A. Campbell Austin
acaustin@law.upenn.edu
TORTS.
Overall Summary ......................................................................................................................................... 2
Objectives of Tort Law ................................................................................................................................ 2
NEGLIGENCE ............................................................................................................................................. 3
I. Duty......................................................................................................................................................... 3
II. Breach: Negligence/Carelessness/Reasonable Care ............................................................................... 4
III. Causation .............................................................................................................................................. 4
IV. Special Case of Non-Physical Harm .................................................................................................... 6
V. Damages ................................................................................................................................................ 6
DEFENSES ................................................................................................................................................... 8
I. Contributory Negligence: If P is negligent too. ....................................................................................... 8
II. Assumption of Risk – if P has waived D’s liability ............................................................................... 8
III. Preclusion: statute absolves D of liability............................................................................................. 8
STRICT LIABILITY: CAUSE & HARM ONLY ..................................................................................... 9
I. Inherently Dangerous Activities .............................................................................................................. 9
II. Products Liability ................................................................................................................................... 9
III. Products Liability Defenses .................................................................................................................11
IV. Animals ...............................................................................................................................................12
NO-FAULT: 9-11 Compensation Fund .....................................................................................................13
I. Terrorism: Three Scenarios in Tort ........................................................................................................13
II. The No-Fault Option: ............................................................................................................................13
III. Unique events of 9-11 and Other systems ...........................................................................................13
IV. Justifying Principles? ..........................................................................................................................13
1 of 14
A. Campbell Austin
acaustin@law.upenn.edu
Overall Summary
Objectives of Tort Law
Prevent future accidents
Compensate action
Risk Spreading – particularly Strict Liability for Products
Fairness
At reasonable cost. (Hand rule)
I. The Theories of Tort Law
A. Economic analysis and the Coase Theorem (transaction costs)
B. Calabresi & Melamed:
1. Property Interests
2. Liability Interests
3. Inalienable Interests
C. Corrective Justice
II. The Structure of Tort Law
A. Tort law specifies the degree of care we owe others and damages for failure of that care
B. Tort law has compensatory and injunctive forms of redress
C. Tort law has a common-law structural core.
III. Fault Liability
A. Duty of Care (CARE OF WHO)
B. Standard of Care (WHAT CARE)
1. Reasonable Man standard.
2. Objective Requirement: doesn’t differentiate between HP defendants, idiots, etc.
C. Causation
1. Cause-in-fact or but-for-cause
(a) I cause your harm if your harm would not have occurred but for what I did.
(b) Causal overdeterminiation: what to do when more than one action would have been
enough to cause the harm
2. Proximate Cause
(a) Is there a legal remedy?
(b) Limits: Expectation/Foreseeability of Harm?
IV. Elimination of the elements of liability
A. Res Ipsa: injurer’s action gives evidence of his fault. The victim does not have to show fault.
1. Doctrinal rules:
(a) Accident must be of a kind which ordinarily does not occur without negligence
(b) Caused by an instrument in exclusive control of the defendant
(c) Must not have been due to any voluntary action by the plaintiff
2. Causal Presumption: Show that one of a group caused harm, e.g., Summers v. Tice (1948)
V. Defenses to liability
A. Contributory Negligence: victim is also at fault
B. Assumption of Risk: victim took up the risk the risk
C. Prescription
VI. Strict Liability (Mostly Products)
A. From contract to negligence: death of the privity limitation
B. From negligence to strict liability:
C. From strict liability to negligence: the design defect and manufacturing defect tests
2 of 14
A. Campbell Austin
acaustin@law.upenn.edu
NEGLIGENCE
I. Duty
A. Generally, REASONABLE CARE.
1. Generally, no Duty to others, e.g., Randi W. v. Muroc Joint Unified School District (vice-
principal’s recommendations included no reference to sexual misconduct, no duty.)
2. NO OBLIGATION TO RESCUE.
3. PARTIAL HELP - undertaking: If you start to help, then you have to finish.
B. SPECIAL RELATIONSHIPS
1. Lifeguards/firemen/etc. – part undertaking…
2. Caretaking relationships.
3. Innkeeper/Railroad/etc. – guest: innkeeper/common carrier must help.
4. Psychiatrists – must warn endangered third party. Tarasoff v. Calif. Board of Regents.
5. Doctor doesn’t have duty to warn public about AIDS victim – no foreseeable victim
6. Bartender doesn’t have duty – hasn’t ―taken charge‖ of patron
C. LAND OWNERSHIP
1. Undiscovered trespassers - No Duty of Care
2. Licensees: Duty to inform of hidden hazards, don’t have to inspect
3. Invitees - Business guests/Customers: Duty to keep place safe, inform of hazards, inspect.
4. Many jurisdictions have thrown out these distinctions, now: reasonableness.
5. Also: Attractive nuisance (e.g., swimming pools) – applies to children
D. 3rd PARTIES:
1. No Privity = no duty: Moch v. Rensselaer Water (no water for burning house – no privity, so
no duty.)
2. Privity = no duty: Strauss v. Belle Realty Co. (guy falls during blackout – no K with Power
Co, so no duty)
3. SOCIAL HOST – e.g., Reynolds v. Hicks (drunk kid brother at wedding)
4. NEGLIGENT ENTRUSTMENT, e.g., Vince v. Wilson (aunt buys car for unlicensed kid)
E. GOVERNMENT NO DUTY RULE - POLICY
1. If firemen or cops fail to rescue, they CANNOT BE SUED – Riss v. City of NY (lye in face
after request to police for help)
2. Courts will work hard to make no duty: Cuffy v. City of NY. (test: police promise, knowledge,
direct contact, reliance by victim)
3. Sorichetti v. City of NY – court orders directing discretionary police action, creates duty.
4. Fed Tort Claims Act:
(a) Policy decisions – no liability – ―fraught with policy considerations‖
(b) Ministerial decisions (execution of action – DUTY, e.g., Cope v. Scott (accident in rock
creek park)
F. SPECIAL CASES: Reasonableness standard exceptions:
1. Children: no duty; generally incapable of negligence—they’re careless all the time.
2. Physical Handicaps: disability counts as one of the circumstances
3. Mental Handicaps: NO EXCEPTION – reasonable person standard
4. Learners/Beginners: NO EXCEPTION – reasonable person standard
5. Professionals: NATIONAL STANDARD
6. Medical Professionals: NATIONAL STANDARD (sometimes LOCAL STANDARD)
G. FAMILY DUTY
1. ―Reasonable Parent‖ test‖ e.g., Broadbent v. Broadbent (kid drowns while mother on phone)
2. 5 arguments for immunity
(a) Disturbs domestic tranquility
(b) Danger of fraud of collusion against insurance.
(c) Depleting family resources
(d) Possibility of enriching parents for kid’s death
(e) Interference with parental discipline & authority – micromanagement by court?
3. Culture: Lundman v. McKown (kid dies in Christian science family bec. No doc.) kid’s life is
more important than religion.
3 of 14
A. Campbell Austin
acaustin@law.upenn.edu
II. Breach: Negligence/Carelessness/Reasonable Care
A. REASONABLE PERSON STANDARD: Brown v. Kendall (fighting dogs)
B. HAND FORMULA: Economic analysis, US v. Carroll Towing (barge with no precautions)
1. [Burden/expense of precaution] D(responsibility), then zero. ―when no greater than‖
2. e.g.: A (40%), B (30%), C(10%), D(20%), 40K damages, B,C,D at fault
(a) B 12K, C 4K, D 8K = 24K payment.
7 of 14
A. Campbell Austin
acaustin@law.upenn.edu
(b) Aggregate, P recovers all 24K.
not aggregate, P recovers nothing.
if any one D has greater fault than P, then P recovers only from him.
(c) Aggregate, P recovers all 24K.
not aggregate, P recovers nothing.
if any one D has greater than or equal fault as P, then P recovers only from him.
3. Now, if D drops out . . .
(a) Under Uniform Act, we redistribute the harm among the remaining parties:
A (50%), B (37.5%) + C (12.5%) = 20K
(relatively fair allocation of D’s burden)
(b) Under many states with J&S, we just redistribute the total damages among remaining Ds.
A (40%), B (45%) + C (15%) = 24K
(punishes other Ds)
(c) Under many states with S, then we keep original allocations, and P just doesn’t recover
from D.
A (40%), B(30%) + C (10%) = 16K
(punishes P)
4. Now, if C is also hurt, for 25K . . .
(a) Assign portion of each harm by fault of each party. (so, C gets back (1 - .9)*25K,
distributed among A, B, and D; and A gets back (1 - .4)*40K, distributed among B, C,
and D.)
(b) Netting cross-damages hurts when insurance companies are picking up the bill.
(assuming no insurance, then we can just net out cross-damages)
DEFENSES
I. Contributory Negligence: If P is negligent too.
A. If harm regardless of P’s negligence, then it’s not contributory.
1. It’s not careless to be on platform because wall might fall, but because platform might fall.
B. Old system – zero recovery
C. Some exceptions: Last Clear Chance, Recklessness – usually, jury would just apply comparative
standard.
D. COMPARATIVE NEGLIGENCE – new system, based on balance of fault.
1. Three implementations:
(a) ―pure‖ CN – just take proportion of faults.
(b) If P’s CN => D(N), then zero. ―CN only when not as great as‖.
so if P and D are equally at fault, then zero recovery.
(c) If P’s CN > D(N), then zero. ―CN when no greater than‖
II. Assumption of Risk – if P has waived D’s liability
A. GENERALLY: ASSUMPTION = WAIVER: I hereby assume all risk!
1. But if the victim can find a loophole, the court will give it to them.
2. Also, one can’t sign waiver of gross negligence. (well, you can, but no court will uphold it.)
3. Further, can’t sign one of them under duress—e.g., emergency room waiver forms.
B. TYPE 1: PRIMARY ASSUMPTION OF RISK (sign a waiver)
1. Exceptions to waiver: Dalury v. SKI ltd (guy signs release, skis, runs into pole, sues, wins.)
C. TYPE 2: IMPLIED ASSUMPTION OF RISK
1. No negligence if risk is assumed by victim: Murphy v. Steeplechase Amusements (the flopper)
2. If you agree that negligence is present, then no case Davidoff v. Metropolitan Baseball Club
3. This is now moving toward percentage of risk—so you can claim a chunk of damages, up to
the proportion of risk that you’ve assumed.
D. TYPE 3: SECONDARY IMPLIED ASSUMPTION OF RISK – Davenport v. Cotton Hope (lights
in staircase) when you know about D’s negligence, but subject yourself to it anyway.
III. Preclusion: statute absolves D of liability
A. If you comply with Federal Statute, you’re covered, because you weren’t careless.
B. SCOTUS says claims about failure to warn are preempted, because congress has spoken.
8 of 14
A. Campbell Austin
acaustin@law.upenn.edu
STRICT LIABILITY: CAUSE & HARM ONLY
I. Inherently Dangerous Activities
A. If an activity is dangerous even if done carefully, somebody might still be hurt, and we want
to hold them to a higher standard strict liability is this pressure.
1. e.g., Rylands v. Fletcher (water in reservoir ―escapes and does mischief‖)
2. Blasting is good example: Sullivan v. Dunham (dynamited tree hits P on highway, court holds
blasters liable)
3. But exceptions:
(a) Losee v. Buchanan (holding that owner of exploding boiler not liable, because public
policy supports productive use of land.)
(i) Draws distinction between accidental explosions and intentional blasting.
(ii) plus, everybody gets to share the benefits of industrialization, so everybody has to
bear the cost.
(b) Turner v. Big Lake Oil Co (holding that reservoir is a ―natural use‖ and thus not subject
to strict liability.)
4. Indiana Harbor Railroad v. American Cyanamid (RR sues chemical manufacturer to settle
claims against RR for chemical spill) p.511 (916 F2d 1174)
(a) Use abnormally dangerous test (below)
(b) Being careful would have prevented this. Negligence is more appropriate.
B. STANDARDS
1. Dangerous condition escapes, does mischief: Rylands v. Fletcher (mill pond in mine)
2. 1st Restatement: ―ultrahazardous‖ activity: carefulness doesn’t eliminate danger.
(a) High risk
(b) Great Harm
(c) No amount of carefulness will remove risks
(d) Common usage
(e) Inappropriate activity in given location
(f) Low value to community.
3. 2nd Restatement: ―abnormally dangerous‖ test:
(a) Degree & Gravity of risk
(b) Impact of carefulness
(c) Local-commonality of action
(d) Value of activity
II.Products Liability
A. LIABILITY SCHEMES:
1. Most extreme: absolute liability
(a) Get rid of causation, fault, etc.
(b) NO DEFENSE.
2. Strict liability
(a) Need causation: in-fact and proximate.
(b) Fault doesn’t matter.
(c) Defense: Consumer’s fault.
3. Negligence:
(a) Reasonable care – need fault and causation.
(b) Defense: Contributory negligence
B. MANUFACTURING DEFECTS
1. DEVIATION FROM INTENDED DESIGN– assembly screwup: MacPherson v. Buick
Motors (wheel breaks; auto manufacturer strictly liable)
(a) Consumer expectations (and manufacturer’s expectations, too!)
(b) Don’t need to consider reasonableness—manufacturers consider defect is defective.
2. NO PRIVITY REQUIREMENT BETWEEN BUYER & SELLER for mass production.
(a) E.g., blender with missing screw, which causes it to blow up.
3. CREATION OF STRICT LIABILITY: Escola v. Coca-Cola Bottling of Fresno (waitress
cuts hand on exploding bottle; strict liability created)
9 of 14
A. Campbell Austin
acaustin@law.upenn.edu
(a) Truly strict liability; if there’s a flaw, then they’re liable, regardless of how careful the
manufacturer is.
(b) Manufacturer knows about manufacturing process, so plaintiff can’t argue safety of
process.
(c) It’s socially valuable for the manufacturer to act as insurer; manuf. can spread cost of rare
losses over all customers.
4. ENTIRE DISTRBUTION CHAIN IS LIABLE
(a) E.g., broken peanut bottle bought at Kmart; Kmart is liable, just as Planters Peanuts is
liable.
C. DESIGN DEFECTS
1. More like negligence: Manufacturing done correctly, but design was flawed
(a) Not self-defining like manufacturing defects.
(b) Soule – consumer expectations aren’t coherent.
2. DESIGN FACTORS TEST e.g., Barker v. Lull Engineering (high-lift loader drops wood on
guy who jumped for cover):
(a) Gravity of danger posed by design
(b) Likelihood that danger would happen
(c) Mechanical feasibility of a safer design
(d) Financial cost of design
(e) Alternative consequences to the product
3. CONSUMER EXPECTATIONS TEST
(a) Ortho – consumers do have expectations – OPEN & OBVIOUS
(b) Camacho v. Honda Motor Co. (motorcycle sans leg protectors, not a problem)
4. REASONABLE ALTERNATIVE DESIGN OPTION
(a) More like negligence in this respect
(b) (Plaintiff has to show negligent design)
(c) Cost-benefit analysis appropriate.
5. EXPERT WITNESSES REQUIRED FOR ALT. DESIGN: Soule v. GM (datsun destroyes
camaro, front wheel crushes passenger foot space, Expert testimony on alternative designs is a
separate test.)
6. UNIQUE DESIGNS get exception, e.g., Dreisonstok v. Volkswagenwerk AG (VW microbus
– forward passenger compartment at extreme front of bus)
D. WARNING DEFECTS
1. More like negligence—―could warning have been better‖?
2. HEEDING PRESUMPTION
(a) Presumption that someone will read a warning
(b) If warning is present, then victim could be comparatively negligent.
(c) ―heeding presumption‖ must be refuted by D with inadequate warning for him to survive
the suit.
3. WARNINGS MUST MEET MINIMUM LEVEL OF DESCRIPTION: Ragans v. Miriam
Collins-Palm Beach Labs (hairstylist accidentally mis-mixes perm chemicals, blows up face)
4. KEEP WARNINGS LIMITED copious warnings cause problems: e.g., Hood v. Ryobi
America Corp. (lots of warnings, even tho no ―blade might fly off‖, still cool.)
5. LEARNED INTERMEDIARY DOCTRINE: Edwards v. Basel Pharma. (nicotine patches
+ smoking = cardiac arrest)
(a) No duty to warn if Doc has to give prescription.
(b) Exceptions:
(i) Mass Immunization – no doc-patient interaction.
(ii) When FDA says ―warn the patient.‖
(iii) Commercial advertising – when advertising directly to consumers, all warnings must
be present.
6. UNKNOWN DANGERS AT DISTRIBUTION: Vassallo v. Baxter Healthcare Corp (in the
future, manufacturers aren’t responsible for reporting new breast implant data)
(a) Exception: Beshada – even if you didn’t know, you’re still liable.
(b) Restatement 402A comment J: ―product is defective because of inadequate warnings
when the foreseeable risks of hamr posed by the product could have been reduced or
10 of 14
A. Campbell Austin
acaustin@law.upenn.edu
avoided by the provision of reasonable instructions or warnings . . . the seller is required
to give warning against a danger if he has knowledge, or . . .could have knowledge‖
(c) Diversity of opinion . . .
(i) Strict liability = company has to warn, fix, etc., whatever.
(ii) Negligence = company just has to do what’s reasonable.
(d) Feldman NJ case (NJ 1984) – rejects ex post rule for non-asbestos cases. (teeth
discoloration)
(i) D is only liable for defective warnings
(ii) Ex ante approach – looks a lot like negligence; asks what D knew or should have
known
E. EMPLOYER MODIFICATIONS & WORKMENS COMP
1. Loophole in workmens’ comp scheme: sue manufacturer of defective equipment used at
work.
2. e.g., Jones v. Ryobi (printing press with safety device removed)
(a) In fact, the 3rd party who modified the machine was liable.
(b) Even if such modification was foreseeable, Manufacturer isn’t liable.
(c) Policy:
(i) Deterrence: manufacturer has some responsibility, but most of it rests with employer
. . . so imposing liability on manufacturer isn’t really effective here in solving the
problem.
(ii) Loss Spreading: doesn’t make much sense to spread cost to companies who don’t
modify the machine.
(iii) Of course, it Might not be a workable machine if every purchaser removes the
guards.
3. POST-SALE WARNING NEEDED AFTER NEWLY FORESEEABLE 3 RD PARTY
MODIFICATION Liriano v. Hobart (immigrant kid in meat dept loses hand in grinder)
(a) ―No warning‖ = defective product (Lugo)
(b) Manufacturer is responsible for foreseeable modifications, but unforeseen 3 rd party
modification can bar liability of manuf. (Robinson)
(c) If product is made to work easily both with or without guard, then manuf. is liable.
(Lopez)
(d) Also, Hobart has post-sale duty to warn of newly recognized danger. (Cover)
4. NY is outlier on POST-SALE WARNING
(a) Most states find that if a modification is unforeseeable, then the manufacturer isn’t liable.
(b) If it’s foreseeable, then liable, regardless of 3rd party modifications.
(c) Reasonableness standard.
(d) Also an outlier, because it allows manufacturers to recover from employers.
5. BULK SUPPLIERS: Similar to Learned Intermediary Doctrine, above.
F. BEYOND PRODUCTS:
1. HYBRID TRANSACTIONS: Royer v. Catholic Medical (defective fake knee, hospital isn’t
a ―supplier of goods,‖ so not liable for defective product)
2. RETAILERS LIABLE: Vandemark v. Ford et al. (retailer liable, since Ds can apportion
costs better between retailer and manufacturer)
III. Products Liability Defenses
A. Negligence defenses:
1. Contributory era – 100% bar
2. Comparative era – proportional fault
B. Products defenses:
1. Pre-comparative era
(a) Negligence by victim = 100% defense
2. Comparative era
(a) Comparative – partial.
(b) E.g., P puts head under back of truck while manipulating controls. P’s family sues—says
design is defective. D says P was negligent.
(i) Strict liability – no defense, even if contributory negligence.
assumption of risk – voluntarily accepting known danger. (if yes, then complete bar)
11 of 14
A. Campbell Austin
acaustin@law.upenn.edu
3. Failure to discover cases –
(a) No duty to inspect for defects – not a defense.
(b) But if you’re negligent, then no luck . . . e.g., Sanchez v. GM (guy dies with the heifers)
IV.Animals
A. Classifed as Wild or Domestic by species
B. Strict liability - for all Wild animals.
1. If animal is under control, then no liability (e.g., kid reaches into lion cage)
2. Why? If the animal inevitably dangerous, even if tended carefully—telling the owner to be
careful isn’t enough (naturally)—so they’re liable all the time.
C. One Bite Rule - for domestic animals
1. Utility of the animal – domestic animals are useful, so we don’t want to impose a high
liability cost on their use.
12 of 14
A. Campbell Austin
acaustin@law.upenn.edu
NO-FAULT: 9-11 Compensation Fund
I.Terrorism: Three Scenarios in Tort
A. Huge Attack, like 9-11
B. Heavily populated sites (e.g., sports stadium)
C. Localized acts of Terror
II.The No-Fault Option:
A. General Idea:
1. Collective notion that basic needs recovery ought to be the norm
2. Social Welfare perspective
3. Normal program: ―Horizontal Equity‖
(a) If you can show that you’re in the class of victims, then you get fixed calculated amount.
B. Problems, Generally:
1. Workmens comp example: why should worker get compensated for accident he would have to
bear himself if it happened off the job?
2. Problems with adequate recovery—no fault is expensive.
3. No Deterrence
4. No Corrective Justice
C. 9-11 Approaches:
1. 9-11 Statutory Model
(a) Objectives:
(i) Protect airline industry
(ii) Protect port authority
(iii) Compensate victims
(iv) Political cover.
2. Model designed by Special Master
(a) Collateral Source Offset – insurance coverage dumped first
(b) Economic loss – Max cap
(c) Non-economic Loss – scheduled benefit of 250K per death
3. Hybrid Model:
(a) Level of economic compensation set as in tort.
(b) At the same time, there’s huge deductions from this award from the collateral source
offset.
(c) But minimum recovery set.
D. Rabin’s Idea: Merge Tort and No-Fault:
1. Hit Deterrence & Corrective Justice
2. Compensate Victims.
III.Unique events of 9-11 and Other systems
A. Pattern of implementation by Special Master
1. ―Edge up closely to the range of tort compensation to make no-fault attractive enough that an
offer wouldn’t be refused‖
2. But minimum recovery too.
3. Combination of normal no-fault Horizontal Equity and Tort eggshell plaintiff approach.
B. Other Models
1. Israel: Treat terrorism victims as fallen soldiers – pensions for families
2. Northern Ireland: workers-compensation type tariff of scheduled benefits, flat sum recovery
for body parts or mental disability.
3. California Crime Victim compensation
4. Victims of Crime Act (federal)
(a) Pattern: Low ceilings on max. recovery
IV.Justifying Principles?
A. Generally:
1. Make victims whole
2. But no deterrence
13 of 14
A. Campbell Austin
acaustin@law.upenn.edu
3. What distinguishes victims?
B. Workers comp? Early objections – if worker is hurt at work, or in the street, he suffers the same
loss—why compensation just for on the job injury?
C. Foreseeability – Tough stance: victims on airlines recover; nothing for people on the ground
1. Negligence on plane – unsecured flight deck
2. No foreseeability that terrorists would crash plane into buildings.
D. Holes in the theories:
1. ―Enemy attacks‖ isn’t really stable—what about Oklahoma City bombing?
2. Terrorism itself is pretty weak, too . . . other than national bereavement. What about DC
Sniper?
3. . . . and then there’s the issue of insolvency in mass-tort issues
E. Conclusion (?): All of these problems with line-drawing (and cost-assignment) leave us dependent
on tort, because fault is what we’ve got.
14 of 14