sites.duke.edusites.duke.edu/wlsa/files/2019/12/Demott-Torts-Outline-2018.docx  · Web viewTorts Outline. Fall 2018. Introduction. The foundations of common-law tort doctrine; statutes

Torts OutlineFall 2018

I. Introductiona. The foundations of common-law tort doctrine; statutes and common-law

developmenti. What is torts?

1. Private law – separate from public law (constitutions, statutes authorizing administrative action)

2. The wrongful conduct of one person visa vie another 3. Everyone has a right to not be harmed by another; torts in the

remedy4. “wrongs” or “injury” can mean many different things

a. Personal, bodily, property damage, economicb. To dignity, to autonomy, etc.

5. Overlap exists! Private recovery in tort may be a crime6. What’s unique?

a. Tort is a wrong that is computedb. No such thing as an attempted tort (unlike criminal law)c. Duties in contract stem from agreements – not as

controversialii. History (very long history of this body of law)

1. English law – back before the Norman Conquest (1066)2. Idea of civil jury goes a long way back and shapes administration

and doctrine of tortsa. Civil jury citizens/not experts

3. Torts never outruns its past4. Common law – “torts is the prototype of a common law subject” –

maybe at the time of Robersona. There are now many statutes that prescribe/require

behavior of a sort5. Case-by-case development of the doctrine/litigation by private

parties6. What guides this?

a. Worry that it not happenstance? b. Is there a general principle of expressed legal doctrine?c. Is it case-by-case based on precedent & proximity to prior

cases?7. Interaction between statutes and common law8. “no pristine” set of common law

iii. Tort law is mandatory1. The law imposes a duty not to do certain things2. i.e. trespassing (don’t enter another’s property)

iv. Affirmative

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1. if you drive a car without reasonable carev. Torts is “untidy” from the standpoint of theory

1. It applies to so many thingsvi. Aim of torts

1. Prevention of self-help by victims and their relatives and friends against those who have caused injury

2. Retribution against wrongdoers3. Deterrence of wrongdoers4. Compensation for the victims of wrongdoers

vii. Theories1. General:

a. “there is no wrong without a remedy”b. “whoever is injured as a result of the fault of another

should receive redress”c. “whoever is injured by the intentional activities of another

should receive redress” 2. Particular:

a. Tort law as a composite of a set of discrete torts that have evolved over time and which cannot be fully understood or expanded to cover new situations without reference to their particular historical evolution.

b. Both scholars would side with this theoryviii. Roberson v. Rochester Folding Box Co. (1902) (NY) [picture on flour case]

1. NY trial court NY court of appeals2. 4-3 opinion (difficult case)3. No trial – a demurrer is filed

a. Demurrer is defendant saying “well, so what?”b. Even if it’s true, the point/damages are invalid

4. Defendant seeking monetary damages and injunction to stop the printing and distribution of advertisements

5. Facts: a. How they got the photo (likeness) isn’t clear from caseb. DeMott did research – Roberson went to have her portrait

made at a photographer’s studio – did not consent to commercial use

6. Potential theories of liability?a. Emotional distress – couldn’t use itb. Right to privacyc. Would have to prove her economic losses due to flour

company using her photo d. Damage to reputation?e. Right to property?

i. But copyrights would be owned by photographer

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ii. Was there an implied contract that the photo wouldn’t be used anywhere else?

f. “shameless hussy” riski. Shoulders are visibleii. What kind of woman gets in an advertisement?

7. Ruling was deeply unpopular NY Legislature responded the next year

a. NY Civil Rights Law §50: makes it a misdemeanor to use a person’s name, portrait or picture for advertising purposes or for the purposes of trade without written consent

b. Later amended to account for technology (includes “voice”)

8. Ruling: No recovery for plaintiff/no right of privacy.ix. Prince Albert v. Strange – breach of trust

1. Was there a reasonable trust between Roberson and the photographer

x. Codification and the Restatement1. Localized movement (i.e. CA)

a. States that didn’t have history or population to have solid case law

2. Simplification, clarification and articulation of the common law3. Restatement as a secondary authority

a. If there’s no state statute, and state supreme court hasn’t ruled on it, they are supposed to treat Restatements like statutes

b. Or they might look to other states’ courtsb. The foundational significance of fault

i. General idea that someone who injured another is responsible/at fault1. Took a long time to become established

ii. No fault liability or strict liability1. If an actor acts and another is harmed by conduct, they are at

fault even if it wouldn’t count as an intentional tort and if they took reasonable care

a. Sometimes for situations in which no amount of care could make it safe, specialized conduct

2. Otherwise tort is the land of fault iii. Trespass on the case

1. Action brought to recover damages from a person whose actions have resulted indirectly in injury or loss

2. Develops into something like negligence3. Evolves into indirect tort

iv. Trespass1. Immediate/direct injury or loss2. No intention accounted for

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3. Develops into something like battery4. Evolves into direct torts

a. Intention accounted for5. Cause of action (originally a writ)

v. Difference between trespass and trespass on the case is in the immediacy of the injury

1. Trespass – immediate2. Trespass on case – future

vi. Prince Albert v. Strange1. Workmen used etchings of queen and prince for own self-interest

breach of trust2. Breach of property rights of the prince3. American courts often rely on English precedents

a. Sometimes lack of American precedentsb. States differed in how they formally handled certain issuesc. Some states haven’t dealt with seemingly basic issues at

all, but states will rely on others before Englandd. English is well-regarded lawe. States like Montana, South Dakota may rely on

restatements more heavilyi. Not much of a body of developed precedents

vii. Squib Case1. Squib = firecracker 2. Defendant threw it into street, pedestrian came close to it and

kicked it. As a result, plaintiff is injured3. Pedestrian is immediate cause of injury – is he at fault?

a. Is there an agreement between defendant and pedestrian to carry out the action?

b. Does pedestrian encourage defendant’s action at all?c. As it stands, there is no intention of pedestrian to cause

injury d. But is he in control of his body?

i. Wouldn’t’ be in control if for example he was sleepwalking? Is it voluntary?

ii. Did he see Squib and decided to kick it?iii. Was it a reactionary/involuntary reaction?

e. No evidence that pedestrian had intention but negligence?i. Negligence liability depends on circumstancesii. Does he have time to make a decision?

iii. Could he have kicked the Squib to a more careful place (i.e. vacant field)?

iv. Does not require self-sacrifice 1. No reason pedestrian shouldn’t protect

himself/kick the Squib

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v. Defendant used pedestrian as an instrument 1. Pedestrian might not be treated individual

viii. Brown v. Kendall (1850) (MA) [dog fighting case] 1. Highly influential decision (clarity and simplicity)2. Trial court ruled in favor of plaintiff, defendant appealed

a. Issue in appeal is whether jury instructions were correctb. Appellate court agreed that instructions were flawed and

order a new trial3. Instructions and burden of proof. Who needed to establish

exercise or lack of due carea. Trial – on defendantb. Appeal – on appellantc. Plaintiff has to prove he was exercising due care

i. Ordinary care, not extraordinary care4. Ruling: Burden of proof is on the plaintiff. New trial.

ix. Prima facie = based on first impression/on its faceII. Intentional Torts

a. Defining intent and recklessi. Intent/Purpose

1. Subjective intention2. Substantial certainty

a. Requires knowing that consequence is substantively certain to occur

b. Limited to situations in which defendant has knowledge that injury could happen to plaintiff or people in a localized area or specified group

3. Restatement (Third) §1: A person acts with the intent to produce a consequence if:

a. The person acts with the purpose of producing that consequence: OR

b. The person acts knowing that the consequence is substantially certain to result

i. Probably is not enoughii. Reckless/knowledge of risk

1. A reasonable person would see risk as obvious magnitude of risk, severity of injury

2. Restatement (Third) §2: A person is said to be engaging in “reckless” conduct if:

a. The person knows the risk of harm created by the conduct or knows facts that make that risk obvious to another in the person’s situation; AND

b. The precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to

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adopt the precaution a demonstration of the person’s indifference to the risk

iii. Negligence < Gross negligence < recklessnessiv. Wanton misconduct often = recklessnessv. Jackson v. Brantley (1979) (AL) [horses on the highway case]

1. Horses loose on the highway and car crashes into horse2. Assume that the plaintiff was driving legally (correct speed, in his

lane, etc.)3. Suing for property damage and intentional tort (not negligence)

a. Punitive damages might be available for intentional tort and not for negligence

b. Insurance coverage/recoveryi. Recovery a claim under defendant’s coverage of

liability insuranceii. Ordinary insurance companies exclude coverage

for intentional tortsiii. They wouldn’t cover something the insured meant

to do4. Why not negligence?

a. Sometimes plaintiff alleges intentional tort in which victim/plaintiff is contributory negligent

b. Contributory negligence is only a defense when the claim is negligence – not for an intentional tort

c. But in this case… look at the statutei. “knowing or willfully put or place such stock upon

such public highway”ii. “his proof must demonstrate more than negligence

or gross carelessness on the part of the defendant”5. The defendant’s testimony gives the plaintiff what he needs to

meet his burden of proofa. Defendant’s testimony shows that defendant has

experiences with his horses on the road in the nightb. This has happened beforec. Regardless of things that you actually know, there are

things that you should know6. So, what was his intent?

a. Probably didn’t intend the crashb. But he knew the horses would follow him onto the road if

he started riding awayc. He tried to put the horses on the road to get them home

7. Ruling: Liability for defendants. They knowingly/willfully placed horses on the highway in violation of statute. Contributory negligence defense not allowed.

vi. Beauchamp v. Dow Chemical Company (1986) (MI) [agent orange case]

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1. Michigan worker’s comp. statutea. If an employee is injured at work and has a negligence

claim against employerb. If the injury/damages are covered by worker’s comp, the

negligence claim is voidc. Without worker’s comp., plaintiff has actual claim

2. Worker’s comp. as a grand bargaina. There’s certainty that you will be able to recover some

money, but then you don’t get to sue the employerb. Benefit to the employer

i. Bars negligence litigationii. Insurance cost is easier to price

c. Employer has to insure worker’s comp exposured. Specifies what can be coverede. Without worker’s comp., there would be many more

workplace cases litigationf. There are many workplace claims brought against 3rd

parties (i.e. equipment manufacturers) and not the employer

3. Court chooses “substantial certainty” vs. “true intentional tort4. Ruling: Worker’s comp. does not invalidate intentional tort

claims. If the actor knows the consequences are substantially certain to result, it is treated as an intentional tort.

vii. Common law writs1. Trespass quare clausum fregit – trespasses on to the property of

another2. Trespass de bonus asportatis – wrongful taking of chattels3. Trespass ab initio – person lawfully enters another’s property

(under license of law) and then abuses his license by doing a tortious act – low considers him to be a trespasser from the beginning

4. In old days, one did not have to intend to do this to be liable5. Now, trespass means trespass on land or chattels and they are

intentional physical invasion or land or inference with chattels b. Intentional physical torts (battery and assault)

i. Nominate torts (have names)ii. Battery

1. Intentional infliction of either a “harmful contact” or an “offensive contact”

a. Offensive – example of spitting on someoneb. Contact doesn’t have to be direct, you can use an

instrument2. Single intent vs. dual intent

a. Single intent

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i. Majorityii. Only that you intend the conduct

b. Dual intenti. Minorityii. Intends both the act and the act to be harmful or

offensive3. How far does this go? (email/strobe light/epilepsy example)

a. Victim didn’t have choice not to see it (they just opened their email)

b. Defendant knew plaintiff was epilepticc. Definitely intentional and harmful, but was there contact?

i. There was an intrusion4. Restatement (Third) §13

iii. Assault1. No contact, but intention to cause imminent apprehension 2. Apprehension = conscious awareness element3. i.e. sleeping person has not apprehension4. Restatement (Third) §21

iv. Garret v. Dailey (great aunt in the rocking chair) 1. Child pull chair out from under old aunt while she’s in the very

slow process of sitting down2. What was the child’s intent in moving the chair?3. Did he intend to harm? Probably4. Condition of severe arthritis makes it likely that it will injure him5. SC of WA: he knew his aunt was trying to sit down it was

intentional6. Some jurisdictions require:

a. Intent to contactb. Intent that action result in harmc. (apparently not in WA)

7. Hypo: what if expert says that Brian watches so many cartoons that he doesn’t understand physics and thinks people don’t fall, they bounce

a. Young children can be liable for battery/assault but typically not negligence

8. Children are capable of intentional torts.9. Intent = knowledge + substantial certainty

v. Masters v. Backer (1964) (NY) [girl pushes girl off truck] 1. Child tortfeasor pushes Susan off of tailgate2. Jury instructions: she had to intend contact wand that the contact

would be harmful/offensive3. Can you say that Susan consented?

a. She agreed to play, what are the risks that accompany playing on a truck?

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b. It’s different for a player to be hit with a bouncing tennis ball than for a player to wait until another is turned around before hitting the ball hard at her

4. Opinion talks about it as assault, but contemporary laws and the Restatement view it as battery

5. Ruling: To be liable for intentional tort, you must only have intended the action that caused the injury, not the exact injury itself.

a. Only must prove that there was bodily contact, that such contact was offensive, and the defendant intended to make the contact.

vi. Brzoska v. Olson (1995) (DE) [dentist with AIDS case] 1. AIDS/dentist case2. Plaintiffs unable to establish physical harm

a. Argue that because they didn’t know that doctor has AIDS, they didn’t properly consent

b. Would it offend the ordinary person? (one not unduly sensitive?

3. Summary judgment: ruling made before (or without) triala. There’s only one way this could go with the evidence

4. Dissenta. What people think as offensive changes over time and

placeb. Offensiveness is contingentc. Social usages can in retrospect be mistaken and morally

reprehensible5. Ruling: There can be no recovery for fear of contracting a disease

in absence of showing that the plaintiffs had suffered physical harm. No battery.

a. Policy reasons of not expanding “AIDS-phobia”b. Reasonable person standard

i. Contact must be objectively offensive, not subjectively

vii. Dickens v. Puryear (1981) (NC) [dad goes apeshit on man sleeping with daughter]

1. Actions constitute battery. It’s not claimed here, but is there false imprisonment?

2. Statute of limitations had run out on battery(/assault?) (1 year)3. SOL on (assault?/)IIED (3 years)4. “leave NC or we’re going to kill you

a. Imminent, seriousb. Context of the battery – threat is more credible

5. What is the tort of criminal conversation?a. Adultery

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b. Historically, plaintiffs could only be husbands, defendants often the “other man”

c. Adjunct to divorce proceeding in most other placesd. NC kept tort, it’s gender neutral

6. NC – 2001 – general assembly amended statutes of limitations a. Most now 3 years (including assault & battery)

7. Ruling: No liability for assault. Threat was not one of imminent harm; it was a threat for the future. Maybe try IIED.

c. Transferred intenti. If a tortfeasor inflicts action upon a person other than the intended

target, there is still an action against the tortfeasor and actual victim can bring suit.

ii. Singer v. Marx (1956) (CA) [Timmy throws a rock case] 1. Trial court decided nonsuit (trial has started/evidence is taken in)2. CA civil code is primary source of law3. Transferred intent

a. Tim intended to commit a tort on Barbie, but his Deniseb. Barbara could have immediate apprehension of being hit

(assault claim?)4. Denise’s father sues the parents of Tim for recovery of damages

resulting from Denise’s injury5. Father has a claim (injury)

a. Parental duty to furnish necessities of life – including medical care

b. He has medical bills to payc. Expenses as an injury to himself

6. Compensatory: What are Denise’s injuries (if not medical bills)?a. Loss of vision/disabilityb. Inability to carry on with one’s work (school, sports, etc.)c. Paind. Emotional distress

7. Father’s claim against Tim’s parentsa. In most states, there is no vicarious liability simply

because of the nature of the parent-child relationshipsb. Father sues for negligence instead

i. Parents had awareness that Time was poorly behaved (had damages principal’s care) but didn’t know of “rock-throwing proclivities”

ii. Court says Mom is aware and negligent, but father didn’t have awareness

8. What’s the point of a judgment against a child? What’s the incentive for the plaintiff? Is the judgment collectable?

a. Tim will have a debt that comes with him into adulthoodb. No insurance here probably because it’s intentional

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9. Ruling: Doctrine of transferred intent renders defendant liable to plaintiff. No vicarious liability for parents.

d. Insanityi. White v. Muniz (2000) (CO) [old lady with dementia hits worker case]

1. Muniz was injured physically – jaw broken and slight (temporary) brain injury

a. Medical bills/costsb. Wages lost while out of workc. Paind. Loss of jaw functionality (temportaty)

2. “the plaintiff need not prove, however, that the actor intended the harm that actually results”

3. NOT majority rule in the U.S., this is minority rule (in this instance in CO)

a. You have to intend the contact AND intend the harm that ensues

b. Many, many cases have held insane people responsible for their tort under a battery theory

c. Majority: a finding of insanity does not preclude a finding that a defendant acted intentionally

4. If defendant doesn’t have to pay, does Muniz have to bear her own costs?

a. Injury at work, suffered by employeei. Avenue of recovery if filing a worker’s comp. claimii. Needs to prove her employer committed a tort

5. Dual intent jurisdictions leave non-employees (victims not at work) to pay for expenses out of pocket if not successful in suit

6. Ruling: Insanity is not a defense to an intentional tort, but is a characteristic that may make it more difficult to prove the intent element of battery.

ii. Where the defendant loses all capacity for voluntary action (i.e. become ill unexpectedly), then the defendant will not be held to be capable of forming the requisite intent.

iii. Insanity is not a “defense”, it is a denial that the plaintiff has proven an essential element of his claim

1. i.e. that the defendant intended to batter the plaintiffe. Trespass to land or chattels

i. Trespass on land – voluntary entry, even if they mistake the land for their own, not consented to by land owners

1. Consent can be express or implied2. Privileges for services (FedEx, etc.)3. Intent is present as long as you meant to take the step that

resulted in entry to the land.4. Entry can be affected with instrumentality (bike, car, etc.)

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5. Once a trespass to land has been shown, the plaintiff has a cause of action for at least nominal damages – regardless of whether the plaintiff has suffered any damages and regardless of the good faith of the defendant.

6. High social value traditionally place upon inviolability of a person’s real property (and particularly the home)

7. Purely accidental entries where no fault has been shown and where the accident has not arisen in the course of an abnormally dangerous activity are now generally not actionable regardless of the damage they have caused.

8. One who has entered land with the permission of the possessor cannot remain upon the land after the possessor has asked him to leave.

9. As opposed to nuisance: a. Trespass occurs when the invasion interferes with the

plaintiff’s exclusive possession of the land and the land’s physical integrity.

b. Nuisance interferes with the plaintiff’s quiet use and enjoyment of the property.

10. Restatement (Third) §15811. Includes immediate airspace (w/ potential to affect the land) and

to some extent ground underneathii. Trespass to Chattels

1. Trespass to chattels will lie even if only for nominal damages when the defendant has intentionally dispossessed the plaintiff.

2. Where the defendant has merely intentionally interfered with the chattel, an action for trespass to chattels will only life if the plaintiff can show some actual damages.

3. Restatement (Third) §2174. Conversion

a. Intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay over the full value of the chattel.

b. Dominion includes intentional unauthorized use, destruction, possession, or wrongful disposition of the chattel.

5. Destruction of chattel remedy is the same in trespass and conversion (i.e. full value of chattel and possible subsequent damages)

6. If there is only damage to the chattel, trespass will cover damages, but conversion may cover the fair market value

f. Consent

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i. Generally, a defense to a civil tort since the action would no longer be “offensive to the person”

ii. Consent to the conduct, not necessarily the result (Dicka)iii. Consent relative to criminal law

1. Dueling has agreed upon conventions (use swords, guns, rules, etc.)

2. Two people duel, one breaks rule & injures other3. They consent to playing, but consent does not extend to behavior

inconsistent with conventional rules tortious 4. Both committed a crime (participating in duel)5. Does illegality void a tort?6. No consent part to a crime

iv. Consent as a scope1. Can be granted or withdrawn2. It’s not good to be bound by past decisions3. Totality of the circumstances

v. Need not be in words; what a reasonable person interacting with that individual would conclude under the circumstances.

vi. Consent obtained by fraud or duress or even by nondisclosure of some material fact will not immunize someone from liability.

vii. Hellriegel v. Trioll (1966) (WA) [roughhousing with friends leaves boy paralyzed case]

1. Participants in roughhousing are friends with past of roughhousing

2. Conduct is not criminal3. Typically in personal injury the plaintiff is the person injured. Why

isn’t injured boy a plaintiff?a. Maybe didn’t think friends did anything that wrongb. Testimony isn’t strong towards father’s claim

4. Trial court granted nonsuit5. Respondents were not liable because there was no offensive

touching (consent to) supported by victim’s own testimonya. “you couldn’t throw me in even if you tried”b. Consented to friends trying to throw him inc. Then began to struggle/resist being thrown in the lake

i. Is consent revoked via physical motions?ii. Is struggle part of the game

d. How would friends reasonably interpret Dicka’s appearance of struggle

6. Ruling: Plaintiff consented to horseplay, contact that caused injury was accidental; defendants not liable.

viii. Mulloy v. Hop Sang (1935) (Alberta) [hand amputation/consent case] 1. Relationship between parties is contractual

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2. Plaintiff (doctor) sued defendant (patient) for not paying medical fees

a. Contract claimb. Defendant files counterclaim for damages

3. “The defendant’s instructions were precedent and went to the root of the employment. The plaintiff did not do the work he was hired to do and must, in my opinion, fail in his action.”

4. Tort claim is battery5. Patient expressed no consent for hand amputation twice

doctor really concerned, told him he’d have to do whatever the situation dictates, patient is silent

a. Doctor takes silence as consentb. But patient may not understand English that well &

statement from doctorc. Doctor decides upon examination that an amputation was

necessaryi. Not necessary to save his lifeii. But necessary because hand will have to be

amputated later anyway6. Whether it was best medical practice/performed well means

nothing since he didn’t consent7. Damages sued for: lost wages, cost of artificial hand

a. Loss of hand was due to accident not to doctor’s action b. Damages award for trespass to person, not for loss of

hand.8. Causation – no matter what doctor did, patient would have lost

hand, doctor not liable for damages surrounding loss of hand a. Accident itself causes loss of hand before patient and

doctor met9. But patient should recover something $5010. Ruling: Patient entitled to rights of refusal and damages because

of trespass of person.a. Doesn’t matter that medical judgment and quality of

treatment were good.ix. Medical consent

1. If patient unconscious during medical procedure and situation arises, doctor doesn’t have to wait for patient to regain consciousness

a. Patient’s consent will be “presumed” in the absence of express instructions form the patient to the contrary.

2. Presumed in an emergency3. During an unconscious state, customary to seek consent of

relatives4. Surgeons seek general consent from patients

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x. Restatement (Third) §892g. Self-defense of person or property

i. Self-defense:1. The law focuses upon how the situation would have appeared to a

reasonable person in the defendant’s position. a. Even if one does not actually intend to hurt another, if his

actions reasonably indicate he would hurt another, then a person is justified in using self defnes.

2. Dominate view in US is that provocation is not relevant to the issue of compensatory damages.

3. Lane v. Holloway (1967) (UK) [neighbors fight case] a. Parties don’t like each other – long historyb. Plaintiff returns from public house (pub)c. Defendant’s wife & plaintiff exchange wordsd. Plaintiff essentially challenges defendant to fight

i. Under proportional circumstances, those that consent to fight accept the risks of the fight

e. Plaintiff hits defendant in the shoulder, defendant responds disproportionately with severe blow to eye

f. Defendant is much younger than plaintiffg. Consent to fight = consent to proportional injuriesh. Ruling: Provocation is not an excuse to an assault.

Defendant went too far; blow out of proportion to the occasion.

4. Silas v. Bowen (1967) (SC) [people demanding car to be fixed case] a. Bill Silas – black man/plaintiffb. Defendant, witnesses, judge are all whitec. Defendant fires gun to scare plaintiff accidentally

shoots foot.d. Forum – South Carolina, federal court

i. Diversity jurisdiction (Silas – MO, Bowen – SC)e. Bench trial, tries facts & applies

i. How reliable is this judge as a fact finder?1. In most of cases, there’s no controversy

over the facts2. Here’ there are stark conflicts between the

testimonies of the parties 3. Judge is somewhat transparent in his

thought process in assessing the credibility of the testimonies

f. Witness testimony diverges at the time plaintiff brought car back to get fixed

g. Plaintiff offers a timeframe and record shows a time about five hours later

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i. Weakens his credibilityii. Judge finds defendant testimony that he told

plaintiff and companion to get off the premises trespass

h. Judge found conduct of plaintiff to be threatening and reasonably giving rise to defendant’s action

i. Defendant in own place of business no duty to retreatj. First aggressor doctrinek. Ruling: Judgment entered for defendant. Defendant was

justified in self-defense/acted in reasonable apprehension of serious bodily harm.

5. Restatement (Second) §63: one can defend himself from harm by using non-deadly force, even if he could avoid injury by retreating.

6. Restatement (Second) §65: resort to deadly force cannot be justified if retreat is possible unless the defender is attacked within his own dwelling or is defending his own dwelling against intrusion or dispossession.

a. Castle doctrineb. Stand you ground laws

7. Restatement (Second) §76: right to use force to protect third persons “under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that:

a. The circumstances are such as to give the third person a privilege of self-defense, AND

b. Actor’s intervention is necessary for the protection of the third person

ii. Defense of property1. Brown v. Martinez (1961) (NM) [watermelon patch case]

a. Appellant didn’t actually trespass on the property (outside the gate/in the highway right-of-way close to the fence)

i. He was facilitating theft by friendsii. He might have been liable for this tort (conversion,

trespass on property)b. Court is trying to determine whether action of plaintiff and

friends was a misdemeanor or felonyi. To determine whether or not defendant was

justifiedii. Actions are justified for a felony, not a

misdemeanorc. The defendant’s purpose in shooting his gun (at opposite

end where boys are running to)i. To scare them? (but they already left)

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ii. Shooting to deter later re-entry? To raise the stakes?

d. NM has two different statutesi. Entrants were not charge under either

e. Boys had no intent to damage the fence, accidentally ripped out a couple of staples

f. Law: responses to misdemeanor trespass may not legally be responded to with deadly force

g. Here, probably more like negligence than intent to shoot someone

h. Rule: Defendant acted improperly and is liable for injuries caused in using the gun.

2. The right to use force generally applied to property that has been taken by force or fraud in the first instance (e.g. shoplifting). The right of an owner to repossess property legally acquired is more limited.

a. Absent a breach of the peace, the trespass onto another’s land in order to retake chattel is privileged.

3. Restatement (Second) §77h. Necessity, public and private

i. Public necessity1. Public law doctrines & concepts2. Not much torts3. Public authorities have the right to take/destroy private property

in emergency situations, such as destroying buildings to prevent the spread of fire.

4. While in the typical case, it is the public authorities that have made and executed the decision to destroy private property to prevent greater public danger, there is authority that, in extreme situations, private citizens can successfully invoke the privilege (or defense) of public necessity.

5. The cases hold that the public is not legally required to pay for property destroyed pursuant to a valid claim of public necessity, but statutory schemes for compensating the owners of destroyed property have been established in many types of situations.

6. Restatement (Second) §196ii. Private necessity

1. Cases involving vessels & private necessity2. Necessity (typically extraordinary circumstances) will justify

entries upon land and interferences with chattels that would otherwise have been trespass

3. Necessity of what?a. Human life, serious bodily injury – given great forceb. Great harm to society

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4. Restatement (Second) §197: one is privileged to enter/remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to:

a. The actor, or his land or chattels, orb. The actor or third person or the land or chattels of either

iii. Ploof v. Putnam (1908) (VT) [town pariahs moor boat to sloop] 1. Ploof, family & cargo are sailing a sloop on Lake Champlain

a. Storm aroseb. Great danger of destruction

2. Moored sloop on dock of defendant (owned island)3. The Ploofs were trespassing – dock is treated as part of Putnam’s

land4. Circumstances are outside of the control of the trespasser, esp.

when human life is jeopardizeda. Allows trespass under circumstances

5. What is there was another object plaintiff could moor to?a. i.e. natural objects that no one ownedb. with equal safetyc. Ploof didn’t allege he had no choice, he chose to moor the

ship to the dockd. Defendant didn’t allege other viable moor locations

6. Court: necessity of mooring and necessity of mooring to the docka. Details – potential alternative and matters of proof

7. Court says it doesn’t have to be alleged to prove necessity8. Putnam’s servant (caretaker/attendant) sees sloop and unmoored

the sloop, sloop driven upon shore by the storma. Destruction of sloop & contentsb. Physical injury to Ploof & family (thrown off boat)

9. What if there was a back story of poor relationship between servant & Ploof?

a. Scope of employmentb. Servant would be liable instead of Putnamc. Did Putnam give servant directions to unmoor ships?

10. Outside of case:a. Ploofs were generally unliked, poor, landless, “pirates”

who were “a threat to all owners of summer homes,” lived on their boat in newly gentrified place

b. Servant unmoor ship not only because of trespass but because of reputation for stealing

11. Did servant commit trespass on chattel?a. Yes – defense to this trespass depends on circumstances

12. Ruling: Entry upon the land of another may be justified by necessity; necessity was established here.

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iv. Vincent v. Lake Erie Transportation Co. (1910) (MN) [boat damages dock during storm]

1. Commercial maritime casea. Not this case, but vessels are often named a party

2. Settinga. Deluth, Minnesota (Lake Superior)b. Northern most port in the Great Lakesc. November

3. Reynolds ship was discharging cargoa. Already at the dock for a commercial purpose tariff to be

paid b. Cargo was discharged when storm hit

4. Under circumstances, hazardous to attempt to leave, no tug boats available

a. Reynolds moored to dock & strikes it multiple times throughout the storm causing damage

b. Reynolds ship attendants re-moored the ship and took the risk of harming the dock

c. Vessel was preserved at risk of the dockd. “Deliberately and by their direct efforts held her in such a

position that the damage to the dock resulted”5. Old lines weakened/began to fray more lines6. There’s a risk anytime a boat is moored to a dock just because of

the material7. Dissent argument:

a. It was an inevitable accidentb. Was it necessarily Vincent (dock owner) who initiated the

case?i. Maybe the insurance company was involvedii. Many insurance companies have the ability under

their policies to take on legal actions available to the insured when they pay out for damage

iii. Does the Reynolds have insurance too?1. Maybe insurance going after insurance

8. Ruling: Finding for plaintiffs. Defendant purposefully availed itself to plaintiff’s property for the purpose of preserving its own more valuable property.

i. Wrap-upi. Inadequate control of impulse intentional, physical tortsii. Some intentional torts are results of calculation (i.e. fraud)

iii. Trespass on land/chattel distinct prototype for tortsiv. Now moving on to “slippage” from exercises of reasonable care under

circumstances (negligence)III. Negligence

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a. The reasonable person; atypical personsi. Prima facie (at first look/on its face)

1. Duty (fault ½)2. Breach (fault ½ ) 3. Causation4. Injury

ii. Three factors:1. Magnitude of injury (if it occurs)2. Likelihood of occurrence3. Burden of precaution to eliminate/reduce risk

iii. Restatement (Third) §7: “an actor ‘ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm”

iv. Concept of risk creation is different in negligence from intentional tortsv. What reasonable care requires develops over time

1. (b): “in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification”

vi. Reasoanble person standard1. Objective2. Does not take into account a particular person’s ignorance or

stupidityvii. Vaughn v. Menlove (1837) (England) [haystack catches fire cases]

1. It was common knowledge that hay was capable of combustion2. Defendant stacked hay in way that was likely to catch fire, built a

chimney in it, hay catches a fire & sets fire to plaintiffs’ cottages3. Jury trial delivered a verdict for the plaintiff4. Defendant seeks rule nisi (presenting issue to appellate court)5. Richards argues that defendant can do whatever he wants on

propertya. Negligence should be judged on faculties of individualb. Defendant has not duty, no contract

6. Defendant had insurance was he unconcerned7. Vaughn suggests directing the jury in future cases (?) double

check this8. Ruling: Defendant was liable; he was aware of and disregarded

the risk. (CM note: would argue even recklessness, not just negligence).

a. Apply objective standard.viii. Delair v. McAdoo (1936) (PA) [tire blows out while passing car case]

1. Effect of new technology2. Jury found for the plaintiff – granted new trial on the grounds that

the verdict was excessive

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3. Judgment n.o.v. (judgment notwithstanding the verdict)a. Should be set aside as not supported by evidence/law

4. Defendant’s counsel – all he has to work with is that he’s ignorant5. May seem obvious, but think of the time6. Cars not as old, not a lot of case history on automobiles7. Expert comes in and testifies 8. Defendant wasn’t specifically aware of risk like the defendant in

Vaughn9. But no one engaging in driving should be unaware of these

dangers10. Ruling: Defendant was liable; duty to take care of maintenance

of your own car.ix. Reasonable care is not tailored for specific circumstances general

application of standardsx. Tort law recognizes that not every person is a standard person

xi. Variations on the “reasonable man” standard1. Children

a. Standard of negligence is typically that of a child of the same age and experience

b. A few jurisdictions have ruled that children under 7 are incapable of negligence

i. Most have an age which children under it cannot be capable of negligence

ii. It would be odd for a child under four to be held capable of negligence

c. Restatement (Third) §10i. (a): age, intelligence, experience ii. (b): a child under 5 is incapable of negligence

iii. (c): does not apply when the child is participating in adult activity

d. For doctrines that treat 18-21 year-olds as minors, most courts treat “minors” 18+ as adults.

2. Need a license to do some dangerous things (i.e. driving) which you may be able to engage in below the age of 18

3. Adults with physical disabilitya. Restatement is similar to the responsibility for childrenb. A reasonable person standard with their limitationsc. A blind person’s condition is taken into account in

determining what to expect of the reasonable person in his circumstances

4. Adults with mental disabilitya. “Considerable investigation has failed to find any cases in

which a mentally deficient adult was not held to the objective reasonable adult standard when the mentally

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deficient person was a defendant in an action for negligence.”

5. Emergency situationsa. “The ordinary formulation of the emergency doctrine

enables the jury to make reasonable allowance for the time element in judging the actor’s conduct by the traditional standard”

b. The fact of an emergency and the consequent need for speedy action will be taken into account in determining what it is reasonable to expect of that person.

xii. Charbonneau v. MacRury (1931) (NH) [son kills child with dad’s car] 1. Elwood MacRury (17) is licensed and driving his father’s (Colin’s)

car2. Plaintiff is 3-year-old son was killed in collision with Elwood3. On what grounds would father be liable?

a. The father’s negligence in permitting his son to drive his car (by himself?)

b. What if Elwood is an incompetent driver?i. Father would have had to have knownii. Does the father have a duty to know how his son is

as a driver?1. Think of Singer v. Marx – dad just didn’t

know his son had a propensity for throwing rocks

c. But he passed a road test, unless dad & son spent a lot of time together in care – how/why would he know?

4. Appeal challenges jury instruction5. Originally just normal reasonable care, court modifies it to include

assessing age & experience6. Ruling: Judgment for defendant; age and experience are factors

in assessing the reasonability of one’s conduct.xiii. Reasonable standard is normative – how it should be, not an empirical

observation of how they do behave 1. Disproportionate number of accidents are associated with

adolescents worldwide2. Who responds?

a. Insurers- charge more for teenagersb. Car rental – some don’t allow or charge more for people

younger than 25c. Manufacturers – safety features (i.e. don’t allow care to go

over a certain speed)3. All licensed drivers must meet the same requirements, but

doesn’t set tort standardsxiv. Goss v. Allen (1976) (NJ) [skiing case]

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1. Skiing is not an inherently adult activity – many children ski2. Is there some contributory negligence on part of the expert skier

plaintiff?3. Standard for care for primary negligence is the same for

contributory negligence4. Court takes into account that defendant is a minor

a. Standard of someone like him (like age & experience)5. Recreational activity – what makes it recreational?

a. For pleasure6. What about hunting? In some states requires license

a. State-by-state variation on what standard is reasonably applied

7. There are still significant judgment calls in these kinds of cases8. Ruling: Judgment for defendant. Standard of care extended to

age and experience, even in skiing. xv. Haley v. London Electricity Board (1964) (UK) [blind man falls in ditch

case]1. Witness – USPS engineer (routine business practice)

a. Postal service always guards their excavations with a fenceb. Take into account protection of blind persons

2. Example of what a reasonable person might do in defendant’s place

3. How a comparable enterprise fulfills the duty of care4. Testimony from plaintiff that but for the defendants breach of the

duty of care, the injury would not have occurred CAUSATION5. Whether or not actor is negligent – takes into account/feasibility

done to reduce/eliminate risks6. Excavators had ordered appropriate fence but it (hadn’t

arrived/hadn’t been put up) yeta. Proves it was a feasible precaution

7. What should defendant have done?a. Put the fences on the same truck as excavation equipment

8. Ruling: Appeal allowed; standard of care should include disabled people and should anticipate their presence.

b. Calculating riski. Some authors write as if there’s a duty to avoid risk

1. Not really what the law isii. Someone who’s conduct creates risk has a duty to use reasonable care

[RISK CREATION]iii. Those that are incapable of using reasonable care should not engage in

the conduct1. Tort law does not require the impossible2. i.e., if someone is hand-eye disabled, they shouldn’t drive

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iv. Courts will often consider the social utility of negligent conduct and the social utility of the interest that have been harmed.

v. CSC: The general public will be judged more leniently than technically trained people engaged in specialized activity.

vi. United States v. Carroll Towing Co. (1947) (2 nd Circuit) [barge collision] 1. Magnitude of harm (spectrum)2. Spectrum of probability

a. How often do they participate in risk conduct 3. Burden of precaution

a. Here – staff barge during business hours4. Admiralty case federal court5. Barge needs to be towed/not self-propelled6. Victim being at fault – contributory negligence?

a. In admiralty, wouldn’t completely bar recovery7. At fault, because no one on board

a. During business hour8. Court differentiates among the injuries 9. *very influential case*10. B<PL

a. Judge Learned Handb. Cost-benefit analysis c. “The likelihood that his conduct will injure others, taken

with the seriousness of the injury if it happens, balance against the interest which he must sacrifice to avoid the risk”

d. B = burden (cost) of taking precautionse. P = probabilityf. L = loss (gravity of loss)g. P*L must be greater than B to create a duty of care for the

defendant11. Ruling: Reasonable care requires defendant to have had a

bargee on board during regular business/working hours.vii. Barker v. City of Philadelphia (1955) (E.D. Pa.) [truck driver runs over kid

case]1. Burden of precaution – move paper/ investigate

a. Maybe do more to assure he goes around the paper2. Children always play in the neighborhood, spaces on street for

children to play (i.e. playground)3. It had never happened before (+ for appeal)

a. No precedent for anticipating4. Contributory negligence claim?

a. In the streetb. Hidden from viewc. But they’re quite young – incapable of negligence?

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d. Not a great plan to raise for the first time on appeal5. Negligence law does not require perfection at least he tried to

circumvent6. Was the paper actually moving? The fact that children were

playing isn’t the strongest evidence that the paper was moving7. Ruling: Defendant driver was careless and is liable.

a. If any risk is foreseeable, person who moves forward with risk creating activity is responsible for whatever result occurs

b. Reasonable person would have checked what was underneath he paper before driving towards it.

c. Can’t disregard the risk like thatviii. Bolton (cricket case)

1. It is not immediately obvious what the defendants could have done to make sure that such an accident would never reoccur

a. Should they move inside?2. Capital expense – would redefine cricket as well

ix. Pitre v. Employers Liability Assurance Corp. (1970) (LA) [baseball concession case]

1. (burden) – Pitre – it wasn’t customary for nonprofessionals but professionals draw line for participants

a. Not intended for safety but had collateral effects2. Was there risk foreseen?

a. The direction the balls were thrown, yesb. Not from behind thrower/among spectators

3. What would the burden have been to reduce risks among spectators?

a. Relatively low to redesign space (add ropes, etc.) to protect spectators

b. Two volunteers already at the concessionc. Could redesign game at relatively low costs

4. Injury of this type hadn’t happened beforea. Likelihood of injury is low

5. Industry experta. Professional fairs are set up so this type of injury wouldn’t

happenb. Participant stands in a marked position c. But lines are set to make the game harder/more fair

i. NOT for safety purposes6. Court of appeals rules in favor of defendant7. Reasonability doesn’t encompass unlikely/unforeseen risks

a. One doesn’t have to anticipate all possible events, esp. if they are unlikely/unusual

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8. Fair was not a commercial fair it was a volunteer-run charity event

9. National popularity of sport was victim aware of the dangers relating to baseball?

10. Ruling: Risk of foreseeable harm to others and the probability of an accident of this nature occurring is outweighed by the utility of the enterprise. Defendant not liable.

c. Fundamental questions about institutional competence and designi. The jury’s function as trier of fact/judicial functions

1. Judges decide questions of law2. Juries decide questions of fact3. A judicial declaration of duty may amount to a statement of law

and thus create precedent. 4. Limited judicial role of judges in setting aside a jury’s decision as

to what is “reasonable care”ii. Statutory violations and legislative prescriptions of standards of care

1. Negligence per sea. In addition to finding negligence STATUTEb. Most courts adopt the position that violation of a criminal

statute is itself negligence per se. c. A minority of jurisdictions takes the position that violation

of a criminal statute is merely “evidence of negligence”d. Other jurisdictions treat violation of statute as establishing

prima facie evidence of negligence rather than just evidence of negligence

i. Other party would have burden of proof to disprove

e. Standard rubric: the plaintiff will be able to bring a civil action based upon the violation of a statute if the plaintiff is within the class of persons intended to be protected by the statute and if the damage suffered by the plaintiff is within the type of harm the legislature sought to avert.

f. Restatement (Third) §14g. Martin v. Herzog (1920) (NY) [no lights, driving over the

center car crash case]i. Assumption is that statute is silent ii. Cardozo: be careful of confusing negligence and

the cause of the negligenceiii. There’s a breach (of statute) problem, but think

about causation as well1. But for

iv. Two highway laws:1. Keep to the right of the city of the highway2. Travel with lights on

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v. Ruling: Lack of vision was cause-in-fact of injury, does not matter that defendant was negligent because his negligence did not cause the accident. Judgment in favor of defendant.

h. Brown v. Shyne (1926) (NY) [unlicensed chiropractor] i. Brown is on appeal, not retrying facts assume

plaintiff’s injuries were result of defendant’s actions

ii. NY statute: “no person shall practice medicine unless he is licensed to do so by the board of regents of this state and registered pursuant to statute.”

iii. Protection the statute was intended to provide was against risk of injury by the unskilled or careless practitioner

iv. Proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the state.

v. Ruling: the absence of a license does not prove negligence itself. Must prove that defendant didn’t provide the appropriate standard of care.

i. Telda v. Ellman (1939) (NY) [walking on the wrong side of the road case]

i. Victims were contributorily negligent (negligent per se)

ii. Statute dictates that pedestrians have to walk in the direction facing oncoming traffic, but plaintiff and brother were walking with traffic

iii. Plaintiffs walked with traffic because the other side of the roadway much busier/dangerous

iv. It may have been more dangerous for plaintiff to follow statute

v. Telda – qualifying/exception for the negligence per se doctrine

vi. Plaintiff was avoiding almost “suicidal” risk by not following statute

vii. Rules only applied in ordinary circumstances, not emergencies

1. This is not an emergencyviii. “rules of the road” – customary

ix. When compliance with the statute would increase the risk

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x. Prosecutor would probably never indict plaintiff for violation of criminal statute

xi. Respect for separate institution of criminal law no formulaic applications

xii. Deviation from statute not necessarily cause of accident

xiii. Unreasonable to think that legislature would want people to follow law that put them in greater danger

xiv. Ruling: Jury could find that the pedestrians avoided a greater risk by traveling along the east bound roadway (not adhering to statute).

j. Barnum v. Williams (1972) (OR) [motorcycle collision/smaller lane case]

i. Defendant driving in own lane would have created a greater risk than crossing into the other lane

ii. Sudden emergency situations can cause a reasonably prudent person to swerve over the lines

iii. Ruling: Jury could have found that defendant acted reasonably although his vehicle may have proceeded over the dividing line. Violation of statute presumption of negligence that CAN be refuted by showing that actor was acting reasonably.

k. Restatement (Third) §15: An actor’s violation of a statute is excused and not negligent if:

i. The violation is reasonable in light of the actor’s childhood, physical disability, or physical in capacitation

ii. The actor exercises reasonable care in attempting to comply with the statute

iii. The actor neither knows nor should know the factual circumstances that render the statute applicable

iv. The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are present to the public, OR

v. The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or others than non-compliance

l. Concept in emergency: actor in question didn’t create the circumstances

m. Defendant can create a circumstance, but not be negligent iii. Custom

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1. Observed, substantial regular variations in conduct that the law itself does not generally compel

2. Encompasses unwritten but general prevailing practices in a community or industry as well as trade rules or standards that have been explicitly adopted by a particular profession or industry

3. Typically proved with expert witness testimony (voir dire)a. Traditionally, improper to ask expert for an opinion on the

ultimate issue in the caseb. Modern trend, permits expert to testify even as to

ultimate issues (namely, whether the defendant exercised due care under the circumstances)

4. Rare to find instances in which a defendant was found to have failed to conform to customary standard, but was nevertheless not found negligent

5. Jury normally free to reject expert testimonya. But maybe not for medical malpracticeb. Can’t come to conclusion at variance with all the expert

testimony6. Dempsey v. Addison Crane Co. (1965) (D.C.) [crane case]

a. Accident on construction siteb. Defendant = crane company, owns crane in question

i. Crane comes with operatorc. Plaintiff = pile driver, assigned to a task that uses the craned. Any tort claim against the employer worker’s comp.e. Deceased coworker of plaintiff not initial party to case, had

a separate case that was adjudicatedf. Plaintiff’s wife also a plaintiff in the case

i. Able to allege injuries to herself as a result of husband’s injuries

1. Loss of companionship?2. Loss of sexual intimacy?3. People sue for consortium

ii. Injury has to be distinct to herg. Defendant claim – complied with industry practice

i. Assembly of jib was complaint with customii. But there was an alternative apparatus that was

safer and in use by some in the industry iii. Cost of precaution/using safer apparatus was low –

inexpensive, readily availableiv. Are there other costs?

1. Competitive pressure – lots of construction 2. Can other do it faster with “standard”

apparatus?

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3. Do they lose time/money from switching out the apparatus?

h. Relies on T.J. Hooper – admiralty casei. “in most cases reasonable prudence is in fact

common prudence”ii. Effect of custom in Hooper is prevalent in

Restatement iii. Collision between two vessels – one of which was a

tugiv. Tug didn’t have the proper radio system to receive

storm warningv. Hand: there wasn’t an industry-wide custom

1. Some had the radio system, other’s didn’tvi. Custom and evolution in technology

1. Technology moves on2. Now all tugs have radios, but now most also

have GPSvii. If custom has not caught up to current safety or the

danger is mitigatable behavior, court should hold the higher standard of care than is ordinarily used

i. Prior case for plaintiff who died in the same accident as Dempsey

i. Had different counsel and different outcomeii. Didn’t introduce the evidence of the safer

apparatusiii. Counsel in second case had advantage of going

secondiv. Counsel in first case thought facts were enough &

that they didn’t need to go deeperj. Ruling: Defendant is liable. Job and apparatus were

unsafe as of date of use and use constituted negligence. 7. Things to consider

a. Burden/cost of implementing the precautioni. Time, resources, training, etc.

b. Could it have actually prevented the accident?c. Was the lack of precaution causally significant to the injury

8. Downward departure from custom increases liability, upward departure does not increase liability

a. Don’t want to punish people for going above and beyond, or increasing their standards

b. i.e. if a company has half of their ships with higher standard radios, and an accident happens with a regular standard radio, they won’t be punished for not having all of their ships up to the higher (above custom) standard

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c. most courts would not permit evidence of upward departure inadmissible

i. don’t want to deter people from making things safer

ii. don’t want to chill innovation9. Helling v. Carey (1974) (NY) [glaucoma case]

a. Unusual in many waysb. Medical malpracticec. Standard of care established for glaucoma: tested for

people over 40i. But plaintiff was younger than that – was she still

owerd the care of screening?d. Problem here is more straightforward than Shilkret

(glaucoma screening is less complicated than delivery of a baby)

i. Test is very simply, easy, cheap & not harmful e. Professionals who conform to standards may still commit

malpractice if such conduct is not reasonably prudent.f. Ruling: Defendants were negligent and liable. Reasonable

standard that should have been followed was timely giving of simple, harmless pressure test.

i. BPL assessment, loss way outweighs the burden.10. Shilkret v. Annapolis Emergency Hospital Association (1975) (MD)

[baby dies from brain damage/bleeding from delivery]a. Should standard of care be specific to the locality/relative

geographic proximity?i. Court rules the standard of care is one of national

standard NOT of local practice/standardb. Rationale:

i. Considerable improvement in quality of medical education

ii. Increase of specializationiii. Increase in national certification

c. 1960s & 1970s – why then?i. Problems with locality standard became evident

and hard to justifyii. Documented improvements in patient outcomes

due to increased standardsiii. Finding qualified expert witness in a particular

locality could be difficultiv. Takes into account local capacity to comply

d. Trade-offs?i. Some physicians may decide to retire

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ii. Some may narrow practice/move to less risky practice

e. Who’s left over?i. The most committed/competent/equippedii. Incentive to relocate/transfer patients to those

better equippediii. Probably changes education

f. Hospital defendantsi. Historically, hospitals were seen as legally,

irrelevant marketplaces, simply a platform or site for patients and providers to meet

ii. Shift to treating the hospital as owing a duty to the patient, therefore about the relevant standard of care question

iii. Hospitals design physical spaces, routines and protocols for all employees

iv. Standard hospital1. Required to use that degree of care and skill

which I s expected of a reasonably competent hospital in the same or similar circumstances

v. In some states, there are extreme disparities in terms of access and resources for medical services

1. Duke > hospitals in the mountainsa. Wouldn’t it be bad to hold Duke to

the same standard as lower functioning hospitals?

2. Upward departure!a. Also consider

circumstances/capability of hospitals

g. Ruling: Appeals traditional locality rules. Doctors under duty to use degree of care and skill expected of reasonably competent physician in same class actin in same similar circumstances. Hospitals are required to use that degree of care and skill which is expected of reasonably competent hospital in same or similar circumstances.

11. Miller v. Kennedy (1974) (WA) [kidney biopsy case] a. Miller patient with heart blockage, biopsy on kidney led to

loss of kidneyi. Alleges he was not fully informed of risks

associated with kidney biopsy

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b. There are some risks that reasonable care cannot eliminate

c. Performing medical procedure without consent is battery d. Law has evolved to consider failure to obtain fully-

informed consent as negligencee. Ruling: Duty to inform of the risks inherent in the

treatment. Plaintiff also had to prove that a reasonable person in the plaintiff/patient’s position would not have consented.

12. General rule of disclosurea. As important as is the patient’s right to know, it is greatly

outweighed by the magnitudinous circumstances giving rise to the privilege

b. Elementsi. Existence of a material risk unknown to patientii. Failure to disclose the risk

iii. Reasonable patient would have chosen a different court

iv. Treatment chosen caused injury to the plaintiffc. Exceptions:

i. When patient is unconscious or otherwise incapable of consent and harm from a failure to treat is imminent and outweighs any harm threated by the proposed treatment

ii. When risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view

13. Jury is capable of determining if consent is informed/given]iv. Proving negligence/categories

1. General Doctrinea. Carrol Towing/Learned Handb. Duty, breach, causation, injury

2. Negligence per sea. Statute defines standardsb. Violation of statute = breach of dutyc. Causal relevance of conduct is also necessary

3. Customa. Is the custom made for safety?b. Law is treated more seriously than customc. Many exceptions

i. Defendant whose practice is to upward depart (extra safety precaution)

1. Don’t want to discourage people from trying to do better

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2. Don’t punish defendants for downward from own unordinarily high standards

4. Res ipsa loquiturv. Res Ipsa Loquitur (circumstantial evidence of negligence)

1. the thing speaks for itself2. negligence is apparent from the occurrence of action; a

presumption or inferred fact3. how else could this thing have happened4. a category for proving negligence5. concept of circumstantial evidence

a. facts that are inferred from another proven factb. weight/strength – how strong is the inference?

i. Inference can be weakenedii. Defendant could introduce evidence to could

weaken or destroy (harder to do)c. RIL is a distinct example of circumstantial evidence

i. Can vary in strength based on facts that can be proven

6. Different from negligence per se because no duty is assumed7. Restatement (Third) §17:

a. “The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.”

b. “accident of a type that is ordinarily or usually caused by negligence. Defendant is one of the type of actors usually responsible

c. DeMott addition: the plaintiff is also entitled to have the trial judge specifically tell the jury that they may make the inference

d. Cases for the jury – they decide power/strength or inference

8. Jury is specifically instructed that from proof of the accident they may infer that the defendant was negligent and that his negligence caused the plaintiff’s injuries

9. Puts on the defendant a burden of explanation – if they’re not liable/at fault, then show they aren’t – what else could have happened?

a. Puts pressure on the defendant to come forward with evidence

10. Byrne v. Boadle (1863) (UK) [flour barrel case] a. Plaintiff walking down the road, where he has right to beb. Defendant owns flour business on the road

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c. Plaintiff struck by barrel of flour while walking past defendant’s building

d. Witness (Critchley) and plaintiff didn’t see what cause the barrel to fall

e. Defendant was not on premises at the timei. We would assume there was a responsible

employee on the premises at the time that is responsible to defendant

ii. But then again maybe notf. Opinion structure:

i. Couple paragraphs of factual/procedural background

ii. Russel represents defendant – starts by arguing that there’s no evidence of negligence – not responsible for barrel falling

1. Tries to assert argument that was successful for trial judge

iii. Pollock – presumption that if it wasn’t defendant, it was one of his servants

1. It was on defendant to prove if he or servants weren’t responsible

g. The accident alone is prima facie evidence of negligenceh. Although plaintiff did not see the defendant or employees

drop the barrel, this does not mean one cannot infer or presume that this is what happened

i. Ruling: RIL. If there were any facts inconsistent with negligence it is for the defendant to prove them.

11. Shows ebb and flow of argument with an active court12. RIL sometimes founded on the idea that defendant knows what

had happeneda. Forces rationale to come from defendantb. Defendant doesn’t always know, but defendant is more

likely to know than plaintiffc. Evidentiary access/imbalance – plaintiff has no means of

knowing all that defendant does without litigation13. George Foltis, Inc. v. City of New York (1941) (NY) [water main

break case]a. What else besides negligence could have caused the leak

in the water main?i. Chemicals in water/ground?ii. Pressure of a bustling city

iii. Subways, excavation or vibrations of current lines

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b. There are other possibilities but negligence on behalf of City in the construction or maintenance of water mains seems likely

i. A lot of water damagec. Plaintiff also alleges that defendant did not turn off water

quickly enoughd. Big insight: res ipsa case shouldn’t result in direct verdict

for defendante. Ruling: RIL. The plaintiff’s proof that its property was

damaged by a break in a water main constructed and controlled by the city was sufficient to establish prima facie that the injury was due to negligence of the city.

14. Swiney v. Malone Freight Lines (1976) (TN) [truck wheel falls off] a. Introduces us to another highly authoritative voice in tort

lawb. Court treats Prosser’s treatise as a primary sourcec. Plaintiff is where he has a right to be (assume lawfulness)d. Vehicle almost collects with 1st wheel and then is hit by 2nd

detached wheele. Missing evidence that the defendant could theoretically

put in (if available) that weakens inference of negligencef. Bolts examined prior to accident

i. Employee who made the inspect was not called to testify

ii. We don’t have evidence as to what he foundiii. Maybe he doesn’t work there anymore, maybe

he’s not a fit witnessiv. Absence of evidence of an expert inspection is

damaging to the defendantv. “either the defendants failed to have an expert

examine the lug bolts subsequent to the accident or chose not to present the results of such an examination”

g. Ruling: Case was properly submitted to the jury under RIL.

15. In usual RIL case, there are not direct verdicts for plaintiff (?) or defendant (only for highly unusual case)

a. A lot needs to be weighed: strength of evidence, power of RIL evidence

16. Ybarra v. Spangard (1944) (CA) [wakes up from surgery with shoulder pain case]

a. California Supreme Court – most significant/influential court in tort law from mid-20th century on

b. People involved

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i. Dr. Spangard: surgeon (contract)ii. Dr. Swift: hospital owner

iii. Gisler: nurse (employee of Swift1. Does post-op stuff2. Probably present during surgery, but not

totally cleariv. Dr. Reser – anesthetist (employee of Swift)v. Thompson – “special” nurse

vi. Dr. Tilley – diagnosed appendicitis c. At one point, all defendants had control/custody over

patient and all owed a duty to ensure his medical wellbeing.

d. “never” events – instances that should never happen in a properly run hospital or surgery

e. Multiple defendants and instrumentalitiesi. Defendants argue that you can’t tell whose fault it

is – don’t contest that this is a “never event”ii. Medical care providers operate in teams

1. Each defendant has a specifically defined role

f. No way for unconscious plaintiff to produce any evidenceg. Professional duty does not necessarily equal legal duty

i. Nurses subject to chief surgeon (used to be treated as a de facto employer – “captain of the ship”)

h. The cases don’t answer the question of observers duty in surgery dispositively

i. Why is that person there?i. In case, 1st surgeon needs to be relieved – probably

dutyj. Ruling: RIL properly applied. Defendants who had any

control over his body may be called upon to meet the inference of negligence by giving an explanation.

17. To defeat RIL, the defendant must come forward with enough evidence to make it doubtful that a reasonable person would find that proof of the occurrence of the accident made it more likely than not that the defendant was negligent to that the defendant’s conduct caused the accident.

18. Most courts do not require the plaintiff to choose between RIL and a specific allegation of negligence.

19. California (and maybe emerging?) doctrine of “conditional res ipsa loquitur” for medical malpractice.

a. Applied where

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i. There is evidence that the unfortunate results of an operation could have been occasioned by negligence, and

ii. There is some evidence of negligent acts on the part of the defendant that could have caused these unfortunate results but not enough proof to make it more likely than not that the unfortunate results were in fact caused by the defendant’s negligence.

b. Use of RIL is “conditioned” upon plaintiff’s lack of access to the evidence that he needs to support his case

c. Restatement (Third) § 17 comment i reflects discomfort with the approach

IV. Negligence and Dutya. The basics of duty

i. Duty as an “unless” concept, an exceptionii. Duty inquiry is the only element of negligence decided in the first

instance by the court rather than the jury. iii. Performing a gatekeeping function a gate that closes fairly rarely

1. Gate is usually open2. Gate = negligence litigation

iv. Legal obligations (not moral ones)v. Duty (regardless of formulation of duty) is a question for the court

1. Even in jurisdictions where duty encompasses foreseeability determination

vi. Duty determination is made after presentation of facts1. No duty determination can be made relatively early in litigation

vii. RISK CREATION Restatement (Third) Section 71. An actor ordinarily has a duty to exercise duty of care when

actor’s conduct creates a risk of physical harm2. Section 7 does not create a duty to rescue even when failure to

rescue will worsen the situationa. No duty (in general) to interveneb. Unless you’ve undertaken a duty (special relationship)c. Responsible when you create risk yourself or do something

to increase riskviii. Fundamental rule that each of us owes a duty of reasonable care not to

create a risk of injury to others’ person or property1. In most jurisdictions, this default risk-creating rule is condition on

some form of foreseeabilitya. General-risk foreseeability

i. “some general range of risk or harm”ii. ANY foreseeable risk, does not have to be specific

type that resultedb. Specific-risk foreseeability

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i. Focuses on specific injury at issue in actii. At heart of Restatement (Third)’s criticism of the

use of foreseeability in the duty contextiii. Largely criticized by courts and commentators

c. Foreseeability of class of riski. Limits duty where injuries “of which the plaintiff’s

injury is a member” if foreseeabled. Foreseeability of injury to the particular plaintiff (Palsgraf)

i. Majority (33 states) condition duty on plaintiff-foreseeability

ix. Conduct has limits: does not apply to simple inactionx. Jurisdictions have multi-factor duty tests

1. Most of the time, formulations are majoritarian2. Essence of the duty inquiry can be boiled down to 5 general

considerations:a. Foreseeabilityb. Community notions of obligationc. Broad sense of social policyd. Commitment to the rule of lawe. A concern for courts’ administrative capability and

conveniencexi. Default rule of no dutyxii. Totality of policy considerations:

1. Foreseeability of harm2. Relationship between parties3. Nature of the activity in which the defendant was engaged4. Nature of plaintiff’s injured interest5. Social utility of defendant’s conduct6. Consequences on society of imposing the burden on the

defendant7. Expectations of parties and society under circumstances8. Desire to avoid increase in litigation9. Convenience of administration of the resulting rule10. Social ideas about where the plaintiff’s loss should fall11. Consideration of which party could better bear the loss12. Whether one party had superior knowledge of relevant risks13. The cost and ability to spread the risk of loss14. Desire for reliable, predictable, and consistent body of law15. Whether the imposition of duty would open up fraudulent claims16. Goal of preventing future injuries by deterring conduct

b. Duty and foreseeable plaintiffsi. Restatement Formulation

1. Doesn’t include “foreseeability”2. Minority rule formulation

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3. Adopted in Thompson4. 7(b): “In exceptional cases, when an articulated countervailing

principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification

a. Sort of legislative in nature5. Is it because foreseeability is redundant with proximate cause?

ii. Foreseeability is for the juryiii. Tort law struggles with “enabling” and “negligent entrustment”

1. A lot of the time, this rests on foreseeability2. Did you foresee your son would kill a kid when released from

prison?iv. Thompson v. Kaczinski (2009) (IA) [trampoline case]

1. Trampoline case: defendants disassembled trampoline on their property; a storm picked up the top and swept it into the road

2. Plaintiff claims defendants breach statutory duties as well as common law duty

3. If there’ no duty, there’s nothing for the trier of fact to determinea. Conduct by defendants seems like it created a risk of

physical harm case should proceed to the trier of factb. Just because a duty was determined, doesn’t mean the

plaintiffs will win4. Under Restatement 7(a), relationship doesn’t matter5. Court tells us that wind storms aren’t uncommon in Iowa6. Defendant would maybe want to argue contributory negligent7. Ruling: Landowner is under an obligation to use reasonable care

to keep his premises in such a condition as to not create hazards in adjoining highway.

v. Brown v. Kerr (2010) (KY) [breakfast of champions case] 1. Requires court’s determination of foreseeability2. Whether a reasonable person in defendant’s position would

recognize undue risk to another3. Duty only applies if the injury is foreseeable? General harm?4. What more could Clayton’s family have done?

a. Were pretty safe with guns, didn’t know about the drugsb. Could have turned him in? kicked him out of the house?

5. Negligent entrustment: a claim that the defendant negligently entrusted a potentially dangerous third party with a dangerous instrumentality

6. Policy: don’t want to deter parents from taking care of their degenerate children

7. Ruling: it was not foreseeable that defendants had notice of the level of their son’s drug use when he killed the victim (no

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evidence to suggest that son would violently harm another or use a gun). Defendants owed no duty of care to plaintiff’s son.

vi. Palsgraf v. Long Island Railroad (1928) (NY) [box exploding/scales hitting bystander case]

1. Single most important case in American torts2. Risk-creation rule conditioned on a foreseeable plaintiff3. Court closely divided4. Plaintiff had verdict from trial jury

a. Majority here thinks that trial court should have dismissed cause there was no duty

5. How can it be that LIRR owed no duty of care to a paying customer waiting for her train?

a. Plaintiff was present were she’s allowed to beb. She is someone who should receive a reasonable duty of

carec. Risk reasonably to be perceived in scope of foreseeable

victims6. Cardozo: “the passenger far away, if the victim of a wrong at all,

has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion of his bodily security is a wrong for another far removed.”

a. “the risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to another or to others within the range of apprehension… the range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury”

b. How could the railroad ever know that the passenger has explosives?

i. Factors not in control of the defendantc. Andrews is talking about “negligence in the air” & there is

no such thing7. Andrews dissent:

a. Like Restatement 7(a)b. Puts more weight on proximate cause/prima facie and less

emphasis on dutyc. Conception is act focusedd. “a wrong to the public at large”

8. Ruling: Defendants not liable, breached no duty to plaintiff. Harm not foreseeable, plaintiff not foreseeable victim. Spatial limits.

a. LIRR was not negligent as to plaintiff/no harm done to her.

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vii. There appear to be no guidelines according to which courts determine how narrowly or broadly to define the class of plaintiffs into which a particular plaintiff must fit. In fact, courts rarely even disclose the reasoning by which they have defined the class.

c. Affirmative duties; special relationshipsi. What duty of care does one owe to warn, protect, or rescue another

from a risk created by some other source?1. None!2. One generally owes no legal duty to warn, protect, or rescue

another from a risk created by some other source.3. Restatement (Second) §314: The fact that the actor realizes or

should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.

4. Exceptions to no duty affirmative dutya. Special relationshipb. Voluntarily promised aid to or came to aid of plaintiffc. Created the risk from which the plaintiff requires aidd. Defendant had a special relationship with a third party

who cause harm to the plaintiffe. Statutory duty

ii. Basic formulation: did you create the risk? If no, no duty1. Or did you make an existing risk worse?

iii. Separate basis for affirmative dutyiv. Subject to liability if:

1. You know a third person is giving necessary sassistance to another and negligently prevents that person from giving such aid

v. Price v. E.I. DuPont de Nemours & Co. (2011) (DE) [wife/laundry/asbestos case]

1. Plaintiff alleges that her husband’s employer exposed her to asbestos

a. Affirmative act of misconduct2. As of potion Mr. DuPont began working, risks of asbestos was not

known3. Wide spread industrial use was not constant throughout human

history took a while for relevant risk knowledge to develop4. Majority: no duty – nonfeasance & there’s no special duty

relationshipa. Her husband has the relationship with the employer

5. Not mentioned in opinion: employers can control employees while on premises

a. i.e. they could have required the employees to change or shower before leaving the premises

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6. Ruling: Defendant owed not legal duty to plaintiff because they did not share a “special relationship.”

vi. Difficult cases p. 298vii. Harper v. Herman (1993)

1. Boat owner takes four guests out on boat2. Plaintiff dives into shallow water and severs his spine3. Defendant brings boat to swimming area, anchors board, and

lowers ladder4. Was there a duty to warn plaintiff not to dive?

a. Defendant knows more about lake/swimming area (asymmetry of information)

i. Not a basis for affirmative duty5. What if defendant had encouraged plaintiff to dive?

a. In this case plaintiff doesn’t even ask and defendant doesn’t encourage

6. Nothing about plaintiff suggests that he’s not using his free willa. Passenger made his own decision, risk was obvious

7. Cases are spit viii. Restatement (Third) §40 : Duty Based on Special Relationship with

Another1. An actor in a special relationship with another owes the other a

duty of reasonable care with regard to risks that arise within the scope of the relationship

2. Special relationship include:a. Common carrier with passengersb. Innkeeper with guestsc. Business/possessor of land that holds premises open to

the public with those who are lawfully on premisesd. Employer with employees who are:

i. In imminent danger, orii. Injured or ill while ant work and thereby rendered

helplesse. Relationship between school and students

i. Well-established by casesii. Traditional case: tort committed by 3rd party on

school propertyiii. Custodial relationship -weakens over times as

students age/mature1. Duty required becomes less2. Students operate in place of students’

parentsf. Landlord with tenantsg. Custodian with those in its custody if:

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i. The custodian is required by law to take custody or voluntarily takes custody of the other; and

ii. The custodian has a superior ability to protect the other

ix. Munn v. Hodgkiss School (2017) 1. Connecticut Supreme Court2. Private boarding school: plaintiff (student) joined school trip to

China. She went on a hike on a mountain south of Beijing. She contracted a tick-borne diseased on the hike, virus attacks CNS resulting in life-altering brain damage.

3. What was school’s duty?a. Covered clothing? Bugs spray?

4. Low probability of risk/harm, but debilitating if it does occur5. Risk creation or special relation triggers duty, did the school

breach duty in controlling students?a. Risk not that foreseeableb. Established relationship affirmative dutyc. Foreseeability isn’t necessarily relevant

6. Argument: school didn’t do everything they could have (on site, in preparation, warning parents, etc.)

7. Element of comparative faulta. Student didn’t stay on the trailb. But jury found school 100% negligentc. School won’t introduce evidence that parent’s didn’t do

enough research bad for PRi. School also sent some warning information,

parents probably relied on it and assumed it was correct/comprehensive

8. Policy considerationsa. Would judgment reduce school’s likelihood of hosting tripsb. Risk remains insurablec. Must be a manageable risk because schools still do trips

x. Randi W. v. Muroc Joint Unified School District 1. Plaintiff bringing action against former employers of the

VP/assailant for providing positive recommendations to her current school

a. Leading her school to hiring the VP who assaulted herb. Defendants are former employers offering positive

recommendationsi. Not necessarily false statements, but certainly not

the whole truth2. Does plaintiff have claims against her school?

a. No, it’s an intentional tort outside of the scope of employment

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b. Some jurisdictions do have an exception for assaults on student

3. Relationship between schools & student (particularly minor)a. Special relationship that warrants a duty of reasonable

care4. Claim that school was negligent in decision to hire him?

a. They took steps to get character assessmentb. They got recommendationsc. Did they do an extra level or private investigation?

Background checks?i. He had a history of assaults and was fired

5. Aftermath:a. After this & similar cases, former employers take more

care in offering referencesi. Practice is to offer basic employment info

1. Dates of employment2. Timeliness

b. Now, mandatory state reporting lawi. Employers must report sexual misconduct to law

enforcement becomes publicly availablexi. Grimes v. Kennedy Krieger Institute, Inc. (2001) (MD) [lead experiment

case]1. Known risk of lead-based paint (esp. in residences)2. Defendant did not create the risk, lead paint is already there3. Did defendants do anything to make it more likely than not that

the plaintiffs would be subject to risk?4. Point of research: lead abatement is expensive – they want to

know if it is possible to get comparable results from partial or less expensive abatement

5. Defendants were well-motivate – socially valuable cause6. There are regulations on human subject research

a. Study went through process at EPA & John Hopkins7. Purely observational research (non-therapeutic)8. Policy: Inherent conflict of interest in Grimes case: If researchers

fully informed parents about risk, fewer parents would keep their children in lead-paint-infested homes

9. Ruling: There was ample evidence to support determination of duty arising out of contract or special relationship. Vacated and remanded.

d. Rescuersi. General rule: no duty to warn, protect, or rescueii. An undertaking does not necessarily equal a contract

1. Undertaking is an affirmative commitment 2. “I’m going to take care of you”

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3. Doesn’t need verbal expression necessarilyiii. Restatement (Third) §42: Duty based on Undertaking

1. An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:

a. the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking

b. the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking

iv. Restatement (Third) §44: Duty based on taking charge1. (a) An actor who, despite no duty to do so, takes charge of

another who reasonably appears to be:a. (1) imperiled; andb. (2) helpless or unable to protect himself or herself has a

duty to exercise reasonable care while the other is within the actor's charge.

2. (b) An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a worse position than existed before the actor took charge of the other and, if the other reasonably appears to be in imminent peril of serious physical harm at the time of termination, to exercise reasonable care with regard to the peril before terminating the rescue

a. Classic hypo: rescuing swimmer in distressb. Someone with no duty takes control

v. Farwell v. Keaton (1976) (MI) [concussed friend left in driveway case] 1. Plaintiff’s decedent; Siegrist is another defendant who owed duty

to Farwell2. Theories:

a. Attempting to rescue & failing to follow throughb. Special relationship of companions on a social venture

i. Considerations: how intimate, frequent is social relationship

3. Being on a joint social venture constitutes a special relationship and requires assistance to the other when he is in peril if the actor can do so without risk to himself

4. Also alludes to the voluntary rescuer doctrinea. Once you give aid voluntarily, you are required to use

reasonable care in administering aid5. When does social adventure stop and taking charge begins?

a. They’re just driving aroundb. Siegrist is aware of the state of his friend

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6. Siegrist commences rescue then abandons7. Medical professional testified if he had been taken to the hospital

earlier, he would have had a way higher rate of survival8. Did failure to take him for medical treatment matter?9. Ruling: There was a special relationship of a common

undertaking. Siegrist knew or should have know of the peril decedent was in and could have helped without endangering himself. Affirmative duty to come to his aid.

vi. Defendant who non-tortiously creates risk of injury (separate basis for liability)

1. § 39. Duty Based On Prior Conduct Creating A Risk Of Physical Harm

a. When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.

vii. A defendant also owes an affirmative duty if either the promise to rescue or the commencement of rescue efforts might have interfered with other potential rescuers.

viii. Rescuers must not abandon the rescue effort unreasonablyix. In some courts, a promise of aid alone might be sufficient to create a duty

where a defendant should have expected the plaintiff to rely upon the promise

x. Good-Samaritan statutes1. Prompted by the assumption that it is the fear of tort liability that

deters the rendition of emergency treatment, especially by physicians, despite the fact that there are few, if any, reported cases in which a physician has been held liable for rendering emergency first aid.

e. Special relationships with actors who pose risksi. Maldonado v. Southern Pacific Transportation Company (1981) (AZ) (man

injured while trying to board train case]1. Restatement (Third) §392. “Plaintiff received his injuries from an instrumentality under

defendant’s control. Under Restatement, this is sufficient to impose a duty to render reasonable aid and assistance; a duty for the breach of which defendant is liable for additional injuries suffered.”

3. Ruling: Allegations in the complaint are sufficient to establish a claim for relief.

ii. Continuing duty: although the defendant acted reasonably in initially creating a risk, the defendant owed a duty of care to warn of that risk so long as it existed

iii. Restatement (Third) §41

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1. (a) An actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise within the scope of the relationship

2. (b) Special relationships giving rise to the duty provided above include:

a. parent with dependent childreni. As in Singer v. Marx: Tim Marx’s parents were not

automatically liable for his conduct because of the relationship, but mother was held responsible because she ought to have known about his rock-throwing propensities

ii. Why emphasis on “dependent” children?1. Idea that parents have some sort of control

over dependent children 2. Non-dependent children (like Clayton in

“breakfast of champions” case) are excluded from this special relationship & “affirmative action”

b. Custodian with those in its custodyc. An employer with employees when the employment

facilitates the employee’s causing harm to third parties, and

d. Mental-health professional with patientsiv. Most courts have endorsed suits by a foreseeably harmed third party

against a physician for the failure to warn the physician’s patient of the risks of spreading diseases to third parties.

1. An even greater majority has imposed on physicians a duty of reasonable care to warn those foreseeably at risk of infection by the patient.

v. But still, most courts are unwilling to impose a general duty to warn.vi. Texas case (tomorrow): Graff v. Beard—TX S.C. held (w/ only 2 dissenting

justices) that social host owes no duty for acts of inebriated guests1. Comment in §41: a number of cases involving parents providing

alcohol to minor children. Does not = §41 situation. Instead = risk creation.

2. Suppose bad accident in a case like Graff is caused by a minor?3. Graff is a robust defense of social drinking, but has nothing to

positive to say about underage drinking4. Providing alcohol to minors would be negligence per se because

statures would be violatedvii. [Price v. DuPont consider §41(b)(3): is this applicable to this case? Did

Mr. Price’s employment with DuPont facilitate the employee causing harm to a TP (his wife)? Courts in some jurisdictions would find this sufficient to hold DuPont liable, but clearly NOT Delaware.]

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1. §41 (b) (3): not really about cases like Price; instead, more about employees whose jobs involve things like making deliveries or repairing things inside other peoples’ homes, or whose jobs involve dangerous instrumentality (police officers’ guns).

2. There are some states with State Supreme Courts where composition of the S.C. can change dramatically, leading to extreme shifts in tort law. Leads to heated dissents.

a. CA, TX both courts with really radical shifts viii. Thompson v. County of Alameda S.C. (1980) (CA) [parolee murder of

neighborhood child case]1. Facts: Murder. Juvenile offender, James F., under control of

Alameda County, Released to temporary custody of mother. Juvenile offender had previously targeted young children for sexual assault and had made specific threat to kill unspecified young child. County did not create the underlying circumstances that led James F. to be violent towards young children. Perhaps increased risk to children by releasing him?

2. Court: social value of parole & rehabilitation opportunity outweigh the risk of individual offenders reoffending

a. Could think of this case as a §7(a) risk creation case. But did county really have a duty not to release him?

b. Court places high value on parole (policy objective)c. Almost no-duty case—social value of parole &

countervailing policy considerations (including institutional considerations)

3. Not question for jury in this case (sounds like §7(b))4. James had issued non-specific threat to kill a young child (no

victim specified, but the threat was specific)5. “state sovereign immunity”—statutory sovereign immunity covers

discretionary decisions made by the county.a. California combines relatively broad application of fault in

tort law with fairly broad application of statutory immunityb. Advice from Prof. D—when a defendant is a government

body entity, always consider whether or not there might be statutory immunity

6. Another important case in California = Tarasoff (p. 327)—imposes under some circumstances a duty on therapists to reveal privileged communications when there is a specific threat against a specific person

a. [Sopranos example: Tony Soprano reveals lots of specific threats to his (loyal) therapist]

7. Murder victim and his family are individually bearing the costs of a program (parole) that is generally socially beneficial

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a. James released to his mother, but county did not warn his mother. Left his mother in a horrible position

b. Decision not to warn mother could be beyond statutory immunity

c. Court afraid that warning mother would have stigmatized both mother & son in community

8. Wouldn’t this case be good premise for someone to run for political office for county supervisor?

9. What if county did convey the warning to the mother?a. She might keep him under lock & keyb. She might warn neighborsc. She also might refuse temporary custody (court does not

specifically discuss this possibility)10. Affirmative duty could do more harm to reintegration of parolees

than benefit in preventing future regressing acts of violence.11. Ruling: county had no affirmative duty to warn plaintiffs, the

police, parolee’s mother, or other local parents. Public entities and employees have no affirmative duty to warn of the release of an inmate with a violent history who has made non-specific threats of harm directed at nonspecific victims.

f. No duty determinationsi. Based on public policyii. Doctrine for unique instances

iii. Cases have legislative qualities & debate over appropriateness for the courts (institutional awkwardness)

iv. No verdicts for plaintiffs or trials1. Case-by-case factual assessments

v. Strauss v. Belle Realty Company (1985) (NY) [Con Ed case – my cold call] 1. Gross negligence of Con Ed led to massive power failure (25-hour

outage)a. A lot of litigation ensuedb. People couldn’t work – lost wages & incomec. As well as personal injury

2. This is a personal injury case with two components/causes:a. Defective staircase (landlord)b. Stairs unlighted (Con Ed)

3. Does the defectiveness in the stairs supersede or overwhelm any affect light would have

4. Was plaintiff contributorily negligent?a. By the time he went down the stairs, the power had been

out for a long time, would a reasonable person proceed down the stairs?

b. Flashlight or candle?

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5. Majority relies on assumption that Con Ed would have lost all of the cases

a. They decide allowing liability would be crushing for defendant

b. But not each and every case would lead to favor of plaintiff6. Contain liability to foreseeable and manageable levels7. Dissent:

a. One-sided assessment of public policyb. Says majority is deciding on nothing more than

assumptionsc. We need a firmer evidentiary basis

i. Con Ed should have to proveii. Con Ed has burden of proving “crushing” liability

iii. It could be crushing for plaintiffs, costs not being weighed in the balance of public policy

8. Ruling: Con Ed is not liable, liability would be crushing. Liability is limited by contractual relationship.

vi. Codling1. Defendant = manufacturer2. Injured person did not have contractual relationship3. Providing a service that affects a lot of people is different than

putting out a defective productvii. Graff v. Beard (1993) (TX) [social guest leaves intoxicated case]

1. Man leaves social party intoxicated and injures motorcyclists2. Would it be a new duty?

a. Not really new in common lawb. Statutory duty only applied to commercial

3. Case majority opinion is a deference to legislaturea. But the statute only goes so farb. Similar to Thompson in that it relies heavily on how hard

implementation of duty would be4. What could host do?

a. Hire a bartenderb. Drink ticketsc. Restrict drink supply

5. Second component of duty: if guest becomes intoxicated, use reasonable care to prevent the guest from driving

a. Majority says this is too difficult; at what length do you go to stop?

b. Bartender could have more experience/training than average social host

6. Negative consequences of imposing duty here?a. Wouldn’t result in crushing liabilityb. Would result in premiums for homeowners insurance

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7. Dissent:a. Memorable analogy: rattlesnake loose on an unsuspecting

public 8. Ruling: Defendants not liable; focus should remain on the drink

as person responsible and best able to avoid foreseeable risks.viii. Most cases involving sororities and fraternities and duty of care for

alcohol have ruled that there is no duty absent other factors (such a coercion to drink as a part of initiation rituals)

ix. Most states have adopted “dram shop acts” that impose liability on commercial businesses for serving alcohol to intoxicated patrons or for serving patrons to the point of intoxication.

1. Vary on a number of grounds including:a. Whether defendants may be liable to third parties injured

by patronb. Whether the defendant must have known that the patron

was planning to drive a carV. Causation1

a. As long as a defendant’s action was partially responsible for injury liableb. Cause in fact (“but for” or sine qua non causation)

i. Causation of injury1. In intentional torts, we don’t discuss causation because it’s more

obvious2. For negligence it’s more complicated Not uniform

ii. § 26 Restatement (3rd)1. Tortious conduct must be a factual cause of harm2. But for = When the harm would not have occurred otherwise

a. this injury would not have occurred but for the tortfeasor’s action

b. most of the time this works, but not alwaysc. But for connection is now always obvious

3. It’s enough that defendant’s conduct be a cause of the injuryiii. Causal relationship between two events/outcomes/occurrences

1. Outcome for plaintiff because of conduct or omission from defendant

2. Preponderance of the evidence standard of proofiv. Being in the wrong place at the wrong time is usually not enough to

establish liabilityv. Brakes hypo:

1. General: good idea to name two defendants 2. Driver (who negligently did not apply brakes)3. Brake repair man (who fucked up the brake repair)

1 Restatement perhaps not the best source on nomenclature. Up in the air if courts will follow their classification of “factual cause” and “scope of liability”.

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vi. Kingston v. Chicago & Northwest Railway Co. (1927) (WI) [double fire case]

1. Two firesa. NE fire set by sparks emitted from locomotiveb. NW fire set but an unknown cause

2. Union of fires cause the damage to plaintiff’s propertya. NW is a factual causeb. Is that enough to exculpate the railroad?

3. Fires of comparatively equal rank.a. NW fire did not “swallow up” or take over the NE fire.

4. Ruling: Defendant is liable. Fact that the fire set by defendant was A proximate cause is sufficient.

vii. Hypo: People leaning against Alice’s car parked on edge of cliff1. Timmy comes up and adds extra pressure car goes off cliff2. Defendants can assert that their conduct was not a but for cause3. Independent causes combined created the harm = all appropriate

defendantsa. EXCEPTION to § 26

viii. Kramer Service v. Wilkins (1939) (MS) [glass broke in hotel/case case] 1. Involving causation of a particular injury2. Uncontested that defendant was negligent 3. What should the law make of the simple narrative sequence?

a. Glass fell head injury cancerb. One medical professional says there’s a 1% injury was the

cause of causes c. Other medical professionals said there was no chanced. Standard of proof necessary: preponderance of the

evidence4. Ruling: Defendant was liable, but damages reassessed. Head

injury foreseeable, but medical testimony only presented possibility of cancer arising from injury, not a probability. Medical testimony should be respected (how could jury decide?).

ix. Daly v. Bergstedt (1964) (MN) [customer trips over molding breast cancer case]

1. Plaintiff – store customer; defendants – store owners and equipment installer/seller

2. Facts: equipment was being installed in the store while plaintiff was walking out of the store and she tripped over molding that was laid across the aisle (it was the same color as the floor). It was put there by equipment installer. Plaintiff falls and injures herself and later develops breast cancers

3. Duty of defendants:a. Store owners owe duty of care to their customers

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b. Equipment company has no special relationship/contract with customer, but they created the risk of harm by putting the molding there

4. Probably an indemnity (duty to indemnify) equipment installers from store owners through contract

a. Duty to pay probably all on equipment installmentb. How is store liable?

i. Even if contract was silent, actively negligent party has duty to indemnify

ii. Store is vicariously liable5. What could store have done?

a. Signage?b. Closed up shop to do work?

6. Store continued to have a duty, but did not breach it’s duty7. 7 medical professionals; 1 subscribes to view that cancer can be

caused by a single trauma 8. Jury chose to credit that one professional9. Plaintiff’s counsel was fortunate in finding one of the few

subscribes left who believed cancer could be caused by a trauma10. Ruling: If (reputable) medical experts differ, a causal relationship

between the accident and the disease described becomes one for the jury’s determination.

x. Focus on whether the defendant’s conduct was a “substantial cause” of an event NOT the same as establishing that the defendant’s conduct was THE cause of the event.

xi. Summers v. Tice (1948) (CA) [Dick Cheney case] 1. Defendants hunting with plaintiff and both shoot in plaintiff’s

direction; plaintiff is seriously injured near his eye and was minorly injured in another spot

2. The serious (eye) injury could have only come from one of the defendants

3. Shift burden to defendants to decide who’s liablea. Defendants are much more likely to have knowledge

about who is more liableb. Plaintiff should receive a judgment for his loss/injuryc. If the defendant responsible chooses not to come forward,

they will both be equally liable4. Persons acting in concert

a. By acting together and being negligent creating a risk of harm

b. Rather than trying to fit into “acting in concert” or “acting individually” risk creating

5. Restatement (Second) §876

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a. For harm resulting to a third person from the tortious conduct of another, a person is liable if he:

i. Orders or induces such conductii. Substantial assistance or encouragement

iii. Gives substantial assistance to the other in accomplishing a tortious result and his own conduct constitutes a breach of duty to the third person

6. Ruling: Each defendant is liable for the whole damage. Jointly liable; negligence of both was cause of the injury.

xii. Loss of chance1. Matsuyama v. Birnbaum (2008) (MA) [late diagnosis of gastric

cancer]a. Medical malpractice to date requires proving injury by

proving a historical fact, don’t fuss about causation in these cases

b. Dr. failed to diagnose patient with stomach canceri. Plaintiff had a less than equal chance that death

would not have occurred absent the defendant’s negligence

ii. No recovery for loss of chance, there is recovery for pain and suffered

c. Historic fact that plaintiff suffered pain in last few months of life

d. Opinion reconceptualizes the injuryi. Prospects for surviving injury is something of valueii. A lot of data – enough that tumors can be staged

1. Quantify what seems iffye. Ruling: Loss of chance as theory of injury. Defendant

liable for only the portion of the value that the defendant’s negligence destroyed.

i. New rule for chances of survival under 50%.ii. Old rule: all or nothing

1. Had to have 51+% of survival2. *loss of chance in U.S. is limited to medical malpractice*

c. Proximate cause (“scope of liability”) i. Doesn’t become relevant until all the other elements are present

1. A potential limit to liabilityii. Assuming duty, breach, cause-in-fact of injury to plaintiff, injury is one for

which tort law grants a remedyiii. Extensive injury/series of damage can come from a single activ. There must be some limit – short of eternity – to liability

1. How to formulate what that might be?2. Options

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a. Temporal limitsi. How long between between cause and injury?

b. Spatial boundariesc. Relations between parties & dutyd. (whether the injury falls under a contract)e. (nature of injury and negligence)

v. In re an arbitration between Polemis and Furness, Withy & Co. Ltd. (1921) (UK) [board falling sparks oil vapor/vessel case]

1. English court of Appeal 2. Very influential in U.S. Courts3. How did it end up coming to arbitration?

a. Charterpartyb. Has a fire exception?

4. Specifics of charterparty:a. Clause (not mentioned in arbitration) requires payment for

use of vesselb. Had to return “in good order” as received with exception

of fair wear & tear c. Clause 21 (fire clause)

i. Loss or damage due to an act of God or loss or damage from fire on board

ii. What is this not applicable?1. Clause didn’t include negligence

5. Polemis test: direct consequencesa. Assuming that act is negligentb. It doesn’t matter how unusual or broad it isc. (f) the causing of the spark could not reasonably have

been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated”

i. The fact that some damage was likely, doesn’t matter what kind of damage ensued

6. Elaborate, formal contract between two commercial entitiesa. Embraces idea that tort liability is also available

7. Ruling: It only matters what caused it. It is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The actor was negligent Breach of duty.

vi. Palsgraf v. Long Island Railroad (1928) 1. Cardozo: look back to prior finding of negligence

a. Injury is not reasonably foreseeableb. Question is whether there is a duty to Palsgrafc. No duty no need to analyze causation

2. Andrews dissenting

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a. An event may have many causes, but only some may be proximate

i. Need to draw the line somewhereb. Timec. Spatial constraint: Palsgraf is within property of railroadd. But for causatione. Sometimes the law runs out – proximate cause is limited

for conveniencef. Hypo: Chauffeur negligently crashes car

i. A = sidewalk pedestrian1. Hit & killed2. Yes liability

ii. B = Person sitting in window of building across the street

1. Hit by glass2. Maybe liability

a. Question for the juryiii. C= same as B but a block away

1. No liability2. Have to spatially limit

iv. Nursemaid = startled by noise1. Drops baby2. No liability3. But what if they were closer?

a. Still separate instrumentalityvii. Harm within risk

1. Potential harms that made the action tortious2. Example

a. Bruce goes hunting on friend Abigail’s landb. Land has public access trialc. Assume out Abigail’s liability or any other third-party

liability d. What he thinks he sees is a deer on the other side of the

triale. He doesn’t notice Charlie theref. What he thought was a deer is a tree with an art object,

which he hitsg. Not foreseeable that the art would be up thereh. Other ex. Bruce shoots & misses was mistaken – wild boar

not deeri. In reaction, boar stampedes toward Charlie, knocking him

over/injuring himi. Assuming factual cause/”but for”

j. Is Bruce liable?

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i. After this, presence of boar becomes foreseeable but not at the time Bruce shot

k. Focus on foreseeability as of the timel. By shooting across what he knows to be a hiking trail, he’s

creating a risk of injuryi. And he was not completely where he was shooting

viii. Overseas Tankship (U.K.) Ltd. & Mort’s Dock & Engineering Co., Ltd. (The Wagon Mound No. 1) (1961) (Wales) [oil spill on wharf set fire by debris case]

1. Belief that oil was not dangerous2. Privy council (highest appellate court)

a. Senior judges overlapped with personnel of the House of Lords (Supreme Court)

b. Countries under UK could appeal to this court, most no longer do (Canada, Australia, New Zealand)

3. Why didn’t they sue for breach of contract?a. The stakesb. Commercial enterprises but not quite contractual

4. Furnace oil on surface of the wharfa. There was deliberate wasting/sacrificing of employer’s

property (5. Destabilizing negligence as a distinct cause for liability6. Dismantling Polemis authority by emphasizing novelty

a. No contract between parties; linked by happenstanceb. Another tort potentially available is nuisance

7. Assuming other elements of prima facie case are presenta. Is there a duty to handle discharge of furnace oil? YESb. Breach of duty? YESc. Cause in fact? YESd. Injury? YES

8. No recovery in negligence because of a lack of foreseeabilitya. What has to be foreseeable?

i. The specific damage (i.e. destruction of the Wharf)9. Was not a good idea for Wharf manager to continue operations

a. Is contributory negligence a concern?b. Same circumstances that lead court to find Wagon Mound

w/o liability would seem to lead us to find manager without liability

10. Ruling: No negligence in the air. No liability. It was not foreseeable (at that time) that oil would catch fire.

ix. Hughes v. Lord Advocate (1963) (Scotland) [boy falls in manhole and gets burned case]

1. Harm within risk2. Different formulations have a following in state jurisdictions

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3. This is House of Lords (Sc.) appeals come from Scotland4. Facts: post office workers left manhole open (unattended) with

lanterns surrounding it. Two boys (including plaintiff) went exploring, plaintiff fell into manhole with lantern and suffered burns.

5. Not private property, so no trespassinga. But also, people tend to make exceptions for children as

trespassers6. Post office defense: they hadn’t encountered children yet (not

foreseeable)a. Weak because it was based on only the five days prior.

This was Saturday, all the other days post office had been working in area, children had been in school

b. Not foreseeability of specific (narrative specificity) damage – foreseeability that leaving man hole open is dangerous in general

7. Where a plaintiff’s injury is foreseeable but the injury is cause in a unique way or manner which was not foreseeable, the result is within the chain of proximate causation.

8. Ruling: Accident was reasonably foreseeable; defendants at fault for failing to provide protection.

a. Explosion is only one way in which a burning might be caused. If injury of burning was foreseeable, it should not matter what type of burning accident, they are not different types of accidents.

x. Doughty v. Turner Manufacturing (1963) (UK) [lid falls in cauldron and explodes case]

1. Same court that decided Polemis2. Workplace accident – acting in the scope of employment when

injureda. Don’t see many of these cases now because worker’s

compensation routes are availableb. Worker’s comp. not comprehensively available yet in the

UK?3. Other potential defendants?

a. Manufacturer of cover or other equipment involved in the accident

4. Court holds that splashing and resulting burning is reasonably foreseeable to employer

a. But what actually cause the burning was the explosioni. Same lidii. But materials in lid reacted in vat in an

unforeseeable manner5. Spatial limitations

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a. What if plaintiff was in splashing vicinity, but the explosion happens?

b. Same injury, would it make a difference to this court?6. Temporal limitations

a. What if explosion happened a lot faster?b. As it happened, there was 1-2 minute delay

7. Ruling: Not liable for negligence. No breach of duty in knocking cover into liquid. Foreseeable risk (splashing) is not the one that happened. A second risk did occur but there was no duty to take care to avoid that.

a. Kind of in opposition to Hughes.xi. Petition of Kinsman Transit Co. (1964) (2 nd Circuit) [Buffalo River cluster

fuck case]1. If some damage is foreseeable, the fact that outcome turns out so

much worse due to complications, it is not a reason to be relieved from liability

2. In Buffalo River, a negligently moored boat floats down river, unmoors other boat, takes down bridge, ice flows in and dams up river flooding

a. Narrow, bendy river – bridge at bendy point, ships have to travel at right angle

b. Vertical life designed bridge3. Admiralty case federal court4. Multiple events occurring in sequence, multiple defendants

a. Kinsman (owned Shiras)b. Continental Company (failure to moor)c. City of Buffalo (owned and operated the bridge)

5. Bystanders – other shipsa. Shiras moored in a way that effect of nature forces would

be more severe)i. Lots of river between her and mooringii. Situation could have been rescued – operator of

dock could have slowed down, but didn’t (he took no action over 40 minutes)

iii. Experiences equipment failure once he actually attempts

b. Shiras collides with Tewksbury (properly moored)c. Collision with Steamship Druckenmiller and another

steamshipd. The bridge would have only taken two minutes to raise

i. 1st shift worker – not fully accounted forii. 2nd shift worker – arrives with not enough time to

raiseiii. Operators had 30 minutes between calls

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iv. Was city’s failure to raise the bridge negligent?1. Some risk foreseeable?2. This part of the river is use mostly for

commercial boats3. Not negligent of city not to keep bridge

staffed 24/7 – tug boats stopped at 4pm4. City upward departed from what

reasonable prudence would requirea. But sometimes people rely on

upward departures5. They had enough time to raise the bridge6. There was a statute in place requiring them

to raise the bridge/regulations geared toward this type of risk

a. Bridge Act of 1906 § 4b. § 488 (1894 – older statutec. Violation = misdemeanor =

negligence per see. Court rules that you are not any less culpable because of

what someone did afterf. Judge Friendly: This is different from Palsgraf – we had

more notice than from box on LIRRi. Package gave no warning, unlike this situation

g. Dissent: bridge was city’s choice, not all an act of nature6. Ruling: Foreseeability of the exact development and the extent

of the loss will not limit liability. No last clear chance rule.xii. Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (The

Wagon Mound 2) (1966) (Wales) [oil on wharf part II]1. New trial in Sydney new appeal in London to Privy Counsel2. Composition of law lords has changed/(different plaintiff)?3. Reaches different outcome (more evidence here)

a. Found for the plaintiffsb. Defendant must pay 2/3 of appeal costs/attorney’s fees

4. It’s illegal to discharge oil in the manner that Wagon Mound did fines and penalties for violating statute

5. Didn’t win on negligence, sued alternatively on nuisancea. Odor is not a trespass nuisance?b. Plaintiffs’ ships were destroyed

i. Harm not directly from nuisance itself (pollution), but it caught on fire, thus destroying property

ii. But for oil pollution, no fireiii. Nuisance – historical association w/ property

1. Fault based6. Like Carroll Towing

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a. Multiple relevant facts on spectrumb. Reconceptualizes foreseeability as spectrum (Wagon

Mound No. 1 is more binary)c. Deals with illegality

7. Ruling: Found for plaintiffs. Reasonable man wouldn’t dismiss risk of dumping so much oil into the harbor.

a. If a party did nothing to prevent the injury (when he created the risk), he is liable for the foreseeable consequences of his actions, even if the consequences are remote (mitigation of risk of harm).

xiii. Other notes1. A lot turns on harm & how it’s defined

a. What has to be foreseeable and with what degree of specificity?

2. Defendants always argue that harm has to be somewhat foreseeable for it to be tortious

a. Defined with a lot of detail3. Plaintiffs tend to argue for less specificity in describing relevant

harm more general4. Many U.S. courts often include dictum: manner of harm is

irrelevant (precisely how the harm came about)a. Type, sort of harm is more of the issue

5. Risk that it is relevant for negligence determination might not be readily apparent

d. Intervening causesi. Multiple actors

1. Both create harms2. Or perhaps one aggravates previous harm

ii. Not acting in concertiii. Where the type of intervening negligent act is at all foreseeable, even if

the specific intervening act is not, the original tortfeasor will normally be held liable for the plaintiff’s injuries.

iv. Where the intervening negligence is considered unforeseeable, the originally negligent party will usually escape liability.

1. The more reckless and intervening the act is, the more likely it was unforeseeable.

v. The greater moral culpability of the intervening party is probably also a factor that might lead assigning sole causal responsibility to him.

vi. Restatement (Third) §341. When a force of nature or an independent act is also a factual

cause of harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.

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vii. Medical treatment – even if injuries are aggravated by a physician, the original tortfeasor is responsible for the resulting injuries as it is a foreseeable consequence of the injury.

viii. Original tortfeasor is also liable to harm done to a rescuer, with an exception sometimes made for professional rescuers.

ix. Glasglow Realty Co. v. Metcalf (1972) (KY) [shattered glass leads to stampede case]

1. Marty Stout (9-year-old) visiting grandma in apartment complex and wanders off to another unit. Marty pushes on glass in window, it shatters, falls into crowd stampede injury to plaintiff

2. Duty of defendant to inspect its building for dangerous conditions that were likely tor result in injuries to persons using sidewalk below.

3. Marty is a necessary element in sequence of facts; crowd in the intervention

a. But only a contributing cause4. Ruling: It is not required that the particular form of injury be

foreseeable. It is sufficient that the probability of injury of some kind to person within range of effect of negligent act be foreseen.

x. Restatement §439: negligence as continuously operable1. Does it count as harm within risk?

xi. Brauer v. New York Central & Hudson River Railroad (1918) (NJ) [collision leads to looting of belongings]

1. Foreseeablea. RR has created a situation where they may have separate

duty of rescue2. The negligence which caused the collision prevented the driver of

the wagon from protecting his goods.3. Ruling: Ruled for plaintiff. The act of a third person intervening

and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer if such act ought to have been foreseen.

VI. Special Situations and Associated Dutiesa. Owners and occupiers of land

i. Landlord-tenant relationship affirmative duty of care1. It is limited to affirmative duties to use reasonable care to protect

visitors from dangerous conditions on the landii. Possession/control doesn’t have to be rightful to assume liability

iii. Three categories of entrants:1. Invitees

a. Visitors with permission to enter and in whose visit the landowner or occupier has a material interest

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i. i.e. patron shopping at a businessb. Visitors invited as a “member of the public for which the

land is held open to the public”i. i.e. person going to place of worship

c. Strongest affirmative dutyi. Duty to use reasonable care to warn, protect, or

rescue invitees from dangerous conditions about which the landowner knew or should have known

2. Licenseesa. Visitors with permission to enter but in whose visit the

landowner has not material interesti. i.e. a social guest

b. Landowner dutyi. Most typically defined as the duty to use

reasonable care with respect to condition of which the landowner is aware.

ii. More variable among jurisdictions3. Trespassers

a. Entrant without permission b. Landowner duty

i. Nothing more than a duty not to intentionally or “wantonly or willfully” injure trespassers

c. Most jurisdictions treat known trespassers as “implied licensees” to which landowners owe a duty to use reasonable care to warn or protect from the dangers of which they are aware

d. Increasing number of courts and Restatement (Second) treat foreseeable trespassers as implied licensees

iv. Many courts have abandoned the traditional duty approach in favor of a unitary duty of reasonable care.

v. Consent can be explicit or implicit (implied)1. There can be consent through acquiescence (allowing behavior to

continue)vi. In a majority of jurisdiction, when negligence is cause in fact of

injury/conduct on land likely liability1. Especially when it’s gross negligence/bordering on reckless

behaviorvii. Open and obvious dangers

1. Minority hold that the landowner owes no affirmative duty2. Majority hold that the fact that a danger was open and obvious is

relevant to whether the landowner breached any duty owed and to whether the plaintiff was also at fault

viii. Over 40 states have enacted statutes limiting the liability of the owners of land that is used for recreational purposes

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ix. Broader doctrine which treats professional rescuers as having in effect assumed certain risks of their employment and which often prevents their recovering damages for injuries incurred in performing their duties

x. Cochran v. Burger King Corporation (1996) (MO) [dumpster diving case] 1. Burger King treated as landowner2. Categories of entrants

a. Socialb. Businessc. Lines can be blurred

3. Burger King is closeda. Is Cochran a licensee?b. Gratuitous licensee trespasser

4. Ruling: Found for defendant. Defendant not required to anticipate plaintiff’s attempt to climb the wall. No duty to make wall safe for plaintiff to climb or duty to warn plaintiff that the wall was unstable.

xi. Nelson v. Freeland (1998) (NC) [stick on porch case] 1. Significant and influential2. Collapses categories of invitees and licensees (trespassers still

separate)3. Ruling: NC eliminates distinction between licensees and invitees

by requiring a standard of reasonable care toward all lawful visitors.

xii. Bennett v. Stanley (2001) (OH) [swimming pool case] 1. Adopts Restatement’s attractive nuisance doctrine (widely

adopted)a. Restatement (Second)

i. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:

1. The possessor knows or has reason to know that children are likely to trespass on that place

2. The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children

3. Because of their youth the children do not discover the condition or realize the risk involved.

4. The risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it

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5. The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children

b. Exception to “no duty” for trespassers2. Facts:

a. Two entrants: child (not privileged) and mother (privileged because she was attempting to rescue son)

b. Defendants are homeowners/neighbors with unmaintained pool (artificial condition)

3. Court retains tri-fold entrant distinction4. Selling property no longer possessor

a. But did they create the risk?i. Ordinary duty of care

b. Incentivizes mitigation of risk before sale of property/potential buyers to inspect before buying

5. Any potential contributory negligence on the part of the child?a. If the child is determined to have realized the risk no

duty (no liability on defendant)6. Parent-child relationship; rescuer is not a trespasser - some duty

of care owed to mothera. Duty owed to son extended to her

7. Ruling: Attractive nuisance doctrine adopted (with foreseeability). Duty of care extended to adult who attempts to rescue child from attractive nuisance.

xiii. Posecai v. Wal-Mart Stores, Inc. (1998) (LA) [parking lot robbery case] 1. Four approaches to determining foreseeability

a. Specific harm rulei. No duty unless aware of a specific, imminent harm

about to befall a patronii. Too restrictive

b. Prior similar incident testi. Foreseeability is established by evidence of

previous crimes on or near the premisesii. Idea is past criminal conduct will put the landowner

on noticeiii. Leads to arbitrary results

c. Totality of circumstances approachi. Most common testii. Takes additional factors into account such as the

nature, condition, and location of the land as well as any other relevant factors

iii. Tends to place greater duty on business owners to foresee risk of criminal attacks on their property

iv. Too broad of a standard

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d. Balancing testi. Foreseeability and gravity of harm balanced with

the burden on businesses in protecting against that harm

ii. Court adopts this test2. Host did not create a risk of harm

a. Unforeseeable that someone would come into parking lotb. Would it be different if it happened inside the store?

i. Such an incident had never happened inside the store before

ii. Defendant not susceptible to liability the first timeiii. Store saw risk of criminal activity but focused on

cash and shoplifting – not external factors3. Relationship of a store and its patron

a. Social guest and host isn’t a special relationship for duty purposes

4. Ruling: Balancing test for determining when business owners owe a duty to provide security. Not enough foreseeability to impose duty to provide parking lot security in this case.

xiv. “Similar incidents” for foreseeability1. Rule has effect of discouraging landowners from taking adequate

measures to protect premises which they know are dangerous.2. The first victim always loses; subsequent victims are permitted

recovery3. Arbitrary results/distinctions

a. Uncertainty as to how “similar” these things must be4. Erroneous equation of foreseeability of a particular act with

previous occurrence of similar actsb. Immunities

i. Defendant is not subject to suit1. Raised very early in litigation (dismissed)2. Because of a certain consideration of public policy3. Even if they may have committed a tortious act

ii. Applicable to various types of defendantsiii. Worker’s comp. is similar

1. Huge group of potential tortfeasors (employers)2. Insurance covers injuries in course and scope of employment3. Confer a type of immunity on the employer

iv. Immunity is NOT for intentional torts1. Not for intentional act that they know will harm another

v. Like no duty determination, but case is usually dismissed even earlier for immunities

vi. Interspousal immunity

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1. Historically, absolute bar to any legal actions between husband and wife (man + woman marriage one entity)

2. By 2002, 48 states abolished doctrine, either completely or in certain cases

3. The policies underlying the doctrine can still sometimes be seen at work in courts’ handling of suits between spouses

a. i.e. IIEDb. the notion is that all marriages have ups and downs, but

hurt feelings caused by travails are part of married life and generally should not be actionable

c. high threshold for suit between spouses vii. Charitable immunity

1. A charitable corporation was not liable for the torts of its employees, at least when the plaintiff was a charitable patient

2. Immunity has largely faded with development of insurances3. Some states still have some form of charitable immunity to

beneficiaries of charitable organizations given no insurance has been purchased

viii. Sovereign immunity1. Sovereign can do no wrong2. Government employees could be immune, but legislation cuts

backa. USPS is liable just like UPS or Fed Ex would be

ix. Foreign sovereigns1. Diplomatic recognition2. Historically, they had absolute immunity 3. Overtime insight occurred – needed legal action to settle disputes

a. If foreign entity could borrow and not back and couldn’’t be sued, who would lend in the future?

b. Practice of waiver of immunity for contractsc. Courts started using discretion for allowing torts involving

foreign sovereignsd. 1976 – Foreign Sovereign Immunity Act

i. Recognizes immunity, but had many exceptionsx. Landowner immunity for trespassers

1. Preserves prior law2. Duty pretty minimal – just don’t intentionally create harm for

trespassers3. Category of flagrant trespasser

a. No duty of care is owedb. Murder/voluntary manslaughterc. Mayhemd. Robbery

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e. Any attempt to commit crime in category (other than assault)

f. Rape g. Assault with intent to commit robbery or rape

4. Restatement (Third) §52 recognizes a duty to flagrant trespasser to use reason to use reasonable care if the trespasser appears to be “imperiled and helpless or unable to protect themselves”

xi. Common law immunity1. 20th century – category went into tailspin – not many left2. Parent-child perhaps only one left of interest

a. Parent-child immunity (privilege? Limited duty?)b. The possible types of action that a child might have against

its parents are practically inflicted and raise some very serious issues of public policy

3. Spousal immunity tailspin in 1920sa. More people using cars – concerns about collusion against

insurersxii. Parent-child immunity

1. Rationalea. Disruption of tranquility of the familyb. Threat to parental discipline and controlc. Proliferation of fraudulent and collusive suitsd. Depletion of family resources

xiii. Brunner v. Hutchinson Division Lear-Siegler, Inc. (1991) (D.S.D.) [hand amputation case]

1. Partiesa. Jeremiah Brunner child whose hand was amputated;

plaintiff/third-party defendant is his dadb. Corporate defendant/third-party plaintiff is manufacturer

of farm equipment involved in the accident2. SD doesn’t have law on this; District Court is acting as SC of SD –

applying their law3. Certified questions

a. Permits SD SC to accept and answer questions/certify to other courts

b. Without applying it to concrete questionsc. But the court couldn’t certify: SD didn’t have any leg up on

district court in answering this question4. Parental immunity

a. Father is plaintiff, suing fiduciary capacity on behalf of minor son

b. Defendant says that plaintiff was negligently supervising child (counterclaim)

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c. Theoretically, both could be causes (machine and negligence in supervising)

d. There are many, many judgment calls in raising a childi. How early/youngii. Type of hazards

iii. Parents are going to differ in how they make decisions - DISCRETION

5. Ruling: Plaintiff not liable for negligent supervision. Parental immunity – respect the importance of maintaining parental freedom in the exercise of authority and discretion.

c. Emotional Harmi. When a plaintiff has suffered physical injury due to a tort, the plaintiff

may recover damages for the emotional distress (“pain and suffering) attendant to the physical injury.

ii. In most jurisdictions, pure, freestanding emotional harm is recoverable1. That is, emotional harm without any physical contact/harm is a

claim 2. Initially met with resistance between of concern about:

a. Verifiability of plaintiffs’ claimsb. Potential flooding of litigation and crushing liabilityc. Freedom of speech

3. But growing respect for mental health field changes thing4. But “no readily apparent structure”

a. Courts have delineated a number of narrow factual scenarios in which they are willing to impose a duty of reasonable care not to cause pure emotional distress.

iii. There are right (NJ and Restatement) and left (CA) coast positions 1. New Jersey/Right Coast

a. Strength: formal structure/doctrine guidance2. Restatement

a. Directly inflicted emotional harm (not witnessing like Falzone)

b. Plaintiff in danger of bodily harm emotional harmc. Relatively straight forward

3. California/Left coasta. Catsourasb. A lot of focus on duty and foreseeability

iv. Negligent conduct – plaintiff & defendant relationship falls in a special category so that emotional harm is likely with negligence

1. Kind of like Catsourasv. Historically, no recovery for pure emotional harm (no associated physical

injury)1. Law recognized that people who had any physical injury could

recover for pain and suffering

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vi. Greater willingness to take these claims1. Contemporaneous increased respect, comfort, understanding of

medical practices focused on the mindvii. Direct Claims: person who suffered directly

1. Harder to structure, define, specify2. More variation across jurisdictions

a. Some courts focus heavily on dutyb. General negligence determination (CA)

i. Heavy weight on foreseeabilityc. Categories of claimants, directness, proximate caused. Horribleness (descriptive criterion)

i. Causes that succeed tend to have particularly graphic, difficult elements

ii. Not much nuanceviii. Negligent infliction of emotional harm (NIED)

1. Catsouras v. Department of the California Highway Patrol (2010) (CA) [head decapitation case]

a. Daughter was decapitated in a car accident, officers took pictures and transmitted them to friends

b. Pictures became viral, people sent them to her family members with horrible messages

c. Posted on website with deceased named. Precedents

i. Defendants mishandling corpses, plaintiffs (family members of the decedent)

ii. Duty extends beyond contract – all family members who know of service

e. Multifactor (Rowland) analysis:i. Foreseeability of harm to plaintiffii. Degree of certainty that plaintiff suffered injury

iii. Closeness of connection between the defendant’s conduct and the injury suffered

iv. The moral blame attached to the defendant’s conduct

v. Policy of preventing future harmvi. Extend of burden to the defendantvii. Consequences to the community for imposing a

dutyviii. Availability, cost, and prevalence of insurance for

the risk involvedix. When public agencies are involved:

1. Extend of agency’s powers2. Role imposed upon it by law3. Limitations imposed upon it by budge

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f. Ruling: Judgment for plaintiffs. Defendants owed plaintiff duty of care not to place decedent’s death images on the internet.

2. Falzone v. Busch (1965) (NJ) [car almost hit plaintiff case] a. Negligent driving caseb. Plaintiff’s husband’s claim is straightforwardc. Person who is very, very close to imminent peril (plaintiff’s

wife)d. At time, there was a requirement that plaintiff have

physical illness from emotional distress (still the rule in some jurisdictions)

e. Imposes a duty only where the plaintiff suffered a “reasonable fear” of physical injury

f. Ruling: You can get damages from fright if it results in substantial bodily injury or sickness which would be sufficient for damages if the injury/sickness had been a result of direct physical injury.

3. Inability to sleep, nausea, loss of appetite, and dizziness have generally not been held to be sufficient bodily harm or physical injury

4. A nervous breakdown or prolonged presence of such symptoms that seriously interfere with a person’s ability to pursue a normal lifestyle have been considered to be enough of a showing of physical injury or bodily harm as a result of emotional disturbance

5. Most jurisdictions invoke the “eggshell psyche” rule and allow recover for full extent of the damages.

a. Most courts still require that a negligent act be the type of act that would cause emotional distress to the reasonable person.

b. But can compensate a person for more $ based on acute sensitivity.

6. Trends:a. Where courts do not feel capable of controlling the

frequency and scope of a category of emotional harm cases, and where they do not feel confident that evidentiary concerns may be cabined in some way, they will decline to impose a duty

b. Although cases often discuss foreseeability and gravity of potential harm, they are not typically determinative

i. Rather, liability seems to arise where the facts of the cases are usually horrible

7. Airplane examplea. People can recover for fear of losing life when pilot lost

control of airplane and it dropped 34K feet

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b. No recovery for when a plane crashes near plaintiffs.8. Molien v. Kaiser Foundation Hospitals (1980) (CA) [syphilis case]

a. False diagnosis of syphilis marriage falls apartb. Holding: this case can proceed (we don’t know if plaintiff

would succeed at trial)c. Doctor owes duty of care to plaintiffd. Plaintiff not alleging fear that he may have also contractede. Medical malpractice cases – foreseeability does little work

in limiting claimsf. Criticism of Molien

i. Asking too much of foreseeabilityii. Unmanageable/unlimited liability when defendant

is already liable on other claimsg. Wife instructed to tell her husband about diagnosis

i. Wife as doctor’s agent in conveying info to her husband

ii. Not simply foreseeableh. Generalizable take-aways

i. Courts frequently impose a duty not to cause emotional distress in cases in which defendant doctor has negligently made a false-positive misdiagnosis of a serious disease

ii. Real issue of struggle: what to do in a case where the defendant’s negligent act arguably caused emotional harm to the plaintiff indirectly by harming a third party

1. Courts are less likely to impose a NIED duty in such cases

i. Ruling: Duty to refrain from NIED. The complaint here states such a cause of action.

i. Requirement of physical injury no longer.9. Bystander claims

a. Defendant’s negligence caused physical injury to another person and the plaintiff is a witness to injury (or perceives it)

b. Requirement of sudden, SERIOUS bodily injuryc. Category of potential plaintiffs

i. Not just anyone who witnesses a tragic accident and can show emotional harm

ii. Factors to consider:1. Proximity to accident (spatial)2. Consciousness/awareness of accident

a. Sensory & contemporaneous observation (temporal)

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3. Relationship between plaintiff and victima. Restatement (Third) & many states

consider:i. Durationii. Mutual dependence

iii. Common contributions to a life together

iv. Emotional reliancev. Day-to-day relationship

vi. Shared experience10. Portee v. Jaffee (1980) (NJ) [elevator case]

a. Plaintiff present at scene of the accidentb. Key considerations:

i. Close relationshipii. Severity of injury

iii. Time and space proximityc. Ruling: Observing death or serious injury of another

while it occurs is an essential element of a cause of action for NIED.

i. Mother-child relationship also key.d. Standard of watching a video isn’t sufficient – maybe baby

cam/live-stream is different11. Boyles v. Kerr (1993) (TX) [sex tape case]

a. Susceptible to being framed as IIED claimb. Same year/court as Graff v. Beardc. How technology facilitates certain types of tortious

behaviori. Easier now to make copies and transmitii. Much harder to eliminate

d. Should she have argued invasion of privacy?i. Can privacy do more work here?

e. Breach of duty?i. Defendant and his friends risk creation

1. DeMott: doesn’t think this would go well in TX court

ii. What about relationship duty?1. Is it close, deep, established enough to be

categorized as a special relationship for duty purposes?

f. Ruling: No general duty in TX not to negligently inflect emotional distress. NIED damages can only be recovered in connection with a breach of some other duty.

12. McDougall v. Lamm (2012) (NJ) [pet NIED case] a. Plaintiff witnesses death of dog

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b. Defendant negligent for failure to supervise/control her dog

c. Plaintiff does not have cause of actioni. Otherwise, inconsistent moral values (places dog >

person)d. NJ court declines to extend bystander recovery to animals

i. Treated as property, but special status of property ii. i.e. heirloom

e. Why don’t we have a lot of facts about defendant’s dog?i. We have a lot of information about plaintiff’s dogii. Defendant could have wanted to introduce

evidence about dog to show she wasn’t negligent (i.e. maybe it was a very well-behaved dog, couldn’t have foreseen)

iii. Maybe there was no such evidenceiv. Maybe showing defendant’s dog as property/static

thing/object more likely to get framework that dogs aren’t proper subjects for NIED

f. Ruling: P could not recover for emotional damages of watching her dog be killed by D’s dog. Dogs are property, to be treated like sentimental heirlooms, etc.

13. Procedural sequence in the casea. Defendant moved for partial summary judgmentb. Defendant stipulated to liability

ix. Intentional infliction of emotional harm (IIED)1. Restatement (Third) §46

a. Extreme and outrageousi. Highly unsual

b. Conduct has to be intentional (acting with substantial certainty as to harm) or recklessness

c. Harm must be severe emotional harm2. Only a small slice of human behavior is treated as plausible

instances of IIED3. Star v. Rabello (1981) (NV) [mother gets in fight in front of

daughter case]a. To what degree is plaintiff a bystander vs. someone

defendant wants to see the incident/conductb. Focus on defendant’s state of mindc. Ruling: Judgment in favor of mother, no judgment in

favor of daughter. An assault of the kind presented in the appeal is insufficient to warrant recovery by a witness to such assault.

4. Snyder v. Phelps (2011) (SCOTUS) [Westboro Baptist Church and military funeral]

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a. Phelps & co. did not trespass, but they came as close to funeral as they possibly could without trespassing

b. Majority: speech on matters of public concernc. Alito: it’s about contextd. 1st amendment protection is very broade. Ruling: No recovery for plaintiff. First Amendment

protects speech in a public place on a matter of public concern.

VII. Other Actors’ Conducta. Significance of plaintiff’s own fault: contributory and comparative negligence

i. Old common law standard: plaintiff’s own carelessness operates as a complete defense for defendant

1. Contributory negligence2. If plaintiff was found to have been at fault to ANY degree in

causing the accident, then plaintiff’s behavior was a complete defense to a negligence action (Brown v. Kendall)

3. Usually it is also a defense to an action based upon the defendant’s violation of a statutory duty. It will not be a defense to an action based upon statute violation if:

a. The statute imposed absolute liability b. The statute is aimed at protecting a limited class of

persons against their own imprudence (children or intoxicated people)

c. The plaintiff is a workman injured as a result of the violation of a factory safety act

ii. Most jurisdictions now: plaintiff’s own carelessness reduces their recovery, but they can still recover something

1. Comparative negligence a. Aka comparative fault or comparative responsibility

2. (Sometimes) applied to cases other than those involving mere negligence, but also to intentional behavior and cases where fault ostensibly is not the determinative issue

a. !Applying comparative responsibility to intentional torts remains the minority rule!

b. Products liability – most states are now in ambit of comparative responsibility

3. Restatement (Third) of Torts: Apportionment of Liability §8: Factors for Assigning Shares of Responsibility

a. Nature of person’s risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct

b. Strength of the causal connection between risk-creasing conduct and the harm

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iii. Both are treated as affirmative defensives1. Usually not for intentional, willful or wanton misconduct or even

gross negligence 2. UNLESS the plaintiff’s actions were of a similar degree of fault

iv. What if defendant is committing intentional tort or they are reckless and plaintiff was simply careless

v. Butterfield v. Forrester (1809) (England) [pole across road case] 1. Origination credit; King’s Bench (England)

a. Foundational case2. Defendant puts pole across the road (assume he had no

license/legal permission to do so)3. Plaintiff would not have been injured if not for pole4. Plaintiff was riding his horse violently5. It was light enough for him to observe pole at 100 yards distance6. Counterclaim doesn’t come into play unless plaintiff’s negligence

breaches a duty owed to the defendant7. Connections to case in fact & proximate cause8. Don’t forget: RISK CREATION DUTY9. Ruling: One person being in fault will not dispense with

another’s using ordinary care of himself. Establishes contributory negligence.

vi. Smithwick v. Hall & Upson Co. (1890) (CT) [employee stands on wrong side of platform case]

1. This type of case no longer in the tort system worker’s compensation

2. Employee/plaintiff working at ice house on high platform3. Employer/defendant told plaintiff not to stand where he did/not

following instructions 4. Plaintiff’s negligence not cause in fact of injury

a. He put himself in dangerous situation, but not injured by the danger he put himself in

b. He was injured by the negligence of defendant in maintaining the brick wall/warning employers of fragility of wall

5. Court posits – if he hadn’t been born or hadn’t gone to work, he wouldn’t have been injured

a. Just like if he hadn’t moved to the side of the platform, he wouldn’t have been injured

b. How far do you go back?6. Ruling: Contributory negligence has to be a proximate cause not

just a condition of the injury. Plaintiff is entitled to judgment. vii. Five Formulations (all flawed, complete defense probs. most flawed)

1. Any degree of contributory negligence of plaintiff = complete defense for defendant

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a. No matter the severity of plaintiff’s injury or what percent defendant was at fault

b. NCc. What’s wrong with this?

i. Unfair!ii. Hoffman: juries tend to mitigate in favor of plaintiff

1. Tendency to find no fault2. Similar to idea of jury nullification in crim

d. Advantages?i. Don’t have to do arbitrary calculationsii. More cases dismissed

iii. Easier to administeriv. Relatively simple determination

1. Was plaintiff negligent?2. Doesn’t matter how much – that’s harder to

determine2. Equal division

a. Applied in admiralty3. Pure comparative negligence

a. Can recover regardless of whether you were more negligent than the other party

b. If plaintiff is 20% responsible, they collect damages-20%c. Focus – Maserati problem

i. Potential exposure to counterclaim could chill incentives to sue

ii. Damage to Maserati could dominate4. Plaintiff can recover if their negligence was slight and negligence

of defendant was “gross” in comparison5. Plaintiff can recover a proportionate amount if the plaintiff’s

negligence was “less than” (or equal to)* that of the defendanta. Juries tend to find both sides equally at faultb. Juries not always notified of the 50% rule

i. DeMott thinks they should be make the jury think about whether the plaintiff’s negligence should reach over 50%

viii. Hoffman v. Jones (1973) (FL) [pure comparative negligence case] 1. Florida eliminates contributory negligence 2. Jury to apportion damages3. Adopts “pure” comparative negligence4. Damages that defendant pays should not depend on what he

suffered, but upon what damages he caused5. Ruling: eliminates contributory negligence, adopts “pure”

comparative negligence.ix. Bradley v. Appalachian Power Co. (1979) (WV) [comparative negligence]

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1. West Virginia eliminates contributory negligence 2. Comparative negligence: so long as his negligence or fault does

not equal or exceed the combined negligence or fault of the other parties involved in the accident

3. Ruling: Eliminates contributory negligence, adopts comparative negligence (can recover as long as negligence does not equal or exceed combine negligence or fault of other parties).

a. After 50%, contributoryx. “Guest statutes”

1. Some states restrict the right of a person who has been gratuitously furnished automobile transportation to bring an action against the owner or driver for injuries caused by negligent operation of the vehicle.

b. Last clear chance to avoid injuryi. Negligently caused injuries often result from a sequence of eventsii. Courts tried to allocate blame for the injury to the last party that had a

chance to avoid the accident under the last clear chance doctrineiii. Worked to soften impact of plaintiff’s contributory negligence when the

defendant had perceived the perilous position of the plaintiff and could have avoided the accident by exercise of reasonable care.

iv. Effective at putting the burden on the party who was the best accident avoider

v. Predominate view: last clear chance doctrine does not survive the introduction of comparative fault

1. Restatement (Third) of Torts: Apportionment of Liability §2, comment b:

vi. In practice, evidence and arguments regarding the sequential ability of the parties to avoid the accident are still quite relevant and admissible but only as they affect the allocation of reasonability between two parties

c. Assumption of the risk of injuryi. Doctrine NOT uniform across jurisdictionsii. Aka inherent risk doctrine

iii. Some states sweep assumption of risk into comparative negligence calculation

1. Primary effect: jury will end up weighing factors instead judgeiv. If both parties suffer injuryv. Restatement (Third) Position

1. Express assumption of risk consequence of contract2. Scope/limitations separate question3. Implied assumption of risk

a. Does not/should not survive adoption of comparative negligence

b. Considerable debate & policy tradeoffvi. Doctrine is intuitive

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1. Idea of choice; voluntary choices made by conscious adults2. Choose to engage in an activity that has risks

vii. Express1. Explicit; enforceable agreements2. Usually upheld with a valid contract unless the contract waived

liability for some conduct worse than negligence viii. Implied

1. No conscious agreement between parties2. Not formally drafted, perhaps not even an oral agreement

ix. LaFrenz v. Lake County Fair Board (1977) (IN) [demolition derby case] 1. Plaintiff’s decedent executed an instrument/release before

engaging in activity (demolition derby)2. Car jumped a barrier surrounding the pit, struck decedent

death3. Scope of release

a. Courts tend to read these documents strictly i. Spatial scope “upon restricted area”ii. Defined terms help give spatial scope

b. Waiver/release of liability AND indemnityc. Injury to the person or property or resulting in death

i. Includes negligence by releaseeii. Costs to defendant stemming from presence in pit

& successful litigationiii. Contractual fee-shifting

d. Contract wouldn’t cover international or reckless behavior4. Procedural status of case

a. Appeal to Indiana intermediate courtb. Defendant had been granted summary judgmentc. Genuine dispute of fact, whether decedent knowingly

entered release5. Witness who signed form said that he was told it was an insurance

form6. Public policy limits on agreements like this7. Assumption of risk is ground in idea of choice8. Why warning signs?

a. Give warning fewer occurrencesb. Deterring people from suing

9. No unequal bargaining power or compulsion10. Ruling: Ruling for defendants. Release was valid and exculpated

defendants for any negligence.x. Courts will generally not honor a release when conduct more

blameworthy than negligence is involved, no matter how clear the release

xi. Herod v. Grant (1972) (MS) [truck hunting case]

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1. Mississippi was early state to adopt comparative negligence2. Riding in back of pickup truck shooting at deer3. Circuit court awards plaintiff damages reversed by Mississippi

SC4. 3 Elements under Mississippi law:

a. Knowledge of injured party of safety riskb. Appreciation of danger of conditionc. Deliberate and voluntary choice

5. What’s the risk?a. Injury resulting from riding in back of pick-up truckb. Risk of following off back of truck, especially because he’s

perched6. Doesn’t reduce plaintiff’s recovery it bars it

a. Functionally like contributory negligence as a complete defense

b. Like determining defendant owed plaintiff no duty 7. A lot depends on source of risk – if plaintiff can see/understand8. Ruling: Plaintiff assumed the risk of the endeavor for which no

liability extends to the defendant.a. Implied assumption of risk established by plaintiff’s

actions.xii. What is ostensibly a subjective determination – awareness of the risk –

comes to be made by reference to objective criteria (what a rational person would clearly have understood about the situation).

1. The nexus is what a rational person would have understood is probative of what this particular plaintiff understood.

xiii. Jones v. Three Rivers Management Corp (1978) (PA) [baseball stadium case]

1. Plaintiff injured at stadium during batting practice; plaintiff is legally where she’s supposed to be (invitee not trespasser) so there’s duty

a. She paid to get in2. Defendants are stadium and franchise corp.

a. Stadium management co. in possession/control of stadium owe duty of care to lawful entrants

b. Defendant who owns franchisei. Their team is playing/practicing in the facilityii. Normal negligence standard (risk creation)

iii. Should they be treated as land occupier (DeMott says we don’t need to go there)

3. Plaintiff was in walkway – not the injury commonly anticipated in baseball spectatorship

a. Big focus in opinion on where injury occurs b. Walkway NOT stans

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4. Opening day in brand new stadiuma. People like plaintiff are probably avid fans who had gone

to games at old stadium where the risk didn’t exisT5. Holding for plaintiff reinstated 6. Negligence not strict liability7. Rulings: Defendants owed a duty to plaintiff standing/walking in

a walkway.xiv. Universal rule: risk that batted ball will hit fan in stadium no

reasonable risk of harm/liability1. places of amusement that charge admission owe duty of care to

patrons2. if risk (inherent) is necessary to the activity no liability (?)

a. Ex. Patron of movie theater injured due to lighting conditions, but it has to be dark to play movies

3. Legislation in NJ tackled baseball risksa. Hit by bat instead of ball?

i. Not foreseeablexv. Auckenthalen v. Grundmeyer (1994) (NV) [dog training/horse kick case]

1. Organized activity of field training of dogs2. Horse is nervous/antsy/volatile3. Who knew, who should have known is not super clear in the

opinion4. Nevada law, but focus on CA law in opinion

a. Why? There’s a NV precedenti. District court: CA standard was premise for

defendantii. Counsel for defendants probably recognized that

relevant NV precedent was not going to be helpful to them

iii. NV adopting contributory/comparative negligence was deemed to eliminate implied assumption of risk

5. Was plaintiff partially liable (contributorily or comparatively negligence)?

a. Could she have realized horse would bolt?b. How in control was she?

6. NV opinion resounding argument in favor of conventional negligence

a. Principles of comparative fault7. Subsequent development in CA

a. Primary implied assumption of risk8. Ruling: Cases to be examined utilizing simple negligence rubric.

Implied assumption of risk had been subsumed by NV’s comparative negligence statute.

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xvi. Some jurisdictions have chosen to sweep primary assumption of the risk into the comparative negligence calculation as well

xvii. “One who chooses to take risks will not then be heard later to complain that he was inured by the risks he chose to take and will not be permitted to seek money damages from those who might otherwise been liable.

d. Plaintiff’s behavior before/after an accidenti. Plaintiffs behavior may affect the damages suffered. ii. The plaintiff may be held to have the responsibility to take reasonable

action to avoid the behavior that exacerbates the injuries that the defendant’s negligence would have otherwise caused.

iii. Before comparative negligence rose in prominence, this wasn’t accepted really the idea that the plaintiff should have no duty to anticipate or reduce the consequences of defendant’s negligence.

iv. Before1. Think: seatbelt or helmet2. With the advent of comparative responsibility, courts have

increasingly come to the conclusion that the evidence of plaintiff’s behavior ought to be admissible and the fact-finder should be allowed to assign the appropriate degree of responsibility of each party.

a. Position taken by Restatement (Third) of Torts: Apportionment of Liability §3, comment b

3. Violation of seatbelt statutes negligence per se?a. No court has held so yetb. Courts split on issues of damage reduction

v. After1. If plaintiff’s action is egregious enough, the court may hold that

the action is a superseding, proximate cause of the accident and relieve the defendant of all responsibility

2. Think: D causes P’s leg to break, and P goes skiing too soon and rebreaks leg.

3. Restatement provides that the evidence is admissible to allow the jury to reduce defendant’s responsibility for damages associated with reinjury.

4. Leaves issues to jurye. Multiple defendants; vicarious liability

i. Cases in which plaintiff chooses to sue two or more defendants – two very different situations:

1. Vicarious Liability: Defendant is held legally responsible for the tortious conduct of another who is the one actually at fault in causing the injury.

a. Judgment against culpable party is useless (judgment proof)

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b. Liable for the tort of another because of a status relationship

2. Joint tortfeasors: more than one party has allegedly caused plaintiff an indivisible injury.

ii. Also related:1. Indemnity: right of one held vicariously liable for the acts of the

primary tortfeasor to be “indemnified” by the primary tortfeasor for all of the damages paid to the plaintiff

2. Contribution: right of one defendant, who has to pay a judgment to the plaintiff, to recover some portion of those damages from the other joint tortfeasor(s)

iii. Respondeat superior1. Most common type of vicarious liability2. Well-settled principle

a. Although courts split on employee’s intentional acts3. Organization (employer) may be in a better position for reducing

risk/paying up4. It is necessary to tie the negligence to the work5. One of the biggest issues is over defining the scope of

employment6. Restatement (Second) of Agency §228

a. Type of work employed to performb. Time and space limitsc. (at least in part) by purpose to serve the master

7. Wong-Leong v. Hawaiian Independent Refinery, Inc. (1994) (HI) [promotion party/drunk driving case]

a. Similar to the other (many) cases that surround alcohol and the workplace

b. Party being held after work hours, on premises, but outside next to parking lot

c. Employer sanctionedd. Hawaii formulation is perhaps the broadest in the U.S.e. Have to ask: did the employer benefit from the conduct?

i. Party/drinking (not the bad driving)ii. Managers told party people to leave

1. Established control over employeesiii. The cooler

1. 18 cubic foot cooler constructed by employer’s maintenance department

2. Someone probably authorized thisf. Any direct liability?

i. Employer was somehow negligentg. Ruling: Trier of fact could reasonably find he was acting

within the scope of employment when he drank alcohol

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vicariously liable. Respondeat superior liability may be imposed notwithstanding that the foreseeable effects of actor’s negligent conduct occur outside the scope of employment. (conduct = within scope of employment; effects = not within scope of employment).

8. Even in cases where police, counselors, therapists, clergy, youth leaders and others in a position of trust take advantage of innocent or vulnerable prisoners, patients, parishioners, or children to engage in sexual activity, most courts refuse to allow recovery under respondeat superior

9. Frolic & detoura. Some jobs require moving about/travelb. Frolic

i. Large deviation from route instructed by employerii. I.e. decides to go off route to visit friends, miles out

of the wayc. Detour

i. Slight deviation from route instructed by employerii. I.e. stops by McDonalds right along the route

iv. Independent contractor doctrine1. General rule, hirers are not responsible for the torts of

independent contractors2. Employee or contractor?

a. Did employer exercise or have right to exercise control over the manner and means by which the person employed conducted the work

3. Employer justifiably relies on the skill of the contractor and does not enter into any active control of the execution of the enterprise

4. Factors in considering:a. Length of employment relationshipb. Method of paymentc. Who provides tools/place of workd. Whether employer withholds taxes and social security

v. Non-delegable duties1. Exception to the general rule that hirers are not responsible for

the torts of independent contractors2. Dangerous activity like blasting

vi. Apparent authority/agency1. Less well-settled type of vicarious liability2. Another exception to general rule that hirers are not responsible

for the torts of independent contractors3. Apparent authority that principal itself be responsible for

appearance of the authority

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4. Employer/agent has to be aware of representation to be liable5. Requirements:

a. Principal holds out the actor as its agent to the point where the plaintiff has reasonable belief that the actor sis an agent

b. Acceptance of the agent’s service by one who reasonably believes It is render on behalf of the principal

6. Jones v. Health South Treasure Valley Hospital (2009) (ID) [pressure cuff leads to embolism/death case]

a. Assume that particular medical services provided, were provided negligently

b. Plaintiff is decedent’s estate (husband)c. Hospital has people working on surgery/care of decedent

who are not employees of the hospital (contracted employment)

i. Decedent (probably) reasonably believed that contract employees were hospital employees

ii. Can’t determine what she actually believediii. Reasonable person in her position would believe

that those could be hospital employeesd. Employees responsible and their employer are definitely

liable, but plaintiff is maybe suing hospital too because other defendants don’t have resources to pay damages

e. Recommending doctori. Gives her a choice between 2 hospitals

1. Recommends TVH because of lower patient-staff ration and private chef

ii. He does not appear to be an agent of hospital – he gives plaintiff the choice of hospital

f. Ruling: Doctrine of apparent agency extends to tort claims in Idaho.

vii. Joint enterprise1. Commercial settings when two or more individuals/firms contract

to form some kind of joint venturea. i.e. partnership

2. General partners or joint venturers would be legally responsible for any torts committed by the other partners or joint ventures in the course of furthering a common activity.

3. Typical requirements:a. Agreement among membersb. Common purpose to be carried outc. Community of pecuniary interestd. Equal right to voice in the direction of the enterprise,

which gives an equal right of control

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4. Requires proof that people involved in the activity each had reserved a voice in the management of the activity

5. Typically only invoked when one member of the enterprise is in legal action with an outsider (not inter-enterprise)

viii. Automobile owners1. Financial responsibility on the car owner for torts committed by

those who drive the car with the owner’s consent2. Provide a party able, because of insurance, to pay damages

a. Drivers other than owner are frequently judgment proof3. Outdated doctrine was that if the owner of the care is present,

they are deemed to have sufficient right of control over the driver to make the driver an agent of the owner

4. Family purpose doctrinea. Allowing member of household to drive the car

provided vehicle for a family purpose5. Some states have statutes

VIII. Strict Liabilitya. Aka absolute liabilityb. Liability without proof of faultc. Causal link is still necessary!d. Pretty settled (in comparison to product liability)

i. As opposed to application of negligencee. 4 Classic Categories

i. Vicarious liability1. i.e. employer liability for torts committed by employee within the

scope of employment2. i.e. apparent agency/authority – person reasonably appears to be

employeea. creating or reinforces idea that people are employees

ii. Animalsiii. Uses of land

1. One person’s subsequent usage of land damages2. Prior usage of land by another 3. Later use has damage associated with prior uses

iv. Hazardous/extremely dangerous activitiesf. What’s the point of SL?

i. Raises incentives for actors to use a great deal of care, invest in the burden of precaution beyond Carroll Towing

1. Makes activities intrinsically more expensive2. Accepting costs

ii. Desist from activities, reducing level of activity, or relocating the activity1. Internalize the cost of the activity

iii. When negligence doctrine doesn’t sufficeg. General principles that concern proximate cause/scope of liability still apply to SL

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i. Is this the kind of risk that would suffice for a negligence claim?ii. Cause-in-fact, but maybe not a characteristic harm of animal

h. Five Possibilities of thinking about casesi. Victim avoids certain situations

1. You have to know what it is that you’re avoiding2. Easier for some, harder for others3. Klein – not going to firework displays4. Type of situation to avoid all together5. Interactive relationship culminates in serious physical injury6. As opposed to solitary activity

a. Siegler v. Kuhlman (cited in Klein)b. Hard for victims to avoid (without grater jeopardy)c. Hard to identify

ii. Constructing or leaving a physical barrier between one’s property & source of impending danger

iii. Relocate one’s own activity1. Foster – mink farm could be relocated?

iv. Enter into contract1. Indiana Harbor

v. Insurancei. Animals

i. Are there any limits?1. Yes – it’s not endless liability2. Dog cases account for a lot of cases

ii. Animal trespass1. Longstanding SL category 2. Trespass by owner via animal

iii. Potential scope of SL1. Consequence of a lot of cases more detailed rules

iv. Restatement (Third) §21 (Domestic Animals)1. SL for livestock and other animals2. Exception for dogs and cats

a. Why?i. Damage wouldn’t be that badeii. Other ways to recover (negligence)

iii. Many, many people have these animals as opposed to other animals

iv. Utility? Well, we get utility from other animals too3. One-bite rule

a. Requirement that owner of a domestic animal must have knowledge of its abnormally dangerous propensities before strict liability will attach

v. Restatement (Third) §22 (Wild Animals)

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1. Owner or possessor of wild animal is subject to SL for physical harm caused by animal

2. Is it the obvious risk posed by a wild animala. Scope of liability limitb. Characteristic risk limitc. i.e. tripping over a tiger sleeping in a garden isn’t a

characteristic riskvi. possessing v. owning

1. sufficient responsibility for the animal under control to some degree, responsibility for the animal being present

vii. Exception1. We typically think of these rules who have contact with animal

through happenstance2. What about people who intentionally engage & have benefits to

gain from proximity? (i.e. dog groomer)viii. Duren v. Kunkel (1991) (MO) [bull case]

1. Plaintiff is injured by encounter with pull, wants $100K for personal injuries

a. Theory: defendant knew or should have known of dangerous propensities of bull

2. Court: No SL because bull was not abnormally dangerous in comparison to others in his “class”

3. Procedural status: verdict upholding standard, but case is still reversed

4. Defendant got bull at discount cause it was aggressive, quarantined bull for a few days, but still not ruled by court to be abnormally dangerous

5. Plaintiff has right to a new trial on theory of negligence6. Ruling: No strict liability, but defendant had a duty to plaintiff as

an invitee or employee; case to be tried as negligence. a. Defendant did not know that bull was “abnormally

dangerous”j. Dangerous (human) activities

i. Restatement (Second) of Torts (1977) § 519-201. One who carries on an abnormally dangerous activity is subject to

liability for the harm caused to others resulting from the activity even if he has used the upmost care. Strict liability is limited to the kind of harm, the possibility of which, makes the activity abnormally dangerous.

a. Whether something is considered an abnormally dangerous activity is to be decided based on the following factors:

2. Existence of a high degree of risk. 3. Likelihood that the harm, will be great.

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4. Inability to eliminate the risk by the exercise of reasonable care. 5. Extent the activity is not a matter of common usage. 6. Inappropriateness of the activity to the place where it is carried

on.7. Extent to which its value to the community is outweighed by its

dangerous attributes. ii. Restatement (Third) § 20: Abnormally Dangerous Activities

1. A defendant who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.

2. The activity is abnormally dangerous if:a. Creates a foreseeable and highly significant risk of physical

harm even when reasonable care is exercised by all actors; and

b. The activity is not a matter of common usage. iii. Rylands v. Fletcher (1866) (UK) [coal mine/pond case]

1. Plaintiff has colliery (coal mine) – rights include sub-surface mining; defendant has a mill (powered by water)

2. Coal mining in this region would have been early use of land, mine runs out industry comes (mill)

3. A pond is constructed by firm of employees and water from the pond floods mine

4. Contract between plaintiff and engineers – more of a privity barrier

a. Plaintiff injured by engineers5. Law has moved on

a. Nowadays, if defendant engages with company like engineers

i. Defendant liable for engineer’s negligenceb. Non-delegable duties

i. Hire someone to do something you couldn’tii. i.e. hiring someone to blast for you

6. Ruling #1: Judgment for plaintiff. The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

7. Ruling #2: Affirms lower court.iv. Rule in Rylands only applies when

1. The defendant brought onto his land something that is likely to cause mischief or danger if it escapes

2. The defendant’s use of his land is shown to be extraordinary and unusual – clearly reaffirming the approach of Lord Cairins

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v. Eventually, most American jurisdictions embraces the doctrine of strict liability that originated here

vi. The important thing about the activity is not that it is extremely dangerous in itself, but that it is abnormally so in relation to its surroundings

1. Isolated no SL2. Populated area SL

vii. Whether something is abnormally dangerous is a question for the court not the jury

1. Classification of an activity as “abnormally dangerous” could destroy an entire industry

2. Jurisdictions have moved away from classifying things as “ultra hazardous”

k. Pyrotechnics; blastingi. Losee v. Buchanan (1873) (NY) [boiler case]

1. Court rejects Rylands/strict liability in general2. Defendant’s boiler exploded and landed on plaintiff’s property

(destroying some structures)3. Theory on nondelegable duty

a. Premis of vicarious liabilityb. If you hire someone to do something dangerous

4. In an explosion situation, instrumentality is self-destroyinga. Evidence is often lost

5. Plaintiff also sued the boiler manufacturera. Claim loses because plaintiff had no contract with

manufacturerb. Like plaintiff in Rylands – no contract with pond engineersc. Example of product liability in contemporary torts

6. Ruling: No one can be made liable for injuries to the person or property of another without some fault or negligence on his party.

ii. Klein v. Pyrodyne (1991) (WA) [fireworks case] 1. Controversial2. Abnormally dangerous test (6 factors)

a. Restatement (Second) §520b. How many factors have to be present?

3. WA statute: only licensed people can put on displays; those who put on displays must get surety bond or insurance

4. There’s liability; reflect legislative judgment that firework displays are a dangerous activity

5. If the statute exists, why is there a common law holding?a. Court has opinion about SL beyond scope of current caseb. Washington has unusual # of precedents of SL from their

SC

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i. Sieglerii. Foster

c. Tempt court to write an opinion that goes beyond deciding the case

6. Ruling: Pyrotechnicians are strictly liable for damages caused by fireworks displays; fireworks displays are abnormally dangerous.

iii. Indiana Harbor Belt RR Co. v. American Cyanamid Co. (1990) (7 th Circuit) [toxic liquid leaks from railroad tank case]

1. Movement toward a less expansive understanding of the scope of strict liability for abnormally dangerous activities

2. Spill of acrylonitrile3. EPA required expensive cleanup in aftermath4. Plaintiff suing defendant for recovery of expenses; defendant is

manufacturer and shipper of toxic (leaked) substance; plaintiff is owner of land where substance spilled

5. RIL?a. on remand, plaintiff won on RIL

6. Why shouldn’t this be SL?a. It’s a toxic substance & they’re shipping a large quantity of

itb. Negligent standard would be enough to disincentivize the

behavior7. Activity can be one of uncommon usage – even if there’s a wide

benefita. i.e. transporting gas

i. everyone uses gasii. but few people transport it

8. Sequential timing of relevant activities mattera. It matters who was where whenb. Did houses and switching line develop at the same time?

Or did one exist before the other9. Leak wasn’t caused by dangerous property of chemical, it was

caused by carelessness10. Opinion is pretty pointed critique of Restatement (Second)11. Question of law for court: whether activity is an abnormally

dangerous activity12. Judge Posner focuses on element c (inability to eliminate the risk)13. Restatement (Third) accepts/reflect Judge Posner’s critique14. Ruling: No strict liability.

iv. Reprint: Restatement (Second) §5201. “In determining whether an activity is abnormally dangerous, the

following factors are to be considered:a. existence of a high degree of risk of some harm to the

person, land, or chattels of others;

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b. likelihood that the harm that results from it will be great; c. inability to eliminate the risk by the exercise of reasonable

care;d. extent to which the activity is not a matter of common

usage; e. inappropriateness of the activity to the place where it is

carried on; andf. extent to which its value to the community is outweighed

by its dangerous attributes.”2. Criticism is that the six factors offer uncertain guidance because,

as the principal cases indicate, courts provide inconsistent analysis of the proper role of each of the factors.

3. D, e, and f don’t have nearly the impact of c, but of the three factors, d is relied upon most frequently.

4. Common usage and appropriateness to the location requirements may be understood as ways to assess whether risks are reciprocal.

v. What activities are abnormally dangerous: Restatement (Third) §201. Six factor test is no longer2. SL if activity is abnormally dangerous3. Activity is abnormally dangerous if:

a. Creates foreseeable and highly significant harmi. Even with care by all actors

b. Not of common usage4. Does not take a position on ground damage by aircraft

vi. Most courts agree that social value is largely irrelevant to the decision whether or not to apply strict liability.

vii. Modern cases are mixed as to whether SL applies to reservoirs and other bodies of water. However, SL is frequently imposed if the escape is something more noisome than water.

viii. SL for applications of poisons comes in several guises1. Some courts: crop-dusting = abnormally dangerous activity.2. Fumigations

ix. Landfills and toxic water1. Courts are mixed2. Focus on statutory considerations

l. Abnormally sensitive victimsi. Foster v. Preston Mill Co. (1954) (WA) [mink farm case]

1. Blasting of defendant is causing plaintiff’s (mink farmer) mink to eat their young (startles infanticidal mothers)

a. Mink of “eggshell psyche”2. Activity (blasting) is in the pocket of typical SL activities, but

plaintiff doesn’t recovera. Limit SL to consequences that make it dangerous

i. Harm within risk

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b. Blasting isn’t dangerous because of concussive noise, but because of physical projectiles, etc.

c. Loss of mink kittens is a result of blasting vibrations/concussions

3. Is there a negligence claim?a. Duty?

i. Creation of risk – but not enough?ii. Foreseeability of harm could be part of formulation

1. It’s foreseeable here, plaintiff told defendant about the issue they were experiencing

iii. Magnitude of injury is high; foreseeability is about 100%

iv. But the burden on defendant is also very high…b. Assume duty, then breach?

i. Defendant was using reasonable careii. Burden of precaution is very, very high –

negligence claim would probably failc. Court thinks burden should be on plaintiff

i. Can’t move the blasting, but theoretically, plaintiffs could move the mink

1. Who would pay for moving the mink?2. Cost shifts to plaintiff?3. Could they time breeding to avoid blasting

season4. Eggshell mink might not like to move one

vulnerability period (6 weeks) begins5. Reasonable care might not be enough here

a. Would need much more to protect mink

d. So why does opinion come out the way it does?i. Scope of liabilityii. Harm within risk

iii. Even SL has its limits4. Ruling: Harm suffered here is not the kind that makes blasting

ultra hazardous. Strict liability is inapplicable under these facts.ii. Restatement (Third) §29, comment i

m. Suits against the US on a strict liability claim have not been permitted.n. Contributory negligence

i. Restatement (Second): defense allowed for assumption of risk, but not P’’s contributory negligence

ii. Restatement (Third): P’s contributory negligence should reduce recoveryIX. Products Liability

a. Distinctive body of tort doctrine

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i. Before, PL was understood to be an example of SLii. There are still elements of SL in PL

1. Manufacturing defectsa. Design specifications that if complied with would make

product safeb. But this one doesn’t c. I.e. car brake system doesn’t conform to designd. i.e. soda pop with dead mouse

2. Viewed as SL instancesiii. Other claims

1. Design of the product (not correct design, bad product) was not safe

a. Design defectb. Design is unsafe

iv. Focus here is on the product, not the activities (leading up to the product)

1. Breach of warranty claims, implied narrative of merchantability or fitness

2. Misrepresentation b. The privity barrier; warranty claims

i. Thomas v. Winchester (1852) (NY) [mislabeled extract case] 1. Plaintiff prescribed dandelion extract, but bought (mislabeled)

belladonna extract2. Why is it not a contract case?

a. Defendant not original manufacturer, but puts the label on product

b. Reasonable foreseeable that person who ultimately buys/consumer medicine, not the distributor that defendant contracts with

3. Don’t want to punish the middleman for the person ultimately responsible

4. Ruling: Defendant was liable for negligence that put human life in danger. Label conveyed that distributor knew the contents of the extract.

a. Warranty is extended beyond those in privity of contract to ultimate consumers when the product is imminently dangerous to life.

ii. 4 things to keep in mind1. Categories of persons injured by defect that would have a claim

a. Claims by purchasers are the easiest b. Consumer (Thomas) – a little harderc. User (MacPherson) (Greenman) – a little harderd. Injured person that are bystanders

i. Hardest under contract law need tort law

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2. Categories of available defendantsa. Sellers b. Manufacturers

i. Making a product to enter market c. Distributorsd. Maker of defective component of the producte. People who make things for non-mainstream commerce

(i.e. bake sale, pot luck)i. DeMott says no liabilityii. Could be negligent but outside of SL regime

3. Different legal theories availablea. Negligenceb. Strict liabilityc. Statements/claims made about a productd. *all can support liability in certain circumstance

iii. Early PL very dominated by East coast jurisdiction (NY & NJ) then shifts later on to west coast (CA)

iv. MacPherson v. Buick Motor Co. (1916) (NY) [wooden wheel case] 1. Company sells wheel to Buick Buick puts it in car sells to

distributor sold to plaintiffa. Privity would cut many plaintiffs off because of

intermediate steps (but it’s the common channel of car consumer sales)

2. Dissent: Bartletta. Support privity

3. Cardozo: uses general/common negligence formulation4. “Principle in Thomas is not limited to poisons, explosives, and

things of like nature, to things which in their normal operation are implements of destruction”

a. Probable > possible5. Here, the car was almost brand new6. Now, significant defects can become latent and show themselves

after time has passed a. Probably not so with a wooden wheel

7. Bystanders? Probably general negligence analysis 8. Contemporary applications of contract law

a. Breach of warranty9. Marks the beginning of the end of privity rule in PL cases.

a. Any lingering notion that liability person not in privity of contract for negligently manufactured products depends on some finding that the product was in some way potentially dangerous was soon abandoned in most jurisdictions.

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10. Ruling: Defendant automobile manufacturer had duty to inspect the car/wheel. Knowledge of danger must be probably (not merely possible). Recovery for plaintiff.

v. All that is necessary is that the product presents a foreseeable risk of physical injury to persons or property, if it should be negligently manufactured.

vi. Henningsen v. Bloomfield Motors, Inc. (1960) 1. 10 days after new car is purchased (husband bought for wife)

accident2. Mechanical failure/defect in steering mechanism3. Defendants are retail dealer and manufacturer4. Two theories of liability

a. Breach of warranty/merchantability/fitnessi. Unfit for use as a car

b. Negligence5. Could steering defect be easily detectable through a screening as

simple as a test drivea. If it couldn’t have been reasonably revealed by inspect

i. Dealer claim for contribution against manufacturer 6. Torts/strict product liability doctrine

a. Not in MA, DE, NCb. Underlying tort theory is negligence c. Those injured by product defect still have recourse)

7. Ruling: warranty runts to a foreseeable third party. Wife of purchaser was covered.

vii. Misrepresentation and Breach of Warranty1. Potential contract remedies available for plaintiffs2. Misrepresentation

a. Restatement (Second) of Torts §402B (p. 835)i. Plaintiff can recover even in the absence of

manufacturer negligence ii. Two caveats:

1. Whether a company would be liable for misrepresentation to an individual instead of the public at large

2. Whether persons who were injured but were not consumers would have a cause of action

b. The fact that a manufacturer could not know of a danger will often relieve the manufacturer of liability under products liability

c. Restatement (Third) §9: One engaged in distributing products who, in connection with a sale, makes a fraudulent, negligent, or innocent misrepresentation of

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material fact concerning the product, is subject to liability for ham to persons or property caused by the misrepresentation

d. Case law has not resolved whether an innocent misrepresentation may, in the absence of a product defect, be a basis of liability for non-consumer who suffers a harm as a result of reliance by an intermediary

3. Breach of warrantya. Constrained by privity

i. Only purchaser may bring an actionii. Some that’s have not adopted torts approach

b. If injury occurs as a result of the breachc. Lawyers often plead alternatively for breach of warranty

and in negligenced. Express warranty

i. Created by affirmation of fact or promise, description of product, or model provided by seller to buyer

e. Implied warrantyi. Warranty of fitnessii. Warranty of merchantability

1. Warranty that goods shall be merchantablea. Description as in tradeb. Fair and average qualityc. Fit for ordinary purposed. Adequately packaged and labelede. Conform to affirmations made on

labelsc. Strict liability in torts

i. Modern product liability focuses on the alleged defect in the product rather than the alleged negligence of its manufacturer.

ii. Escola v. Coca Cola Bottling Company (1944) 1. Bottle exploded in her hand injury2. Plaintiff is working when accident happens

a. Not a purchaserb. Not a consumerc. Work’s comp

3. Jury verdict is based on negligence (res ipsa)a. Soda bottles aren’t supposed to explode

4. Justice Traynor concurring opinion supports SLa. Manufacturer is best able to guard against risksb. Risk strikes randomlyc. Type of product invites reliance by consumer

i. Use of product without inspecting

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5. Traynor: “public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards of life and health inherent in defective products that reach the market. “

a. Even if manufacturer isn’t negligence in manufacturer, it is responsible for the product reaching the market.

iii. Greenman v. Yuba Power Products (1963) (CA) [power tool case] 1. Shopsmith tool given to plaintiff as a gift from his wife for his

woodworking hobby2. Wood flew out of the tool, hit him in the head injury3. Plaintiff bought accessory for the Shopsmith (lathe); accident

happens during his first time using the lathe4. Screws holding parts together were not strong enough

a. Not manufacturer defect (departure from design)b. Probably design defect

5. Ruling: Plaintiff’s claim allowed; had to prove that he was injured using the tool in the way it was intended to be used as a result of a design defect.

iv. Restatement (Second) has been more influential than Restatement (Third)

1. Some states have adopted Third2. Third shifts away from SL 3. Second moves towards strict product liability

v. Restatement (Second) of Torts §402A: Special Liability of Seller of Product for Physical Harm to User or Consumer

1. One who sells a defective product unreasonably dangerous to user or consumer is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property if:

a. Seller is engaged to business of selling such productb. It is expected to and reaches consumers without

substantial change. c. Applies although:

i. Seller has exercised all possible care. ii. User not in privity.

2. Caveats: no opinion ona. Harm to persons other that consumersb. If product is expected to change substantially

3. If seller of component parts. vi. Restatement (Third) of Torts: Product Liability

1. §1: One engaged in business of selling or distributing products who sells/distributes a defective product is subject to liability for harm to persons or property caused by the defect.

2. §2: A products is defective when, at the time of sale or distribution, it contains a manufacturing defect:

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a. Departs from intended design even when all possible care was exercised.

b. Foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.

c. Inadequate instructions or warnings when the foreseeable risks could have been reduced.

3. Under the new restatement approach, strict liability in the sense of liability without fault only exists for manufacturing defects, not design and warning defects which turn on reasonableness.

vii. Three categories of questions1. Distinction between defects that are obvious and those that re

latenta. Sometimes defendants will argue that their design is

standard/state of the arti. Not usually a successful defense on its own

b. Availability/possibility of extra safety features is highly relevant

c. Doctrines of contributory negligence are relevant i. Can user be care as to not make product dangerous

d. Has to be in condition it was sold ine. Contemporary product law

i. Sellers or distributors who sell/distribute a defective product are subject to liability for harm to person or property caused by the defect

ii. Retailer has own ways to enhance safety1. Demo model2. Ones to buy have to be retrieved by

employees2. Questions about food and when a food product is defective in

terms of product lawa. Restatement (Third) of Torts: Products Liability

i. If a reasonable consumer would not expect the food product to contain that ingredient

1. Chicken bones (Maybe expect)2. Bacteria (not expected)

b. Consumer expectations as a standardi. Criticized for other realms of PL

c. Is the person treated as a seller?i. Church BBW selling stew with bacteria in a

fundraiserviii. Bystanders

1. Cases started to extend strict liability for defective products to “mere bystanders” if they were foreseeable victims

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ix. Everyone in the chain of distribution who sells a defective product became a proper defendant

1. Plaintiffs no longer needed to search out the negligent defendant in the chain of distributions.

2. When retailers or wholesales (“middlemen”) are held liable for a defect caused by the manufacturer, they usually have an indemnity claim against the manufacturer

3. Practical effect: middlemen only liable when they have been negligent or manufacturer has gone out of business/unreachable in judicial process.

d. Manufacturing defectsi. Own category of defectii. There are three types of defect Restatement (Third) of Torts Product

Liability §2: 1. Manufacturing defect2. Design defect3. Defective warning/instructions

iii. Strict liability under restatement approach exists only for manufacturing defects.

1. Design and warning defects turn on the “reasonableness” of the design or warning.

iv. Restatement (Third): Products Liability §3:1. Infer harm sustained caused by defect existing at time of sale,

even without proof of a specific defect, when the incident causing harm:

a. Was of a kind that ordinarily occurs as a result of product defect; and

b. Was not solely the result of causes other than product defect.

v. Burden is plaintiff’s burden1. Establish that the product in question departed from its intended

designvi. Not a defense that all possible care was used in marketing productvii. Strong incentive for any manufacturer to inspect before product leaves

factor for sale to a retailerviii. Most products that have obvious defects nowadays don’t leave the

manufacturer1. Value of reputation2. SL rule3. Inspections happen

ix. Now, mostly less obvious defects that don’t manifest right away in more complicated products

x. Smoot v. Mazda Motors of America, Inc. (2006) (7 th circuit) [airbag/pothole/asphalt case]

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1. Plaintiff is driving 1-year-old Mazda, hits pot hole/asphalt/something and is injured by air bags that deploy

a. Deployed prematurely injury2. Car itself was sold not available for evidence, plaintiffs don’t

have much3. Mazda had a recall on the car and plaintiff had made an

appointment for a few days after the accident occurred4. Facts are a little iffy

a. Plaintiff changes story about how accident occurred (pothole asphalt)

b. More likely someone driving carefully would drive into lose asphalt rather than a pothole

c. Car repaired, sold and now untraceabled. If same thing happened to next owner?

i. Not in original conditionii. Who would be defendant?

1. Not Mazda2. Probably repairman3. What about Smoots who sold the vehicle?

a. They are not commercial sellersb. No liability in contemporary product

liability lawc. Maybe in contracts?

4. Used care dealer? A commercial sellera. Should be candid & inspect productsb. Reasonable business practices could

alleviate5. Evidence spoiliation?

a. What jury instruction would there be?i. Opposite of res ipsaii. They may draw an inference from the fact that the

evidence is destroyediii. The evidence would have been unfavorable to the

party that destroyed itb. But the car was sold, not destroyed

6. This is a pretty weak case, perhaps even if car had been inspected7. Ruling: Plaintiff’s claim dismissed, not enough evidence.

xi. Some problems1. Proving the existence of a defect at the time the product left he

possession of the defendant2. Whether the defect caused the accident or the accident caused

the defect3. If the plaintiff is to prevail at all, she must make out a case using

circumstantial evidence

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xii. Differentiation from RIL1. RIL is a negligence doctrine, directed to the question of whether

the defendant exercised due carea. Requires that defendant have control over the

instrumentality2. Products liability focuses on the product only

a. Requires that the product has left the defendant’s control in defective condition

xiii. One courts 5 factor test for determining whether a product defect may be inferred from circumstantial evidence:

1. Expert testimony on possible causes2. The length of time between sale and accident3. The occurrence of similar accidents in similar products4. The elimination of other causes in the accident5. Whether the accident is a type that does not happen without the

defecte. Design defects

i. Restatement (Third) Product Liability §2(b): design-utility standard (p. 853)

1. Has replaced Restatement (Second)’s consumer expectation test2. Only a few states retain consumer expectations as sole test for

design defect casesii. Most influential alternative is the John Wade, seven factor test which

incorporates consumer expectations into the risk-utility equation:1. The usefulness and desirability of the product-its utility to the

user and to the public as a whole.2. The safety aspects of the product-the likelihood that it will cause

injury, and the probable seriousness of the injury.3. The availability of a substitute product which would meet the

same need and not be as unsafe. 4. The manufacturer's ability to eliminate the unsafe character of

the product without impairing its usefulness or making it too expensive to maintain its utility.

5. The user's ability to avoid danger by the exercise of care in the use of the product.

6. The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

iii. In most jurisdictions, when a risk becomes known only subsequent to manufacture, the defendant can employ a “state-of-the-art” defense.

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iv. Branham v. Ford Motor Co. (2010) (SC) [flipped Ford Bronco case] 1. Ford Bronco II, suspension in car not as stable as other option2. Driver of Bronco drives negligently, over corrects and car flips

over, plaintiff riding in car and is through from car; plaintiff sues driver and Ford (manufacturer)

3. “crashworthiness case”a. Result of driver’s negligence is amplified by design defectb. Suspension is not cause of accidentc. i.e. motorcycle without bars don’t cause the action, but

lack of crash bars make it worse4. Passive v. active safety features

a. Passive = seatbelts, etc.b. Active = seatbelt that actively engages when some sits on

seat, airbags, etc.5. Most things could be made safer, but that in and of itself is not

enougha. How much safer would the feature make it?b. Would it affect/reduce utility?c. Would it make it less safe in other ways?d. Recommendation: assess all factors and possibilities

6. Old Ford executive testifies for plaintiff saying the other, more stable type of suspension was available at the time

a. Shows Ford actively opted for less safe designsb. Establishes defendant’s internal decision-making

7. Reasons for choosing less safe alternativea. Costb. Inconsistent with basic designc. Time constraints?d. Aesthetic?

8. Here, the safer suspension wouldn’t have increased costs, it wasn’t inconsistent with the design

a. Marketing forces desires won out over the engineer’s concerns

b. This case is kind of like vindication of engineers9. Reversed and remanded to put case through risk-utility test

a. Plaintiff with eitherb. Trial court had entered evidence about safety changes

made after the sale of the Bronco should be inadmissible

i. Evidence of defendant’s later shift of behavior/design is inadmissible

ii. Don’t want to disincentivize manufacturer from evaluating and improving them

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c. Closing argument of plaintiff’ counsel was way over the top

i. Encourages punitive damages to account for other people injured

10. Ruling: Plaintiff presented enough evidence for a directed verdict. The exclusive test for PL design is the risk-utility test (emphasis on feasible alternate design).

v. Crashworthiness doctrine1. Imposes liability on manufacturers for design defects which only

enhance injuries rather than cause them.2. Not the cause, but make the injury worse than if the design defect

had not been there.vi. Obviousness

1. A number of courts have held that if the dangerousness of a product was obvious, there could be no recovery under either a negligence theory or a struct products liability theory.

2. In warning defect cases, the obvious danger issue is still alive. The basic idea is that obvious danger conveys its own warning and moots any need for the manufacturer to give a warning.

vii. Riley v. Becton Dickson Vascular Access, Inc. (1995) (ED Pa.) [IV catheter/HIV case]

1. Plaintiff is a nurse injured on her job; contracted HIV from contaminated catheter needle manufactured by defendant

2. Nurse has been trained (awareness) reduced risk3. At time, no treatment for HIV, automatic death sentence4. Was plaintiff negligent?

a. Plaintiff aware of condition? Did she use proper care?b. She had reflexive movement Movement of patient

(involuntary) leads to the “stick”5. Inevitable risk with highly useful product6. Other product was available (retractable)

a. Blood leaked from needle when it was retracted so, retractable device maybe not safer

b. Hospital, not nurse, responsible for deciding which type of needle to use

c. plaintiff argued that there was a safer device that was better than the device that was used

d. Safer device = protected by patent (more expensive)e. Alternative device also marketed by defendant, but not

available later because of patent infringement injunction (p. 884, n. 7)

f. So…sometimes safer design = not available for particular defendant because of government-sponsored patent monopoly

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g. Patent law in US requires licensure of product to other manufacturers at reasonable price

7. Worker’s comp available herea. Under compensatory? Not entirely fair to manufacturer to

bear costsb. Because worker’s comp statutes limit the damages that

may be recovered, there is a strong incentive to sue the manufacturer under products liability.

8. Later on, organized nursing became active in lobbying for mandatory regulations (federal)

9. Ruling: Judgment for defendant. Product is not unreasonably dangerous.

viii. Importance of plaintiff’s ability to demonstrated a reasonable, alternative design in order to prevail.

1. Courts generally fold that there can be more than one safe design and a product is not defective simply because the plaintiff can point to some other product that is safer still.

ix. Pharmaceuticals & medical devices—only available via prescriptions1. Medical devices = something implanted in body

a. Hip implant, stent, knee implantb. There has been a LOT of PL litigation related to hip & knee

implantsc. Context w/ a lot of ongoing scientifically-driven products

development2. Mostly in US, mostly funded by private investment

x. Grundberg v. Upjohn (1991) (UT) [insomnia drug/kills mother case] 1. P. 906R3d §6: Liability of commercial seller or distributor for

harm caused by prescription drugs or medical devices2. P. 915—>”learned intermediary” doctrine

a. In case of prescription drugs, manufacturer’s obligation to warn only extends to doctors who prescribe the drug

b. Dose patient took was amount prescribed by doctor, recommended by Upjohn

3. “learned intermediary” doctrine differs depending on type of drug & doctor’s involvement in administration of drug

a. Ex: chemotherapy—Dr. very involvedb. Ex: other types of drugs—Dr. writes prescription, forgets it

4. Dr.’s decision to prescribe drug = reasonable medical decision. For some kinds of drugs, can safely write it & forget it. (Not so for Halcion)

5. Grundberg Plaintiff shot mother while taking Halcion a. Halcion-induced intoxication side-effect of drug that led

to homicidal state of plaintiff, who shot her mother

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6. “Comment K” of R2d 402a provides exemption from strict liability for products that are “unavoidably unsafe”

a. Some products (ex: rabies vaccine) are always somewhat dangerous, either to patients or to those around them

b. Tradeoffs of safety v. utilityc. (we also saw trade-off in Branham where Ford made

trade-off (function & safety v. marketing) in making Bronco7. Why is it different for drugs v. Bronco?

a. Style choices versus life-saving drugsb. No big deal if Bronco II never makes it to market; big deal

if prescription drugs are barred8. FDA has very defined method, lots of regulation @ all stages of

manufacturinga. Elaborate regulatory backdropb. Grundberg alleged (p. 895) that Upjohn failed to warn (but

separate trial proceeding) i. Ultimately settled on terms favorable to π

9. Ruling: Judgment entered in favor of defendant. Court adopts comment k. Extensive regulatory scheme capable of balancing if prescription drug’s benefit outweighs the risks. Broad grant of immunity from SL based on design defect to FDA-approved prescription drugs.

xi. HYPO: Suppose manufacturer is very active in promoting their products direct to consumers through advertisements

1. Heavily regulated2. How much requirement to warn consumer then?3. R3d mentions problem, but does not take a position

xii. Final points in connection with pharma1. Basic business concepts in economic terms

a. In U.S. innovation of prescriptions and devices requires private sector interest/investment

b. Products produced for national marketsi. Values of relative uniformityii. Pre-market regulation

2. Congress could with legislative power preempt state law & regulation

a. Congress has chosen to exercise preemptive authority in a lot of different spheres

b. Congress hasn’t done that with prescription pharmaceuticals or medical devices

c. In favor of state-by-state, trial-by-trial, non-uniform markets

xiii. Most courts refuse to conclude that all prescription drugs are unavoidably unsafe

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xiv. Restatement (Second) of Torts §402A, Comment k1. Unavoidably unsafe products. There are some products which, in

the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

2. A few cases have completely rejected comment k for all drugs3. Most courts that have considered the question have found that

comment k applies to medical devices, including implantsa. Courts have been reluctant to extend unavoidably unsafe

status to products other than prescription medical devicesxv. Restatement (Third): Product Liability §6 (p. 904)

1. Has made almost no headway as a replacement for comment k2. At least one jurisdiction has rejected the approach in favor of the

Second restatementf. Deficient warnings

i. When is a product deficient in warning?1. When warning is not sufficient to convey the risk?2. Cause-in-fact requirement

a. Has to be the cause of injuryb. Has to be overtaken (factually) by subsequent

development

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ii. Must be:1. Conspicuous in design2. Comprehensible and give fair indication of the risks involved3. Od an intensity justified by the magnitude of the risk

iii. Johnson v. American Cynamid Co. (1986)(KS)[polio vaccine case] 1. Plaintiff contracted polio from infant daughter’s vaccine

a. The oral vaccine makes plaintiff contagious2. Plaintiff’s argument in Johnson is that manufacturer’s warnings

were not as totally explicit as they might have been—did not mention death as potential side effect

3. Two defendants: doctor and manufacturera. Doctor says warnings did not tell him enough

4. Alternatives?a. Not get child vaccinatedb. Stay away from childc. He wasn’t vaccinated?

i. Tested for immunity?ii. If not immunity GET VACCINATED!

5. Tort law tends to assume that if a warning was adequate, it would be read and heeded

a. Keep in mind basic “but for”6. To what extent should tort law simply defer to FDA on product

design issues?a. 3 options

i. Not at all—FDA could be fooledii. Based on type of drug (heavily on chemo; less so

on baldness remedy)iii. Utah’s choice—total deference to FDA (avoiding

case-by-case approach)7. Overtaken:

a. Science and practice of immunizationi. Polio has been successfully eradicated in the U.S.

b. OPV vaccine (partially-live) is no longer used in absence of epidemic

c. 1986 – National Childhood Vaccine Injury Acti. System of no-fault compensation for individuals

injured by vaccinesii. NCVIA preempts design defects (Bruesewitz v.

Wyeth (2011))8. Ruling: Judgment for defendant (no liability).

a. Doesn’t take a doctor to realize that those not immunized were at a greater risk.

iv. Learned intermediary doctrine1. Most courts (and Johnson) follow

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2. In the case of prescription drugs, the manufacturer’s obligation to warn extends only to doctors who prescribe the drug

3. Exception to the general rule that the manufacturer must warn the user of risks associated with a product

4. Some courts hold that there is a duty to warn the consumer directly if the doctor plays a nominal role in the decision to use the drug

5. Maybe doesn’t apply when pharma companies advertise directly to consumers

v. Problem for plaintiff in establishing that if a warning had been given, the plaintiff might have avoided the injury.

1. Most jurisdictions entitle a plaintiff to a rebuttable presumption that he would have read and heeded an adequate warning

vi. Warnings can be substantively and procedurally inadequate1. Substantive – fails to provide the consumer with information

necessary to properly assess the risk2. Procedural – involves things such as conspicuousness

vii. Bulk supplier exception1. Suppliers rely on next company to make the property warnings to

customers 2. I.e. people who make chemicals for another copay to put in their

paintX. Economic Injury

a. The “economic loss” rule/doctrine and exceptions; Breach of fiduciary dutyi. The “economic loss” rule

1. Most courts have adopted2. One generally does not owe a duty to not cause solely economic

losses to another. ii. Where a defendant breach a duty not to cause emotional or physical

harm (including harm to property), a plaintiff may recover economic damages caused thereby but solely economic injury?

iii. Basic starting points1. Think of it as a no-duty principle

a. Tort law does not impose any duty to not cause (sole) economic loss to others

b. Tort law doesn’t want to chill market competition2. Focused on negligently inflected economic loss3. Tort law recognizes parties may have special, professional or

fiduciary relationship in which one party is legally required to act in economic interests of another

4. Did the plaintiff suffer personal injury?iv. Non-stranger settings

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1. Most courts have emphasized one reason in particular to deny recovery: non-strangers are able through contract and warranty to allocate the risks of disappointed economic expectations

a. Tort law should yield to contract/warranty law2. Products realm

a. The majority of jurisdictions apply the economic loss rule to bar recovery in tort (negligence & PL) if the product effect causes only economic harms or only damages to the product itself

b. A minority of jurisdictions allow tort claims for product defects that result in solely economic loss so long as the loss occurred in the context of a “sudden and calamitous” event

3. Outside products realm (i.e. services or professional services), courts still apply the economic loss rule

a. Plaintiff cannot simply present a theory that the defendant breached a contract negligently

b. Rather, the plaintiff must show some other, independent tort

v. Stranger settings1. In these cases, the parties had no opportunity to allocate the risks

of poor performance or negligence.2. These cases do not so clearly rest on the availability and

superiority of the contract regime for allocating loss3. Rather, the economic loss rule in these causes is usually grounded

in the fear of unlimited and unpredictable liability vi. Often the parties to an economic tort cause of action will have been in a

contractual relationshipvii. Aikens v. Debow (2000)(WV) [truck/bridge incident blocks route to

Econo-Lodge case]1. No recovery for Econo-Lodge

a. It’s not their bridgeb. There’s widespread reliance on public infrastructurec. Damage or loss of product itself is not compensable for

themd. Lost revenues?

2. Ruling: Cannot recover economic damages in absence of physical harm, a contractual relationship, or other special relationship. No liability on part of defendant.

viii. Fiduciary duty1. A fiduciary is one in whom another has justifiably placed trust and

confidence to act in the best interest of the othera. Attorney-clientb. Principal-agent

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c. Partner-partner2. The fiduciary “obtains power … for the sole purpose of enabling

the fiduciary to act effectively” in the interest of the one on whose behalf the power has been given.

3. Core duties:a. Loyaltyb. Confidence c. Communicationd. Competence

4. Many types of breaches of fiduciary duty, but most common are:a. Self-dealingb. Acting with conflict of interest c. Usurping a business or corporate opportunityd. Misappropriating fundse. Neglectf. Failure to act in the other’s best interestg. Misrepresenting or omitting a material facth. Misuse of confidential informationi. Breach of confidentiality

5. These actors often handles money or purely economic issues and due to the relationship of closeness and trust, is excuses actions in tort rather than solely contract

b. Misrepresentationi. Overlap with contracts, complicated tortii. General exception to the general “economic loss rule”

iii. Three types:1. Fraud2. Negligent misrepresentation3. Innocent misrepresentation

a. False statements of fact that were not made fraudulently or as a result of lack of due care

iv. Misrepresentation as to a matter of material fact made to induce someone to act (or refrain from acting)

v. Must establish justifiable reliance and injury as a resultvi. Stable tort in content (cause of action) for a very long time

1. Remarkably uniform in U.S. (& probably rest of common law world)

vii. Common law fraud1. Significant background for going forward in law school2. i.e. securities fraud3. our focus here, economic harm (could be physical too?)

viii. How to make a misrepresentation?1. Spoken words2. Written words

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3. Head nod/thumbs up4. Action/change

a. Turn back the odometerb. Falsify recordsc. Mislabel something

ix. There’s a remedy in products liability even if misrepresentation is make innocently or negligently

x. Example 1 (pg. 1255): farmer, machinery, bank, lawyer certifies no liens against machinery

1. Bank claim against farmer breach of contract2. If lawyer was working as more than agent, but has instructions to

misrepresent farmer is potentially implicated in fraudulent conduct

3. Possible claim against lawyera. Does farmer have insufficient funds for judgment?b. If lawyer looks, but doesn’t find the lines that exist

negligence)c. Requirement for malpractice claims: client/patient must

have suffered harm/injuryi. Probably no claim here

d. Lawyer knows bank will rely on his certification letter4. Statements of opinions: sometimes they imply facts, others don’t5. Bank could have done its own lien search (comparatively

negligent?6. In general, in many jurisdictions, a victim’s contributory

negligence is relevant in reducing liability for the defendants intentional torts

a. True in DEb. Exception: fraud

i. No jurisdiction in which victim’s negligence reduces recovery against defendant’s intentional fraud

ii. There must be justifiable reliance on misrepresentation

c. Exception for reasonable belief/common person targeting a specific person (i.e. someone who’s really into astrology)

i. Seeking out vulnerable victims7. Fraud is a world of net social loss8. It requires effort on part of defendant

a. Typically not so for economic activity in generalxi. Intentional misrepresentation (i.e. fraud)

1. Aka fraudulent misrepresentation or deceit2. Several formulations of elements.

a. One example (MO):i. False, material representation

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ii. Speaker’s knowledge of its falsity or his ignorance of its trust

iii. Speaker’s intent that it should be acted upon by the hearer in a manner reasonably contemplated

iv. The hearer’s ignorance of the falsity of the statement

v. The hearer’s reliance on its trustvi. The hearer’s right to rely thereonvii. The hearer’s consequence and proximately caused

injuryb. Scienter requirement – state of mind as to the statement’s

truth/falsityc. Reliance is also important

3. Follo v. Florindo (2009)(VT)[falsified inn records case] a. Plaintiff wanted to buy an inn, defendant owners made

false documentation to show more revenue; plaintiff bought inn based on revenue calculations

i. Inn was worth less than plaintiff believed it to beb. Defendants put time and effort into creating and falsifying

Inn recordsc. Plaintiff did not pursue contract action (rescission)

i. He must have like property enough to keep itd. Three defendants: 2 owners and real estate agent who

prepared brochurei. Jury found no liability for agent

1. Agent relied on information from defendant owners

2. Was not knowingly misrepresenting3. More like a Conduent for defendant owner

misrepresentationii. Mr. Florindo

1. Had direct interactions with plaintiffiii. Ms. Morency

1. Never interacted with plaintiff or RE agent2. But she has documented involvement in the

companies and the business of operating the inn

3. Her trial testimony could lead jury to believe she was part of the fraud

4. Liable for misrepresentationa. By aiding and supplying false

statementsb. Acting in concert with Florindo

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i. Kind of like a conspiracy for torts

iv. Florindo had not assets, Morency had some1. She filed for bankruptcy

a. Debt resulting out of intentional misrepresentation isn’t dischargable

2. So why did she try?a. There are several formulations of

the elements of fraud b. Concept of intent for plaintiff to rely

on misrepresentation not present in formulation in Follow

i. But it’s required for bankruptcy debt to not be discharged

c. Case liability premised on a less demanding formulation of fraud than bankruptcy court

v. Florindo is judgment proof, RE agent is off the hooke. Justifiable reliance?

i. Tax returnsii. Where else would he get this info

iii. Not a perfectly careful purchaser1. Could have gotten counsel or appraisal

f. They probably overpaid income taxi. Defendants were paying more tax than they owedii. To keep the fraud alive

g. Ruling: Plaintiff could recover, both defendants liable (not RE agent).

4. Fraudulent to make a statement that “is true as far as it goes” knowing that there’s another statement/fact that would refute it

a. Something is not being revealed5. Intentional torts are misconduct by defendants that make it

appropriate for jury to award punitive damages6. Contributory negligence is not a defense.7. Benefit of the bargain v. out-of-pocket damages

a. In general, tort law places fewer restrictions on the recovery of consequential damages than contract law does

b. Benefit of the bargain are lost revenues minus expensesi. i.e. lost profits.

c. Most courts agree to allow a plaintiff who succeeds on an intentional misrepresentation claim to recover under either

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i. But must present evidence on what they would have been entitled to under the benefit of the bargain test

d. A good number allow only out-of-pockete. Consequential damages – sustained as a consequence of

the defendant’s misrepresentationi. Courts more likely to allow this

f. Restatement and most courts; no recovery of mental anguish damages for misrepresentation (of any kind)

8. Nondisclosure/concealmenta. Outside of the real estate context, there is no general duty

to disclose, unless special circumstances are present (such as fiduciary duty)

b. Common law fraud includes acts of concealing to create a false impression and misleading (or otherwise deceiving) other parties

xii. Negligent misrepresentation1. Similar to intentional misrepresentation/must be:

a. Misrepresentationb. Justifiable reliancec. Harm stemming from that justifiable reliance

2. Primary difference: the defendant’s state of minda. Requires that plaintiff only show that defendant failed to

exercise reasonable care with regard to whether or not the representation was true

3. Negligently made statement of fact that causes physical injury is actionable/basis for liability

4. Most of negligence situation focuses on conduct, but statements can be basis too

5. Economic injury/loss: limiting principlea. Defined by who the plaintiff isb. What relationship plaintiff has with defendant(s)

6. Restatement (Second) §552: a. (1) One who, in the course of his business, profession or

employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information

7. Ellis v. Grant Thornton LLP (2008) a. Four approaches discussed

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i. Only permitted by parties with privity of contract or in a situation so close as to approach that privity

ii. Relationship sufficiently approaching contractual privity (a little looser)

iii. Restatement: limited class of persons who are foreseeable to rely on misrepresentation

iv. Reasonably foreseeable approachb. Court chooses 3rd (Restatement) approach

i. Specifically intended recipient of informationc. Factors used:

i. Inaccurate informationii. Negligently supplied

iii. In the course of professional endeavorsiv. To a third person or limited group of third person

for whose benefit and guidance the defendant actually intends or knows will received the information

v. For a transaction that the defendant intents to influence or knows the recipient so intends

vi. With the result that the third party justifiably relies on such misinformation to his detriment

d. Plaintiff resigned from old job at solvent bank to become president of Keystone, which was (unbeknownst to him) insolvent

e. Relied on defendant’s audit report about Keystone’s finances

f. No allegation that defendant was in cahoots with Keystone, they simply fucked up (negligent & careless)

i. Defendant concedes negligenceg. Defendant didn’t intend for report to go to plaintiff, report

specifically says “not for third-party use”i. Plaintiff not part of audience/reader in mindii. Audience is BOD of bank

iii. But didn’t someone (partner) from defendant company give plaintiff a copy?

h. Should it have been foreseeable that others would rely on the report?

i. Probably why they put the disclaimeri. 4th circuit formally holds, WV SC would follow Restatement

formulationi. But DeMott thinks they’re requiring contractual

privity (narrow)1. Not majority rule these days

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j. Plaintiff filed this crossclaim against defendant when plaintiff and defendant were named as defendants in a securities class action

i. Settled for about $233M in damagesii. May suffered monetary loss with failure of

Keystoneiii. Executives charged with criminal fraud

k. Ruling: No recovery for plaintiff. Report not meant for third-party use. (CM comment: debatable)

8. Only two states (MS and WI) retain foresight rule9. Some courts allow contributory negligence defense 10. Clients often have a hard time proving the causal connection

between the lawyer’s malfeasance and an injury

Things to think about: Is there a genuine dispute of fact – do we need to allow the jury to decide? Is the injury actually caused by the conduct of the defendant?

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