Hammontree v. Jenner
CA Ct of App. (1991)
DMV & Dr. approved , epileptic on meds crashes into bicycle shop w/no warning;
wants strict liability
Strict liability: automatically negligent, regardless of fault
Rule: S.L. too all encompassing to apply to drivers; must uncover negligence
Christiansen v. Swanson
UT SC (1994)
Security guard leaves job site, gets lunch, gets into accident; sues employer and claims
Respondeat superior: form of vicarious liability that applies to employers of employees
Rule: to determine respondeat superior must be in scope of employment; use 3 factors:
1) employee conduct of general kind of that that he was hired
2) must be on employer‟s boundaries of employment
3) conduct must be motivated by serving employer‟s interests
*Policy: vicarious liability gives employers incentives to hire best employees, discipline
employees look for alternatives to employee work.
*Trend: Parents are rarely held vicariously liable for their children
Baptist Memorial Hospital v. Sampson
TX SC (1998)
sues b/c emergency room indie contractor dr. was negligent; wants respondeat
superior via ostensible agency.
Ostensible agency: implied agency created by actions of parties.
Rule: Ostensible agency exists when: 1)Conduct causes to reasonably believe that
was employee of a employer 2) and that relied on appearance of agency.
B. Duty Requirement: Physical Injuries
Negligence is like some sort of breach of duty; but duty has to be there in the first place.
Basic Rule: All have general duty, when we undertake action, to behave as reasonable person not
to hurt anyone else. However, no general rule when we don‟t take action. Questions of Duty
arise during a failure to act.
Trend: slow movement towards a general duty to act, no matter what.
1. Duty to Others
Harper v. Herman
MN S Ct. (1993)
3rd Party Invited is on ‟s boat, asked if going in & said yes, jumps in 2 ft of
water & is paralyzed; did nothing to warn; Duty?
Rule: Superior knowledge of a dangerous condition by itself, in absence of duty, is
insufficient to establish liability, unless there is a special relationship (1. when has
custody of when 2. not able to determine own actions, when 3. there is a financial
relationship btwn parties, when 4. expects protection of ; actual knowledge of
dangerous condition may impose duty.
Trend: In 2nd Restate, duty may imposed if actor knows or has reason to know that by his
conduct another is injured helpless and in danger of further harm, to exercise reasonable care
to prevent it.
Trend: Statutes may be in place for motor vehicles which says it doesn’t matter that accident is
negligent or not, driver must render reasonable assistance to injured person;
Trend: In Simon v. Thorin (Neb. 1931), motorist who causes hazard non-negligently has duty
to warn others.
Trend: 2nd Restate says that when someone realizes or should realize that his act had created
an unreasonable risk, is under a duty to exercise due care to prevent risk from happening.
Farwell v. Keaton
MI S. Ct. (1976)
& fight w/others; others beat badly; takes in car, applies some care, drives to ‟s
home and leaves him outside overnight; found next day, dies later; special relationship?
Rule: duty can be established when takes voluntary action to assist injured; must not
leave injured in worse off position than he found him.
Policy: Duty is a question for court, not factual; trier of fact finds negligence based on duty, but
not duty itself.
Strauss v. Belle Realty
NY Ct. of Appeals (1985)
falls in common area of building during black out; area lit by “contract” btw utility &
Rule: Duty can extend to other parties that would reasonably be covered by contract, but
Courts must define “orbit of duty” to limit legal consequences of wrongs to a
controllable degree b/c of public policy; may result in exclusion of some who might have
recovered under normal tort cases.
Policy: Defining orbit of duty to narrowly defined class when large costs may be at stake, is
saying that when more persons are injured through negligence, the less the responsibility for the
Uhr v. East Greenbush Central School District
NY Ct of Appeals (1999)
sues for failure to detect kid‟s scoliosis as mandated by statute;
Rule: When statute imposes duty and is silent about private right to action, ask 3
questions to determine if can sue: 1) is of the class that was to benefit from statute 2)
would suit promote legislative purpose 3)creation of right consistent with legislative
Policy: Absence of special relationship and affirmative obligation to act under common law,
statutes may impose duty.
Policy: Sometimes statutes suggest self-enforcement, and no private right to action when there is
misfeasance, but what about nonfeasance?
Trend: Statutes to impose duty to report crime, report child abuse and duty to rescue (rarer) are
2. Duty to 3rd Parties
Tarasoff v. Regents of U. of CA
CA SCt. (1976)
killed by ‟s dr.‟s patient who had said he wanted to kill ; ‟s dr. did not warn.
Rule: special relationships exist btw patient & dr. when dr. “takes charge” of patient and
can extend special relationship to 3rd party & create duty to care for 3rd party when 3rd
party is in foreseeable serious danger.
A duty of care may arise from either (a) a special relation . . . between the actor and the
third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation . . . between the actor and the other which gives to the other a right
Trend: Pate v. Threlkel may require that 3rd party’s existence or identity be known at the time
Randi W. v. Muroc Joint Unified School District
CA SCt. (1997)
abused by ‟s actively recommended vice principle;
Rule: Duty flows from the finding that there was affirmative action taken as opposed to
inaction even though 3rd party was not known (type of 3rd party). “half of the truth may
obviously amount to a lie, if it is understood to be whole.”
2nd Restate of Torts for negligent misrepresentation: 1) one who negligently gives false
information to another is subject to liability for physical harm caused by action taken by the
other in reasonable reliance upon such information: where such harm results to the other, to
such 3rd persons as the actor should reasonably expect to be in peril by actions taken.
2)Such negligence may consist of failure to exercise reasonable in ascertaining accuracy of in
manner of communicating.
Trend: NJ cases- Duty Factors in Negligent Misrepresentation: relationship of parties, nature
of attendant risk, opportunity & ability to exercise due care, and public interest in proposed
Trend: IL 1) foreseeability of injury 2)likelihood of injury 3) magnitude of burden of guarding
against injury 4) consequences of placing the burden upon
Vince v. Wilson
VT S. Ct. (1989)
Auntie helps buy car for drunk & drug driver; is hurt and sues & car dealership.
Rule: one who supplies directly or through a 3rd person a chattel for the use of another
whom the supplier knows or has reason to know to because of inexperience, youth or
otherwise, use it in a manner involving unreasonable risk of physical harm to himself
and others who the supplier should expect to share in or be endangered.
Negligent Entrustment: one who supplies something for the use of another who knows that the
person is incompetent.
Policy: against imposing duty on suppliers – “one cannot be expected to owe a duty to the world
at large to protect it against the actions of third parties”
Reynolds v. Hicks
WA SCt. (1998)
‟s wedding had an open bar, underage kid gets drunk and drive; gets hurt and sues
Rule: Obligations of people in the business of selling alcohol have special
relationship, but not the case for social host; social hosts are ill-equipped to handle
responsibilities. Categories sufficiently different; social policy decides.
Trend: Landowners Duties - Historically: Classification of a trespasser, licensee & invitee.
Landlord had a different responsibility; Now mostly gone.
Trend: Intra-family Duties - historically, spousal immunity, members of the family could not
sue one another; can children sue their parents or not? There is no spousal immunity in tort
because of insurance.
Policy: Parental immunity is good b/c suing one‟s parents would disturb domestic tranquility,
would create danger of fraud and collision, damages awarded to child would deplete family
resources, damages awarded could benefit parent if child dies; suing parents would interfere
with parental care, discipline & control.
Trend: Government Duties- Relationship, between when the tort feasor is the govt. You can’t
sue the gov’t unless they say you can. E.g. Federal Code Claims Act: you can sue the federal
govt, when you are a victim of a tort, only negligence.
When is the question of duty? You should always ask when there is a duty or not. It is determine
by a category or about non-action.
D. Duty Requirement: Nonphysical Harm
1. Emotional Harm
Falzone v. Busch
NJ SCt. (1965)
watches from car as another negligently driven car crashes into husband right next to
Rule: When negligence causes fright from a reasonable fear of immediate personal
injury, which fright is adequately demonstrated to have resulted in substantial bodily
injury or sickness, the injured person may recover if bodily injury or sickness were
proper elements of damage had they occurred as a consequence of direct physical injury
rather than just fright.
Policy: Court limits recovery of emotional harm by anchoring it to injury induced fright caused
by actual fear of specific physical harm to the ‟s “Zone of Danger”; Court does not want to
Trend: Courts have allowed to recover emotional harm in car crashes when car is in their
zone of danger, but not airplane crashes.
Policy: Allowing emotional harm to who fear a plane will crash into them will hold airlines
responsible for possible emotional injury for indeterminate group of people and expose airlines
to „virtually limitless‟ liability. Besides, fear only lasts for a brief moment, and airlines heavily
regulated so deterrent effect not there, unlike car crashes.
Trend: Airline passengers have been able to recover for negligent infliction of emotional
distress due to severe anxiety experienced from airplane mishaps that don’t cause injury. Court
seems to be saying that turbulence is very scary
Trend: Courts have allowed for recovery where was aware of impending death even if the
period of awareness was very short. (Not a stopwatch approach, but an appreciable length of
time) Had the decedent survived, they would have had an action under state law. Given that
fact, it would be illogical to deny the item where the fear came to pass.
Metro-North v. Buckley
works for train, exposed to asbestos, does not develop any symptoms, smoked.
Rule: Common law permits emotional distress recovery for that category of who suffer
from a disease (or exhibit a physical symptom), thereby finding a special effort to
evaluate emotional symptoms warranted in that category of cases; Otherwise, doesn‟t
Policy: Court needs categorization and denies recovery for symptoms not present because need
“objective proof” that harm has been done; otherwise: 1) judges & jury can‟t distinguish valid or
invalid claims 2) unlimited unpredictable liability 3) potential flood of trivial claims 4) allowing
maybe claims of recovery dwindles resources for sure-fire claims of people really sick.
Trend: In HIV cases, courts have demanded that feared “needle prick” had to involve HIV
positive needle “zone of danger”.
Trend: In HIV cases, courts allow recovery for window between event that creates concern and
results of tests showing infection did not happen.
Gammon v. Osteopathic Hospital of Maine
ME SCt. (1987)
expects bag of personal things of his dead dad from funeral home; gets a bloody leg
instead, and spazzes, but no medical therapy.
Rule: A is bound to foresee psychic harm only when such harm (intentionally or
recklessly) reasonably could be expected to befall the ordinarily sensitive person.
Policy: Use foreseeability as opposed to categories that arbitrarily demand physical impact,
objective manifestation, accompanying tort or special circumstances as gateway; let jury filter.
Policy (against): Don‟t want to compensate people for egg shell psyche. It will encourage people
to not move on and get obsessed with the possible tort. The medicine of emotional illness is more
sophisticated than what it was, but most people say it is not as objective.
Trends: From Ward Doctrine (in NJ need physical impact, overruled by Falzone) to Gammon,
courts are loosening up.
Trends: Three examples of upholding emotional distress claims. 1: Baseless HIV fear of
harm to the individual himself 2. person has fear of harm to her mother (telegram case) 3.
Misdiagnosis that someone was sterile, not illness. Gammon would apply: trigger is bad news
about the relative that is not true; If you have the Gammon rule, then you can allow yourself
Portee v. Jaffe
NJ SCt. (1980)
watches as her 7-yr old son dies in elevator accident; attempts suicide, had physical
therapy for slit wrists & psychotherapy.
Rule: Modified Dillon Rule (from CA): 1) physical proximity btw and accident 2)learn
by it in 1st person or through someone else afterwards 3)familial relationship 4)severity of
physical injury causing emotional distress.
Policy: observation of accident is an arbitrary requirement, but without it may extend judicial
redress far beyond the bounds of the emotional interest.
Johnson v. Jamaica Hospital
NY Ct of Appeals (1984)
‟s baby is abducted from hospital during 2 bomb threats.
Rule: When negligence is inflicted on baby in a hospital, parents/guardians are
“interested bystanders” only to whom no direct duty was owed as opposed to the baby
Policy: to permit recovery for emotional distress for parents in this case would invite open-ended
liability for indirect emotional injury suffered by families in every instance where young or
elderly suffer something
Trend: Damage to property: No recovery for emotional distress caused by loss of property. In
Rodrigues case (HI): can recover damages for emotional distress for loss of property upon
showing that “a reasonable man normally constituted would be unable to adequately cope with
mental stress engendered by circumstances of the case.” Most states deny recovery in this
situation, few follow Rodrigues.
Trend: Pets considered property, but this is in a state of flux.
Consortium: The benefits that one person, esp. a spouse is entitled to receive from another,
including companionship, cooperation, affection, aid and sexual relations.
Historically: loss of consortium was only available to men. Gradually, it became available to
women as well. Now the law looks at consortium relating to parents and children. Not suggesting
that this is an emotional harm, but rather because of the similarity of issues. It is a derivative
claim like emotional harm. Loss of consortium arises because someone else was
negligently/intentionally harmed. Otherwise, no dice!
2. Economic Harm (Only)
Trend: courts have not protected economic interests as extensively as those involving physical
security of person and property – even when the harm was inflicted intentionally by fraud.
Nycal Corp. v. KPMG
MA SCt (1998)
sues b/c prepared audit that showed good things, bought company and 2 yrs later
Rule: Liability is limited to loss suffered by person or one of a limited group of persons
who benefit and guidance he intends to supply the info or knows that the recipient intends
to supply it or reliance on it in a transaction he intends the information to influence or
knows that the recipient so intends.
Trend: small group of states require “near privity test”: must have a link between accountant
& relying party that requires more than notice from relying party to accountant.
Trend: few states have modified foreseeability test. held liable for any person whom he could
have reasonably foreseen would obtain and rely on accountant’s opinion, including known and
Trend: Professionals as a class have their own body of law in this area. The method of proof is
distinct in malpractice cases. Attorneys: 3rd parties can sue when (when you can identify a 3rd
party) they are beneficiaries of the will. Statutes exist that split your estate (20% to wife, 50%
to kids, etc); so wills alter statutory scheme. Intention of will: identifies 3rd party.
People Express v. Consolidated Rail Corp
NJ S.Ct. (1985)
Accident causes to force evacuation of 1 mile radius; includes airline which loses
business. Can sue?
owes a duty of care to take reasonable measures to avoid the risk of causing economic
damages, aside from physical injury, to particular or compromising an identifiable
class with respect to whom the knows or has to know are likely to suffer such damages
from its conduct;
an identifiable class of must be particularly foreseeable in terms of the type of persons
or entities comprising the class, the certainty or predictability of their presence,
approximate numbers of those in the class as well as the type of economic expectations
Minority Case; much more difficult to recover.
3. Economic & Emotional Distress: End of Life & Procreation Interference
Emerson v. Magendantz
RI S. Ct. (1997)
says no more kids; performs ligation; pregnant again; sues for economic &
would be entitled to recover the medical expenses of the ineffective sterilization
procedure, the medical and hospital costs of the pregnancy, expense of subsequent
sterilization procedure, loss of wages, loss of consortium to the spouse arising out of the
unwanted pregnancy, medical expenses for prenatal care, delivery & post-natal care, but
NO recovery for emotional distress arising out of the birth of a healthy child & for child
rearing; for handicapped child (mental or physical) special costs associated with bringing
up a handicapped child would be recoverable minus any benefits by governmental or
other agencies that might contribute to defray the costs of caring for child or its support in
adult life & compensation for emotional distress
Brown v. Kendall
MA SC (1850)
& owned dogs, dogs fight, uses stick to stop‟em, doesn‟t see behind, and jams stick
in ‟s eyes;
Strict Liability: has burden; Negligence: has burden
Rule: Establish fault via negligence (determined by ordinary/reasonable care.); must
show either that the intention was unlawful or that the defendant was in fault; if injury
unavoidable & conduct free of blame
*Policy: Traditionally we let losses lie where they fall (Holmes); establishing fault helps
industrial revolution by allowing more risk
1. Standard of Care
Adams v. Bullock
NY Ct. of Appeals (1919)
swings wire, touches trolley wire in a difficult place to reach, is electrocuted
Ordinary or reasonable care is that which persons of ordinary prudence would use in
order to avoid injury to themselves or others under circumstances similar to those shown
by the evidence
Rule: ordinary care need not involve forethought of extraordinary peril (unreasonable
*Policy: prophecy of extraordinary peril would involve prohibitory costs for industry.
U.S. v. Carroll Towing Co.
U.S. Ct. of Appeals (1947)
does not tie tugboat correctly, it breaks lose smashes into barge; no one on boat to
warn of upcoming crash
Rule: Negligence standard: Ordinary care defined: if B (cost of prevention) < P
(probability of it happening) x L (extent of injury). Hand Formula
*Policy: Posner states that the value of the public good must be weighed up to the point where
the benefits resulting from such use no longer outweigh the danger to be anticipated from it.
2. Reasonable Person
Bethel v. NYC Transit
NY Court of Appeals (1998)
hurt on city bus b/c wheelchair seat falls on him; “common carriers” were subject to the
Rule: reasonable person standard provides sufficient flexibility to permit due allowance
for all the particular circumstances of the case which may affect conduct required;
“utmost care” instruction not required.
Reasonable person standard represents the general level of moral judgment of
community, what it feels ought ordinarily be done, not what is ordinarily done.
*Trend: Insanity or mental deficiency does not relieve actor from liability for conduct which
does not conform to standard of reasonable man under circumstances.
*Trend: Children are compared to what a reasonable child at the age & development of the
actor would do, unless children engage in adult activities (if so they are held to adult
*Trend: Emergency Doctrine holds that a person confronted with a sudden & unforeseeable
occurrence, b/c of shortness of time in which to react, should not be held to the same standard
as someone confronted with a foreseeable occurrence. Many states don’t give this jury
instruction: with or without an emergency, the standard of care a person must exercise is still
that of a reasonable person under the circumstance (this can be used to take into account an
*Policy: upon giving a specific detailed instruction on degree of care, jury may feel they must
consider the circumstances as special & unique. However, the loose standards of care & person
can account for it.
3. Role of Judge & Jury Deciding What Care Should Be
Pakora v. Wabash Railway Co.
US SC (1934)
gets hit by a train b/c he couldn‟t see far away enough. In Goodman (1927), Holmes
said, when standard of conduct is clear it should be laid down once for all by courts.
Rule: Standards of prudent conduct are declared at times by courts but they are taken
over from facts of life; Caution is needed when framing standard of behavior that amount
to rules of law
Andrews v. United Airlines
9TH US CT of Appeals (1994)
Briefcase falls and hurts on an airplane; wants Judge t decide in summary judgment
Rule: Defendant must adequately prove that his standard of care was reasonable in order
to receive summary judgment in his favor and avoid jury.
4. How Custom can prove/disprove Ordinary Care
Trimarco v. Klein
NY Ct of Appeals (1982)
falls through glass of shower; has often replaced old glass w/plastic; other buildings
have done so as well.
Rule: The role of custom plays a significant role in determining ordinary care, but the
existence of a custom is not conclusive (i.e that ordinary care was met or not).
*Policy: who can prove that it has adhered to a prevailing custom may eliminate what might
otherwise be a jury question. then must prove that the asserted alternative is feasible, that
was not reasonably unaware of the possibility, and that fixed costs are not too high.
*Policy: can find it useful that fell below the industry custom b/c it tends to show that others,
competitors, found it feasible to do something in a safer manner; that the had ample
opportunity to learn about the alternative; no great social upheaval will follow judicial
determination of negligence
5. How Statutes can prove/disprove Ordinary Care
Martin v. Herzog
NY Ct of Appeals (1920)
& husband driving, they break statute crossing the median; breaks statute by not
having lights on; Judge refuses to instruct jury that ‟s statute violation is negligence.
Rules: Statute violations in respect to a tort should be treated as evidence as negligence.
Tedla v. Ellman
NY Ct. of Appeals (1939)
hits on a road while was on the wrong side according to statute of pedestrian
walking; said violated statute b/c too much traffic on the correct side; too dangerous.
Rule: Statutory general rule of conduct are codifications of common law, and cannot
assume that exceptions developed through common law no longer apply; common sense
(e.g. dangerous to follow statute) reasoning okay.
Trend: If statute is wholly unrelated to the accident involved, and was violated, its violation
does not necessarily establish liability (the violator is negligent) in the context of the accident.
If statute is of the same type (protecting against a brick falling, but a screwdriver falls), then it
may help establish liability; does not need to be specific.
Trend: Licensing statutes not used to set standards of care; it is designed to protect the public
from actions performed by the unskilled; if that is the purpose, must prove that the lacked
the required skill. (e.g. being a unlicensed driver not relevant to your performance at time of
Trend: Compliance of a safety statute does not necessarily satisfy the standard of due care.
E.g. Manufacturer’s duty to warn the consumer is not necessarily satisfied by FDA minimum
warning. The required warnings must not be misleading and must be adequate to explain to
the user the possible dangers associated with the product. Has to be pretty clear.
6. Proof of Negligence
Negri v. Stop & Shop, Inc.
NY Ct. of Appeals (1985)
falls in area of dirty broken baby food jars on floor; no crash of jars heard for long
Rule: “constructive notice” ( has reasonable time to address dangerous situation;
therefore foreseeable) can be used to help prove/disprove negligence.
Gordon v. American Museum of Natural History
NY Ct. Of Appeals (1986)
slips on museum steps b/c he says clean white paper of vendors were everywhere &
knew this is a common problem.
Rule: general awareness or awareness of another dangerous condition not sufficient to
establish “constructive notice.”
Trend: “business practice rule” says a business’s choice of a particular mode of operation may
allow not to prove notice if owner could reasonably anticipate that hazardous conditions
would regularly arise (fruits bins, cream dispensers).
Byrne v. Boadle
Ct of Exchequer (1863)
‟s barrel of flour falls out of window & hurts ; no other evidence available
Rule: wrong to say that in no case can presumption of negligence arise from the fact of
the accident; establishment of res ipsa loquitur (the thing speaks for itself).
Policy: Net legal result of res ipsa is that burden of proof shifts to , from (as usual).
McDougald v. Perry
Fl. SCt (1998)
‟s windshield hit by spare tire held by chain while driving down the highway;
Rule: res ipsa loquitur, while very rare, can be applied when 1) basis of past experience
shows the events don‟t ordinarily occur unless someone has been negligent; also,
although common, it can be supplied by evidence of parties, including expert testimony
Restatement (2nd) of Torts). 2) can‟t get sufficient evidence; 3) need not eliminate
with certainty all other possible causes or inferences.
Ybarra v. Spangard
CA SCt. (1944)
Unconscious handled by many before and after surgery; develops serious injury not
related to surgery;
Rule: res ipsa loquitur can be applied when specific negligence & instrumentality can‟t
be identified; res ipsa has 3 conditions (Prosser): 1) accident must be a kind which
ordinarily does not occur w/o someone‟s negligence 2) must be caused by instrumentality
w/n exclusive control (right of control not actual control) of 3) not due to voluntary
action or contribution of .
Policy: res ipsa loquitur used sometimes when “code of silence” prevents determining who the
real negligent is, when there are many ‟s possible.
Policy: ‟s “inability” to get evidence more suspect today because use of discovery more liberal.
Policy: automobile cases common & suggest simple rules, but has ultimate burden of
persuasion, after had burden to produce explanation.
7. Special Case of Medical Malpractice in Proving Negligence: standard of care, questions
of proof, & role of custom.
Sheeley v. Memorial Hospital
RI S.Ct. (1998)
‟s 2nd year family practice resident performs procedure on ; there are complications &
sues and uses very experienced ob/gyn as witness
Rule: standard of care for drs based on a national standard, not “same or similar” locality
rules which suggest experts used in trial have to mirror the dr. in question‟s experience,
specific practice, etc. Standard of care for is the ordinary care of a dr. performing the
procedure, not a dr. who is less experienced doing that procedure.
Trend: Expert testimony important & necessary at times, but when “falls within layman’s
knowledge,” (sponge left in someone’s gut), not so.
Connors v. University Associates in Obstetrics & Gynecology Inc.
2nd Circuit Ct. of Appeals (1993)
has operation to get pregnant, but loses function of leg; & use expert testimony to
prove point; wants res ipsa
Rule: res ipsa loquitur can be given when expert testimony is used to “bridge knowledge
gap”, otherwise in catch-22: forgo expert testimony for res ipsa, but jury may be so
confused about injury or have expert testimony but no res ipsa but jury will know about
injury, but not allowed to infer negligence even w/this info.
Matthies v. Mastromonaco
NJ S. Ct. (1999)
Active 81yr old fall & prescribes what he thinks is best; institutionalized, never
knew of other options. “informed consent case”
Rule: Informed consent based on “self-determination”; dr. must tell reasonable risks that
reasonable patient will need to make informed decision; also, all reasonable treatments
(not the ones they recommend) invasive & non-invasive.
Trend: cases regarding unknown risks are very fact specific; just b/c a court says a 1 in
100,000 risk not reasonable, how about 1 in 90,000.
1. Cause In Fact
- This inquiry seeks to tie conduct to the harm in an almost physical
or scientific way
- But For: conduct is a cause of the event if the event would not have
occurred but for the conduct; conversely, the conduct is not a cause
of the event if the event would have occurred w.o. it.
- In exceptional circumstances: Substantial Factor test.
Stubbs v. City of Rochester
NY Ct of Appeals (1919)
gets typhoid; claims b/c of sewage in drinking water and sues city; city says there are 9
ways to get typhoid (including unknown); can sue?
Rule: If 2 or more possible causes exist, one of which a is liable and a party injured
establishes facts from which it can be said with reasonable certainty that the direct
cause of the injury was the one for which was liable, the party has complied with spirit
of the rule.
Zuchowicz v. United States
2nd Circuit US Court (1998)
naval hospital gave drug to ; gave overdose of drug to ; got rare lung disease, then
got pregnant, was removed from transplant list b/c of pregnancy.
Frye Test: expert testimony has to rest on reliable foundation and relevant at hand.
Daubert Test: 1) whether theory can be and has been tested according to the scientific
method 2) whether theory or technique has been subjected to peer review & publication
3) in case of a particular scientific technique, the known or potential rate of error 4)
whether the theory is generally accepted.
Rule: “But For”: If 1) a negligent act was deemed wrongful b/c that act increased the
chances that a particular type of injury would occur 2) and a mishap of that very sort did
happen: this is enough to support a finding by that negligent behavior caused the harm.
Where such a strong causal link exists, it is up to the to bring in evidence denying “but
for” cause and suggesting that in the actual case the wrongful conduct had not been a
Alberts v. Schultz
NM SCt (1999)
goes to b/c of leg pain, had vein problem, delays tests, leg is cut off. Does have a
“lost chance” case.
Rule: Lost chance is that negligence reduced the probability of avoiding the subsequent
injury, can recover even if this chance was slim. Courts apportion damages by valuing
the chance of a better result as a % of value of entire life or limb. 50% chance of survival
= 50% value of life.
Joint & Several Liability: can sue 2 or more together or separately and recover full extent of
damages against either one.
Several Liability (only): allocated specifically to one defendant; if one is judgment proof, then it
doesn‟t matter, you can‟t collect.
Summers v. Tice
CA SCt. (1948)
& 2 out hunting; 2 fire at quail, hit ; who‟s guilty?
Rule: When 2 breach a duty to but there is uncertainty regarding which one caused
the injury, “the burden is upon each such actor prove that he has not caused the harm.
Trend: Changes to Joint & Several Liability –Several Liability: can only collect the % of each
based on likelihood & Comparative Negligence allows you to assign varying degrees of fault.
Wisconsin: Contributory Negligence does not bar recovery as long as the comparative
negligence is not greater than the person who is being sued. But it will be diminished by the
%. You have several if you are assigned less than 51% of cause, and joint if you have greater
Hymowitz v. Eli Lilly & Co.
NY Ct. of Appeals (1989)
suing b/c mom ingested bad drug that caused cancer to ; pill made by many; who is
Rule: in cases where there are several possible like these, court should impose a theory
of several liability based on a national market share: this will apportion liability so as to
correspond to the over-all culpability of each measured by the amount of risk of injury
each created to the public at large; but can‟t be held liable, if proves that it was not
a member of the market. However, the liability several and should not be inflated when
all participants in the market are not before the court. (rationale based on overall risk, not
cause) e.g. X had market share of 20%, it is 20% liable.
1. Identification –usually bread disease (many ways to get it) not immediate injury.
2. Boundaries – where to limit? Those ill, those who will be ill? Could be in the Thousands
3. Source – usually aggregate circumstance, so causation principles don‟t work,
3. Proximate Cause
- describes the issue of where we should draw the line given these facts.
As opposed to Cause in fact which focused on evidentiary issues.
B. Unexpected Harm
Benn v. Thomas
IA S Ct. (1994)
(exec.) sued for rear-ending decedent, who 6 days later died b/c of impact &
history of heart disease; can sue for death?
Egg Shell Rule: takes as he finds him; Once the establishes that caused
some injury to the rule imposes liability for the full extent of those injuries, not
merely those that were foreseeable to the .
Foreseeability is relevant to a finding of negligence (how a reasonable person should
behave); But it is irrelevant to extent of injuries (eggshell psyche).
Trend: responsible for further injuries resulting from normal efforts of 3rd parties rendering
aid, regardless if that effort is negligent or proper.
Polemis Case (English) : Not foreseeable that a plank falling in a ship would cause a fire, but
some damage was foreseeable. The nature of the harm was not foreseeable just some damage.
We don‟t care about the nature of the harm once we get past the determination that any injury
Direct Cause Test: liable when negligent act was direct cause of harm. (doesn‟t matter if
actual injury was unforeseeable).
Overseas v. Wagon Mound
Wagon Mound is looking at foreseeability in the context of the nature of the harm.
Behavior didn‟t constitute negligence because it wasn‟t foreseeable that this kind of a
harm was going to occur. No proximate cause.
Rule: foreseeability is effective test.
liable for only the injury that could be foreseen from the negligent act;
Policy: Not consistent with justice and morality that for an act of negligence which results in
some trivial foreseeable damage, the actor should be liable for all consequences unforeseeable
and however grave, so long as they are direct.
C. Unexpected Manner
McLaughlin v. Mine Safety Appliances
NY Ct. App (1962)
Fireman does not tell nurse to wrap blocks w/insulation
When there is gross negligence by 3rd party, it may break chain of causation and affects
to foresee injury that occurs.
D. Unexpected Victim
Palsgraf v. Long Island Railroad Co.
NY Ct. of App. (1928)
Women hit by scale after explosion yards away
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports
relation; it is risk to another or to others within the range of apprehension.
Duty to avoid injuring others extends only to those risks the actor should anticipate from
her negligent act (the unforeseeable ).
Proximate Cause: Courts refuse to impose liability for unforeseeable consequences
Duty Limitation: Courts refuse, for policy reasons, to impose liability for ones that are
1. Comparative Negligence
OLD: Contributory Negligence: conduct was actual cause of harm & negligence must also
be a proximate cause of harm; Defense is a total bar to recovery.
Exceptions – if was reckless
- when fails to use “last clear chance” to avoid injury
- jury question if was contributory negligent
NEW (except „Bama): Comparative Negligence: recovery depends on how serious negligence
was compared to
Two Major Types of Comparative Negligence:
Pure Comparative Negligence – if it is 90% of fault, then gets 10% of damages. 12
states got this.
Modified Comp. Negl. – can only recover if % is less than . Sometimes done by
statute or by common law.
- Two Types: 1. can recover as long as negligence is “not as great” as and 2.
can recover if negligence is “no greater than ”
- Under modified version: you aggregate the liability of all the , and that
determines the amount can recover. If ‟s fault is greater than each , then
- Under Aggregate Modified, you can add all % and then could recover
- Under Non-Aggregate Modified, ‟s recovery turns on a series of comparisons.
Uniform Comparative Fault Act.
Pure Comparative Negligence
Joint & Several: You reallocate insolvency among all the parties (Plaintiff as well as s).
Fritts v. Mckinne
OK Ct of Civ. App. (1996)
, driving drunk in car, crashes, needs facial surgery, dies b/c dr. negligent in procedure;
dr. says comparative negligence.
A physician simply may not avoid liability for negligent treatment by asserting that the
patient's injuries were originally caused by the patient's own negligence. Those patients
are entitled to non-negligent medical treatment and to an undiminished recovery.
Only can use when reasonableness of patient conduct can be appropriate consideration in
medical negligence cases, such as where patient fails to reveal medical history that would
have been helpful to physician, provides false information, or fails to follow physician's
advice or to seek further recommended medical attention.
2. Avoidable Consequences
Even if accident was entirely fault, recovery might be reduced by failure to exercise
due care to mitigate the harm done.
Clearest form: fails to get medical attention or follow medical advice
Murkiest form: refuses medical attention b/c of religious belief (Ct has held that
should have gotten attention) No Egg Shell here!
Anticipatory Avoidable Consequences
E.g. Failure to wear helmet or seatbelts
Some states: violation is inadmissible in any civil action
Others: if causally related to the harm, may affect civil damages but by small%
Even Others (NY, CA): Failure to use safety devices may fully reduce recovery, but
must prove harm was due to this failure not own negligence.
3. Assumption of Risk
Exculpatory written K that says if is later hurt by negligence, no suit!
Ct. asks 2 questions: 1. will K be enforced given the type of activity involved & 2. if so is
K sufficiently clear.
Dalury v. S-K-I, Ltd (VT 1995)
signs season pass & photo id; both had release; hurt, claims negligence by
Ct holds that agreement was sufficiently clear, BUT unenforceable b/c public policy: 1.
wrong to put 1 person at mercy of another‟s negligence & 2. As a business it sells to
thousands, so a public interest exists to ensure that a business is safe.
Four Part Inquiry to analyze validity of exculpatory agreements
- existence of duty to the public
- nature of the service performed
- K fairly entered into?
- Language clear & unambiguous
Ct. may also demand that release was brought to attention (parking lot example).
Exculpatory agreement freeing party from liability should be upheld if it is freely and
fairly made, between parties who are in equal bargaining position, and there is no social
interest with which it interferes.
No matter what gross negligence or recklessness may never be disclaimed by agreement
no matter what words are used.
No express language to indicate intentions of the parties; just based on behavior.
Murphy v. Steeplechase (NY 1929)
goes to Coney Island; gets on The Flopper; falls & cracks knee cap.
Ct holds nature of ride & the activity sufficient to let know that falling is possible.
Violenti Non Fit Injuria: no injury is done to one who consents.
needed to show that the ride was of such danger, that inherent nature too dangerous to
warrant letting it ride. Nurse – no testimony that more people were really hurt.
Amateur Sports Participation
Analysis depends on the duty owed to . If meets duty to , not liable.
If breaches duty, liable to subject to reduction of any contributory negligence.
“only if a party recklessly hurt someone outside range of ordinary activity”
Davenport v. Cotton Hope (S. Carolina SCt. 1998)
bitches about stairwell to Mgmt (1 of 3); goes down same stairwell & falls;
not barred from recovery by “assumption of risk” unless the degree of fault arising
therefrom is > the negligence of
Four Factors to establish Assumption of Risk:
- must have knowledge of facts constituting a dangerous situation
- must know the condition is dangerous
- must appreciate nature and extent of danger
- must voluntarily expose himself to danger
Primary Implied: assumes those risks that are inherent in an activity; focuses not on
conduct but on general duty of care. (not an absolute defense)
Secondary Implied: knowingly encounters a risk created by negligence; a true
defense asserted after prima facie case. (true defense)
Reas. Secondary: is aware of risk negligently created by but voluntarily proceeds to
encounter the risk when weighed against the risk of injury, action is reasonable.
Unreasonable Secondary: assumption of risk is out of all proportion to the advantage
which he is seeking to gain.
Assumption of risk retained as absolute defense, then would be contra comparative fault.
Just part of the analysis.
Roberts v. Vaughn (MI 1998)
, volunteer firefighter, hurt b/c of negligence, Firefighter Rule bars recovery, applies?
FF Rule: bars recovery for injuries sustained as a result of the negligence that gave rise to
their emergency duties; FF & PO are tax supported & well compensated to take on risks.
Ct. Holds that b/c volunteer firefighter does not fit into the public policy rationale of the
Ffrule, it does not bar from suing. Otherwise, punishing for gratuity & raising issue of
assumption of risk: i.e. knew this was gonna happen, so assumed it.
Under the "rescue doctrine," one who negligently creates a risk of harm may be liable to a
volunteer whose intervention is reasonably foreseeable and who is exposed to personal
peril in order to avert the danger to others or personal property.
claim that common law tort action is overridden by legislative or regulatory standards
intended to preempt tort claims.
Geier v. American Honda (SCOTUS 2000)
wants to sue b/c car did not have airbags. claims preemption: Federal law said car
manufacturers only need to slowly put airbags in & test.
Ct holds preemption exists because state common law torts conflicts with the objective of
the federal regulation.
Federal regulation may exist which will impact on the reasonable standard: so beware!
The Supreme Court declines to give broad effect to saving clauses where doing so would
upset the careful regulatory scheme established by federal law.
E. Strict Liability
Fletcher v. Rylands (1866 Ct. of Exchequer)
Person who for his own purposes brings on his lands and keeps there anything to do
mischief if it escapes must keep it in at his peril, and if it does not do so, he is prima
facie answerable for all the damage which is the natural consequence of its escape
he can excuse himself by showing that the escape was owing to negligence or that
the escape was an act of God.
Holding refers to direct neighbors since had right to be on his land.
Rylands v. Fletcher (1868 House of Lords)
Distinction btwn 2 opinions: talks about bringing something on land, and adds another
element: “non-natural” use.
“non-natural” has been interpreted as being more hazardous.
Losee v. Buchanan (NY 1873)
steam boiler used in connection with business exploded & hurt land/buildings.
Ct. holds no strict liability & extols fault principle because industrial revolution requires
factories. Says no to Rylands because of industry.
Turner v. Big Lake Oil (TX 1936)
Texas different than environment of England. Therefore, use of water is okay like
this. It is an economic argument; it is necessary to have reservoirs.
Sullivan v. Dunham (NY 1900)
hired 2 men to blow up tree; wood flies into highway, strikes wife & kills her.
Ct. found their action was direct invasion of the rights of the decedent (life &
property were equated), who was lawfully in a generally safe public highway.
Nature of the activity was inherently dangerous.
Sic utero tuo: as to protect person & property from direct physical violence which
although accidental, has same effect if it were intentional.
Indiana Harbor Belt v. Amer. Cyanamid. (7th Circuit 1990)
, railroad yard, finds leak of chem in one of its cars, state makes pay for clean up.
Ct. holds not held strictly liable b/c the leak was not caused by the dangerous properties
of the chemical; the leak was caused by carelessness in transportation.
Purpose of Strict Liability is deterrence: what are the options that Posner considers?
- Can they change manufacturer process?
- Can they perform activity in different areas?
If strict liability can encourage them to do so, then great. If not, ain‟t worth it.
Therefore, there is no social utility in applying a strict liability in this case.
2nd Restate Torts 520: Is Something Too Dangerous
inability to eliminate the risk of accident by exercise of due care (the baseline for
risk if harm was great
harm that would ensue could be great
activity not a matter of common usage, so no value
activity inappropriate as to place
value to the community of activity great enough to offset unavoidable risks
F. Products Liability
Macpherson v. Buick Motor Co. (NY 1916)
sold car to dealer; dealer sold ; car collapsed while was driving b/c of defective
wheel. Duty to ? More than privity?
Ct. holds if the nature of a thing is such that it is reasonably certain to place life in
peril when negligently made, then it is a thing of danger.
If there is added knowledge that it will be used by persons other than purchaser&
used w/o any new tests, then irrespective of K, the is under duty to make carefully.
Escola v. Coca Cola Bottling Co. of Fresno (CA 1944)
injured when bottle broke in her hand as she moved it; was bottler & manufacturer
of bottles was not sued. Res ipsa?
Ct. holds Res Ipsa is appropriate because had exclusive control over both the charging
and inspection of the bottles.
Courts have continued to rely on 2nd Restate Torts (Products Liability) (p. 555)
They are borrowing from strict liability but are saying that if we will apply generally then
it has to be “unreasonably dangerous”
There is a proof issue: 1b: “it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold”. How do you prove that the
product did not change in the condition?
Product Liability still calls for some fault.
Restatement (Third) of Torts (p.556)
Section1: One engaged in the business of selling or distributing products who sells or
distributes a defective product is subject to liability for harm to person or property caused
by the defect.
Section 2: a) Manufacturing Defects: product departs from its intended design even
though all possible care was exercised.
b) Defective in Design: when foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by seller or distributor
& omission of alternate renders the product not reasonably safe.
c) Defective Warnings: foreseeable risks could have been reduced or avoided by the
provision of reasonable instructions or warnings.
1. Manufacturing Defects
Patent Manufacturing Defects: usually not an issue of litigation; modern practices are
good about keeping it off the shelf
Problems arise when trying to prove it, i.e. jar cracks no proof.
Is it possible that every manufacturing defect is a design defect? Yes. If you had
designed it correctly, there would be no flaw. Thus: always try to find a manufacturing
defect in a design defect case.
Price v. GM: BEWARE – Not all manufacturing defects are a slam dunk case. E.g.
Product has a reasonable life expectancy, so longer you own may hurt.
2. Design Defects
Cronin v. JBE Olson Corp: Drops “unreasonably dangerous” to prevent a bifurcated
standard: not only dangerous, but also unreasonably. This is struggle between strict
liability & something like Negligence.
Soule v. GM (CA 1994)
crashes camaro, breaks ankles, sues b/c car‟s design was unsafe;
Hold: ordinary consumer expectations test inappropriate for determining design defect,
since theory involved matters not subject to ordinary consumer expectations.
Ordinary consumer expectations test (used when everyday experience plays a role)
- product failed to perform safely as an ordinary consumer would expect
- defect existed when product left manufacturer
- defect was legal cause of enhanced injury
- product was used in a reasonably foreseeable manner
Barker Alternative Test than Above: a product is still defective if the benefits of the
design it do not outweigh the risk of danger inherent in such design.
- Allows expert to educate
- Applies Risk/benefit test in terms of the design
Reasonable alternative design: must prove that a reasonable alternative design would
have reduced foreseeable risk of harm. Factors to establish that a design is reasonable:
magnitude of foreseeable risk; instructions & warnings & strength of consumer
Real World Limitations: Price & Design.
Because accidents are foreseeable, must factor this in the design.
Camacho v. Honda (1987)
rides bike, gets accident, sues b/c of lack of leg guards
Hold: "crashworthiness doctrine" requires an exercise of reasonable care to minimize the
injury of a foreseeable collision by employing commonsense safety features.
Under the cw doctrine, a motor vehicle manufacturer may be liable in negligence or strict
liability for injuries sustained in a motor vehicle accident where a manufacturing or
design defect, though not the cause of the accident, caused or enhanced the injuries
Ortho Factors used to determine if a product design is unreasonably dangerous:
- The usefulness and desirability of the product (to user & public)
- Safety aspects of product (likelihood of injury)
- Availability of safer adequate substitute
- Ability to eliminate unsafe character of product (without impairing
utility & avoiding great expense in price).
- User‟s ability to avoid danger by due care
- User‟s anticipated awareness of danger and avoidability due to public
knowledge or warnings.
- Feasibility of spreading the loss by manu by price or liability insurance
Big Issues About Warnings
How prominently are the warnings displays
What does it have to say
Normal rule: must reach person likely to use the product.
Misuse is not a complete defense; need to look at custom
Hood v. Ryobi (US 4th Circuit 1999)
buys miter saw; thinks blade guard is there to protect against accidental contact;
removes it; blade flies off; Warning said: Serious Injury Possible.
Hold: Warnings need not warn of every mishap, only needs to be reasonable under the
Note: cost of adding warning may be that they are less acknowledged.
Note: “heeding presumption” – requires party responsible for inadequate warning to
show that user would not have heeded an adequate warning. ( can no longer say that
would have missed it anyway).
Note: Establishing foreseeability of accident is tricky.
Edwards v. Basel Pharmaceuticals (SC of OK 1997)
dies of heart attack as result of smoking cigs & wearing 2 nic patches;
“learned intermediary doctrine” – no duty to warn ultimate consumer & shields makers of
drugs from liability if maker adequately warns prescribing physicians. Dr. does
risk/benefit analysis for patient.
Hold: Learned intermediary rule does not apply when FDA mandates direct warning to
consumer. (2nd exception – mass immunizations; no dr. patient relationship; 3rd exception
– does not apply when maker advertises drug to consumer; must discuss product‟s risks
Vassallo v. Baxter Healthcare Corp. (SC of MA 1998)
has silicone implants; sues for failure to warn.
Hold: not liable for failure to warn about risks not reasonably foreseeable at time of
sale or could not have been discovered by way of reasonable testing prior to marketing
the product. Manufacturer will be held to standard of knowledge of an expert in
appropriate field & will remain subject to a continuing duty to warn or risks discovered
following the sale of the product.
4. Defenses to Product Liability
GM v. Sanchez (TX 1999)
drives truck to close gate; stops car; car rolls back & pins him to gate; dies
Hold: consumer‟s conduct other than the mere failure to discover or guard against a
product defect is subject to comparative responsibility.
5. Work Related Injuries
Under Modern Law, worker‟s compensation means you can‟t sue your employer but you
can sue 3rd parties.
Doesn‟t matter if employer was the one who created negligent situation in the 1st place.
Jones v. Ryobi, LTD (US 8th Circuit 1994)
gets hurt on the job b/c employer pressured her to remove safeguards (just like 98% of
industry did, so it was foreseeable); so sues manufacturer instead.
Hold: π must prove that the press was unreasonably dangerous when put to a reasonably
anticipated use, but when a 3rd party modification makes a safe product unsafe, the seller
is relieved of liability even if the modification is foreseeable.
Liriano v. Hobart (Ct of Appeals, NY 1994)
loses hand while working machine; safety guard had been removed; in 1962, had
warned of not doing this.
Hold: manufacturer liability for failure to warn may exist in cases where substantial
modification would stop liability on a design defect theory, because manufacturer is in
best position to note post-sale defects or dangers discovered in use.
Note: Life of machine impacts duty. Longer life, less duty.
6. Beyond Products?
Royer v. Catholic Medical Center (SC of NH 1999)
gets fake knee; it sucks; wants strict liability for hospital because knee had a design
defect & hospital sold him a good.
Hold: does not go to hospital to buy a knee, but to get treatment, so a health provider, in
the course of providing services is not engaged in the business of selling for purposes of
strict products liability. (Policy Choice)
Note: Architects (buildings) & building contractors (building) not providing goods either.
Counter: product manufactures tempt doctor to use their products through gimmicks &
7. Beyond Personal Injury?
East River Steamship v. Transamerica (SCOTUS 1986)
is suing Δ because of damages to the product itself that it had purchased (turbines);
However, π wants to sue under a products liability basis, not a regular K theory of law.
Hold: π sustained purely economic losses when the turbine engines failed, therefore K
law is can accurately address the problem. This will prevent vast litigation & allow
manufacturers to structure their business behavior accordingly.
Counter: argument that: commercial situations generally do not involve large disparities
in bargaining powers, is absurd.
1. Compensatory Damages
Seffert v. LA Transit Lines (CA 1961)
Bus drags ; gets messed up foot; gets compensatory damages: past & future
pecuniary losses & a whopping $180k for pain & suffering; excessive?
Hold: Appellate review can only overturn damages if it “shocks the conscious” suggests
prejudice or corruption by jury.
Note: counsel used controversial “per diem” amounts; courts are split on whether to
Note: Compensatory Damage Awards are Not Taxable. States take different positions on
whether jury‟s should be told about the tax situation.
Note: except for pain & suffering, cts discount awards to present value (prevent unjust
enrichment due to interest rate). Ct selects appropriate % & reduces it.
Note: some states set limits on pain & suffering amounts. Bad: business can do a profit
risk analysis & decide it is profitable to be sued & keep selling product. Good:
Legislature more objective.
McDougald v. Garber (Ct of NY 1989)
malpractice led to in coma; does had the capacity to be aware of loss of enjoyment
Hold: cognitive awareness is prerequisite to recovery for enjoyment of life. Also
concludes that allowing 2 separate awards (1. suffering & 2. loss of enjoyment) will
increase amount of awards, but will not meet goal of compensation. No analytical
precision gained by doing it this way.
Survival Actions: suffers after injury; goes for pain & suffering
Wrongful Death: dies. Family gets compensation (pecuniary losses).
Death of Child: uses national standard.
Arumbula v. Wells (Court of Appeal CA 1999)
hurt in car; despite missing work; brother keeps giving salary $$$. still liable for
Collateral Source Rule: in personal injury actions can still recover full damages even
though they already have received compensation for their injuries from such “collateral
sources” as medical insurance.
Hold: Collateral source rule applies to private gratuities. Otherwise, charity may end
because it would be indirectly compensating the tortfeasor.
Note: Minority opinion. No need to compensate for free health care. Court could never
award damages to a 3rd Party. Shriner‟s can claim to be a party to the claim, but
Note: Mother‟s nursing care of a very hurt kid. Compensate? Yes. Logic is that the
compensatory amount should be the market value of the nursing.
2. Punitive Damages
Taylor v. Superior Court (CA 1979)
wants punitive damages b/c hurt b/c of drinking & driving; had history of DD.
Hold: When there is sufficient evidence to demonstrate a conscious disregard by the ,
this was sufficient to establish “malice” and allow punitive damages.
Punitive damages meant as a deterrent but have to ask: doesn‟t it depend on the person?
BMW v. Gore (SCOTUS 1996)
sues when learns that BMW was not new, but repainted; wants punitive to teach big
bad BMW a lesson
Hold: did not receive adequate fair notice of the conduct that will subject him to
punishment and the severity of the penalty that a State may impose based on 3
- the degree of reprehensibility of the non-disclosure
- the disparity between the harm or potential harm suffered by and his
punitive damage award
- difference between the remedy & the civil penalties authorized or
imposed in comparable cases.
Punitive damages can be unconstitutional.
H. Insurance & Tort
1st Party v. 3rd Party
1st Party: insurance for yourself (Med. Pay, Collision to repair car, Comprehensive (fire,
flood, theft, vandalism).
3rd Party: insuring other people. (interface btwn insurance & tort. Bodily Injury Liability
– available to settle a claim if somebody sues)
Hybrid (1st & 3rd Party): Uninsured Motorists. Buying extra insurance that you wish the
other person had. Only kick in because of this.
If punitive damages represent a finding that someone did something on person, the
greedy person gets nothing. The insurance company then doesn‟t need to pay anything.
Grey Area: Reckless acts. Some policies exclude it some others don‟t.
Insurable interest: want to discourage people from thinking it as a gambling option: get
insurance on just anyone because you hope to cash in.
Frost v. Porter Leasing (SC of MA 1982)
in car accident, insurance company wants implied subrogation rights.
Subrogation Rights – rights of assignment. If your health insurance policy has these
rights, they have the right to recover the money it pays on your behalf, from the person
who causes those medical bills.
Hold: Rights of subrogation for personal injury must be explicitly granted in policy.
Implied rights only available for property damages (easily quantifiable, no fear of future
Lalomoia v. Bankers & Shippers (NY 1970)
Insurance is a K and the coverage is a function of its terms.
When you buy insurance you buy a Defense.
Pavia v. State Farm (Ct of Appeals, NY 1993)
Allegation of Bad Faith: Not settling the case for $100k when company had the chance &
the final judgment is $6million.
Tort of Bad Faith: If you have an obligation to do a certain thing & you don‟t fulfill
that obligation, you may be liable. Also, liable for punitive damages. The claim is that
State farm was acting in its interest (not pay $100k) and not honoring duty to help.
Hold: Insurer's failure to respond was insufficient to establish bad faith. There was
nothing more in the conduct or inaction of the insurer that would qualify as bad faith
under the circumstances.
I. Intentional Tort
Garratt v. Dailey (SC of WA 1955)
, 5 yr old, pulls chair out of the way from ; Intentional tort?
Hold: To have intent, you need to prove that knew with substantial certainty that the
harm would result. Need to have knowledge.
Intent: Not necessary to have malicious intent, but rather just substantial certainty that a
harm will result. 1. is purposeful intent to cause harm. 2. state of mind is irrelevant as
long as you were conscious that harm would ensue.
Will want jury to find negligence, not intent because insurance covers only neg.
2. Assault and Battery
Picard v. Barry Pontiac (SC of RI 1995)
says that employee threatened her & spun her around; says I only came at you and
grabbed the camera.
Hold: Court held did prove battery because the contact with customer's camera was
sufficient to constitute battery. needed to prove that the touching were accidental or
Tort of Assault (put in fear of immediate bodily contact). Elements: 1. made menacing
movements at or towards , close enough to to justify reasonable fear of harm. 2. had
reasonable belief that intended to cause physical harm look at all circumstances. 3. at
the time had either an intent to cause physical harm or intent to fear. Assault is the
threat, not necessarily the touch.
Tort of Battery: intentionally cause bodily harm & did not give consent.
Assault and battery are separate acts, usually arising from same transaction, each having
- "Assault" is physical act of threatening nature or offer of corporal
injury which puts plaintiff in reasonable fear of imminent bodily harm,
and it is plaintiff's apprehension of injury which renders defendant's act
- Battery: an act that was intended to cause & did cause an offensive
contact with or unconsented touching upon the body of another.
- unconsented contact with anything connected with the body as to be
customarily regarded as part of the other person‟s can also be subject
Wishnatsky v. Huey (ND 1998)
sues b/c shuts door in face as he tried to enter
Hold: A bodily contact is offensive if it offends a reasonable sense of personal dignity.
was rude, but did not commit battery. The touching of the door was incidental & the
did not know who was on the other side.
screwed himself because he called himself sensitive & standard is reasonable sense
Alien Tort Claim Act
Avoid the world court; what is significant is this notion that recently courts are permitting
the Alien Tort Claim act to be used.
Alien Tort Act: statute making something a tort. 28 USC §1350 gives allege tortured
victims a cause of action. For 200 years it lay dormant.
Jurisdictional question: Federal v. International.
Constitutional: “full faith & credit clause” all jurisdictions must respect each other
International: comity – respect each other, as long as they are comparable.
3. False Imprisonment
Lopez v. Winchell‟s Donut House (Ill 1984)
called into back room by employer; told her she was busted; felt compelled to stay to
clear her name.
Hold: employee was not unlawfully restrained, and therefore was not falsely imprisoned
because at no time was she prevented from exiting room during meeting and feeling
“compelled” to stay was not the same thing as being forced to stay.
False imprisonment is defined as an unlawful restraint of an individual's personal liberty
or freedom of locomotion
- imprisonment is defined as any unlawful exercise or show of force by
which the person is compelled to remain.
- Actual force is unnecessary to an action in false imprisonment. Could
be the result of actual or apparent physical barriers, overpowering
physicial force, threats of physical force other duress and asserted legal
- Confinement must be against the will & moral pressure to clear one‟s
name is not enough.
4. Intentional Infliction of Emotional Distress
Womack v. Eldridge (SC of VA 1974)
sues after lies, takes photo, uses it arbitrarily in a sexual molestation case, DA
demands to participate then.
Hold: a cause of action exists for emotional distress, without physical injury, when the
conduct was intentional or reckless, when the conduct was outrageous and intolerable and
offended against the generally set standards of decency and morality, when there was a
causal connection between conduct and emotional distress, and where emotional
distress was severe.
5. Defenses to Intentional Tort
Hart v. Geysel (SC of WA 1930)
& in prize fight, prohibited by statute. dies; Battery?
Hold: Can not sustain an action to recover damages for injuries that resulted from the
fight that he expressly consented to and engaged in as a matter of business & sport.
2. Self Defense
Courvoisier v. Raymond (SC of CO 1896)
shoots cop b/c he thinks cop is one of the men who were trying to rob him
Hold: Where a pleas necessary self-defense, he must satisfy that he acted honestly in
using force, and that his fears were reasonable under the circumstances & also reasonable
of the means used.
3. Protection of Property
Katko v. Briney (SC of IA 1971)
sets up a spring shotgun to stop robbery; breaks in & gets shot. Sues.
Hold: There is NO privilege to use any force calculated to cause death or serious bodily
injury to repel the threat to land or chattels unless there is also such a threat to the
personal safety as to justify self-defense.
4. Private Necessity
Vincent v. Lake Erie Transportation (SC of MN 1910)
moors ship to dock; storm comes; fastens ship & causes damage to dock.
Hold: the preserved the ship at the expense of the dock her and so her owners are
responsible to the dock owners to the extent of the injury inflicted.
The damage to wharf was not caused by an act of God, which would have excused
liability, but was an injury caused by prudent intention to use ' property for the
purpose of preserving its own more valuable property, and therefore, were entitled to
compensation for the injury done.