duty gratuitously should not be
under the same measure of obligation as one who enters upon the same undertaking for pay. There is an
inherent difficulty in stating the difference between the measure of duty which is assumed in the two cases. But
justice requires that to make out liability in case of a gratuitous undertaking the plaintiff ought to prove a
materially greater degree of negligence than he has to prove where the defendant is to be paid for doing the
same thing. It is a distinction which 75 years' practice in this commonwealth has shown is not too indefinite a
one to be drawn by the judge and acted upon by the jury

I.        LESSORS AND LESSEES
          At common law, there is no duty unless it falls under one of these categories:
          1.  Must not conceal or fail to disclose to his lessee any condition, whether natural or artificial, which
              involves unreasonable risk of physical harm to persons on the land;
          2. Conditions dangerous to persons outside of the premises;
          3. Premises leased for admission to the public;
          4. Parts of land retained in lessor‘s control which lessee is entitled to use;
          5. Where lessor contracts to repair;
          6. Negligence by lessor in making repair.
          An important exception to the no-duty rule is the obligation on the landlord to use reasonable care to
          maintain common facilities and areas within his control. This usually includes common stairways,
          front steps and other passage ways.

J.        CHILDREN:ATTRACTIVE NUISANCE DOCTRINE (FORESEEABILITY IS KEY)
     1.   Landowners owe a ordinary duty of care for foreseeable risk of harm to children by artificial
          conditions on his property. To assess this duty on the owner occupier in regard to children, the π must
          demonstrate the following: 1. there is a dangerous condition present on the land of which the owner is
          or should be aware;
               a. What if you have 200 acres? Re-read the Marshall dissent in Oliver (CrimPro case – open
                    fields doctrine);
     2.   Owner knows or should know area frequented by children;
     3.   Condition is likely to cause injury. Condition is dangerous because of the child‘s inabiltiy to recognize
          the risk;


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 20 of 120
Torts Outline                                                                                 NEGLIGENCE

     4.   The expense of remedying the condition is slight compared with the risk.

     Examples:
          1.   Abandoned Automobiles
          2.   Lumber Piles
          3.   Sand Bins
          4.   Elevators
          5.   Bodies of water are generally not dangerous conditions because the danger is obvious and well
               known.
                   a. But if a body of water on your property is unusually dangerous, it may be so classified.
                             i. Example: Hidden Logs in the Water
                            ii. Thick surface film that looks like a path

K.        FAILURE TO ACT (DUTY OF AFFIRMATIVE ACTION)
TARASOFF V. REGENTS OF THE UNIVERSITY OF CALIFORNIA, (CA 1976) [L]
A doctor who knows, or should know, that his patient is likely to harm another has a duty to warn the
potential victim of the danger. Tarasoff II modified this to require a duty of reasonable care which
includes notifying the potential victim and the police. D only has to control actions of a 3rd person if
there is a special relationship either with 3rd person or with the person to be protected.
Poddar killed Tarasoff, 2 months after he told his psychologist he planned to kill her. Psychologist had police
detain him but he seemed sane. No further action taken to detain Poddar. No one warned Tarasoff. Rule: D
only has to control actions of a 3rd person if there is a special relationship either with 3rd person or with the
person to be protected. Held: psychiatrist could be held liable under negligence to warn intended victim or
confine assailant until danger had passed.
Class: What is the proximate, legally binding cause of the death of the victim? Was it just Dr. Moore‘s failure
to warn? Or, were others involved? The police not warning, the friends of Poddar not warning of his search for
a gun and his threats regarding the victim? Fact -- Intervening; Legal – Superseding. Insanity is not a defense
to tort because the underlying policy is remuneration, not punishment. The Court had no trouble finding Dr.
Moore negligent because (bottom p.104) the Dr. professed to know that Poddar was likely to harm Tarasoff.
Tarasoff I: both police and therapists might be liable for failure to warn. But they decided that the police are
immune. Probably because the police don‘t hold the same specific predictive powers of the therapists.
The holding in Tarasoff I said that if the therapists in fact determine a serious danger, or should have so
determined, then they are liable if they don‘t exercise reasonable care to warn the potential victim. Mosk in
dissent said‖should have‖ is too nebuolous and is an impossible standard to impose.
Tarasoff I = specific duty to warn. Tarasoff II = broader duty;abandoned specific duty to warn in favor of ―duty
of reasonable care.‖ Note that by that time the CA legislature had enacted an immunization statute to protect
therapists from suit absent ―serious threats against reasonably identifiable victims.‖
READ THROUGH P. 210 FOR MONDAY.
Conflict between lawyers and therapists; p. 110. Psychiatry as the ―candy store‖ of the medical profession.
Duty to warn cuts against the therapist confidentiality privilege. Remember, privileges are of a lower
entitlement that are rights.
Add the Holmes and Hand quotes from Helling v Carey; not the Utter dissent in that case. Note that civil
rulings apply immediately.

PERILS OF PLAINTIFF
Reasonable duty of care includes duty of employers to train their employees
Vaughan v. Menlove said “Do your best.” This is not enough care; the standard is higher.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 21 of 120
Torts Outline                                                                                 NEGLIGENCE


AYRES V. HICKS (IN 1942) [L] (DUTY TO TRAIN EMPLOYEES TO FIX ESCALATOR)
If you provide equipment for public use, such as an escalator, it is foreseeable that the machinery could
break and harm someone. Therefore, a duty of care is owed to the public and the provider must take
reasonable steps to ensure that users are not harmed.
Boy trapped in escalator, no one knew what to do and he ended up losing his arm. Employees watched but
didn‘t know what to do. Court said they should at least have know how to turn it off.

YANIA V. BIGAN (PA 1959) [NL] (NO DUTY TO RESCUE DROWNING GUEST ON PROPERTY,
IF NO NEGLIGENCE)
Even if you taunt a person into committing a dangerous act, he is liable unless incompetent. If the danger
results from your tortious acts, duty to rescue, otherwise, you can let him die.
's decedent and  both strip miners;  encourages decedent to jump into cut in strip mine, filled w/water;
decedent drowns;  does not attempt to rescue; absent pushing, or manipulation of a mentally incompetent
person,  is not guilty of tortious act, and  has no duty to rescue. 's own choice to jump into cut causative; 
also strip miner, knew as well as  the danger involved. Note that the Court does not discuss moral culpability;
as the CA Court did in BIAKANJA V. IRVING (CA 1958). There was no notice of the danger; and he was the
cause of his own death; it was his negligence to listen to the taunters.

MARSALIS V. LASALLE (1957) [L] ( GETS RABIES SHOTS DUE TO ’S FAILURE TO
CONFINE CAT)

 is liable for Ds for failure to take promised precautions if in reliance  fails to take other precautions
that would otherwise have been taken, and sustains injuries.
 is bitten/scratched by 's cat.  asked s to keep cat under observation for fourteen days to determine
whether animal was rabid. s promised to, but made insufficient efforts to do so – cat escaped from basement,
was gone for a month. The cat turned out not to have rabies.  could have taken other precautions (animal
control), but didn't in reliance on s' promise.  forced to get rabies shots; had horrible reaction to vaccine
serum.  gets Ds for reliance on s' promise, even though s were under no legal obligation to keep the cat
aside from their promise. P. 145: ―Actionable negligence is the neglect of a legal duty. The defendants are not
liable unless they owed to the π a legal duty which they neglected to perform. … But there is a rule of law chich
is just as well recognized: that one who voluntarily undertakes to care for, or to afford relief or assistance to,
an ill, injured, or helpless person isunder a legal obligation to use reasonable care and prudence in what he
does.‖

L.       CALCULUS OF RISK CASES

BLYTHE V. BIRMINGHAM WATER WORKS (ENG. 1856) [NL] (FROSTY FIREPLUG)
Defendants had statutory duty to lay water mains and fire plugs. Fireplugs built according to ―the best known
system.‖ Exceptionally cold winter caused the fireplugs to freeze, flooding plaintiff‘s house.
Defendant provided and maintained fire hydrants for the city. Record-setting frost set in and defendant did what
it thought was reasonable to maintain its hydrants. After thaw, plaintiff‘s house was flooded when water leaked
from frost-broken pipe. Trial ct. found that if defendant had removed all ice from hydrants, this would not have
happened and instructed the jury to find for plaintiff if it felt defendant should have removed all ice. Jury found
for plaintiff. Defendant appeals.

Held for defendant that there was no question for the jury here. Given the extraordinary meteorological
conditions, the plaintiffs did what a reasonable and prudent person would do. It had no way of anticipating the
weird effects of the extreme frost. Reasonable men can‘t provide against extreme contingencies.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 22 of 120
Torts Outline                                                                                 NEGLIGENCE

Defendant here got cut slack b/c they couldn’t have foreseen the action they didn’t undertake. A reasonable
person is responsible for just the facts that are reasonably available – ie. he doesn’t have to know that there’s
going to be some sort of extraordinary freeze.

Court cut a break to the water company as a driving force in the industrial revolution and also because the
system worked flawlessly for decades. The system changed from no-fault strict liability in the pre-industrial
revolution cases to negligence-based liability during the industrial revolution. ―Every possible precaution‖ is
not required; that is close to strict liability. Bramwell – dicta; notion of self-help (why didn‘t homeowner clear
the ice?) Duty to maintain fire plug did not include duty to foresee worst ice conditions in decades.

UNITED STATES V. CARROLL TOWING CO. (2D. CIR. 1947) [L] (L IN CONTRIB. NEG.)
Under Hand Formula, you don’t have to use a care that is less expensive than the foreseeable harm if that
care will only eliminate the risk by less than it costs to exercise.
Plaintiff‘s barge was untied and then improperly retied by defendant‘s employees. The barge thus slipped away
and sunk. The question is one of contributory negligence on the part of the plaintiff that would reduce the
damages it can receive. That is, whether the absence of its bargee from the barge was negligence. Having a
bargee aboard would have likely saved the barge. Held that defendant was contributorily negligent. Uses Hand
Formula: there is liability if the burden of taking care is less than the probability of the harm multiplied
by the severity of the harm.
The risk was also great b/c it was wartime and there was lots of activity in the harbor.

FRANKENSTEIN HIGH SCHOOL TEACHER (SODIUM METAL + WATER = KABOOM!) [L]
Mislabeled bottle with water instead of kerosene causes explosion. Use Hand formula; cost to label is low; but
risk is also low. Pugsley says this teacher was extra careful so probably the oil co. is liable.

HELMETAG’S ADM’R V. MILLER, 3 KENT’S COM. (11TH ED.) 462-63 (1884) [L] (WAGER
POLICY)
Insurance Company liable for issuing life insurance policy with benefit to person with no insurable interest.

MATTHIAS V. UNITED PACIFIC INSURANCE (CAL. APP. 1968) [NL] (INSURER IS NOT
LIABLE FOR DANGEROUS CONDITIONS ON PREMISES – NO DUTY OF CARE TO 3RD
PARTIES)
Front staircase of home was defective due to absence of handrail and uneven steps. Π claims that issuance of
insurance policy makes insurance company liable for the negligent construction and maintenance of stairway.
Court says no, no direct duty of care.

LIVINGSTON V. SEABOARD AIR LINE, (SC 1952) [NL] (CHILD LEFT W/ PRIEST IS
MOLESTED)
Airline left child of injured passenger with clergyman; child molested. Molestation not foreseeable. Π‘s
attorney was Strom Thurmond.

CHASE V. WASHINGTON WATER POWER, (ID 1941) [L] (DUTY TO MAINTAIN POWER
LINES)
Chicken hawks dragged power lines together causing big fire. Foreseaable that lines would sag.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 23 of 120
                     Torts Outline                                                                                       NEGLIGENCE


                     III.      Breach of Duty.
                     If you find that a duty exists you must determine whether the Δ acted as a reasonable and prudent
                     person would have acted under the same or similar circumstances. If not, breach is established.
   BALANCE
 The risk, social         Exam Note:
 value of interest
   threatened,            On an essay question for which the applicable standard is reasonable care, work your way through the applicable
probability/extent        factors in connection with the reasonable person standard –
   of the harm,           1) Foreseeability,
   AGAINST
                          2) Likelihood And Severity Of Harm,
   Value of the
 interest actor is        3) Cost To Δ To Avoid The Harm, And
seeking to protect        4) Social Value Of Δ's Activity.
 & expedience of
 course pursued.
                       A.         BALANCING
                               Judge Learned Hand – The reasonableness of precautions taken or omitted will depend on the
                               severity of the harm value of interest that might occur in their absence, the likelihood of that harm
                               actually occurring, and the burden (i.e., the cost) on the Δ to take such precautions. If the severity of
                               harm, discounted by its probability, outweighs the cost to Δ of avoiding it, then a reasonable jury could
                               conclude that Δ's failure to do so is unreasonable.

                     B.        SPECIAL SITUATIONS

                     C.        PHYSICAL ATTRIBUTES OF THE Δ
                               The ―reasonable person‖ may be said to be identical with the actor.

                     D.        INTOXICATION
                               Voluntary or negligent intoxication cannot serve as an excuse for acts done in that condition which
                               would otherwise be negligent.

                     E.        MENTAL CAPACITY
                               The law holds the mentally deranged or insane Δ accountable for his negligence as if the person were a
                               normal, prudent person.

                     F.        CHILDREN
                           Majority Rule: The standard is to measure the child's conduct against what would be reasonable to expect
                           of a child of like age, intelligence and experience. EXCEPT: When a child engages in an activity which is
                           normally one for adults only, the child must be held to the adult standard without any allowance for his age.
                           Objective is not the same as empirical. Reasonable in a gang neighborhood is not necessarily the
                           objectively reasonable standard required by law.
                           Minority Rule: (Tyler v. Weed) Fading position says children's liability depended on their age level

                     TYLER V. WEED (MI 1938) (INNOCENT YOUTH DARTS IN FRONT OF CAR)
                     Children <7 years-old incapable of negligence as a matter of law.
                     Child, 6 ½ years-old, darts in front of moving car and sustains serious injury. Judge sends contributory
                     negligence of child to jury as a matter of fact. Supreme Court reverses and remands for new trial. MI adopts
                     Common Law rule declaring children under 7 incapable of negligence as a matter of law and rejecting imputed
                     liability to parents. Rationale: Most parents are good and responsible; to impute negligence to them would be
                     to strip protection of the innocent which is the duty of the Court.




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                     d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                  Page 24 of 120
Torts Outline                                                                                  NEGLIGENCE


G.       KNOWLEDGE
     Unless his attention is legitimately distracted, the actor must give to his surroundings the attention which a
     standard reasonable person would consider necessary under the circumstances, and that he must use such
     senses as he has to discover what is readily apparent.

DELAIR V. MCADOO, (PA 1936) [L] (DUTY TO INSPECT TIRES BEFORE DRIVING)
If you assume a “reasonable person” has a general amount of knowledge, how to you determine what
that knowledge would be?

1.       Ordinary experience - what every adult in a community would know.
2.       Stranger to community – held to standard knowledge of that community.
         (like a city person on a farm would be held to the knowledge of a farm person, Tolin
         v. Terrell)
3.       Duty to investigate – you may be under a duty to end your ignorance. Delair v.
         McAdoo
         Here, D‘s car passing P. D has a blowout and hits P‘s car. Evidence of D‘s badly
         worn tires. Held: D is under a duty to know of the condition of his tires (whether
         he in fact knew or not). And under a duty to know that worn tires are dangerous.
         View favors security. Ambiguity- what if the defect is hidden?

H.       SUPERIOR SKILL, KNOWLEDGE AND INTELLIGENCE
     Where a person has knowledge, skill, or even intelligence superior to that of the ordinary person, the law
     will demand of that person conduct consistent with it.

WRIGHT V. WILLIAMS, (CAL. APP. 1975) [NL] (NEED EXPERT TESTIMONY TO IMPEACH
“EXPERT” LAWYER)
If a malpractice action is brought against an attorney holding himself out as a legal specialist, and the
claim against him is related to his expertise as such specialist, then only a person knowledgeable in the
specialty can adequately define the applicable duty of care and provide testimony whether it was met..
The trial court entered judgment for defendant specialist in maritime law at the conclusion of plaintiff's case in
chief, to the effect that plaintiffs had not established negligence on the part of defendant in advising and
assisting them in the purchase of a vessel which, ultimately, was of no use to plaintiffs since the contemplated
use involved "coastwise trade," for which purpose the vessel could not be legally used.
The Court of Appeal affirmed, holding that, while in some circumstances the failure of an attorney to perform
professionally may be so clear that a trier of fact may find professional negligence unaided by the testimony of
experts, when a malpractice action is brought against an attorney holding himself out as a legal specialist, and
the claim against him is related to his expertise as such specialist, then only a person knowledgeable in the
specialty can adequately define the applicable duty of care and provide testimony whether it was met.

I.       CUSTOM AND USAGE
     Community standard; evidence of the usual and customary conduct of others under similar circumstances is
     normally relevant and admissible [if reasonable]. Most jurisdictions now have adopted a ―similar
     community in similar circumstances‖ test which is designed to balance the need to avoid evaluating a
     general practitioner in a rural area by the same standards as a specialist in an urban area. CA doesn’t use
     the national standard of care. (Custom is not conclusive on the element of breach. It is only a factor for
     the court and jury to take into consideration in applying the reasonable person standard.)




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 25 of 120
Torts Outline                                                                                NEGLIGENCE


HELLING V. CAREY, (WA 1974) (COURT USES HAND FORMULA INSTEAD OF CUSTOM TO
EVALUATE MEDICAL MALPRACTICE) [L]
Opthamologist case – Court ignored custom of industry standard to hold  liable for failure to administer
glaucoma test. Washington legislature reacted by enacting statute requiring Courts to use customary practice
test.

MARSH WOOD PRODUCTS CO. V. BABCOCK & WILCOX CO., (WI 1932) [NL]
Fault may consist even in acts which are the normal and usual thing in a community.
Marsh bought steel tubing from B & W to re-tube their boilers. Tube exploded under pressure, causing injuries.
Marsh used industry standards for inspecting the tubes, but it wasn‘t good enough. See this case again in
products liability. Pugsley: standard of care is usually up to the Court or the legislature. See bottom of p. 100
[32] is not turning over the issue of establishing the standard of care on remand; the absence of special verdicts
– the jury only rendered a general verdict. The Appellate Court is saying that on re-trial, the jury must
determine ―whether the steel of which this tube was made was reasonably fit for the purpose.‖ That question
needed to be answered. ―Reasonably fit for the purpose‖ is the standard; the jury must apply that standard to a
specific factual inquiry as to whether the steel used on the boiler tubes was impure or imperfect. Just like a law
school final exam; you go into the exam with the rigid black-letter rules (e.g., duties of occupiers of land) then
you have to apply those rules to the fact pattern presented on the exam.

      Exam Tip: Juries often have several issues that they must decide. For example, in a death penalty
       case the jury must decide guilt and also whether special circumstances apply.

      Exam Tip: Know the rules on land ownership (trespassor, licensee, invitee, etc.). Pugsley gave us a
       5 page handout and it will be on the test. He wants us to memorize these rules.

J.       EMERGENCY
     An emergency situation calls for application of the general negligence standard: The actor must behave as
     would a reasonably prudent person in the circumstances.

CORDAS V. PEERLESS TRANSPORTATION CO. (CITY COURT OF NY, 1941) [NL]
Emergency: Due to the circumstances, D is not held to the same standard as a person with ample time to
make a decision would be. BUT D MUST STILL ACT AS A RP IN AN EMERGENCY WOULD ACT.
BUT IF D CAUSES THE EMERGENCY, D IS N.
Here, cab driver of D‘s cab company held up at gunpoint, cab driver puts on brakes, emergency brake, and
jumps from car. Car hits P pedestrian. Held: cab driver is not N and D is not N as is would be as the
corporation D works for under espondeat superior. Due to the emergency circumstances you can‘t hold cab
driver N for not turning off motor.

K.       GOOD SAMARITANS
     Generally have no duty to come forward.

L.       TEMPORARY INSANITY
     The law holds the mentally deranged or insane (even if only temporary) Δ accountable for his negligence as
     if the person were a normal, prudent person.

PEOPLE V. DECINA, (NY 1956) [L] (EPILEPTIC SEIZURE CAUSES FATAL CAR CRASH)
When the epileptic turned the key to the car he was grossly negligent; involuntary manslaughter..




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                          Page 26 of 120
Torts Outline                                                                                  NEGLIGENCE


BREUNIG V. AMERICAN FAMILY INSURANCE, (WI 1970) [NL] (SCHIZOPHRENIC SEIZURE
CAUSES CRASH)
Sudden mental incapacity equivalent in its effect to such physical causes as sudden heart attack, epileptic
seizure, stroke or fainting by motorist is defense to liability for negligence in automobile collision case. (crazy
woman thought that God was driving her car, that she can fly like Batman; wrecks, knew of condition  Ds)
 liable for car accident due to sudden onset of delusion only if foreknowledge of condition.
 had a delusion while driving, which caused her to collide with ;  had prior knowledge of her own mental
condition; because of prior knowledge,  guilty of negligence.

HILL V. CITY OF GLENWOOD (IA 1904) [L] (BLIND MAN HAS NO HIGHER DUTY OF CARE)
In an action against a city for injuries to a blind man owing to a defect in a sidewalk, defendant could not
complain that the court‘s instruction as to the care required of plaintiff should have dwelt with greater emphasis
on the fact of plaintiff‘s blindness, where defendant‘s counsel did not ask for any instruction framed to meet his
views in that respect.

M.       PROFESSIONALS
     A person holding himself out as a learned professional is required to possess and exercise the knowledge,
     reasonable care and skill of an ordinary member of that profession in good standing.
     Doctrine of Informed Consent – Concerns the duty of the physician or surgeon to inform the patient of
     the risks involved in treatment or surgery.
          In medical malpractice, a patient suing must allege and prove:
          (1) Δ physician failed to inform him adequately of a material risk before securing his consent to the
               proposed treatment;
          (2) if he had been informed of the risks, he would not have consented to the treatment; and
          (3) the adverse consequences that were not made known did in fact occur and he was injured as a
               result of submitting to the treatment.
               As a defense, a physician may plead and prove π knew of the risks, full disclosure would be
               detrimental to patient's best interests or that an emergency existed requiring prompt treatment and
               patient was in no condition to decide for himself.
     California Standard for Lawyers - Duty to possess the degree of learning & skill; and to use the care,
     skill and diligence ordinarily possessed and used by reputable attorneys in similar circumstances.
     Normally, a community standard applies. Country doctor in Gunsmoke doesn‘t have the same facilities as
     in a large city. But it‘s different for doctors, because doctors have a national standard. The AMA counts
     every seat in every medical school in the U.S. and enforces a uniform curriculum.

N.       LAWYERS – UNSETTLED LEGAL QUESTIONS.

LUCAS V. HAMM, (CA 1961) [NL] (AVG. LAWYER DOESN’T UNDERSTAND PERPETUITIES)
An attorney is not liable for being in error as to a question of law on which reasonable doubt may be
entertained by well-informed lawyers.
Action by beneficiaries under a will against an attorney for damages for alleged negligence in preparation of the
will and execution of certain releases. In view of the fact that few, if any, areas of the law have been fraught
with more confusion or concealed more traps for the unwary draftsman than the rules relating to perpetuities
and restraints on alienation, it would not be proper, where it is alleged that defendant drafted a will in such
manner that a trust was invalid because it violated the rules relating to perpetuities and restraints on alienation,
to hold that defendant failed to use such skill, prudence and diligence as lawyers of ordinary skill and capacity
commonly exercise. Regardless of whether the trust provision of the will was actually invalid, an error, which
could cause invalidity only because of a remote and unlikely possibility, does not show negligence or breach of
contract.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 27 of 120
Torts Outline                                                                                          NEGLIGENCE


SMITH V. LEWIS, (CA 1975) [L] (ATTORNEY MUST RESEARCH UNFAMILIAR TOPICS)
An attorney is expected to perform sufficient research to enable him to make an informed and intelligent
determination.
In an action against an attorney for malpractice in failing to assert his client's community interest in her
husband's federal and state retirement benefits in marriage dissolution proceedings in which defendant had
represented the wife, she won a jury verdict and a judgment for $100,000. Had defendant then conducted
minimal research into either hornbook or case law, he would have discovered with modest effort that the state
benefits were likely to be treated as community property and that the federal benefits at least arguably belonged
to the community.

O.        RULES OF LAW
     Can establish standards for breach. Stare Decisis, and, the Court decisions, essentially define the standard
     of reasonable conduct which the community requires.

P.        VIOLATION OF STATUTE
     Elements:
     1.   Is that statute relative to due care?
     2.   The statute must define a clear standard of conduct.
     3.   The statute must be designed to protect a particular class of people, of which the P is a member.
     4.   The statute must be designed to prevent the type of injury actually suffered by the P.
     MAJORITY: A great majority of the courts have held that when a statute applies to the facts, an unexcused violation is
     negligence per se, which must be declared by the court and not left to the jury.
     MINORITY #1: A few states treat violation of a statute as giving rise to a presumption of negligence, which becomes
     negligence as a matter of law unless the presumption is rebutted. (Since it can be rebutted only by showing an excuse
     for the violation, this appears to come out at much the same place as the negligence per se rule.) This is the California
     rule – see BAJI 3.45 (1992 Revision). Although California calls it negligence per se it is really treated as a rebuttable
     presumption.
     The vice of such a statement is that it leaves to the jury the determination of the effect of a statute, a
     question of law that properly belongs to the court. Presumptions are used in ascertaining what the facts are,
     not in determining what the law is. See, Wigmore, Evidence, 3d Ed. § 2490. If the 'presumption' can be
     rebutted merely by showing that one charged with violating the statute acted as a reasonably prudent person
     under the circumstances, the controlling standard is no longer the statutory rule, but the view of the jury as
     to what constitutes reasonable conduct.
          -- Justice Traynor‘s dissent in SATTERLEE V. ORANGE GLENN SCHOOL DISTRICT (CA 1947)
     MINORITY #2: A minority of states hold that the violation is only evidence of negligence, which the jury may accept
     or reject as it sees fit.
     Valid Excuses for Rebuttal of Presumption of Negligence
     (1) An excused violation of a legislative enactment or an administrative regulation is not negligence.
     (2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused
         when:
         (a)      The Violation Is Reasonable Because Of The Actor's Incapacity;
         (b)      He Neither Knows Nor Should Know Of The Occasion For Compliance;
         (c)      He Is Unable After Reasonable Diligence Or Care To Comply;
         (d)      He Is Confronted By An Emergency Not Due To His Own Misconduct;
         (e)      Compliance Would Involve A Greater Risk Of Harm To The Actor Or To Others.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                      Page 28 of 120
Torts Outline                                                                                            NEGLIGENCE


     Exam Note:
     Violation of a statute deals only with breach of the standard of care. π must still prove the remaining elements of a
     negligence claim: cause-in-fact, proximate cause, and damages; and Δ still may raise defenses such as contributory
     negligence and assumption of risk. For example, in most jurisdictions, driving without a license in violation of state law
     will not itself be regarded as a proximate cause of an accident. An exam pattern may set out a violation of a criminal
     statute by Δ, but the statute was not intended to protect against the harm that occurred. Causation is likely to be the
     challenge; probably a problem in proximate cause. See Causation, infra.

OSBORNE V. MCMASTERS, (MN 1889), [L] (SALE OF POISION IN VIOLATION OF STATUTE)
Failure to perform legal duties constitutes negligence; legislature has spoken on the required standard of
care. You’ve got to be in the class of persons the statute is designed to protect, AND suffer the type of harm
the statute is designed to prevent.
 clerk sold poison without proper label, and tried to avoid liability by claiming that there shouldn‘t be civil
liability under the criminal statute that was violated. Court held that the cause of action existed at common law
(failure to use due care) and was simply codified by the statute.

SATTERLEE V.ORANGE GLENN SCHOOL DIST., (CA 1947), [NL] (BUS – CAR CRASH)
(Violation of statute creates a presumption of negligence which may be rebutted by a showing of an
adequate excuse but calls for a binding instruction in the absence of such evidence.)
Bus and car look at each other from 600‘ away and proceed to drive into each other because each thought the
other would yield. Court instructs jury that violation of vehicle code is presumptive evidence of negligence but
that evidence of reasonableness of driver‘s conduct could be weighed in rebuttal. Read the Traynor dissent; it‘s
the most important part of this case.

Q.        PROOF OF BREACH BY CIRCUMSTANTIAL EVIDENCE
     Negligence may be proved by circumstantial evidence; that is, evidence of one fact, or of a set of facts,
     from which the existence of the fact to be determined may reasonably be inferred.

GODDARD V. BOSTON & MAINE R.R. CO. (MA 1901) [NL] (NEW BANANA PEEL)
No evidence of N because a passenger could have just dropped banana. D had no constructive
Notice

ANJOU V. BOSTON ELEVATED RY. (MA 1911) [L] (OLD BANANA PEEL)
Plaintiff was a passenger on defendant‘s trains. She alighted from a train and asked an employee were to
transfer. He led her down a narrow platform. She was following behind him when she slipped on a banana peel.
At trial, testimony showed the peel to have been old, dirty, black in color, flattened, etc. Trial court held for
defendant and plaintiff appeals.

Held for the defendant that the condition of the banana peel allows the inference that it had been on the platform
for a long time in such a position that it would have been seen and removed by defendant‘s employees had they
done their duty.

Also doesn’t really have much to do with custom. This case is a paradigm for circumstantial proof of the breach
of duty (the dirty banana peel speaks for itself—res ipsa loquitur).




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                       Page 29 of 120
Torts Outline                                                                                   NEGLIGENCE


R.        "RES IPSA LOQUITUR, SED QUID IN INFERNOS DICET?" (THE THING SPEAKS
          FOR ITSELF, BUT WHAT THE HELL DOES IT SAY?)
     Elements:
     1.   Event must be of a kind that does not ordinarily occur in the absence of someone's negligence.
     2.   Injury or event must be caused by an instrumentality within the control of Δ.
     3.   Injury or event must not have been due to any voluntary act on the part of the π.
          Majority Rule: Res ipsa merely allows π to get the case to the jury and allows, but does not require
          the jury to find in P's favor. The inference of negligence is left to the jury; they are permitted, but not
          compelled to find it.
          Minority Rule A: Res ipsa shifts the burden of production to Δ, so that Δ must either introduce
          sufficient evidence so that a reasonable jury could find that Δ was not negligent or suffer a directed
          verdict in π's favor.
          Minority Rule B: Res ipsa shifts both the burden of persuasion AND production to Δ once π
          establishes the res ipsa requirements.
          If you know what Δ did, you cannot use Res Ipsa. Res ipsa establishes breach only; still need to
          determine other elements. It can be accepted or rejected by the jury (Accept presumption of negligence
          or reject).

BYRNE V. BOADLE (EXCH. 1863) [L] (BARREL OF FLOUR FALLS ON SOMEONE’S HEAD)
Company liable for barrel falling out of window.
Plaintiff was walking along a road adjacent to ‘s flour warehouse. A barrel of flour fell from the sky and hit
him in the head. He can‘t prove how this happened or that it happened as a result of defendant‘s negligence. The
lower court nonsuits the plaintiff b/c he can‘t prove his case. Plaintiff appeals.

Held for plaintiff that his claim should go to a jury because when a plaintiff can‘t possibly prove how his harm
happened, but a defendant can, the plaintiff shouldn‘t be left without remedy. What happened here is prima
facie caused by negligence. The burden shifts to the defendant to prove that he wasn‘t negligent.

This case extends Vaughan v. Menlove. The similarity is that in both cases no one knew specifically what
caused the accident.

What the plaintiff can’t prove here is breach—the thing the defendant did or didn’t do that would have
otherwise prevented the accident. Commonality of res ipsa cases is that the case is getting to the jury without
the plaintiff showing what it was that the defendant exactly did wrong. This was common in common carrier
cases, but this is the first time it’s adopted in a non-carrier case.

LARSON V. ST. FRANCIS HOTEL (CAL. APP. 1948) [NL] (CHAIR OUT WINDOW ON VJ DAY)
Hotels not liable for actions of their guests.
Plaintiff was walking down sidewalk on V-J Day past defendant‘s hotel when a chair fell from above and hit
her in the head injuring her. Plaintiff relies on res ipsa against the hotel. Trial ct. nonsuits plaintiff and she
appeals.

Held for defendant that nonsuit was right. Given the test for res ipsa, it doesn‘t apply to these facts b/c the chair
wasn‘t under the exclusive control of the plaintiff and this isn‘t the type of accident that wouldn‘t occur but for
defendant‘s negligence.

This case limits Byrne v. Boadle. The distinction is that here, no one knows who threw out the chair, and the
accident occurred despite defendant’s every precaution, whereas in Byrne, only defendant was throwing around
flour.


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 30 of 120
Torts Outline                                                                                   NEGLIGENCE

The analogy b/t this case and Hutchinson v. Boston Gas is that in both cases the defendant couldn’t have
prevented the accident reasonably.

YBARRA V. SPANGARD (CAL. 1944) [L] (RES IPSA – NEGLIGENT SURGERY)
Exception to the “Exclusive Control” requirement for RIL.
Plaintiff underwent surgery for appendicitis. While he was under, he suffered an injury to his right shoulder.
Defendants are the hospital owner, two doctors, an anesthesiologist, and a nurse. Plaintiff can easily prove that
the accident was of a type that doesn‘t ordinarily occur w/o negligence and that it occurred without any fault on
his part. So, the defendants‘ defense is that plaintiff can‘t allege what instrumentality caused the harm nor
whether any of them had control of it at the time. They say that maybe one or more persons where responsible
for the injuries, but no one knows. They say that maybe no one had complete control of the instrumentality.
Trial ct. nonsuits plaintiff and he appeals.

Held for the plaintiff that ―Any defendant who negligently injured him, and any defendant charged with his care
who so neglected him as to allow injury to occur, would be liable. The defendant employers would be liable for
the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of
those who became his temporary servants for the purpose of assisting in the operation.‖ They say that this case
is ripe for res ipsa and that the plaintiff can‘t be denied justice just because he can‘t say how he got injured.
They say that ―it should be enough that the plaintiff can show an injury resulting from an external force applied
while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the
plaintiff may ever be able to make.‖ The court also limits its holding to say that ―where a plaintiff receives
unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any
control over his body or the instrumentalities which might have caused the injuries may properly be called upon
to meet the inference of negligence by giving an explanation of their conduct.‖

This case extends Summers v. Tice. The analogy is that in both cases it was unclear whose negligence caused
the harm. However, the distinction is that whereas in Summers the plaintiff knew that both defendant had acted
negligently, here I’m not convinced that all the defendants were necessarily negligent. All ’s jointly and
severally liable.

This case is controversial b/c likely only one person was negligent, but everyone was held liable. This case
limits Garcia v. Joseph Vince Co. The distinction is that he was unconscious and had no way to gather
evidence. They also stress the conspiracy of silence. If you make them all possibly liable, that gives the innocent
people an incentive to rat out the guilty. So this case is pretty limited to the facts where there is a conspiracy of
silence. In other cases of alternative causes where only one was possibly negligent, its usually no liability.

Note this case is similar to Anderson v. Somberg.

This case is important, but it’s radical. It was clear not all the defendants could have been negligent. So unlike
Summers v. Tice because there both shooters were negligent although only one hit. This case is more similar to
Garcia (skinny saber) although that was NL. The distinction is probably the conspiracy of silence.

GOLDSTEIN V. LEVY – (NY 1911) [L] (HOTEL LIABLE FOR FIXTURE (CHANDELIER)
FALLING
Absent a witness, hotel liable for injury caused by falling chandelier (faulty fixtures).
1.      Chandelier in a theater fell and injured a patron – presumption; res ipsa applies and D must rebut
   presumption of negligence but didn‘t do so.
        a.      However,
                  i.       If D introduced evidence that it never fell before, this is probably so weak that
                     presumption will remain and verdict for P




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 31 of 120
Torts Outline                                                                               NEGLIGENCE

                  ii.    If D introduced evidence of recent careful inspection, it would probably reduce the
                    presumption to an inference and it would be permissible for the jury to infer that there
                    was negligence
               iii.      If D introduced evidence of careful inspection and evidence that a person was seen
                    shooting at the light at exactly the time it fell, it would probably destroy the persuasive
                    effect of Res Ipsa and judge would grant D‘s motion to dismiss
               iv.       Someone sneaking around the music hall suspiciously, would destroy the permissible
                    inference
Catholic Nun Rule – always travel in pairs so you have a witness. They used to do it so no one would be
corrupted.

DODGER STADIUM HYPO, IN-CLASS 3/22/2004, [L], (FIXTURES FALLING = NEGLIGENCE)
Big giant TV monitor at Dodger Stadium falls on some guy‘s head. Res Ipsa would apply and for-sure, the
Dodger‘s could be sued. Probably the TV installation crew as well.

COX V. NORTHWEST AIRLINES, (7TH CIR. 1967) [L] (PLANE CRASH ON A CLEAR DAY)
(Res Ipsa Can Be Applied, Even When An Act Is Unexplainable.)
NOTE: Warsaw Convention is a treaty—US did not sign it but we do adhere to it. 75K cap. Requires willful
misconduct in order to recover more.
Plane disappears over pacific ocean & all that is ever found is debris. P‘s husband, a passenger, died. The D
claimed that RIL shouldn‘t apply because it exercised due care in maintaining the plane, therefore that P has
not sustained its burden on proof. The ct said that there was no evidence of the cause of the crash, therefore
D‘s evidence of due care is irrelevant and P can apply RIL.Res ipsa is appropriate in this case b/c crashes
usually occur due to pilot error. The fact that D made a showing of proper maintenance etc., is not enough to get
out of res ipsa.

SULLIVAN V. CRABTREE, (TENN. APP. 1953), [L] (WHEEL-OFF = RIL)
(Res ipsa loquitur merely makes a case for the jury. Jury chooses the inferences to be made from the
facts, and jury decides the 's negligence.)
Facts: Plaintif sues damages for death of adult son, who was killed while a guest (riding) in a truck. The truck
went off the highway and over a steep embankment. The road was a paved, first class road, and it was daytime
and no ice/snow/precipitation on the road.
The case against the driver of the truck went to trial, and the verdict was a judgement in driver's favor. A
appeals in error.
Issue: Given that conflicting inferences could be drawn form the evidence of this case, was it for the jury to
choose the inference as they deemed most appropriate, thereby making it appropriate to say there was evidence
to support the jury finding for the defendant?
Holding: yes
Reasoning: The truck reck could be due to (1) drivers negligence or (2) no fault of his own, thought an
unavoidable accident cased by the breaks failing or some other mechanism in the truck failing to work properly.
Since both inferences are possible from the information in this case, it is proper that a jury should decide the
issue of negligence.

S.       IMPUTED DUTY OF CARE TO THIRD PARTIES: BALANCING TEST
BIAKANJA V. IRVING (CA 1958) In order for a party to be found duty-bound to a third party, absent privity of
contract, the following factors must be balanced:
 The extent to which the transaction was intended to affect the π;
 The dministrative of harm to him;
 The degree of certainty that the π suffered injury;
 The closeness of the connection between the ‘s conduct and the injury suffered;


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                         Page 32 of 120
Torts Outline                                                                                        NEGLIGENCE


   The moral blame attached to the ‘s conduct;
   The policy of preventing future harm
                                                                              R
    The availability, cost, and prevalence of insurance for the risk involved (ROWLAND V. CHRISTIAN, (CA
    1968)

CONNOR V. GREAT WESTERN S&L, (CA 1968) [L]( LENDER LIABILITY TO 3RD PARTY FOR
FORESEEABLE HARM ARISING FROMCONSTRUCTION DEFECTS)
(When a lender exercises substantial control over, and/or has a substantial share in the profits of a
lendee’s business, a duty of care to 3rd parties may arise under the principles of Agency where the risk of
harm to the 3rd parties is FORESEEABLE. Where a duty of care to third parties is imputed liability may
be imposed.) SUPERSEDED BY STATUTE CCCP § 3434.

This is a long case that involves first, a determination by the court that the bank and builder enjoyed an agency
relationship because of the bank‘s high degree of control over the builder‘s activities. Next, the Court imputed
the bank‘s duty of care to the innocent homeowners who bought homes with shoddy construction that the bank
negligently overlooked or ignored. Note the Burke/Mosk minority finds no agency relationship. See the 6 part
test from BIAKANJA V. IRVING (CA 1958), referenced in the case and noted in ―T‖ supra. Compare to strict
product liability cases; McPherson v. Buick, Hennigsen, etc.

Note also, that factually and legally, the failure of the building inspector to inspect and stop the project was
pleaded as an intervening cause of the harm. The majority rejected this argument, viewing the behavior of the
subcontractors as proximate concurring causes of the harm. James Elroy (the author of LA Confidential) alleges
that Mosk was photographed with hookers and that is why he could not run for governor.

CCCP § 3434 was enacted immediately thereafter, holding that banks are not liable to 3 rd parties, but the
Connor case is still quoted widely by π‘s attorneys.

Chief Justice Roger Traynor, upholding a negligence action by homeowners against a lending institution that
had financially backed and extensively controlled a new housing development, observed that ―the usual buyer
of a home is ill-equipped with experience or financial means to discern . . . structural defects.‖ (Id., at p. 867.)
The Connor opinion rejected as ―conjectural claims‖ assertions that recognizing a duty on the part of the
defendant to the homeowners would ―increase housing costs, drive marginal builders out of business, and
decrease total housing at a time of great need‖ (ibid., at p. 867), observing that ―[i]n any event, there is no
enduring social utility in fostering the construction of seriously defective homes. If reliable construction is the
norm, the recognition of a duty on the part of tract financiers to home buyers should not materially increase the
cost of housing or drive small builders out of business.‖ (Id., at pp. 867-868, fn. Omitted.) Finally, the court
observed in Connor that ―a home is not only a major investment for the usual buyer but also the only shelter he
has. Hence it becomes doubly important to protect him against structural defects that could prove beyond his
capacity to remedy.‖ (Id., at p. 867, italics added.)

As implied in the above italicized observation, tort law offers the most effective, and often the only realistic,
nonstatutory remedy for consumers in this area.

SECURITY FEDERAL V. COMMERCIAL INVESTMENTS, (BKRTCY. D.N.M. 1988)
[NL](LENDER NOT LIABILE TO OTHERS FOR FORECLOSING ON MORTGAGE)
(When a lender forecloses on a property properly secured as collateral for a loan, absent determination
of an agency relationship, the lender is not liable to third party creditors of the property foreclosed.)

Bank calls loan, construction of home is stopped, everyone sues everyone. Lawyers collect huge fees, life goes
on.
ISSUE            Π RATIONALE                                                 RATIONALE (PREVAILED ON EACH ISSUE)
Defective        Bank lien invalid b/c mortgage not properly recorded b/c
                                                                            Substantial Compliance
Acknowledgment   acknowledgment did not indicate state of incorporation.



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                  Page 33 of 120
Torts Outline                                                                                                      NEGLIGENCE

                                                                                 Absent filing of a lien, architect‘s lien can only arise as a
                    Architect lien has priority over bank lien b/c architect     matter of law upon commencement of construction.
Priority            began work on the plans before the bank perfected its        Since construction did not begin before bank filed its
                    security interest in the property.                           lien, bank‘s antecedent lien prevails. (Grading of the pad
                                                                                 = commencement of construction in California).
                                                                                 Absent intentional misconduct, no grounds for such
                                                                                 application. Bank exerted no misconduct, no resulting
Equitable           Even if bank‘s lien is superior in right, doctrine of        injury, no inducement of parties to continue supplying
Subordination       equitable subordination should be invoked to favor us.       labor or materials, and no allegation that bank had notice
                                                                                 of any unpaid subcontractor or materil supplier prior to
                                                                                 calling the loan.
                    We put down an earnest money deposit which was
                                                                                 Keevers might be entitled to a lien on the property to
Equitable Vendee    supposed to be put in trust and applied toward our
                                                                                 secure their interest in the depost, but it will not be
Lien                purchase contract. Equity demands that we get back our
                                                                                 granted priority over the other claims against the estate.
                    deposit.
                    Under Connor v. Great Western, the bank had a duty
Breach of Duty to                                                                Case at bar distinguishes from Connor b/c no substantial
                    (sounding in tort and K) to us to ensure that the funds it
3rd Party                                                                        profit sharing or control.
                    was lending were properly used.
                    Bank asserts that liens of mechanics and materialmen are
Unlicensed                                                                       No need to reach this issue b/c bank liens were first in
                    void because the debtor was not a properly licensed
Contractor                                                                       time and the estate is dministratively insolvent.
                    contractor.


IV.        Causation in Fact. (Actual Cause)
Was the conduct (act or omission) of the Δ a factual, actual, physical cause of π‘s harm?

  A.         2 PRONG TEST PER HARRIET:
     1. Prove that the defect CAN cause the harm;
     2. Prove that the defect DID cause the harm

B.         PROOF OF CAUSATION

WOLF V. KAUFMANN (NY 1929) [NL]
Plaintiff‘s deceased was found dead at the foot of some stairs in defendant‘s building. The area was unlighted in
violation of statute. It was unknown whether the accident happened before or after sunset. Jury returned verdict
for defendant. Trial ct. ordered new trial b/c not enough evidence to support verdict. Defendants appeal.

Held for defendants that there was no proof of causation.

This case limits Reynolds. The distinction is that in Reynolds the accident conclusively happened on a moonless
night. Here, it might have happened before sundown and therefore the lighting would not have been the cause.

There were two mutually exclusive states of the world: light or dark, daytime or after dark. If there had been
daylight, it would have been like Grimstad in that the accident would have happened regardless of whether
there was a light or not. Court references Bornstein v. Faden which was similar except there was a witness, so
there was proof of causation. Catholic Nun Rule! – Always bring a witness.



Remember,

      Res Ipsa Fulfills Breach & Cause
      Per Se Fulfills Duty & Breach


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                                 Page 34 of 120
Torts Outline                                                                                     NEGLIGENCE


LEUER V. JOHNSON (MINN. APP. 1990) [NL]
Three buddies go hunting. They agree to split up and meet back at the car. Defendants are walking back to the
car where the plaintiff should be waiting. Plaintiff is stalking a deer he thinks he wounded. Defendants see what
they think is a deer and both shoot. Plaintiff is hit and it‘s unclear who‘s shot hit him. Plaintiff sues and trial ct.
grants summary judgment to defendants. Plaintiff appeals.

Held for the defendants that there is vicarious liability when there is a joint enterprise. Because guns are always
under the control of an individual, each hunter has to make his own decision. The test is 1) a mutual
understanding for a common purpose, and 2) a right to voice in direction and means to control means of
achieving common purpose. Expressly overrules Summers.

 This case overrules Summers (although in another jurisdiction). Is there a distinction? That potentially the
bullet here could be found and then prove, whereas in Summers you can never tell were buckshot came from.
But I don’t buy this. This overrules. Look at the joint enterprise argument in Connors v. Great Western.
Pugsley says ―is it right to make the π suffer the full loss just because we can’t pinpoint the cause?‖
Pugsley says they should have pled straight negligence; that way they could have avoided the tangle of res ipsa
and would have had an easier burden of proof.



C.       “BUT FOR” TEST
     The Δ's conduct is a cause of the event if the event would not have occurred but for that conduct;
     conversely, the Δ's conduct is not a cause of the event, if the event would have occurred without it.
     -Works with concurrent causes too

KRAMER SERVICE INC V. WILKINS (GLASS FROM HOTEL TRANSOM FELL ON P’S HEAD-GOT
CANCER) [L]
No causal connection b/w cancer and cut-experts said unlikely. P should have shown chances of getting cancer
w/o the cut. Issue is not the size of the probability, but the change in the probability. Has the negligence greatly
multiplied the chance? Diff b/w Kramer and Perkins is the zero chance in one case and increase of some chance
to more chance in the other.
Kramer Service, Inc. v. Wilkins (Supreme Ct. of Mississippi, 1939)
Exception: P cannot recover for harms that have not occurred without proof of causation; under Roland v.
Christian the innkeeper may have had a duty to repair the defect and Wilkins may have had a duty to warn his
guest. - Kramer's Service, Inc. v Wilkins

D.            “SUBSTANTIAL FACTOR” TEST (FOR MULTIPLE, INDEPENDENT CAUSES)
         1. Where a similar, but not identical result would have followed without the Δ's act;
         2. Where one Δ has made a clearly proved but quite insignificant contribution to the result, as where he
             throws a lighted match into a forest fire.
         3. Further, Where there are multiple contributing causes to π's injuries, Δ's conduct will be deemed a
             cause-in-fact if it was a substantial factor in bringing them about.

ANDERSON V. MINNEAPOLIS ESTABLISHES SUBSTANTIAL FACTOR TEST [L] (D’S FIRE
MERGED W/ANOTHER OF UNKNOWN ORIGIN-BOTH BURNT P)
Court uses ―Material Element‖ test-even if one of the parties is unknown, you‘re still liable (even though both
parties alone could have done it) Negligence of both leads to the accident. Contribution is enough to make the
negligence a material element. If it adds enough to the mix to lead to the injury, then it is material, even if by
itself it wouldn‘t have caused it.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                               Page 35 of 120
Torts Outline                                                                                    NEGLIGENCE


E.        GREATLY MULTIPLIES TEST
Proven if
    1. D‘s activity greatly multiplies the chances of P‘s injury and
            a. The increased risk relative to a background risk that may be greater than zero
    2. Is of a character naturally leading to its occurrence

REYNOLDS V. TEXAS & PACIFIC RAILWAY (LA. ANN. 1885) [L]
If ’s activity greatly multiplies the chances of π’s injuries and is of a character naturally leading to the
injury. Use when “but for” and “substantial factor” don’t fit.
Defendant had a train station at which passenger trains arrived at night all the time, but had no stationary
lighting. Plaintiffs were waiting for a train. When it got there they were told to hurry up out. The injured
plaintiff, coming out of the lit sitting room out into the 2 a.m. moonless night tripped and fell on stairs she
didn‘t see. Defendant argues that even if it was negligent by not putting up lights, the accident could have
happened in broad daylight. Jury returned verdict for plaintiffs and defendants appeal.

Held for plaintiffs. Ct. says that while it‘s possible the accident could have happened at any time, negligence
that greatly multiplies the probability of it happening, and that is of a character naturally leading to the accident,
can‘t be dismissed. That the accident could have happened without negligence isn‘t enough to break the chain
of causation.
Reynolds v. Texas & Pacific Ry Co (P fell down unlit stairwell with no handrail)
―But for‖ and ―substantial factor‖ tests don‘t work since there are multiple causes. D‘s negligence greatly
multiplied the chances of accident to P, leading naturally to its occurrence. Mere possibility that it might have
happened w/out negligence is not sufficient to break the chain of cause/effect.

MITCHELL V. GONZALES (1991) [NL](ADULTS FAILED TO SUPERVISE BOY, BOY DROWNED)
Boy Drowned When Friends’ Parents Didn’t Pay Attn. Not Px Cse
Proximate cause is confusing – better to consider substantial factor, because doesn't imply last in sequence.
Substantial factor test easier to understand by juries, more intuitive.
's decedent drowns due to negl. failure of s to supervise. Majority: overrules lower court decision to admit
's instruction re proximate cause (implies last in sequence), in preference for instruction on substantial factor
(easier to understand). Dissent: prefers instruction on proximate cause, viewing it as having two elements (1)
element of physical or logical causation, known as cause in fact (2) a more normative/evaluative element, which
"proximate" imperfectly conveys.

                                                              CAUSATION
                         1 Cause                     2 or More Causes                      Sequential Series y y y y
Factual                  But For                     Substantial Factors                   1st = May be But For
                                                                                           2nd and on = Intervening
                                                                                           Must be gross negligence
                                                                                           by the intervening
                                                                                           parties.
                                                                                           Look at Andrews dissent
                                                                                           in Palsgraf and the car
                                                                                           accident example.
                                                                                           Empirically, it can go on
                                                                                           forever; but what about
                                                                                           the intervening causes?
                                                                                           The purpose is to cut of
                                                                                           the original tortfeasor‘s
                                                                                           liability at some
                                                                                           politically acceptable


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 36 of 120
Torts Outline                                                                                     NEGLIGENCE

                                                                                         point.

Legal / Proximate       Proximate Cause             Proximate Concurring Causes          Superseding Causes
Forseeability of
Harm (Palsgraf)                                     Variation #1: Any one cause
But For test                                        could have caused this but they
                                                    are all discoverable; this is
                                                    important if you only have one
                                                     with deep pockets.

                                                    Variation #2: No single  could
                                                    have caused the harm; but
                                                    collectively they could have.



People v. Kibby, New York case; man mugged in Buffalo and thrown out in the cold to freeze. A college
student came along driving while drunk. The guy was trying to crawl across the road when the drunk student
hit him. The muggers were captured but they claimed that the intervening and superseding cause of the guy‘s
death was the college students. NY Ct. of Appeals said it was morally outrageous what the muggers did; the
likely cause of death was so great that the mild, ordinary negligence of the student could subject him to a
portion of responsibility of the victim‘s death, they would not allow it. See also Jackson v Bigby.

STATE FARM FIRE AND CASUALTY COMPANY V. ERI VON DER LIETH
When a loss can be attributed to two causes, one covered and one excluded, coverage exists only if the
covered peril is the efficient proximate cause of the loss.
In 1989, the California supreme court, in Garvey v. State Farm Fire & Casualty Co., 770 P.2d 704, held that the
California appellate courts had misinterpreted the cases discussed above that used the concurrent causation
doctrine to allow coverage in the face of a clearly excluded peril. The supreme court stated that when a loss can
be attributed to two causes, one covered and one excluded, coverage exists only if the covered peril is the
efficient proximate cause of the loss. Had this decision been adhered to in Guyton and Welsh, perhaps insurers
would not have felt a need to add these exclusions. But having added them, ISO and most independent insurers
have, up to this point, left them in, with potential harm to insureds who suffer a loss where the efficient
proximate cause is a covered (not excluded) cause of loss but one of the excluded causes is also involved.
A case in point, in another California case, State Farm Fire and Casualty Co. v. Von Der Lieth, 218 Cal. App.
3d 964 (1990), an appeals court overruled a lower court which had held that third party negligence rather than
earth movement was the efficient proximate cause of the loss. In this case, the appeals court found that even
though the third party was indeed negligent, this was not the efficient proximate cause of the loss; the earth
movement was.

          1/31/2005 Sindell v. Abbott Labs (mother ingested DES while pregnant-adult daughter got
cancer and is
                                       suing 5 drug companies. P couldn‘t ID manufacturer out of 200)
              Market Share Theory: Each manufacturer‘s share of the liability is determined by the
             proportional share of the product that it sold in the relevant market area.
            [% of market share X damages]
             Each of the manufacturers breached a duty, you don‘t know which one=Summers v. Tice. But
             the problem is you don‘t have all the Ds in court. So there is a possibility that the company that
             isn‘t there and who might have done it will get off. On the other hand, people who didn‘t cause
             it, might have to pay.
             Dupont case-Problem was the Canadian companies which weren‘t a party to the lawsuit.
             Court allowed Ps to reverse the burden to Ds. Sindell court says distinction is number of


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 37 of 120
Torts Outline                                                                                           NEGLIGENCE

              manufacturers. Sindell has a large number while Dupont had a small
              Court does say that you can use Summers and reverse the burden when you have most of the
              Ds. Test: Must have a substantial share of the market. They are not looking at numbers of
              manufacturers-they are looking at a substantial share of the production –of the pills sold.
              It is pills sold vs. number of companies who make them. 90% is definitely a substantial
              share-beyond that, we don‘t know
               Problems:
               1. A company proves they aren‘t liable or they are judgment proof.
               2. The other percent that isn‘t in court (in this case, 10%).
               Is joint and several liability overturned? The court doesn‘t tell you. Creates incentive for P to
               find as many Ds as it can. P bears the burden of those Ds not found, or who are judgment
               proof. P won‘t get the full 100% - P will bear the burden for the 10% in this case. Won‘t make
               the P whole as would joint and several liability.
There is an argument that court didn‘t intend to overturn notion of joint and several liability. If that was their
intention, who cares about substantial share? Big deal if only 10% of Ds there, P can only collect 10% of total
damages. Damages are capped-why would court care about substantial share if they weren‘t also retaining
notion of joint and several liability. Why should P bear the risk that some of the Ds are out of business,
judgment proof, whatever. Court leaves this unclear. Court also leaves unclear what happens when D proves it
isn‘t liable. Who pays that portion?
Court has done two things:
     1. Substantial share of the market
Share of the market is a limitation on damages. Apportionment. Cap on damages.
Harriet says: burden shifting to retailers to prove that the factual causation each ∆ had to gather facts to prove
that it wasn‘t their DES that caused the injury. 1/31/2005. Market share liability.

V.        Proximate Cause.
Whether the Δ‘s liability should be cut off even though the Δ‘s conduct was both negligent
and a factual cause of π‘s injury.
  Once you get over the actual cause hurdle, you must make a determination whether the D will have some
  legal responsibility for what is done. You have to analyze the facts of each case, using logic, common sense,
  public policy and precedent. Just how far do you extend liabilities?
    Scope of Risk – Included in the foreseeability concept of proximate cause is the notion that the harm must
    be within the scope of the risk that makes Δ's conduct negligent.
         For example, one risk of driving excessively fast is that the driver might not be able to stop in time to
         avoid a hazard appearing suddenly on the road. Thus, if Δ, because of her speeding, is unable to stop in
         time to avoid hitting a tree that has fallen in the road, Δ's negligence will be a proximate cause of
         injuries to her passenger resulting from the ensuing collision. But suppose that accident resulted from
         the tree falling onto the roof of the car as Δ drove past. But-for causation would exist, because but for
         Δ's speeding, she would not have been at that precise spot when the he tree fell. Proximate cause would
         be lacking, however, because the risk of arriving at a specific location in time to have a tree fall on top
         of her car is not what made her speeding negligent.
     Exam Note:
     Remember that the most important consideration for proximate cause is one of foreseeability. If π's injury results
     directly from Δ's act or omission (w/o intervention of any other force), and is of a kind and extend that a reasonable
     person would have foreseen as being threatened by Δ's risk-creating activity, then proximate cause is established.

A.        DIRECT CAUSATION (NO INTERVENING FORCES)
          Means that breach led directly to damages. There were no intervening acts which occurred.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                      Page 38 of 120
Torts Outline                                                                                         NEGLIGENCE

        1.   Foreseeable Results. Δ acts on a set stage and all factors contributing to π‘s injury or damage are
             in place as the Δ acts and the result which occurs is foreseeable with no new forces entering the
             picture.
        2.   Unforeseeable Results. A foreseeable π has been injured but an unexpected or different injury
             occurs.
             a. Thin skulled π
                  ―Eggshell skull rule‖ states that Δ takes the victim as the victim is found.
                  Example: Δ negligently bumps into π, knocking π to the ground. Such a fall would normally cause only
                  some bruises, or at worst, a fractured limb. π, however, has an unusual bone condition which causes
                  virtually every bone in π's body to shatter in the fall. The complete destruction of π's skeletal systems
                  results in π's agonized death a few hours later. Δ will be liable for all of π's personal injuries.
             b.   Other Cases
                  (1 )   POLEMIS
                         Minority Rule: Under this approach, proximate cause exists if the damage followed in a direct and
                         unbroken sequence from Δ's negligence, even if of an unforeseeable kind and extent.
                         Even though the kind and extent of the damage were not foreseeable, the court held Δ liable
                         because the damages followed directly and immediately from Δ's negligence.
                  (2 )   WAGON MOUND #1
                         Majority Rule: Δ will be liable only for damage of a kind and to an extent that is foreseeable.
                         D not held liable for fire damaged caused by fuel oil which Δ negligently spilled from ship, because
                         the fire was not foreseeable.
                  (3 )   WAGON MOUND #2
                         Balancing; Weigh The Risk.
                         Court held that Δ should have known that there was a serious risk of the oil on the water catching
                         fire in some way and that if it did, serious damage to ships or other property was not only
                         foreseeable, but very likely.
        3.   Unforeseeable π. If a reasonable and prudent person would not have foreseen the possibility of
             injury or damage to anyone both Andrews and Cardozo agree that a duty is not owed to anyone.
             Just about anything that happens is somehow foreseeable, but just what is reasonably foreseeable?
             a. If Injury Was Foreseeable
                  (1) Cardozo – Duty is only owed to those in the zone of danger.
                  (2) Andrews – Duty is owed to one; duty is owed to all.
                      Proximate Cause Considerations:
                      (1) Directness or indirectness of the causal chain, i.e., was the chain natural and continuous or
                          were there intervening causes?;
                      (2) Nearness or remoteness in space and time of δ's breach to π's injury;
                      (3) Foreseeability of the kind and scope of injury; and
                      (4) Notions of policy and justice.



RYAN V. N.Y. CENTRAL RR CO., 1866 [L] FORSEEABILITY
Sparks from a train set D/RR‘s shack on fire, which in turn burns down a nearby house, owned by P. Court
draws the line at remote and proximate cause at the shed: train was the direct, proximate cause of the shed
burning – but was not the proximate cause of the house burning (even though D was a CIF in all of the
subsequent fires) Natural and predictable cause
•        Court attempts to lay down a FR rule: the first-house rule.
•        Nowadays – we have liability insurance, to spread loss.
P loses b/c damages are too remote – immediate result of their negligence was destruction of their own shed.
Policy decision-wants homeowners to get insurance and hence fire safety mprovements-encourages RR subsidy.
Risks in 1866 were great fires which burnt down whole towns. Subrogation issue-if homeowners have their ins,
ins co pays and don‘t have to go to court. So court holding insures fire safety and limits litigation. Holding
depends on courts characterization of the facts: can treat RR and woodshed as one entity or two separate things.


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                    Page 39 of 120
Torts Outline                                                                                 NEGLIGENCE



MCCAHILL V NY TRANSPORTATION
 was an alcoholic and prone to delirium tremens; he was hit by ‘s negligent driving of car and
precipitated a case of delirium tremens which led to ‘s death. Ct held that although  may have had
pre-existing condition, the ‘s negligence was the cause of the condition which caused death –
eggshell skull rule – you take your /victim as you find him. Even though ‘s death due to delirium
tremens was not foreseeable, the  was liable. (―he who is damaged should recover?‖).
I. Proximate Cause
   i.        In general: if D‘s negligent act has caused the damage (in fact; by CIF), the damage might still be
        so remote or so bizarre in its relationship to D‘s negligence that D will not be liable – we divide the
        universe of causes-in-fact into proximate causes (which ground liability) and remote causes (which do
        not ground liability).

        (a) Analysis is usually much more policy-oriented than the analysis of determining CIFs.

        (b) ―Substantial factor‖ means something close to a proximate cause, BUT if two fires are converging
            to destroy a house and someone runs inside to save some golf clubs and is therefore killed, both
            fires are a substantial factor in causing the death – but neither is a proximate cause (because of the
            intervening event of the stupid person running into the burning house).

  ii.        Older approach: treated the issue as one subject to resolution via the application of fixed rules.

        (a) Ideas:
            (1) Direct causes: if D was negligent, he was liable for all consequences directly caused.
            (2) Intervening/superseding causes: ―break‖ the chain of causation; there was no liability if the
                result was brought about by an independent intervening cause.
            (3) Concurring cause: not exculpatory; merely combine with D‘s negligence
            (4) Dependent vs. independent intervening causes

        (b) Cases:

             (1) Ryan v. N.Y. Central RR Co., 1866 (577): Sparks from a train set D/RR‘s shack on fire,
                 which in turn burns down a nearby house, owned by P. Court draws the line at remote and
                 proximate cause at the shed: train was the direct, proximate cause of the shed burning – but
                 was not the proximate cause of the house burning (even though D was a CIF in all of the
                 subsequent fires)
                  Court attempts to lay down a FR rule: the first-house rule.
                  Nowadays – we have liability insurance, to spread loss.

             (2) In re Polemis, 1921 (578): D‘s employees negligently dropped a plank in the hold of P‘s ship
                 (negligent because it risked injury to property or someone in the hold). But plank struck a
                 spark which ignited vapor in the hold, causing the ship to burn up. However unexpected and
                 unforeseeable the result, D was held liable because the fire was the direct consequence of the
                 act.
                  Overruled in Wagon Mound, infra.
                  Polemis represents one of the two theories of proximate causation: directness.
                  Directness test is still majority test in U.S.!

 iii.   Modern approach concedes that no set of ―automatic‖ rules is going to solve the problem of remote
        damages; the issue is ultimately one of policy. This means two things:


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Torts Outline                                                                                   NEGLIGENCE


        (a) There is an irreducible question of value (a question of ―ought‖ rather than ―is‖) in asking whether
            the damage is too remote or bizarre to be excluded from the scope of D‘s liability.

        (b) Courts should consider access to insurance and risk-distribution in deciding D‘s liability … policy
            of redistribution is based on the principle that it is socially useful for the risk of loss to be borne by
            a large number of people; this policy is furthered if D carries insurance or can pass on liability
            costs to his customers.

 iv.        No single ―modern‖ approach, but a major trend is to limit liability to foreseeability: when
        consequences are unforeseeable, they are too remote to be included within the scope of liability.

        (a) Overseas Tankship v. Morts Dock (The Wagon Mound (no. 1)), 1961 (588): D negligently
            discharged oil 600‘ from P‘s wharf. 2 days later, the furnace oil came into contact with the wharf
            and was ignited when molten metal was dropped from the wharf. TC held that D could not have
            been expected to know that the furnace oil was flammable on water; the court held that D was not
            liable because the damage was not reasonably foreseeable.
            (1) Wagon Mound overturned Polemis.
            (2) Argument for principle of foreseeability is that D is negligent; but only liable for foreseeable
                 damages: if damages are unforeseeable, they are not part of the cost/benefit analysis. D‘s
                 liability is limited to the risks that make his conduct negligent.

        (b) Foreseeability in terms of traditional causation: foreseeable even is less likely to break the chain of
            causation than an unforeseeable event.

        (c) Foreseeability similar to probabilistic Hand formula: determine what is foreseeable and take
            precautions to the extent economically feasible.

        (d) Foreseeability is minority position, but has more intellectual support.

  v.    Another modern trend is to collapse the issue of proximate causation into issues of duty and
        negligence.

        (a) Palsgraf v. Long Island RR, 1928 (581): P was standing at a train station. A man carrying an
            unmarked box ran to catch a departing train; D/RR‘s employees tried to assist, but in doing so
            dislodged the box. The box contained fireworks, and it exploded when it fell under the train,
            knocking over some scales at the far end of the platform, injuring P, who sued RR for negligence
            of its employees.
            (1) Cardozo‘s majority opinion reduced the question of proximate cause into one of duty:
                  The issue was whether there was a duty to the P.
                  The test of duty was the range of ―reasonable apprehension‖ (equivalent to the test of
                     ―foreseeability‖).
                  Where the problem is whether the particular victim is foreseeable, the issues of duty and
                     proximate case are interrelated.
                  Negligence = breach of duty to a particular person.
                  ―Foreseeability‖ controls both issues.
                  Application: P, standing at the other end of the platform, was not a ―foreseeable‖ victim
                     of negligently helping a passenger on a moving train.
            (2) Andrews‘ dissent favored the traditional view that negligence and duty are merely the first
                 stage of analysis and proximate cause – a distinct issue subject to different criteria.
                  Issue of negligence can be resolved without first identifying the victim and deciding if
                     there is a duty to that person.
                  Negligence = breach of duty to the public at large.


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Torts Outline                                                                                    NEGLIGENCE

                        Cardozo‘s reply was that ―proof of negligence in the air will not do‖ (this was repeated in
                         Wagon Mound, supra).
                        Application: whether given the employee‘s negligence, the employee‘s act was the
                         proximate cause of P‘s injury – but supplies no test; he says it is a matter of ―practical
                         politics.‖

             (3) Arguing directness (on D‘s side, want to find superseding causes that break the chain of
                 causation; on P‘s side, want no intervening causes):
                  Passenger carrying fireworks? (Probably outside the chain; happened previous to D‘s
                     act.)
                  Scales not bolted down? (But D would also be responsible for the scales.)
                  Doors on the train already closed? (Possibly; then passenger‘s act would be superseding
                     cause.)

             (4) Arguing foreseeability
                  For D: box was not marked; no one could have known fireworks were inside, or that they
                     would fall under the train, or explode.
                  For P: because the box was unmarked, it should be expected that something weird could
                     happen.

                         (b) Foreseeability test plays two roles: determining if there is negligence, and how far it
                             goes before it becomes too remote
                             (1) In directness test, foreseeability determines proximate cause and negligence
                             (2) Cardozo adds duty as foreseeability test: if not foreseeable, then no duty and no
                                 negligence.

               vi.           Yet another modern trend related to Palsgraf is the merger of the issues of proximate
                         cause and negligence; this is the test that limits liability to the scope of the risk.
                         (a) Example of leaving a box of poison on a shelf. Forseeable danger is accidental
                             poisoning, but the box could also fall and injure someone.
                         (b) First step is asking what was the risk that made the handling of the poison negligent?
                         (c) Next step is to ask whether the result is within the scope of the risk. If not, no
                             liability. Related to foreseeability test.
                         (d) Kind of explains the result in Brown v. Shyne, supra. Violation of a statute is not
                             the proximate cause of the injury.

              vii.       Foreseeability and eggshell-skull rule: general rule is that the tortfeasor takes the victim
                         as he finds him.
                         (a) McCahill v. N.Y. Transportation Co., 1911 (586): D negligently struck and injured
                             P, an alcoholic. The accident provoked delerium tremens that subsequently killed P.
                             The court held that D was still responsible for P‘s death, despite the fact that DT
                             might not have been provoked had P not been an alcoholic.

             viii.           A review of the general tests for proximate cause:
                         (a) Directness test: either an intervening cause or not. Manipulable because the
                             concepts of intervening cause, remoteness, naturalness, etc., are all vague. One can
                             argue that even intervening causes do not break the causal chain if the consequence
                             is foreseeable.
                         (b) Foreseeability test: foreseeability can be broadly or narrowly construed.
                             Manipulable because of the sense that almost anything is foreseeable (as long as it‘s
                             not physically impossible) vs. the idea that even the most ordinary events are
                             unforeseeable because they always occur under slightly different circumstances.
                         (c) Scope of risk test: often the same as foreseeability; inquiry is similar to that made in
                             statutory violation cases.


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 42 of 120
Torts Outline                                                                                      NEGLIGENCE

                         (d) Andrews in Palsgraf: public policy; proximate cause involves a factual judgment but
                             also factors of just outcome, nearness of risk, etc. Legal realist view of where to cut
                             off liability; ask if the nexus is close enough between cause and effect.

               ix.       For purposes of solving concrete proximate causation problems, there are some common
                         recurring factual situations (refer to Olsen’s Appendix, pp A-36 – A-39), also refer to
                         ―Proximate cause hypotheticals‖ handout and notes on 3/16).

                         (a) Type 1: Rescue cases (OA A-36): D negligently places X in danger; P comes to the
                             rescue and is injured. Generally no problem finding liability to P.

                         (b) Type 2 (OA A-36): D negligently creates a dangerous situation. The danger
                             materializes in an unexpected way. D is generally liable.

                         (c) Type 3 (OA A-37): D negligently injures P and then a subsequent event occurs to
                             aggravate the original injury. Generally, D is liable for the aggravated injuries if the
                             aggravating accident was part of the normal process of rehabilitation.

                         (d) Type 4 (OA A-37): D negligently creates a disaster (fire, explosion) that threatens
                             many people and P is injured in an attempt to get away. Liability depends on what P
                             did in his effort to escape and the extent to which the effort was a reaction rather than
                             a voluntary choice.

                         (e) Type 5 (OA A-38): D creates a dangerous condition and X (a third party) injures P
                             by intentionally causing the danger to materialize. D‘s liability depends on the
                             circumstances and the kind of intentional intermeddling by the third party.

                         (f) Type 6 (OA A-38): D negligently facilitates the negligent or dangerous conduct of
                             another.

                              (1) Subtype a: facilitating criminal acts: intervening criminal act is usually no bar to
                                  D‘s liability

                              (2) Subtype b: key in the ignition cases: generally, D is not liable for common law
                                  negligence if he leaves his keys in his car, a thief steals it, and injures P in his
                                  getaway.

                              (3) Subtype c: negligently inducing dangerous intoxicated behavior: traditional rule
                                  (that a tavern-keeper is not liable for D‘s acts if he keeps on serving D if D is
                                  noticeably intoxicated) is being changed.

                              (4) Subtype d: negligent supervision of firearms: D has been held liable for failing
                                  to take precautions.

                              (5) Subtype e: negligently releasing a dangerous patient: liability is supported by
                                  case law.


                     Proximate cause is about limiting liability. Even though there is an argument that there is
                     a breach of duty-are we going to allow P to recover? It is not really abt causation or about
                     breach of duty. Proximate cause=key term is proximate not cause. Courts determine
                     where to cut off liability based on a policy concern-it‘s political. Courts will often not say
                     that is what they are doing, look for it. B/c they don‘t like to do it explicitly, as a lawyer

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                Page 43 of 120
Torts Outline                                                                                 NEGLIGENCE

                 you must present to the court what the policy limitations are so they can make that policy
                 judgment. SHOW THIS ON THE TEST. Ct not predictable on this-depends on policy.
                 There are two contexts in which proximate cause comes up:
                           1. ―weird outcomes‖ – you tap someone on the shin and ultimately they lose use
                                     of their limb forever. ―egg-shell thin skull rule‖- if you have a skull as
                                     thin as an eggshell should D be held liable for injury? You take the P as
                                     they are-so yes. (Wagon mound/Polemis).
                           2. ―weird P problem‖ – Palsgraf case. There is a conundrum associated with it.
                                     Ps that show up out of the blue.
                           3. we‘ve already seen 2 proximate cause cases- Brown v. Shyne (#1) and
                                     Martin v. Herzog (#2).
                 You can‘t just practice proximate cause any old way-have to follow a certain way. You
                 can ask the proximate cause Q at one of two places:
                                     Breach of duty OR Cause in Fact
                 The way you examine it is through the alternative characterizations of the facts.
                 (Ryan is a case where proximate cause is discussed in cause in fact.) (Wagon Mound is
                 breach of duty) DO NOT MIX THEM UP ON THE TEST
                 If you talk abt causation you are using ―remote‖ ―close‖ etc. Is the chain short and
                 straight enough? Breach of duty you are talking about whether there has ever been a
                 breach of duty to begin with-it‘s a balancing test. Foreseeability comes up in this – how
                 foreseeable is it given size of damages and cost of preventing them. Is the injury w/in the
                 scope of the breach?


          In re Arbitration b/w Polemis and Furness (explosion in gasoline hold on ship)
           Consequences that follow in unbroken sequence from the original negligent act are
           proximate. Damages weren‘t too remote. Whether the party whose negligence produced
           the damage could anticipate or foresee that the damage would result is
           immaterial/irrelevant. If the court characterizes the facts as a failure to take precaution
            when handling petrol=breach of duty, causal connection is direct enough. If breach of duty
            is dropping the board, breach of duty is not too remote since this is a weird outcome. (Ds
            actually failed to properly vent the gas tanks and that is why the tanker blew up-but case
            turns on the dropping of the board issue) What are the policy concerns? Who do you want
            to help here-owners or operators of the ship? Operators should be more careful-that is
            how the case turns out. Other option would be to have owners get more insurance, etc. but
            ct doesn‘t go with this theory. Ct says to operators of ships very strongly that if damage is
            directly traceable then it is proximate. Cause in fact case. Like Ryan.
NEVER USE THE WORD FORESEEABLE WHEN TALKING ABT PROX CAUSE (IRRELEVANT) –
CAN USE WHEN TALKING ABOUT BREACH OF DUTY
          Wagon Mound No 1 (Wharf and ships caught fire when molten metal ignited furnace oil
             on water‘s surface-wharf suing-D won)
             Reasonable man standard-only responsible for that harm that negligence caused, not
             consequential injuries which were unforeseeable. (example – bad food served by rest,
             another patron slips n falls in vomit..rest liable for bad food, not fall) When something is
             unforeseeable the probability is zero.
          Wagon Mound No 2 (this time ship owners are suing-D lost)
             Balancing test: must weigh risk against difficulty in preventing it. D ought to have
             known possible for oil to ignite on water. Court says it was reasonably foreseeable.


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Torts Outline                                                                                 NEGLIGENCE

                 Difference b/w No 1 and No 2: Ps employees knew there was oil and cotton on the water
                 and kept welding. P contributed. Barred from recovery. Basically there were more facts
                 in No 2. No 1 places emphasis on foreseeability when that is only one of the issues-gets
                 blown out of proportion. Foreseeability is not the issue. No 2 tells you the real issue-not
                 whether foreseeable it is whether it is reasonably foreseeable. (Precaution worth taking)
                 No 2 says you are liable if expected loss greater than expected costs. If breach of
                 duty=proximate cause. If no breach of duty=no proximate cause. Policy choice decides
                 which to choose.

PALSGRAF V. LONG ISLAND RR (P STANDING ON PLATFORM WHEN MAN JUMPS ON
DEPARTING TRAIN.
                 Ds guards try to help him, man‘s pkg drops and explodes. Turns out it was fireworks.
                 Impact of explosion causes scales at other end of platform to fall on P)-weird injury and
                 weird P. Ct says guard owed duty to the man, not P. Nothing in the situation would have
                 suggested to the most cautious mind that the parcel wrapped in newspaper would spread
                 wreckage though the station.
                 [H] Causation, whether proximate or remote, are unnecessary to determine b/c there was no
                 duty to P. The conundrum lies in whether there is a duty to P-woman standing 50ft away.
                 Court says assuming that D was negligent toward the man getting on train, D was not liable to
                 P. How much more does it cost to protect P? Nothing. If you don‘t push man, nothing
                 happens to either of them. Once D protects the man (don‘t push him), there is no addtl cost in
                 protecting P. If D has to protect man, has to protect P. How can‘t you be liable to protect her?
                 (she‘s the 2nd house)
                 --Cardozo sees it differently than the ―weird outcomes‖ cases-it‘s not about whether the
                  injury is w/in the scope of D‘s duty, it‘s about whether P is w/in the scope of D‘s duty-is
                  P intended to be protected by D meeting its obligation of due care? Have to think abt
                 each individual P separately. If D was liable to man and liable to P, there would be no
                 end in the line. Cost changes if you would have to take P into consideration with man.
                 THINK ABOUT EACH P SEPARATELY
                 Under Palsgraf theory-less Ps will collect, less cases in courts.
                 --Compare to Brown v. Shyne – breach is established by statute but Q is whether injury is
                  w/in scope of statute.



B.           INDIRECT CAUSATION (INTERVENING FORCES ARE PRESENT).
        Issue is whether the intervening force extends the result of the negligence of Δ #1 or whether
        the intervening force severs and interrupts the negligence of Δ #1.
        An intervening cause is one which comes into active operation in producing the result after the
        negligence of the Δ. ―Intervening‖ is used in a time sense; it refers to later events. When an
        intervening force cuts the causal chain between Δ's breach and Δ's injury, terminating Δ's liability, it is
        a superseding cause, and there is no proximate cause.
        1. Foreseeable Results With Foreseeable Intervening Forces.
             Proximate Cause will be found if the intervening cause is foreseeably within the scope of risk that
             made Δ's conduct negligent.
             Example: One who sets a fire may be required to foresee that an ordinary, usual and customary
             wind arising later will spread it beyond the Δ's own property, and therefore to take precautions to
             prevent that event.
             a.       Dependent Intervening. The intervening force arises because of Δs negligence and is
                 foreseeable, i.e., a normal response to the situation. Second act would not have occurred but
                 for the 1st act.

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Torts Outline                                                                                   NEGLIGENCE

              b.        Independent Intervening. The intervening force comes into play but is not in response to
                   the negligence of Δ #1.
                   KELLY V. GWINNELL – Δ caused a head-on collision after consuming drinks a π's home.
                  Court held π liable for damages cause by Δ's drunk driving. If negligent conduct creates a risk
                  of harm or danger to others and in fact is the proximate cause of such injury, the tortfeasor is
                  normally held liable.
         2. Foreseeable Results With Unforeseeable Intervening Forces. The conduct of Δ #1 threatens a
             result of a particular kind and an intervening force which could not have been anticipated produces
             the same result.
             Refers to the harm inflicted by the Δ's negligence, not the manner in which it is actually inflicted.
             Δ will not avoid liability if a foreseeable kind of harm comes about through unforeseeable means.
         3. Unforeseeable Results With Foreseeable Intervening Forces.
         4. Unforeseeable Results With Unforeseeable Intervening Forces.
         Criminal acts, intentional torts, acts of God are all supervening forces.

C.            PROXIMATE CAUSE IN THE LEGAL CONTEXT
I guess the theories apply to criminal law as well.
Tighter, shorter, more restrictive than the longer causal string that Tort law is willing to accommodate. Tort
policy is to compensate; criminal law policy is to punish and deter. So, criminal law is a little more restrictive
on the causation element.

1.       3 year and a day rule:
Not a SOL rule; but if you injure someone intentionally or negligently, if they die withing 3 years and a day of
the wounding, you are responsbile for causing the death. There is no SOL for murder 1. Anything beyond that
time frame attenuates and breaks the causal chain. It used to be a year and a day; but advances in life support
mustered the change.

2.       Kathleen Quinlan;
car accident, ended up in a coma on life support for years. It was not a criminal matter; it was a one car
accident. But the issue was who had the authority to cut off the life support. The difference between killing
and allowing to die.

3.       Nancy Cruzan
Supreme Court Case pre-stated durable power of attorney.

4.       Drag Strip Cases
Two individuals are side-by-side, breaking the law by speeding on County or State roads. Off the beaten path.
Commonwealth v. Root (Pennsylvania) opposes People v. Jacobs (Florida). If one person dies the other is
usually charged with grossly negligent behavior based on the foreseeability of that type of harm happening if
someone pulls a bonehead maneuver during the race. Root holds that involuntary manslaughter does not apply
to the surviver because the deceased pulled the super bonehead maneuver on his own.

COMMONWEALTH V ROOT. RACING ON HIGHWAY. ONE HAS HEAD-ON COLLISION, OTHER
GETS CHARGED W/ INVOL MANSL. MAJORITY POS.
ct holds that crim std is different than civil p/c std. Here, D‘s reckless conduct was not a suff direct cause of
competing driver‘s death to make him criminally liable.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 46 of 120
Torts Outline                                                                                 NEGLIGENCE


PARSONS V. THE STATE (ALABAMA 1852) (CAUSATION = SHOOTING; REMAND FOR JURY
INSTRUCTION)
If a wound inflicted is mortal or dangerous, the original author is liable for the ultimate consequences,
and cannot shelter himself under the plea of erroneous treatment. Think EGGSHELL SKULL.
Trial judge gave bad jury instruction: ―If the  relied on the particular treatment … it would not … excuse him
… if otherwise guilty. Character of wound and cause of death were issues of fact for jury. Reversed and
remanded for new trial due to confusing jury instruction.

PEOPLE V. MCGEE (CAL 1947) (GUT SHOT IN A CARD ROOM, 10 HOURS FOR DR.)
10 hour delay in treating gunshot wound not an intervening force and therefore by law cannont be a
supervening force. Tough crap; you shouldn’t have shot the guy. Next time dump him at a better
hospital.
McGee, , takes place of Linck at a card game in San Pedro. McGee then leaves club with Linck but both
quickly return in search of $40 which Linck believed he left on the card table. Linck accuses victim ―Hank‖ of
swiping his $40. As Linck opens door to leave, victim moves his hand and McGee, , shoots him in abdomen.
Typical card room violence. DD tries to plead that the doctors caused the death by waiting 10 hours before
operating on victim.

D.       AGENCY AND PROXIMATE CAUSE THEORIES OF FELONY MURDER
Pugsley: Agency theory of felony murder. Two people go to rob a bank. Robbery is one of the ennumerated
(predicate) felonies listed in CPC §189. They are malum in se crimes like mayhem, rape, robbery. If, in the
process of committing one of those crimes, one of the felons causes the death physically (shooting, stabbing,
etc.) of any other person, accomplice, bystander, whatever, during the commission of or atttempt to commit one
of the predicate felonies, that felon and all accomplices are guilty under felony murder rule without the need to
show any mens rea or negligence in causing the death. All that is needed is to prove the underlying predicate
felony; usually specific intent crimes like larceny.
So, why do we discuss this in causation? Because this is a pruned down version of the prior rule of proximate
cause theory of felony murder liability. Any person engaged in any felony that resulted in any person‘s death,
would be liable for Murder 1 under the felony murder rule. England invented felony murder but they no longer
use it.

E.       SHIELD EXCEPTION
Felon uses innocent bystander as a human shield. If the shield person is killed, then this is the only exception
where the felon is liable for M1 under felony murder theory.

PEOPLE V. WASHINGTON (CAL. 1965) (DECLARES PROXIMATE CAUSE THEORY BULLSHIT)
Calfornia Rule: Felony Murder Only Counts For Deaths of Unrelated 3 rd Parties.
Johnnie Carpenter prepared to close up his gas station when James Ball pointed a gun at him. Carpenter was
legally armed and wasted the cockroach. Accomplice and Defendant Washington, understandably, hauled ass,
was arrested, tried, and convicted of robbery and felony murder. Issue: can a robber be convicted of felony
murder of any person by another who is resisting the robbery? Somehow Justice Traynor convinces himself
that holding  strictly liable for deaths not committed by the  or an accomplice is morally wrong and would
lead to absurd results. Read the Burke dissent; it makes a whole lot more sense.

TAYLOR V. SUPERIOR COURT (ALTERNATIVE THEORY OF PROSECUTION AGAINST
SURVIVING FELONS WHO DID NOT CAUSE THE DEATH OF THE VICTIM).
Provocative act 2nd degree reckless murder.




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Torts Outline                                                                                  NEGLIGENCE


VI.     Damages.
If π can‘t prove that damages were proximately caused by Δ‘s actions there can be no negligence
cause of action.

  A.         BASIC TYPE OF DAMAGES
        1. Nominal - (I was right, you were wrong)
              Small sum of money awarded to the π in order to vindicate rights, make the judgment as a matter
              of record in order to prevent the Δ from acquiring prescriptive rights, and carry a part of the costs
              of the action.
        2. Compensatory - (Designed to make individual whole)
              a.   General - Pain and Suffering
              b.   Special - Mathematical (lost wages, medical, etc.)
        3. Punitive or Exemplary - Difficult to prove; generally not used in negligence. They can
           occur in intentional torts.

B.   COLLATERAL SOURCE RULE - (DON'T MENTION INSURANCE; POSSIBILITY
OF DOUBLE RECOVERY)
        This rule is applied when the π receives compensation from any source collateral to the
        tortfeasor.

C.      DUTY TO MITIGATE –
        you can bring into evidence, within reason (use reasonable person standards) The so-called
        duty to mitigate damages in tort law, sometimes called the doctrine of avoidable
        consequences, actually is merely a rule which does not allow recovery of those damages
        which π could have avoided by reasonable conduct on the part of the π after a legal wrong has
        been committed by Δ.

D.      NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
        1.    Mental or emotional distress without accompanying physical injury. (No recovery except in CA)
        2.    Physical harm is accompanied by mental distress or mental distress manifests itself with physical
              consequences. (Recovery possible)
        3.    Mental distress caused by witnessing peril or harm to another. (MAJORITY: Recovery if in zone
              of danger. MINORITY and California: (a) physical proximity, (b) temporal proximity, (c)
              relational proximity, (d) must sustain serious emotional distress.)
        THING V. LA CHUSA. A π may recover damages for emotional distress caused by observing
        the negligently inflicted injury of a third person if π:
        (1) is closely related to the injury victim;
        (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is
            causing injury to the victim; and
        (3) as a result, suffers serious emotional distress – a reaction beyond that which would be anticipated
            in a disinterested witness and which is not an abnormal response to the circumstances.
        Pugsley hypo: what if she sees the kid walk around the corner, then hears the tire squeal and his
            scream? Is she ―then aware‖ under La Chusa?

E.      UNBORN CHILDREN
                       8. Injuries To Unborn Children



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Torts Outline                                                                                  NEGLIGENCE

             Prior to 1946, there was no duty to an unborn child. Since then, the child can bring an action for
             prenatal injuries. Easy if the child is born, but not if dead. No viability, no cause of action.
             MAJORITY - Cause of action if child was viable at time of injury
             MINORITY - No cause of action

SINKLER V. KNEALE, (PA 1960) [L] (CHILD BORN W/ DEFECTS HAS RIGHT TO SUE
NEGLIGENT DRIVER FOR CAUSING BIRTH DEFECTS)
Action on behalf of child, who allegedly was born Mongoloid as result of injuries received in automobile
collision when child was a foetus of age of one month. The Common Pleas Court, Chester County, at No. 49,
March Term, 1959, Thomas C. Gawthrop, P. J., entered order sustaining preliminary objections to complaint,
and child appealed. The Supreme Court, No. 124, January Term, 1960, Bok, J., held that child had a right of
action against defendant, whose automobile allegedly negligently struck automobile driven by infant's mother.
Transferred intent – you shoot and hit the wrong person; or you didn‘t mean to hit anyone. Put a definition of
transferred intent here – Pugsley thinks it‘s important. Fetus is not in a protected status for manslaughter; but it
is for murder. See Keeler case from last course. The theory used to be that the fetus had no legal rights because
it was one with the mother, not a separate soul (church) or person (early common law). The dissent in this case
noted that the real issue is causation; if medical science can affirm that the negligent act was the proximate
cause of the injury to the fetus, then an action lies in negligence. Check Regina v Dudley and the Holmes notes
from last semester. Pugsley says compare this to Roe v. Wade b/c feminists think that allowing death of a fetus
to be charged as murder may weaken the right of women to have abortions. But Pugsley thinks they are wrong.
But I have no idea why.

                       9. Wrongful Birth (Parents Attempt To Recover)
             Procanik by Procanik. Cause of action of parents who claim that the negligent advice or treatment
             deprived them of the choice of avoiding conception or of terminating the pregnancy.
             If there is a healthy baby born, and parents don't want it, there is no cause of action except for:
             loss of wages; consortium; pain & suffering (labor and delivery).
             If there is an unhealthy baby,
             MAJORITY - Economic damages only
             MINORITY - Economic and general damages
                       10. Wrongful Life (Child Attempts Cause Of Action)
             Procanik by Procanik. Action brought by or on behalf of a defective child who claims that but for
             the Δ doctor's negligent advice or treatment of its parents, the child would not have been born.
             ie: in pain every day of his life. (Suing mom & dad for not choosing abortion [no longer allowed])
             MAJORITY - No cause of action
             MINORITY - Procanik type; specials only, no generals

F.       WRONGFUL DEATH AND SURVIVAL ACTIONS - ONLY ARISE WHEN THE
         TORT KILLS THE Π.
         1. Survival Statutes - Tort Kills, But Decedent Lives For A While.
             Decedent has a survival cause of action (pain and suffering [some jurisdictions, but not CA]). It's a
             cause of action by decedent, which passes to his heirs. If decedent survives for only a short time,
             pain & suffering cause of action dies with him.
                       11. Wrongful Death Statutes –
             It's a new cause of action that the spouse, children and descendents heirs have. If the tort does not
             kill the π, there is no cause of action. Can bring cause of action for companionship, support, etc.
             Parents can bring the cause of action if there is no spouse or no children.




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Torts Outline                                                                                NEGLIGENCE


VII. Defenses (Not For Intentional Torts, Strictly For Negligence)
  A.         CONTRIBUTORY NEGLIGENCE –
        Conduct on the part of the π which falls below the standard to which he is required to
        conform for his own protection and which contributes as a legal cause to the harm he has
        suffered. Arises when the π fails to exercise due care. Produces an all-or-nothing result.
                 Should be distinguished from the rule on avoidable consequences or mitigation of damages.
              The avoidable consequences rule becomes material after π has been injured.
                 Total bar to recovery in some jurisdictions (4), and at common law.
                 California did away with this defense in 1972.
        Example: A worker unreasonably violated safety instructions and went to an unguarded end of a
        slippery platform. π was injured when a negligently maintained brick wall collapsed on him. π's claim
        was not barred by contributory negligence because his negligence in risking the slipperiness of the
        platform had nothing to do with the injuries caused by the falling brick.
        1.         Last Clear Chance Doctrine –
              If the π is negligent and the Δ discovered that negligence (the peril π was in), Δ had the
              last clear chance to prevent the injury
              The last clear chance doctrine can be invoked only where the Δ knows of the π's perilous situation,
              and realizes or has reason to realize, the π's helpless condition. Acts as a trump against a
              contributory negligence defense.
                       12. Discoverable Peril –
              Where the π's prior negligence has placed him in a position from which he is powerless to
              extricate himself by the exercise of any ordinary care, and the Δ discovers his danger
              while there is still time to avoid it and then fails to do so.

BUTTERFIELD V. FORRESTER, (KB 1809) [NL](ROD ACROSS ROAD WAS VISIBLE)
Traditionally, one whose negligence contributes proximately to his injures is completely barred from
recovery (RstII§463).
FACTS: defendant laid a rod across a public road while doing construction o his house. Plaintiff was riding
horseback rapidly down the road and his horse tripped over the rod and fell and was injured. The rod was
visible from far away.
HOLDING: finding for defendant, plaintiff was riding violently and if he had been riding normally, he would
have seen the rod and had plenty of time to stop. The accident was his own fault.
CLASS: This came at a time when Courts were looking for ways to ameliorate the ―all-or-nothing‖ harshness
of the common law contributory negligence doctrine which bars any recovery at all for π‘s found to be
contributorily negligent in any degree.
Duty: The guy who left the pole in the street was somewhat negligent. Did he have a duty? Maybe a duty of
ordinary care.
Breach: So, was leaving the pole across the road at night an act of negligence. But,  argues that π was
negligent in speeding around at night.
Cause: There was an old case that the court cited that said you could recover for damages in leaving a pole
across the road. But, the Court said no and invented the doctrine of contributory negligence. Actually, I‘m not
sure if this is the first case, but that was mentioned in class as a possibility.

SMITHWICK V HALL & UPSON CO (CT 1890), [L](ICE HOUSE COLLAPSED)
P’s negligence must contribute to cause of accident; simply being negligent isn’t enough.




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Torts Outline                                                                               NEGLIGENCE

 told not to work on east side of a platform along icehouse.  feared  would slip and fall. While  was
working on east side of platform, the icehouse collapsed and  was injured. Kind of like Goldstein v. Levy
where the chandelier fell down or the St. Francis Hotel case where the chair came flying out the window. 
tried to argue contributory negligence b/c  was working where he shouldn‘t have been, but Ct said that ‘s
conduct was not related to the injury he actually sustained b/c the harm came from a different cause. How does
the  argue against the π argument that he was hurt by a risk that the π was injured by an unforseen cause? The
 argued that the injury was caused by the slip, and even though the bricks fell down, that was not enough force
to cause the injuries that he sustained. Every risk, Cardozo says, is a specifically focused risk. So, since the
manner of injury of the π was not forseen by the  (the Court finds that it was the collapse that hurt him). The
worker‘s failure to heed the warning did not constitute contributory negligence
Harriet says: try to prove that the failure to follow the warning is used to rebut the causation.  must show as
                                                         Contributory Negligence
part of the factual cause analysis that had a warning been given, it would have been heeded. Otherwise you
can‘t prove factual or proximate causation. Some Courts presume that had a warning been given, it would have
been followed.


Duty
Breach
Causation
Harm
So, the  says that the π breached his duty of care to himself by going into the dangerous area. There would be
a duty, as we saw in Tarasoff for an employee to sue his employer if the building fell down. That would be
different from Mrs. Levy suing the exhibitor of the film where she was injured? Not really. The theatre
operator was found at fault in that case, despite his best efforts to inspect on a regular and recent basis.
Pugsley – is this fair? Is this a legitimate extension of the doctrine? Maybe, otherwise we‘d have all kinds of
cases where the  claims that the π was just in the wrong place at the wrong time. Marcia Clark was in the right
place at the right time because even though the jury selection testing said she was a bad choice to prosecute the
OJ Simpson case, she got it then got $4.2mm for a crappy book that no one read.

SUMMERS V. DOMINGUEZ, (CAL. APP. 1938) [L](HIT & RUN OF PEDESTRIAN)
Walking on shoulder of highway is not contributory negligence if not specifically proscribed by statute.
/Appellant hit boy walking on shoulder of highway and left him for dead in a ditch. Boy was rescued, sued,
won judgment at trial. Appellate Court affirmed.  theory that vehicle code said boy should have been walking
on left side of highway did not automatically mean that he was contributorily negligent, especially since he was
well off the highway and the truck driver was not using his lane but rather driving way off on the shoulder of
the road. You have to drive safely, even if the idiot is in a place where he does not belong.
Pugsley – positivist law; statutes as the source of duty in Negligence. Negligence per se statutory in nature,
including city ordnances, administrative law
Duty
Breach
Causation
Harm
Which of those were obviated by the doctrine of res ips loquitor? Breach and Cause. But per se negligence
does away with the need to prove duty and breach.
P. 179 Hypotheticals
1. If a kid runs out in front of a car, he breaches his duty to stay out of the road. The  can prove that by a
mere preponderance. Being π does not give you any advantage in terms of burden of proof.
Negligence per se: you could argue about causation – even if I was doing the statutory speed limit I would not
have been able to stop. My negligence was not the cause of his injury. So, even though per se establishes duty
and breach, you could show that it does not show causation.




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Torts Outline                                                                                    NEGLIGENCE

RULES OF PER SE NEGLIGENCE: You have to be among the designated class designated as protected by
that specific ordinance. Also, the nature of the harm which grows out of the breach must be the one that the
statute was made to prevent. See ―Violation of Statute‖, supra.

DAVIES V MANN (EX 1842) [L] (LAST CLEAR CHANCE) (DRIVER HITS DONKEY)
The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his
opponent, is considered solely responsible for it.

Plaintiff had tied his donkey‘s legs together so it couldn‘t run and turned it lose in a public highway to graze.
Defendant came over an incline driving too fast to stop in time and hit and killed the donkey. Trial ct. instructed
the jury that although letting the donkey loose like this might have been illegal, the plaintiff could still recover if
the defendant‘s negligence was the proximate cause of its death. Jury found for plaintiff and defendant appeals.

Held for the plaintiff that defendant did not deny ass was there illegally, so they must assume it was. But even if
it had been, it would make no difference b/c if the defendant could have, by using proper care, avoided doing
the harm, he is liable for the consequences—even if it the animal was there improperly. Otherwise, people could
run over with impunity bums improperly sleeping on the street.

The donkey was tied up, but the rope was too long and it got into the road. The  claimed contributory
negligence. So, if you drive a little too fast or a little carelessly, it’s all your fault. Is this the same as
Butterfield? No, this is the last clear chance doctrine. Just like hitting another car in the rear. The last clear
chance doctrine is an exception to contributory negligence. There’s also a connection to direct consequences
proximate cause in that the original wrongdoer was the plaintiff here and the defendant did the donkey in,
nevertheless he is liable.


INDEPENDENT LUMBER CO. V. LEATHERWOOD (CO 1938), [NL](DRIVERS COLLIDE)
If a  does all he can to avoid an accident that the π negligently caused, last clear chance doesn’t apply.
tried to hang a quick left in front of an oncoming truck and was hit. Truck tried to stop, skidded 36‖ before
hitting car and stopped within 18‖. Court found this sufficient proof that truck driver did all he could to avoid
the accident. City ordinance gave right of way to truck driver because he was on the π‘s right. (That‘s why it‘s
called ‗right‘ of way.) So, Pugsley wants to know if the contributory negligence of the π caused him to be
nonsuited. Π, saw, comprehended, and had time to act. She was negligent per se because she violated the
statute. Thereby she was contributorily negligent and so that + last clear chance prevented her recovery.

p. 189 – topic review
Davies Mann – Last Clear Chance but π could still recover because  had lcc.
Leatherwood – 2 drivers collide because woman didn‘t stop and take advantage of the lcc; also the presence of
an ordinance giving right-of-way to  created per se negligence on her part.
The cases would NOT have come out different under Li v. Yellow Cab because these earlier cases which
ameliorated the harshness of the contributory negligence doctrine were simply recognized and affirmed in Li v.
Yellow Cab.

B.            COMPARATIVE NEGLIGENCE (FAULT) –
         In a comparative fault jurisdiction, the contributory negligence of the π will not bar recovery;
         but the negligence of the π will be taken into account in assessing damages.
         1.       Pure - π's damages are reduced in proportion to the percentage of negligence
             attributed to him. (A π 90% responsible may recover 10% of his damages.)
                   About a dozen jurisdictions still follow this rule. (California's rule)
                       13. Modified -π recovers as in pure form, but only if π's negligence either:
                   (a) Does Not Exceed 50%; Or

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Torts Outline                                                                                    NEGLIGENCE

                       About a dozen jurisdictions follow this rule.
                   (b) Is less than 49%.
                       About 20 jurisdictions follow this rule.
                   (c) Slight v. Gross: -π's contributory negligence is a bar to recovery unless his
                       negligence is slight and the Δ's negligence is gross.
                       South Dakota follows this rule.

LI V. YELLOW CAB (CAL 1975), [L](CROSSING LANES)
D is speeding while P is illegally changing lanes. Established comparative negligence in CA..
FACTS: π attempted to cross three lanes of oncoming traffic in order to enter a service station. ‘s driver was
traveling at an excessive speed when he ran a yellow light just before he struck the π‘s car. Was π barred from
recovery b/c of contributory negligence?
MP:        Problem w/ all or nothing quality of contributory negligence. How about comparative negligence?
Problems with comparative negligence: (1) cases involving multiple parties are difficult to figure out, (2)
administrative costs are high for fact finding process, (3) what happens to last clear chance and assumption of
risk?, (4) should this even be considered in cases where one party is guilty of willful and wanton misconduct.
•          Types of comparative negligence: (1) liability in direct proportion to fault OR (2) π can‘t recover if
liability is greater or equal to that of .
•          This court opts for pure comparative negligence because other option is just another form of
contributory negligence.
Under contributory negligence, Li loses. But, the Court introduces comparative negligence in order to dispense
with all the little doctrines like last clear chance. P. 194 ―in direct proportion to their respective fault‖ goes
directly to Causation.
So, then the Court gets into the whole issue of why the law hasn‘t change because it‘s the job of the legislature.
The high-minded federalist society rationale of deferring to the legislature is that the language of the statute
itself says except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.
P. 197. Liability is Pro Tanto meaning that it is limited to the amount of harm you caused.
Pugsley says to check the case where the guy deliberately punched the pregnant woman in order to terminate
her pregnancy. But a fetus wasn‘t a person in the statute. Also, check Connor v. Great Western Savings; also
in 1978 the Court took McNaughton and said it was from common law; so despite the fact that we have
signalled the legislature that the law should change, since it‘s a common law judicially created statute so we are
allowed to change it. Also, another case that said in Morrissette that you can‘t take a crime like larceny with
200 years of history and wipe out the mens rea requirement just because you put it in a statute. On p. 196, the
Civil Code is referred to as being ―imbued with admirable flexibility.‖ ―The Least Dangerous Branch‖ book to
look at.
The Court on 203 says willful risk is different from unintentional risk; cannot take intentional acts or crimes
into account for fault apportionment in California; it varies by state. The Court is also quite aware on p. 204, n
14, that it is making a major change in the law and that it is just the first step; statutes and cases will refine the
new law over the course of time. On 206 the Court says the law is effective for future cases because retroactive
application would make it unfair because there would not be sufficient notice to ‘s.

AMERICAN MOTORCYCLE HAS ONE Π AND MULTIPLE ’S; JOINT & SEVERAL
TORTFEASORS.
4/26/2004
Concurrent substantial factor multiple  analysis
Under the traditional rule of joint & several liability, assuming no contributory negligence, the  could collect
against any and all of the ‘s. He could implead them into the case for a single resolution of the matter persuant
to judicial economy.
So, you could have something like this:
         /50%            /40%              /10%
          insolvent         modest income Trust Fund Baby

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 53 of 120
Torts Outline                                                                                   NEGLIGENCE

Under our Li v. Yellow Cab logic, each  would be liable based on his % of contribution to the harm. But, in
reality, the first  who is most negligent is insolvent. So, the Court must decide whether to use the Li. Logic, in
which case the  won‘t recover the full amount; or use joint and several liability and make the least negligent 
pay the full amount since he‘s the only one who can afford it.
Joint & Several to benefit  or Proportional Liability per Li v. Yellow Cab logic.

Methods the Court Considered:
1. Statutory Equitable Indemnification: all or nothing old method; asks who was the more negligent. Who was
active and who was passive? The active tortfeasor gets hit hardest; similar to the old contributory negligence
scheme.

2. Contribution Pro Rata: another old method; add up damages and divide by # of defendants; each pays a pro-
rata share of the damages. It works, but ignores the actual allocation of fault in causing the harm.

3. Comparative Equitable Indemnification: Judicially created in this case. Allow the jury to allocate the % fault
to each  and then let the ‘s fight it out for the money to pay the damages.

Pugsley: What if one of the ‘s wants to settle? The insolvent 50%  would clearly want out. Why would the
 let him out? Because through public record searches and private investigators would have ascertained that he
has no money. So, maybe he gets knocked down to 20% of the total damages and the 30% gets added to the
remaining ‘s.

Dole v. Dow Chemical 30 NY2d 143 set this whole process up. See p. 162. The new rule will supersede all
previous schemes for indemnification.


Red Alert: This is case #2 of the ones that will be heavily tested on the final exam. Li & American Motorcycle
so far.


Pugsley: the retention of J&S allows  to go after a 1% negligent  for 100% of the damages but the equitable
indemnification allows  to go after other ‘s to recover. Also, prop. 51 in California says that a  cannot be
held liable for non-economic damages above his fault %.

Note that there was no product liability action in this particular action; it was pure negligence.

This is all about comparative negligence. Bringing the parents into the case as ‘s is because they should have
been more careful. So, this goes back to Pugsley saying that whoever is the  in a tort case doesn‘t get the
presumption of rightousness; the  can wind up on the losing end and the title  only means he filed first.

Cumis counsel; if insurance company refuses to settle within the limits of the policy and then you could have
received much more, they must allow you to hire independent counsel to sue them for the difference.

Rules
First apply Li – comparative fault based on negligence w/ single 
Then apply joint & several liability – comparative fault based on negligence w/ multiple ‘s; comparative
equitable indemnification among the ‘s




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 54 of 120
Torts Outline                                                                                 NEGLIGENCE


Lecture Notes from Today 4/26/04
Comparative fault system (Li) seeks to impose liabiity on tortfeasors in proportion to the % of causal fault
assigned by fact finder to each
Joint and several liability rule may require a  to pay more than his/her proportional share of the ‘s damages.
The comparative equitable indemnity principle permits such a  to obtain judgments against other concurrently
responsible person. Substantial factor; proximate concurring causes. Minnesota minneapolis railway case.

Joint and several liability rule is reatained.
Statutory equitable indemnity rule is modified to incorporate the comparative fault principles of Li and to
discard the ―all or nothing‖ rationale.
Comparative equitable indemnity is the name we should use.
Cross-complaintes (impleader) to bring in all the relevant parties. Don‘t confuse w/ interpleader.
Limiting a settling ‘s recovery from a non-settling ‘s recovery and later jury allocates fault. Prop 51 limited
the ability of the settling  to a % of the injured party‘s economic (medical/loss of wages) damages.

Wilfull, wanton misconduct can nevertheless obtain comparative indemnity from a  whose liability is based on
simple negligence. Southern Pacific Transport vs State 115 Cal3d 116

Intentionality is a matter of




AMERICAN MOTORCYCLE ASSOCIATION V. SUPERIOR COURT (1978) (MOTORCYCLE
ACCIDENT; S ORGANIZED/RAN RACE; WANT TO JOIN PARENTS TO SUIT; USUALLY PRO
RATA CONTRIBUTION BY STATUTE (= CONTRIBUTION FOR S); BUT COURT ALLOWS OUT
UNDER "PARTIAL EQUITABLE INDEMNITY"
 allowed to join other s; doctrine of "partial equitable indemnity" – lengthy explanation.
Retains joint and several liability for s, in spite of proportionate reduction for contributorily negligent  (s
still considered 100% guilty; desire to protect )
       's contributory negligence not weighted as heavily as 's negligence ( only harmed self,  harmed
          others (but arguably  harmed others by opening self to injury)) BUT
Permits A to obtain partial indemnity from B, C etc. on a comparative fault basis
       enabling an out to the pro rata contribution, when large difference in level of fault
       payment of Ds based on relative fault under partial equitable indemnity
       no longer all-or-nothing equitable indemnity
       uses §875(f) as loophole – preserves right to indemnity BUT
Partial indemnity not allowed against settling 
       award against other s reduced by amount of settlement, not by proportion that settling  would have
          had to pay
Dissent:
 joint and several liability allows 60/30/10 split to force 10 to pay more if 10 is rich 
 10 may have to pay everything minus tiny settlement – no suit on partial indemnity against settling s.
 (minor) hurt in motorcycle race; 2 s organized/ran race (allegedly negligent); one  wants to joint parents of
 to suit for negligence (improper supervision); possible reduction in D from parents; but parents can settle, or
through partial equitable indemnity obtain reduction in pro rata.



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 55 of 120
Torts Outline                                                                                 NEGLIGENCE


C.       THIRD RESTATEMENT – RTT:AL (P. 403) – JOINT AND SEVERAL VS.
         SEVERAL, + VARIATIONS
    16 states have pure joint and several liability (212-213)
    14 states have several liability only (226-227)
    7 states allow for reallocation of losses from insolvent to solvent s (251–252)
    9 states have complex regimes that typically allow for only several liability of noneconomic damages and
     joint and several liability of economic damages (350–351)

Different approaches to Joint and Several Liability (p. 406) (from unread case)

No contribution; contribution; contribution plus settlement bar; claim reduction.
Excerpt from unread case, Matter of Oil Spill by the Amoco Cadiz (1992)
No contribution: All s are J&S liable for full Ds.  may decide to collect any part of an award from any of
the s. No one may obtain contribution from another person.
Contribution: All s are J&S liable for the full Ds.  may decide to collect any part of the award from any of
the s. A party called on to pay more of the award than its share of fault implies may obtain contribution from
a party called on to pay less than its share.
Contribution plus settlement bar: The same as the contribution rule, except that one party may obtain
contribution only from another that proceeds to judgment. By settling, a party escapes any liability for
contribution. (Variant: By settling in good faith, that is, for a bona fide estimate of liability at trial, a party
escapes any liability for contribution.)
Claim reduction: s are jointly and severally liable, unless one or more settles. By accepting a settlement
from any party, the  forgoes the ability to collect from the remaining s any Ds attributable to the settling
party's share of fault. The remaining s are not entitled to contribution from the settling party — because after
claim reduction there is no "excesses" payment for which contribution would be appropriate. This is sometimes
called the "comparative fault" rule.



Daily v. General Motors= π (contributory negligence) vs. GM (strict liability)
Safeway Nestart= π suing multiple ‘s on different theories; the shopping cart manufacturer on SL; The
Safeway on SL and also on Negligence


RED ALERT!! THESE 4 CASES ARE THE MOST IMPORTANT.

BLAZOVIC V ANDRICH [L] (NJ 1991)
Opposite of Munoz; willful and wanton similar enough to intentional to allow a jury to decide on comparative
negligence. P. 215 top right is the legal question.

D.           ASSUMPTION OF THE RISK –
         If the π expressly or impliedly consents to relieve the Δ of an obligation of conduct toward
         the π and to take his chances of harm from a particular risk, he is held to have assumed that
         risk and he is barred from recovering. In a contributory negligence jurisdiction, it is a
         complete defense to a negligence claim that the π assumed the risk of the injury.
         1. Express – π, in advance, has given his express consent to relieve the Δ of an
              obligation of conduct toward him, and to take his chance of injury from a known
              risk arising from what the Δ is to do or leave undone.
             Requires the following:
             A. Open And Free Bargaining;

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              Torts Outline                                                                                           NEGLIGENCE

                             B. Public Interest Is Not Involved;
                             C. Does Not Cover Willful And Wanton Or Reckless Conduct
                             D. Terms Must Be Know To The Π Or Reasonable Person In Π's Position.
                             There are two basic issues involved when Δ asserts that π expressly assumed a risk: (1) whether
                             the risk that injured π fell within the terms of the agreement and (2) whether the contract itself
―The timorous may            violates public policy and therefore should not be enforced.
  stay at home.                   14. Implied – π voluntarily enters into some relation with the Δ, with
    – Cardozo                         knowledge that the Δ will may stay at home. not protect him against one
                                      or more future risks that may arise from the relation.
              Reasonable Implied Assumption of Risk
              Think professional athlete. This leads to non-suit.
              Unreasonable Implied Assumption of Risk
              Willful assumption of risk that makes no sense; dumb-ass maneuver.
              If you take this and add in last clear chance, you get comparative negligence. See p.203
                             Requires the following:
                             1. There must be a risk of harm to π caused by Δ's conduct or by the condition of the D's land or
                                chattel;
                             2. π must have actual knowledge of the particular risk and appreciate its magnitude;
                             3. π must voluntarily choose to enter or remain within the area of the risk under circumstances
                                that manifests his willingness to accept that particular risk.

              Exam Note:
              An exam fact pattern might involve a clear warning of a danger to π, who nevertheless proceeds. For example, suppose
              that the Charon Construction Company is putting up a new building. Charon has roped off the site and put up large signs
              state: "Danger! Construction area. Falling objects. Do Not Enter Without Hardhat!" Rafael, late for a lunch date, tries to save
              a few minutes by cutting across the construction site. He reads the sign, decides that he can keep clear of the construction
              workers, and ducks under the rope. As he is crossing the site, a worker accidentally drops a piece of lumber, which bounces
              off the side of the building and clips Rafael on the head. The correct answer will recognize that in proceeding across the site
              after reading the sign, Rafael assumed the risk of falling objects.

              HUNN V. WINDSOR HOTELS (WEST. VIRG. 1937) [NL] (WOMAN TRIPS OVER FORMS ON
              STAIRS)
              Π’s who are aware of a danger and ignore that danger will be found contributorily negligent;
              contributory negligence or voluntary assumption of risk may bar recovery for an action in torts.
               saw that the stairs were being worked on and thought they looked dangerous. The next day, instead of using a
              different exit, she used that stairway, slipped, and fell. She sued and lost on a directed verdict. Contributory
              neglignece is carelessness toward yourself; assumption of risk is where you are aware of a danger and jump on
              it.

              FORD V. GOUIN (1992) [NL] (BAREFOOT WATER SKIER)
              In inherently risky sports, when  does something, reckless outside of the context of the risky sport, that
              causes injury to  no cause of action, so long as no intent. AOR is complete defense in California where
              π voluntarily participated in sporting or recreational activity.
               barefoot water skier injured by  boat maneuver; risky sport, fully consented to – no cause of action. Worried
              about potential chilling effect on risky sports.
              Plaintiff was water skiing and defendant friend was driving the boat when plaintiff hit his head on a tree limb
              that was sticking out from the embankment. Plaintiff sues saying that defendant had been driving negligently by
              being too close to the edge and thus caused the accident. Defendant moves for summary judgment saying that
              even if he had been negligent, plaintiff is barred by assumption of the risk. Trial ct. grants motion, appeals ct.
              affirms, plaintiff appeals.

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Torts Outline                                                                                  NEGLIGENCE


Held for the defendant that the affirmative defense of assumption of the risk isn‘t just available to a co-
participant in a competitive sport, but also to co-participants in a cooperative sport like here. To hold otherwise
would be to change the nature of the sport.

This case comes 15 years after Li v. Yellow Cab introduced the concept of comparative negligence. So, can the
skier‘s conduct be deemed reasonable assumption of risk, thereby reducing or eliminating the boat driver‘s
liability. Remember, express = written; implied is through conduct. He was supposed to be an expert, it was a
sport, he chose to participate and to ―hot dog.‖
Fellow servant; last clear chance; assumption risk.
The big issue is to figure what goes into reasonable implied assumption of risk (RIAR). We know that
unreasonable implied assumption of risk (URAR)  contributory negligence  comparative negligence.
The COA were divided on what, if any vitality remained in the old bases of contributory and joint & several
liability. Look at p. 226; Florida adopted a comparative negligence standard as well so California looked at
Florida for some guidance.
The Kuehner case from FL deals with RIAR; in Florida they began inferring express consent from conduct. So,
unlike CA, an express waiver of risk could be construed from conduct alone, absent writing. Ordway involved
a jockey who took a tumble when he was fouled during a race.
Look at Court retaining a residual authority to overrule a summary judgment when it believes that the π, while
superficially aware of the risk, may not have really understood the risk. Are we going to let the jury try to
figure out what the π was thinking when he agreed to do the stupid act.
Turcotte was the jockey of Secretariat. They won the triple crown in 1973 and Pugsley was there at Belmont.

4/15/2004 – It‘s all about the Court of Appeal trying to figure out if there is any remnant of fault that would
allow a π who had assumed risk to still sue. It‘s a bit like Cobbs v. Grant, where she signed a release for
surgery, but they performed the wrong surgery.
Daley v. GM  comparing theories of negligence; see Mosk dissent positing that the majority is sounding the
death knell of strict liabiltiy.
Note 3 on p 229 says amateur athletes probably don‘t assume as much risk as pros do. Written waivers are
usually required by insurance companies.
Reasona ble implied assumption of risk takes place when π assumes a reasonable risk and π consent is implied
from his or her conduct. This is the approach taken by the lead opinion, my collegue essentially saying that,
just as a contract may be expressed or implied by conduct, so also may the complete defense of assumption of
risk.
Dissent: in the original scheme, if his assumption of risk was unreasonable, then he would still have a shot at a
lawsuit; If Justice Kline had her way, the whole RIAR doctrine would go away and π would have more ready
access to the Courts.

E.            STATUTES OF LIMITATIONS
      In California, for a personal injury, you have one year. Time starts when π knew or should
       have known of the negligence. It's a complete bar to recovery if you don't meet time limits.

F.            IMMUNITIES
         An immunity differs from a privilege, although it is largely one of degree. A privilege avoids
         liability for tortious conduct only under particular circumstances; an immunity avoids liability
         under ALL circumstances, within the limits of the immunity itself.
         1.   Family
         2.   Charities - historically, were given immunity, however, now, charity is big business and most
              carry insurance.




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Torts Outline                                                                                   NEGLIGENCE

        3.    State and local government - can sue state and local government. In 1963, CA did away with
              sovereign immunity, but there are restrictions. CA process is like the federal, below, except in CA
              there IS a trial by jury.
        4.    Federal government - Before 1946, could not sue federal government. Federal Tort Claims Act,
              allows suit (1. present claim to appropriate agency; 2. file a claim in US district court; 3. suit will
              be tried by a judge without a jury; 4. π's attorney's contingent fee is subject to express regulation.
        5.    Public officers - have absolute immunity, even when acting in bad faith. (judges, prosecutors,
              executives, etc.)

VIII. Imputed Negligence.
        By reason of some relationship between A & B the negligence of A is charged to B.

  A.         VICARIOUS LIABILITY
        1. Respondeat Superior
        Under the doctrine of respondeat superior, the master will be held liable for the tortious acts
        of the servant.
                    15. Joint Enterprise
             Needs the following elements:
              A.   An Agreement, Express Or Implied, Among The Members Of The Group;
              B.   A Common Purpose To Be Carried Out By The Group;
              C.   A Community Of Pecuniary Interest In That Purpose, Among The Members; And
              D.   An Equal Right To A Voice In The Direction Of The Enterprise, Which Gives An Equal
                   Right Of Control.
                      16. Independent Contractors
              Not generally liable for the tortious action of the independent contractor, with the
              following exceptions:
              A.   Negligence In The Selection Of The Contractor;
              B.   Nondelegable Duties;
              C.   Inherently Or Intrinsically Dangerous Activities;
              D.   Collateral Negligence
              E.   Illegal Activities



B.            IMPUTED CONTRIBUTORY NEGLIGENCE

IX.     Joint Tortfeasors.
        Multiple Δs should share financial responsibility for the harm which has been inflicted on π.
        Joint and several liability means that each of several tortfeasors is liable jointly with the others for the
        amount of the judgment against them, and that each is also individually liable for the full amount. The
        π can collect from any one of them or any group.

  A.         ACTS IN CONCERT
                  Was There An Agreement To Act?
                  Was The Act In Furtherance Of The Agreement?
                  If One Or More Did Not...
        Independent Acts
        a.         Concurrent Tortfeasors
        b.         Successive Tortfeasors

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 59 of 120
Torts Outline                                                                              NEGLIGENCE


B.          ACTS NOT IN CONCERT
        Failure to perform a common duty

C.           SATISFACTION AND RELEASE
        1. Satisfaction is acceptance of full compensation for the injury; a release is a surrender of
           the cause of action, which may be gratuitous, or given for inadequate consideration.
             There can be only one satisfaction of a judgment.

D.           CONTRIBUTION
        1. Distributes the loss among tortfeasors by requiring others each to pay a proportionate
           share to one who has discharged their "joint" liability.
             Arises when a Δ pays more than their fair share. Δ1 can seek indemnity against Δ2

E.           INDEMNITY
        1. Requires another to reimburse in full one who has discharged a common liability. Can
           recover only in the following situations:
             a.   Where the one seeking indemnity has only a derivative or vicarious liability for damage
                  caused by the one sought to be charged;
             b.   Where the one seeking indemnity has incurred liability by action at the direction, in the
                  interest of, and in reliance upon the one sought to be charged;
             c.   Where the one seeking indemnity has incurred liability because of a breach of duty owed to
                  him by the one sought to be charged;
             d.   Where the one seeking indemnity has incurred liability merely because of failure, even though
                  negligent, to discover or prevent the misconduct of the one sought to be charged
             e.   Where there is an express contract between the parties containing an explicit undertaking to
                  reimburse for liability of the character involved.

F.           APPORTIONMENT OF DAMAGES




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                    Torts Outline                                                                               STRICT LIABILITY



                    STRICT LIABILITY (NO FAULT)
                    Definition - Circumstances in which the Δ is held liable although he neither intentionally
                    injured π nor failed to live up to the objective standard of reasonable care as in negligence.
                    II. Three primary areas of strict liability

                       A.         ANIMALS
                                    1.        Trespassing Animals - One Of A Type Likely To Roam (Cattle, Sheep,
 Rottweiler is vicious,                   Chickens, Goat)
  owner tells dog to ―sic
  ‗em‖                                     One exception to the c/l rule which the courts were compelled to recognize early was the case
         Intentional Tort                 of animals straying from a highway on which they were being driven lawfully. While the
 Rottweiler escapes back                  owner would be liable for any negligence in failing to control them, the privilege to make use
  yard through hole in                     of the highway to move them involves immunity as to any casual trespass on adjoining lands.
  fence.
                                    17. Domestic Animals (Dog, Cat, Sheep, Horse)
         Negligence
 Rottweiler is tied, fenced,             a. If Δ has knowledge or dangerous propensities, there is S/L
  but escapes to injure                   b. If Δ does not know of dangerous propensities, and exercises due care, not liable.
  another.
                                          In California, if your dog does it, you are liable.
         Strict Liability
                                    18. Wild/Dangerous Animals
                                           MAJORITY: Strictly liable.
                                           MINORITY: Some apply negligence standard with extreme caution as the standard of care.

                    B.          ABNORMALLY DANGEROUS/ULTRAHAZARDOUS ACTIVITIES
                                If someone is injured, they can recover without proving intent or negligence.
                                    Ultrahazardous activities are those ―which necessarily involves a risk of serious harm to the
                                    person, land or chattels of others which cannot be eliminated by the exercise of the utmost care
                                    and is not a matter of common usage.‖ RYLANDS V. FLETCHER. This case had to do with changes
                                    to the land. We went from strict liability before the industrial revolution, to negligence to promote
                                    business during the industrial revolution; and then back to strict liability. With Li v. Yellowcab
                                    and other cases are beginning to compare comparative liability with strict liability.
                                    5/5/2004 See p. 25 in the notes; it provides the text of the following restatements. You can never
                                    be free from the risk inherent in the activity. Historical strict liability encompassed
                                1. Elements (Restatement I and Restatement II)
                                    a.     Harm Arises From That Which Makes The Activity Dangerous
                                    b.     High Risk Of Harm
                                    c.     Risk Cannot Be Eliminated Through The Use Of Reasonable Care
                                    d.     Activity Is Not A Common One
                                    e.     Inappropriateness of the activity to the place where it is carried on
                                    f.     Extent to which the value to the community is outweighed by the dangerous attributes of the
                                           activity
                                               19. Limitations/Defenses
                                    a.     You Are Only Liable For The Natural Consequences Of The Act Which Makes The Act
                                           Abnormally Dangerous.
                                    b.     Not Liable For Acts Of God (Must Use Care If Act Is Foreseeable, Though)
                                    c.     Assumption Of Risk Is A Defense
                                    d.     Contributory Negligence Is Not A Defense Unless The Conduct Of The Π Is Willful, Wanton
                                           Or Outrageous
                                           Example: It is not defense to a strict liability claim that π negligently maintained her barn
                                           door if Δ's tiger escapes and kills π's cow.

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                    d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                Page 61 of 120
Torts Outline                                                                                       STRICT LIABILITY

               e.    Comparative fault is a defense.
EXAM TIP:
Watch out for a question in which Δ is conducting a clearly abnormally dangerous activity but the injury to the π was not
within the risk created by the dangerous activity. Keep negligence in mind as a fall-back claim if π's strict liability claim fails.
Also, an exam fact pattern might describe extraordinary precautions taken by Δ while engaging in an abnormally dangerous
activity. Answers that relieve Δ from liability because of the precautions are wrong. Remember: if it is strict liability, Δ is
liable no matter how much care was taken.

SPANO V. PERINI CORP. (NY 1969) [L] (S' GARAGE/CAR D'ED FROM BLASTING, STRICT
LIABILITY) ESTABLISHED “BUT FOR” STRICT LIABILITY FOR ULTRAHAZARDOUS
ACTIVITIES.
Strict liability for all foreseeable consequences of blasting accidents, incl. D from vibrations.
s sets off dynamite at construction site, 125 ft. away from 's premises. s' car repair garage / car destroyed.
Negligence alleged by s, but no proof offered, rely on strict liability. Tr. ct. finds for s on strict liability; 1st
app. ct. reverses due to Booth v. Rome (NY 1893) precedent requiring showing of negligence caused by the
physical invasion of your property by the object of the ultrahazardous activity. 2nd app. ct. rev'd again, found
for s on basis of strict liability, overruling Booth. Physical trespass no longer necessary (flying rocks vs.
vibrations, both actionable). This Booth Court did not want to restrict the blaster from earning a living or to
restrict his property rights. But the Spano Court says that Strict liability does not give serious disincentive to do
useful blasting work, but simply allocates cost where it should be, on . But, Pugsley says that this was the
Court‘s way of encouraging blasters to get insurance. Compare to the case where the roof blew off the building
and killed the worker. Even though the roof was rotted, it was not a supervening event.
Note (1) absolute liability for storage of gunpowder (Heeg v. Licht (NY 1880)) (2) Booth originally rested on
distinction between trespass (physical entry) and case (indirect vibrations).

COMMONWEALTH V. KOCZWARA, (PENN. 1959) [L] (ABSOLUTE LIABILITY BUT NO JAIL
FOR SELLING BOOZE TO MINORS)
Strict Liability But No Jail For Tavern Owner When Employee Sold Booze To Minors
Tavern owner held vicariously liable for employee‘s violation of strict liability crime of selling alcohol to a
minor. Court holds he cannot be sentenced to prison, can only be fined. (Others disagree.) Read the Musmanno
dissent – it‘s definitely worth the effort to hear such an elegant, forceful rejection of strict liability in the
criminal context. Pugsley says the majority punted and agrees that Musmanno is well worth reading. Compare
his opinion to the opinion in the case where the chauffeur jumped out of the car to escape the robber.

Drake law review article is on the final
Prosser and keeton also on test p83

C.        STRICT LIABILITY VS. ABSOLUTE LIABILITY
     1.   STRICT LIABILITY in criminal context: avoid need to show mental state; but also takes away defense
          of good faith and reasonable mistake of fact. Felony Murder and Statutory Rape.
     2.   VICARIOUS LIABILITY – Respondeat Superior  UPS is responsible for negligent acts of its drivers
          committed in the course of their job duties. UPS can later go after the employee.
     3.   Strict Liability + Vicarious Liability = ABSOLUTE LIABILITY




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                          Page 62 of 120
Torts Outline                                                                      PRODUCT LIABILITY



PRODUCTS LIABILITY
Persons who manufacture, sell or otherwise place in the stream of commerce products which are
dangerous or defective may be held liable for personal injury or property damage resulting from the
use of such products.
Monday, January 10, 2005
Prof. Rolnick.
Substantive law which will be covered:
     Proving up a defect and also
     Restatement of Torts 3rd Prod. Liab.
     All to be covered in the first 6 classes (12 hours)


Possible Theories of Liability:
  A.     INTENTIONAL TORT
         Person provides a product to a person with the intent of harming that person. (ie: battery; retailer sets a
         force in motion by way of a product).

  B.       NEGLIGENCE
A.       Elements
                      1. Duty is owed to all those who may foreseeably come into contact with the
                         product
             The duty is owed by everyone in the chain of distribution – manufacturer, retailer – anyone who
             works to get the product to the consumer.
                      2. Breach. Did the Δ market the product in a reasonable manner?
               Can use Res Ipsa Loquitur
Design
Is there a safer design?
Is the cost reasonable?
Does the consumer expect a safer product?
Manufacture
                        Design is fine, but manufacturer screwed up. Did not act reasonably.
Warnings
No warnings are given;
If given, they are inadequate;
Or if given, you can't find them or they are too small
                      3. Actual Cause
                      4. Proximate Cause
                      5. Damages
B.       Defenses
         Are The Same As For Common Law Negligence




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 63 of 120
Torts Outline                                                                      PRODUCT LIABILITY


  C.      BREACH OF EXPRESS WARRANTY (CONTRACT THEORIES)
        Promise stated in words or a substitute for words about the product. If the warranty is
        breached (representation is false) causing damage or injury to the purchaser who relies on the
        promise, that purchaser has a direct action against the seller.

        R2nd Torts, §402B
         – a commercial supplier of products who makes a material misrepresentation concerning the nature
        or quality of the product is strictly liable for physical harm caused by justifiable reliance on the
        representation.

A.      Elements
        2. Express warranty made by any seller
              Typically done through pamphlets, materials, etc., that come with that product.
                       1. Must be a misrepresentation of a material fact justifiably relied upon
              The representation must be made with the intention, or at least the expectation, that it will reach
              the π, or a class in which he is included. When there is no such expectation, there is no strict
              liability.
                     2. Three alternatives as to who may be a π (According to Restatement)
Family or guests of the immediate buyer who are personally injured
                       (Buyer, immediate family, guest)
Any natural person who may be reasonably expected to use, consume or be affected by the goods and
who suffers personal injury
Any person who may be reasonably expected to use, consume or be affected by the goods and who is
injured
                         Corporations, partnerships, businesses, and sole proprietorships included in
                         definition of "person."
                        In California, anyone injured by consumer product, whether or not it was dangerous.
                       3. Actual cause
                       4. Proximate cause
                       5. Damages
B.      Defenses
        1.     Contributory negligence - no (Total bar)
        2.     Comparative fault - probably (state by state analysis; states accept or reject)
        3.     Assumption of the risk - yes
        4.     Disclaimers - maybe
                  a.        Generally unconscionable if there is personal injury
                  b.        Only valid for the purchaser
                  c.        In California, doesn't work
        5.        Notice requirements - yes
        6.        Misuse i.e., improper and unforeseeable use of the product - yes
                       a.   Include in breach analysis OR defenses

  D.         BREACH OF IMPLIED WARRANTY (HARD TO PROVE THIS)
        Implied warranty of merchantability (UCC §2-314)
        If a merchant deals in a type of goods there is a warranty that those goods are fit for ordinary use
        Implied warranty of fitness for a particular purpose (UCC §2-315)



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 64 of 120
Torts Outline                                                                          PRODUCT LIABILITY

         Where the seller knows or has reason to know that the buyer is purchasing goods for a particular
         purpose and the buyer is relying on the seller‘s skill or knowledge, there is an implied warranty that the
         goods are fit for that purpose
A.       Elements
         1. Sale of goods by dealers
             a.   Not services (hairdressers, for example, use goods AND services)
             b.   Dealers are people who deal regularly in the product
         2. Implied promise of the Δ, and that promise is false
         3. Three alternatives as to who may be a π
             a.   Family or guests of the immediate buyer who are personally injured
             b.   Any natural person who may be reasonably expected to use, consume or be affected by the
                  goods and who suffers personal injury
             c.   Any person who may be reasonably expected to use, consume or be affected by the goods and
                  who is injured
         4.     Actual cause
         5.     Proximate cause
         6.     Damages
B.       Defenses
         1.     Contributory Negligence - No
         2.     Comparative Fault - Probably (State By State Analysis)
         3.     Assumption Of The Risk - Yes
         4.     Disclaimers - Maybe
         5.     Notice Requirements - Yes
         6.     Misuse i.e., Improper And Unforeseeable Use Of The Product - Yes

  E.       STRICT PRODUCTS LIABILITY OR STRICT LIABILITY IN TORT
     Liability imposed without fault against manufacturers and suppliers of defective products for
     injuries cause by the defect.
      Must prove there is a defective product and product caused injury;
      Don't have to prove that Δ acted unreasonably;
      Easier than warranty cases. (No privity requirements; longer statute of limitations)
         Strictly speaking, since negligence is not in question, res ipsa loquitur has no application to a strict
         liability case, but the inferences that are the core of the doctrine are no less applicable to strict lability.
         In other words, the fact that the product when wrong may, in a proper case, give rise to a permissible
         inference that it was defective and that the defect existed when it left the hands of the defendant.

         1/13/2005 402A is the focus of this class; cover warranty theories only lightly.


     R2nd Torts §402A
     (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or
         to his property is subject to liability for physical harm thereby caused to the ultimate user or
         consumer, or to his property, if
         (a) The Seller Is Engaged In The Business Of Selling Such A Product, and
         (b) It Is Expected To And Does Reach The User Or Consumer Without Substantial Change In The
              Condition In Which It Is Sold.
     (2) The rule stated in subsection (1) applies although
         (a) The Seller Has Exercised All Possible Care In The Preparation An Sale Of His Product, and


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                                Page 65 of 120
Torts Outline                                                                   PRODUCT LIABILITY

        (b) The User Or Consumer Has Not Bought The Product From Or Entered Into Any Contractual
            Relation With The Seller.

A.      Elements
        1. Absolute duty owed by a commercial supplier to provide a product free of any
           unreasonably dangerous defect if the product reaches the π without substantial alteration
           and is not misused
           a. See 402A OC (f): who is included:
               1. Manufacturers
               2. Wholesalers
               3. Regular Sellers
               4. Occasional Sellers NOT included
           b. Rationale
               1. Expectation of the public
               2. Special Relationship between the seller and the consumer; consumer relies on
                   seller to ensure safety of the product
               3. These entitites are part of the distribution chain that will distribute products to the
                   public for profit; the price for having the public trust is that those in the chain
                   ensure the safety of the products they distribute
               4. Including retailers in the strict liability scheme encourages retailers to exert
                   pressure on manufacturers to sell safe products.
               5. Allocation of costs
               6. Insurance
B.      Compare 402A to R3 Torts
     Used Products is one major difference. See Bacharodt Chevrolet

     Rationale For Imposing Strict Liability
     1. Too difficult to prove negligence
     2. Incentive to Mfg to make safe products
     3. Representation that Mfg stand behind products
     4. Mfg in better position to ensure and spread cost (add to product)
     5. By placing product on market, mfg represents that it is fit for use
     6. Cost on party best able to deal with it.

Harriet’s Hypos
        1. Business supplies free samples
               a. Yes, because mfg distributes free samples to get more business and make
                   a profit; profit motive
               b. Remember the free sample chemistry set from Shaffer‘s class
               c. Rolnick says a casino served a drink with broken glass in it. Court
                   attached strict liability under 402A because casinos give away drinks to
                   generate profit at the gaming tables
        2. ∆ supplier allows a restaurant to use a deep fryer free of charge as an inducement
           for the restaurant to buy the deep fryer


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                  Page 66 of 120
Torts Outline                                                                   PRODUCT LIABILITY

                a. Yes, liability for same reasons as #1
        3.  purchases a product in a self-service store and en route to paying for product
           injures self
                a. Yes, because there is a duty to the purchaser. Being en route to the check
                     out stand proves she was a purchaser and distinguishes this case from the
                     next hypo.
                b. In actual cases, retailers seek indemnity from manufacturers for liability
                     arising from manufacturing defects
                c. Other jurisdictions provide immunity for the retailer in cases where the
                     manufacturer is reachable. See p 404
        4.  lifts lid on cookie jar to check price and it comes apart in her hand.
                a. Rolnick says: is there contributory negligence?
                b. Is there a duty owed to this person who picks up?
                c. In actual case, no duty because action was brought under implied warranty
                     of liability; but no liability because no proof that  was actually a
                     purchaser and not just a looker
“THE RISK REASONABLY TO BE FORESEEN DEFINES THE DUTY TO BE OBEYED.”
Cardozo in Palsgraf
                d. But, that would be a negligence theory; what about just a pure 402A strict
                    liability theory of recovery? That is a more ambiguous question.
                e. No clear answer to this hypo; argue both sides;
        5. How about liability of commercial lessor of product i.e., rented sailboat, ski
            rental?
        6. Commercial sellers of mass produced homes
                a. Is real estate a product?
                         i. Courts have found mass produced homes to be products within the
                             meaning of 402A
        7. Developer who sells only two homes
                a. Is there a rationale for distinguishing from mass producers of homes?
                b. Courts have done so. Custom homes are different:
                         i. Less danger of harm to the public
                        ii. Less ability to spread risk
        8. Pet store sells a rabid skunk
        9. You hold a garage sale at your home: to neighbor one you sella defective lawn
            mower; to neighbor two you loan a defective toaster; to neighbor three you give a
            defective chair
                a. No liability because occasional seller.
        10. ∆ a commercial seller lends defective punch press to ’s employer. He is not in
            the business of selling punch presses but has an extra one on hand.
                a. No liability because he is not in the business of selling punch presses. He
                    is an occasional seller or lender of punch presses.


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                Page 67 of 120
Torts Outline                                                                      PRODUCT LIABILITY




    3 Exemptions From § 402A
    1. Occasional Sellers
    2. Supplier of defective product in a commercial context, but it‘s not their normal line of
       business
    3. Mixture of sales and service (Cedars Sinai Case)



    Breaking of Hypodemic Needle While In Dentist Chair
    1/13/2005 Focus first on sales service issue.
    ∆ will claim that just like the Cedars case, Dentist was not in the business of selling
    hypodermic needles.
     should argue that the Dentist is in best position to deal with the cost of the injury since
    the manufacturer can‘t be reached because the Dentist doesn‘t know where he bought the
    needle. Incentivizes dentists to put pressure on mfgs to make safer needles. Just because
    multiple use of needles is accepted practice in the industry doesn‘t mean it is reasonable.
    Could also argue that the Dentist did not assemble the needle correctly; but that would be
    more like a negligence theory. Predominant purpose test of Cedars shows it‘s mostly a
    service transaction. Magrine v. Krasnica 227 a2d 539; referred to in the Cedars case on p
    407 ¶1. Rolnick says best  argument is to liken dentist to a retailer, not a mfg. See p
    410 sales-service distinction notes.
        Rule: Regardless of the custom of an industry or trade, a D will be held liable if his actions fall
        beneath the standard of the average prudent man.
        (a) The T.J. Hooper: The operator of a tugboat was sued for the loss of two barges and their
            cargoes which were lost at sea. p claimed that D was negligent in not equipping the tug
            with a radio receiver which would have allowed the operator of the tug to receive reports
            of an impending storm. There was evidence that the master, had he heard the weather
            reports, would have turned back. The industry standard was not to install the receivers
            (only 1 company had it). However, the court ruled that there are some precautions so
            imperative that even their universal disregard will not excuse their omission.
                 (i) Note: Consider the policy implications of allowing a court to mandate an
                      industry standard.



        2. Parties who may bring the action
             Those individuals to whom injury is foreseeable




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 68 of 120
Torts Outline                                                                      PRODUCT LIABILITY

        3. Must be a product
             Foodstuffs are products. Does not apply to services. Be careful when there are both.
             EXAMPLE: Suppose Perkins buys an aftermarket Pinnacle car stereo for his new Beta automobile
             from Stereo Store, which he has installed by Installers Company, a completely separate enterprise.
             If the stereo set has defective wiring which causes a fire and destroys Perkins's care, he will have a
             strict products liability claim against Stereo Store (as well as against Pinnacle) whether or not the
             defect was one the store could have discovered. Perkins will not have a strict products liability
             claim against Installers Co., because it provided a service and not a product. Any recovery from
             Installers Co. will depend on whether Perkins can prove some negligence in the installation that
             contributed to his losses.
        4. Product was defective and defect existed when it left Δ’s control
             A product is defective when product is unreasonably dangerous
             ―Dangerous to an extent beyond that which would be contemplated by the ordinary consumer who
             purchased it with the ordinary knowledge common to the community as to the product's
             characteristics.‖ R2nd §402A
             a. Manufacture
                 Whether reasonable person would have placed product in stream of commerce if he had
                 knowledge of the defect. You assume manufacturer had knowledge. If there in an
                 unreasonably dangerous manufacturing defect in the product that causes personal injury or
                 property damage, everyone in the chain of distribution will be held strictly liable.
                 EXAMPLE: Cheap-Mart sold a Personal Electric toaster-oven for $34.95, unaware that the
                 unit had a manufacturing defect in the wiring. The defect caused a fire that destroyed π's
                 house and seriously injured π's family. The Cheap-Mart will be strictly liable for the massive
                 personal injury and property damage.
             b. Design
                Manufacturer would not have designed product if he had knowledge of risk*
                 ―In design defect or failure-to-warn cases, the product has been manufactured as intended and
                 cannot be defective by comparison to a standard set by the manufacturer. Rather, the standard
                 to measure the product reflects a policy judgment that some products are so dangerous that
                 they create a risk of harm outweighing their usefulness. From that perspective, the term
                 'defect' is a conclusion rather than a test for reaching that conclusion.‖ Rolnick says this is the
                 easisest BoP for . But, how do you show what the average consumer expectation is? Courts
                 started including risk/utility tests in conjunction with this theory of recovery. Factual Cause:
                 ―but for‖ or ―substantial factor.‖ Proximate cause: ―foreseeable consequence of the defect;
                 no superseding or intervening factors.‖
                    O
                  --O'BRIEN V. MUSKIN CORP.
                 Tests for throwing out entire product line:
                 (1) Feasible Alternative Test: Could we have done this safer?
                      Balances (1) the product's utility, (2) its dangerousness as designed, (3) the availability of
                      alternative safer designs, and (4) the costs of alternative safer designs (either in terms of
                      increased price or impaired utility)
                 (2) Consumer Expectations - product failed to perform as ordinary consumer would expect.
                      Many ordinary products involved some risk of danger, and are not unreasonably
                      dangerous unless the risk exceeds an ordinary consumer's expectations. Thus, according
                      the Restatement's "inherent characteristics" doctrine, "good whiskey is not unreasonably
                      dangerous merely because it will make some people drunk, and is especially dangerous to
                      alcoholics."
             c. Warnings
                Either not there; there, but inadequate; there but you can't see or read them



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 69 of 120
Torts Outline                                                                     PRODUCT LIABILITY

                  The rules of strict liability require a π to prove only that the Δ did not adequately warn of a
                  particular risk that was known or knowable in light of the generally recognized and prevailing
                  best scientific and medical knowledge available at the time of manufacture and distribution.
                  This in strict liability, as opposed to negligence, the reasonableness of the Δ's failure to warn
                  is immaterial. ANDERSON V. OWENS-CORNING
             Learned Intermediary Rule:
             In cases involving pharmaceuticals, a key issue often is whether the pharmaceutical manufacturer
             should provide its warnings to the prescribing physician or directly to the patient. Most courts hold
             that warnings and instructions should be provided to the physician, who is a learned intermediary
             and is the best person to understand the patient's needs and assess the risks and benefits of a
             particular course of treatment. It is assumed that the physician will decide which warnings to pass
             on to the patient taking into consideration the patient's well-being.
        d. Problem Areas
             (1) Even if defective, you are only liable for normal or foreseeable use of product
                 (A) Abnormal reactions - liable if you knew of potential Manufacturer is not subject to
                     liability for an unforeseeable abnormal use of his product.
                 (B) Unforeseeable dangers (change in knowledge or research)
                     1. If you could not have avoided or become aware of the risk by reasonably developed
                          human skill, you are not liable.
                     2. If so, duty to warn or recall
                 (C) Unavoidably unsafe product; reasonably apparent = unavoidably unsafe
                 (D) Subsequent mishandling; subsequent changes
        5. Actual Cause
        6. Proximate Cause
        7. Damages
             a.   Personal injury to the user/consumer, or physical injury to the property of the user/consumer.
             b.   Economic loss resulting form a product with defective workmanship or materials.
             c.   Economic loss to the purchased product itself.
             d.   Physical harm to a π's other property as well as to the product itself.

B.      Defenses
        1. Contributory Negligence - No
        2. Assumption of the risk - Yes
             When a π voluntarily confronts a known hazard, the Restatement and many courts would bar the
             claim.
        3. Comparative Fault - Yes (State By State, But Most States, Yes)
        4. Disclaimers - No
        5. Unreasonable And Unforeseeable Misuse - Yes
             The manufacturer is not subject to liability for an unforeseeable abnormal use of his product. A
             seller is generally entitled to expect that his clear and understandable directions and instructions
             for use will be followed, and when they are not, the use becomes an abnormal one. But, warnings
             or instructions will not always preclude liability. If following the instructions would make it
             difficult to obtain the expected use of the product, the warnings will not overcome defects in the
             product's design or construction (ie: warnings on a fire extinguisher stating that it should not be
             used in a room warmer than 120 degrees).
        6.        Notice - No




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 70 of 120
                      Torts Outline                                                                      PRODUCT LIABILITY


                           Chart: Product Liability Theories of Recovery & Defenses
                                                   (ME SIN)
          M                                 E                                     S                             I                             N
                                                                                                        Implied
Misrepresentation                                                                                       Warranty
                           Breach of Express Warranty            Strict Products Liability
(Restatement                                                                                                         Negligence
                           (UCC 2-313)                           (Restatement 402A)                     (UCC §2-314)
402b)
                                                                                                        (UCC §2-315)
Elements (MR.              Same as tort of                       Elements                               Elements     Elements
   MIC)                    misrepresentation
1.   Misrepresentation     1.   Representation regarding:        1.    caused the product to be        1.   Warranty        1.   Duty – commercial sellers
     of a material fact.                                              placed in the market                   of                   owe a duty of care to any
                                    a.   Composition                                                         Merchanta            foreseeable π, regardless of
2.   π must Rely on                                              2.   At the time the product left           bility               privity. Standard of Care:
                                    b.   Durability
     the representation                                               ‘s control, in contained an           guarantees           Manufacturer must use
     in using product.              c.   Performance                  UNREASONABLY                           that goods           reasonable care in designing
                                                                      DANGEROUS DEFECT.                      are fit for          & assembling safe product &
3.   Representation                 d.   Safety
     must be Made by                                             3.   π was hurt while using the             ordinary             must provide necessary
      or fairly                                                      product in its intended and            purposes             warnings: wholesalers have
     chargeable                                                       foreseeable manner.                    that goods           no duty to inspect but retaile
     against him.                                                                                            are used             must if they know product is
                                                                 4.    is in the business of selling        where  is           defective.
4.   Must be Intended                                                 / supplying the product.               a merchant
     / expected to                                                                                                           2.   Breach
                                                                                                             of such
     reach a class of                                                                                        goods.          3.   Causation
     which π is a
     member                                                                                             2.   Warranty        4.   Damage
                                                                                                             of Fitness
5.    must be a                                                                                             for a
     Commercial                                                                                              particular
     supplier of                                                                                             purpose
     chattels.                                                                                               arise if
                                                                                                             seller
Intentional – requires                                                                                       recommend
scienter                                                                                                     s particular
Negligent – requires                                                                                         product
misrepresentation in a                                                                                       after told
business or                                                                                                  by buyer of
professional capacity.                                                                                       particular
                                                                                                             needs
                                                                                                             regardless
                                                                                                             of whether
                                                                                                              is
                                                                                                             merchant.
Defenses (AMC)             except any seller is liable but:      Defenses                               Defenses             Defenses (ACC)
                                                                                                        (MANF)
1.   Assumption of         1.   π a cohabitant & guest can       Feasible Alternative Test              1. Misuse of         1.   Assumption of Risk
     Risk                       recover for personal injuries.   (DOCBAT)                                   Product          2.   Contributory Negligence
2.   Misuse of             2.   Extends to anyone who could      Weigh & Balance The Following          2. Assumption        3.   Comparative Negligence
     Product                    be expected to be personally     Factors:                                   of Risk
3.   Contributory               injured by goods. (duty to       1. Danger imposed                      3. Not


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                      d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 71 of 120
                   Torts Outline                                                                    PRODUCT LIABILITY


                     Chart: Product Liability Theories of Recovery & Defenses
                                             (ME SIN)
       M                                E                                      S                           I                               N
                                                                                                   Implied
Misrepresentation                                                                                  Warranty
                       Breach of Express Warranty              Strict Products Liability
(Restatement                                                                                                    Negligence
                       (UCC 2-313)                             (Restatement 402A)                  (UCC §2-314)
402b)
                                                                                                   (UCC §2-315)
   Negligence –             under UCC 2-318).                  2.   Obviousness of danger               Following
   NOT a defense                                               3.   Cost of improved design /           Instructions
                       3.   Property damage recoverable.
                                                                    practicality;                  4.   Failure to
                       4.   Entity can sue.                    4.   Benefit of product;                 Complain
                                                                                                        to Seller
                                                               5.   Alternative Design
                                                                                                        Within a
                                                               6.   Technology                          Reasonable
                                                                                                        Time

                       Defenses                                Defenses (MAN)                                           Defenses
                       1.   Same defenses as tort of           1.   Misuse of Product                                        1.   Contributory Negligenc
                            misrepresentation +                2.   Assumption of Risk                                  If π caused injury & was neglige
                       2.   failure to give notice of breach   3.   Not Following Instructions                          him/herself, recovery is barred.
                       3.   & inadequate warning.                                                                       However, to avoid harsh results
                                                                                                                        the following doctrines are
                                                                                                                        applied:
                                                                                                                        Last Clear Chance doctrine:
                                                                                                                        allows π to recover if  could
                                                                                                                        have avoided accident but did no
                                                                                                                  2.              Comparative Negligenc
                                                                                                                             a.            Pure – π can
                                                                                                                                  always recover
                                                                                                                             b.             50% - π loses i
                                                                                                                                  fault equal to 
                                                                                                                             c.              50% or less: π
                                                                                                                                  loses if negligence great
                                                                                                                                  than 
                                                                                                                  3.              Assumption of the Risk
                                                                                                                        If π expressly/impliedly consente
                                                                                                                        to harm, recovery is barred if π:
                                                                                                                             1.            Recognized &
                                                                                                                                  understood the danger;
                                                                                                                             2.             Voluntarily
                                                                                                                                  chose to encounter it
                                                               State of the Art Defense                                 Strict Liability
                                                               (WWWWF)
                                                                                                                        1.   Inherently dangerous condu



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                   d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 72 of 120
                Torts Outline                                                                    PRODUCT LIABILITY


                    Chart: Product Liability Theories of Recovery & Defenses
                                            (ME SIN)
       M                              E                                   S                           I                           N
                                                                                                Implied
Misrepresentation                                                                               Warranty
                    Breach of Express Warranty            Strict Products Liability
(Restatement                                                                                                 Negligence
                    (UCC 2-313)                           (Restatement 402A)                    (UCC §2-314)
402b)
                                                                                                (UCC §2-315)
                                                                                                                      by  against π.
                                                                                                                 2.   ―liability imposed for a
                                                                                                                      breach of an absolute duty t
                                                                                                                      make safe which is the actua
                                                                                                                      & proximate cause of π‘s
                                                                                                                      injuries.‖
                                                                                                                 3.   Domestic animals –  only
                                                                                                                      liable if knows of animal‘s
                                                                                                                      propensity for danger. Wild
                                                                                                                      animals –  strictly liable.
                                                                                                                      Trespassers are not protecte
                                                                                                                      in the absence of a
                                                                                                                      landowner‘s negligence
                                                                                                                      unless the injury is inflicted
                                                                                                                      by a vicious animal.
                                                                                                                 4.   Abnormally Dangerous
                                                                                                                      Activities


                                                              1.   Was a safer mechanism                         Defenses to Strict Liability
                                                                   in existence?
                                                                                                                      1.   Assumption of risk
                                                              2.   Why didn‘t  use it?
                                                              3.   Who did use it?                               Contributory negligence is a
                                                                   (anyone?)                                     defense only where π knew of
                                                              4.   Would use of it at that                       danger & negligently caused
                                                                   time adversely affect                         miscarrying activity. Some state
                                                                   benefit of product?                           apply comparative negligence.
                                                              5.   Feasibility/scientific
                                                                   knowledge/practicality

                Monday, January 10, 2005
                Historical background of products liability. A tract home is a ―product‖ under California law which allows  to
                pursue strict liability theories.


                “THE RISK REASONABLY TO BE FORESEEN DEFINES THE DUTY TO BE OBEYED.”
                Cardozo in Palsgraf

                Early Hurdles to Product Liability
                Privity of K
                Retailer had Privity but Mfg had $


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                d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                        Page 73 of 120
Torts Outline                                                                      PRODUCT LIABILITY

Notice of the Defect
Foreseeability
Negligence is a theory of recovery that works well for:
     Manufacturing defects
     Design Defects
     Warning Defects
Regardless of whether you are going for a theory of strict liability or negligence, you are looking for a defect,
something that makes that particular product defective. It stands out from all the other products.

Restatement 3rd Prod. Liab.: Different approach; focuses on the defect, not on the theory of recovery. So, ‘s
don‘t have to worry about whether it‘s negligence or strict liability; just show the defect.
R3rd - focuses on defects not on theories of recovery.

WINTERBOTTOM V WRIGHT (EX 1842) [NL]
Privity of K Required for Product Liability (Since Overturned)
D contracts with Postmaster to supply and maintain coaches for mail delivery. 3rd party contracts to supply
horses and drivers. P is a driver, injured b/c of defective coach. Held for D b/c P not in privity of contract with
D, so there is no cause of action. Rationale: allowing such an action would make D liable for actions by any
user of the coach no matter how remote.

MACPHERSON V BUICK MOTOR CO. (NY 1916) [L]
If Manufacturer Is Negligent Where Danger Is To Be Foreseen, He Is Liable Even To Users Other Than
The One With Whom He Is In Privity Of K
Cardozo, J. P=car dealer injured when defective wooden wheel of new car crumbled. Issue: does manufacturer
own duty of care to anyone but immediate purchaser. Held: in this case, the one person not likely to use the car
is the dealer. Silly to prevent buyer from having cause of action. Maker of finished product has duty to test
parts made by sub-manufacturers. Rule: if manufacturer is negligent where danger is to be foreseen, he is liable
even to users other than the one with whom he is in privity of K. [Cardozo combined exceptions 1 and 3 and
used negligence standard, turning exception into the rule.]

HENNINGSEN V. BLOOMFIELD MOTORS (N.J. 1960) [L]
Implied Warranty Of Merchantability Applies To Purchaser And Foreseeable Users.
P purchased car from D, as a gift for his wife. P‘s wife was injured while driving car and both P and his wife
sued D. Ps sued for breach of warranty and breach of contract. The purchase order had a one page contract
which contained in small fine print that P in signing the contract waived all express and implied warranties. Ct
held that there was unequal bargaining power in the signing of this contract (also look at Restatement 3 rd packet,
sec 18), so P was not bound by it and could therefore sue D. Protect the little guy. Main holding is that
privity is pretty much wiped out – D’s violation of implied warranty of merchantability can apply to not
just purchaser, but also to any foreseeable user of the product (e.g. son, friend, etc.). D put the product
out into the market, so he should be liable for any injuries that result when product is used in manner it
was designed for. Ct held that all products have implied warranty of merchantability. This shows where
D tries to use express contract to try to absolve itself of any duty owed to a purchaser.
Social utility argument – if we don‘t impose liability then there is no reason to use reasonable care.

GREENMAN V YUBA POWER PRODUCTS (CA 1963) [L]
A Manufacturer Is Strictly Liable When An Article He Places On The Market, Knowing That It Is To Be
Used Without Inspection For Defects, Proves To Have A Defect That Causes Injury To Human Beings
Man injured by defective lathe that manufacturer‘s brochure said was safe. Rule: a manufacturer is strictly
liable when an article he places on the market, knowing that it is to be used without inspection for defects,
proves to have a defect that causes injury to human beings. Held: don‘t do this in K with warranties and privity
requirement, but rather in tort on strict liability basis. Rationale: put costs on manufacturer rather than victim.
Warranties = inadequate. ―Implicit in the machine‘s presence on the market was a representation that it would

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Torts Outline                                                                        PRODUCT LIABILITY

safely do the jobs for which it was built.‖ Limit: had to be correct and normal use. Rolnick says: it‘s important
that the  plead multiple theories. Mfg plead § 1769 of Civil Code: lack of notice. This requirement of notice
can be a pitfall for ‘s because they might not know of the requirement of notice until much later, when they
finally consult a lawyer. This case introduced strict liability in tort. Rolnick points out the see-saw changes
from contract to tort theories of recovery for product liability. No longer required a warranty or negligence
basis for the ‘s theory of recovery. California does not require ―unreasonable dangerous‖ which is in § 402A.

ESCOLA V. COCA-COLA BOTTLING CO (CA 1944) MANUFACTURING

Traynor, J.: P injured when Coke bottle exploded in her hand. P = waitress, so not in privity of K with bottler.
Held: manufacturer is absolutely liable b/c he is the best risk avoider, the best loss-spreader, it is in public
interest to discourage manufacturer‘s from marketing defective products, too difficult for P to prove negligence,
the issue is not a K warranty issue but a tort issue, so privity is not necessary. The Court reasoned that the
bottle exploded because either a) the bottle was cast poorly or cracked; or b) the bottle was charged with too
much gas. Either way, it was the manufacturer‘s responsibility.
       Traynor‘s concurring opinion adds two limitations
                 Defect narrowly defined as latent miscarriage in the manufacturing process
                 Normal and proper use by P where the defect is traceable to the product in the condition in
                 which it reached the market. This allows π to use res ipsa loquitor to prove breach and cause.
       Traynor assumes market can bear the costs of strict liability—Epstein thinks it is better to spend the
       money on first party insurance.
Read the Torts Stories Book.


PETERSON V. LOU BACHRODT CHEVROLET CO. (IL. 1975)
Strict Liability For Product Defect Will Not Lie Upon A Merchant Absent Proof That Defect Existed
When It Left The Manufacturer Or That The Defect Was Caused By The Merchant.
[Prod. Liab. on third parties suppliers - Δ car seller, π car buyer - Δ won - π bought six year old car from Δ.
It had faulty brake components and π saying car was defective when it left Δ. ISSUE: Whether SL should be
extended to sellers/distrib. of used product outside of the original production and marketing chain. Court holds
that π cannot claim strict liability against Δ and declines to impose strict liability here: (1) no allegation that
defects existed when the product left the control of the manufacturer. (22) No allegation that Δ created defect.]
This is one of the big differences between 402A and R3 Torts: the assignment of strict liability to sellers of
used products. Rolnick: are we going to make the retailer the insurer of products it re-sells? Why include the
retailer in the liability chain for new products but not for used products? (a) he is outside the original chain of
distribution; (b) he is not closely tied to the manufacturer; (c) he may have little or no control over the supplier
of the used product that he sells; (d) lower consumer expectations.

Rolnick says to remember that the fallback position is always negligence. R3d Torts §8 makes a big deal about
consumer expectations; so under R3 Torts there would be a good argument for liability of used car dealers if
they have asserted either (a) refurbishment of product; or (b) inspection of product. Is there a duty to warn? Is
there assumption of risk by the buyer? There is a split of authority on the “used products” issue.


HECTOR V. CEDARS-SINAI MEDICAL CTR. (CAL. CT. APP. 1986)
1.   In SL Each Δ Must Have An Integral And Vital Role In Production Or Marketing Of Product In
     Link Of Chain To Consumer.
2. A Provider Of Services Is Not Liable For SL If A Product It Distributes Is Part Of A Service, Which
     Is The Business' Predominant Business. When There's A Mix Of Sales & Services, The Courts Look
     To The "Predominant Purpose" Of The Transaction.
[π patient with defective pacemaker. Pacemaker was installed at hospital (Δ). Δ won. L.C. dismissed for Δ
giving partial summary judgment. ISSUE: Is the hospital SL for the defective pacemaker? Did they sell it to PL,
or was it only come-along due to services of medical treatment. Hospital says they provided predominantly
services, not sales. Court holds for medical center. RULE: In SL each Δ must have an integral and vital role in


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 75 of 120
Torts Outline                                                                       PRODUCT LIABILITY

production or marketing of product in link of chain to consumer. RULE: A provider of services is not liable for
SL if a product it distributes is part of a service, which is the business' predominant business. When there's a
mix of sales & services, the courts look to the "predominant purpose" of the transaction.] Public policy
rationale: don‘t want to increase costs of hospital care.


HAUTER V. ZOGARTS (CAL. 1975)

Manufacturer of dangerous golf machine advertised as ―absolutely safe‖ caused severe damage to 13 y.o. boy
under normal use. Liability assessed due to reasonable foreseeability of danger. Family brings suit on three
counts: 1) false representation; 2) breach of express and implied warranties; and 3) strict liability.

―Absolutely safe‖ is the false representation. The company argued that they should have known that
―absolutely safe‖ was just advertising fluff. If I sell you a VW Bug and tell you that it won the Indy 500, would
you believe me? If Tiger Woods bought the golf gizmo and got hurt, could he have sued? Probably not
successfully. So, the kid should not have known better based on his experience because he had no golf
experience; that is why he bought the gizmo.

P. 185  Hauter acted reasonably. ―Ball will not hit player‖ is express warranty. Implied warranty was that in
normal use it would not hurt you.

FN #8 is the key on PRIVITY.
        The fact that Fred Hauter is not in privity with defendants does not bar recovery. Privity is
        not required for an action based upon an express warranty. Although privity appears to
        remain a requirement for actions based upon the implied warranty of merchantability, Fred
        Hauter comes within a well recognized exception to the rule: he is a member of the
        purchaser‘s family

Implied warranty of merchantability – that the product will do what it‘s supposed to do under conditions of
normal use.

To sue for implied warranty of merchantability – you need to put the product to the use that the public
usually uses it for, and also which the manufacturer intends, and it doesn‘t work.

For a suit on breach of express warranty (also, misrepresentation) – doesn‘t do what it says it will do, e.g.
the ball won‘t hit you.

To recover on negligence - you have to show a defect, and that the defect was produced by a lack of reasonable
care, where the chances of harm are reasonably foreseeable.

With strict liability - you need a defect (usually, a design flaw) and proximal harm – don‘t really need
foreseeability. Strict liability doesn‘t extend to a small category of people, including thieves. Some products
and practices are ultra-hazardous. Keeping a tiger, making nitroglycerine, dynamiting a tree stump in a
residential area. Using poison in an unsafe manner. If death or injury is proximately caused by your handling
of the ultra hazardous instrument, there is strict liability. Due Care objection is irrelevant. Strict liability in
these cases. Design defects, not usually manufacturing defects. Example: guy sues mower company for not
including a blade stop in the design. Negligence is presumed.

Negligence: My injury was proximately caused by a defect in the product. The product was defective due to
the negligence of the manufacture. In strict liability cases, you don‘t need to prove the negligence.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 76 of 120
Torts Outline                                                                   PRODUCT LIABILITY

If you are experienced, you may have assumed the risk. Or, you might be contributorily negligent. Courts have
restricted assumption of risk as a defense to product liability. But assumption of risk is still a defense for
injuries sustained at sporting events or when participating in a sport; such as skiing.




DALY V GENERAL MOTORS (CA 1978)
Court holds that CA will switch to a comparative fault regime even though product defect is strict
liability.


  F.       MANUFACTURING DEFECTS

  G.       R3RD TORTS: PRODUCTS LIABILITY


§1      Liability of Commercial Seller or Distributor for Harm Caused by Defective
        Products
        One engaged in the business of selling or otherwise distributing products who sells or
        distributes a defective product is subject to liability for harm to persons or property caused by
        the defect.

§2      Categories of Product Defect
        A product is defective when, at the time of sale or distribution, it contains a manufacturing
        defect, is defective in design, or is defective because of inadequate instructions or warnings.
        A product:
        (a)      contains a manufacturing defect when the product departs from its intended design
                 even though all possible care was exercised in the preparation and marketing of the
                 product; same as under 402A. 402A talks about ―not in a condition contemplated by
                 the consumer.‖
        (b)      is defective in design when the foreseeable risks of harm posed by the product could
                 have been reduced or avoided by the adoption of a reasonable alternative design by
                 the seller or other distributor, or a predecessor in the commercial chain of
                 distribution, and the omission of the alternative design renders the product not
                 reasonably safe;
        (c)      is defective because of inadequate instructions or warnings when the foreseeable
                 risks of harm posed by the product could have been reduced or avoided by the
                 provision of reasonable instructions or warnings by the seller or other distributor, or a
                 predecessor in the commercial chain of distribution, and the omission of the
                 instructions or warnings renders the product not reasonably safe.

§3      Circumstantial Evidence Supporting Inference of Product Defect
        It may be inferred that the harm sustained by the plaintiff was caused by a product defect
        existing at the time of sale or distribution, without proof of a specific defect, when the
        incident that harmed the plaintiff:
        (a)     was of a kind that ordinarily occurs as a result of product defect; and
        (b)     was not, in the particular case, solely the result of causes other than product defect
                existing at the time of sale or distribution.

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Torts Outline                                                                        PRODUCT LIABILITY


§4       Noncompliance and Compliance with Product Safety Statutes or Regulations
         In connection with liability for defective design or inadequate instructions or warnings:
         (a)     a product's noncompliance with an applicable product safety statute or administrative
                 regulation renders the product defective with respect to the risks sought to be reduced
                 by the statute or regulation; and
         (b)     a product's compliance with an applicable product safety statute or administrative
                 regulation is properly considered in determining whether the product is defective
                 with respect to the risks sought to be reduced by the statute or regulation, but such
                 compliance does not preclude as a matter of law a finding of product defect.

RIX V. GENERAL MOTORS CORP. (MT. 1986)
In order to recover under MANUFACTURING DEFECT strict liability, the Π must establish 3 elements:
A. That the product was manufactured by ∆ and was in a defective condition unreasonably dangerous at the
     time of sale,
B. That the product foreseeably reached consumer without change in its condition, and
C. The defective condition was a proximate cause to the injury.
Here π is suing for DD and MD, claiming he was hit by GM truck with brakes that had DD and MD. Δ claims
that the brakes were altered afterwards, and even if the π's supposed DD in the system had not existed the
accident would still have caused, making the alleged brake DD not the proximate cause of the injury. Issue was
whether instructions given to jury in L.C. were proper. Court here said, yes. The first served up strict liability‘s
principles and the second the π‘s burden. π objected to the instruction that he had to prove the product was in
the condition that it left the factory. 1. That Δ manufactured and sold a product in a defective condition that was
unreasonably dangerous. and 2. The product was expected and did reach the ultimate consumer without
substantial change in condition from time it was sold, and 3. The defective condition in the product proximately
caused the injury to π.
D. Manufacturing Defect: when the product departs from its intended design even though all possible care
     was exercised in the preparation and marketing of the product.
          a. i.e. When the product does not measure up to its own mfg‘s plans for it, and the discrepancy leads
              to an injury, the product has a mfg defect.
          b. Rix v. General Motors, 1986: Π was injured when the brake system failed in a GMC truck. Π
              agrees that the brake tube was defective (design defect), but said it happened after leaving the
              factory. In order to recover under strict liability, the Π must establish 3 elements:
                     i. That the product was manufactured by ∆ and was in a defective condition unreasonably
                         dangerous at the time of sale,
                    ii. That the product foreseeably reached consumer without change in its condition, and
                   iii. The defective condition was a proximate cause to the injury.
PROCEDURAL POSTURE: Plaintiff appealed jury verdict in favor of defendant from the District Court of
Yellowstone County (Montana), alleging several claims in a strict liability action.
OVERVIEW: Plaintiff appealed jury verdict in favor of defendant on a strict liability theory. On appeal, the
court reversed and remanded for a new trial because the trial court failed to properly instruct the jury on strict
liability under design defect theory. The proper instructions should have focused on plaintiff proving the
product was unreasonably dangerous, caused plaintiff's injuries and was placed in the stream of commerce by
defendant. The court affirmed the trial court's findings that: Mont. R. Evid. 407 applied in strict liability actions,
making evidence of subsequent design changes not admissible. The exclusion of res ipsa loquitur was proper.
There was no abuse of discretion in admitting defendant's cross−examination of lay witness under Mont. R.
Evid. 701 or in refusing to compel defendant to further supplement its discovery response. However, the record
was incomplete to make a determination on the issue of excluding disputed conversations between two
insurance adjusters. Design defect theory was that GM should have had a dual brake system to ensure
redundancy. Harriet says: appreciate the limits of a mfg defect theory. Also, remember the importance of jury
instructions. Factual and proximate causation are big issues. Theory of defect is important to your case;
recognize that 402A did not provide a good method for analyzing design defects. Consumer expectation test is
OK when dealing with mfg defects.



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                              Page 78 of 120
Torts Outline                                                                       PRODUCT LIABILITY

OUTCOME: Reversed and remanded for a new trial based on the trial court's reversible error in giving jury
instructions on strict liability without including the plaintiff's design defect theory, when the focus should have
been on whether defendant improperly designed the product which it placed in the stream of commerce.

PRENTIS V. YALE MFG. CO. (MI. 1984)
Court Lays Out The Four Different Design Defect Tests Used By Courts:
1.)     Negligence Risk-Utility Analysis.
2.)     Compare Risk And Utility Of Product At The Time Of Trial - Most Favored Approach Right Now.
3.)     Focus On Consumer Expectations Of The Product.
4.)     Combine Risk-Utility And Consumer Expectation Test.
        a)      Risk-utility test is a variation of Learned Hand‘s negligence formula PL>B.
DESIGN DEFECT - π hurt when forklift malfunctioned, but his injuries were because of falling. Court said
strict liability is never absolute liability. π is required to show product is defective and dangerous as a result of
design defect. Court lays out the four different design defect tests used by courts: 1.) Negligence risk-utility
analysis. 2.) Compare Risk and Utility of product at the time of trial - most favored approach right now. 3.)
Focus on consumer expectations of the product. 4.) Combine risk-utility and consumer expectation test. Risk-
utility test is a variation of Learned Hand‘s negligence formula PL>B.
E. Design Defect: when the foreseeable risks of harm posed by the product could have been reduced or
      avoided by the adoption of a reasonable alternative design, and the omission of the alternative design
      makes the product not reasonably safe.
           a. The Π must show that a product was in a defective condition unreasonably dangerous because of
                its design
           b. Caution: these cases do not fit together.
           c. Prentis v. Yale Mfg Co, 1984: The Π sought damages from the mfg of a forklift that experienced a
                power surge that made him lose his footing and fall. Judgment was entered for the ∆ on a jury
                verdict, but was reversed by the intermediate appellate court because the trial court had failed to
                instruct on breach of warranty. The supreme court rejected strict liability theories for design
                defect cases, reasoning that the proper standard would be a negligence test that imposed liability
                for designs that incorporate an unreasonable balance of risk versus utility.

PROCEDURAL POSTURE: Plaintiff consumer appealed a decision of the United States District Court for the
Northern District of Illinois, Eastern Division, which granted defendant corporations' motion for summary
judgment in consumer's products liability suit brought after a jar shattered, cut, and permanently impaired
consumer's hand. The trial court held the consumer failed to exclude possible causes of the accident other than a
defect in the manufacturing process.
OVERVIEW: Plaintiff consumer cut his hand and was left with permanent impairment when a jar of peanuts
shattered as he was replacing its cap. He filed a products liability action against defendant corporations, the
seller, the manufacturer of the product, and the manufacturer of the glass jar. Defendants filed a motion for
summary judgment, which the trial court granted on the ground that the consumer had failed to exclude possible
causes of the accident other than a defect introduced during the manufacturing process. Plaintiff appealed the
decision, and defendants argued as defenses misuse and the possibility that the defect could have occurred while
in the consumer's possession. The court reversed the decision and remanded the case, holding that a seller who
was subject to strict products liability was responsible for the consequences of selling a defective product even
if the defect was introduced without any fault on his part by his supplier or by his supplier's supplier. The court
held that misuse was no defense, the accident was not due to mishandling after purchase, and the probability
that the defect was introduced by one of the corporations was very high.
OUTCOME: The court reversed the grant of summary judgment and remanded the case. The court found that
plaintiff consumer's accident was not due to mishandling or misuse after purchase but to a defect that had been
introduced earlier. The court found the fact that defendant seller sold a defective jar of peanuts to consumer
would be conclusive of seller's liability.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                             Page 79 of 120
Torts Outline                                                                        PRODUCT LIABILITY


WELGE V. PLANTERS LIFESAVERS CO. (7TH CIR. 1994) (L)
A Seller Subject To Strict Products Liability Is Responsible For The Consequences Of Selling A Defective
Product Even If The Defect Was Introduced Without Any Fault On His Part By His Supplier Or By His
Supplier‘s Supplier.
Plaintiff‘s friend bought a jar of peanuts and proceeded to cut out the bar code off it. Plaintiff later unsealed the
jar, took some peanuts, and sealed it again. One week later plaintiff unsealed the jar, took some peanuts, and
when he was closing it again, it shattered in his hand injuring him. Defendants are the store, the peanut co, and
the jar manufacturer. At the end of discovery, defendants moved for summary judgment, which the ct. granted
saying plaintiff had failed to introduce evidence that excluded other possibilities than manufacturer defect for
the accident‘s cause. Plaintiff appealed.

Posner, J – Held for the plaintiff that glass jars don‘t shatter under normal use unless there‘s a defect in them.
The question is when the defect was introduced. Probably not after plaintiff‘s friend picked it up from the store
shelf because it was used normally. ―The plaintiff in a products liability suit is not required to exclude every
possibility, however fantastic or remote, that the defect … was caused by someone other than the defendants.‖

Strictly speaking, res ipsa (sometimes called the ―malfunction‖ doctrine) doesn‘t apply to products liability
cases b/c the instrumentality has left defendant‘s possession. But, the fact that the accident happened is evidence
of negligence on defendant‘s part. So the defect was introduced when in the possession of one of the
defendants, but which one? Prima Facie case established by preponderance. So, there was enough here to go
to the jury; summary judgment by trial court was not proper.

Stores are liable for defects even if they didn‘t do it because they should have discovered it before selling, so K-
Mart isn‘t off the hook (very strict-liability-like). And all you need is one solvent defendant, so why introduce
any more? Under Ybarra, defendants could introduce exculpatory evidence, but this wouldn‘t work for K-Mart
b/c the fact that it shattered makes it strictly liable despite whatever precautions it took to avoid damaging its
jars – that is, it sold it therefore it didn‘t discover the defect like it was supposed to.

This is a products (strict) liability case. This case limits Loy v. Firestone. The distinction is that the damage to
the product could have been done by the plaintiff there.

FRIEDMAN V. GENERAL MOTORS CORP. (OH. 1975)
E. Problems of Proof
   1. For defective in manufacturer: is it possible to prove that defect was present when it left
      the manufacturer.
   2. For defective design: must show how it can be done better
   3. Friedman—man started car in ―drive‖ and he wrecked it.
          a. Hard to prove what was the cause because how do you know what condition the car
              was in before it crashed?
          b. Here, the car was only 1 and ½ years old, and should not have been having these
              problems, thus there was a preponderance of the evidence.
          c. Focus on the case was wrong because the attorney should have focused on how the
              car could have easily been made safer. (should have been treated as a design defect)
              but then you have to say how it should have been designed differently.

Issue of Proof. Car jumped forward while in PARK, injuring three people. Is circumstantial evidence sufficient
to prove that the case should have been allowed to go to the jury for a decision on existence of defect? It is. π
used expert witnesses, testimony of others, etc. The dissent wanted there to be direct proof, saying ―fundamental
to any such case is that some defect must be proved…Although π‘s evidence may be sufficient to permit an
inference that something was wrong with the car, that alone is not sufficient to establish a defect, expect perhaps
in cases, analogous to res ispa loquitur… the instant case is not such a case.‖ Defense should argue intentional
misuse.

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Torts Outline                                                                      PRODUCT LIABILITY

F.   Proof
         a.   Friedman v. General Motors Corp, 1975: Π says he turned the key in his car while the car was in
              drive; the car jerked forward and ran wild; 4 people were injured. The court says that since
              evidence is to be construed in favor of the Π, they think the jury might reasonably have found that
              the ∆ was guilty of manufacturing a defective car, which caused the injury.
         b.   Plaintiff must be prepared to show:
                    i. That the product that injured him was manufactured by ∆.
                   ii. That the product was defective and he was injured as a result.
                             1. In the absence of this proof that the product is defective because of a
                                  manufacturing flaw, plaintiff must negate the other possible causes of failure of
                                  the product for which the defendant would not be responsible in order to raise a
                                  reasonable inference that the dangerous condition existed while the produce was
                                  still in control of the defendant.
                             2. The Restatement permits the inference of defect based on circumstantial
                                  evidence if incident of kind that ordinarily occurs as a result of product defect
                                  and other possible causes are negated.
                  iii. That the defect existed in the product or was starting to appear in it when it was sold by
                        the particular defendant.
         c.   The most convincing evidence is a direct showing of what went wrong. But an expert pinpointing
              the defect and giving an opinion on that basis is good too.
         d.   FRE 407 says that evidence that the defendant repaired or redesigned his product after the accident
              is not admissible. (In Texas too)
         e.   Most jurisdictions provide that violation of a product safety statute or regulation makes the
              product defective as a matter of law.
                    i. Every product that crosses state lines must pass federal regulation. How is this evidence
                        admissible? With instruction to jury that the statute has been complied with (if not→per
                        se negligence!). This evidence does not affect liability. Satisfaction of the law is not
                        dispositive of the case.


WINTER V. G.P. PUTNAM’S SONS (9TH CIR. 1991)
Information As A Product. Strict Liability Does Not Apply To Information (Books, Etc.).
     2. Negligent Misrepresentation
         (a.) Elements:
              (i.) Misrepresentation
              (ii.) of a material fact
                  (A) A publisher is not liable for misrepresentations made in a book that it published.
                      (1) Winter v. G.P. Putnam‘s Sons – Ps bought a book on mushrooms published by
D. Ps relied on the book to hunt and cook mushrooms. Ps became ill and sued on several theories,
including strict products liability, breach of warranty, negligence, negligent misrepresentation and
false representation. The ct held that strict products liability does not apply to ideas and expressions
in a book and that publishers have no duty to investigate the accuracy of the contents of the books it
publishes (this is too burdensome). Also, expansion of liability would chill the writing community.
The portion of 402A(d) that talks about not distinguishing between containers and contents; doesn‘t
matter. Liberal construction of what‘s a product. What is the best counter-argument to the narrow
construction of ―product‖ in Winter? Who is in the best position to verify the accuracy of the book?
 likens the book to an aeronautical chart; highly technical. Court says no way; it‘s just a book not a
compilation of technical information. Aeronautical charts are like tools; the mushroom book is like a
book about tools.

See also:


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Torts Outline                                                                     PRODUCT LIABILITY


WAY V. BOY SCOUTS OF AMERICA (TX. CT. APP. 1993) [NL]
No Strict Liability For Information.
Kid reads ―Boys Life‖ article about shooting. Ends up getting shot while fooling around with a rifle
and several other 12 year-olds. Court said it‘s not a product liability issue:
Products liability law is geared to the tangible world. Winter v. G.P. Putnam’s Sons, 938 F.2d 1033,
1034 (9th Cir.1991). In Winter, the plaintiffs consulted The Encyclopedia of Mushrooms in gathering
and cooking mushrooms. After eating the mushrooms, they became sick. The plaintiffs analogized
their case to the ones involving defective aeronautical charts to support their cause of action for
products liability. The Winter court rejected this argument. The court found the aeronautical charts to
be highly technical tools similar to a compass. In contrast, the court found the Encyclopedia of
Mushrooms to be like a book on how to use a compass or aeronautical chart. The court further found
that although the chart itself is like a physical product, the how-to-use book is pure thought and
expression. The court concluded there was no basis for a products liability action.
We conclude that the ideas, thoughts, words, and information conveyed by the magazine and the
shooting sports supplement are not products within the meaning of the Restatement (Second) of Torts.




    Rationale For Imposing Strict Liability (Harriet’s Checklist)
    1. Too difficult to prove negligence
    2. Incentive to Mfg to make safe products
    3. Representation that Mfg stand behind products
    4. Mfg in better position to ensure and spread cost (add to product)
    5. By placing product on market, mfg represents that it is fit for use
    6. Cost on party best able to deal with it.

Harriet’s Hypos
Exotic Muffins handout of 1/13/2005
Chick substitutes oil of wintergreen for extract of wintergreen and makes poison muffins from which she is
taken ill. Does she have a product liability case against the recipe publisher? Strict liability is for instances
when you can‘t prove negligence. But, Harriet says that fault is not hard to prove here. But, case law says that
publishers have no duty to check facts; so negligence action would not lie. Only one case where the publisher
was actually found guilty of strict liability: a high school text publisher with a faulty science lab experiment.
Every other case excludes information and relies on the First Amendment.
Part of the Duty analysis is to see ―what is a product.‖ Duty is based on foreseeability. So, if there is a duty,
what is the breach and what are the elements of proof of breach?

3 Principle Types of Defect:
Manufacturing, Design, and Warning defects were not really examined in detail when 402A was published.
Unreasonable not part of California law. Big issue in mfg defects is to prove whether the defect existed when
the product left the plant. Not such a big deal in proving design defects.

  H.       DESIGN DEFECTS

BARKER V. LULL ENGINEERING (CAL. 1978)



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Torts Outline                                                                     PRODUCT LIABILITY


1.   Barker
         a. P: there is a product defect that caused P‘s injury
         b. Does the P have to show, as part of their case, that the product is unreasonably dangerous?
                  i. Before Cronin, did P have to establish that it was unreasonably dangerous?
                          1. Greenman took out unreasonably dangerous, but 402A brought it back in
                          2. The defense is saying, this jury was instructed before the Cronin case was
                               decided. The argument is, we didn‘t have to show unreasonably dangerous.
                               Cronin only applied to manufacturing defect. Even with Cronin being proper
                               law, you still have to show unreasonably dangerous with design defect.
         c. Design defect test :
                  i. (1) P proves product failed to perform safely as ordinary consumer would expect when
                     used in an intended manner OR reasonably foreseeable manner
                 ii. (2) OR, P proves product‘s design proximately caused injury AND D fails to prove
                     benefits of challenged design outweigh risk of danger in such design (balance the
                     relevant factors: gravity of danger; likelihood of danger; mechanical feasibility of safer
                     alternative; adverse consequences to product and to consumer that would result from
                     alternative design; $ cost of improved design)
                          1. When he proves the existence of a defect and that such defect was a proximate
                               cause of his injuries
                          2. The D has the burden to show that the benefits of the challenged designs
                               outweigh the risk.
                          3. The P can show, the product failed to comport with the ordinary‘s consumer
                               expectation when it was used in a foreseeable manner; or, show that the P was
                               proximately injured.
                iii. Factors:
                          1. Feasibility and cost of alternative designs, financial cost, adverse consequences
                               to the product or consumer if there is another design, gravity of harm,
                               probability of harm,
                iv. Negligence analysis
                          1. Learned Hand formula
                                    a. B<MxP
                                    b. Burden < magnitude x probability
                          2. Gravity of danger and likelihood of danger
                                    a. This is the right side of the Learned Hand formula -- this is the risk side
                                        of the equation
                          3. Burden
                                    a. This lines up with the other side of the negligence formula
         d. Why shift the burden?
                  i. D has better access of information; the D is privy to information in a way the P‘s are not
         e. Differentiate risk benefit analysis and negligence
                  i. We‘re looking at the product, not the conduct of the manufacturer
                 ii. Yet, there is a merging of this because the manufacturer is making the decisions about the
                     product.
                          1. In other words, in reality, the manufacturer is making the decisions.
         f. Was there a limitation in the Barker case? Is there a time when the consumer expectation test
            would be inappropriate?
                  i. 402A: consumer expectation test to show there was a manufacturing defect – when
                     product used in reasonably foreseeable manner, the product failed to comport with
                     reasonable expectation of the ordinary consumer in terms of safety
                 ii. The question is, when talking about a design of a product, how well does this work? Do
                     we know as to the safety of technical products as to form the expectations in the first
                     place as to how the product should work?
         g. Product here was a forklift mechanism
                  i. What does this case entail? It‘s looking at whether outriggers are necessary or other
                     design features necessary or rollers are necessary such that the product will remain stable

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Torts Outline                                                                    PRODUCT LIABILITY

         h.   Barker
                   i. 2 pronged test – the failure of a product to comport to ordinary reasonable expectation of
                       a consumer with regards to safety when used in a reasonable manner is one way to show
                       defect
         i.   Are you able to rely on experts when you‘re using consumer expectation test? And, if you need an
              expert, should that preclude you from using that test?
         j.   Why don‘t most jurisdictions follow Barker?
                   i. How can you have expectations about something that you know nothing about?


SOULE V. GENERAL MOTORS CORP. (CAL. 1994)

2.   Soule v. General Motors
         a. 2 arguments:
                     i. Manufacturing defect
                    ii. Design defect
         b. Trial
                     i. P used the ordinary consumer expectation test – reasonable expectation for the car to be
                        in accident
                    ii. D appealed and said the ordinary consumer expectation test shouldn‘t be used; wanted
                        the risk benefit analysis
         c. Ordinary expectation test
                     i. If the product is one within the common experience of ordinary consumers, it will
                        generally be enough for the injured P to show the circumstances of the accident and the
                        objective features of the product which are relevant to an evaluation of its safety
                    ii. Reserved for cases in which the everyday experience of the product’s users permits a
                        conclusion that the product’s design violated minimum safety assumptions, and it thus
                        defective regardless of expert opinion about the merits of the design
                   iii. No battle of the experts
                             1. Expert witnesses may not be used to demonstrate what an ordinary consumer
                                  would or should expect
                             2. Use of expert testimony would invade the jury‘s function
                             3. Limitation – no expert as to what the ordinary expectation should be, but can
                                  include experts on whether or not there was design defect
                   iv. A product‘s design may perform so unsafely that the defect is apparent to the common
                        reason, experience and understanding of its ordinary consumers. I such a case, a lay jury
                        is competent to make the determination
         d. Risk benefit test
                     i. ―It is difficult to conceive that an ordinary consumer would know what to expect
                        concerning the safety design of a commercial cotton picker‖
                    ii. Ordinary consumer of an automobile has simply ―no idea‖ how it should perform in all
                        foreseeable situations or how safe it should be made against all foreseeable hazards
                   iii. Battle of the experts
         e. Even thought the P was proceeding on the ordinary expectation test, all the evidence and argument
              went towards the risk utility analysis
3.   Restatement section 2B
         a. (2b) is defective in design when the foreseeable risks of harm posed by the product could have
              been avoided by a reasonable alternative design by the seller or other distributor and the omission
              of the alterative design renders the product not reasonably safe
         b. What is the relevance of the consumer expectation when using Restatement 3rd 2B?
                     i. Consumer expectation does not stand alone as a test of defectiveness
                    ii. Consumer expectations are relevant in determining defect, but they are one of many
                        consideration – its‘ not a stand alone test
         c. How is this different from the Barker test?
         d. Feasibility of alternative design


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Torts Outline                                                                    PRODUCT LIABILITY

                   i. This is a factor under risk utility test and has more prominent place in Restatement 2B
                      analysis

Harriet’s Household Cleaner Hypo
4.   Product Draino
         a. Defense argument
                   i. Unforeseeable misuse
                  ii. P needs to have an alternative design (page 204, comment f), according to Restatement
                      2B:
                           1. P can‘t just show an alternative design – there are certain factors to take into
                                consideration
                                    a. Magnitude and probability of the foreseeable risks of harm
                                    b. The instructions and warnings accompanying the product
                                    c. The nature and strength of consumer expectations regarding the
                                         product, including the expectations arising from product portrayal and
                                         marketing
                                    d. Consumer expectation is part of the 2B analysis. It‘s not separated
                           2. Factors relevant (that are articulated in Barker)
                                    a. The likely effects of the alternative design on production costs; the
                                         effects of alternative design on product longevity, maintenance, repairs
                                         and esthetics; and the range of consumer choice among products are
                                         factors that may be taken into account
         b. Restatement 3rd §2B vs. Barker
                   i. Different from Barker because the burden is on the P to come forward with the
                      alternative design
         c. Plaintiff argument
                   i. Dishwasher – ran through dishwasher and it‘s foreseeable that one would think it could
                      be used after ―sterilization‖
                  ii. Warning – limited warning because about only ingestion and exposure to skin
                 iii. Container packaging/shape – more foreseeable that it would be used as food storage;
                      mass distribution and small size to a pint; packaging looks like a Tupperware
         d. Consumer expectation test
                   i. At first glance, it may be the simpler test. But, how can you have an expectation of
                      safety when there was Draino with it? It might be easier for the P to argue, it might not
                      have been complicated for the D to come up with an alternative design. And, instead of
                      using the consumer expectation, you‘d be relying on the expert‘s opinions and testimony.
                  ii. Question – is this an unforeseeable misuse of the product? Foreseeable misuse of the
                      product?




VATOUR V. BODY MASTERS SPORTS INDUSTRIES, INC. (NH )
Risk Utility Test: No Need For  To Produce A Prototype Of A Safer Product
PROCEDURAL POSTURE: Plaintiffs, injured person and another, sued defendant manufacturer for products
liability, claiming theories of strict liability, negligence, and breach of warranty. The Superior Court (New
Hampshire) granted a motion for directed verdict in favor of the manufacturer. The plaintiffs appealed.
OVERVIEW: The injured person was hurt using a leg press weight lifting exercise machine and claimed
that the machine's safety stops were improperly designed or improperly placed on the machine. The trial
court held that the injured person's evidence was insufficient to support the strict liability and negligence
claims. The appellate court held that whether a product was unreasonably dangerous was to be decided by a
jury using a risk-utility balancing test. The burden was to present evidence regarding the risk-utility factors;
the injured person did not have the duty of proving a safer, alternative design. The injured person presented
sufficient evidence that the leg press machine was unreasonably dangerous pursuant to the risk-utility
balancing test. Although the injured person's expert did not specify exactly where the safety stops should


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                         Page 85 of 120
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have been placed, he did testify that the design was dangerous to the user, from an injury perspective. Under
New Hampshire law, the evidence was sufficient to establish a prima facie case. Because the injured person
did not appeal the trial court's decision to dismiss his negligence claim, he waived that issue.
OUTCOME: The judgment was reversed and the case was remanded.
Harriet says:  doesn‘t have to produce a prototype of a better product; and  can argue state-of-the art by
showing a better product already available in the marketplace.
Not all jdx have adopted Restatement 3rd Torts which eliminates the consumer expectations test. R3rd
Consumer Expectations factors are similar to the risk utility factors as denoted in Barker. Even if you find an
adequate warning, you can still find a design defect. If the dangers of the product could have been designed out,
even if there was a warning about the dangers, the Rest. 3 rd will allow a COA for design defect.



Thursday, January 27, 2005
Syllabus Changes
    1.    Only one fact pattern for the oral and the written.
    2.    The closing will be on a different fact pattern.
    3.    There will be 4 fact patterns: we get these on Monday 1/31
    4.    First presentation due on the 10th, then each week thereafter.
    5.    Each group will do either warning or design
    6.    Each group gets an hour
    7.    The written product is an individual effort.
    8.    It will probably a Senior Partner memo regarding strengths and weaknesses of the case.
    9.    I am in Group 2A
    10.   2/28 - 3/10 - Closing Statements
    11.   Feb 24 Written Project Due
    12.   Feb 3 class is spent meeting with groups to talk about projects.

Inadequate Warnings



BETHESDA V. JOHNS MANVILLE (N.J. 1982) [L]
State Of The Art Defense Is An Affirmative Defense And Does Not Obviate The Duty To Warn.
PROCEDURAL POSTURE: Plaintiffs appealed the interlocutory order of the New Jersey Superior Court,
Appellate Division, denying plaintiffs' motion to strike defendants' state−of−the−art defense.
OVERVIEW: Plaintiffs, workers with asbestos−related injuries or their survivors, filed personal injury and
wrongful death actions, which were consolidated, against manufacturers of asbestos products for failure to warn
of the dangers of the product. Defendant raised a state−of−the−art defense, arguing that the danger was
undiscovered and scientifically unknowable at the time of injury. Plaintiffs appealed the trial court's denial of
their motion to strike the state−of−the−art defense. The court reversed, and granted plaintiff's motion to strike,
holding that a state−of−the−art defense was not allowed in failure to warn cases. The court held that in strict
liability, manufacturers are imputed with unavailable knowledge because, as against innocent users, they should
bear the unforeseen costs of the product and because confusion would arise from attempts to determine
scientific knowability at trial.
OUTCOME: The court reversed and granted plaintiffs' motion to strike defendants' state−of−the−art defense,
holding that
unawareness of the dangers of asbestos was not a defense in plaintiffs' strict liability claims.
 Opposite view: By imposing on manufacturers the costs of failure to discover hazards, we create an
   incentive for them to invest more actively in safety research—Asbestos litigation: Bethesda v Johns-Manville
   (NJ 1982)


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Torts Outline                                                                       PRODUCT LIABILITY

    In Kuhnian view of world, it is unrealistic to assume that science is able to know what sort of research
    to do in order to foresee all possible or even probably risks.
 If in product use there is a duty to warn, which there is, and warning was incomplete, P did not assume the
  risk b/c incompletely informed.
    Adequate defense to duty to warn: I did not warn you, but you got the warning from somewhere else.
    There are so many avenues of information now, this can be very hard for P to disprove.
This involved asbestos litigation; began to realize that asbestos was bad. However, they thought that it was only
bad in the high concentration environments.
The defense is NOT a valid defense to say that ―they didn‘t know>‖ -- the so-called ―state of the art‖ defense.
The ∆‘s say that to deny such a defense makes them insurers of all risks, even those that could not be reasonably
known by the manufacturer.
Court says the mfg should absorb the loss rather than the victim; that is the whole purpose of strict liability.




FELDMAN V. LEDERLE LABORATORIES (N.J. 1984) [L]
The Failure To Include An Accurate Warning Of A Drug's Side Effects Could Establish Strict Liability.
Reasonableness Of The ∆’S Conduct Is A Factor To Consider In Determining Adequacy Of Warning. 
Must Prove That Mfg Had Actual or Constructive Knowledge Of The Risk In Order To Be Liable For
Failure To Warn. ACTUAL AND CONSTRUCTIVE KNOWLEDGE OF MFG MATTERS.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff challenged the judgment of the Superior Court, Appellate Division
(New Jersey), which held that defendant drug manufacture was immune from a strict liability claim for failing
to warn that an antibiotic drug it produced would cause teeth to discolor if taken by infants and young children.
OVERVIEW: As a young child, plaintiff took an antibiotic produced and manufactured by defendant.
Thereafter, plaintiff's teeth were permanently discolored due to taking the drug. Plaintiff brought a lawsuit for
strict liability against defendant, arguing that it had a duty to warn against potential side effects, including the
teeth discoloration. The trial court held that defendant was immune from strict liability for manufacturing
prescription drugs, and the jury found in defendant favor. Plaintiff challenged the ruling, and the appellate court
affirmed. Plaintiff then sought further review, and the court held that a manufacturer of drugs, who knows or
should know of the danger or side effects of the product was not relieved of its duty to warn. The court
determined that failure to include an accurate warning of a drug's side effects could establish strict liability. The
court also stated that plaintiff's claim was not preempted by federal law or by any regulations under the Food
and Drug Administration. The court reversed the trial court's verdict in defendant's favor, and remanded for a
new trial.
OUTCOME: The court reversed the judgment of the lower court, and held that defendant drug manufacturer
was not immune from strict liability claims by failing to include warnings about side effects of its products. The
court remanded the trial court's verdict in defendant's favor, and ordered a new trial.
(Feldman: identical to Brown; alternative must be scientifically knowable; ―state of the art‖ defense: we could
not have used that technology b/c at the time of distribution, that technology was not available)
 Must Prove That Mfg Had Actual or Constructive Knowledge Of The Risk In Order To Be Liable For Failure
To Warn. Knowledge of the danger matters; greatly restricts the Johns Manville case. The Court effectively
adopts a state-of-the-art defense subject to reasonable efforts and conduct by mfg to discover defects. Mfg
cannot just say ―I didn‘t know‖ and never conduct any research.


ANDERSON V. OWENS-CORNINGS FIBERGLAS (CAL. 1991)
There Can Be No Liability For Failure To Warn Of A Risk That Was Unknowable At The Time Of
Manufacturing.
CASE SUMMARY
PROCEDURAL POSTURE: Defendants appealed decision of the Superior Court of Los Angeles County
(California), granting plaintiff a new trial in his products liability action based upon defendants' failure to warn
of a risk of harm.


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Torts Outline                                                                      PRODUCT LIABILITY

OVERVIEW: Plaintiff sued defendants, the manufacturers of asbestos−containing products, claiming strict
liability in tort for failing to warn plaintiff of design defects. A jury found that defendants' products were not
defective; however, the appeals court granted plaintiff a new trial. Resolving a conflict between appellate
courts, the court held that knowledge, actual or constructive, was a prerequisite for imposition of strict liability
in plaintiff's case, where he alleged harm due to defendants' failure to warn of risks associated with their
product. However, defendants were entitled to present evidence at trial on the state of the art, i.e., evidence that
the particular risk of harm was neither known nor knowable by the application of scientific knowledge available
at the time of manufacture and/or distribution. The court affirmed and remanded for a new trial.
OUTCOME: The court affirmed the decision granting plaintiff a new trial on the issue of whether defendants
were strictly liable for failing to warn of a risk of harm associated with their product, but defendants were
permitted to present evidence as to the risk's knowability.
a. Anderson v. Owens-Corning Fiberglass, 1991: In evaluating whether a ∆ mfg. should have provided a
     warning about a risk associated with its product, evidence of the state of the art with regard to that risk at
     the time of manufacture is relevant. There can be no liability for failure to warn of a risk that was
     unknowable at the time of manufacturing.
b. If there is a design or mfg. defect, Π can recover regardless of if there was a warning.
           ii. Standard for warnings and instructions: adequacy is a negligence standard
c. Too many warnings can reduce the effectiveness of individual warnings, so the choice to be silent about
     some risks is a defense available to manf‘s.
d. Learned Intermediary: For prescription drugs, manf‘s are permitted to satisfy the obligation to warn by
     providing warnings to doctors. A doctor is a learned intermediary. The doc should then warn the patient.
          iii. prescription drugs dispensed by docs and pharmacists is a professional service… No STRICT
                LIABILITY LAW IN SERVICES! So you can‘t sue the doc for SL, only for negligence.
          iv. This doctrine can be extended to employers. Employers have control of the worksite, it has
                knowledge of the hazards associated with products it has purchased, and has the ability to instruct
                its employees on how to protect against those hazards.
                     1. oral communication may be more effective than written because of different experience
                           and education levels.
e. Heeding Presumption: Presume that the Π would have heeded a proper warning or instruction if the mfg.
     had provided it.
f. No Ability Standard: if you don‘t know of a defect, do you still have a duty to warn? Knowledge of the
     industry as a whole is relevant… what the industry knows, you have to warn about.
This is an affirmative defense and the burden of showing lack of knowledge lies with the ∆. Is the danger
obvious? (Question of fact for the jury) If yes, then maybe no duty to warn. But some jdx use consumer
expectation test:
―W/O warning, does the product fail to meet consumer expectations?‖ Or fail the risk utility test. Has the
warning reduced the risk to a reasonable level? Is the warning adequate? Substantive: disclosure of existence
and extent of risk. Procedural: How is it communicated: exlicitl comprehensible, clear, conspicuous. Harriet
says that a study shows that children react to poison warnings more appropriately when ―Mr. Yuck‖ frowning
face is used instead of skull and crossbones which kids associate with pirate adventures.


NOWAK V. FABERGE U.S.A. INC. (M.D. PENN. 1992)
The Question Of Whether The Product Had Sufficient Instructions And Warnings So As To Make The
Product Safe Was Also For The Jury To Determine.
CASE SUMMARY
PROCEDURAL POSTURE: A jury verdict was returned against defendant manufacturer in a products
liability case brought by plaintiffs, minor and her guardians, for injuries the minor sustained when she
punctured a can of hair spray. The manufacturer filed post−trial motions for judgment notwithstanding the
verdict and for a new trial.
OVERVIEW: The manufacturer claimed the jury should not have been instructed on the issues of a defective
valve system and inadequate warnings, and that the evidence did not support the verdict. The court denied the
motions for judgment notwithstanding the verdict and for a new trial. A defect in a product could be proved
with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable
secondary causes for the malfunction, and the resolution of those issues was for the jury. Only unforeseeable

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contributory conduct by the consumer would insulate the manufacturer from strict products liability, and the
question of foreseeability was for the jury. The jury was properly instructed on foreseeability both as to the
defect and proximate cause. The question of whether the product had sufficient instructions and warnings so as
to make the product safe was also for the jury to determine. There was sufficient evidence for the jury to
conclude that the warnings were inadequate, did not sufficiently inform the user of the possible risks in the
product, that different warnings could have made a difference, and that the warnings were inadequate.
OUTCOME: The manufacturer's motions for judgment notwithstanding the verdict and for a new trial were
denied.
Faberge – kids poured cologne on a candle to scent it and were badly burned
a) Defendant Faberge argued that the kind of harm that took place was totally unforeseeable and it is impossible
to warn about an unforeseeable harm
b) Court still required them to place warning labels on their cologne
To say that the risk was not foreseeable can be combated by saying ―hey, you have a warning that says ‗do not
puncture‘ so you know people are puncturing these cans.

402A presumes that if a warning was given, it would have been heeded.  must prove that there was a failure to
warn AND that the failure to warn was the proximate cause or a substantial factor in the harm.


Restat 3d of Torts: Products Liability, § 2
§ 2 Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective
in design, or is defective because of inadequate instructions or warnings. A product:
         (a)       contains a manufacturing defect when the product departs from its intended design even
                   though all possible care was exercised in the preparation and marketing of the product;
         (b)       is defective in design when the foreseeable risks of harm posed by the product could have
                   been reduced or avoided by the adoption of a reasonable alternative design by the seller or
                   other distributor, or a predecessor in the commercial chain of distribution, and the omission of
                   the alternative design renders the product not reasonably safe;
         (c)       is defective because of inadequate instructions or warnings when the foreseeable risks of harm
                   posed by the product could have been reduced or avoided by the provision of reasonable
                   instructions or warnings by the seller or other distributor, or a predecessor in the commercial
                   chain of distribution, and the omission of the instructions or warnings renders the product not
                   reasonably safe.

Plaintiff’s Conduct

  I.        STRICT PRODUCTS LIABILITY CAUSATION, DAMAGES, DEFENSES


DUNNE V. WAL-MART STORES (LA.CT.APP. 1996)
Reasonably Anticipated Users May Be Determined By Who The Mfg. Markets To.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff obese person appealed a judgment from the Twenty−Second Judicial District Court,
Parish of St. Tammany, State of Louisiana, which dismissed her claims against defendants, exercise bike manufacturer and
seller, for damages that she sustained when she was riding an exercise bike and it collapsed.
OVERVIEW: An obese woman was riding an exercise bike when it collapsed causing her to incur physical injuries. The
woman's tort action against the bike's manufacturer and seller was dismissed and the woman appealed. The court ruled in the
woman's favor as to the manufacturer. The woman contended that the trial court was manifestly erroneous in its finding that
use of the bike by an obese person was not a reasonably anticipated use of the product; the court agreed. The court held that
the manufacturer was not automatically absolved of liability by complying with the American Society for Testing and
Materials standards; that the bike was designed and marketed primarily for use by overweight people; and that the mere fact
that the woman was considerably overweight did not place her in a category of persons for whom the manufacturer had no
responsibility. The court held that the manufacturer's admission that the bike was intended to have a limited use proved that



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the manufacturer failed to exercise reasonable care by failing to place a limited use warning on the bike. The court held that
this failure to warn rendered the product unreasonably dangerous, causing the woman's accident and injuries.
OUTCOME: Judgment dismissing the obese woman's suit was reversed and the court ordered that be entered in favor of
the woman as to the bike manufacturer. Damages for physical injury and general damages were awarded plus interest from
the date of judicial demand until paid. The court assessed trial costs and appeal costs against the manufacturer.
DISSENT: Machine was made to handle 440 lbs. and not reasonably foreseeable that someone would weigh
more; reasonably anticipated use was not use by someone over 440 lbs. Mfg. not responsible for anticipating
every conceivable use of the product.
No need to warn if the danger is obvious. So, should a grossly obese person know that it‘s dangerous to use an
exercise bike? Court says no; fat people use exercise equipment. And she already had an exercise bike that
could handle her weight.
Misuse is a better defense than unanticipated user. Here, the mfg knew that their product was not appropriate
for 1.59% of the population. So, look for a warning. Warnings and consumer expectations are considerations
under R3T 3b.

DALY V GENERAL MOTORS (CA 1978)
Court Holds That Ca Will Switch To A Comparative Fault Regime Even Though Product Defect Is Strict
Liability.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiffs appealed from a judgment for defendants in the Superior Court of Los Angeles
County (California) in a products liability action.
OVERVIEW: Decedent, who was intoxicated and not wearing his seatbelt or using his door locks, died in a car crash after
his door opened on impact and he was thrown from the car. Plaintiffs, decedent's family, sued defendants, the car
manufacturer and distributor, in a products liability action for defective design of the door latch. The jury found for the
defendants, and the trial court entered judgment accordingly. On appeal, the court reversed because the trial judge
committed prejudicial error when he allowed defendants to introduce evidence without a limiting instruction that decedent
had been drunk and not using safety devices. The court also held that, in future, comparative negligence principles would
apply to strict products liability actions. Evidence of compensating design characteristics installed in a motor vehicle by its
manufacturer to offset design deficiencies is admissible.
OUTCOME: The court reversed the lower court's judgment because the trial court's admission of evidence, without a
limiting instruction, that decedent was intoxicated and had failed to use safety equipment constituted prejudicial error.

          V, driving Opel, hit fence, was thrown from the car and killed. D/GMC‘s defense
          was ―he was drunk; he failed to use his seat belt; he didn‘t lock the door.‖ P‘s theory
          was defective door latch. Issue was whether CPN principles should apply to S/L
          actions – court decides YES.
     B. CPN is a partial defense in S/L products liability, contrary to the R2T. P‘s damages in this case will
        be reduced because V negligently crashed his car, even though the door lock was defective.
     C. AOR is an incomplete defense, contrary to the R2T. Generally AOR in products liability involves a
        voluntary and unreasonable encounter with a known danger, out of stupidity usually; juries are allowed
        to consider this.

  Decedent killed when car he was driving hit divider and he was thrown from car. Sued D for defective door
  lock design. But, decedent was drunk, wasn‘t wearing seatbelt, and didn‘t have doors locked. Court holds
  that CA will switch to a comparative fault regime even though product defect is strict liability. This creates
  incentives on both sides, since D still can‘t avoid liability if the defective product is at fault.
  Assumption of risk defense given narrow construction
       Courts do not allow manufacturers to contract out of product liability
Driving drunk in the fast lane; no seat belt; door unlocked; out he goes.
Widow sues for future earnings.
Was the door handle a substantial factor and a concurring proximate cause?
GM decides to fight back
Is it negligence per se? Yes – violation of drunk driving and seatbelt laws
Is it ordinary negligence? Yes
Juries are stupid argument – p. 122.


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30 states have joined the comparative negligence parade
p. 123 – 3 states that decline CPN are statutorily restricted.
Logic, justice, fundamental fairness
Special verdict
So, the first thing that every  will do is try to find some fault with the π so as to invoke CPN.



Read the Richardson opinion: exam question: p. 116
SHOULD COMPARATIVE PRINCIPLES APPLY IN STRICT PRODUCTS LIABILITY ACTIONS? (Does
Li apply to strict liability)
See p. 119, 2b  contributory negligence may be a misnomer b/c it lacks the duty of care element.
Contributory negligence, comparative

Justice outweighs semantics
Pugsley: Economics is a big part of this analysis; the law tries to have a heart, but economics is important.
Harriet Says: Is it appropriate to consider ‘s fault when fault is less of a consideration in strict liability cases?
It‘s not bad; it just helps keep damages awards equitable by not punishing ∆ for bad behaviour of the .
Some jdx had ―pure comparative fault.‖ Ohters reduce  damage by her % of fault. Some jdx don‘t allow
recovery if  fault =50%; others if >50%.
Failure to discover a defect is not an element of comparative fault. That would undercut the entire theory of
product strict liability. P 394.
Buck v. Bell: Justice Holmes 5 generations of imbeciles is enough.

Justice Clark: separation of powers
Justice jefferson – UWLA founder
Mosk: read this dissent; Mosk says that these companies s/b held strictly liable
Mosk is a descendant of the Traynor school
Mosk says don‘t dilute the edifice of strict liability which was created by Dean Prosser and implemented by
Justice Traynor.

If the π had locked the door the case would have been a lot stronger for him
It was like comparative causation.

Dershowitz – abuse excuse.

In an exam always argue srict liabilty; no fault necessary. But it‘s tough to sell to a jury.

Historical strict liability
Rylands v fletcher

Consumer Products
This is our focus
Strict products liability


HARRIET’S HYPO 1/31/2005
See handout; summary of fat fanny who goes to gym, uses trampoline before gym opens and breaks her ankles.
Theories of recovery:
    a) Inadequate Warning:
              i) No waring about age, weight, etc.
    b) Mfg must have notice of risk
              i) This can be proved by the news articles, etc
Defenses
Factual Causation: factual cause has nothing to do with failure to warn.


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    a)  injury did not come from a failure to warn.  injury came from another pre-existing medical
       condition. Try to defeat failure to warn by showing pre-existing medical condition.
    b) She was having ankle problems before she went to the fitness center.
    c) She still has to prove that use of the trampoline caused or exacerbated her injury.

What is a proper warning? What puts the person on notice?
   a) Design Defect:
   Risk Utility
   Barker v Lull consumer expectation test as limited by Soule
   IN California,  must prove proximate cause which in Cal. Includes factual and proximate cause
   Burden shifts to ∆ to show that benefit outweighed risk
   ∆ Will argue that the $20 was a significant increase in cost
    will not be able to show defect
   i) State of the art defense might apply because the new improvements came out after the model she was
         injured on
   ii) Jumper runs into a problem that he warns against dangers to fat people is an admission that fat people
         are getting hurt.
   iii) Jumper advertised after the new model came out that his camp was state-of-the-art; but at that time he
         knew there was a newer, safer model out there.
   iv) ∆ will argue that  disregarded the rule to use gym only after 6AM and with supervision shows she
         doesn‘t follow warnings.
   v) Cotton v Buckeye: if you warn against everything; you warn against nothing.
   vi) Foreseeable Misuse: is the misuse foreseeable? If yes, then … it‘s a way for  to fight off ∆ of
         unforeseeable use.



SAFEWAY STORES, INC. V. NEST-KART (CAL. )

Π        ->                        +                 nescart
2 theories of recovery
We can all be negligent (But for the grace of God go I)
Hand formula
How much damage is
    Safeway v. Nest-Kart (CA 1978) - Comparative fault can apply to multiple Ds who are
        both strictly liable and negligent
For Wednesday, misrepresentation
Implied warranty of merchantability and fitness for particular purpose



VANDERMARK V. FORD
         a.   Vandermark sued Ford (manufacturer) and then to the retailer (vertical).
         b.   It wasn‘t obvious that the retailer would be on the hook – why? Because, they didn‘t put the car
              together. The customer just drives the car from the show.
         c.   But, retailers and manufacturers are part of the chain in distributing the product to the customer –
              in the chain of distribution. You have to pay the price if you‘re in on the action – part of the
              liability chain. It only seems reasonable.
         d.   What else can the retailer do to maximize the safety of the car? They can INSPECT the car –
              especially things that the customer would not think about doing.

         Manufacturer
          ↓

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         Retailer
          ↓
         Consumer


CRONIN V. OLSON
         e.   The guy is a driver and he‘s driving a truck with bread. The reason he was shoved through the
              front window was that hasp that holds the trays in place (supposed to keep the weight of all the
              bread) didn‘t‘ perform as expected. As a result, he got more injured than necessary.
         f. Clasp – the metal was porous. It was characterized as a manufacturer defect – not a design defect.
              The slag material used to produce this particular unit was certainly deficient. As a result, more
              damage accrued to the damage than necessary.
         g. Cumulatively, the three several jointfeasor (GM, Olson, Chase) – anyone alone could put up the
              bill. What kinds of implied warranty?
                     i. Merchantability
                    ii. Unsafe for intended use – sounds like warranty arguments are possible
                   iii. Would this be an implied reasonable assumption of the risk or unreasonable
         h. Chain of causation where defect led to a harm – you still have to prove both factual (but for) and
              proximate (foreseeable) cause
         i. Sufficiency of evidence
                     i. There was a modification
                             1. So, for res ipsa, it‘d be nonexclusive control
                             2. If modified, it‘d be to strengthen and not to weak
                    ii. What about the hasp was defective?
                             1. The P‘s expert testified it was ―defective‖
                   iii. ―Normal‖ driving condition and assumption of risk
                             1. There is no necessarily outside limit
                             2. The van was delivered with any warning that it would not remain safe after
                                  seven or eight years
                   iv. P failed to prove proximate cause
                             1. Even in strict liability, duty is established through distribution
                             2. For factual, legal causation – accident apportioned in components. The failure
                                  of hasp to perform as expected, that failure pushed through windshield.
                                  Different magnitude of injury if the hasp held. It‘s supportive of implied
                                  finding of the proximate cause.
         j. The Instruction on Strict Liability
                     i. They get the language from 402A and they talk about a product that was ―unreasonably
                        dangerous‖
                    ii. Why not use the ―unreasonable dangerous‖ language?
                             1. CA just didn‘t choose to adopt the unreasonable dangerous language
                             2. Confusion – unreasonably imports an element of negligence – fault
The jury will think it has to find more than it needs to in order to find recovery for the


5/10/2004
Exam tip: don‘t use the phrase ―contributory negligence‖;
Li v Yellowcab
 π v. 
 eliminated contrib. neg. = nonsuit; no longer talismanic
 Last clear chance; fellow servant rule; unreasonable implied (implied from conduct, not express writing)
assumption of risk (just a form of contributory negligence) all roll into new term ―comparative negligence‖

American Motorcycle
 π v. ama + viking club (expanded to multi-party ‘s whereas Li was a single )
 joint and several liability now takes first priority on multiple tortfeasors in multi-party claims

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this conflicts with comparative negligence b/c the most negligent party may have no money and you wind up
with a 1%  paying 99% of the damages.
 comparative equitable indemnification; wipes out pro-rata approach; applies to π, , and then among ‘s
So, #1 is joint & several for the ‘s
#2 is comparative equitable indemnification

Experts tell you how the accident happened. It‘s all about causation. This would fall under category 2:
substantial factors is the factual cuase; proximate concurring cause is the legal cause.

Joint and several liability will almost always raise the proximate concurring cause issue.

Look at settlement: it‘s always pre-verdict. So, if you settle for 50% because your experts figures out that you
are going to get hit for 80% if you go to trial; and then the jury comes back and the π wins, the other  is on the
hook for the 30% you settled your way out of.




DIXON V. BELL (K.B. 1816)
Defendant sends 13 yr. old girl to pick up gun. He asked the landlord to pull out the primer; which he did. But,
a few grains of powder escaped through the touch-hole. Thinking the gun not capable of shooting, the girl
played with it and accidentally shot a little boy, putting out his eye and some teeth. The boy‘s father sued the
defendant, claiming he should have ensured that the gun was safe. Reasonable care required. ―It was
incumbent on him who, by charging the gun, had ade it capable of doing mischief, to render it safe and
innoxious.‖




LANGRIDGE V. LEVY (EX. 1837)
Plaintiff purchased gun from defendant, gun dealer, who represented that it was high quality and made by a
specific gunsmith ―Nock‖. After a while, the plaintiff‘s son used the gun and it exploded, and he lost a hand.
Because the son was injuried, and the son had no privity of contract with the gun dealer, the court ruled against
the plaintiff. On appeal, the high court found that the gun dealer was guilty of fraud by false representation
because the father relied on the gun dealer‘s representation in allowing his son to use the gun. No ruling on
what might be the law if there had been no false representation of if the plaintiff had not relied on the false
representation. The fraud must be based upon a representation that seems reasonable. Was the other party
justified in relying on the representation? It was foreseeable that the father would let his son use the gun,
thinking it is safe. Son was too young to contract and under common law, married women could not contract.
Only the dad could buy the gun. So, the court wanted to leave some recourse for the real party-in-interest – the
son, who was legally precluded from contracting on his own.


WINTERBOTTOM V. WRIGHT, (EX. 1842)
Plaintiff is a mail carrier who is injured in a coach accident due to a defective wheel. He sues the defendant,
who is the manufacturer with a contract with the Postmaster to maintain the coaches. Plaintiff had no privity of
contract with the defendant. This is different from Langridge v. Levy, because:
―Here there is no allegation that the defendant knew that the coach was to be driven by the plaintiff. There,
moreover, fraud was alleged in the declaration, and found by the jury: and there, too, the cause of injury was a
weapon of a dangerous nature, and the defendant, was alleged to have had notice of the defect in its
construction. Nothing, of that sort appears upon this declaration.
No fraud or misrepresentation in this case; just a manufacturing/maintenance defect.

Fellow servant doctrine – if your servant injures someone else‘s servant, liability did not extend back to the
employers.

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LONGMEID V. HOLLIDAY (EX. 1851)
Longmeid bought a lamp from a merchant for his wife to use. The lamp blew up and injuried his wife. They
sued the retailer, but the court found no fraud or false representation. So, on appeal, the lower court award of
damages was overturned because without fraud, there was no cause of action against a retailer acting in good
faith.


TORGESEN V. SCHULTZ, (NY 1908)

Danger arose incident to use. Defect in bottle. If the defendant owes a duty to a class of persons. Plaintiff is
not a specifically contemplated user. Is a duty owed to this broad class of people? If yes, was the defendant

be encountered in normal use.


MACPHERSON V. BUICK MOTOR CO (NY 1916)

Wheel shattered and car crashed. Manufacturer bought the wheel from a reputable manufacturer. But because
Buick is the manufacturer of the car, they are responsible for the finished product. As such, they should have
tested the wheels. This case expanded the scope of liability of the manufacturer from things that are imminently
dangerous (guns, poison) to cover goods that are reasonably certain to place life and limb in peril when
negligently made, it is a thing of danger. Danger must still be imminent. P. 138 And, on P. 139, ―The principle
that the danger must be imminent does not change, but the things subject to the principle do change. They are
whatever the needs of life in a developing civilization require them to be.‖

At what point does the defect render the vehicle imminently dangerous? In the Devlin v. Smith case, the
scaffolding was up high, 90‘. In the xxxx painting case, the ropes were only 6‖ above the ground.. This case
had a different holding from Winterbottom because society changed and the laws were updated to reflect the
needs of an increasingly commercialized society.

The manufacture does NOT have a duty to protect against any possible injury. But, they are liable for
reasonably foreseeable danger faced by an average user under normal circumstances. Is the danger incidental to
normal use?




H.R. MOCH CO., INC. V. RENSSELAER WATER CO. (NY 1928)
Water company not responsible for lack of water at hydrant which led to plaintiff‘s warehouse burning down.
No privity of contract and no intention by city government to extend such liability to water company when
contract was entered. Fire started in another building and spread to the plaintiff‘s. Under state law, liability


imminently dangerous instrumentality. We are on new ground.


COHEN V. BROCKWAY MOTOR TRUCK CORP.(NY 1943)
The court goes back to the laundry list approach. Door handles do not make a vehicle imminently dangerous.
Nothing in MacPherson makes it obvious that the defective handle should be found dangerous. The courts have
to construct the statutes and render and opinion that is well-explained and makes sense.


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HOENIG V. CENTRAL STAMPING CO. (NY 1936)
Handle on coffee urn broke. Court found liability but chief justice of NY Court of Appeals dissented. He felt
that such a finding would open the floodgates of liability.




HENNINGSEN V. BLOOMFIELD MOTORS, INC. (NJ 1960)
Man bought Plymouth as Mothers‘ Day gift for wife. Car suddenly lost steering and crashed. Manufacturer
tried to assert that the dealer was responsible. Court held that under general rules of agency, manufacturer was
responsible regardless of franchise agreement in place with dealer. Conduit Theory – he bought it as a gift; the
wife was not incapacitated or unable to make the purchase herself. Breach of warranty of merchantability. But,
the plaintiff did not allege negligence in the manufacturing process. This was because they could not prove the
mechanical defect due to the car being totally destroyed. It was not breach of express warranty as in Hauter v.
Zogarts where the manufacturer guaranteed safety.

The court did not like the warranty language and the small print. The court in this case said that the clause got
into the contract because of attempted price fixing? (this makes no sense). Inequality of bargaining power.
Anyway, this case created the implied warrant of merchantability. But, a better argument would have been that
because of the slimy wording in the contract, and the apparent conflicts between the contract and the vehicle
inspection report, it appears as though there was no meeting of the minds and as such, there was no contract.
The warranty language is so arcane and unclear that it was not possible for the buyer to understand it.


insurance company terms applied only to scheduled CAB flights. The court rules that the insurance contract is
ridiculous because it references the CAB act, a document that no normal person carries around with them. The
insured and insurer had a meeting of the minds and they have to pay.


ordinary reasonable person would not have interpreted the contract in favor of the manufacturer. If they wanted
to disclaim personal injury claims, they should have just said so instead of hiding their intent behind legal
language.

Inequality of bargaining power is often used by the courts.

Court got around privity of contract issue by noting that the guy bought the car for his wife and the seller know
it. So, the court extended liability on a contract basis (as compared to a negligence basis in Winchester). There
are others just as likely to be injured by the defective part. Mfg. should know that the buyer is not likely to be
the one injured by a defective part, because they put in passenger seats. The cars are designed to carry extra
passengers; and it is advertised as such.

New rule – liability based upon warranty coverage. Express warranty coverage will be extended to those using
a vehicle with owner‘s permission. Implied warranties generally not extended unless it is a family member.


HAUTER V. ZOGARTS(CAL 1975)1

Manufacturer of dangerous golf machine advertised as ―absolutely safe‖ caused severe damage to 13 y.o. boy
under normal use. Liability assessed due to reasonable foreseeability of danger. Family brings suit on three
counts: 1) false representation; 2) breach of express and implied warranties; and 3) strict liability.


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―Absolutely safe‖ is the false representation. The company argued that they should have known that
―absolutely safe‖ was just advertising fluff. If I sell you a VW Bug and tell you that it won the Indy 500, would
you believe me? If Tiger Woods bought the golf gizmo and got hurt, could he have sued? Probably not
successfully. So, the kid should not have known better based on his experience because he had no golf
experience; that is why he bought the gizmo.


normal use it would not hurt you.

FN #8 is the key on PRIVITY.
The fact that Fred Hauter is not in privity with defendants does not bar recovery. Privity is not required for an
action based upon an express warranty. Although privity appears to remain a requirement for actions based
upon the implied warranty of merchantability, Fred Hauter comes within a well recognized exception to the
rule: he is a member of the purchaser‘s family

Implied warranty of merchantability – that the product will do what it‘s supposed to do under conditions of
normal use.

To sue for implied warranty of merchantability – you need to put the product to the use that the public usually
uses it for, and also which the manufacturer intends, and it doesn‘t work.

For a suit on breach of express warranty (also, misrepresentation) – doesn‘t do what it says it will do, e.g. the
ball won‘t hit you.

To recover on negligence - you have to show a defect, and that the defect was produced by a lack of reasonable
care, where the chances of harm are reasonably foreseeable.

With strict liability - you need a defect (usually, a design flaw) and proximal harm – don‘t really need
forseeability. Strict liability doesn‘t extend to a small category of people, including thieves. Some products and
practices are ultra-hazardous. Keeping a tiger, making nitroglycerine, dynamiting a tree stump in a residential
area. Using poison in an unsafe manner. If death or injury is proximately caused by your handling of the ultra
hazardous instrument, there is strict liability. Due Care objection is irrelevant. Strict liability in these cases.
Design defects, not usually manufacturing defects. Example: guy sues mower company for not including a
blade stop in the design. Negligence is presumed.

Negligence: My injury was proximately caused by a defect in the product. The product was defective due to
the negligence of the manufacture. In strict liability cases, you don‘t need to prove the negligence.

If you are experienced, you may have assumed the risk. Or, you might be contributorily negligent. Courts have
restricted assumption of risk as a defense to product liability. But assumption of risk is still a defense for
injuries sustained at sporting events or when participating in a sport; such as skiing.




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                   Torts Outline                                                                                 NUISANCE



                   NUISANCE
                   Intentional or otherwise actionable conduct that causes a substantial and unreasonable
                   interference with the use and enjoyment of land.

                   Definition
                      A.      PRIVATE - INVASION OF Π’S INTEREST IN THE USE OR ENJOYMENT OF
                              HIS LAND.
                            This is a tort that protects the interest of those who own or occupy land from conduct
                            committed with the intention of interfering with a particular interest – the interst in quiet use
Nuisance Per Se:            and enjoyment.
an act, occupation or
structure which is a        The ownership or rightful possession of land necessarily involves the right not only to the
nuisance at all times and   unimpaired condition of the property itself, but also to some reasonable comfort and
under any circumstances,
regardless of location or
                            convenience it its occupation.
surroundings.
                   B.
Nuisance Per Accidens:      PUBLIC - UNREASONABLE INVASION IN THE USE OR ENJOYMENT OF
those which become
nuisances by reason of
                            COMMON PROPERTY.
their location, or by       A public nuisance is a species of catch-all low-grade criminal offense, consisting of an
reason of the manner in
which they are              interference with the rights of the community at large, which may include anything from the
constructed, maintained,    blocking of a highway to a gaming-house or indecent exposure. PHILADELPHIA ELECTRIC CO.
or operated.                V. HERCULES. INC.
                            Actions are usually brought by some public attorney. A private individual cannot bring action
                            for public nuisance unless that individual's damages are different (i.e., significantly greater)
                            than others.
                            EXAMPLE: A dump truck illegally dumped several tons of debris onto a public road,
                            creating a public nuisance. Connie Commuter, who uses the road to travel to work, would not
                            have standing to bring a public nuisance claim because she has not incurred harm different
                            from the general public who are inconvenienced by the blocked road. Paula Property owner,
                            however, whose access to her property has been cut off by the pile of debris, does have
                            standing because her harm is different in kind than the general public.

                   C.       ELEMENTS COMMON TO BOTH PRIVATE AND PUBLIC NUISANCE
                            1. Liability Forming Conduct
                                a.   Intent - Desire Or Knowledge With Substantial Certainty That One's Use And Enjoyment Of
                                     Land Is Being Interfered With.
                                b.   Negligence - Failure To Exercise That Degree Of Care That A Reasonable Person Would
                                     Exercise Under Similar Circumstances.
                                c.   Strict Liability - Resulting From Ultrahazardous Activities, Even With Exercising Due Care.
                                         1. Interference Which Resulted Is Substantial
                                Usually found when there is an interference with the physical condition of the land, such as by
                                vibration or shock waves. It can also occur when there is a disturbance of the comfort or
                                convenience of the occupant, such as by offensive odors or excessive noise. Absent some physical
                                harm to the property, nuisance is more easily found when there is diminution in market value of
                                the property.
                                         2. Interference Is Of Such A Nature, Duration Or Amount As To Be
                                            Unreasonable

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Torts Outline                                                                                        NUISANCE

             Reasonableness involves a balancing test: Interference with π's interest is unreasonable if the
             gravity of the harm outweighs the utility of the conduct engaged in by the Δ. Factors considered in
             balancing the harm against utility include:
             a. The Amount Of Harm Resulting From The Interference;
             b. The Relative Capacity Of Π Or Δ To Bear The Loss;
             c. The Nature Of The Parties' Respective Uses;
             d. The Nature Of The Locality; and
             e. Who Began Their Use First.
             Harm must be of a kind that would be suffered by a normal person in the community; no
             hypersensitivities.
                      3. Causation (Actual and Proximate)
                      4. Remedies
             a. Tort action for damages
                  If nuisance is permanent in nature, the amount of damages is the depreciation in your property
                  value. If temporary, it is the value of the depreciation during the period of the nuisance.
             b. Injunction
                  Comes about when recovery in damages is inadequate.
                  Most courts do not take a categoric position on whether an injunction should be granted in
                  general. Instead, they engage in a process called "balancing the equities." In this process, the
                  courts take into consideration a number of different factors, including: (1) the character and
                  extent of the damage inflicted or threatened, (2) the good faith or intentional misconduct of
                  the Δ, or his efforts to avoid injury to the π, (3) the financial investment of each party, (4) the
                  relative economic hardship that will result to either from granting or denying the injunction,
                  (5) the interest of the general public in the continuance of the Δ's enterprise.
             c. Self Help (There Is No Time For Injunctive Relief)
                  The privilege of self-help to abate a nuisance is analogous to the privilege of using reasonable
                  force to protect the possession of land against trespass. It is open only to those whom the
                  condition is a nuisance. A public nuisance may be abated by a private individual only when it
                  causes or threatens special damage to himself, apart from that to the general public.
                  Factors to consider:
                  (1) Reasonable time after knowledge;
                  (2) Must notify the landowner (in theory)
                  (3) Reasonable force and reasonable manner;
                  (4) No personal injury or breach of peace;
                  (5) May include destruction of property
                      5. Defenses
             Use appropriate defense for type of violation (Intentional/Negligence/Strict Liability)
Monday, January 31, 2005

Causation
Cause in face: but for (R3rd § 26)
Proximate Cause: substantial factor (R3rd § 15)
Issues In Factual: How do you prove who mfg‘d the product? If the product was burned or destroyed or if the
    label was worn or torn?

Sindell (see supra)
Nuisance:




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Torts Outline                                                                                      NUISANCE

    1.   Main feature of nuisance = invaded interest in the use and enjoyment of land – may be intentional or
         unintentional (intentional where conduct is unreasonable under the circumstances, unintentional when
         conduct is negligent, unreasonable, reckless, or ultrahazardous, High Penn Oil)

    2.   Nuisance per se: occupation, or structure that is a nuisance at all times and under any circumstances,
         regardless of location or surroundings.

    3.   Nuisance per accidens: those which become nuisances by reason of their location, or by reason of the
         manner in which they are constructed, maintained, or operated.

    4.   Private nuisance: arises from unreasonable interference w/the use & enjoyment of land.

    5.   Public: an act that interferes w/general community interests or the comfort of the public at large.

    6.   Unreasonableness = in order to give rise to liability, nuisance must be substantial OR must be either
         intentional or unreasonable OR the conduct must be negligent or reckless.


California civil code sections page 713
Restatement of the law of torts page 717

ROGERS V. ELLIOT (1888) PAGE 719 (THE “QUASIMOTO MUST STOP” CASE)
Plaintiff lived across the street from a church. Due to an illness, loud noises could cause plaintiff to have
convulsions. The clergyman of the church was asked to not ring the bell, but he refused to refrain from ringing
it, causing it to be rung eight times on the next Sunday. The noise caused plaintiff to have violent convulsion,
which increased the illness and retarded his recovery. Plaintiff brought suit against the clergyman and the trial
court determined he was not entitled to recover. The matter was reported to the court for its determination and it
granted judgment on the verdict. It was not contended that the ringing of the bell for church services in the
manner shown by the evidence materially affected the health or comfort of ordinary people in the vicinity, but
plaintiff's claim rested upon the injury done him on account of his peculiar condition. Further, plaintiff could
not put himself in a place of exposure to noise and demand as of legal right that the bell should not be used.
Finally, in the absence of evidence that the clergyman acted wantonly or with express malice, that implication
could not come from his exercise of his legal rights.
Trespass on the case – indirect invasion of property rights. Early cases were not trespass absent physical
invasion. So, the courts came up with this cause of action as a substitute in case there was no physical invasion;
example noise trespass. Nuisance – the use of property which unreasonably intereferes with the quiet use and
enjoyment of another‘s land.
If everyone in the area is used to the nuisance, does that mean it is no longer a nuisance? Where do you look
for the ―reasonable person‖? coming to the nuisance could be a factor in the remedy. If the houses encroach on
the nuisance, the court will still find the nuisance a nuisance but the remedy will be different; for example the
community might have to pay to buy out the nuisance.


TEDESCKI V. BERGER (1907) PAGE 723
Plaintiff filed a complaint that sought to abate a nuisance of a bawdy house. Defendant filed a demurrer to the
complaint, and the trial court sustained the demurrer. On appeal, the court reversed the trial court's decision and
rendered a judgment overruling defendant's demurrer. Plaintiff argued that defendant, as the landlord of the
house, was allowing the activities that occurred in the house. The court held that a house of ill fame, or a bawdy
house, was a public nuisance. The court found that defendant could be found liable for the actions in the house
if the house was rented for the express purpose of conducting the illicit operations. The court concluded that the
trial court's judgment sustaining the demurrer filed by defendant was improper. House of prostitution is a public


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 Torts Outline                                                                                        NUISANCE

 nuisance and you can‘t bring an action for abatement. Only if it affects you as a private nuisance or if you can
 show that as a public nuisance you are suffering some harm different from all the rest of the public, then you
 can bring suit. Example: hospital dumping human waste products into a street you have to walk through every
 day. It‘s a public nuisance but it affects you more than the rest of the public so you have standing to bring suit.
 Landlord becomes liable if he somehow becomes involved in aiding or causing the nuisance.


 CULWELL V. ABBOTT CONSTRUCTION CO (1973) PAGE 727
 Plaintiff tripped over a chalk line (a nylon string) and was injured. Judge refused to instruct jury on public
 nuisance argument and refused to include plaintiff's requested jury instructions, holding information already
 included within other questions. A verdict was returned in favor of defendant and plaintiff appealed. Question
 raised on appeal was whether evidence adduced at trial was sufficient to support theory of recovery based on
 nuisance so that plaintiff was entitled to instruction upon nuisance theory. Court held plaintiff not entitled to
 instruction as plaintiff had provided insufficient evidence to support public nuisance claim. Plaintiff did not
 establish sufficient evidence that the frequency, continuity, and duration of the chalk line made it a public
 nuisance. Court held that temporary obstruction of sidewalks for improvement of property and enjoyment of
 premises are necessary and not unreasonable and thus not public nuisance. Court also held plaintiff not entitled
 to specific instructions where content was contained in other questions.
 Culwell v. Abbott Construction Co.- π tripped over a chalk line that Δ put up. An element of a nuisance is that
 the activity is in continuous use & duration. An activity which occurs only once, or a few times, is not a
 nuisance. If the activity is of a one time or few times deal, the theory of liability should be under negligence.
 You can always bring action under trespass or another theory of recovery. The chalk is not a nuisance b/c it is a
 temporary condition. No injunction or specific performance unless you can demonstrate that remedies at law
 are inadequate.
 Zoning Ordnances Can Always Be Challenged on Grounds That They Don‘t Conform To The Enabling
 Legislation. Can be a substantive or procedural defect.




 MORGAN V. HIGH PENN OIL CO. (1953) PAGE 737
  Appellees filed a civil action that sought to enjoin appellants from continuing its operation of an oil refinery and
  temporary damages. The trial court found in favor of appellees. The trial court denied appellants' motion for
  nonsuit. The supreme court reversed and ordered a new trial for both appellants. The court found, in appellant
  oil company's situation, that appellees had established an actionable nuisance claim at trial but in their
  complaint, appellees contended that appellants were negligent and careless in constructing and operating the
  refinery. Because negligence and private nuisance were distinct fields of tort liability, the court found that
  appellant oil company was entitled to a new trial. In appellant land owner's case, the court found that the action
  should have been involuntarily nonsuited because recovery could not be had in a civil action on the basis of
  matters alleged, but not proved, or proved but not alleged. Opinion by Sam Ervin of Watergate fame.
i. Morgan v. High Penn Oil Co. (1953) – defendant is an oil company that emits nauseating gases and odors
    which plaintiff‘s allege interferes with the use and enjoyment of their land. Defendant alleges that in order to
    establish nuisance, plaintiff needed to establish that defendant acted negligently. Defendant created a
    nuisance.
         1. Nuisance per se = occupation, or structure which is a nuisance at all times and under any
              circumstances, regardless of location or surroundings.
         2. Nuisance per accidens = those which become nuisances by reason of their location, or by
              reason of the manner in which they are constructed, maintained, or operated.
         3. Sic utere tuo ut alienum non laedas = every person should so use his own property as not to injure
              that of another  When one makes an improper use of his own property and in that way injures the
              land or some incorporeal right of one‘s neighbor.
         4. Main feature of nuisance = invaded interest in the use and enjoyment of land – may be
              intentional or unintentional (intentional where conduct is unreasonable under the circumstances;
              unintentional when conduct is negligent, reckless, or ultrahazardous)
         5. Intentional conduct is not accidental or unconscious

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  Torts Outline                                                                                         NUISANCE

         6.  Reasonableness = objective, substantial harm (social, not individual norms) Gravity of Harm vs.
             Utility of Conduct
       7. Nuisance reaches wholly lawful conduct and unlawful conduct.
       8. Restatement Sec. 825 = a person who intentionally creates/maintains a private nuisance is liable for
             the resulting injury regardless of the efforts to avoid injury.
ii. Public v. Private Nuisance:
       1. Private = arises from unreasonable interference with the use and enjoyment of land.
       2. Public = an act that interferes with general community interests or the comfort of the public at large.
       3. Per Se (at law) = liability no matter how reasonable the defendant‘s conduct. Abnormal,
             untrahazardous, and activities unsuited to their surroundings, and activities designated by statute as
             nuisances.

iii. Unreasonableness:
        1. An interference with use and enjoyment of land, in order to give rise to liability, must be substantial,
            OR it must be either intentional or unreasonable, OR the unintentional result of negligent, reckless or
            abnormally dangerous activity.

iv. Nuisance vs. Trespass:
        1. Nuisance protects the right of use and enjoyment and reaches conduct that doesn‘t physically invade
           the property.
        2. Restatement: asks about reasonableness of defendant‘s conduct separate from harm to plaintiff –
           looking for the greater social utility.


  D.          HOW TO ANALYZE A NUISANCE CASE
  A. Definitions
              a.   protects property owner‘s right to use and enjoyment of property – can be infringed without a
                   physical intrusion – right not absolute – must prove damages
              b.   nuisance per se: act or thing that is nuisance whenever it occurs (ie toxic waste)
              c.   nuisance per accidens (nuisance in fact): lawful activity that constitutes nuisance only because of
                   where or when it takes place (hog farm in a city)
  B. Nuisance Factors
              a.   balancing process – weigh reasonability of neighbor‘s conduct against harm to you (what it utility
                   of act to him?)
              b.   Gravity of Harm vs. Utility of Conduct
              c.   define ―unreasonable conduct‖: circumstances; fit & appropriate; not excessive; unnecessary for
                   accomplishing end (degree of care used by defendant important)
              d.   need nexus between injury suffered and land itself
  C. Checklist for Behavior
              a.   Utility – look at the benefits being derived from the conduct.
              b.   suitability for purpose
              c.   context
              d.   malice
  D. ―Coming To The Nuisance‖ Doctrine: cannot complain something a nuisance when person entered
     property knowing a nuisance – have to take premises in way you find them
  E. Priority Of Possession – important who was there first


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Torts Outline                                                                                         NUISANCE

F.   Causation: was D responsible for all of harm?
G. Hyper Sensitive Π - Special sensibilities of P
H. Analogize Cases by nature of conduct which has previously been found a nuisance
I.   Unintentional Nuisance
          a.   Was it negligent?
          b.   Was it ultra-hazardous
          c.   Was it reckless?

CARTER V. LEE (1973) PAGE 743
Plaintiffs brought an action against defendants, developer and city, for damages under Tex. Rev. Civ. Stat. Ann.
art. 7589a resulting from the diversion of water from defendant developer's land onto plaintiffs' land. The jury
found for defendants, finding that they had caused permanent damage to plaintiffs' land but that the land was
worth the same amount both before and after the diversion. On appeal, the court reversed and remanded, finding
that the failure to award damages was contrary to the great weight of the evidence. Testimony from both parties
showed land values higher than that found by the trial court and damage values of at least a certain amount. The
court further found that the jury instructions were ambiguous because the trial court referred to the "property in
question" rather than specifying the entire tract, the acres to be developed by plaintiffs, or the acre where the
water flowed. Finally, the court overturned the jury's finding that defendant city's actions were reasonable in
allowing the diversion, holding that the verdict, while based on a valid legal defense to an intentional diversion
action, was manifestly unjust under the facts of the case.
p. 747 In determining the gravity of the harm from an intentional invasion of another‘s interest in the use and
enjoyment of land, the following factors are to be considered:
     1. the extent of the harm involved;
     2.   the character fo the harm involved;
     3.   the social value which the law attaches to the type of use or enjoyment invaded;
     4.   the suitability of the particulare\ use or enjoyment invaded to the character of the locality;
     5.   the burden on the person harmed of avoiding the harm;
     6.
Piano teacher would cite Rogers and say he is a hypersensitive π. Should the whole world stop because he
sleeps during the day? What options are available to each party? Defense would cite private nuisance.

CHRISTOPHER V. JONES (1964) PAGE 753
The chemical corporation argued that the injunction was improper because it was issued to enjoin a completed
act and the landowner's remedy at law was adequate. The court disagreed and affirmed the trial court's issuance
of the preliminary injunction. The evidence showed that a well maintained plant was not supposed to leak
chlorine gas to the adjacent land, and that for at least two months gas fumes were detectable on the landowner's
property, and that even after the trial commenced chlorine gas was leaking on the chemical corporation's
property. Therefore, there was sufficient evidence showing that the chemical corporation was operating its plant
in an unnecessary and injurious manner, supporting the issuance of the order. The court also found that the trial
court did not abuse its discretion in ordering the preliminary injunction. The landowner offered the testimony of
experts, which testified that according to chemical tests, the chlorine level found in the leaves of damaged trees
was significantly higher on the land located closest to the chemical corporation.
Christopher v. Jones- Δ‘s plant was injuring π‘s property and π claimed a nuisance. Δ answered that π‘s
remedies at law were adequate so an injunction can‘t be granted. In defining a nuisance, there needs to be a
ongoing, continuous activity. If a nuisance is found, then an ongoing, continuous activity has been found. If
the activity that is ongoing & continuous is injurious to others (i.e. a nuisance), then an injunction can be
granted to stop the injury because remedies at law (damages) are not adequate to stop the harm.



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Torts Outline                                                                                      NUISANCE

Texas Rule: Civil Law Rule: Uphill owner enjoys servitude over all lower hill owners to let water run off.
But, if I‘ve done something to re-configure the land and caused the water to flow differently, then I‘m liable.
Could if be a trespass? Yes, unless it was naturally flowing. In-other-words, if it comes on your land due to my
actions then it could be a trespass.

E.       NUISANCE = INTENTIONAL AND UNREASONABLE.
Test for Injunction: will the behavior continue without the injunction?

F.       § 29.05 DEFENSES TO LIABILITY FOR PRIVATE NUISANCE
At one time, many courts recognized a defense called coming to the nuisance; plaintiff
who moved into the area after the offending conduct began was not entitled to recover.
Today almost all courts reject this defense. However, a number of other defenses (e.g.,
laches, statute of limitations) may apply.


SPUR INDUSTRIES, INC. V. DEL E. WEBB (1972) P. 759
(Coming to the Nuisance) TRESPASS & NUISANCE
Defendant owned cattle feedlots prior to the construction of plaintiff's nearby residential development. Plaintiff
sued defendant, claiming that the feedlots were a public nuisance because of the flies and odor that drifted
toward the development. The trial court permanently enjoined defendant from operating the feedlots. The court
affirmed the judgment of the trial court permanently enjoining the feedlot operations, holding that the feedlots
were both a public and private nuisance. A populous neighborhood was affected by the odor and flies, and the
public's health was affected. The court held, however, that plaintiff, having brought people to the nuisance to
the foreseeable detriment of defendant, was required to indemnify defendant for his costs of relocating or
shutting down the feedlots. The court, therefore, remanded the case for a hearing on the damages sustained by
defendant.
A. Coming to the Nuisance:  is not entitle to relief if he knowingly moves into an area of
   industrial/agriculture and ‘s property is damaged because of this.
         1.   EXCEPTION: Spur Industries, Inc. v. Del E. Webb Development Co., (Ariz. 1972): A legal and
              necessary business may become a public nuisance when carried on in a populous area where
              people are injured. When a residential developer encroaches on a lawful, noxious business, the
              developer must indemnify the business for any damages incurred by shutting down and/or moving
              the noxious activity away from the public.

B. Boomer v. Atlantic Cement Co. (NY 1970): Created doctrine of ―permanent damages‖granting
   injunction until  pays damages (as fixed by Court); balances the parties‘ interests by protecting  from
   threat of constant/future litigation, protecting them from cost of loosing business and reimbursing the  for
   past and expected future damages.
C. Comparative Nuisance: apportion the damages/cost according to the degrees of comparative responsibility
D. Trespass is a better legal basis for relief. This would injur Spur, but then Spur could argue prescriptive
   easement of the air above the homes. Once you take trespass out of the equation, as is the case with many
   nuisance actions, it is much more difficult to come to a rational decision. Doctrine of nuisance is that when
   you start relating it to non-phyiscal activities that affect quiet use and enjoyment, it could be anything.
   Reasonableness of the fear must be considered. Courts have wide range in equitable remedy due to history
   of courts of equity to get around rigid application of rules of law. Sometimes rigid rules of law can lead to
   absurd results.
E. No hard-and-fast rule if coming to the nuisance is a defense. More often it is a factor is determing remedy.
   Del Webb got the land cheap b/c of the feed lot and he should have taken some of the action to settle with
   Spur or buy them out.




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Torts Outline                                                                                        NUISANCE


NESTLE V. CITY OF SANTA MONICA (1972) PAGE 767
Appellant property owners instituted an action to recover for both property and personal injury damages caused
by respondent city's operation of an airport. Specifically, they claimed that vibration, fumes, and noise
emanating from jet aircraft caused damage to their property, interfered with the free enjoyment of their
property, and resulted in physical pain, suffering, and emotional disturbance. They asserted inverse
condemnation, nuisance, negligence, and zoning violations as theories of recovery. The trial court ruled that the
latter three counts failed to state causes of actions and found for respondent on the inverse condemnation count.
The court concluded that there was substantial evidence to support the judgment for respondent on the inverse
condemnation count. The court held that the trial court incorrectly dismissed the nuisance action because Cal.
Gov't Code § 815 did not bar such actions against public entities to the extent such actions were founded on Cal.
Civ. Code § 3479 or other applicable statutory provisions. The court allowed appellants to amend their causes
of action for negligence and zoning violations.
4 Claims for Relief
     1. Inverse Condemnation
              a.   Not trespass; noise level results in a taking of a property interest.
              b.   Court dismisses based on noises being ―occasional intrusions.‖
    2.   Nuisance
              a.
    3.   Negligence
              a.   Dismissed due to failure to state a claim.
    4.   Zoning Violations
              a.   Dismissed due to failure to state a claim.
Each new offense starts the clock on a new Statute of Limitations.
MARTIN & REYNOLDS – APPLY TO THIS CASE AND TO SPUR.



MCFARLANE V. CITY OF NIAGARA (1928) PAGE 789 (HEEL CAUGHT IN SIDEWALK)
Contributory Negligence as a defense to negligence nuisance. Π in a nuisance action must demonstrate
due care proportioned to the danger.
While walking along a driveway, plaintiff tripped and fell when she attempted to step onto a walk constructed
by defendant. She caught her heel against a fan-like projection that jutted out of the cement. The same condition
had existed for over two years. Plaintiff testified she had noticed the projection at other times. Her mishap
occurred after dark. Plaintiff brought suit against defendant alleging the creation of a nuisance. At the close of
trial, the judge instructed the jury that defendant could not avail itself of plaintiff's negligence. The verdict was
in favor of plaintiff and defendant appealed. The court reversed judgment because it found the jury instruction
given at the close of trial was incorrect in that it stated defendant could not avail itself of contributory
negligence as a defense against liability for nuisance. The court found plaintiff was under a duty to show care
proportioned to the danger.
Comparative Negligence – California – proportion the remedy to the proportion of contributory negligence.
Degrees of negligence – consider all circumstances in light of fairness.




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Torts Outline                                                                                           NUISANCE


G.       ABATEMENT OF A NUISANCE (1976)
**PURITAN HOLDING CO., INC. V. HOLLOSCHITZ (NY 1975)
Ugly houses are an unreasonable interference with the quiet use and enjoyment of neighbors land even
though not a trespass.
Puritan Holding v. Holloschutz (NY, 1975)—plaintiff owns apartment building across the street from defendant’s building;
says  building became abandoned and was a nuisance and the he suffered damages from this. Holding: When a
building is abandoned and allowed to become a nuisance, damages may be recovered from adjacent owners for the
difference in property values before and after the existence of the nuisance.
A building owner claimed that it had sustained damages as a result of the condition of a neighboring abandoned
building. The building owner filed a private nuisance action against the abandoned property owner. The
uncontroverted proof at trial was that the abandoned property owner's building had deteriorated, become
unsightly, and been taken over by derelicts, causing a deterioration in values on the block. The court found in
favor of the building owner and held that the abandoned property owner's building constituted a private
nuisance. The court also found that the building owner was entitled to damages in an amount equal to the
difference in the market value of the building before and after the nuisance. There were thousands of buildings
abandoned throughout New York City, and some of them did not constitute a nuisance. However, the
abandoned property owner's building had been abandoned in a location where property owners were actively
trying to maintain and upgrade the housing standards. Also, the abandoned property owner had clearly violated
New York City, N.Y., Admin. Code § C26-80.0 by not providing continuous guarding or sealing of the vacant
building.
Court defines nuisance as: The class of wrongs which arises from the unreasonable, unwarrantable, or
unlawful use by a person of his own property, and which produces such material annoyance, inconvenience,
discomfort or hurt that the law will presume a consequent damage.
Doesn‘t rise to the level of trespass but is a nuisance cuz interferes with the quiet enjoyment and use of prop as
evidence by depreciating market value.
Rule: Ugly houses are an unreasonable interference with the quiet use and enjoyment of neighbors land
even though not a trespass.
Rationale: If there was no neighborhood beautification program, then the result may have been different;
probably because there would be no damages.
Public nuisance that affects you specially, then you can bring action; otherwise it‘s up to the city attorney.

HAMMONDS V. CENTRAL KENTUCKY NATURAL GAS CO. (KY 1934)
Where the fugitive resource is captured, then re-released, the capturer has not been held responsible for
damage done through the re-release. Hammonds, the slant drilling oil case.
A. Right to Exclude & Use
   1. The right to exclude does not involve an interference of other people‘s rights: if you want to come onto
       my property and I do not want you there, no ones rights get violated.
       a. Trespass Statutes do not require that you show that the person‘s presence is harming you—you
            can exclude them without such a showing. Strict liability tort and entitled to an injunction by the
            mere fact that the person is on the your property.
            1) Hammonds v. Kentucky Gas Company: Gas Company pipes went through cavern under Ms.
                Hammonds‘ house. Hammonds sued for trespass:
                a) Strict Liability Tort: Hammond won just by the mere fact that the gas was under her
                      house on her property (no proof of harm required).
                b) Balancing Test: Reasonableness standard used for smoke coming onto Hammonds land
                      from the Gas Company.
   2. The right to use your property the way you want requires a balancing of your rights with the rights of
       others. If I can use my property in the way I want, it may very well limit the way another person uses
       their property.

After exhausting the gas from a leased field, the company brought in vast quantities of gas from distant fields
and put it by force through its previously drilled wells into the vacated underground reservoir, withdrawing it as

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                               Page 106 of 120
Torts Outline                                                                                       NUISANCE

desired. The adjacent property owner brought a trespass action against the company alleging that the gas was
placed in or under her property without her knowledge or consent. The trial court found for the company and
the court affirmed the judgment. The court found that the company had acquired title to the gas but when it
restored it to its original natural status by being placed in the reservoir, taking the place of other gas which once
occupied that same subterranean chamber, the company was no longer in possession of the gas and therefore,
lost its title to the gas. Therefore, if the gas wandered into the adjacent property owner's land, the company was
not liable to her for the value of the use of her property, for the company ceased to be the exclusive owner of the
gas, it again became mineral ferae naturae.
So, if the Gas Co does not own the escaped gas, what is to prevent the homeowner from drilling their own well
     and trapping all the escaped gas? Would the Gas Co. then try to re-assert its ownershp of the gas? I think
     the π should have brought an action for negligence as well. This case is a recap of the entire course. The
     Gas Co. no longer controls the gas, so the boundary is blurred and it‘s not a trespass. Once the gas escapes,
     it is unowned again. Under Keeble & Hickeringill, she would be entitled to exclusive access to the gas.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 107 of 120
Torts Outline                                                                                 DEFAMATION



DEFAMATION
Communication that damages the reputation of another. It tends to diminish the respect, good
will, confidence or esteem in which he is held, or to excite adverse feelings about him.

  A.       DEFAMATORY STATEMENT CONCERNING Π
     1. A Statement Is Defamatory If It Would Tend To Lower Π’s Reputation In The
        Community (MAJ.) Or Hold The Π Up To Hatred, Scorn Or Ridicule (MIN.)
         Cannot be about a dead person. However, a statement about a dead person could defame a living
         person. A corporation or other business association which is a recognized legal entity also is capable of
         being defamed (ie: defamation casts an aspersion upon its honesty, credit, efficiency or other business
         character).
     2. The Statement Must Be Understood By Another In The Defamatory Sense
     3. The Statement Does Not Have To Be Believed
     4. Name Calling, Abusive Language, Ambiguous Statements, Jokes Or Jest Are Not Sufficient
         Gestures or conduct may be sufficient.
     5. The Statement Must Be About The Π
         The test is whether the reasonable person who knows the π would recognize the π.
     6. Words Are To Be Interpreted In The Sense In Which They Are Reasonably Understood
        And Are Presumed To Have The Meaning Ordinarily Attached To Them
         If the statement is capable of different meanings, (more than one) it is a jury issue to determine the
         meaning; if not,
         it is up to the court.
     7. Conveyance Of Defamatory Meaning
        1. On The Face Of The Statement – All of the information you need for the defamation is
           contained in the statement itself.
        2. Inducement – Extrinsic facts, because of which the words were reasonably understood to
           convey a meaning defaming the π. (Need more information)
        3. Innuendo – An allegation of the particular defamatory meaning conveyed by the words.
           (Need more facts)
        4. Colloquium – A formal allegation that the words were spoken of and concerning the π;
           reference to π need not be by name, but statement must be reasonably understood to be
           about π. (Need additional information to determine who the π is)
             Both the colloquium and the innuendo must be reasonable in the light of the words spoken and
             the facts pleaded in the inducement. If the words, together with such facts, do not fairly support
             the defamatory meaning pleaded, no cause of action is made out.
     8. Statement Regarding Groups Of People
        1. Large Groups – If large enough group, no individual member is defamed.
        2. Small Groups – If it's small enough, then each member can sue.

B.       FALSITY
     1. A statement is false if it is not substantially true; if there is a material change, it is not
        substantially true.
     2. There is no such thing as a false opinion but if the opinion asserts by implication the
        existence of facts supporting the opinion which are false the statement can be defamatory
     3. Factors to consider for fact vs. opinion


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 108 of 120
Torts Outline                                                                                 DEFAMATION

           a. Precision and specificity: times, places, people present, etc.
           b. Verifiability: what opinion is verifiable?
           c. Literary context: Front page of the newspaper, vs. Op-Ed
           d. Public context : Casual conversations, vs. formal.
     4. Burden of proof
         If a public figure, official or statements of public concern, those bringing suit have the burden of proof.
         (π must show falsity)
         For other individuals, it's in the defenses. (Burden of proof is on Δ)

C.       FAULT
     1. At common law if the statement was defamatory malice was implied (strict liability standard)
         You have to look at what kind of person the π is and what statements were made.
     2. N.Y. TIMES V. SULLIVAN (1964)
        (1) Recognized need to protect First Amendment rights and created a greater protection for
            those who made statements about public figures or officials
             Supreme Court ruled that πs who are public officials must prove actual malice, meaning that Δ
             either actually knew the statement was false, or had a high degree of awareness of its probable
             falsity or entertained serious doubts about its truth. This test is entirely subjective: π must prove
             the Δ actually knew that statement was false, or at least entertained serious doubts about its truth.
             It is not sufficient for π to prove that a reasonable person would have doubted the statement or
             investigated it.
             a) Public Figure: Nongovernmental persons who are in positions of power, influence,
                etc.
                  (1) Limited Purpose Public Figure
           b) Public Official: Policeman, DA, Governor, Legislator, etc.
     3. Public figure or official vs. Media or private Δ
           a) π must prove malice i.e., Δ knew the statement was false and made it anyway or Δ
                maintained a serious doubt about whether the statement was true and made it
                anyway.
                  (Scienter; intent)
                  (1) Negligence or acting out of spite are not sufficient
                       You have to know it's false or maintain serious doubts about its truth.
     4. Private individual vs. Media or private Δ
            a) Individual states set the standard so long as it is not a strict liability standard
                (1) Majority - Negligence
                (2) Minority - Malice
            b) Possible exception for private individual vs. Media Δ and subject matter is not of
                public concern
                  A state may impose strict liability against a media Δ if private π (DUN & BRADSTREET V
                                                                                      D
                  GREENMOSS BUILDERS)

D.       PUBLICATION
     1. Defamatory words must be published to at least one person other than the π who understands
        the statement as being defamatory and the Δ must have intended to publish or was negligent
        in publishing.
         Must be overheard. Speaking w/family members included.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 109 of 120
Torts Outline                                                                                  DEFAMATION

         For a communication to a third party to be a publication, it must have been done intentionally or by a
         negligent act. Thus, there is no publication when words are spoken by Δ directly to π, with no reason to
         suppose that any one can overhear, but they are in fact overheard by a concealed listener.
         HINT: Be careful to distinguish fault with respect to the act of publication from the strict liability with
         respect to the defamatory nature of the statement. e.g.: If a newspaper mistakenly includes π's name in
         a list of persons arrested in a raid on a house of prostitution, the publication would be regarded as
         intentional because the paper desired that the article be read by third persons.
     2. Repetition Of Defamatory Statement
         Every repetition is another publication. If you are in a situation where you know it may be republished,
         you could be liable for subsequent republications.
     3. Single Publication Rule
         All copies of a single publication are considered one publication.
     4. Form Of Publication
        1. Libel - written or printed words or by embodiment in physical form or any other form of
           communication which has potentially harmful qualities associated with printed or written
           words (long term)
        2. Slander - publication of defamatory statement by spoken words transitory gestures or
           other communications not included in libel (less permanent in form)
                Most statutes provide that any broadcast defamation is to be treated as slander, whether there
                is a script or not.
               California statute calls it slander rather than libel.

E.       DAMAGES
1)   Compensatory (General & Special)
2)   Punitive
3)   Nominal
4)   Libel
     a) On its face (no innuendo, etc.)
         i)   Can recover general damages without proving special damages
     b) Per quad or by innuendo
        i) Split Of Authority
            (1) some jurisdictions π can recover generals without proof of specials
            (2) other jurisdictions π must prove specials to get general damages unless
                (a) Serious Crime
                           Crime must be one involving ―moral turpitude,‖ defined as ―an inherent baseness or
                           vileness of principle in the human heart.‖ It is not the categorization of the crime, but
                           rather the character of the act charged.
                  (b) Loathsome Or Communicable Disease
                           This began with VD and leprosy, at a time when both were regarded as permanent,
                           lingering and incurable. Could include AIDS in this category.
                  (c) character incompatible with business, trade or profession
                           Limited to defamation of a kind incompatible with the proper conduct of the
                           business, trade or profession or office itself. Thus, it is actionable without proof of
                           special damage to say than an attorney is a shyster.
                  (d) serious sexual misconduct
                           Principal application of this has been a charge imputing unchastity to a woman.
5) Slander
   a) Action does NOT lie without proof of special damages

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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 110 of 120
Torts Outline                                                                                  DEFAMATION

     b) Exception for slander per se
        i) Serious Crime
              Crime must be one involving ―moral turpitude,‖ defined as ―an inherent baseness or vileness of
              principle in the human heart.‖ It is not the categorization of the crime, but rather the character of
              the act charged.
         ii) Loathsome Or Communicable Disease
              This began with VD and leprosy, at a time when both were regarded as permanent, lingering and
              incurable. Could include AIDS in this category.
         iii) Character Incompatible With Business, Trade Or Profession
              Limited to defamation of a kind incompatible with the proper conduct of the business, trade or
              profession or office itself. Thus, it is actionable without proof of special damage to say than an
              attorney is a shyster.
         iv) Serious Sexual Misconduct
              Principal application of this has been a charge imputing unchastity to a woman.
6) Constitutional Limits
   a) Public official or figure vs. Media or private Δ
      i) π must prove malice (knowledge of falsity or reckless disregard); i.e., no constitutional
           restrictions and damages are recoverable per above
              If fault (malice), no constitutional protection; damage as listed above
     b) Private individual vs. Media or private Δ
        i) Majority - Negligence must be proven
              If state rule, there is a constitutional protection and there is no presumed general damage. You
              have to prove injury:
              (1) Out of pocket losses; (2) Impairment of reputation; (3) Personal humiliation; (4) Mental
                    anguish and suffering
         ii) Minority - Malice must be proven
              If the state standard is malice, no constitutional limits are placed on damage recovery.
     c) Exception
     d) If Standard Is Strict Liability
         Private individual suing media about matters of private concern, presumed general damages.
         i) ?

F.       DEFENSES
1) Absolute Privilege
     Where there is absolute privilege, Δ cannot be held liable for defamatory statements, even those made
     negligently, deliberately, or even maliciously. Once absolute privilege is found to exist, the only limitation
     on it is that what is said must be found to have some reasonable bearing upon correlation to the subject of
     inquiry.
         Exam Note:
         Watch out for absolute privilege where statements made are NOT related to proceedings. The BAR
         likes to test on this!
     a) Judicial Proceedings – if statement is related to proceedings, there is an absolute privilege
     b) Legislative Proceedings – if statement relevant to those proceedings.
     c) Executive Communication – at the federal level, if it's related to policymaking; state and local
        government officials: as long as it's related to their duties and there is no malice.
     d) Consent of π – the principles governing consent to intentional torts applies here too.


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                            Page 111 of 120
Torts Outline                                                                               DEFAMATION

   e) Communications Between Spouses – marital communications are privileged as a matter of
      policy.
   f) Political Broadcasts – like those under the Fairness Doctrine.
2) Qualified Privilege - privilege to make defamatory statement to protect legitimate interests
    As long as the person making the statement acted reasonably
    a) Interests Of Publisher
        A person has a qualified privilege to make defamatory statements in a reasonable effort to recover
        goods stolen from him; to collect money due him or prevent others from collecting it; to protest against
        the mismanagement of a concern in which he has a financial interest; to protect his own business
        against unfair competition; or to defend against any other legitimate interest.
    b) Interest Of Others
        The privilege exists when the publisher reasonably believes that there is information that affects a
        sufficiently important interest of another party and that he publishes the information under a legal duty
        or in accordance with ―generally accepted standards of decent conduct.‖
    c) Common Interests
        The existence of a common interest between the publisher and the recipient gives rise to a privilege to
        speak regarding the common interest.
    d) Communication to one acting in the public interest




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                        Page 112 of 120
Torts Outline                                                                   INVASION OF PRIVACY



INVASION OF PRIVACY

Definition - interference with the right to be left alone.

I.      Four types of privacy invasions
  A.      APPROPRIATION OF Π’S LIKENESS FOR Δ’S COMMERCIAL BENEFIT OR
          ADVANTAGE
     1. Elements
        a. Unauthorized Use By Δ Of π‘s Name Or Likeness For A Commercial Purpose
             It is the value of π's name that must be appropriated, rather than the name itself. Thus, there is not
             liability for the mere use of the same name as that of the π.
             One who intentionally seeks publicity, or puts himself in the public eye, as in the case of an actor
             or professional ball player, is often held to become a public figure and to have no right to
             complain.
        b. Causation (actual and proximate)
        c. Fault (Liability Lies Under Either Theory)
             (1) Negligence
             (2) Intentional
        d. Damages
             For celebrity: reasonable value of that person's name or likeness. There is no liability for the mere
             use of the same name as that of the π.
        e. Defenses
             1.   Consent
             2.   Newsworthiness

B.      UNREASONABLE INTRUSION
        Unreasonable And Highly Offensive Intrusion Upon Your Peace Of Mind Which You Have
        Gained Through Your Seclusion
     1. Elements
        a. Highly Offensive Intrusion Into The Seclusion Of Another
             Could be physical: trespass; intentional infliction of emotional distress. Physical intrusion upon
             seclusion has been recognized as a distinct form of invasion of privacy; obscene
             phone calls may create liability for intentional infliction of emotional distress.
        b. Causation (Actual and proximate)
        c. Fault (Generally intentional)
             1.   Intentional
             2.   Negligence
        d. Damages (don't have to prove specials)
             1.   Emotional distress
             2.   Mental anguish
        e. Defenses
             1.   Consent




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 113 of 120
Torts Outline                                                                    INVASION OF PRIVACY


C.       PUBLIC DISCLOSURE OF PRIVATE FACTS
     Unwarranted publication of the intimate details of one‘s private life that are outside the realm of
     legitimate public interest
     1. Elements
         a. Public disclosure
              In writing or orally
         b. Disclosure must be of a private fact
              Not public information
         c. Publication must be highly offensive to a reasonable person
         d. There must be no newsworthy or legitimate public interest in having the information
            made public
              Courts liberally construe this; it could be remotely newsworthy.
         e. Causation (Actual and Proximate)
         f. Damages (Don't have to prove specials to get generals)
         g. Defenses
              1.   Consent
              2.   Newsworthiness & Public record are absolute privilege
                   Under the common law, there has normally been no liability for the disclosure of facts that are
                   a matter of public record, since they are already public.

D.       FALSE LIGHT IN THE PUBLIC EYE
     Invasion of privacy by casting π in a false light in the public eye. (You have said something untrue, but it is
     not damaging [defamatory]) One who intentionally seeks publicity, or puts himself in the public eye, as in
     the case of an actor, a professional
     baseball player, an explorer or an inventor, is often held to become a ―public figure,‖ and to have no right
     to complain of a publicity that reasonably bears upon his public activity.
     1. Elements
         a. Public disclosure
              One person is sufficient
         b. Publication is offensive to a reasonable person
              Must be highly offensive.
         c. Falsity
              Minor inaccuracies are not enough.
         d. Fault (Like TIMES V. SULLIVAN)
            1. Public official/figure
                   (a) Must prove actual malice
              2. Private figure
                   (a) Negligence or
                   (b) Malice
         e. Causation (Actual and proximate)
         f. Damages (Don't have to prove specials to get generals)
         g. Defenses
              1.   Truth
              2.   Consent




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 114 of 120
Torts Outline                                                                              CIVIL RIGHTS



CIVIL RIGHTS

  A.      DEFINITION –
Every person who under color of state law subjects or causes to be subjected any person to
the deprivation of any right, privilege or immunity secured by the U.S. Constitution shall be
liable for damages. 42 U.S.C. §1983

B.      ELEMENTS
        1. That The Proper Δ Acted Under Color Of State Law
             The state is not a proper Δ; you must name an individual employee.
             Local municipalities are ―a person‖ and can be Δ.
                      6. Violation Of A Federally Protected Right
             Due process; voting; search & seizure; free speech; any right protected by federal law.
                      7. Intent/Fault
             Negligence is NOT enough; you need intent.
                      8. Causation (Actual And Proximate)
                      9. Damages
             1. Specials or generals are available
             2. Punitives are available
             3. Prevailing party may recover attorneys fees.
                      10. Defenses
             Judges, prosecutors, etc., all have absolute immunity.
             Police, etc., have qualified, good-faith immunity.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                        Page 115 of 120
Torts Outline                                                            MISUSE OF LEGAL PROCESS



MISUSE OF LEGAL PROCESS

  A.       MALICIOUS PROSECTION
         Wrongful institution of criminal proceedings used as a means of causing harm
     1. Elements
         a. Criminal proceeding is instituted or continued by the Δ against the π
             The DA is the only one who can institute, besides civilian witness and police
         b. Termination of the proceeding in favor of the accused
             Plea bargain, generally, are not victories. If DA withdraws prosecution, may or may not be
             actionable. If it speaks to the merits, maybe. If the star witness dies, maybe not.
         c. Lack of probable cause
             No reasonable grounds for the party to be charged. If there is a reasonable belief, then you have
             probable cause. (Includes mistake of fact or mistake of law).
         d. Malice/Improper Purpose
             Acted out of motives of ill will or improper purpose.
         e. Causation (Actual/Proximate)
         f. Damages
             Loss of reputation; mental suffering
             Special damages; don't have to prove before generals.
         g. Defenses

B.       WRONGFUL CIVIL PROCEEDINGS
     1. Elements
         a. Civil suit instituted or continued by the Δ against the π
         b. (π Must Prove) Favorable termination of the civil proceeding
             If settlement says "no party admits fault" it may not be favorable. Same applies to dismissals.
         c. Lack of probable cause
             Reasonable belief in the success or failure of your case.
         d. Malice
             Must show there is a motive of ill will OR lack of belief of success OR that it is brought for some
             other purpose OR abuse of power.
         e. Causation
         f. Damages
             Minority - Specials before generals [not California]
             Majority - No need to prove specials before generals [      California]
             Punitives are available.
         g. Defenses

C.       ABUSE OF PROCESS
Legal process is set forth in the proper form, with probable cause and possibility of success but is
used for an ulterior purpose for which it was not designed
     You want to inconvenience the π as much as you can.
     1. Elements
         a. Regularly issued process


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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                        Page 116 of 120
Torts Outline                                                       MISUSE OF LEGAL PROCESS

             Summons & Complaint
        b. Motivation behind process is not justifiable
             Intent for nonjustifiable harm
        c. Party using the process is seeking an advantage which is outside the legitimate ends of
           the process
             Inconvenience the heck out of the Δ's business.
        d. Damages
             Don't need to prove specials to get generals.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                              Page 117 of 120
Torts Outline                                                                   MISREPRESENTATION



MISREPRESENTATION

Definition –
Tort designed to protect the economic interest of those who are induced to enter into
transactions as a result of someone‘s falsehood.
1) Elements
   a) False Representation Of A Material Fact
        False – words, or failure to use word. (Silence is generally not actionable, but, if you learn new facts or
        information, you have an obligation to divulge).
        Representation – Conduct which is designed to mislead; ambiguity alone may not lie.
        There is no false opinion. False opinions are not actionable.
    b) Liability Producing Conduct
        a.   Intent (Fraud or Deceit)
             Knowledge of falsity or reckless disregard for the truth.
        b.   Negligent
             Majority allows; Minority does not.
             Duty to seek the truth before you speak. Duty to anyone whom the Δ knew would rely on the
             information.
        c.   Strict liability
    c) Δ‘s Representation Induces Π To Rely And To Act Or Refrain From Acting
        Have to show π went one way, based on the representation
    d) Reliance Is Justifiable
        Reasonable person would rely
        Can't rely on a known falsity; or where inspection would discover.
    e) Damages
        i)  Loss of Bargain: difference between actual value and value as represented. (The theory is to
            compensate the π as though the transaction had been carried out as represented.) Majority
        ii) Out of Pocket Rule: difference between that which π has parted and that which he has received.
            (The theory is to return the πeconomically to the position he was in prior to the fraudulent
            transaction, thus allowing him recoupment of actual losses, but not expected gain.) Minority.
Exam Note:
The Loss of Bargain measure of damages will usually result in greater damages. Thus: Price paid, $5,000;
Value of property purchased, $3,000; Value as represented, $7,000. Here, the tort, or Out-of-Pocket measure
results in damages of $2,000, while the Loss of Bargain measure is $4,000.
        iii) Punitives, if intentional, liability--producing conduct.
    f) Defenses
        S/L; Negligence. Depends on conduct; if it's intentional, use those defenses; if it's negligence, use
        those defenses.




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                          Page 118 of 120
Torts Outline                                 INTERFERENCE WITH BUSINESS RELATIONS



INTERFERENCE WITH BUSINESS RELATIONS

A.      Types
  A.      INJURIOUS FALSEHOOD –
        False and malicious statements with respect to π‘s property which result in a financial loss.
        [reminiscent of defamation]
        1. Elements
            (1) False Statement Of Fact By Δ
                 Need not be defamatory, but can be [look at Defamation and False Light]
             (2) Publication To One Or More Persons
                 A third party hears the statement;
             (3) Statement Disparages Π‘s Business, Property Or Financial Interest (Causation)
                     Opinion and puffing are not actionable. (The puffing privilege permits statements of
                      comparison, that the Δ's goods re the best in the market, that they are better than the π's,
                      or other boasting or exaggeration, even though the Δ is fully aware that what he says is
                      false, and the publication is made for the purpose of injuring the π by taking business
                      away from him.
                     Competition for business does not, however, justify intentional false statements of fact
                      concerning the competitor's business or product, when they are not confined to
                      comparing the product or conduct of the competitor with that of the π, and this unfair
                      competition is not privileged.
             (4) Malice
                     Knowledge or awareness...; Reckless disregard
             (5) Damages
                 a.   Must be financial loss (specials)
                 b.   Mental distress alone is not sufficient, but are recoverable if specials are present.
             (6) Defenses
                     Truth is not, because falsity is an essential element; consent is.
                     There are qualified privileges: fair competition; judicial privilege.

B.      INTERFERENCE WITH EXISTING CONTRACTUAL RELATIONS
        Invasion of a contractual right to gain profit or to prevent another from enjoying the benefit
        of a contract.
        1. Elements
            (1) Δ Interferes
                 Must play an active role in interfering (make performance difficult).
                 You can interfere with an illegal contract.
             (2) Interference Is With An Existing Contract
                 MAJORITY: unenforceable contracts
             (3) Intent
                 Must act with: (1) awareness of existence of a contract; and (2) intent to interfere.
             (4) Damages
                 a.   All actual and consequential damages
                 b.   Injunctive relief; punitives



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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                           Page 119 of 120
Torts Outline                                INTERFERENCE WITH BUSINESS RELATIONS

             (5) Defenses
                 Proper justification (some benefit you're trying to pursue) with reasonable methods (no
                 violence, fraud or misrepresentation). [Furtherance of your financial interests]

C.      INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATION
        Invasion of a prospective contractual right to gain profit or preventing another from enjoying
        the benefit of a prospective contract
        1. Elements
            (1) Δ Interferes
                 Must play an active role in interfering (make performance difficult).
                 You can interfere with an illegal contract.
             (2) Interference Is With A Prospective Contract
                 Future, rather than existing contract
             (3) Intent/Negligence
                 Must act with: (1) awareness of existence of a contract; and (2) intent to interfere.
             (4) Damages
                 a.   All actual and consequential damages
                 b.   Injunctive relief; punitives
             (5) Defenses
                 Proper justification (some benefit you're trying to pursue) with reasonable methods (no
                 violence, fraud or misrepresentation). [Furtherance of your financial interests]




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d0e124c7-1aff-454a-8a50-4553e27c274c.doc                                                          Page 120 of 120

								
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