Final Torts Outline

TORTS

Causes of Action

1. Negligence: If a person, through a failure to undertake reasonable precautions to reduce the risk of physical harm created by this conduct, causes harm to another, then that person is liable to compensate the victim for that harm.

2. Strict Liability: If a person, through some (categorically defined) conduct (e.g. manufacturing a defective product; selling a defective product; here, operating a car during medical incapacitation), causes physical harm to another, then that person is liable to compensate the victim for that harm, regardless of fault.

3. Vicarious Liability: If employee commits a tort while acting within the scope of employment, then employer is vicariously liable to person harmed. Christensen v. Swenson : employer gets lunch at café across the street and negligently hits a

woman while driving backminds could differ regarding criteriaa. Scope of Employment:

In determining whether an employee is acting within the scope of employment, (3) factors are relevant (Birkner criteria):

i. Whether employee’s conduct was of the general kind he was employed to perform; that is whether he was “about… the duties assigned by the employer” rather than “being wholly involved in personal endeavor”

ii. Whether the employee’s conduct occurred substantially within the ordinary (1) temporal and (2) spatial boundaries of the employment.

iii. Whether the employee’s conduct was motivated, at least in part, by serving the employer’s interest.

b. Apparent Agency: Roessler v. Novak : perforated viscus but abdominal scan negligently omitted by independent

contractor-> triable issue for the juryA defendant can be liable for the tort of a third party if that defendant created the appearance of an agency relationship, the third party’s tort occurred within the scope of the apparent agency, and the plaintiff acted to his detriment in reliance on that apparent agency.

i. An apparent agency exists when: 1. The purported principal makes a rep that the third party acts as its

agent; 2. The plaintiff relies on that representation; and3. The plaintiff is injured as a result of that reliance [p.25,3rd last)

Policy Arguments: against VL: too much like SL, unfair if employee acts intentionally for VL: want employers to be careful who they hire and hold employees to high standard

(and punish if necessary), prevent future loss, ensure compensation, enterprise risk-bearing

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THE NEGLIGENCE CAUSE OF ACTION

I. DUTY [Δ owed to π a duty to exercise reasonable care to reduce some legally significant risk]A. Duty with respect to the Negligent Infliction of Physical Injury

1. The Basic Duty Rule (TBDR): Heaven v. Pender [FRG129-30]If a person engages in conduct that creates a reasonably foreseeable risk of physical harm to the person or prop of another, then that person owes to that other a duty to exercise reasonable care to reduce that risk. If B < (Pwo * Lwo) – (Pw * Lw), then failure to take the precaution at issue is breach. Elements:

- D engaged in conduct.- Ds conduct created a risk of physical harm to P’s person or property.- The risk of harm created was foreseeable.

Exceptions to TBDR: Negative exceptions : Determinations that D owed P no duty, even though D did engage in

conduct that created a foreseeable risk of physical harm t P and therefore, other would owe P a duty under TBDR.

Positive exceptions : Determinations that D did owe P a duty even though D did not engage in conduct that created a foreseeable risk of physical harm to P and therefore, otherwise would not owe P a duty under TBDR.

“Misfeasance” versus “Nonfeasance”

Misfeasance (actively negligent) involved a failure to act to reduce risk under circumstances in which D owed P a duty of reasonable care.

Example: Buffalo Electric Co.’s failure to reinsulate wires in Braun is misfeasance – a failure to reduce risk that was created by Ds conduct.

Nonfeasance (failure to act = no duty) involves a failure to act to reduce risk under circumstances in which D did not owe P a duty of reasonable care.

Example: The Priest failed to assist the robbery victim in the parable of Good Samaritan. The priest failed to reduce risk that is created by factors other than his own conduct.

Example: A slothful misanthrope’s failure to save a baby tied to railroad tracks from an oncoming train a mile away. He failed to reduce risk that was created by factors other than his own conduct.

o There is no general duty to act. No liability will flow from nonfeasance, unless there is a superseding special relationship like innkeeper-guest, common carrier-passenger, possessor of land open to public, or where Δ has taken custody over π such as to deny π

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of the normal ability to protect himself. Restatement §314: If Δ sees π in danger, he is under no legal obligation to attempt even as “easy rescue.”

Simonson v. Thorin : Says Δ has affirmative duty to use due care to remove hazard or warn others, though he was not negligent in creating the hazard. Restatement §321. [non-negligent creation]

Mixon v. Dobbs Houses, Inc., 254 S.E.2d (Ga.App.1979) [FRG140, note 5] i.e., TBDR]

a. Positive Exceptions to TBDR: Affirmative Duties to Act Predicated on Δ’s “Special Relationship” with π

i. Harper v. Herman : P injured diving off boat of D (who did not warn) into shallow water -> no special relationship b/c no custody, no power over welfare, no financial gain

Superior knowledge without duty does not establish liability

Restatement (Second) §314A:A special relationship giving rise to a duty to exercise reasonable care to warn includes

1) Common carriers, owed to customers (passengers);2) Innkeepers, owed to guests3) Possessors of land who make that land open to the

public, owed to member of the public who enter the land.

4) Persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection, owed to the helpless person.

a. Simonson v. Thorin , 234 N.W. 628 (Neb. 1931), briefly discussed.

b. Mixon v. Dobbs Houses, Inc. , 254 S.E.2d (Ga.App.1979) discussed.

ii. Duty based on (conduct of) coming to the aid of a helpless person (“Taking Charge”): Farwell v. Keaton: Farwell/Siegrist stalk some girls, guys beat them up, Farwell passes out and Siegrist leaves him parked in car overnight, dies of hematoma -> initiating aid created duty

Restatement (Second) §324: [FRG141, n.4]If a person takes charge of another who is helpless, then that person is under a duty:

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a) to exercise reasonable care to secure that helpless person’s safety while in the actor’s charge; and

b) when discontinuing assistance, to exercise reasonable care to leave that helpless person in no worse position than when the actor took charge of him.

iii. Specific Implementation of TBDR: “The Undertaking Doctrine”If an actor voluntarily acts in a way designed to reduce the risk to which others may be exposed, then a duty of reasonable care exists if the actor increases the risk of harm to others or if others rely on the actor’s undertaking.

1) Risk resulting from Ps foreseeable reliance on D’s voluntary undertaking, so that P does not purse alternative means of self-protection.

2) e.g., Mixon v. Dobbs, FRG141, n.5

Note: courts are split on whether duty exists if undertaking does not worsen situation—some say yes, some say no -> Concern of chilling effect on would-be rescuers if duty created

2. Negative Exceptions (Limitations on the Zone of Duty) – courts have limited the duty of care on public policy grounds

a. Moch v. Rensselaer Water Co. : Denial of duty to prevent the undue and indefinite (crushing) enlargement of the zone of duty. Cardozo called the negligent failure to provide fire hydrant water mere nonfeasance, “at most the denial of a benefit”, and not the direct commission of a wrong. Δ didn’t contract directly with π. Finding otherwise = unlimited liability.

a. failure to provide water to extinguish fire is nonfeasance in denial of benefit, not misfeasance

b. Holding rejected by “undertaking doctrine” distinguishing installation vs. maintenance (i.e it’s a complicated distinction!)

c. Epstein on nonfeasance: duty under B<PL = social utilitarian vs. no duty = rights-based approach favoring autonomy of stranger

b. Strauss v. Belle : Blackout in common area of apartment building – the court ignores traditional tort principles and denies liability on the basis

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of preventing unlimited liability. Court says there is precedent for considering the proliferation of claims. The dissent argued no proof of proliferating claims or crushing liability and that π was a foreseeable victim. Also, allowing liability would allow for loss-spreading.

3. Duties to Protect others from 3PDP (based on Heaven’s TBDR)In general, there is not duty to control the conduct of others. Mere knowledge that a tortfeasor may act is not sufficient to create a duty at common law.

a. Specific Duty Rulesi. Negligent Entrustment: A Specific Rule that Implements TBDR

where D created risk in relation to a third-party dangerous person. Imposing a duty based on the defendant’s having “supplied” chattel to a third person that defendant actually or constructively knew was “likely” to use such chattel in a manner involving reasonable risk of physical harm to others.

Restatement (Second), § 390 [FRG184 top]:One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and other whom the supplier should expect to share in or be endangered by its use, is subject for liability for physical harm resulting to them.

Elements of this rule:1. D supplied something to another.2. The thing supplied was chattel. 3. The supplying of the chattel was directed or through a third person.4. The person to whom the thing was supplied was likely to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should have expected to share in or be endangered by its use.5. The D knew or had reason to know that the person to whom the chattel was supplied was likely to use it in a manner involving unreasonable risk of physical harm to himself and others.

1)Vince v. Wilson : both Aunt (who put up money) and car dealers can be found to owe duty to π hit by a car by troubled nephew. Dealers had no duty to inquire, but if they knew of the risk, they can be liable. Can apply to loans as well as sales.

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Rule: If a person lends a chattel to another, with actual or constructive knowledge that the other is likely to use the chattel in a manner that will endanger the physical welfare of others, then he owes a duty to those other under “negligent entrustment.” (Dicranian).

Policy Bases for No-Duty Rule1.Crushing liability concerns (Strauss v. Belle Realty Co: NY black-out injury not

recoverable despite privity) Counter-argument: rate-increase to pay for liability costs, or limit

liability to willful misconduct/gross negligence2.Moch (see above, 146n8): prevent homeowner’s insurers from suing water

company insurers b/c inefficient use of courts3.In re NYC Asbestos Litigation (182n9): woman gets cancer from exposure to

husbands uniformsno duty b/c foreseeability cannot be the sole basis in failure to warn

4.Social policy: can’t expect people to police others in social settings Reynolds v. Hicks (183): wedding reception, nephew (minor) gets drunk

and injures Pdespite statute prohibiting, no duty from third party social host (unlike commercial vendor); compare Kelly v. Gwinnell (187n4)

b. Positive Exceptions to TBDR (3PDP)i. Restatement (Second) §315 [FRG152] –

“A duty to care {to warn about or control a third party dangerous person] may arise from either (a) a special relationship … 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 of protection.”

Second Restatement, §§ 316-319: identify qualifying special relationships [See Course Supp., p.2] – 316: parent to child317: master to servant318: possessor of land or chattels to user of land or chattels319: one who takes charge of a third person whom he knows, or should know, to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

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Elements:

1. D “took charge” of a 3PDP.2. The 3PDP was likely to cause bodily harm to others if not

controlled.3. D had actual or constructive knowledge that the 3PDP was

likely to cause bodily harm to others if not controlled.

Note: the existence of such a special relationship is not sufficient to establish the duty. Each specified special relationship that triggers a duty referred by §315 require that D had actual or constructive knowledge of:

a. His ability to control the TPDP, and

b. The need for action for the benefits of a foreseeable victim.

ii. Tarasoff v. CA Board of Regents : Duty to warn of imminent harm – Positive Exception to R2 §319 Says: if a psychiatrist has reason to know that a patient

is likely to harm a specified third party, the doctor then owes a duty of care to warn the intended victim of the police.

(1) While this is pure nonfeasance and there is no relationship between Δ and the victim, the court establishes a duty on policy grounds. The doctor is in the best position to know about, through his special relationship, and prevent the harm.

(2) Tarasoff contrasts with Strauss- here, public policy expands a duty, while in Strauss it contracted one.

1)The Eight Duty Factors Policy Analysis (California) [FRG151]:We depart from Heaven (TBDR) – i.e. adopt positive or negative exceptions to Heaven – only upon the balancing of a number of considerations, including:

(i) The foreseeability of harm to plaintiff (Chang note: can be in circumstances where Ds conduct did create risk of harm to victim and vice versa)

(ii) The degree of certainty that plaintiff suffered injury;

(iii) The closeness of the connection between defendant’s conduct and the injury suffered;

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(iv) The moral blame attached to the defendant’s conduct;

(v) The policy of preventing future harm;(vi) The extent of the burden to the defendant of

imposing a duty;(vii) The consequences to the community of imposing

a duty;(viii) The availability, cost, and prevalence of

insurance for the risk involved. 2)Other states that use “duty factors:” PA, NJ, IL.

Note: Arguments in favor of no-duty situation

o Trust and confidentiality essential to treatment of patientso Therapists are not good at predicting dangerousness

c. Negative Exceptions to TBDR (3PDP):i. Negligent Misrepresentation – Restatement (Second) §311

(duty not to create risk through 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(a) To the other, or(b) To such third persons as the actor should reasonably

expect to be put in peril by the action taken.(2) Such negligence may consist of failure to exercise

reasonable care(a) In ascertaining the accuracy of the information, or(b) In the manner in which it is communicated.

a) Randi v. Muroc : Risk created through reasonable reliance by Ds conduct to a foreseeable victim. Court found once Δ undertook to represent molester’s character, it had a duty to do so honestly, if not, doing so created a foreseeable risk of injury. This misrepresentation amounted to misfeasance and foreseeability induced reliance. Note: misfeasance b/c took affirmative action to

disclose; court does not want to force disclosure on nonfeasance theory

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Rule: The writer of a recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making those recommendations would present a substantial, foreseeable risk of physical injury to third persons.

Note: partial negative exception of TBDR – negligent misrepresentation; difference is in the word “substantial” here, where under straight application of TBDR, “any” would trigger a duty

ii. Negligent Provision of Alcohol – Social Host LiabilityReynolds v. Hicks: policy concerns of burden of monitoring on social hosts despite statute prohibiting service of alcohol to minors. Commercial vendors do have such a duty.

Rule(s): A social host who furnishes alcohol to a minor owes a duty to

that minor (Hansen) A social host does not owe a duty to persons injured by adult

social guests whom the host served alcohol. (Burkhart) 178 ½ A bar owner does owe a duty to plaintiffs injured by

customers to whom the bar served alcohol. (Burkhart) 178 ½

4. Implied Private Right of Action [Establishing Δ’s Duty with a Statute]a. The Sheehy Test

In determining whether to recognize an implied private right of action in a statute, the court must consider:

i. Whether the plaintiff is one of the class for whose particular benefit the statute was enacted;

ii. Whether recognition of a private right of action would promote the legislative purpose (what was the legislature seeking to accomplish when it enacted the statute & would a private right of action promote that purpose); and

iii. Whether recognition of a private right of action would be consistent with the legislative scheme.

Uhr v. Greenbush : The court found a private right of action did not exist b/c it was not consistent with the 3rd prong. The state had enacted administrative enforcement measures and specifically immunized Δ for misfeasance in giving the scoliosis test. There is no way, therefore, that a private right

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for nonfeasance is consistent. Risk of liability could prompt schools to obtain waiver, disserving the goal of consistency.

b. Restatement (Second) of Torts §874A: Tort Liability for Violation of Legislative ProvisionWhen a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and need to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action. [emphasis added]Elements:

i. The statute in question protects a class of persons by prohibiting or mandating certain conduct;

ii. The statute does not expressly provide for civil remedy;iii. A private remedy would be appropriate in furtherance of the

purpose of the statute;iv. A private remedy is needed to assure the effectiveness of the

provision. B. Duties of Landowners and Occupiers to Exercise Reasonable Care to Protect Others

from Dangerous Conditions on the Property1. Traditional Rules

i. If the potentially injured person is a trespasser, the possessor of real property owed no duty to reduce risks presented by the condition of that property. [189 1/3] A trespasser is one who enters (or remains) on property without

the possessor’s permission. Al entrants on property are trespassers, until the possessor gives permission to enter or remain. [189 ¼]

ii. If the potentially injured person is a licensee, then possessor of real property owes a duty to exercise reasonable care to reduce risks presented by dangerous conditions of that property abo which the possessor has actual knowledge. [18 1/3] A licensee is one who enters (or remains) on property with the

possessor’s permission. (includes social guest)

o Possessor is not under an obligation to inspect for dangerous hazards

o Carter v. Kinney: P slips on ice at Bible study and breaks

legSJ b/c he was a licensee, invitation only to a select group, not general public, and D did not know of danger. Therefore no duty to warn about unknown ice patch.

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o Policy: Respects privacy and

lets landowner decide maintenance, and recognizes it’s unrealistic to expect

iii. If the potentially injured person is an invitee, the possessor of real property owes a duty to exercise reasonable care to reduce risks presented by dangerous conditions of that property about which the possessor has actual or constructive knowledge. [189 1/3] An [business] invitee is one who enters (or remains) on property

with the possessor’s permission, and from whose presence the possessor has an expectation of material benefit. [189 boot. Para.; 189-190 n.2]

A [public] invitee is one who enters (or remains) on property as a member of the public for a purpose for which the land is held open to the public. [189 n.2]

o Affirmative duty to discover non-obvious dangers and warn or make them safe.

2. Modifications to Traditional Rulesa. Heins v. Webster County :

i. Issue : Whether the court should abolish the common-law classifications of licensee and invitee and require a duty reasonable care to all non-trespassers.

ii. Facts : Man visit hospital but also acts as Santa Clauseno additional burden to protect visitor if already care for invitees.

iii. A number of jurisdictions have abandoned this common law classification. Namely, CA & MA. Those states abandoning the distinctions argue that instead of e entrant’s status, the foreseeability of injury should be the controlling factor in determining the liability of the landowner.

iv. The common law status classifications should not be able to shield those who would otherwise be held to a standard of reasonable care but for the arbitrary classification of the visitor as a licensee.

v. Holding : We conclude that we should eliminate the distinction between licelensee and invitees requiring a standard of reasonab care for all lawful visitors. We impose upon landowners and occupiers only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors. Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of the lawful visitors will be (1) the

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foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use for which the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection. Social Value

vi. Predictability in law is good. 196, top.vii. Protecting life and limb is equally valuable for those who enter

without permission, and those who enter with permission, and those who serve a business purpose. 196, mid. [Contestable?]

viii. Compensating for loss of limb and life is equally valuable for those who enter without permission, and those who enter with permission, and those who serve a business purpose. 196, mid. [Contestable?]

ix. “A man’s home is his castle;” autonomy in the home is especially important in ‘a culture deeply rooted in the land.” [197, top; background, implicit]Social Fact

x. Changing the rule will undermine predictability. (How?) 196, ¼ xi. The traditional rules create unpredictability, changing rule will

serve predictability. (How?) boot. 196 -> top 197xii. Reasonable people – both possessor and entrant? – do not vary

their behavior depending on the status of an entrant. 196 1/3xiii. Unlike the pre-industrial world, expanding the orbit of a

possessor’s duty would not be unduly burdensome in the modern urbanized world. 196, 2/3

3. Duties of Business Owners to Protect Customer’s from Criminal Activity:A business owner owes a duty to invitees to exercise reasonable care to protect invitees from foreseeable criminal attacks. [FRG206] Restatement §315(b)Legal Definition of “foreseeable”: Four approaches for determining whether a criminal attack was “foreseeable.” See 206-207.a. The specific imminent harm test: no duty unless aware of specific imminent harm. Doesn’t matter if he should have known about it. Very limited. Restrictive. b. The prior similar incidents test: foreseeability established by evidence of previous crimes on or near the premises. (This test can lead to arbitrary results because it is applied with different standards regarding the number of previous crimes and the degree of similarity required to give rise to a duty. Factors

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considered: nature and extent of previous crimes, recency, frequency, and similarity to crime in question.)c. The totality of the circumstances test: takes into account condition and nature of the land, previous crimes in area, etc. This is the majority approach, but very broad - tends to place a greater duty on their property, effectively imposing an unqualified duty to protect consumers in areas experiencing any significant level of criminal activity.d. The balancing test: the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against the harm. In cases where there is a high degree of foreseeability of harm and the probable harm is great, the burden imposed upon defendant may be substantial. Alternatively, in cases with a lesser degree of foreseeability or the potential harm is slight, less onerous burdens may be imposed. A high degree of foreseeability necessary to impose a duty to provide security will rarely, if ever, be proven in the absence of prior similar incidents of crime on the property. (This approach gives all the power to the Judge, virtually merges duty (Hand) and the standard of care. Posecai v. Wal-Mart Stores, Inc.:Balancing test adopted. There was high crime in the neighborhood, but not on the premises, so not foreseeable. High burden of hiring security guards compared to low risk.

C. Duty with respect to avoiding infliction of purely emotional injuryDefinitions:Purely emotional injury – Is emotional injury which is not preceded by, and does not arise from, physical injury. Defendants owe plaintiffs a duty with respect to the negligent infliction of purely emotional injury under significantly limited circumstances. Emotional injury that IS preceded by, and arises from, physical injury – Is a compensable component of a plaintiff’s injuries, subject to the same elemental requirements of duty, breach, and causation. . .

1. Direct Actions: Circumstances in which P suffers emotional distress because of fear for his own physical safety.

a. Traditional & Modern Approachesi. Traditional “Impact” Rule: emotional harm only recoverable if

directly caused by physical harm. Recovery barred for freestanding emotional harm.

To establish duty for negligent infliction of emotional harm not arising from physical injury, plaintiff must prove that defendant’s conduct caused a physical impact on plaintiff’s body.

Traditional Approach Elements: If Plaintiff’s attorney can prove e following elements, then defendant owed

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plaintiff a duty to exercise reasonable care to reduce risk of infliction emotional distress:

o Plaintiff suffered “fright” [or extreme emotional distress]

o Plaintiff’s fright resulted from a risk of physical harm created by defendant’s conduct

o Defendant’s conduct caused some physical impact on plaintiff’s person.

o Plaintiff’s “fright” resulted in physical injury of other physical sickness [or, in some states, the “fright” resulted in “physical manifestations”].

ii. Zone of Danger Rule: π may recover for freestanding emotional harm if he had reasonable fear of imminent physical danger and his harm has physical, clinically diagnosable manifestations.

Falzone v. Busch : π nearly hit by a car and suffered sleeplessness and tremors, etc. The court discarded the “physical impact” rule and adopted zone of danger rule.

The court did not adopt a general foreseeability test. Mere fright or paranoia will not sustain recovery. Physical, diagnosable manifestations must be present and π must have had reasonable fear of imminent physical harm.

Note: this was prior to eyewitness/bystander recoveryLimitations:

b. Prevailing Modern Approachi. If Plaintiff’s attorney can prove e following elements, then

defendant owed plaintiff a duty to exercise reasonable care to reduce risk of infliction emotional distress:1. Plaintiff suffered extreme emotional distress. 2. Plaintiff’s extreme emotional distress resulted from having

been present in a zone of physical m danger created by defendant’s conduct.Defendant’s conduct created such a zone of danger if:

a.Defendant’s conduct caused some physical impact on plaintiff’s person; or

b.Defendant conduct placed plaintiff at immediate risk of physical harm, Buckley, at 270; [alternatively, defendants conduct created “a reasonable fear for immediate persona injury.” [Falzone @ 263 2/3]

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3. Plaintiff’s extreme emotional distress resulted in physical injury or other physical manifestations [This requirement varies from state to state, and has been increasingly diluted or abandoned. See p. 264, n.1] [for discussion of analogous issues in the context of indirect or bystander actions, see p. 279, n.7]

ii. Metro-North v. Buckley : pipefitter discovered 3-yr asbestos exposure, constant fear of developing cancer no immediate traumatic harm & not all physical contact = physical impact; P must wait til symptoms appear.Rule: Plaintiff can establish one required element for duty by proving that D’s conduct caused a physical impact on plaintiff’s body.Issue:

Did D owe P a duty with respect to the negligent infliction of extreme emotional injury?

Does the legal definition of “physical harm” include the ingestion of asbestos particles? 269, 1st full para.

Implications of precedent:All prior cases resulting on “impact” involved “contact that caused, or might have caused, immediate traumatic harm.” 270, 1/3.Ambiguities in precedent, or arguments to change the law, resolved by POLICY.

c. Extending Boundaries Gammon v. Osteopathic Hospital of Maine (1987): P received severed

leg which he thought was dead father’s, ruined his family lifecourt creates exception to zone of danger & physical impact requirements for mishandled corpse cases b/c the foreseeability of such emotional harm is so obvious that accompanying physical manifestations or zone of danger are not required. Rule: A person owes another duty w/re to inflicting purely emotional distress when that person’s conduct placed P in a zone of danger of immediate physical harm;Or where the injury results from mishandling the corpse of a close relative. [If a person engages in conduct that creates a highly probable risk of emotional harm to another, then that person owes that other a duty exercise reasonable care to reduce that risk.]

o Limited to “severe emotional distress” & objectivized

“ordinarily sensitive person”o Opens the door for a wide range of claims b/c plaintiff-friendly

o Restricted by other cases

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o Bryan v. Watchtower Bible : court denies child abuse claim based

on “pure foreseeability” and requires unique relationship as well Duty is not predicated on pure foreseeability. The court

in Gammon founded duty (positive exception) on requirement on a unique relationship.

2. Indirect (Bystander) Actions: Circumstances in which P suffers emotional distress because of fear for physical safety of a third party.

a. Earliest Traditional Approach: Tobin v. Grossman (NY 1969) – D owed not duty of reasonable care to reduce the risk of P’s extreme emotional distress arising from injuries inflicted on third party victim.

very few courts do this, particularly b/c horrific exceptions trumping policy concerns: mishandling of corpse, incorrect death telegram

Elden v. Sheldon : no recovery for unmarried couple living together, b/c policy favoring marriage, administrative feasibility

b. Position of Most States: Bovsun v. Sanperi (NY 1984) –

D owed P a duty to exercise reasonable care to reduce the risk of inflicting extreme emotional distress about harm to a third person only if:

1) P was in a zone of danger of immediate physical injury created by D’s conduct;

2) D’s negligence caused the death or serious bodily injury of a third person victim;

3) P was a member of the victim’s immediate family;4) P observed the death or injury at the scene of the accident’5) As a result of such observation, P suffered extreme emotional

disturbance. Note: Commonality between CA and NY is “severe physical

injury” of close relative; primary difference is NY’s zone of danger requirement.

NY requires that bystanders be in zone of danger (+close relationship & direct observance) to prevent floodgate issue (see Bovsun v. Sanperi (292), overruling previous total bar under Tobin v. Grossman))

c. Position of Substantial Minority of States: Portee v. Jaffee (NJ 1980) – Δ’s duty of reasonable care to avoid physical harm extends to the avoidance of this type of emotional harm.

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D owed P a duty to exercise reasonable care to reduce the risk of inflicting extreme emotional distress about harm to a third person only if:

1)D’s negligence caused the death or serious bodily injury of another;2)P and the injured third person had a marital or intimate familial

relationship;3)P observed the death or injury at the scene of the accident;4)As a result of such observation, P suffered extreme emotional

distress. It does not matter that π did not witness the

accident; it is enough that she arrived to watch the hours-long rescue.

Physical manifestation of harm must be present to allow for recovery.

d. Dillon v. Legg (CA 1968) – D owed P a duty to exercise reasonable care to reduce risk of inflicting extreme emotional distress about harm to a third person only if:

1)P was located near the scene of the accident (as contrasted with one who was a distance away from it);

2)The shock resulted from a direct emotional impact upon P from the sensory and contemporaneous observation of the accident; and

3)P and the victim were closely related (as contrasted with the absence of any relationship or the presence of only a distant relationship).

D. Duty with respect to avoiding infliction of purely economic injury1. Introduction:

What is economic loss? Balance sheet loss. What is pure economic loss? Neither preceded, nor arise

from injury to physical property.2. “Economic Loss Rule” and departures - 532 Madison Ave. Gourmet Foods v. Finlandia Center (540 Madison Ave.)The Economic Loss Rule:Defendants owe no duty to exercise reasonable care with respect to the negligent infliction of economic loss, unless such loss accompanied or arose out of physical injury to person or property.Professional duty to 3 rd -party P: linked by conduct, knowledge of justifiable reliance. Traditional concern of [floodgate, ripple effect, catastrophic loss] limited economic loss with requirement of property damage , but some courts allow recovery if foreseeable, few Ps (identifiable class) would be able to sue and D’s conduct is blameworthy.

Three tests for determining duty from professional to third party plaintiff (“3PP”) suffering solely monetary loss (laid out

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in Nycal v. KPMG (306) stockholder derivative action against auditorcourt adopts R552 in favor of D)

o Foreseeability test (NJ): Ps that could be reasonably foreseen (pro-P; legislature later reins this in)

o Near-privity test (NY): “sufficiently approaching privity” (pro-D; need knowledge & course of dealing)

D and third party plaintiff linked by D’s conduct

Justifiable reliance by 3PP Knowledge by D that 3PP

intended to relyo Restatement 552: D intends

representation to influence particular group of persons known to him (protects both; middle-ground)

o Note: parties are free to contract around this Restatement

o Note: small group of states require actual privity

- Policy concerns: Fairness issue that accountants aren’t more accurate just b/c people rely; requiring specific course of conduct too strict (so just draw arbitrary line of foreseeability + limits)

- Now legal disclaimers saying no duty for transactions after audit, even though statement is obviously to influence buying/selling

II. BREACH [Δ breached that duty]A. Factual Theory of Breach: That D engaged in specified conduct – that is, D failed to

undertake some specific precaution(s)1. “Failure to discover and cure”:

To prove a “failure to discover and cure a hazard” factual theory of breach, plaintiff must establish, as a matter of fact, the defendant had actual notice, or constructive notice, of the hazard in question.

Actual notice is established if P proves that the defendant was actually aware of a hazardous condition.

Constructive notice is established if proves that the hazard was present for a sufficient time prior to the accident such that an ordinary person, exercising

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reasonable care under the circumstances, would have discovered and had an opportunity to cure the hazard. See Gordon, p. 87, 2nd para.

Negri v. Stop & Shop (87):messy store floor hadn’t been cleaned for 2 hrs constructive notice and jury may infer

Gordon v. American Museum of Natural History (88): P slipped on steps, saw waxy paper probably from museum concession standclaim failed b/c defect must be visible for sufficient length of time

2. Res Ipsa Loquitur:a. The Doctrine:

i. If defendant had exclusive control over the instrumentality that caused plaintiff’s injury; and

ii. If the accident probably would not have occurred in the absence of negligence on the part of the person having such exclusive control; then the plaintiff has presented sufficient evidence of negligence withstand a motion to dismiss.

b. Variations on the legal consequences of RIL (i.e., the “then” clause of the rule):

i. Permissible inference may be drawn by jury : In some states, RIL provides evidence of negligence sufficient to withstand a motion to dismiss, or motion for directed verdict, from which the jury may, but need not, infer negligence, even if the D presents no evidence rebutting an inference of negligence.

ii. Rebuttable presumption requiring D to satisfy burden of

production or lose the case (stronger view). In some states, RIL provides evidence of negligence sufficient to withstand a motion to dismiss, or motion of directed verdict, places the burden on the defendant to come forward with evidence rebutting the conclusion of negligence. If the defendant does so, the plaintiff bears the burden of persuasion; if the defendant does not do so, defendant loses.

iii. In some states, RIL is “prima facie proof” of negligence – that is, sufficient evidence of negligence that shifts the burden of proof to the defendant.

NY purports to follow version 1, but sometimes seems to follow version 2 if the evidence of probable negligence is sufficiently strong.

California follows version 2.See p. 96 n. 5

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Byrne v. Boadle (92): flour barrel fell and hit PRIL applies

o Compare Larson v. St. Francis chair flew

out window and hit Pno negligence by hotel b/c they couldn’t prevent this & not expected occurrence; Cf. Connolly v. Nicollet Hotel: wild convention resulted, object flew out window into P’s eyemore of a constructive notice/negligence claim than RIL

McDougald v. Perry (94): giant tire loosed from under tractor-trailerRIL applies

c. Stretching boundaries of RIL:i. Ybarra v. Spangard : P unconscious when treated in hospital by

multiple Ds, awakes with injured shouldergroup D liability if all had contact b/c P can’t produce evidenceRule: Where a P receives unusual injuries while unconscious and in the course of medical treatment, all defendants who had any control over his body or the instrumentalities which might have caused the injuries may be called upon to meet the inference of negligence by giving an explanation of their conduct. [FRG104, 1st full ¶]

B. Legal Theory of Breach: That an ordinary person, exercising reasonable care under the circumstances, would have undertaken such specific precaution(s) - Ps position about the governing standard of care. Rule: if a person fails to undertake precautions that an ordinary person, exercising reasonable care under the circumstances, would have undertaken to reduce risk of physical harm with respect to which a duty of reasonable care was owed, then that person has breached a duty of reasonable care.

1. The Hand Rule: If the burden or cost of taking a particular precaution is less than the benefits in risk reduction (that is, the probability of an accident occurring in the absence of that particular precaution minus the probability of the accident occurring if that precaution were taken, multiplied by the average loss or injury to be anticipated if an accident were to occur), then the failure to take that precaution is a breach of the duty of reasonable care. If B < (PxL)w/o – (PxL)w, then failure to undertake the relevant precaution is a failure to exercise reasonable care.

No duty if unforeseeable occurs in spite of reasonable precaution (See Adams v. Bullock, 12-yr-old swinging a wire over a bridge hit a trolley

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wire and shocked him, so he sues - unforeseeable given no similar accident)

Greene v. Sibley : P tripped over mechanic kneeling to look at register - no negligence b/c unforeseeable

U.S. v. Carroll Towing : issue of bargee contributory negligence in not being on board ->Court says fair requirement at least for daylight hours

Optimizes preventative safety of tortfeasing company

Maximizes economic efficiency McCarty v. Pheasant Run : assault because sliding

door not locked) & can only be used by appellate to double-check juries (which don’t weigh cost-benefit)

a. Characteristics of the Reasonable Personi. Objective/external standard regards conduct—administrative

feasibility easier than assessing mind-state, age, IQ, novice; only exception is incapacitation (e.g. Hammontree) b/c concern of slippery slope

Restatement § 283B (mental disability not considered b/c difficult to draw a line, easy to feign, better that their wealth compensate victim, liability will stimulate proper care.)

a. Vaughan v. Menlove : no exception for mentally-challenged D who started a fire

Restatement § 283C (FRG 57) – (physical disability is considered)

Restatement § 289B (FRG 57) – (superior attributes are considered)

a. D acting as an Expert = circumstance that changes standard(e.g., physician)

ii. Children Exception: 10-yr-old held to standard of reasonable 10-yr-old. However, a child driving is still held to adult standard of care

iii. Common Carrier “extraordinary care” (But see Bethel v. NY City Transit collapse of wheelchair seat case: rejecting for same reasons of administrative feasibility and conceptualizing standard between reasonable care and SL)

b. The Role of Judge and Jury in Defining the Legal Standard (Defining Breach)

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Question of fact = jury (whether car was going over the speed limit)

Question of law = judge (whether speed limit applies to motorcycles

Mixed Question = jury (whether driver exhibited due care in driving off slippery road)

o Traditional view: judge may direct verdict if “reasonable minds could not differ”

o Goodman (Holmes): repeated fact pattern best decided by judge for predictability & consistency (unlike jury arbitrations)

o Pokora (Cardozo): facts vary and steadfast rules lack flexibility (although some cases are clear, i.e. Adams)

o Andrews v. United Airlines : jury question exists whether retrofitting would have been cost productive

Ordinarily it is jury’s province to make this decision of this mixed question of law and fact. Sometimes, the judge will make the decision.

Goodman [FRG60] Pokora [FRG62]

2. Custom: Basic Concept: A relevant risk reducing custom is evidence of what the ordinary person exercising reasonable care under the circumstances would have done to reduce risk.

a. Offensive use of custom : If the party whose conduct is in question fails to conform to relevant risk-reducing custom, such failure may establish that party’s negligence. (p69, 4th full papa., lines 1-4; p69, 5th full para., lines 3-5)

b. Defensive use of custom : if the party whose conduct is in question conforms to a relevant risk reducing custom, such conformity may preclude a finding of that party’s negligence. (p69, 5th full para., lines 1-3)

c. Independent determination of reasonable care : the jury must make an independent determination as to whether the relevant risk reducing custom does, indeed, amount to an exercise of reasonable care. (p70, 2nd full para.)

Note: profitability does not enter into B<PL calculus, so company cannot use as defense the fact that conformity with custom would bankrupt them.

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Need not be universal, admissible as indication of standard of care (especially burden element), but not conclusive b/c test is reasonableness.

Trimarco v. Klein : P fell through shower door which many other landlords had switched to tempered glass -> use of custom is admissible

Levine v. Russell Blaine Co. : dumbwaiter rope cut hand and caused infection leading to amputation -> need to show that smoothness was to avoid injuries

3. Negligence Per Se: The court (judge) may adopt as the standard of conduct of a reasonable person the requirements of a statute or an administrative regulation whose purpose is found to be, exclusively or in part, to protect: [Based on Restatement (Second) §28]

a. A particular class of personsWhich includes the one whose interest is invaded;

b. From a particular kind of harmWhich π suffered;

c. Threatened by a particular kind of hazardWhich includes the hazard that resulted in the harm about which suit has been brought.

Rule: Under the doctrine of negligence per se, the court (judge) may adopt as the standard of conduct of a reasonable person the requirements of a statute or an administrative regulation whose purpose is to be found to be, exclusively or in part to protect (i) a particular class of persons (which includes the one whose interest is invaded); (ii) the particular kind of harm (which plaintiff suffered); (iii) threatened by a particular kind of hazard (which played out in causing plaintiff’s injury).

Four Observation about Negligence Per Se:1. A court may choose as defining the applicable standard of

care a statute or regulation enacted, at least in part, for the purposes of reducing the kind of risk that played out in the case at hand. This requires analysis identifying the purpose(s) for which the statute or regulation was enacted.

2. When such a statute or regulation is invoked under negligence per se, it is not merely evidence of reasonable care, as with custom, but defines the standard of care.

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3. The court’s decision to use a statute or regulation as defining the applicable standard of care is the court’s choice – not a command by the legislature. Where the legislature does so command, it has created a statutory cause of action. In other words, negligence per se is part of the common law negligence cause of action. See Clinkscales, FRG76, note 4.

4. Under the doctrine, a party’s failure to comply with statute or regulation that otherwise would define the applicable standard of care might be justified, or excused. Noncompliance can be justified if it occurred under circumstances in which compliance would have been more risky – (i.e., if Pw > Pw/o). Noncompliance can be excused if it occurred under circumstances in which compliance would have been impossible.

Need causal link between violation and harm. Compliance with statute is not dispositive. Martin v. Herzog (Cardozo): buggy and car collide ->

buggy contributorily negligent b/c driving w/out statutorily-mandated light unexcused is per se negligence

Incapacity, lack of knowledge of facts, inability to comply, emergency, compliance poses greater risk (e.g. Tedla v. Ellman: safer to walk with traffic b/c heavy traffic the other direction)

III. INJURY [π was injured; injury is compensable under law]

IV. CAUSATION [Δ’s breach of duty caused π’s injury]a. Cause-in-fact

1.The “But for” causation test: (If P would be harmed regardless of D’s conduct, D is not liable)

Generally uncontested in tort suits (e.g. auto accident issue is negligence, not causation; slip & fall issue is breach, not causation)

Contentious for toxic harms b/c probabilistic causation given background hazard of life & geneticsneed “reasonable certainty” (See Stubbs v. City of Rochester 340: contaminated water and typhoid rate increases)

If the harm would have occurred anyway, without the negligence, we assume there is no cause-in-fact.

Rule: Plaintiff’s attorney must prove that [more likely than not (preponderance of evidence)] but for defendant’s breach of duty, plaintiff’s injury would not have occurred.

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a) Stubbs v. Rochester

Rule: If plaintiffs’ attorney proves, more likely than not, that but for the defendant’s breach, the plaintiff’s injury would not have occurred, then the element of cause in fact has been established.

b) Wolf v. Kaufmann :

Rule: Lack of sufficient evidence to prove more likely than not [> 0.50], that but for Ds breach, Ps injury would not have occurred, because P had failed to exclude any alternative causal chains.

Wolf suggests that: to prove, more likely than not, [>.50], such “but for causation, P might sometimes have to disprove some alternative causal chains.

Stubbs suggests that: to prove, more likely than not, [>.50], that but for Ds breach, PS injury would not have occurred, P does not have to disprove all alternative causal chains.

c) Martin v. Herzog :

Rule: Where an act is negligent because it increases the chances that an accident of a particular type would occur, and where such an accident did occur, there is sufficient evidence from which a jury may find cause-in-fact. 348 bott. para. -> 349, top para.

Hand on breach: If B < (Pwo – Pw)*L, then failure to take the relevant precaution is breach.

d) Zuchowicz v. United States :

Calabresi on cause-in-fact: If Pwo > Pw, then there is sufficient evidence from which the fact finder may determine that, more likely than not, but for Ds negligence, the accident would not have occurred.

e) Hinman v. Sobicienski , 351 BQ [350-51, n3.]:

Rule: If Ds breach “greatly increases” the risk of injury - i.e., if Pwo >> Pw – then there is a basis from which a jury could find, more likely than not, that but for Ds breach, Ps injury would not have occurred. 351, BQ. Note: If Pw is -0-, plaintiff has proved cause-in-fact. It is always helpful for P to disprove alternative possible causation, in situations where Pw is greater than -0-.

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a. “Loss of Chance” –A Different Injury – Not a different cause-in-fact [liability if π can prove, to a reasonable degree of medical certainty, that there was a causal link between the negligence and the lost chance] Matsuyama v. BirnbaumRule: If P cannot prove, more likely than not, (>.50), that but for the defendant’s breach, the injury (death) would not have occurred, then he cannot recover for that injury (death) – unless the state’s law provides for “loss of chance” recovery. Under “lost chance” liability, in situations where the probability of

avoiding loss with the precaution (PaW) is less than .50, but greater than 0 – (i. e., 0< Paw <.50) – plaintiff can recover for the reduction in the probability caused by Ds breach that his injury could have been avoided – (i.e., Paw minus Pawo).

“Loss of a chance damages are measured as the percentage of probability by which the defendant’s tortious conduct diminished the likelihood of achieving some more favorable outcome.” 361, 3rd line.

Note: Plaintiff still must prove causation – that is, P must prove, more likely than not, that but for Ds breach, P would not have lost a chance to avoid his ultimate loss. [FRG358, 4/5]

a. Applies when initial chance of avoiding harm was already 50% or less (b/c if more than 50% than D would be the cause of harm)

Note: Lost-chance is limited to misdiagnosis.

2. “Substantial” (or Sufficient) Factor Causation - An alternative to “but for” causation for proving cause-in-fact (the but for test fails where there are two or more tortfeasors and only one of them could have caused the harm. None of them is but for cause so there would be no liability. This offends our sense of justice and fairness. The substantial factors test overcomes this deficiency.)

i. The problem : P cannot establish that Ds breach was a “but for” cause for Ps

injuries, but only because there are redundant causal chains leading to Ps injury, i.e. there are “multiple sufficient causes.”

Multiple sufficient causes: Problematic b/c tort is about actual harm, but we don’t want to limit good cause-of-action to recover from 2 D’s

o Exception: if 2 fires but 1 caused by

lightning instead of D, then it’s okay to limit recovery from D2

Restatement rejects SF b/c confusion in concluding that one party’s negligence

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exonerates another & creating more onerous burden for P

ii. The doctrinal solution : Where P proves that Ds breach would have been a “but for” cause

for Ps injury, but for a redundant causal chain, P has established that Ds breach was a “substantial factor” in causing Ps injury, and satisfies the cause-in-fact requirement. [end 355, ALI note]a) Multiple Defendants and Exceptions to the Requirement to

Prove Cause-in-fact Joint and several liability:

Rule: Where two or more Ds act concurrently, or in concert, to produce a single injury, P may recover the full amount of damages from both drivers (joint liability) or from either driver (several liability).

If two or more Δs act independently of each other, they act concurrently.

If two or more Δs act together according to a prior agreement, in pursuit of a common plan, they act in concert.

Burden shifts to Δ, who are in the best position to know what actually happened. The goal is to force Δs to come forward with information, else π can collect 100% from each one of them.

b) “Successive and independent liability”: Relevant to allocating costs between defendants, not relevant to prove cause-in-fact. [365 bott. -> 366 top.]

D1 -> inflicting one injury can be held liable for both injuries (but for causation)

D2 -> inflicting distinct second injury can only be held liable for 2nd injury.

Secondary Harm (other cause aggravates harm) “But for” D1’s negligence the later damage from

D2 would not have occurred Liability applies whether or not secondary

service was negligent (Miyamoto v. Lum, 406), i.e. Liability for crash of ambulance driver in normal effort to render aid (Pridham v. Cash)

Person who slips and re-injures leg may recover for second injury (Wagner v. Mittendorf 406)

Exception: Gross negligence may supersede initial liability

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Policy reason to draw the line:1. We don’t want to hold D for negligent

act forever2. Special risk arising out of D’s act may

be limited to window

Note: No apportionment if action in concert; apportionment if successive injuries.

3. “Alternative liability” - Doctrine for addressing another situation in which P cannot prove “but for” causation

i. Summers v. Tice: Court shifts burden to Ds to allocate cause when P shows both similarly negligent (hunting expedition shoots P)

Rule: Where two defendants acted negligently and concurrently in relation to Ps welfare, but only could have been cause-in-fact Ps injury, then P cannot prove, MLTN (>.50), which D was a cause-in-factor for Ps injury because of the concurrent negligence of each, Then the burden shifts to each D to prove that he was not a cause-in-fact for Ps injury. Without such proof, each D is jointly and severally liable.

4. Enterprise (market share) liability (When all D’s negligent but causation for each P is impossible – causal linkage is given more weight here on policy grounds – give right incentives to future parties)(Sindell CA: DES drugs indistinguishable as to manufacturer)

a. Several-only liability (Brown v. Superior) so recover fully only if all manufacturers are joined in a suit

b. National level, (Hymowit v. Eli Lilly NY, 379)i. Compare Conley v. Boyle (389): define market as narrowly as

possible (limit it to particular pharmacy if necessary)c. Why?

ii. Burden-shifting as in Tice not feasible b/c too many tortfeasors and Ds not in better position to determine

iii. Concerted action theory breaks down b/c no agreementd. Note: Hymowitz liability irrespective of Ds ability to establish they didn’t

make pill ingested by particular P – i.e. legislative compensation scheme!

iv. Problematic b/c also gives Ps who can identify specific manufacturers full recovery

e. Courts don’t extend market share beyond fungible productsf. Theoretically, could allocate according to index of market-share and

toxicity levels, but courts are unwilling to take this additional step Sindell:

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1. Any DES manufacturer is liable to a P who proves injury because of DES< but on the basis of several (individual) liability only, rather than joint and several liability. 377, bott. para.

2. Any DES manufacturer is liable to a P who proves injury because of DES , and must compensate that portion of Ps injury corresponding to the Ds share of the national market in DES. 377, 2nd para.

3. Even if a DES manufacturer can prove that it was not the one that produced the pills that Ps mother took, such D is not exculpated from liability to that P. 377, 2nd last para.

b. Proximate (legal) Cause

Modern Doctrine of Proximate Causation

Issues of proximate causation arise when a defendant contends that:

the type of plaintiff’s injury was not sufficiently foreseeable; or Generally, a defendant’s breach is not the proximate cause of injury if

the type of injury was not reasonably foreseeable. the manner in which plaintiff’s injuries occurred – i.e., the nature of the chain of

causation – was not sufficiently foreseeable; or Generally, a defendant’s breach is not the proximate cause of injury if

the manner through which injury was caused was highly unforeseeable, or highly extraordinary.

the extent of plaintiff’s injuries was not sufficiently foreseeable. Generally, a defendant’s breach is the proximate cause of injury

regardless of whether the extent of injury was reasonably foreseeable. (The “Eggshell Plaintiff” doctrine).

Under the concept of “direct causation, “event 2 is an intervening independent event – that is, occurring after Ds negligence and before Ps injury, and occurring independently of – that is, not itself caused by – Ds negligence.

If event 2 joined and became part of the chain of causation leading to P’s injury – as in the points of intersection between tan and red ripples – it supersedes Ds negligence, and precludes a finding of proximate causation.

If a third parties conduct is sufficiently egregious and willful it can brea the chain of causation, and relieve negligent Δ of liability.

I.e., McLaughlin v. Mine Safety: Δ’s negligence in not labeling the heating blocks could be superseded by the fireman’s actual knowledge that they were dangerous and refusal to warn the nurse. B/c fireman affirmatively removed the blocks from the box, which had the warnings, it wasn’t just nonfeasance. Both actual knowledge and the affirmative action are necessary to absolve Δ from his negligent action.

In the case of a special relationship, there will still be liability even if there is a superseding cause. (i.e., Hines there’s an affirmative duty to protect passengers – common-carrier).

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Ds breach directly causes Ps injury when it causes Ps injury through a chain of causation that was not joined and not affected by an independent intervening event.

1. Unexpected Type of Harm (Different type of harm limited to either foreseeability (Wagon) or direct consequence (Polemis))

i. The Wagon Mound (bunkering oil spills but rather than slipway damage the water ignitesrejects Polemis)Rule:“The essential factor in determining proximate cause is whether the damage is of such a kind as the reasonable man out to have foreseen.” [405, 1st para., 4]In other words, a defendant’s breach of duty is not the proximate cause of unless the type of damage was reasonably foreseeable.

Essentially, you are liable for the same things for which you have a duty of care to prevent.

ii. Ventricelli v. Kinney Sys. Rent A Car , 383 N.E.2d 1149 (N.Y. 1978) [FRG408]

iii. Polemis (406): plank falls and ignites the shipliability for all harm stemming from negligent act, regardless of foreseeability (directness test)

2. Unexpected Manner in which Harm is Caused:Proximate cause and the foreseeability of the manner in which harm was caused

i. McLaughlin v. Mine Safety Appliances Co. [Course Supp. Work though hypo Q’s as practice]

General Rule:

The unforeseeability of the particular manner in which Δ’s breach caused π’s injury will not preclude a finding of proximate causation, unless the chain of causation was highly unforeseeable or highly extraordinary.

In other words – If there is a highly extraordinary or highly unforeseeable event in particular the chain of causation that occurred after Δ’s breach and before π’s injury, that intervening vent will be deemed to supersede Δ’s negligence, and preclude a finding of proximate causation.

See Restatement (Second), §435 (2); X7 [2nd X1], note 5. The actor’s conduct may be held not to be a legal [proximate] cause of harm to another where after the event and looking back from the harm

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to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

ii. Hines v. Garrett , (woman raped):Holding: Intervening act did not preclude a finding of liability on behalf of railroad, because the chain of causation leading to π’s injury [Rape] was not highly unforeseeable or highly extraordinary.

Intentional misconduct does not foreclose liability.

3. Unexpected Extent of Harm:Proximate cause rules regarding injuries of a foreseeable type, but unforeseeable extent: “The Eggshell Plaintiff” Rulee.g., Restatement (Second) of Torts §461 (1965), 396, 7th line“The negligent actor is subject to liability for harm to another although a physical condition of the other . . . makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.”

Policy reason: fairness that deserving P should get full recoveryo Foreseeability does not limit recovery

o Cause-in-fact issue only if show harm would have occurred

regardless of aggravating causeo Pre-existing condition relevant for damages (Dillon v. Twin

State Gas, 403 boy grabs electric wire to avoid falling: if killed then no damage, if crippled then mitigate award, if survival then full damages)

Note: if mental condition or suicide was precipitated by accident then recovery (Steinhauser v. Hertz Corp & Fuller v. Preis 404).

Exception: pure emotional harm recovery is only for ordinarily sensitive person or reasonably constituted person (Gammon 281)

Economic harm

Additional Notes on Proximate Causation:e.g., Wagon Mound, 405, 1st para., 4 lines down“The essential factor in determining proximate cause is whether the damage is of such a kind as the reasonable man ought to have foreseen.”

In other words, a defendant’s breach of duty is not the proximate cause of injury unless the type of damage was reasonably foreseeable.

e.g., Restatement (Third) of Torts §29 (2010), 406, 3rd last para. “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.”

4. Unexpected Victim: A Question of Proximate Cause or of Duty?

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i. Palsgraf v. LIR Co. [FRG418]: Based on TBDR, security guards actions did not create a foreseeable risk of harm to someone standing 25 ft. away. (Cardozo). Dissent: [422]

a) Palsgraf v. LIRR (425): guards dislodge package that explodes, hurting P

Cardozo (focus on duty): D duty only to victims within foreseeable zone of danger, not to society generally

Andrews (focus on proximate causation): foreseeability of harm to anyone creates duty [factors = direct connection, continuous sequence, foreseeability, remoteness in time in space]

Note: True issue of negligence presented is left out of decision

Issue of duty, not a doctrinal issue of proximate cause. Unexpected plaintiff limited to zone of harm (Cardozo)

or direct consequence (Andrews) If focused on failure to secure penny-scale instead,

might have created proximate causation issue

DEFENSES

1. Plaintiff’s NegligenceLegal doctrines enabling d’s to prevent P’s from recovering, with respect to which D bears the burden of persuasion. a. Contributory Negligence [FRG 433 – 458]

i. Contributory negligence is “conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause . . . in bringing about the plaintiff's harm.” (Restatement § 463)

1)Last clear chance doctrine: if (1) D’s negligence occurred after P’s negligence, (2) D had last clear chance to avoid the injury, then P could prevail.

ii. Policy reasons:a. Sense of equity—can’t sue unless clean handsb. All-or-nothing approach in proximate cause and J&Sc. Difficulty in measuring degrees of fault

iii. Exemption due to:1) helpless peril, 2) oblivious to danger—but this requires D actual knowledge of danger

b. Comparative Negligence

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i. Pure comparative negligence : Proportional recovery with no maximum limit on degree of P responsibility - e.g., If P 99% responsible, and D 1%, P can recover 1% of the amount of his injury; NY applies pure comparative negligence.

ii. Modified comparative negligence : Imposes a bar against a P recovery if Ps responsibility exceeds a certain proportion. E.g., P is barred from recovering against D if P was more responsible than D; or . . .

Problems: more at-fault P might be better off under contrib. negligence b/c of last clear chance; also, situation complicated when several Ds and P might be more negligent than some but not others

Concern of P’s conduct evidence used in prejudicial way, so no comparative negligence claim in malpractice

Doctrinal effects: eliminated RIL prong 3, last clear chance moot, allows drunk-driver claims against vendors

2. Plaintiff’s Assumption of Risk

Essential idea:

If P was aware of risk of being injured created by Ds negligence, and if P despite such awareness chose to subject himself to that risk, then P is barred from recovery. [traditional rule, preceding move to comparative fault principles]

a. Express Assumption of Risk [Hanks v. Power Ridge Restaurant Corp., 459] By contract, potential plaintiff agrees to release potential defendant from potential

liability for injuries resulting from future negligence. D must prove the existence of the contract, and must prove the contractual

provision in which P expressly released D of potential liability r the negligent infliction of injury

Express assumption of risk was historically, and remains, a complete defense and bar to Ps recovery.

Can’t disclaim if against public policy, unfair bargaining power, and intentional tort, health care.

b. Implied Assumption of Risk1. Primary Implied Assumption of Risk (risk inherent to the activity )

Murphy v. Steeplechase Amusement Co.: “Flopper” was obviously risky ride

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o D asserts that P knowingly confronted a risk that was inherent in the activity of context with respect to which P seeks to hold D accountable.

o Primary assumption of risk is a defense in the sense that D essentially asserts that D owed no duty to P that was breached – either because there was no duty to exercise reasonable care or, there was no breach.

o It is not an affirmative defense; consideration as to whether there was a duty.

o Actual knowledge of the risk is not required. Watching or playing a sport is IPAoR of getting hit by a puck or

tackled. In Knight v. Jewitt, no duty owed for π hurt in touch football.

Murphy v. Steeplechase , no liability because π understood and voluntarily encountered the risk which was the whole point of the activity. Therefore Δ owed a diminished duty.

2. Secondary Implied Assumption of Risk: The true affirmative defense version of assumption of risk – a duty and breach exist, but π’s contributory negligence can be considered on comparative basis. True defense, requires actual knowledge of risk created by Δ’s negligence and decision to assume it. No consent involved. [Davenport v. Cotton Hope Plantation Horizontal Property Regime, 476]If D proves that:

P was aware of a risk created by D’s negligence; P appreciated the significance of that risk; and P voluntarily chose to expose himself to that risk

Then P is barred from recovering against D, despite Ds breach of duty.[Traditional consequence of secondary implied AoR developed under the regime of contributory negligence.]

Alternately:Then P’s recovery is reduced according to principles of comparative fault[Consequence of secondary implied AoR developed by jurisdiction reforming the doctrine for consistency with comparative negligence.]

477, last para. Reasonable Assumption of Risk

o Exists when π is aware of a risk negligently created by the Δ but, nonetheless, voluntarily proceeds to encounter the risk; when weighed against the risk of injury, the π’s action is reasonable.

If reasonable, π can recover, e.g., where π has no other way to protect its interests following Δ’s

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negligence (Boddie v. Scott – saving valuable property from fire)

Unreasonable Assumption of Risko π knows of the danger presented by a Δ's negligence and

proceeds voluntarily and unreasonably to encounter it. If unreasonable, results in reduction of damages.

(Davenport v. Cotton Hope – 3 stairways)

In SC, of risk and contributory negligence have historically been recognized as separate defenses.

Other courts have found assumption of risk functionally indistinguishable from contributory negligence and consequently abolished assumption of risk as a complete defense.

Only comparative fault jurisdictions that have retained assumption of risk as an absolute defense are GA, Miss., Neb., R.I., and S. Dakota.

R.I.: emphasizes assumption of risk is measure by a subjective standard and comparative negligence is based on objective reasonable person standard.

West Virginia adopted a comparative assumption of risk rule as it determined an absolute assumption of risk defense was incompatible with its comparative fault system. The main purpose of comparative negligence is to apportion fault.

Comparative assumption of risk rule: π is not barred from recovery by the doctrine of assumption of risk unless his degree of fault arising therefrom equals or exceeds the combined fault or negligence of the other parties to the accident. (If π’s total negligence exceeds or equals that of Δ, only then is π barred from recovery.)

“The standard for assumption of risk is not what the P should have known but what he actually, subjectively knew”

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Notes:

I. TRANSITION - POLICY ARGUMENTS A. “A-Type” Arguments – Incomplete Privilege of Necessity

1. Moral a. “As between two innocents, the one who caused the harm should pay.” b. Avoid unjust enrichment

2. Economic a. Incomplete privilege discourages carelessness toward another’s

property since defendant pays for harm no matter what. b. Keeping the privilege “incomplete” ensures that the defendant will

minimize the overall social loss rather than just his own losses. 3. Social Policy – “We should subsidize dock owners because otherwise people will be discouraged from going into the docking business.” 4. Administrability

B. “B-Type” Arguments – Absolute Privilege of Necessity 1. Moral

a. Let losses lie where they fall (Holmes) b. Liability should follow moral blame or fault. The defendant is not

morally blameworthy. 2. Economic

a. If we make the defendant pay when it wasn’t morally blameworthy, we will create a disincentive for the defendant to “do the right thing”.

b. We don’t want to discourage people from indulging in normal activity for fear that any action will result in liability for damage.

3. Social Policy – “We should subsidize ship owners because otherwise people will be discouraged from going into the shipping business.”

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4. Administrability

II. POLICY ARGUMENTS: A. Distributive Justice:

1. Concerns for fair allocation of losses can justify such state intervention, but only where the D was at fault when causing Ps inj. Some risks are reasonable and moral; others are unreasonable and immoral. (Holmes)2. Society morally disapproves choices where the costs of accidents exceed costs of prevention. From a distributive justice perspective, one person should be forced to compensate another for injuries he caused if (and only if) she engaged in morally culpable conduct. (Posner)

B. Behavior Influencing:1. Concerns for discouraging socially harmful choices can justify state intervention; the law should not discourage people from infringing in socially desirable risk creation. (Holmes)2. The main policy underlying a legal rule to redistribute losses should be to encourage people to make choices that result in efficient, which is, cost justified, level of accidents. (Posner)

C. Background Considerations:1. The world is full of risks, many created by humans. People inevitably get hurt and the state should not intervene to compensate those injured, or to force specific Ds to compensate specific Ps, unless there are sound policy reasons to justify such intervention. (Holmes)

Procedure:

9-17 address litigation process

Pretrial adverseness

Plaintiff’s complaint (against defendant) [FRG9] Defendant’s motion to dismiss the complaint [FRG9, last para] Defendant’s answer (to plaintiff’s complaint) [FRG10, last para]

Motion for summary judgment (either party, but rarely by plaintiff)[FRG10, last para]: A Ds MSJ should be granted if there is no genuine issue as to some material fact, and based on such fact, the D is entitled to judgment as a matter of law.

A fact is material (or not) in relation to the governing substantive law.

Trial adverseness

Motion for directed verdict (either party) [FRG12, 2ND full para] Motion for jury instructions (either party) [FRG12, 1st full para]

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Motion for judgment notwithstanding the verdict (either party) [FRG12, 2nd last para]

Proximate Cause

Characterization Limit on Recovery

1) Unexp. Manner of Occurrence Initially, negligence does not cause harm in expected manner. Recovery unless “highly extraordinary” intervening acts. Foreseeability/scope of risk tests as well. Normally scope of risk when intervening cause is criminal or grossly negligent. E.g., Doe (no recovery) vs. Ricocheting Car Accident, or car hitting phone pole.

2) Unexp. Amt of Harm (eggshl) No Limit (except for purely emotional harm [e.g., Gammon]). E.g., Benn.

3) Unexp. Type of Harm Wagonmound: ForseeabilityPolemis/Kinsman: Direct Consequence

4) Unexp. Plaintiff Cardozo: Forseeability

Andrews: Duty to one = duty to all, with direct consequences (separate test for remaining proximate cause). E.g., Palsgraff.

5)Unexp. Secondary Harm Initially, negligence causes harm in expected manner. Damages arising out of “special risks” imposed on P by D’s negligence. General scope of risk standard.

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Gross negligence or intentional crime as intervening cause can absolve original P.

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