orgs.law.harvard.eduorgs.law.harvard.edu/.../2013/04/Shugerman-Tort-OutlineC…  · Web viewIntroduction. A tort is a civil wrong not arising out of a contract. It is about social

Shugerman Tort Outline

1) Introductiona) A tort is a civil wrong not arising out of a contract. It is about social contracts (what you owe

people just by being in a community). Deals more with state than federal governmentb) Established through common law more than statutec) The elements include:

i) Duty (is there a duty/standard of care?)ii) Breach (did the person violate that standard of care)iii) Causation (did the person’s violation of the standard of care cause the accident)

(1) Cause in fact: general rule (“but for” causation)(2) Proximate cause

iv) Defenses (was the victim also liable for harm, did he assume the risk?) v) Damages (how do we calculate damages? What does victim get, if anything?)

d) Under Duty, there are levels of care/standards of care: Intent, Recklessness, Carelessness/Negligence, Strict Liability

e) The purposes of Tort Law include: i) Corrective Justice (injustice is corrected…the individual injurer who directly compensates

the individual victim)(1) Match the plaintiff and the defendant(2) Individual fairness(3) Direct moral friendship between tortfeasor and victim: “matching”

ii) Civil Redress (need recognition that person was wronged in proportion to the seriousness of the wrong)(1) Make people accountable for their behavior(2) Social symbolism and expressive function(3) Social justice

iii) Deterrence (deter excessively risky behavior. But some losses are not worth avoiding)(1) Optimal deterrence

(a) Social policy: reduce accidents(b) Focus liability on the best cost avoider/best accident avoider, not necessarily the most

morally accountable(c) Cost-benefit analysis and concerns about overdeterring socially beneficial activities(d) Find the best cost avoider (i.e. people and companies who understand the costs of

risky behavior and will change their acts accordingly to avoid unsustainable tort losses) and impose liability

iv) Compensation (compensate victim for the wrong)(1) Usually monetary(2) Providing benefits to accident victims(3) Restorative justice? Making the victim whole(4) Loss distribution: spreading the costs of accidents from victims to insurance and

consumersv) Judicial Economy

(1) Manageable rules for courts, clear rules for individuals(2) Manage litigation efficiently

f) Important Themes:i) “Deep Pockets” v. “Judgment-Proof”—To ensure victim’s compensation, want to find a

defendant who will pay them. Also want to ensure injurer’s conduct changes to prevent same injury from recurring. Insolvent defendants can’t pay and won’t be deterred by a judgment (“judgment proof”), whereas targets with resources (“deep pockets”) will both adequately compensate victims AND alter their behavior to avoid future losses

g) Best Cost Avoiders—Recurring defendants (corporations, insurance companies) are most susceptible to tort liability judgments. They understand the costs of risky behavior and are most likely to alter their behavior to avoid economically unsustainable tort losses.

h) Legal Realism—In order to do “rough justice” to injured party, judges will come up with the result they want, no matter what precedent says they SHOULD hold

i) Hindsight Bias—Holding P (or D) responsible for an action they “should” have taken in retrospect. “Why didn’t you just do…?”

j) Rules v. Standards—“Crystal v. Mud.”i) Rules are objective, easily to understand and apply. However, may not provide justice in all

situations, requiring exceptions to be carved outii) Standards are more subjective and can be tailored to the individual situation. However, they

may produce disparate results, reducing applicability, foreseeability, and deterrencek) Capture—Rule-making (or –enforcing) bodies can be taken over by those who want to

deregulate…or who have a stake in unprofitable regulations continuing!l) Judicial Elections—This is the new means to “capture” the judiciary, typically by pumping

money into local / State Supreme Court elections to install interest-friendly judgesm) Non-Reciprocal risk creation: one person’s negligence creates non-reciprocal risks to everyone

else around them. Generally, if you are acting negligently than you have created a non-reciprocal risk creation. If you do an ultrahazardous activity, you get profits (internalize costs) but the other people (third persons) are not internalizing any benefits. Don’t get any profits or benefits and that is why we have strict liability. If you create risks around you that are super dangerous or just negligent, you have a moral right to help with this moral unbalance

n) Foresight bias/optimism bias: as you engage in activities, you underestimate the danger of an act. You underestimate the danger of an act before you get hurt. Strict liability helps with this because strict liability means that you will be liable regardless so you should be careful from the get-go (you break it, you buy it). Strict liability means you have to be more vigilant

o) Bilateral causation: there are always lots of causes to an act/injury. We can’t have a general strict liability rule because then any act that caused a harm would be subject to strict liability. You should only be liable for the risk that you caused that over and above everything.

p) Equitable apportionment: when you have apples and oranges, just give it to the jury to apportion. This is what Shugerman argues for. Can do this through comparative risk. Who created the most risk

q) Permissible inference: There is still a question but jury could infer negligence. There is still an open question. Ex) see this in zuchowicz p. 459

r) Rebuttable presumption: blatant negligence. The sheer fact that X happened, jury will presume that there was negligence unless the defendant comes up with defense (shifts burden to defendant). see this in zuchowicz and summers v. tice. Particularly with summers v. tice, the jury could presume that there was negligent so up to defendants to get each other off the hook

2) Intentional Tortsa) Types of Intentional Tortsb) Rule: A person acts with the intent to produce a consequence if:

(1) The person acts with the purpose to produce a consequence; or(2) The person acts knowing that the consequence is substantially certain to result.

(Restatement §1)

(a) Battery (see below)(b) Assault: D acts with the intent to cause apprehension of imminent harm or offensive

touching on the part of another. Mental peace is in jeopardy. Threat of physical contact. (i) Assault and battery are usually linked.

(c) Trespass(d) False Imprisonment: There is a restriction of the plaintiff’s movement.

(i) Requirements:1. There must be total confinement 2. The P must have conscious awareness of the confinement3. The restraint on the person’s freedom must be intentional

(e) Intentional Infliction of Emotional Distress(i) No peace of mind. What you said causes distress. What you said must be

extremely outrageousc) Analysis:

i) Is the conduct single intent or dual intent?(a) Single intent: Only need to intend contact (Vosburg)(b) Dual Intent: Need to intend contact and harm

ii) Is the conduct one in which there is strict liability?iii) Eggshell Plaintiff Rule/ Thin Skull Rule (only deals with bodily harm): A D takes the P as

he finds him. It does not matter if D knows whether plaintiff has an eggshell skull. The condition of P prior to the harm is irrelevant to the damages. So even if D’s actions have an unusual effect on P, D must pay for P’s injury

iv) Battery: (a) Rule: Restatement Second of Torts §13 Battery: Harmful Contact

(i) An actor is subject to liability to another for battery if:1. He acts intending to cause a harmful or offensive contact with the person or

an imminent apprehension of such contact and;2. A harmful contact with the person of the other directly or indirectly results

(2) Actual physical contact. (3) A harmful or offensive contact with another, resulting from an intention to cause that

contact or from an intention to put another in apprehension that a harmful or offensive contact is imminent.

(4) Protects physical well-being and bodily autonomy. (5) You must intend the contact.

(a) Purpose or knowledge(6) If you touch/contact someone and it is unpermitted, you have committed a battery and

you are responsible for all damages that follow. (7) Tort law emphasizes bodily autonomy, so can get in trouble for small touches. (8) D must have intended the contact (but not the necessary harm). (9) There are not many battery cases in the US because people in battery don’t usually have

assets.d) Case Summaries:

(a) Vosburg v. Putney : Putney intended to kick Vosburg but did not intend for V to lose use of his leg.(i) Vosburg held that intent to cause the harm is not required, just had to intend to

do the act that was done that led to the harm. (ii) There was an intent to kick, this act was unlawful because it was in a classroom,

thus, the intention was also unlawful. (iii) If you intended to kick and the kick was unlawful, then intention was unlawful.

If the act is unlawful, the intention is unlawful.

(iv) Putney is liable under single intent: the intent to kick! Did not have to show that he intended the harm too (dual intent)

(b) Vosburg brought a battery case instead of a negligence case because intent to battery has strict liability: you kick, you pay. It is hard to find a child negligent because many kids mean to kick. Under the age of 5, you can’t be negligent. Battery is more likely to bring punitive damages (have to show the recklessness and intentional harm)

(c) This is an example of strict liability. (i) Strict liability is imposed without regard to the degree of care that the defendant

exercised. If you intend an act, you are liable!(d) Eggshell Skull Rule:

(i) A D takes the P as he finds him. It does not matter if D knows whether plaintiff has an eggshell skull. The condition of P prior to the harm is irrelevant to the damages. So even if D’s actions have an unusual effect on P, D must pay for P’s injury

(e) Defenses: Putney could say that Vosburg did not seek treatment so was comparatively negligent

(f) Damages: generally, the victim will get total recovery for even unforeseeable injuries

(g) White v. University of Idaho (h) Piano teacher touched student’s back and she freaked out and broke some ribs. The

piano teacher is liable because he intended the contact. He is liable under single intent

(2) Dual Intent: Plaintiff must show both intent to make contact and intent to harm or offend

(3) States are split on single intent (Vosburg) and dual intent, but most are going with single intent.

3) Dutiesa) Duty not to act negligently…duty to act reasonablyb) Is there a duty to rescue?

i) Rule(s):(1) Misfeasance: Negligently placing a person in danger (actively committing a wrong).

Thus, you have a duty to act(2) Nonfeasance: Failure to act. No duty to rescue(3) Feasance: If you made a risk and that leads to danger, then you have a legal

responsibility to mitigate that risk. (non-negligently making a risk)(4) Special Relationship(5) Invitee v. licensee v. trespasser(6) Restatement: There is no duty to control the conduct of a third party as to prevent him

from causing harm to another unless(a) special relationship exists 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 exists between the actor and the other which gives the other a right

to protectionii) Analysis:

(1) Is there a duty to act?(2) Is there a duty to rescue?(3) Is there a special relationship?

iii) Case Summaries(1) Hurley v. Eddingfield ( Nonfeasance)

(a) Did the licensed physician (general practitioner of medicine) have a duty to come and take care of the decedent, especially since he was the family’s practitioner and no other physician was procurable at the time?

(b) Court found that there was no duty. Licensed doctors are not obligated to work at all.(c) Just because you have a license to practice does not mean that you have to practice(d) If you didn’t cause the harm, you don’t have to act(e) A doctor has no obligation to rescue his own patient under tort law

iv) Why don’t you have to act?(1) If you create extra duties for doctors around the clock, it would disincetivze people to be

doctors (2) Liability…if you have a duty to rescue, may reduce rescues because don’t want to be held

liable if something happens. (3) That’s just the way it is. Anglo-Saxon precedent(4) Judicial economy. Where would you draw the line?

v) Why should doctor maybe have helped:(1) Implied contract(2) Social good trumps liberty(3) With privileges comes responsibility

vi) OVERALL THERE IS NOT DUTY TO RESCUE GIVEN INACTIONvii) Montgomery v. National Convoy & Trucking Co. (Feasance)

(1) Truck stalls in valley due to no negligence of owners/operators. Attempts to warn passerbys but a car hits the stalled truck.

(2) Rule: There is a duty to act because actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm. The actor has a duty to exercise reasonable care to prevent or minimize the harm.

(3) One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or to protect himself is subject to liability to the other for any bodily harm caused to him by(a) The failure of the actor to exercise reasonable care to secure the safety of the other

while within the actor’s charge(b) The actor’s discontinuing his aid or protection, if by doing so he leaves the other side

in a worse position than when the actor took charge of himviii) Yania v. Bigan (Nonfeasance. No duty to act)

(1) Yania visiting Bigan’s land. Bigan taunts him into jumping into dangerous water. (2) Although Defendant enticed Yania to perform a dangerous act, it was the performance of

that act that caused Yania’s death, not the enticement(3) The fact that Defendant saw Yania in a position of peril in the water, imposed upon him

a moral duty, not a legal duty. The court held that absent a legal responsibility to rescue Yania for placing him in the perilous position, there was no duty of rescue.

c) Bottom Line: If did not cause the harm, have no duty to rescued) Duty to rescue is triggered by making the risk. If you made a risk and that risk led to danger, have

a duty to minimize the riske) Misfeasance/Special Relationship

i) Weirum v. RKO: (1) Special relationship: relationship between listeners & RKO (DJ). So DJ has a

responsibility for the behavior of the listeners and is liable if they create a harm to a third person that was due to this special relationship.

(2) Radio station created an unreasonable risk of harm due to negligence. They made a contest where people would have an incentive to speed on the highway to get to the location

(3) Negligently placed third person in harm

(4) This kind of behavior was foreseeable when the radio station began the contest. It was foreseeable that there was a risk that a third party would get injured

(5) Radio station is liablef) Special Relationship:

i) Tarasoff (1) Poddar killed Tarasoff. Doctors knew that Poddar had threatened to kill. Had him

committed but police didn’t do anything and then Docs didn’t pursue and didn’t warn Tarasoff

(2) Special relationship between Poddar and Doctor(3) Tarasoff 1: Duty to warn. This is the law of the land now. This is psychologists’ rule(4) Tarasoff 2: Duty to take reasonable care to protect the victim of foreseeable danger

(General rule)(5) A physician may not reveal the confidence entrusted to him in the course of medical

attendance unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.

(6) Enabling Torts: You are liable if you Enable the tort (in this case, the doctor enabled the tort)

(7) Vicarious Liability/Respondeat Superior: strict liability for employees’ on-the-job negligence

(8) Best cost avoider: finds the party best able to prevent accidents and most responsive to legal incentives and makes it liable. Search for the best cost avoider for deterrence ex.) Dr. Moore, U.C. Berkeley, not Poddar

g) Duties of Owners and Occupiersi) Duty to invitee (by business host): reasonable care, eliminate dangers, keep the premises safeii) Duty to licensee (by social host): limited duty to warn guests of concealed dangers, but no

duty to eliminate those dangersiii) Duty to trespasser: Duty not to intend harm/willfull/wanton. No duty to warn, just have to

refrain from committing intentional harm on another personiv) Rowland v. Christian: the courts get away from these formal categories

(1) Rowland goes over the Christian’s apartment to get a ride to the airport. Has been once before. Don’t know each other well. Classic social guest.

(2) He uses the bathroom and turns the faucet, which was cracked, and slices up his hand. (3) Under old rules, issue would be “Was danger concealed?” Duty to warn licensees of

concealed danger, but otherwise they take premises as is.(4) New Rule: Get rid of categories. Look at the these factors to determine liability of

owner: Foreseeability of harm Degree of certainty that plaintiff suffered injury Closeness of connection between defendant’s conduct and injury Moral blame to defendant Policy of preventing future harm Burden to defendant in imposing a duty (cost to avoid) Availability, cost, and prevalence of insurance – allows spreading of risk.

v) 8 states don’t have these categoriesvi) 13 states have blurred together invitee and licensee. Trespasser has its own categoryvii) 29 states have 3 distinctions

4) Duty: The Negligence Standarda) Historical Background: Negligence v. Strict liability

i) Trespass v. Case

(1) In past, early tort law was criminal law. King created writs to establish control over acts and crimes

(2) Trespass: harm must be direct and forceful. If it was, one could get a writ of trespass. Plaintiff does not have to prove fault. Strict liability. If it was direct and forceful, P could get damages

(3) Case: harm must be indirect. D must prove fault (negligence requirement)(4) P had to bring the right writ and if he didn’t, P lost(5) If P brought something in trespass and it should have been case, he was out of luck

ii) Brown v. Kendall (move from trespass & case towards negligence)(1) Kendall attempted to separate the dogs with a 4 foot stick and accidently struck brown in

the eye. Brown brought an action of trespass(2) Rules in Brown v. Kendall

(a) Fault rule: ordinary care and negligence. Ordinary care is the kind and degree of care that a prudent and cautious man would use

(b) Contributory negligence: total bar. If P played any role, could not get damages(c) Burden of proof is on the plaintiff(d) Overall, we are going from trespass and case to a general negligence rule of ordinary/

reasonable care(e) Trespass is getting narrower(f) There is an expansion of negligence

iii) Fletcher v. Rylands- non natural risks get strict liability (Europe)(1) D has some land and he’s going to build a reservoir on it. During excavation,

engineers/construction co. come across some tunnels that they fill with dirt. They fill the reservoir and the water goes through the tunnels and floods the mines of the neighboring plaintiff.

(2) Decides to sue Rylands and not the contractors/engineers because the engineers were judgment proof (they were bankrupt). Rylands had the deep pockets

(3) One who carries on an abnormally dangerous activity is subject to liability for harm to the person or land resulting from the activity, although he has exercised the utmost harm to prevent the harm

iv) Rylands Rejection(1) Brown v. Collins (rejects strict liability in U.S.)

(a) The court held that imposing liability for natural consequences arising from the escape of anything brought on the land would hinder progress and improvement

(b) This case holds that a person is only liable for damage to neighboring property, which is caused by his negligence

(c) Don’t want to impose a penalty upon efforts made in reasonable, skillful and careful manner

(2) Losee v. Buchanan (rejects strict liability in U.S.)(a) A person was not held liable when his boiler exploded and ignited the house of

another, by reasoning of implied compensation—that he has already profited from the general good provided by boilers and civilization in general

(b) If another person gets harmed accidentally, they are already compensated by the benefits of industrial activity

v) After Jonestown flood, U.S. adopts Rylands & strict liabilityvi) Arguments for Negligence

(1) Corrective justice as fairness to the defendant(2) Economic growth

vii) Arguments for strict liability(1) corrective justice to the victim(2) greater clarity

(3) greater accuracy and simplicity in trials(4) more compensation(5) additional research incentives for new safety measures

b) Strict Liability Oldi) Trespassii) Fire iii) Animalsiv) Nuisancev) Respondent superior

c) Strict Liability Newi) Blasting, ultra-hazardous activitiesii) Products liability for manufacturing defects

d) Restatement (Third): Abnormally Dangerous Activities(a) Strict liability for activities that

(i) Create a foreseeable and highly significant risk of physical harm, even when reasonable care is exercised by all actors and,

(ii) Is not one of common usage

5) The Reasonable Person/Objective Standard v. Semi-Objective Standardsi) Holmes, The Common Law

(1) Morally, best efforts should be sufficient(2) We can’t function if we can’t be assured of a certain level of care by our neighbors(3) When men live in society, a certain average of conduct, a sacrifice of individual

peculiarities going beyond a certain point, is necessary to the general welfare(4) When a man has a distinct defect of such a nature that all can recognize it as making

certain precautions impossible, he will not be held answerable for not making them: blind man, infant, insanity.

ii) Negligence is the study of the mistakes a reasonable man might make(1) Negligence does not cover all accidents, some accidents come from bad luck(2) Reasonable people have accidents that weren’t their fault. It was beyond their control so

they shouldn’t be held liableiii) Vaughan v Menlove (Objective standard)

(1) D had a haystack on edge of property that was a fire hazard. He was warned of the fire hazard and yet did nothing about it. A fire happens.

(2) D argues for subjective, act in good faith/to best of ability standard(3) Court upholds objective standard: what a prudent, reasonable man would do

iv) Benefits of objective standard(1) Objective rule gives more incentive to take precaution(2) Public security—as the neighbor you know the guy next door will meet at least an

uniform standard of care(3) Jury doesn’t have to figure out psychology of the patient(4) Judicial economy—easier to predict, so fewer cases(5) Subjective allows too much fraud. Less opportunity for lying in the objective(6) Reliable(7) Consistent

v) Disadvantages for the objective standard(1) Less fairness for the defendant(2) Subjective allows you to look at each defendant

b) Children- get the semi-objective standard that accounts for age in some activities. Children under five can’t be charged with negligencei) Daniels v. Evans

(1) A young person engaging in adult activity (driving)(2) When children engage in adult activity, they are brought to a higher standard(3) Other drivers do not have notice that the driver is a child, and thus can’t act accordingly.

No requisite notice(4) Rule: children get adjustment, unless they are engaged in an adult activity (i.e. the

ordinarily prudent person) what a reasonable adult would doii) Roberts v. Ring

(1) Defendant 77 year old man with bad sight and hearing was driving and hits 7 year old kid who popped out from behind a car

(2) Objective standard is adjusted for children (how a child of his maturity and age would act), not elderly (what a reasonable adult would do)

(3) Shift to the ability of someone you’d expect of the person engaging in the activity(4) Don’t adjust simply because are old or have an ailment. Here, the old man made the

decision to drive the carc) Mental and Physical Disabilities

i) For mental disabilities, if defendant can foresee the disability, they’re liable. Not held to a semi-objective of the reasonable insane person.

ii) General rule: insanity is no defenseiii) Bruenig v. American Family Insurance: Veith was insured by American Family Ins. Co. (D)

at the time she was involved in an accident with Breunig (P). At trial, a psychiatrist testified that Veith suffered from acute paranoid schizophrenia. She had told him that she believed that God had taken the wheel and was in control of the car. Veith stepped on the accelerator to become airborne when she saw Breunig’s truck approaching, believing that she would be able to fly like Batman (she was liable because had history of disease)(1) If there is an absence of notice, not liable. The effect of the mental illness must be such

to affect the person’s ability to understand and appreciate the duty which rests upon him to drive his with ordinary care or it must affect his ability to control the car in an ordinary, prudent manner. There must also be absence of notice

(2) Tort law puts liability on person who has moments of insanity that they know about because that will put incentive on them to take precautions against it.

(3) Insanity is no defense unless it was sudden and unforeseeableii) Jankee

(1) Institutionalized patients can’t sue institution for negligence because it would incentivize overly restraining patients to prevent liability

iii) Robinson v. Pioche, Bayerque & Co: drunks have the same standard of care as non-drunks. iv) Exceptions to Insanity rule

(1) Breunig : Emergency rule(2) Gould : If confined, there is a defense. The caregiver knew of the risk so bears the cost of

the accident. Institutionalized patients who can’t control or appreciate consequences of their conduct not liable for injuries they create.

b) Wealthi) Denver & Rio Grande R.R v. Peterson : the care required is the same for the rich and the poor.

Rich and poor have the same duty of careii) Treated the same. We don’t expect those with money to be more careful. Deterrence doesn’t

change with money. iii) Some say that wealthy are not deterred because can pay the money. Poor and rich people

don’t value money the same, so the wealthy may not be deterred. iv) So maybe could use nonmonetary damages like shamev) Or you could use punitive damagesvi) Relative value of dollars

c) Experts:

i) Held to the standard of normal skill for their profession/tradeii) If person represent that they are specialized, could be held to a higher standard of care

d) Beginnersi) No exception for beginners. They are held to a standard of those reasonably skilledii) People don’t have notice that someone is a beginner, so unfair for them to take risk

2) Breach: Proof of Negligencea) Calculus of Risk and Cost-Benefit Analysis

i) Foreseeability: knowable possibility that there exists a risk that will result in harmb) Rule: Foreseeability includes the low probability that extraordinary circumstances will

come, not just those circumstances that are ordinary(1) Negligence is the omission to do something which a reasonable man, guided upon those

considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do

(2) A defendant is not negligent unless he knew or reasonably should have known that his actions posed a risk of harm

(3) If you foresee a substantial risk, and still act, then you are liable. How foreseeable and substantial the risk is, is for the jury to decide

c) Case Summaries(1) Blyth v. Birmingham:

(a) Birmingham Waterworks Co. (D) had installed water mains and fire plugs on the street where Blyth (P) lived. After 25 years without problems, an unusually cold frost caused one of the plugs opposite P’s house to freeze over. The damaged plug leaked a large quantity of water into P’s home. P sued D for damages based on negligence

(b) Is there negligence here?(c) Negligence: the omission to do something that a reasonable person would or would

not do(d) In this case, we are dealing with foreseeability (objective), not just what the

defendant foresaw (subjective)(e) This weather was unforeseeable to the reasonable person, so the defendants are not

liable(f) A reasonable person cannot be held liable for an unforeseeable event(g) A person is not negligent if his conduct and precautions conform to the standard

obeyed by a prudent or reasonable person

ii) Cost-Benefit/ The Hand Formula:iii) Rule: Third Restatement §3:

(i) A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

iv) Analysis(1) Cost-Benefit Analysis Benefits (+)

(a) More guidance in assessing “foreseeability”, “reasonableness”, “substantial risk”(b) Focus on social goods and social costs instead of what is good for just one person

(Cooley)(c) Clarifies the untaken precaution: this is the best way to show that D did not exercise

due care(d) Deterrence: incentivizes taking efficient precautions(e) Avoid over deterrence

(2) Cost-Benefit Analysis Costs (-)(a) Hard to quantify the variables (P, B, L)(b) Hard for jury to understand(c) Some things can’t be measured (incommensurability) of money and variables(d) Economic values above other values?

(3) Alternatives to Cost-Benefit Analysis(a) Foreseeable danger(b) Community standards

(4) Lawrence Ross “Settled Out of Court”(a) There are bright line rules, so you don’t always have to use cost-benefit analysis(b) Cheaper to use bright line rules than cost-benefit analysis(c) Usually can decide who is liable just from the facts of the case

v) Case Summaries:(1) United States v. Carroll Towing Co:

(a) Boats are moving in harbor. One slips and nobody is on board, so it hits another boat and sinks with cargo onboard

(b) Is bargee negligent in not having someone on the boat?(c) The owner’s duty is a function of three variables:

(i) (P) the probability that the vessel will break away, (probability of accident)(ii) (2) (L) the gravity of the resulting injury if she does (magnitude of the harm)(iii) (3) (B) the burden of adequate precautions. (burden/cost of the untaken

precaution)(d) PL: cost of taking the risky action(e) B: cost of reducing or avoiding the risk(f) If the cost of taking the risky action (PL) is greater than the cost of reducing/avoiding

the risk (B), then it is unreasonable to take the risk(g) But if B is greater than PL, it is reasonable to take the risk(h) Rule: sometimes we tolerate risking injury rather than requiring that it be avoided.

Welfare would be diminished by having a higher accident-prevention cost to avoid a lower accident cost.

(i) Limits of Hand Method:(i) Some injuries do not have a monetary value(ii) Some factors are not able to be measured

(j) Academics and appeal courts love the Hand Method(k) Juries and trial courts hate the Hand Method(l) Restatement adopts the Hand Method

(2) Cooley v. Public Service Co. (a) During a severe storm, an uninsulated power line maintained by Public Service Co.

(D) broke and burned through the telephone line. Cooley (P) was on the phone when the accident occurred which caused a loud noise to come through the receiver. The noise scared her and made her faint causing severe physical injuries

(b) Woman says that this was a foreseeable risk. (c) She also said that there was an untaken precaution available(d) Untaken Precuation: many times, the best way to show that D did not exercise due

care is to prove some less obvious safety precaution that was available and inexpensive

(e) However, in this case, the benefit that this untaken precaution would have been for Mrs. Cooley is outweighed by its costs

(3) Andrews v. United Airlines (a) P says that there was an untaken precaution that could prevent suitcases from falling

from overhead bins

(b) D had heightened duty because is a common carrier. United has a heighted duty of care.

(c) Issue: was United using upmost care? Did United breach this heightened duty of care?

(d) D decides that it would rather pay the costs than do the precaution. It would rather compensate people who are harmed by suitcases falling from overhead bins because the likelihood of this happening is low.

(e) General Idea: just because the jury says that a particular precaution is good does not mean that the D will add the precaution. D will do a cost benefit analysis and will see if it makes sense for them to implement the precaution

(f) But, if a company needs to implement the precaution, it may raise prices to offset the costs. This can bankrupt companies because people will stop buying the products

vi) Custom and Medical Malpractice(1) Rule: Custom is generally admissible, but it is not dispositive. You can bring it into trial,

but it is not the end all(2) Analysis:

(a) Advantages of Custom(i) Numbers: if lots of people do it, then it seems like that is reasonable thing to do.(ii) Experts: the industry knows the practice better than anybody. Shouldn’t judge

and jury defer to the experts as to best practices?(iii) Reliance: somewhat contract thinking. People expect people to stick to the

custom and may make deals relying on this(iv) Feasibility: if lots of people do this, it shows that the measure is feasible and not

unreasonable(v) Hindsight Bias: helps correct for this. Sets a very clear rule for what reasonable

people do to mitigate a risk. After an accident, people are like “Man, you should have done this” because risk looks bigger afterward. Set rule ex ante with custom and then you can see how people looked at the world before the accident.

(b) Disadvantages of Custom(i) Lag: the industry can lag (TJ Hopper)(ii) Can protect bad practices(iii) Hard to define custom: majority?(iv) Conflicting customs(v) Some may not have the resources (money) for custom

(c) Custom can be both a sword and a shield(i) Plaintiff: they didn’t follow custom. That looks bad for defendant. Prima facie

case.(ii) Defendant: we didn’t follow because we have better practice. Or we did follow

custom.(3) Case Summaries:

(a) TJ Hopper (i) Two barges and their cargo were lost as sea(ii) This probably would not have happened if they had had a radio on board(iii) The untaken precaution is the radio(iv) Trial court says that there was a custom for boats to have radio(v) Appeal court says that there was not a custom

vii) Medical Malpractice

(1) Rule: In professional activities, custom isn’t just admissible, it is the standard. It is dispositive. Generally, we use a similar locality rule where the medical experts come from “similar practice in similar communities, similar circumstances.”(a) This is controversial because people in rural areas do not want lower standards of

care.(b) Some say that this is beneficial because doctors may not have access to resources in

the large cities(c) You can’t hold doctors in rural areas to same standard as those in the city because

costs in the cities are higher, and if you try to put these costly procedures in the rural areas, people will not get them done

(2) Analysis(a) Is medical malpractice compensatory?

(i) Many say no because some of the frivolous claims receive money while many meritous claims do not

(b) How can medical malpractice affect doctors?(i) Doctors may practice defense medicine: deters them from doing risky, needy

things and incentivizes unnecessary tests to cover themselves. This costs more for the patient

viii) Random Information about juries (may be good for an essay)(1) Benefits of Juries

(a) Brings in the opinion of the everyday person(b) Insulates judges from public opinion when they are up for reelection(c) Studies have shown that juries can decide factual issues just as well as judges(d) Can’t “capture” a jury. A jury is not as easily corrupted(e) Juries add legitimacy (have multiple minds instead of just one)

(2) Negatives of Juries(a) No expertise(b) Juries tend to give high punitive damages(c) Not specialized so many not be good with complicated matters like medical

malpractice

3) Statutes and Regulations/ Negligence per se (generally a judge should do a directed verdict here)a) Rules(s)

i) Restatement § 286 When Standard of Conduct Defined By Legislature or Regulation Will be Adopted: (1) The court may adopt as the standard of conduct of a reasonable man the requirements of

legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part(a) to protect a class of persons which includes the one whose interest in invaded and,(b) to protect the particular interest which is invaded and,(c) to protect that interest against the kind of harm which has resulted, and(d) protect that interest against the particular hazard from which the harm results

ii) Restatement §14 Statutory Violations As Negligence Per Se: (1) An actor is negligent, if, without excuse, the action violates a statute that is designed to

protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

iii) Negligence per se will get you a summary judgment/directed verdict, judgment as a matter of law or JNOV

b) Analysis

i) Is the person in the class of persons intended to be protected?ii) Is the particular interest invaded protected?iii) Is the kind of harm protected?iv) Is it protection from the particular hazard that caused the harm?v) Violating a statute is only a presumption of negligence. It is not dispositive. Burden is on the

defendant to explain why he violated the statue and allow the jury to make exceptionsvi) Exceptions to following legislature’s rules

(1) Emergency(2) Necessity (3) Incapacity

c) Case Summariesi) Martin v. Herzog

(1) Martin (P) was killed in a collision between his buggy and Herzog’s (D) car. Martin was driving at night without lights, which is prohibited by statute. Herzog claimed that Martin’s failure to use lights constituted contributory negligence and barred him from recovery

(2) A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster

(3) Cardozo: this was negligence as a matter of law(a) Jurors have no power to relax the duty established by the legislature to have lights on

the road.(b) If you allow a jury to say that it wasn’t negligent, then you are saying that it is

reasonable to break the lawii) Stimpson v. Wellington

(1) Statute requires a large truck to have a permit to drive on smaller/less stable roads. A truck did not have that permit and went on the small road. It crushed pipes underneath and floods a building(a) Purpose: protect roads from damage & secondary purpose was to protect damage to

adjacent buildings(b) Harm: water that floods the building(c) Primary harm within the statute was to protect the roads(d) Here, harm was within the risk of the statute(e) D is liable

iii) Gorris v. Scott (1) Plaintiff was shipping sheep with defendant on the boat. Law requires the sheep to be

pinned in order to prevent illness(2) Harm: sheep get washed overboard(3) Court says the purpose was to prevent from animals from getting sick. (4) The harm was not within the statute here(5) D is not liable(6) This is already a case of negligence. The statute gives you a “slam dunk” automatic win

iv) Tedla v. Ellman (1) Plaintiff, and her brother, a deaf mute, were walking along a road to the right of the

centerline in violation of a traffic statute (walk with the traffic facing you), when they were struck by a passing automobile.

(2) But, there was a customary exception that required pedestrians to walk with traffic if the traffic coming from behind was lighter than oncoming traffic.

(3) Violation was safer(4) Rule :  It is not negligence as a matter of law for one to violate a statute, if by doing so he

is likely to prevent rather than cause the harm, which is the statute’s purpose to avoid.

(5) Exception: Necessityv) Uhr v. Greenbush (without the statute there is no tort. The statute creates the duty entirely)

(1) The New York Education Law Article, Section 905 requires school authorities in New York to examine students between ages eight and sixteen for scoliosis at least once a year. In the 1992-1993 school year, Plaintiff was screened for scoliosis, but the test was negative. In the following year, Plaintiff was not screened. However, in 1995, as a ninth grader, an examination for scoliosis illustrated that she had the infliction. An examination by an orthopedic doctor concluded that her scoliosis had progressed to the point that surgery was required, instead of the braces that can often be utilized when the condition is diagnosed earlier. There was no private right of action

(2) This deals with private right of action(3) When a statute is silent, as it is here, courts have had to determine whether a private right

of action may be fairly implied. The test for a private right of action is:(a) whether the plaintiff is one of the class for whose particular benefit the statute was

enacted; (b) whether recognition of a private right of action would promote the legislative

purpose; and, (c) whether creation of such a right would be consistent with the legislative scheme.

(4) Statutory violation only creates a private right of action if the statute creates it.(5) Private right of action: without the statute, there is no tort(6) Counter-argument: administration may be unjust, so you may have to challenge it

although statute does not give you a private right of action

4) Proof of Negligence/ Res Ipsa Loquitor: “the thing speaks for itself” The event speaks for its own negligencea) Rule: Restatement §362D Res Ipsa Loquitor:

(1) It may be inferred that harm suffered by P is caused by negligence of D whena) The event is of a kind, which ordinarily does not occur in the absence of negligence;b) Other responsible causes, including the conduct of P and third persons, are sufficiently eliminated by the evidence; andc) The indicated negligence is within the scope of D’s duty to P.

b) Analysisi) When this action happens, it is usually only from negligence?ii) Was there exclusive control by the defendant? Was it within the scope of the defendant’s

duty?iii) Is the plaintiff at all responsible? Vulnerable plaintiff equals little knowledge/controliv) What is the circumstantial evidence?

(1) Circumstantial evidence is important because sometimes things are hard to prove with direct evidence. So we put the burden of proof on the defendant

v) Res ipsa burden shifting—plaintiff has enough circumstantial evidence to shift the burden on the key element questions(1) Defendant bears the cost of uncertainty

c) Case Summariesi) Byrne v. Boadle

(1) Byrne (P) was struck by a barrel falling from a window as he walked past Boadle’s (D) flour shop and sustained serious personal injuries. No one knows how the barrel fell from the window

(2) All we can infer is that it was dropped by negligence(3) There is a presumption of negligence(4) A barrel could not fall out of a warehouse window without negligence

ii) Larson v. St. Francis Hotel

(1) There was a celebration and plaintiff was struck by a chair that flew out of defendant’s hotel window

(2) Hotel not held liable because the hotel did not have exclusive control over its furniture(3) No res ipsa loquitor

iii) Connolly v. Nicollet Hotel: (1) Convention at a hotel and plaintiff is struck by an unidentified falling object(2) Court holds the hotel liable. Court distinguishes this case from Larson because the

conference had been going on for days (no surprise) so the hotel could have taken precautions

iv) Colemenares Vivas v. Sun (1) Couple in an airport in PR on escalator. Handrail stops, but escalator keeps going so

couple loses balance.(2) Rule:

(a) The action must be of the kind which does not ordinarily occur in the absence of someone’s negligence

(b) Exclusive control of defendant(c) Not plaintiff’s fault

(3) Because only the handrail didn’t work, there is an inference of negligence(4) Dissent: sometimes accidents happen without negligence

v) Holzhauer v. Saks : Entire escalator (with emergency shut-off) stops, people get hurt(1) RiL NOT applied—D did not have exclusive control of the instrument

vi) Rose v. New York Ports Authority (1) Plaintiff hurt my automatic glass door at Kennedy Airport(2) Court uses res ipsa loquitor and says that the defendant was negligent because generally,

people don’t get hurt with these doors unless there is some kind of negligencevii) Ybarra v. Spangard

(1) Ybarra (P) was diagnosed with appendicitis and arranged for Dr. Spangard (D) to perform an appendectomy. After being given an injection, and in the course of preparation for surgery members of the surgical team adjusted Plaintiff, so that his back rested against two hard objects. Ybarra awoke the next morning after surgery with a sharp pain between his neck and his right shoulder and eventually developed paralysis and muscle atrophy. The plaintiff filed suit based on res ipsa loquitur against a number of parties including other physicians and nurses.

(2) Information asymmetry(a) Plaintiff was unconscious. How can we put burden on him?(b) Conspiracy of silence – docs won’t lie on each other.

(3) By holding all the doctors liable, we are smoking out the information(4) We are smoking out the evidence

5) Causation: Cause-In-Facta) Rule

i) Restatement §26 Factual Cause(1) Tortious conduct must be a factual cause of physical harm for liability to be imposed.

Conduct is a factual cause of harm when the harm would not have occurred without the conduct. (a) In other words, “but for” the defendant’s negligence, this act would not have

happenedii) If you have a situation where you had a 20% chance of death and then the negligence gave

you 50% chance of death.  you have strictly, "but for" causation, because negligence more than likely caused you to die. 2:5 v 3:5

iii) If you have a situation where you had a 30% chance of death and the negligence gave you a 50% chance of death.  you have lost chance because 3:5 vs. 2:5.  you have a lost chance case.

b) Analysisi) “But for” causation: a very high standard (Majority Rule)ii) You can also lower the barrier and stick it to the breacheriii) Substantial factor-negligence of defendant greatly multiplies riskiv) Exceptions:

(1) Uncertainty-send it to the jury(2) Insult and injury-Haft(3) Zuchowicz rule: shift the burden to the defendant(4) Lost Chance: compensation for the lost chance. See in medical malpractice cases.

Things are hard to quantify(5) Multiple Causes-Kingston(6) Alternative Causation-Summers(7) Concert of action-Hall v. Dupont(8) Substantial factor (easier to prove) but it a minority rule (Mitchell v. Gonzales)

c) Case Summariesi) New York Central R.R. v. Grimstad (traditional rule)

(1) Grimstad (P) was the captain of a barge owned by New York Central R.R. (D). When the barge was bumped by a tug Grimstad, who could not swim, fell overboard. Grimstad’s wife ran to get help – she could not find a life preserver and by the time she returned with a rope he had drowned.

(2) Grimstad employs the majority test: “but for” causation(3) “But for” New York Central Negligence in not having a life saving device, Grimstad

would not have died(4) This does not work(5) The harm would have happened anyway (maybe)

ii) Kirincich v. Standard Dredging Co. (send it to the jury) (1) Defendant fell off a dredge into the water and crewmates try to save him with

“inadequate” life saving equipment. Is the inadequate equipment the “but for” cause or would he have drowned even if equipment was fine? Ambiguiety about causation(a) Send it to the jury!

iii) Reyes (a) Drunk man falls overboard and he drowns before crew members can get the line to

help him. Was the “negligence” the but for cause? Or would he have drowned anyway?

(b) Send it to the jury!iv) Zuchowicz v. United States (shift burden to defendant/substantial factor)

(1) Plaintiff went to naval hospital for treatment. Was prescribed Danocrine, but was negligently given double the maximum recommended dosage.

(2) She gets complications and is diagnosed with PPH which can be caused by Danocrine(3) Did the overdose cause the harm?(4) We could say that this double overdose is so horrible that it is only fair that there be a

permissible inference. There is a permissible inference that overdose caused this. (perhaps go with the permissible inference)

(5) In order to prove causation, it is necessary that the fact finder be able to conclude, more probably than not, that the overdose was the cause of Plaintiff’s illness and ultimate death. The mere fact that the exposure to Danocrine was likely responsible for the disease does not suffice.

(6) Permissible Inference: It follows that when a negative side effect is demonstrated to be a result of a drug, and the drug was wrongly prescribed in an unapproved and excessive

dosage, the plaintiff who is injured has generally shown enough to permit the fact finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm.

(7) Strong rebuttable presumption of liability: If (a) a negligent act was deemed wrong because the act increase the chances that a particular type of accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding by a trier of fact that the negligent behavior caused the harm. When such a strong casual connection exists, the burden shifts to Defendant to show that the wrongful conduct was not a substantial cause.

(8) Shift the burden to the defendant to deny the but for cause(9) Here, the burden is shifted to the defendant. up to defendant to disprove that the

overdose caused the sickness(10) Stick it to the breacher! (11) An overdose is a prima facie case that allows a substantial factor to be found(12) In this case, there is a rebuttable presumption of liability: you have a strong

causal link so negligent party has to bring in evidence showing that his action is not the “but for” cause and that the wrongful conduct had not been a substantial factor

(13) To meet substantial factor requirement, ∏ must prove:(a) Defendant’s negligence was a but for cause of the injury(b) The negligence was causally linked to the injury(c) The defendant’s negligence was proximate to the injury

v) Haft v. Lone Palm Motel (insult to the injury) (1) Drowning of father and son at a motel(2) Motel did not provide the necessary safety signs and there was not a lifeguard present(3) No one was present when people drowned(4) The only way the plaintiff can recover is if we shift the burden to the defendant to show

that they didn’t drown because of absence of signs. Shift burden because lack of evidence.

(5) Even worse, the motel violated the statute that said “in the absence of a lifeguard, there must be safety signs”

(6) Motel’s acts added insult to the injury because there wasn’t a sign and there wasn’t a lifeguard on duty as a witness

(7) So burden shifts to D to disprove liabilityvi) Herskovits v. Group Health Cooperative (Lost chance)

(1) The Plaintiff is seeking to recover from the Defendant for failing to timely diagnose the decedent’s lung cancer. The Defendant’s failure to diagnose the decedent’s lung cancer on his first visit to the hospital caused his chance of survival to go from a 39% to a 25% chance.

(2) The court needs to compensate for the loss chance(3) Most states have adopted something like the loss chance rule(4) A majority of states allow for lost chance if:

(a) It is a medical case(b) Damages rule is for partial recovery, not full recovery

(5) Traditional rule: even if negligence causes only 26% of death, you could get 100% of damages

(6) Herskovitz rule: partial recovery. Loss of 14% of survival because of negligence, so I get 14% of damages

(7) Problem of increasing loss of chance is fear of overdeterrence – if not paying all the damages as a problem, then transaction costs.

(8) Also, if someone’s loss is 51% then would get 100% award, but 49% loss would get you 49% damage. Things won’t balance over time.

(9) Why keep 100% damage(a) Judicial economy(b) Stick it to the breacher!

vii) Holton v. Memorial Hospital (1) Court allowed for lost chance even though the plaintiff would have died anyway(2) Allows tort recovery to incentivize health care providers to administer quality medical

care to the critically illviii) Albert v. Schultz

(1) Defendant’s delayed diagnosis of plaintiff’s potential gangrene was not held to create a lost chance because the plaintiff could not demonstrate that he was in good enough shape to allow the needed surgery to take place even if there had been a timely referral

ix) Reynolds (1) Overweight woman slips on train platform and says she tripped because the stairs weren’t

lit up. Train company says it was her fault because she was hurrying. (2) If defendant’s negligence multiples chances of a harm occurring and that harm occurs,

the possibility the harm would have occurred without the negligence is insufficient to break the chain of causation

6) Multiple Causesa) Rule

i) If multiple acts exist, each of which alone would have been a factual cause under §26 of the physical harm at the same time, each act is regarded the factual cause of the harm

ii) Restatement §27 Joint liability: all defendants are liable for all of the damages. Each is liable to the plaintiff as if he were the sole wrongdoer. (all or nothing)

iii) §433a: Apportion Harm(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or(b) there is a reasonable basis for determining the contribution of each cause to a single

harmiv) Several liability: apportion liability to the defendants based on what they didv) Joint liability: all of the defendant’s are liable for all of the damages.

(1) Each is liable to plaintiff as if he were the sole wrongdoervi) The tort system prefers joint liability

(1) Want to stick it to the breacher(2) This goes with corrective justice. We prefer to protect the innocent victim(3) Goes with compensation(4) Goes with judicial economy: it is such a hassle to do several liability and apportion

vii) Joint and several liability applies when:(1) Joint action/concert of action(2) Simultaneous independent harm(3) Practically indivisible harms(4) Vicarious liability (employer)

b) Analysis:i) Is there several liability?ii) Is there joint liability?iii) Should the harm be apportioned?

c) Case Summariesi) Kingston v. Chicago RR (multiple sufficient causes)

(1) 2 fires, one set by natural cause and the other negligently by railroad. They burn down a house. Each party whose actions contribute to damage resulting from concurrent causes

can be held liable for all damage produced, if their actions would have produced the damage independently of the others.

(2) The court held that the evidence only supported a finding that one of the fires was caused by D. There were two separate, independent, and distinct agencies, each of which constituted to the proximate cause of P’s damage, and either of which, in the absence of the other, would have accomplished such result.

(3) Any one of two or more joint tortfeasors whose concurrent acts of negligence result in injury are each responsible for the entire damage resulting from their concurrent acts of negligence. The same is true when two causes concur in producing an injury to another, either of which causes would produce it regardless of the other. If each fire was of known origin, then each party responsible would be liable for the damage as a whole.

(4) “but for” the tortious conduct of defendant, the burning still would have happened(5) does not pass the but for test(6) Exception for a natural fire – if a natural fire burns down the house at the same time as

similar size negligent fire, then it gets the defendant off the hook because there are just some natural risks in life. It’s just luck for the defendant and bad luck for the plaintiff. (a) If it’s two defendants setting fires, can’t say that one person is liable and not the

other, so both liable.(7) If two fires merge, a bigger fire that swallows a smaller fire can be an intervening cause,

but it’s on defendant to prove that.(8) Rule: both are liable for entire injury

ii) Summers v. Tice (Alternative causation)(1) Summers (P), Tice, and Somonson (Ds) were hunting quail. Each of the defendants was

armed with a 12 gauge shotgun loaded with shells containing 71⁄2 size shot. Plaintiff advanced ahead of the defendants up a hill, creating a triangle among the three men, with plaintiff front and center. The view of both defendants with respect to Summers was unobstructed, and both defendants knew his location, 75 yards from each of them. both defendants shot at the quail, and struck plaintiff in his right eye and another in his upper lip.

(2) For practical reasons (hard to know who really caused it), and moral reasons, we shift the burden to the defendants to disprove that they were the source of the bullet

(3) People held jointly liable(4) The general rule is that when two or more defendants are negligent and it cannot be

determined as to who caused the injury, it would be unfair to exonerate either from liability.  Each defendant has the burden of proving the other was the sole cause of harm.  Since neither defendant in this case was able to do so, the court had no choice but to uphold the judgment.

(5) This is how joint and several liability works – they are both on the hook for 100% of the damages. So if Defendant 2 can’t pay a portion, then defendant 1 has to pay everything.

(6) When two Ds committed a tort and P does not know which one did it, the court may hold them jointly and severally liable, unless one can show that it did not commit the harm

(7) The alternative causation test is applied when harm results from the negligent conduct of two or more parties and the party that caused the injury in fact cannot be determined. Under the alternative causation test, the burden of proof shifts to each of the defendants to show that she did not cause the injury

iii) Hall v Dupont (FFTL 116) Industry Wide Liability(1) Blasting cap manufacturers have a trade group that creates blasting caps that are

indistinguishable from one another. (2) Industry wide liability(3) If can’t put a finger on who did it, name all of them as defendants and shift to burden to

the defendant to say who did it

(4) Here, the defendants did act in concert (worked together) and were negligent in doing so(5) So apportion between all the defendants

iv) Bichler v. Eli Lily :(1) First DES case held defendants liable based on concert of action between companies to

market the drug together. This ultimately gave way to the better market share liability theory.

7) Market Share Liabilitya) Rule

i) Factors include:(1) All named defendants are potential “tortfeasors” (has to be a potential match)(2) Most of the potential tortfeasors are named as defendants (try to get as many in the room

as possible)(3) Products are identical/fungible(4) Not the plaintiff’s fault that they are unable to identify the actual cause of harm

ii) Majority Rule:(1) Shifts burden to defendant to disprove causation (“We never sold in California”)(2) Minority Rule (Hymowitz)

(a) Liability based on national share, with no exculpatory defensesiii) MSL is about putting compensation, deterrence and social redress above corrective justice

and retribution.b) Analysis

i) Are the products fungible?ii) Are most of the potential tortfeasors named as defendants?iii) Does the plaintiff know who caused the harm?

c) Case Summariesi) Sindell v. Abbott Laboratories

(1) The plaintiff’s mother took synthetic estrogen (DES) while pregnant with plaintiff. As a result of receiving the drug in utero, the plaintiff developed bladder cancer as an adult. The drug was manufactured by the defendants, five drug companies and by about 195 other companies not named in the suit. The five companies produced about 90% of the drug in the market. Plaintiff is unable to identify which company produced the actual drug her mother took

(2) In this case, use the factors stated above to determine the MSL(3) Held: each defendant will be liable for the proportion of the judgment represented by its

share of that market unless it demonstrates that it could not have produced the dug that her mother took

ii) Hymovitz v. Eli Lily & Co (1) The Food and Drug Administration approved the manufacture and marketing of the drug

(DES) in 1941 for use as a generic drug in the prevention of miscarriages. Approximately 300 companies manufactured the drug. It was found later that DES created a high risk of vaginal cancer (clear cell adenocarcinoma) in some female children of women who had used the drug. Because so many companies manufactured and marketed the drug, over several years and for varying lengths of time, it was often impossible for potential plaintiffs to identify exactly which company had manufactured the particular batch that the plaintiff had ingested. The cases at bar were brought by multiple plaintiffs, the daughters of women who had used DES

(2) Use the MSL factors(3) If plaintiff can prove these factors, then shift burden to the defendants. If plaintiff can

prove the one that specifically did it, then they get 100% damage from that defendant. If

can’t prove the specific one, then burden on defendants to say which one did it or they all pay a portion of the damage based on their market share

(4) Where two defendants breach a duty to the plaintiff, but there is uncertainty regarding which one caused the injury, the burden is upon each such actor to prove that he has not caused the harm.

(5) Clear cell adenocarcinoma is a “signature disease.” (one could only get this disease from DES) So we know that the companies created 100% of the harm.

iii) Skipworth v. Lead Industries Association (1) Plaintiff was born in 1988. Between 1990 and 1991 she was hospitalized for lead

poisoning on three separate occasions. Testing of the residence where she lived revealed the presence of lead based paint in the home. Plaintiff filed an action against several manufacturers of lead pigment and their successors, as well as a trade association (Defendants). Plaintiff alleged physical and neuropsychological injuries as a result of lead poisoning from the lead paint in her home. Plaintiff could not identify the manufacturer of the lead pigment, which Plaintiff ingested, and admitted that they could not identify when such pigment was made, sold, or applied to her home. Plaintiff identified and joined substantially all of the manufacturers of lead pigment used in residential house paint from 1870 until production ceased in 1977.

(2) No MSL(3) The lead paints were not fungible

(a) Differences of bioavailabilty(b) Different chemical makeup

(4) Longer time period(a) Hymoviz and Sindell: 9 months(b) Skipworth: 100+ years

(5) Other point of view(a) Plaintiff won’t get compensated(b) No corrective justice(c) Just like lead paint has different bioavailabilities, DES pills are a bit different (not

100% fungible)d) Conclusions

i) Pros of MSL(1) Judicial economy: this is a national market. Don’t need defenses. Makes everyone liable(2) Deters very risky behavior because it holds everyone liable(3) Civil redress(4) Compensation

ii) Negatives of MSL(1) No corrective justice

8) Proximate Cause (comes into play only after cause in fact)a) Rule

i) Restatement (2d) § 281(c) (p. 528): Risk to class of which plaintiff was a member (Cardozo Rule)(1) If the actor’s conduct creates a recognizable risk of harm only to a particular class of

persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.

ii) § 431 What Constitutes Legal Cause (1) The actor's negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm…

iii) § 433 Considerations Important in Determining Whether Negligent Conduct Is Substantial Factor in Producing Harm(1) The following considerations are in themselves or in combination with one another

important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:(a) the number of other factors which contribute in producing the harm and the extent

of the effect which they have in producing it;(b) whether the actor's conduct has created a force or series of forces which are in

continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.iv) § 29 Limitations on liability for tortuous conduct:

(1) “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” (The Third Restatement rejects language of “substantial factor,” “intervening cause,” and “superseding cause”)

v) Abraham’s Categories(1) Unforeseeable Plaintiff: Generally not liable. Palsgraf (Cardozo)(2) Unforeseeable type or kind of harm? Case by case(3) Unforeseeable manner of harm: Often liable, unless totally weird and freaky (Marshall v.

Nugent)(4) Unforeseeable extent of harm: Often liable

vi) Ask if the harm so remote, so unforeseeable, so bizarre, so interrupted, or so outside the scope of liability/duty/public policy that we don’t hold defendant legally responsible.

vii) Very much related to foreseeabilityviii) Proximate cause is an “on/off” switch. If you don’t get it, you get nothingix) Overall, things to consider

(1) Natural and continuous?(2) Negligent act as a substantial factor?(3) Direct v. remote(4) Intervening v. superceding causes(5) Attenuated(6) Public policy

b) Analysisi) Was the harm within the risk (foreseeable)ii) Was there an intervening act?iii) Was there a superseding act?

c) Case Summariesi) Berry v. Sugar Notch

(1) A local ordinance stated that street cars could go no faster than eight miles an hour. Plaintiff was going faster than eight miles per hour, in violation of the statute. A gust of wind blew a tree on top of his car. Plaintiff sued to recover damages for trespass for personal injuries.

(2) This case would pass the “but for” test. “But for” plaintiff’s speeding, the streetcar would not have been hit

(3) However, the harm was not within the risk(4) This was all a coincidence(5) The statute was to protect against hitting someone or running off the track. Not to protect

against tree accidently falling on a streetcar(6) No proximate cause(7) This was not foreseeable

ii) Central of Gerogia Ry (1) Railroad negligently failed to drop woman off at station. They escort her to hotel, where

she is given a bed with a mosquito netting and defective kerosene lamp.(2) Lamp explodes and there is a fire(3) No liability for railroad. Not foreseeable(4) If anything, the hotel was negligent, not the railroad company(5) Harm is too remote(6) It is easier to go after hotel’s pockets(7) Plus with hotel, there is a heightened duty (inn keeper)(8) Other POV: could say that with missing the train stop, it was foreseeable that she would

have to go to the hoteliii) Hines v. Garrett

(1) RR goes past stop and drops woman off a mile past her stop. Has her walk back through undeveloped land and she is raped twice on the way

(2) Liability because this is foreseeable.(3) Also, here, you can’t get money from the hobo or soldier that raped her, so go after the

railroad’s pocketsiv) In re Polemis & Furness, Withy & Co

(1) The owners of a vessel chartered its use to the Appellants for the purposes of carrying petrol to Casablanca. While unloading the cargo in Casablanca, a wooden plank fell into the hold containing the petrol and caused an explosion. The fire completely destroyed the vessel.

(2) Rule: consequence has to be a direct effect of negligence(3) Proximate cause based on direct harms, whether or not if is foreseeable(4) Liable for all consequences even if they aren’t foreseeable(5) Thin Hull Rule: you are on the hook for unforeseeable property damage unless there was

a disconnect in causation (not liable if causation was indirect)v) Palsgraf v. Long Island Railroad (Unforeseeable Plaintiff)

(1) A passenger carrying a package, while hurrying to catch a moving Long Island Rail Road train, appeared to two of the railroad's (Defendants) employees to be falling. The guards' efforts to aid the passenger caused the package the passenger was holding to fall on the rails. Unbeknownst to the guards, the package, which was wrapped in newspaper, contained fireworks, and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform, which injured Mrs. Helen Palsgraf (Plaintiff). Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee.

(2) Cardozo: this is a duty question. When the defendant’s breached the duty, only breached that duty in a certain zone (zone of duty/zone of breach)(a) Railroad had a general duty to take reasonable care to avoid foreseeable harms to

Mrs. Palsgraf. But, Mrs. Palsgraf was an unforeseeable plaintiff. So, there was no duty on behalf of the railroad company

(b) Duty of liability is limited to the foreseeable plaintiff(c) Limited zone of risk=limited zone of duty(d) Negligence is relational

(3) Andrews (dissent)(a) There is a duty to exercise care to all(b) Social contract(c) Negligence is not a private harm that can be limited to a zone of danger(d) Duty and proximate harm are not limited to the foreseeable plaintiff

vi) Mitchell v. Gonzales (CA substantial factor case) MINORITY RULE

(1) Family invites young boy to go on vacation with them. The young boy could not swim and drowned when the family relaxed on the shore

(2) Does not pass the “but for” test(3) So, CA adopts the substantial factor test. It is very muddy. “substantial” is very

ambiguous. One jury might say that this is substantial while the other jury says it isn’tvii) Wagon Mound (unforeseeable type of harm) p. 139 fftl

(1) Defendants carelessly discharged oil from their ship while it was in Sydney harbor. After their ship set sail, oil was carried by the wind and tide to Plaintiff’s wharf. Plaintiff’s supervisor was concerned about the oil and ordered his men to do no welding or burning in the area. Plaintiff made some inquires and was testified that the oil was not flammable. He accordingly instructed his men to resume welding operations and directed them to take care that no flammable material should fall off the wharf into the oil. About two and a half days later, Plaintiff’s wharf was destroyed by fire. The outbreak of fire was due to the fact that there was floating in the oil, underneath the wharf, a piece of debris on which lay some smoldering cotton waste or rag which had been set on fire by molten metal falling from the wharf.

(2) This was not foreseeable. CONSEQUENCES OF ACT MUST BE FORESEEABLE for NEGLIGENT ACTOR TO INCUR LIABLITY

(3) No proximate cause(4) Wagon Mound 2: with the same case, but with two innocent boat owners suing both the

boat owners responsible for the spill and the dock owners responsible for igniting it, the same court finds the fire foreseeable. Both liable

viii) Doughty v. Turner Manufacturing Co. (unforeseeable type of harm/damage) (1) Defendant’s employees knocked an asbestos cement cover into a vat of sodium cyanide.

This causes an explosion. Court says that the defendants were not liable because it was an unforeseeable kind of damage.

ix) Steinhouser v. Hertz Corp (unforeseeable extent of harm)(1) The Steinhauser family was driving when defendant Ponzini hit the Steinhauser car on the left

side; a few minutes after the accident, Cynthia, daughter of the Steinhausers’, began behaving unusually, appearing “glassy-eyed” and “disturbed;” in the days following, Cynthia’s condition worsened; she was hospitalized and diagnosed with a “schizophrenic reaction—acute—undifferentiated;”  

(2) “there was a ‘logical relationship’ between the accident and the plaintiffs’ ‘psychotic injuries’”; though Cynthia may have had schizophrenic tendencies before accident, the accident served as “the precipitating cause” (an event sometimes necessary to reveal schizophrenia/ schizophrenic symptoms) 

(3) thin skull rule: activation of pre-existing conditions to D’s negligence is foreseeablex) Kinsman (American approach) (unforeseeable damage…liable)

(1) Boat is moored (tied) to a dock and then gets free because is tied loosely. After the boat gets loose, it hits another ship, knocking it loose, then hits a drawbridge and it becomes a massive ice dam.

(2) This is very bizarre(3) American approach: don’t apply the harm within the risk narrowly. Have to take into

account low probability acts. (4) Approach foreseeability broadly(5) Expands beyond Cardozo who had strict foreseeable plaintiffs

xi) Marshall v. Nugent (intervening act)(1) Harriman, Marshall (Plaintiff’s) son-in-law, was driving when Prince (Defendant, Socony

Oil Company) cut a corner and forced him off the road. No one was injured in the accident, and Defendant offered to help get the car back on the road. Plaintiff, a passenger in the car, went to direct traffic around the accident. Before Plaintiff could do

so, Nugent (Defendant) swerved to avoid the truck and hit Plaintiff. Plaintiff sued both Defendants for damages from the accident

(2) There is proximate cause(3) Danger had not passed yet(4) Although there was an intervention, the defendant is still liable(5) Intervening act: no legal effect. Defendant is still liable.(6) Intervening act: if the intervention was foreseeable, it is an intervening act and defendant

is still on the hookxii) Brower v. New York Central & H.R.R .

(1) New York Central & H.R.R.’s (D) train hit Brower’s (P) wagon and harness. The accident killed P’s horse, destroyed his wagon, and spilled P’s goods onto the road. Third parties stole Brower’s goods while he was still disoriented from the collision. Brower sued New York Central for damages including recovery for the stolen goods. D denied liability for the stolen goods, asserting that third party intervention broke the chain of causation.

(2) Thieves are judgment proof so go after the railroad company(3) This was an intervening act, not a superseding cause(4) This was foreseeable. Plaintiff had guards guarding the goods(5) A criminal act won’t necessarily break the chain of causation.

xiii) Wagner v. International Railway (Rescue case)(1) Plaintiff and his cousin boarded a car at a station. The conductor did not close the doors

of the car. The train turned a curve when a violent lurch threw Plaintiff’s cousin out of the car, near the point where a trestle changed to a bridge. “Man overboard” was cried out, and the car stopped near the foot of an incline. Plaintiff got out and walked 445 feet until he arrived at the bridge where he thought to find his cousin’s body. Plaintiff lost his footing in the dark, fell from the structure, and was injured.

(2) Danger invites rescue(3) Foreseeable person will go and save cousin(4) However, defendant is not on the hook for wanton and reckless rescues

d) Concluding thoughtsi) Purposes of Proximate Cause

(1) Distrust of juries – we don’t want to give juries option to act on hindsight bias and put liability on defendant who doesn’t really deserve it as a matter of public policy.

(2) Proximate cause as a moral culpability check. It’s the big picture where we ask “Do we feel right about putting liability here?” Gut instinct of fairness

(3) Corrective justice – making sure we match the correct defendant and plaintiff. Without, we could have endless lawsuits from people suing others.

(4) Judicial economy – judges like to keep certain cases out of courtii) CA: only uses substantial factor testiii) Most states have a two prong test: factual causation & proximate causeiv) If you have substantial factor under cause in fact, will have it with proximate causev) Wisconsin Lawyer, Feb. 2000: The Wisconsin Supreme Court asks whether public policy

would be well served by imposing liability. Six factors play a role in this analysis:(1) whether the injury is too remote from the negligence;(2) whether the injury is wholly out of proportion to the culpability of the negligent

tortfeasor;(3) whether in retrospect it appears too extraordinary that the negligence should have

brought about the harm;(4) whether allowance of recovery would place an unreasonable burden on the negligent

tortfeasor;

(5) whether allowance of recovery would be too likely to open the way to fraudulent claims; or

(6) whether allowance of recovery would enter a field that has no sensible or just stopping point

9) Compensatory Damagesa) Rule:

i) Old Rules for Emotional Damage(1) No damages(2) Impact(3) Zone of Danger

ii) Current Rule(1) Proximity to danger(2) Sensory perception(3) Relationship between victim and plaintiff-closeness of relationship (this generally

includes siblings, parents, spouses)(a) Civil union: If you live in a state that allows civil unions or gay marriage, your

partner would be able to collect damages. However, if you are in state that allows neither, your partner would get nothing

iii) Non-pecuniary damages: those intended to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities.

iv) Pecuniary damages: compensate the victim for the economic consequences of the injury, such as medical expenses, lost earnings, and the cost of custodial care

v) Future loss: there is no cause of action for losses that have not occurred yet. Liability for future loss must wait until actual occurrence of physical ailment.

vi) Remittur: judge gives plaintiff the option of paying more money on a new trial or accepting smaller damages. (happens when judge thinks jury award is excessive)

vii) Additur: defendant can avoid the cost of new trial by consenting to a larger verdict equal, perhaps, to the smallest verdict the court would sustain against a charge of inadequacy (verdict is too small).

viii) Collateral source rule: insurance is usually not disclosed to the jury. If the plaintiff has a collateral source of compensation, that shouldn’t be disclosed to the jury otherwise it will take that into account. Insurance companies have subrogation agreements so that if the plaintiff recovers doubly, they get reimbursed.

ix) Compensatory damages (incommensurability problem but there is no other way to do it other than “eye for an eye”)(1) Non-economic damages (must be aware of the loss)

(a) Pain and suffering(b) Loss of enjoyment, mental distress (McDougald)

(2) Economic damages(a) Medical expenses(b) Past lost wages(c) Lost future earning capacity(d) Custodial/nursing care(e) Incidental economic consequences (travel for medical care, extra services like

housekeeping)(f) Property damage

(3) Claims by family(a) Wrongful death: based on family member’s losses

(i) Loss of financial support(ii) Based on family member’s loss. A family member brings it and sues for own

loss due to death(b) Survival of action: based on victim’s loss as inherited by family

(i) Family members stand in for the dead person’s damages. Get what the dead person would have gotten

(c) Loss of consortium (loss of sex)x) Can’t get pure economic loss (i.e. loss without injury) unless you are dealing with an

ultrahazardous case like in Oppen (see strict liability section)xi) Can’t get damages for illnesses that may happen in future (Hymowicz)xii) Many states give caps on pain & suffering of $250,000xiii) Some states uphold caps

(1) Fine : $250K Med-Mal caps upheld! (CA)xiv)Some states reject caps

(1) Best : $500K cap on “general damages” struck down—may take more to make P whole! (IL)

xv) some states puts caps on pain & suffering. A few cap economic damages. The supreme court has applied loose ratios to limit punitive damages(1) need punitive damages to incentivize people to bring smaller cases such as a beds bug

case that is only worth $10,000. If the company has to pay punitive damages, the attorney can get paid more (better quality lawyers will take the case) and there will be publicity (media loves punitive damages) and this will lead to deterrence. Hotels will make sure that there are not bed bugs.

b) Analysis:i) Were you in close proximity to danger?ii) Sensory perceptions?iii) Do you have a viable relationship to the injured person?

c) Case Summariesi) Dillon v. Legg

(1) While driving his car, Defendant struck and killed Dillon, a child, as she was crossing a public street. Dillon’s mother and sister, Cheryl (Plaintiffs) sued Defendant for wrongful death. The mother also sued for nervous shock and serious mental and physical pain. The sister also sued for emotional and pain suffering.

(2) Foreseeability Factors(a) (1) whether plaintiff was located near the scene of the accident;(b) (2) whether the shock resulted form a direct emotional impact upon plaintiff from

the sensory and contemporaneous observance of the accident;(c) and (3) whether plaintiff and victim were closely related

(3) it is foreseeable that mother will have emotional distress(4) zone of danger rule is abolished(5) good: because broadens the rule(6) bad because the line drawing of categories becomes hard. How far should liability go?

(muddy)ii) Tobin v Grossman

(1) Mother hears accident where her child dies(2) Mother does not get emotional damages (too much expansion of liability)(3) Dillon test rejected

iii) Eldin v. Sheldon

(1) Denied damages for an unmarried cohabitant(2) Dillon test rejected

iv) Dunphy : Unmarried cohabitant (common-law spouse) witnesses accident. (1) Dillon test used(2) If you demonstrate that unmarried relationship is like a real marriage, then you can get

damages v) Thing v. La Chusa :

(1) Mother does not witness accidents that injures her child(2) New rule (modifies Dillon in a more strict way)

(a) P must be closely related to accident victim(b) P must be present at the crime as it occurs and is then aware it is causing injury to the

victim(c) P suffers emotional distress beyond that which would be suffered by disiniterested

witnessesvi) Kelly v. Kokua

(1) P dies of heart attack after learning via phone that daughter and grandchild died in accident

(2) No relief because don’t want “unlimited liability”vii)Dzionkonski :

(1) To sustain liability claim, PARENT must either: 1) Witness accident or 2) come on scene while their child is still there!

viii) Union Oil Co v. Oppen (1) Defendant’s negligence caused oil pollution in the Santa Barbara Channel off California.

Pollution killed fish and resulted in economic loss to the plaintiffs, who were commercial fisherman

(2) Let the fisherman sue because there was no one else who could sue. The State of California decided not to sue. So, we let the plaintiff sue and collect damages for pure economic loss

ix) McDougald v. Garber (This is a majority rule)(1) Plaintiff underwent a Caesarian section and tubal ligation. She was thirty-years old at the

time of this procedure. Garber (Defendant) performed the surgery. Armengol (Defendant) and Kulkarni (Defendant) provided anesthesia. During the surgery, Plaintiff suffered oxygen deprivation, resulting in severe brain damage, which left her in a permanent comatose condition.

(2) Court holds that a plaintiff must be aware of loss of enjoyment in order to be compensated(a) This is unfair because loss of enjoyment happened even if the plaintiff can’t

understand it(b) It’s dumb that you can’t compensated less if you are injured more(c) With this reasoning, parapledgics should get nothing

(3) Court holds that there is only 1 category for pain and suffering and this includes loss of enjoyment of life

x) Curd v. Mosaic Fertilizer (FL rule!)(1) There is liability for pure economic loss in the zone of danger(2) In zone of danger, one gets compensation for pure economic loss

d) Concluding Thoughtsi) Professor Chamallas Talk

(1) There is a problem with dichotomies: the privilege is economic over noneconomic damages

(2) Some states have capped noneconomic damages at $250,000 (like CA). This disproportionately affects the old, young, and badly injured. This cap may hurt potential plaintiffs because in past, lawyers got their payment from contingency fees (money essentially came from damages). Now, lawyers cannot get as much money, so may be less likely to take the case

(3) Loss of future earning capacity hurts women and minorities(4) To calculate damages, right now we use “expected earnings”(5) Another option (used is the past) is “future earning capacity(6) One option is to standardize damages so everyone got the same amount for particular

kinds of injuries (a) Counter-argument: need individualized justice

(7) To calculate damages, there is much speculation

10) Punitive Damagesa) Rule

i) Purpose of Punitive Damages(1) Deterrence(2) Compensate fully because compensatory damages may underestimate especially since

lawyers take a cut due to contingency fees(3) Abhorrence(4) Prevents vigilante justice(5) Concealment(6) Relieves pressure of the criminal justice system

b) Analysisi) Are punitive damages appropriate given the tort and the purposes of punitive damages?

c) Case Summariesi) Kemezy v. Peters

(1) Plaintiff sued Defendant, an Indiana policeman, under 42 U.S.C. Section 1983 claiming that Defendant had wantonly beat Plaintiff with his nightstick in an altercation at a bowling alley. Defendant was moonlighting as a security guard at the time. The jury awarded Plaintiff $10,000.00 in compensatory damages and $20,000.00 in punitive damages. Defendant appealed, saying that it was the plaintiff’s burden to introduce evidence concerning the defendant’s net worth for purposes of equipping the jury with information essential to a just measurement of punitive damages.

(2) Court holds that the plaintiff does not have to introduce evidence about the defendant’s net worth

(3) But a plaintiff can prove the defendant’s net worth, but does not have toii) State Farm Mutual Automobile v. Campbell

(1) In 1981, Defendant was driving with his wife in Utah. He decided to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching from the opposite direction. To avoid a head-on collision with Defendant, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Slusher. Ospital was killed, and Slusher was rendered permanently disabled. The Campbells escaped unscathed. Mr. Campbell’s unsafe pass had indeed caused the crash. Defendant’s insurance company, Plaintiff insurance agency, nonetheless decided to contest liability and declined offers by Slusher and Ospital’s estate (Ospital) to settle the claims for the policy limit of $50,000 ($25,000 per claimant).

(2) Settlement: During the pendency of the appeal, in late 1984, Slusher, Ospital, and the Defendant reached an agreement whereby Slusher and Ospital agreed not to seek satisfaction of their claims against the Defendant. In exchange the Defendant agreed to pursue a bad faith action against Plaintiff and to be represented by Slusher’s and Ospital’s attorneys.

(3) Rule: Guidelines for Punitive Damages(a) The degree of reprehensibility of the defendant’s misconduct

(i) A state cannot punish defendants for an act that happened outside the state(b) The disparity between the actual or potential harm suffered by the plaintiff and the

punitive damages award(i) Single digit ratio

(c) The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases

(4) Scalia (dissent)(a) Due Process Clause does not say anything barring excessive or unreasonable

damages(5) Thomas (dissent)

(a) Constitution does not constrain the size of punitive damages(6) Ginsberg (dissent)

(a) Punitive damages are a state issueiii) BMW v. Gore

(1) Prior to shipment to the US, at least 1000 new BMW cars were damaged by acid rain. BMW had the cars repainted and sent to the dealers without telling them of the repaint job. One driver Dr. Gore brought suit against BMW on behalf of nearly 1000 other BMW owners

(2) Initially, plaintiff got $4M but this was reduced to $2M(3) SC holds that $2M was excessive(4) Factors:

(a) Degree of reprehensibility of defendant’s conduct(b) Ratio between compensatory damages awarded and punitive damages(c) Comparison of the punitive damages award and civil or criminal penalties that could

be imposed for comparable misconduct.

11) Defenses (turn table on the plaintiff): Contributory and Comparative Negligencea) Rule

i) Contributory Negligence (MD, DC, VA, AL, NC have this)(1) Complete bar(2) If you could prove that plaintiff was negligent and that the negligence was a cause in fact

and had proximately caused harm, then it’s a complete bar to recovery for the plaintiff(3) One of the “Iron Triangle” that made it hard for people to collect(4) So juries did “under the table comparative negligence.” They were very lenient on

plaintiffs while they held defendants to a high standard so that plaintiffs would not be considered negligent. Juries also did a bit of apportioning themselves

(5) Exceptions:(a) Burden shifted to defendant, send to a jury(b) If defendant acted intentionally or recklessly, there is no bar. Defendant is still liable

even if plaintiff contributed(c) Last clear chance: if D had last chance, P’s negligence is not a bar(d) Safety Statute: if D violated safety statute, Ps negligence is not a bar

(e) Property rights protections: one is allowed to be contributorily negligent in normal use of own’s own land

ii) Fellow-Servant Rule (has been eliminated)(1) If you are injured on the job by a co-worker, you are liable unless you place the blame on

your co-worker. Cannot sue your employer(2) Any perils faced by injured employee are ones he should know about and is in as good a

position to guard against as the master is(3) Employer is not on the shop floor. May even be less blameworthy than the employee

iii) Comparative Negligence(1) Pure comparative negligence: apportion harm depending on how negligent each party

was. 12 states have this(2) Modified comparative negligence 1: P is barred if contributory negligence is greater than

50%. 20 states have this(3) Modified comparative negligence: P is barred if contributory negligence is equal or more

than 50%. 15 states have thisb) Analysis:

(1) Are you in a state of contributory negligence, pure comparative negligence or modified comparative negligence?

(2) Did the plaintiff act negligently?(3) Did plaintiff’s negligence cause more than 50% of the harm?

c) Case Summaries:(1) Li v. Yellow Cab

(a) Li (P) was struck by a cab driver for Yellow Cab Co. (D) as she was crossing three lanes of traffic to enter a gas station. The cab driver had been driving too fast and had run a yellow light. Li brought this lawsuit to recover for personal injuries and damages arising from the accident.

(b) CA will adopt pure comparative negligence. This is more practical and just than contributory negligence

(c) Contributory negligence is inequitable in its operation because it fails to distribute responsibility in proportion to fault

(2) Section 1714 of the Civil Code does not preclude the court from adopting a system of comparative negligence. It was not the intention of the Legislature in enacting section 1714 of the Civil Code to insulate the matters therein expressed from further judicial development.

d) Concluding Thoughtsi) Why contributory negligence?

(1) Fairness (should not impose liability on defendant when plaintiff was also liable)(2) Deters plaintiff. Makes sure that plaintiff is careful(3) Judicial economy: difficult to apportion damages(4) Checks juries if you think that juries are sympathetic(5) Clean hands: only want to compensate parties that are innocent and haven’t done

anything blameworthyii) Positives of Pure Comparative Negligence:

(1) Fairiii) Negatives of Pure Comparative Negligence:

(1) Practical concerns: hard to apportion(2) Statute in Li v. Yellow Cab: ct is not supposed to make new laws. This is the role of the

legislature. iv) Comparative negligence and strict liability:

(1) Can’t compare apples and oranges

(2) Suppose D 1) driving a tank down a highway very safely and P driving car negligently. Or suppose D digging reservoir and P negligent with mine.

(3) So could do comparative causation: but we don’t think of causation as being a source of liability

(4) Equitable apportionment. But what does this mean?(5) Comparative risk creation: this may work a bit better. Just compare how much they

created the risk. (6) Comparative deterrence: if you are going to punish both parties, think of who is more

likely to change behavior(7) Equitable apportionment: when determining damages for a comparatively negligent

plaintiff, equitable apportionment would be 20% damage reduction for a plaintiff who was 20% contributorily negligent

(8) Bohan v. Rizzo : cts can’t use comparative negligence in cases where the defendant is strictly liable. use comparative causation instead.

v) Comparative negligence and intentional harm(1) If reckless, apportion damages by comparing degrees of culpability(2) Majority rule: plaintiff’s negligence is no defense. D pays 100%(3) Minority rule: just like recklessness. Weigh intent more heavily, but apportion

12) Defenses: Assumption of Riska) Rule:

i) Plaintiff is aware of the risk and he chose to take it anywayii) Plaintiff may not recover as much or be able to recover at all if he assumed the riskiii) Generally, with professional athletes, you assume the risk unless it is so blatant and over the

topiv) Sometime the inherent risk is so dangerous that you could never consent.v) Random example: if a professional acts and is aware of the risk and disregards it, then you

have comparative negligence. Ex) Sasha Cohen skates and knows of risk and gets hurt. Comparative negligence

b) Analysis:i) Did plaintiff assume the risk?ii) Were there hidden risks?iii) Were the risks obvious, inherent and necessary?iv) Was the plaintiff a professional who should have known?

c) Case Summariesi) Murphy v. Steeplechase Amusement Co.

(1) Steeplechase Amusement (D) operated an amusement park. A ride known as “The Flopper” featured a moving belt which, when stepped upon, would cause a customer either to fall or to be pushed up an incline. Murphy (P) tried the ride after watching other customers enjoy it. Murphy knew that falling was a potential risk. Murphy claimed that the belt jerked when he got on, causing him to fall and resulting in a fractured knee. P sued, claiming that the belt was dangerous and was not properly equipped to prevent injuries

(2) If you assume the risk, you are liable for your own injuries(3) If risk is obvious, inherent and necessary, you are liable for your own injuries(4) If risk is obscure or unobserved, then you can recover(5) Counter POV: 7 mph is fast and the speed was not obvious.

(a) There also may have been a malfunction because of the added “jerk:. Jerk would have been less obvious, necessary and inherent. This jerk would have increased the probability of falling and magnified the injury.

ii) Dalury v. S-K-I ltd

(1) Dalury (P) was skiing at S-K-I’s (D) ski resort when he collided with a metal pole. Dalury had purchased a season pass and signed a form stating that he understood and freely accepted and voluntarily assumed the risks of skiing and released D from liability. Dalury also signed a photo identification that contained the same language.

(2) Main concern: excuses defendant from any negligence. Even obvious and nonobvious risks

(3) Court held: no one assumes the risk of negligence(4) S-K-I ltd is liable. It advertised to the public.(5) Tunkl factors: (An agreement is invalid if it exhibits some or all of the following

characteristics):(a) The business is of a type for public regulation.(b) The service is of great necessity to the public.(c) There is an open invitation to the public.(d) There is a decisive economic advantage over the customer.(e) Part of the superior bargaining power includes a general exculpatory clause.(f) As a result of the transaction, customer is placed at the control of the seller, subject

to the seller's carelessness.iii) Moulas: Spectator hit by flying hockey puck at game

Spectators held to same assumed-risk standard as competitors

iv) Maisonave: spectator stands at concession stand and injured by a foul ball(1) Assumption of risk does not apply when spectators let their guard down

v) Knight v. Jewett :(1) Touch football game where plaintiff broke her little finger(2) She assumed the risk so defendant not liable

vi) Maddox: (1) NY Yankees outfielder sues for injuries while playing on wet grass(2) He assumed the risk because he continued playing and knew it was wet. Plus, he knows

about the consequences since he is a professional playerd) Concluding Thoughts:

i) Adhesion contracts “take it or leave it”(1) Ones that specify venue are usually okay ex) Carnival Cruise Lines v. Shute(2) Okay if you had equal bargaining power

ii) Arbitration contract:(1) Usually will be upheld(2) Madden v. Kaiser Foundation Hospital : arbitration contract was okay because state board

negotiated on behalf of the people(3) BUT, now fraud is an issue(4) Engalla v. Permanent Medical Group Inc ,

(a) Fraud with arbitration in medical malpractice arbitration contract. (5) Arbitration has the potential to be more efficient. But it is unregulated so there is a

chance of fraud like in Engalla. There is also a chance of delays(6) In past, courts used to always enforce these contracts, but not so much anymore(7) Sosa : P presented with arbitration contract right before surgery. If P is pressured to sign

agreement, can be held as unconscionable

13) Defenses-Necessitya) Rule

i) Coase Theorem:(1) No matter who is assigned a property right, the parties will bargain for the generally

efficient/socially optimal result…as long as transaction costs are sufficiently low

(2) If transaction costs are low or there are none, it wouldn’t matter where you put liability and property rules because people would bargain

(3) Emergencies create high transaction costs, so courts have to come in to create incentives to create efficiency. Torts come in when market breaks down in emergencies

(4) Sometimes social goods trump property rightsii) In an emergency, a person has a right to use your own property (Ploof)iii) Incomplete privilege:

(1) The cost to D of letting P moor his boat was much less than cost of refusing him. In addition to the cost of repairing the dock, D is now responsible for P and his family’s injuries and the damage to his boat. Courts will usually enforce property rights by making trespassers liable, but when transaction costs are high property rights are frequently ignored. If D’s servant had allowed the boat to stay moored, P would have been responsible for any damage to the dock. Even though one can use someone else’s property in order to protect themselves, they are still liable for damage done to the property.

b) Analysis:i) Is there an emergency?ii) Is there a necessity?

c) Case Summaries:i) Ploof v. Putnam:

(1) Putnam (D) owned an island with a dock. Ploof (P) and his family were sailing when a storm forced them to moor at Putnam’s dock. Putnam’s servant set the boat free and the boat wrecked against the land destroying the boat and resulting in injury to Ploof and his family. Court says that defendant must pay

(2) Necessity will justify entries upon land and interferences with personal property that would otherwise have been trespass

(3) Boat owner may use the dock during the emergency and does not have to pay for damage here.

(4) In an emergency, you have a property right to have access to another person’s propertyii) Vincent v. Lake Erie Transportation (do I have to pay for that access?)

(1) A steamship owned by Lake Erie Transportation Co. (D) was moored at Vincent’s (P) dock to unload cargo. A storm arose and the vessel was held secure to the dock causing $500 in damage to the dock. Vincent sued to recover damage to the dock and the jury decided in favor of Vincent.

(2) In this case, Defendant prudently availed itself of Plaintiff’s property for the purpose of preserving its own more valuable property. Plaintiff is entitled to compensation for the damage done to the dock.

(3) If, as a result of boat docking there is damage, boat owner is liable for that damage(4) Incomplete privilege: boat owner may use the dock but must also pay for use and damage(5) Dock owner could exclude but has to pay for damage to the boat(6) When you are given access, pay for that access

iii) Mouse Case (1) Damages rule that even though you can throw over someone’s property, everybody has to

share the cost so that there is efficiency in what you decide to throw over.(2) Everybody pays a pro rata amount of the cost to the person who loses the property so all

pay equally.(3) This rule creates incentive not to just toss off everything that doesn’t belong to yourself

because no matter what all will pay the same. Thus, a person throwing off has incentive to throw off only what is necessary to minimize own losses

iv) YMCA v. US:

(1) US troops occupy and damage building while quelling uprising. Not liable because public necessity invalidates damages claim

(2) Generally, when there is public necessity, you don’t have to pay for damagesd) Concluding Thoughts:

i) If you own the dock and don’t want the boat to be tied, then you can just pay for the property damage(1) You subject yourself to tort liability

14) Nuisancea) Rule:

i) General rule: a substantial and unreasonable interference with another’s right of use and enjoyment of his or her land(1) Unreasonable modifies the interference between the property owner. To have a nuisance,

you must have legal rights(2) You could be a nuisance even if you produce more social good than harm(3) Strict liability because unreasonable in nuisance is not the reasonability of the nuisance

maker, but the impact on the plaintiff. It doesn’t matter whether the nuisance maker has exercised due care

ii) Traditional rule: if there is a nuisance, there should be an injunctioniii) Complete privilege:

(1) No nuisance because not substantial and unreasonable. Thus, there is no injunction(2) There is a nuisance that is substantial and unreasonable, which leads to an injunction.

But, there can be a private settlement where there is negotiation. The party can thus buy off the injunction (ie. Pay the plaintiff for present and future damages not to enforce the injunction)

iv) Incomplete privilege(1) There is a nuisance. Thus an injunction is granted. It is a weak injunction. There will

also be a court mandated price. The factory (defendant) can decide to pay the homeowners the court mandated price, which the homeowners can’t refuse. The factory has the property right to eliminate the injunction or deal with the injunction (Boomer. V Atlantic Cement Co.)

(2) There is a nuisance. An injunction is granted. The developer can decide to move his homes or he must pay the feedlot the court mandated price. He has the property right. (Spur v. Webb)

v) Private nuisance: “substantial” and “unreasonable” interference with the right of an owner in the use and enjoyment of their property. Between two private individuals.

vi) Public nuisance: nuisance to the public at largeb) Analysis:

i) Is there a nuisance? Public? Private?ii) Is the nuisance substantial and unreasonable?iii) Is there a complete privilege?iv) Is there an incomplete privilege?

c) Case Summariesi) Boomer v. Atlantic Cement

(1) The Defendant, Atlantic Cement Co. (Defendant), operated a large cement plant near Albany. The Plaintiffs, neighboring property owners (Plaintiffs) filed suit seeking an injunction and damages for injury to property from smoke, dirt and vibrations from the plant.

(2) Boomer has the property right

(3) There is an incomplete privilege: there will be an injunction but Atlantic Cement can pay the property owners off for present and future damages, so the injunction is not enforced. The homeowners do not have the right to refuse the money.

(4) This is solves the holdout problem. The holdout problem is inefficient. All you have to have is 1 homeowner who doesn’t agree to mess everything up and the cement company may not be able to produce. The court wants the cement company to produce the social goods if it will pay the cost

(5) Most socially beneficial act will win out(6) Dissent: what happened to property rights instead of doing just what is socially

beneficial?(a) what happened to incentives? If Atlantic Cement buys off a permanent injunction,

Atlantic Cement has 0 incentive to buy technology that will lower pollution costsii) Spur v. Webb

(1) A developer starts developing far from a feedlot (lots of manure, bugs, and stench) but over time, houses get built closer and closer to the feedlot. Developer sues the feedlot. The court decides that developer has the property right. Developer can decide to either move his homes or pay the feedlot to move. If paid, the feedlot has no choice but to leave. He can’t refuse.

(2) In FFTL, Abraham says that we don’t want a “first come, first serve” system because we don’t want to have a race to build and overdevelop the land(a) We also don’t want this system because the 1st landowner may not be doing much

with the land and the 2nd owner may be much more efficient(3) Most socially beneficial rule will win out

15) Abnormally Dangerous Activities (strict liability and there is still a thin skull rule)a) Rule

i) Rule(1) § 519 General Principle

(a) one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from this activity, although he has exercised the utmost care to prevent the harm

(b) this strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

(2) §520 Abnormally Dangerous Activities (magnitude is most important)(a) In determining whether an activity is abnormally dangerous, the following factors are

to be considered:(i) Existence of a high degree of risk of some harm to the person, land, or chattels of

others (risk of serious harm)(ii) The likelihood that the harm that results from it will be great;(iii) Inability to eliminate the risk by the exercise of reasonable care; (can’t be

eliminated with due care)(iv) Extent to which the activity is not a matter of common usage(v) Inappropriateness of the activity to the place where it is carried on and;(vi) Extent to which its value to the community is outweighed by its dangerous

attributes(3) Examples of ultrahazardhous activities

(a) Blasting(b) Drilling(c) Storing and transporting explosives(d) Water storage

(4) Defense of strict liability (contributing actions of third persons/animals, assumption of risk, contributory negligence, and plaintiff’s abnormally sensitive activity p. 674)(a) Harm within the risk §519 (2), p. 660 : one who carries on an abnormally dangerous

activity is not under SL for every possible harm that may occur

(i) Statutory purpose (Gorris v. Scott)

(ii) Proximate cause (Madson)

(iii) Strict liability

(b) Unforeseeable third party intervention or natural forces §522, p. 674

(i) General idea is that “one carrying on an ultrahazardous activity is liable for harm

although the harm is caused by the unexpectable

1. Innocent, negligent or reckless conduct of a third person, or

2. Action of an animal, or

3. Operation of a force of nature

(c) Assumption of risk §523 p. 674(i) The plaintiff’s assumption of risk of harm from an abnormally dangerous activity

bars his recovery for the harm(d) Contributory negligence §524 p. 674

(i) The contributory negligence of the plaintiff is not a defense to the strict liability of one who carries on an abnormally dangerous activity

(e) Comparative negligence p. 394 (Bohan) and FFTL 158-160(i) California apportions fault in strict liability cases (Daly v. General Motors

“equitable apportionment”)(ii) However, some jurisdictions don’t take comparative negligence into account

when dealing with strict liability(iii) Bohan v. Rizzo : cts can’t use comparative negligence in cases where the

defendant is strictly liable. Use comparative causation instead(f) Abnormal Sensitivity §524A

(i) There is not strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the plaintiff’s activity

ii) Benefits of SL(1) Efficient(2) Deterrence(3) Stick it to the best cost avoider(4) Compensate(5) Activity Level - SL forces someone not just to use extraordinary care if they do engage in

act, but also to force them to weigh whether or not to engage in the activity at all, given the legal exposure.(a) If your activity leads to some amount of damage to society no matter the care and it’s

not profitable, then maybe you should curtail it.(b) This internalizes external costs of dangerous activity.

b) Analysis(1) Is this an ultrahazardous activity?(2) Does it fulfill some of the above factors?

c) Case Summaries

i) Rylands (see Breach section above for more info)ii) Powell v. Fall

(1) While Powell (D) was driving his tractor on a highway, it emitted sparks which struck and ignited haystacks on Fall’s (P) land. Powell had not been traveling over the speed limit at the time and had not been negligent.

(2) Fall is liable. Follows the Ryland’s theory that “when a man brings or uses a thing of a dangerous character on his own land, he must keep it in at his own peril and is liable to the consequences, if it escapes and does injury to his neighbor.”

(3) If one uses a dangerous machine, he is liable for any damages caused.(4) It is just and reasonable that if a person uses a dangerous machine, he should pay for the

damages, which it occasions. iii) Siegler v. Kuhman

(1) A gasoline truck blew up. Imposed strict liability on transporter of hazardous materials. We imposed strict liability because the explosion would destroy evidence

(2) Posner looked at:(a) Likelihood of danger(b) Gravity/magnitude(c) Evidence

iv) Indiana Harbor Belt R.R. v. American Cynamid Co. (1) American Cyanamid (D) loaded acrylonitrile into a railroad car for shipment to a

processing plant in New Jersey. Acrylonitrile is a flammable and highly toxic liquid. Several hours after arrival employees of the switching line noticed fluid gushing from the broken bottom outlet of the car. Homes near the train yard were evacuated and decontamination measures were conducted at a cost of approximately $1 million.

(2) Posner rules no strict liability in this case because the evidence would not have been destroyed

(3) Counter POV: Posner only looked at one of the 3 factors. The other two were still relevant. (a) Strict liability may be good because right now, there is the transportation of highly

toxic materials through urban areas. If you impose SL, it may make companies take other routes or even change the whole activity. (Activity level change)

(b) Activity Level Change: you could abandon the transport of these materials or you could change the transportation form.(i) Other POV: if you impose SL, it may make companies take other routes that are

more dangerous and may cause more accidents(4) With SL, you can tap into people’s imaginations and get new research and methods

v) Madsen v. East Jordan (defense of proximate cause)(1) Mink farm. There is a big explosion nearby and all the mother minks get scared and eat

their young. (2) There is cause in fact – blasting causes mink to eat young.(3) Not harm within the risk because this is not what makes the explosion dangerous.

vi) Yukon v. Fireman’s Fund (Foreseeable)(1) Defendants sued for damage caused by explosion of their magazine which happened

when people broke in, stole stuff, and blew it up to cover tracks(2) Here there is liability. This is foreseeable. (3) Moreover, it’s the kind of act that one can take precautions to minimize that harm.

vii) Daly v. General Motors (strict liability and comparative negligence) (CA case)(1) The Decedent was thrown from his automobile because of an alleged defect of the door

latch, resulting in his death. Evidence suggested the driver did not use the shoulder harness system, did not lock the door and that he was intoxicated.

(2) Court allowed comparative negligence to be applied (apportion harm) in this strict products liability case

viii) Turner v. Big Lake Oil : but there is one TX case from 1928 where the court held that an oil rig in Texas is not abnormally dangerous because oil rigs are common in that part of the country

ix) Green v. General Petroleum Corp (1) Found that oil rigs were an abnormally dangerous activity and are thus subject to strict

liability

16) Vicarious Liabilitya) Rule

i) Traditional rule: conduct of an employee is within the scope of employment if it is actuated at least in part by a purpose to serve the master

ii) Bushey rule: an employer is vicariously liable for an employee’s conduct if it is foreseeable and within the proximity (access)(1) Proximity: did employment relationship give employee more access to certain objects,

acts, etc..?iii) Vicarious liability = employer’s liability for action of employees in the scope of their

employment(1) Employers can be sued for negligent hiring and negligent supervision(2) Employers don’t need to have proof of negligence. Just need proof of negligence with

the employees(3) Does not apply to independent contractors

iv) Work place harassment is in the middle. Generally, there is no vicarious liability. Employee being harassed has to show that employer created a hostile workplace

v) Frolic and detour- where slight diversion from duties would still be liable, but not big diversions(1) Frolic-a big diversion from scope of employment(2) Detour- a small diversion. Just took a quick detour

vi) Ira S. Bushey & Sons v. United States (1) Lane was a seaman for the United States Coast Guard (D). One evening after returning

drunk to his ship after leave, Lane opened a valve controlling the flooding of the dry dock tanks. As a result, both his ship and part of the dry dock sank into the water.

(2) Traditional rule: conduct is within the scope of employment if it is actuated at least in part by a purpose to serve the master

(3) Judge Friendly’s rule: an employer is vicariously liable for an employee’s conduct if it is foreseeable and within the proximity (access)

17) Products liabilitya) Rule

i) Important Restatement §402A: Special Liability of Seller of Product For Physical Harm To User or Consumer(1) One who sells any product in a defective condition unreasonably dangerous to the user or

consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and(b) it is expected to and does reach the user or consumer without substantial change in

the condition in which it is sold.(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Caveat:

The Institute expresses no opinion as to whether the rules stated in this Section may not apply

(1) to harm to persons other than users or consumers;

(2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer; or

(3) to the seller of a component part of a product to be assembled.

ii) History(1) Contract and privity (only could sue immediate seller, not manufacturer). No

manufacturer liability. No tort because covered with contract. (a) Macpherson : got rid of privity

(2) Negligence (early 20th century). If object is negligently made, then could get damages(3) Implied warrant of merchantability(4) General manufacturer’s liability (1960s to present) and explosion of cases

(a) Manufacturing defects: there is strict liability. Actual product departs from design. It was an aberration. Plaintiff attorneys want to show this because of SL(i) Have strict liability because

1. Evidentiary problem about manufacturing defect. Because of all the hands involved and the way the lawnmower blade destroys itself, harder to prove negligence in the specific evidence

2. Market Incentives – already an incentive for safe design(b) Design defects: problem with the whole line of items. Defendant wants to show this

because design defect may have been justified. (c) Duty to warn: a reasonable warning

(5) There is strict liability in manufacturing defects and not with design defects because:(a) Fairness: imposing SL on widespread issue in design defects would be unfair. It is

fair to have SL in manufacturing defect because there is only 1 instance. Just have to litigate this one issue. With design defects, you want the company to explain the design and see if there was a good reason for it

(b) Foreseeability: design defects are more foreseeable. And with reasonable care, they won’t happen. With manufacturing defects, these are inevitable and cannot be eliminated with reasonable care.

(c) Evidence problem: with manufacturing defects, it may be hard to identify the person who caused the harm. The tort may eliminate the evidence. With design defect, you know who created the harm. There is a blueprint in someone’s office.

(d) Judicial economy: product design has greater stakes, so we allow this to have more fact finding

b) Analysis:i) Was there a manufacturing defect?ii) Was there a design defect?

c) Case Summariesi) Escola v. Coca-Cola

(1) Plaintiff was a waitress, and one of her duties was to stock the refrigerator with bottles of Coca-Cola. On one occasion, a bottle exploded in Plaintiff’s hand as she was putting it into the refrigerator, causing serious injury

(2) Majority uses res ipsa loquitor. To have res ipsa loquitor, you must have(a) Inference of negligence(b) Exclusive control(c) No contributory negligence

(3) In Escola, don’t have “exclusive control(4) Judge Traynor (concurrence)

(a) Does not use res ipsa loquitor(b) Strict liability because Coca Cola is the best cost avoider. Is an unique position to

manage precautions and listen to law(c) SL makes companies more vigilant with inspecting and do research(d) Judicial economy(e) Loss spreading(f) Elimination of proof complication

ii) Greenman v. Yuba Power Products (1) Strictly liable in tort when article placed on the market proves to have a defect causing

injury(2) Individuals injured by products with manufacturing defects may bring suit under strict

liability regardless of a failure to give timely notice to the manufacturer for a breach of warranty.

18) Workmen’s Compensation (alternative to tort):a) Rule

(1) Rule: get compensation for actions that arose out of and in the course of employment(a) In the course of: refers to the time, place and circumstance of injury(b) Arise out of: refers to the cause and origin of the injury

ii) History: in the industrial revolution, so many workers died or were seriously injured in the mines or on the railroad(1) Initially, contributory negligence and assumption of risk kept workers from receiving

compensationiii) Bargain: worker’s get compensation faster but it is less per victim and employers have more

predictability and less overhead (don’t have the high transaction of hiring lawyers)iv) Horseplay will not be compensated if there has been a substantial deviationv) Horseplay would be compensated for screwing around if employer knew about and tolerated

it. Employer assumes the risk.vi) Employees get compensation when they might not get it at all because no negligence. It’s

quicker that tort system. Smaller transaction costs means much larger share of smaller pievii) Employers get rid risks of really huge payouts. Workers’ Comp exists as exclusive remedy.

Workers get worker’s comp, but give up their right to go to courtviii) Worker’s comp is not so much about duty, breach, causation etc.ix) Benefits:

(1) Employee: guaranteed money and safety net(a) More workplace safety

(2) Employer(a) Limits money(b) Uniformity and predictability with lower overhead(c) Less insurance because ore predictability(d) Saves litigations costs. Employer would rather pay $10,000 to employee than defense

attorneyx) Cons:

(1) Lawyers don’t like it because it saves litigation costs

(2) Fraud. There are lots of fraudulent claims. In California, there were cappers who would whisk employees away and would do medical tests that cost 10,000-15,000, all of which were charged to the employer whether or not the claim was valid

(3) Capture: New York’s workers compensation system was captured by some unions and then by some politicians and this affected the doctors you could see if you were injured on the job. At first, workers could see only pro-employee doctors, then could only see pro-employer doctors

b) Case Summaries: i) Clodigo v. Industry Rentavsion Inc.

(1) Plaintiff was working as a manager of Defendant’s store. During a lull between customers, Plaintiff began firing staples with a staple gun at a coworker who was sitting on a couch watching TV. The coworker protested and after 30 or so staples were fired at him, he fired three staples back at Plaintiff. One of the three staples hit Plaintiff’s eye.

(2) Administrative commission held in favor for plaintiff. Generally, in workmen’s comp, there are commissions and if you appeal, you go to court

(3) There is a substantial deviation, so no workmen’s comp(4) Did not arise out of employment(5) Sued company because fellow employer may have been judgment proof, contributory

negligent, assumption of risk etc..(6) Factors for deviation:

(a) Extent and seriousness of deviation(b) Completion of deviation(c) Extent to which activity was accepted part of employment(d) Extent to which employment can be expected to include horseplay

(7) Could say case is wrongly decided because:(a) Had access to the situation because of the job (proximity)(b) This was foreseeable(c) Ct is wrong because administrative commission looked at case and came up with an

answer (this is the bargain you get with workmen’s comp). Bargain allows case to go to administrative commission where costs are lower. But here, the bargain is overturned because of legal incentives to appeal. Ct shows that if you appeal, have a better chance of winning

ii) Anderson v. Save-A-Lot (1) Plaintiff alleged that her supervisor had sexually harassed her, causing her post-traumatic

stress disorder(2) The court found that the accident occurred within the course of employment but not

arising out of employment(3) This act had not been condoned by the employer

c) Concluding Thoughts:i) Advantages to this alternative to tort law:

(1) Efficient compensation(2) Judicial economy(3) Deterrence

ii) Payment:(1) Scheduled damages. Pay a certain amount for loss of certain extremities. The chart will

have number of weeks compensation (p. 983)iii) Problem with fraud:

(1) There used to be cappers. After a factory shut down, cappers would come and whisk employees off to do interviews, medical tests etc…which would cost employers thousands of dollars. All this money charged to employer even though many were fraudulent. Employer would settle sometimes, but still have to pay

iv) For every $1 tort compensation, the tort overhead costs are $1.07. For worker’s compensation, the overhead costs are approximately 23% (23 cents of administration for every $1).

19) No-Fault Auto Insurancea) Pure no fault:

i) If you are injured in a car accident, there is 1st party insurance. 1st party insurance is insurance that you have for yourself and for the other people in the car. Insurance compensation paid by first-party insurance. This system was used in Quebec. No tort liability…only insurance.(1) No compensation for pain and suffering(2) Some say that this will cause an increase in the accident rate because drivers no longer

face the threat of tort liability for negligent drivers. But, any driver who is not already sufficiently concerned for his won safety to drive carefully will not drive any less carefully once the threat of tort liability is eliminated.

(3) Reduce need for attorneys(4) Put money in pockets of victims

ii) Real No fault:(1) Partial abolition of tort liability. Tort liability only abolished for less serious injuries(2) threshold:

(a) monetary threshold: dollar amount for monetary expenses(b) verbal threshold: various serious injuries

iii) Add-on no fault:(1) There is tort liability. But there is the mandatory purchase of no-fault medical expense &

lost-wage insurance(a) Don’t have to sue for some of these losses

b) Problem with auto no fault:i) Rings of people who make fraudulent claims and there are doctors who make fraudulent

medical claims. There are staged crashes to make money,ii) But, this system is more efficient because you get money quicker (don’t have to go through

court). This takes less time because no court. Also, don’t have to pay a lawyer!

20) Health Insurancea) Way to keep people out of court. Won’t have to go to court and sue to get medical bills paidb) Medical bills are paid automaticallyc) Europe already has nationalized health insurance so they have way less torts than US

21) No Fault Medical:a) Get compensation for injuring “arising out of or in the course of medical treatment.”b) But had to define harm because people only go to the hospital if they are already sickc) To sue hospital, there must be negligenced) Medical malpractice leaves many people uncompensatede) 2-5% of people who were actually injured by negligence actually sue. Thus 95-98% of people

don’t sue although there was negligencef) National Childhood Vaccine Injury Act: if child develops signature side effects of vaccine, you

can be compensated. Just have to show that you were exposed to the vaccineg) Birth Related Neurological Compensation Act (Fl & Va)

i) Get compensation if baby born with some neurological illnessii) No pain and suffering

h) There is also a movement to figure out infections and injuries that only happen in hospitals due to negligence

i) Why didn’t people sue?i) Didn’t know of negligenceii) Plaintiff lawyers will advise client that the jury will be sympathetic (jurors are often

sympathetic to doctors)j) Apologize:

i) Lawyers tell doctors don’t apologize because shows culpabilityii) But if doctors don’t apologize, then people feel like hey have been righted and won’t go to

court and sueiii) w/o apology, they will go to courtiv) states have created systems that say apologize are not admissible in court. Jury might take

apology as equating culpabilityv) we want doctors to apologize because

(1) it is the right thing to do(2) it decreases litigation

22) 9/11 Compensation Fundi) run by Kenneth Feinbergii) To participate in the fund, you waive all tort suits against airlines, property holders of the

WTC etc…iii) Compensation grid with caps. This hurts the victims who were at the top of the earning

spectrum(1) People compensated for economic and noneconomic losses

iv) Almost all families filed claimsv) Average award: $1.8 million per victimvi) If people were unhappy with the levels of compensation, could ask for an individual

determination of their claimvii) Colaoi v. Feinberg : challenged the truncation of awards for the top 2%. Court found for

defendant.viii) Another example is the BP Compensation Fund: BP gave $20 billion to be used for those

who suffered due to the BP spill. So far, $8 billion given out

23) New Zealand (universal no fault system for all accidents)a) Abolish tort except for “exemplary” punitive damagesb) Full medical expenses and rehabilitationc) 80% of lost wages, based on pre-injury earningsd) Home and vehicle modifications for disabilitye) Credit Suisse: says this is very expensive because New Zealand started off with such a small tort

systemi) Failure to meet expectationsii) Doesn’t meet basic levels of professionalismsiii) Costs are beyond projectionsiv) Did not anticipate legacy costs (now this is pay as you go, which is bad because have claims

for people with long term injury and people with short term injury)f) Replace with social insurance for accidents

24) American Tort Reform:a) Limit amount of damage awardsb) Damage capsc) Abolition of joint liability (you were responsible for 1/3 but may have to pay for 100%)d) Admission of collateral sources rule

25) Bottom Line with alternatives to torts:a) Pros:

i) Less lottery and less bias (all can get money)ii) Less randomiii) More uniform compensationiv) Some say no fault medical and worker’s compensation helps with deterrencev) Don’t have to deal with tort system that is expensive and time consumingvi) More efficient

b) Cons:i) Less focused on deterrence with no fault auto insuranceii) There can be capture: the “neutral” rule making body is taken over by another institutioniii) Don’t punish negligence or recklessness like they shouldiv) Don’t investigate who was innocent or guiltyv) Not much fairness or corrective justice. We don’t look at who was right or wrong.vi) TORT SYSTEM IS BEST WHEN IT BALANCES CORRECTIVE JUSTICE,

DETERRENCE AND COMPENSATION. IF YOU TAKE ONE OF THESE OUT, IT MAY CAUSE MORE PROBLEMS THEN IT SOLVES

One case that Professor Shugerman argued was wrongly decided was the Indiana Harbor v. Cyanamid. In that case, Posner chose not to subject the defendants to strict liability for manufacturing and shipping toxic and flammable chemicals that leaked into the railroad tank car. In reaching this outcome, Posner focused on the probability that the leak could have been prevented through the exercise of reasonable care in the inspection and maintenance of the tank car and the impossibility of having an activity-level effect since it would be very difficult for a railroad to transport material away from a metropolitan areas that are the main railroad hubs.

Prof. Shugerman argued that the case may have come out right but its analysis was off for several reasons. First, in contrast to Posner's contention that imposing strict liability would have minimal effects on the industry because the trains would not be able to be re-routed to avoid big cities, Shugerman argued this was too low of a generality level and that the better measure should be looking at whether the handling or production of toxic chemicals could be made safer by the imposition of strict liability. Second, the train company and manufacturer assumed the risk of handling these materials and therefore could have contracted around liability or accepted liability for more money.

In contrast to Shugerman's arguments, the case can be seen as rightly decided for several reasons. First, imposing strict liability on each of these defendants may have created over deterrence. Even if toxic chemical s are very dangerous, they are often required in a number of different places and it would be unreasonable to expect them to be manufactured and distributed in most locations to reduce the chances of accidents occurring in their transport. Imposing strict liability may have had the adverse consequence of raising prices considerably that would be problematic for the industry and for consumers. They may also have chosen to transport the chemicals in private trucks rather than

railroads. This may seem preferable in that the company would be required to take due care in packing the trucks, but this could subject an even greater number of people to risk of contamination because trucks are often driven negligently, above the speed limit and by drivers who have not had enough sleep. Railroad transport may therefore be considered safer in general.

Looking at a higher level of generality would probably implicate far more manufacturers and distributors than this case necessarily warranted. This may not have the predicted outcome of bolstering research initiatives to reduce risks of contamination or reducing the toxicity of the substances themselves but rather to reduce the production and transportation altogether. Again, this could have significant economic implications. Toxic chemicals may be used in a number of different production lines and by a number of companies. Imposing strict liability on each of them for interacting with such substances would not necessarily offset the damages incurred by some occasional leaks.

Even in the case of Cyanamid, the leak itself caused damages in the clean-up. The harm within the risk of toxic chemicals leaking is that they may explode and kill people. In this way, this case may be distinguished from Siegler v. Kuhnman in which the gas truck exploded and killed another driver and the court imposed strict liability partially because the evidence was destroyed in the occurrence of the accident. No such harm occurred in this situation; the evidence was not destroyed and therefore it would be a significant leap to impose such aggressive liability on the entire industry.