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Tort Goals -Rationales and Goals (think rights based approach v.
tort as instrument approach) 1) Corrective justice = rights based
idea, restore the moral balance 2) Civil recourse = focus on what
should receive and societal recognition of harm. 3) Deterrence (
discourage self help ) = prevent future torts. 4) Loss Spreading =
spread loss to society through / Least cost avoider (avoid accident
cheaply) 6) Redress = Tort as populist mechanism/weapon against the
man. 7) Allocatively efficient, but not distributionaly fair?
Battery - Assault [offensive contact or threat of offensive
contact] -Intent to Act, -Intent to Act Unlawfully, -Intent to Act
with Substantial Certainty of harm. -Intent to Harm. Vosberg v.
Putney
Is a boy1 liable for injuries that resulted when boy1 poked
boy2s knee with his foot, under the table in a classroom.
Yes. Boy1 is liable for battery. Boy1s poking disturbed school
decorum, his actions displayed an intent to act unlawfully. Because
they were in a classroom NOT a playground there is no implied
consent. Tort-feasors take their victims as they find them,
egg-shell skull rule, Boy1 is liable for Boy2 losing his leg.
Garrat v. Dailey Is a boy liable for injuries that resulted when
the boy moved old-womans chair while she was sitting down?
Yes. Boy is liable for battery. Removing the chair creates a
situation where it is substantially certain that harm will occur.
Intent to act with substantial certainty that harm will occur.
Mohr v. Williams Intent to Act w/o consent.
Is a Dr. liable when the patient consented to an operation on
patients right ear, however, during the operation, Dr. thought it
was more necessary to operate on the left ear.
Yes. Dr. is liable for battery. Patient did not give express or
implied consent for operating on the left ear. People have an
absolute right to immunity from physical interference. Even though
Dr. did not intend to act unlawfully, he intended to act, and the
act is itself unlawful.
Cantebury v. Spence DUTY TO DISCLOSE
Is a Dr. liable to a patient where the patient became paralyzed
after falling during recovery and Dr. did not disclose the risk of
paralysis.
Yes, Dr. is liable for Battery. People have an absolute right to
determine what is done with their body = opportunity to know and
evaluate risk Dr. must disclose risk that a reasonable person in
patients position would find significant to patients decision.
EXCEPT: emergency and when disclosure would threaten the patients
well-being.
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Consent [ Tortfeasor claims Victim allowed the offensive contact
] Types: Express - Implied - Emergency - Transferred.
Kennedy v. Parrot
Is a Dr. liable to a patient when during the course of an
operation Dr. discovered unknown hazardous cysts and removed
them.
Not liable for battery. This is different from Mohr v. Williams
b/c the cysts were in the same vicinity, w/i scope of original
operation and consent and unable to obtain pre-operative consent.
Also, we can infer implied consent b/c: cost/benefit of putting
patient through 2nd operation.
Schloendorff v. NY Hospital
Emergency consent = exception to absolute right to determine
what is done to body.
EXCEPTIONS to Consent [ consent is prohibited ] - Protected
Classs cant consent. - No Consent to illegal activities. - Mentally
ill are strictly liable (caretakers dont consent) Hudson v. Craft
Is a boxing promoter
liable for injuries a boxer suffered during an unlicensed prize
fight?
Yes, promoter is liable for battery. Statute requires licenses
for all fights. Goal of statute is to protect boxers are protected
class. Boxer cant consent to the type of unlawful activity that the
statute is designed to protect boxers from. Majority rule: no
consent to unlawful acts. Recovery between two fighters is okay
(disincentive fighters from beating up opponent too badly) Minority
rule: Volenti / pari delicito (volunteer + equal fault) No recovery
for fighters.
Barton v. Beeline
Girl consented to a statutory rape and sued company?
-Company of raping employee is not liable. -No compensation for
consenting to illegal activity. - Perverse incentives problem.
McGuire v. Almy Is Mental-Patient liable for hitting Nurse with
table leg?
Yes, mental patient is liable. Assume that the mentally-ill
intended to cause harm. Concerned with perverse incentives, prevent
people from fraudulently claiming insanity to avoid tort liability.
Induce caretakers to pay closer attention. Also, corrective justice
concerns that a man should be liable for the harm he causes.
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Self Defense Claims [ defenses to a claim of assault or battery
] - Reasonable belief and actions reasonable intended
(proportionate force) to provide defense.
Courvoisier v. Raymond (Police officer sues storeowner for
shooting him)
Is a storeowner liable when the storeowner chased burglars
outside and the burglars threw rocks at the storeowner and the
storeowner shot a non-burglar (police officer) who approached.
Not liable for battery. The storeowner could have reasonably
believed that the police officer was a burglar and about to assault
him.
Morris v. Platt Is liable for injuries to (bystander), when
trying to protect himself from a 3rd. party assailant.
Not liable for battery to bystander. The s actions were
reasonably intended to provide a defense against the assailant, not
liable for injuries to a bystander.
Bird v. Holbrook Is property owner liable to a trespasser when
owners spring-gun injured trespasser who entered owners yard to
retrieve a ball.
Yes, property owner is liable for battery to trespasser. There
was no notice, unlike spikes on the wall, didnt have chance to
calculate danger. The owner cant indirectly do something which he
is directly prohibited from doing. If entered the garden while
inside, could not have shot him. Self-defense actions must be
reasonably intended to thwart the threat, no-indiscriminate
spraying.
Self Defense to Property Reasonable belief that property will be
harmed and use necessary, proportionate force. -BUT preferred
remedy is go get injunction.
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Trespass to Land - Trespass to Chattels (1) Trespass to land =
physical invasions [ non-physical invasions = Nuisance Doctrine ]
(2) Trespass to Chattels = substantial interference with personal
(non real) property. - MUST show substantial harm
-Use Self Help Remedy if the thing is moveable, move it to avoid
interference. Dougherty v. Stepp: Unauthorized entry is trespass to
property. Rylands v. Fletcher
Is neighbor1 liable to neightbor2 when neighbor1 built a dam and
reservoir on his land; and water escaped flooding neighbor2s
land?
Yes. Neighbor1 is liable for trespass. MAJORITY: Different from
negligence cases b/c imposed a uni-lateral risk. didnt know about
the risk and was unable to protect against it. Unnatural usage of
the land. People that accumulate harmful things should be strictly
liable for harm those things cause. Escaping things doctrine.
Maxim: Sic utere tuo ut alienum non laedas Use property in such a
way as to not harm anothers property.
Blondell v. Consolidated
Is Homeowner liable to Gas-Company for putting governor on the
meter?
Homeowner is liable for Trespass to Chattels but really Land.
Gas meter is immoveable, no self help remedy available to
Gas-Company.
- 3 Types of Trespass Regimes Intel v. Hamidi
Is Hamidi liable for Trespass when Hamidi used Intels computers
to send inflammatory messages about Intel?
Hamidi is not liable. No interference with possession or
interest = loss in productivity does not substantially harm (no
harm at all) to computer (property). 3-Types of Property Regimes
(for Trespass) (1) Forced Closed: obtain advanced permission (2)
Forced Open: free range, no barriers. (3) Default open: permission
until withdrawn.
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Nuisance Doctrine [ RST: non-physical invasion of land ]I -
Nuisance [ SL regime but really just Global Negligence ] (1)
Continuation of action w/ knowledge of annoyance. (2) Unreasonable
annoyance: (a) Harm outweighs benefit [BPL Global Negligence] or
(b) Harm is super serious, regular negligence wont deter behavior
[Pure SL theory].
Traditional Remedy = injunction (force stop to activity)
Problem: drawing distinction b/w light pollution from baseball
field or Christmas lights? Rogers v. Elliot
Liable for nuisance to extra sensitive person? Church ringing
bell, effecting diease.
Ringing bell is not nuisance. is extra sensitive persons.
Tension w/ Egg-Shell skull rule (take as you find him)
- Coming to the Nuisance [ impose injunction to eradicate
nuisance or not ] Ensign v. Walls (new houses next to dog breeding
biz) (1) Majority: cant persist operating the nuisance in the face
of changing times. (2) Minority: assumed the risk by moving in,
there first, use injunction to prevent more people. Boomer v.
Atlantic Cement (cement plant, w/ slight dust damage to but biz is
cash money baby). (1) Rule: Impose permanent damages (punch and pay
regime) (Forced Necessity Doctrine) Alternate Remedy = purchase
injunction, injunction against and compensates for loss.
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Conversion [ offense to legal interest in property ] Example: A
- B - C If: B steals As property = Trespass If: C steals As
property from B = Conversion Poggi v. Scott
Is Bldg-Owner lible to Wine-Owner for Conversion when Wine-Owner
rented space from a tenant in the building and Bldg-Owner paid to
have basement cleaned out and Wine-Owners casks were removed?
Bldg-Owner is liable. A - B - C = C sold As property to B =
Conversion B took As property = Trespass Conversion = offense to
legal interest in property ownership = exercise of dominion over
property. Bldg-Owner sold barrels that he had no legal right to
sell. A - B - C = B steals As property = Trespass C steals As
property from B = Conversion
Maye v. Yappan
Is Miner liable to Landowner when Landowner told Miner the land
was Miners and Miner found gold but the land actually belong to
Landowner?
Miner is liable (must return gold) but landowner must pay
extraction cost. Problems w/ Conversion = Force Sale Doctrine (1)
Perverse Incentives = landowner is freeloading from miners risk.
(2) Value added: putting value into stolen property. Ex. takes a
block of marble that belongs to and carves it into a sculpture.
must given the sculpture.
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Necessity Doctrine [ Defenses to Trespass ]
(1) Public Necessity = overt risk to property of many people by
damaging s property. Absolute Privelege
(2) Private Necessity = risk only to s property [ Necessity
Doctrine invoked to defend Trespass claim but still liable for
damage to ]
Conditional Privilege. Ploof v. Putnam Is a dock-owner liable
when the
dock-owner unties a ship that parked at his dock, without his
permission, during a storm?
Yes dock-owner is liable for trespass to the trespassing ship.
In the event of necessity (reclaiming cattle or road obstruction) a
trespasser is given privilege or right to trespass. Privilege is
based on an idea of implied consent, if the landowner was present
he would have allowed the access to his land. The landowner does
not have a right to interfere with privilege and undocking the ship
is a trespass against the ship-owner.
Vincent v. Lake Erie
Is Boat-Owner liable to Dockfor damage the boat inflicted on the
dock during a storm?
Yes, Boat-owner is liable for intentional tort. Majority:
incomplete privilege, boat sh Ship-owner used the dock-owners
property as a shield. The ship-owner replaced broken ropes and tied
the ship down with stronger cables. Similar to Garrat v. Dailey the
ship-owner intended to act and it was substantially certainty of
harm occurring. Minority rule: the dock-owner is the cheapest cost
avoider and the party best able to distribute the cost of the
damage. (higher insurance rates, higher dock fees)
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Negligence (Breach of Duty) (1) Universal Duty to exercise
reasonable care not to injure others. (2) Negligent breach = [
reasonable person standard , BPL, Custom, Statutory Violation ]
Scott v. Sheppard
Is a fire-cracker thrower1 liable for damages when throwers2,3,4
tossed the fire-cracker around a market and thrower4 struck in the
face?
Majority Rule: Yes: the natural consequence of s actions was
injury to someone and the other throwers continued the original
force. Similar to Vosberg v. Putney: intent to act unlawfully.
Minority Rule: not liable. Throwers2,3,4, were independent,
autonomous actors or free agents that interrupted and re-initiated
the motion. Not continuous motion from to .
Brown v. Kendall
Is a dogfighter1 liable for trespass injures when dogfighter1
attempted to separate two dogs by swinging a stick and in the
backswing, hit dogfighter2 in the eye?
Not liable. Old rule is incorrect, difference between case and
trespass (consequential v. direct harm) is NOT the standard for
trespass. The harm is direct but must show: (1) intended to act
unlawfully or (2) failed to use the ordinary care that a cautious
and prudent person would exercise under the circumstances.
Losee v. Buchannan
Is Factory-Owner liable to Neighbor if Factory-Owners boiler
exploded and damaged Neighbors property?
Not liable. Neighbor1 is not liable because Neighbor1 exercised
reasonable care. MAJORITY RULE: Negligence is required for
liability in damage to property. Demands of modern society require
that people forfeit some rights; exclusive property rights are a
hindrance to development Neighbor2 is compensated by overall social
welfare and right to do the same thing. MINORITY RULE: no liability
creates a perverse incentive against manufactures taking extra
preventative care. Corrective justice problem = Injured party not
compensated. Cost spreading problem = injured party bears entire
cost and manufacturer is best able to cost spread.
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Brown v. Collins Is a Carriage-Driver liable to a Property-Owner
when the Drivers horses were spooked by an oncoming train and ran
the carriage into the Owners fence.
No, Carriage-Driver is not liable. Applied Losee v. Buchannan to
overturn the escaping things doctrine of Rylands v. Fletcher.
Property owner not liable unless he acted negligently.
Hypothetically everything brought onto property could damage
someone elses property. Rights are not absolute, strict liability
prevents progress and development in the industrial era.
Powell v. Fall Is a Railroad liable to a Property-Owner when
sparks from a train engine lit Property-Owners hay on fire?
Yes, Railroad is liable. (Strict Liability) but MINORITY RULE:
Vaughan v. Taff Vale Statute (Locomotive Acts) = operators of
nuisance engines can be held liable for consequences. Consequences
can be defined as dangerous engines. Cost Internalization of
Negative Externalities - Match cost to profits When Profit
(generated by machine) > Damage (machine causes): compensate
injured parties. If Damage > Profit: stop use, bad for
society.
Bolton v. Stone Is a Cricket Club liable to a Neighbor when a
player hit an abnormally long shot out of the park and onto
Neighbors property and struck Neighbor?
Not liable for negligence. Reverse trial ct. ruling that b/c a
ball had been hit on the street before the danger was foreseeable
and the Cricket Club imposed a unilateral risk (Rylands). Reject
foreseeability and use negligence standard Cricket Club did no fail
to exercise reasonable care b/c: remote chance of injury and
consequences of operating not too severe Cost v. Benefit: build
higher fence or pay damage?
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Individualized Reasonable Person Standards (1) Foreseeability
standard for people with: episodes of insanity; episodes of
epilepsy (2) Stupid / Clumsy People are held to global
reasonableness standard. (3) Children held to Child Reasonableness
Standard BUT Elderly = global reasonableness standard. -UNLESS
Child is engaging in adult activity. (4) Rescuers held to higher
reasonableness standard. (5) Proposed reasonableness standards must
be practical. Breunig v. American Family Insurance
Is a Temporarily-Insane-Driver strictly liable to Driver2 when
Temporarily-Insane-Driver had a mental episode while driving and
hit Driver2?
Temporarily-Insane-Driver Not strictly liable.
Semi-individualized negligence standard for temporary mental
incapacity. Exception to McGuire v. Almy (insane strictly liable).
Counter to Tort theory to hold Temporarily-Insane-Driver liable for
unforeseen, uncontrollable conduct (no duty to exercise reasonable
care to prevent harm from unforeseeable things). Unforeseeable =
NOT breach of reasonable care. Temporary mental incapacity could be
like physical incapacity due to heart attack. (suddenly stricken).
Proper question = was it reasonably foreseeable that Driver1 would
have an episode of insanity while driving given that last episode
was five years ago.
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Hammontree v. Jenner
Is an Epileptic-Driver liable to Driver2 when Epileptic-Driver
had a seizure and crashed into Driver2 but Epileptic-Drivers last
seizure was 14-years prior to the accident?
Not strictly liable, use negligence standard.
Semi-individualized negligence standard for epileptic person
(suddenly stricken, physical disability) Tort theory = no liability
(duty) for unforeseeable, uncontrollable things. Necessary to
determine whether seizure was foreseeable. If seizure while driving
is foreseeable then Epileptic Drivers duty of reasonable care = NOT
driving . . . . driving would breach duty. Beyond Courts power to
impose Strict Liability for auto accidents like SL for product
defects, its a legislative function.
Vaughan v. Menlove
Is a Hay-Stack-Owner liable to a Neighbor when a haystack caught
fire and burned down Neighbors house; Hay-Stack-Owner claims he
wasnt smart enough to prevent the fire and used best of his
judgment?
Hay-Stack-Owner is liable. No individualized negligence standard
for stupid people (cognitive disability) Hay-Stack-Owner had been
warned 5-times; failing to take additional precautions = bad
conduct. Best Judgment standard is infinitely variable, standard
is: exercise the reasonable caution of a ordinary, prudent man.
NOTES OPINIONs: problem is the difference between what perceives as
reasonable care and what jury perceives as reasonable care . . . .
BUT whether the failure to exercise reasonable care is intentional
or inadvertent (clumsy, stupid) the results of that failure are
equally harmful.
Roberts v. Ring CHILD HELD TO CHILD NEGLIGENCE STANDARD
Is an Elderly-Driver liable for hitting a Boy when
Elderly-Driver had vision problems and the Boy jumped into the
street?
Individualized negligence for youth but NOT agedness. Yes,
Elderly-Driver is liable according to non-individualized negligence
standard. Boys is potentially liable only under an individualized
contributory negligence standard. No individualized negligence
standard for agedness. Duty of reasonable care while driving =
sharp lookout. Inability or failure to meet duty b/c of poor vision
is breach NOT excuse of duty.
-
BUT individualized negligence standard for infancy + youth. Boys
duty = degree of care exercised by boy of similar age/maturity.
***REASONING: people can almost universally anticipate that boys
will act with less care than adults, people can adjust behavior to
avoid liability.
Daniels v. Evans CHILD IN ADULT ACTIVITY
Is a Child driving a motorcycle held to the reasonable care of
an adult or a child to assess contributorily negligence in an car
accident?
Child is liable according to adult reasonableness standard
during adult activities. Dangerous to hold Child to lower standard
of care when engaged in adult activities b/c impossible for people
to adjust conduct and protect themselves. During activities common
to children, Child is liable to child reasonableness standard.
Eckert v. Long Island R.R.
Is a Railroad liable to a Man when the Man was killed after he
jumped in front of a train to save a child?
Semi-individualized negligence standard when acting to save
human life. MAJORITY: Man not contributory negligent for
voluntarily placing himself in danger b/c trying to save someones
life BUT contributory negligence if Man was trying to save
property. MINORITY: Man exercised free will, voluntarily placed
himself in danger, volenti non fit injuria the willing suffer no
harm.
Cooley v. Public Service
Is a Power-Company liable to a Home-Owner when power wires
contacted telephone wire and caused an loud bang that emotionally
disturbed the Home-Owner who was talking on the phone?
Power-Company not liable. Proposed higher duty of care must be
practical. Power-Company met the industry standard. Home-Owner did
not show that the proposed solution (mesh nets under lines) was a
practical measure, that was reasonable under all the circumstances.
Dual duty of care, Power-Company has duty to street-walkers and
home-owners and mesh nets might be dangerous to street-walkers.
Performance of one duty CAN NOT mean non-performance of another
duty.
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Custom Standards and BPL [ Cost / Benefit Standard ] - Custom
not always the reasonable standard + no defense for reckless /
gross negligence. - Burden ? < Probaility of Loss x Cost of
Injury T.J. Hooper INDUSTRY CUSTOM IS NOT ALWAYS REASONABL CARE
Is a Tug-Boat-Owner liable to a Barge-Owner when the barge sank
in a storm and tug boats did not have radios to check the
weather?
Tug-Boat-owner is liable. Industry custom is not always the
standard for duty of reasonable care. Tug boats w/o radio is an
unseaworthy vessel. Not having radios is essentially waiving
protection from danger. Duty of reasonable care evolves with
advances in knowledge, technology and experience. In some
situations, following the industry standard is negligence (breach
of duty to exercise reasonable care). Industry Standard viewed in
context of entire situation.
U.S v. Carroll Towing BPL STANDARD
Is a Tug-Boat-Owner liable to a Barge-Owner for hitting the
barge, which caused it to break free from the dock and sink after
colliding with other ships; when the Barge-Owner did not have an
attendant aboard the barge who could have steered it?
Tug-Boat Owner is not liable b/c Barge Owner was contributorily
negligent. Because any ship can break free, and unmoored ships
freely floating are a problem, need to impose duty on Barge-Owner
to incentivize proper care. Duty is a function of Burden,
Probability of Loss and Loss. Impose duty (liability) when B <
PL (cost of prevention is much less than the cost of the accident).
Rationale is that you failed to exercise reasonable care because
the cost of prevention is so low compared to the cost of the
accident. Tying down barge is NOT sufficient in all situations b/c
staffing barge = lower probability of loss.
Mayhew v. Sullivan CUSTOM AS GROSS NEGLIGENCE
Is a MineShaft Operator liable to a Worker, customarily did not
install railings and also did not tell the Worker?
Operator is liable. An industry standard (custom) of
carelessness cannot be the standard of reasonable care. Operators
actions were grossly negligent.
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Custom as Defenses to Negligence [ Medical ] Osborne v.
Montgomery
Is a Driver liable when he opened the car door and it hit a
passing Biker?
Driver is not liable. Negligence is departing from care that
great mass of mankind would use in that situation. Just b/c harm
occurred, liability not automatic. Must weigh liability against
social interests. Ex. Driver not negligent if car splashes dirty
water into the air and someone gets sick. Not liable for all
consequences of actions.
Titus v. Bradford CUSTOM DEFENSE
Is a Railroad liable to a Worker when irregular train cars that
were fitted to the train with wire and blocks, broke free and
killed the Worker?
Railroad is not liable. Worker assumed the risk. Railroad had
duty to provide a reasonably safe environment according to the
ordinary risks (customs) of the business. Customary to use blocks
to secure trains and Worker knew about the risks and dangers
(reasonably foreseeable). Jury not to determine reasonableness of
business practices.
Lama v. Barras NEG B/C CUSTOM NOT FOLLOWED
Is a Doctor and Hospital liable to a Patient when the Doctor
failed to implement a customary conservative treatment before
surgery and the nurses failed to take proper notes?
Doctor and Hospital are liable. Doctor failed to follow medical
custom by not implementing the conservative treatment before
surgery. Hospital negligent b/c they failed to keep cumulative
notes as required by regulations. Could have prevented the injury
(infection).
Helling v. Carey CUSTOM MIGHT BE NEGLIGENT
Is an EyeDoctor liable to a Patient when Doctor did not give
glaucoma test for 9 years and in 9th year Doctor gave test and
Patient had glaucoma, went blind?
Doctor could be liable. 1 of 25k people is not an insignificant
rate. Doctor could have easily administered the test and easily
prevented injury. Custom of not administering test to people under
40 might be insufficient. B
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Negligence Per Se [ claim violation of statute as evidence of
negligence ] -Requirements (1) Violate standard of reasonable care
established by Statute. (2) Resulting harm is w/i purpose of the
statue. (3) Victim is member of Protected Class created by the
statute [ Statute violation increases risk to class ] Osborne v.
McMasters
Is a Seller liable to a Buyer when the Seller sold and unlabeled
poisonous substance and Buyer unknowingly consumed it and died?
Seller is liable. Violation of statute is negligence per se.
Common law provides right to action for anyone injured by
negligence. 3-Functions of Statutes in tort law: (1) Create right
of action. (2) Basis for negligence per se action. (3) Basis for
negligence action.
Ross v. Hartman
Is a Car-Owner liable for injuries to a Pedestrian when Owner
left keys in car, violated statute, and a Thief stole car and hit
Pedestrian?
Car-Owner is liable negligence per se and protected class.
Leaving keys in car violated statute and is negligence per se.
Purpose of statute was to protect Pedestrians and deter exact type
of case. Pedestrians are protected class under scope/intent of
statute violated. CarOwner -> Thief ->
Vesley v. Sager Is Bar-Owner liable for damage that DrunkPerson
causes to 3rdParty when selling alcohol to drunk people violates
statute?
Bar-Owner is liable. Statute against selling to drunk people
envisioned 3rdParty (injured ) as a protected class. Bar-Owner
breached duty of reasonable care by selling beer to (enabling)
DrunkPerson that led to damage s property.
Negligence Per Se can be used as a defense against Negligence
Claims [ Contributory Negligence ]
Martin v. Herzog Is Driver2 contributorily negligent when
Driver1 collided with Driver2 but Driver2 did not have headlights
on and consequently violated a statute?
Driver1 was negligent but Driver2 might be contributorily
negligent for failing to use lights (negligent per se) Statute
established the duty and reasonableness standard. Duty under the
statute is must use lights. Driver2 is contributorily Negligent if
lack of lights was proximate cause of accident.
-
Defenses to Negligence Per Se Claims (1) Harm not within the
risk [ statutes purpose was to prevent a different harm ] (2)
Common law excuse to negligence per se claim. (3) Statute doesnt
create right of action, tort claim is against legislative scheme.
Garris v. Scott Is Boat liable to
SheepOwner when a contagious disease statute required animals to
be caged but Boat left animals uncaged and waves washed sheep
overboard?
Boat is not liable. Harm not w/i the risk. MAJORITY: Statutory
purpose was disease prevention not boat transportation safety.
Damage is different from intent of statute. MINORITY: Boat did not
cage sheep, cage-ing sheep would have prevented harm.
Brown v. Shyne
Is a Doctor liable to a Patient when the Doctor operated on
Patient w/o a license and the Patient became paralyzed?
Doctor is not liable, Harm not w/i the risk. MAJORITY: License
purpose was to prevent unskilled and careless operations. Violation
of licensing statute is not negligence per se. Patient must show
Doctor was unskilled in conducting operation (failed to exercise
reasonable care) and that it proximately caused Patients paralysis.
MINORITY: License purpose was to protect the public from
unqualified persons. Violation of statute is negligence per se,
direct and proximate cause of paralysis. Timeline argument: (1):
Majority - did violating statute cause harm at surgery itself? (2):
Minority - did violating statute cause harm at the decision to
operate?
Tedla v. Ellman COMMON LAW EXCUSE
Is a Walker contributorily negligent when he was hit by Driver
on the right side of the road when statute required walkers on left
side of road but common law allowed walkers on right side if
traffic lighter?
Walker is not contributorily negligent. Statutory violation with
common law excuse. Statute says: must walk on left side Common Law
say: walking on right side okay if traffic bad. Perverse outcomes
problem, not reading-in or observing common law would make walkers
negligent for reasonable behavior.
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Uhr v. East Greenbush School District
Is School liable to Student when School violated statue and did
not screen for scoliosis?
School is not liable. Harm that resulted from duty created by
statute (i.e. without statute = no duty, no harm) 3-Part Test for
Right of Action (1) Member of protected class? (2) Does allowing
action promote statutory purpose? (3) Is allowing action consistent
with Gov. scheme? Allowing/Creating private right of action is
against legislative scheme. State envisioned other enforcement
mechanisms and purposely did not create private right of
action.
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Res Ipsa Loquitor [ the thing speaks for itself ] *Burden shift
to to disprove causation. Rules (1) Accident does ordinarily not
occur in the absence of negligence. (2) Information about causation
is under exclusive control by . (3) No contributory negligence.
Byrne v. Bodle Is Factory Owner liable to Pedestrian when barrel
of flour falls out of window?
Factory Owner can be held liable. Res Ipsa. Barrels rolling out
of factory does not ordinarily happen without negligence. s burden
to show non-negligence.
Ybarra v. Spanguard
Is Doctor liable to Patient when Patients shoulder/arm was
injured during surgery on Patients stomach?
Doctor is liable. Res Ipsa. Infer negligence b/c evidence and
object causing harm is under exclusive control of the tort-feasor.
Unreasonable or impossible for to identify exact negligence.
Shoulder injury during stomach surgery not happen w/o negligence.
Doctor in charge can be liable for temporary servants (nurses,
other staff) b/c person ultimately responsible for surgery.
Colmenares v. Sun Alliance Insurance
Is Airport liable to Pedestrian when the rails on escalator
stopped working causing him to fall?
Airport is liable. Res Ipsa. Handrail stopping ordinarily does
not occur in the absence of negligence.
Airport had non-delegable duty and exclusive control of
escalator to maintain safe condition b/c of mass public use.
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Defenses to Negligence [Breach] Claims (1) Contributory
Negligence (2) Assumption of Risk - Primary: assumed the risk = had
no duty; is it true (analyze duty) - Secondary: acted unreasonably;
contributory negligence analysis (3) Last Clear Chance = Defense to
Contributory and Assumption claims. - Primary v. Secondary
Assumption of Risk Meistrich v. Casino
Is a Casino liable to a Performer who claims that the ice was
made too hard and slippery.
Assumption of Risk has two parts: (1) Primary: did assume the
risk essentially a duty question; is it true that had no duty of
reasonable care to make safe ice? 2) Secondary: did act like a
reasonably prudent person in skating on dangerous ice; essentially
a contributory negligence question.
- Successful Contributory Negligence claims [ WINS ] Butterfield
v. Forrester
Is Home-Owner liable to a Horse-Rider when the Owner placed an
obstruction in the road that could be seen from a distance and the
Rider crashed into it?
Owner not liable. Rider contributorily negligent. Obstruction
was clearly visible through use of ordinary care. Rider failed to
exercise reasonable care cant cast oneself onto obstructions and
claim negligence.
- Successful defenses to Contributory Negligence claims [ WINS ]
Gyerman v. U.S. Lines
Is Shipping-Company liable to Unloader when Shipper stacked
product dangerously and Unloader saw the risk, told a supervisor
but continued working and was later injured when the product stack
collapsed?
Shipper is liable, Unloader not contributorily negligent.
Shipper negligently and dangerously stacked the product, someone
was going to have to unload it; Unloader was doing his job. No
assumption of risk. Shipper argued (time-line shift) Unloader
contributorily negligent for not altering proper supervisor but no
evidence that alerting supervisor would prevent accident. s breach
is not the cause of the accident.
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Derheim v. Fiorito
Is Driver2s contributory negligent when he failed to wear a
seatbelt that would have lessened the injury when Driver1
negligently hit (illegal left turn = negligence per se)
Driver2?
Driver2 is not contributorily negligent. Typical contributory
negligence is conduct that causes the accident or injury itself.
Unfair and Inequitable to allow contributory negligence to bar
recovery. Cost v. Benefit = simple, effective and efficient to wear
seatbelt BUT = Slippery Slope Problem: what other safety measures
should have used? Cost of expert witness to find whether seatbelt
would have prevented harm. Time-line arguments: (1) Seatbelt
negligence arguably occurs before accident (take as you find him -
Vosberg) (2) Doctrine of Avoidable Consequences should have taken
measures to limit damages.
LeRoy Fibre v. Chicago HOMLES DISSENT FAVORS CONTRIB. NEG.
CLAIM
Is Railroad liable to Landowner when train sparks ignited
Landowners hay stacks that were 75ft away from tracks and possibly
too close?
McKenna: Landowner has absolute property right, no
contributorily negligent. Landowner should not be subjugated by the
Railroad. Is this a slippery slope problem, at what point does
property owner need to give up entire land b/c of Railroad use?
Holmes: negligence is all about degree, degree of closeness is
relevant, 1/2 mile is probably not imprudent but 1ft from tracks is
probably unreasonable. Societal efficiency argument: society loses
value of flax if Landowner places it too close (last clear chance).
Reciprocity Problem: Railroad harms Landowner, Imposing tort
liability limits rights in favor of other party (e.g. Railroad
liable = more farms, less trains). Question should be is lost
caused by harm greater than benefit gained by harm.
-
- Assumption of Risk Claims [ view through Primary and Secondary
Lenses ] Lamson v. American Axe
Is an Employer liable for injures to an Employee when the
Employer installed a new axe rack, Employee complained it was
unsafe and continued working anyway and was then injured by a
falling axe?
Employer is not liable for axe falling on head. Employee assumed
the risk by continuing to work. Wages reflected the risk premium,
its simply a dangerous job.
Murphy v. Steeplechase The Flopper
Is a Amusement-Park liable to a Rider when the
fast-escalator-like ride (The Flopper) allegedly suddenly jerked
and the Rider fell and broke knee?
Amusement-Park is not liable. Rider assumed the risk, observed
other riders. Falling was the thrill and foreseeable risk, it was
the whole point of the ride. Volenti argument. The volunteer
suffers no harm. No evidence of sudden jerk and Cardozo manipulates
facts / analyzes evidence falling on wood theory was not presented
to jury and contradicted by testimony; we wont consider it.
- Last Clear Chance Claims [ Negligent, Negligent BUT had Last
Chance! ] Fuller v. Illinois
Is a Train liable to a Wagon-Driver when the Train did not apply
the brakes after Trail saw Wagon crossing tracks/stopped on tracks
600ft ahead and Train could have stopped but instead blew whistle
when 200ft away from Wagon.
Train is liable. Train had last clear chance. Contributory
negligence not a valid defense to liability when had last clear
chance to avoid the accident. Train failed to exercise reasonable
care in looking out. Train could have stopped or given warning
sooner. Last Clear Chance Doctrine = protection for s against
Contributory Negligence. Re-Incentivize s to exercise reasonable
care. Prevent perverse incentives of s who knew about the risk and
used contributory negligence as an escape from liability.
WMATA Case Suicidal person jumps in front of train but Conductor
is drunk.
MAJORITY: / are equally at fault, RTT 503 = reckless disregard
by both parties is no recovery. MINORITY: Suicidal person did not
have last clear chance, suicide is not a voluntary action, mentally
unstable/insane.
-
Comparative Negligence Li v. Yellow Cab Is Lane-Crosser
contributorily negligent when Crosser tried to turn left into
3-lanes of traffic and Light-Runner was speeding, ran yellow light
and hit Lane-Crosser?
Lane-Crosser is not contributorily negligent, new standard of
Comparative Negligence. Problems with Contributory Negligence: (1)
Inequitable, complete bar to recovery for s. (2) Fails to
distribute liability according to fault. (3) Juries already use
comparative system by ignoring contributory negligence but awarding
reduced damages. Problems with Comparative Negligence: (1) Absent
tort-feasors complicate the question. (2) Dangerous to use %
negligence when close case. Merge: Assumption of Risk; Last Clear
Chance; Will-Wonton Misconduct. Comparative negligence is
essentially the game being played (who really was at fault?)
2-Forms of Assumption of Risk: (1) unreasonably and willfully
encounters risk created by s negligence (2) agrees to relieve of
duty. Adopt Pure Form of Comp. Neg. (liability to % fault) (1)
Alternate 50% Form bars recovery when is 50% at fault; Inequitable
b/c recovers @ 49%? (2) 50% system is essentially contributory
negligence regime with more difficult standard.
-
Affirmative Duties [ Exceptions to no duty to stranger ] (1)
Creation of risk (3) Contract / Assumed Duty (5) Isolation (making
someone worse off) (2) Reliance (4) Attractive Nuissance (6) Cant
prevent rescue (bar phone) -Creation of Risk Yani v. Bigan NO DUTY
TO STRANGER
Is a Miner liable to a Jumper when the Miner taunted Jumper to
jump into a small pond and then refused to save Jumper?
Miner is not liable (moral hazard only) No affirmative duty to
rescue strangers. Miner did not create the danger. Mental
enticement only: (1) no physical contact (2) is not a child or
mentally deficit (3) taunting is not negligence.
Wagner v. International Rye DUTY TO RESCUER
Is a Railroad liable to a Passenger when Passengers friend fell
out of train and Passenger went with conductor to look for friend
but Passenger fell off a bridge?
Railroad is liable. Negligence = liable to victim and rescuer
when engaged in reasonable behavior. Rescue = child of the occasion
= no discrimination b/w rescuer who knows risk and doesnt know
risk. Proper analysis = (1) Is injury to rescuer product of s
negligence? (2) Was the rescue attempt foolish or unreasonable?
-Assumed Duty Montgomery v. National Convoy
Is Truck liable to Car when Truck broke-down near the crest of a
hill, put out warning signs but signs not visible until too late to
stop?
Truck is liable. Impose duty to warn b/c Truck assumed duty of
care to road users and created the danger. Truck recognized the
dangers of icy road and low visibility and put out a 1/2 ass
warning. 3-Ways to Impose Duty: (1) Truck created danger (2)
Implied duty for safe highway use, duty to act reasonably among
drivers. (3) Truck recognized duty and acted.
Marsalis v. LaSalle CAT CASE COULD BE RELIANCE OR ASSUMED
DUTY
Is a Cat-Owner liable to a Neighbor when the cat scratched
Neighbor and Cat-Owner promised to observe cat for rabies but cat
escaped and Neighbor had to undergo rabies vaccination?
Owner is liable. Assumed duty of reasonable care to monitor cat
and breached that duty. (1) Isolation: Cat-Owner actions made
Cat-Owner worse off than Neighbor would have been if they just
tested cat for rabies. (2) Reliance: Neighbor kindly asked Owner to
monitor, relied on Owner to perform duty that Owner assumed. (3)
Created risk: Owner created risk to Neighbor by failing to perform
duty.
-
-Reliance Erie R.R. v. Stewart
Is Railroad liable to Driver when Driver failed to look and hit
by train but Railroad stopped providing a watchmen at the
intersection and didnt tell anyone and Driver thought no watchmen
meant no train coming?
Railroad is liable. Duty b/c created danger, trap, induced
reliance. Railroad assumed duty. Provision of watchmen was custom,
people relied that absence of watchmen meant safe to cross =
created duty. Stopped watchmen service, without warning created a
trap, failure to warn breached duty of reasonable care.
Special Relationships [ duty to protect against 3rd party
negligence ] Kline v. MA Ave Apartments.
Is a Landlord liable to Tenant when Tenant mugged in hallway and
security measures had declined from when Tenant moved in but Tenant
had month-to-month lease?
Landlord is liable. Duty to maintain hallway in reasonably safe
condition. Creation of duty to protect against 3rd parties.
Problems with making Landlord liable, imposing duty (creating
special relationship) to provide safety: (1) Mugger is proximate
cause of Tenant harm. (2) Harm is unforeseeable? Vague standard.
(3) Government is supposed to protect people. Reasons to impose
duty on Landlord for safety and create special relationship to
Tenant: (1) Landlord not bystander. (2) Exclusive power/control to
remedy situation. (3) Cost-Spreading. Landlord is cheapest cost
avoider, can buy security and charge everyone higher rent, everyone
benefits b/c marginally higher cost is less than cost of being
robbed. (4) Landlord assumed duty by providing security in the
beginning Tenant relied on security. (5) Landlord had notice of the
danger.
Tarasoft v. Regents
Is a Therapist liable for injuries to Girl when Therapist knew
Patient wanted to harm Girl and Therapist failed to warn Girl?
Doctor is liable. Special relationship imposed duty to warn.
Public Policy favors disclosure of danger over confidentially and
effectiveness of treatment. Factors to create duty to 3rd Parties:
(1) Foreseeability of harm. (2) Certainty of injury. (3) Moral
blame (4) Is injury proximately caused by the failed duty. (5) $
and consequences of creating duty.
-
Land Owner Duties (1) Categories Regime = invitee, licensee,
trespasser. (2) Modern Regime = duty of reasonable care also [
Attractive Nuisance Doctrine ] Addie v. Dumbreak OVERRULED in
Rowland v. Christian
Is a Mine-Company liable to Child when Child trespassed on
field, played on cable-wheel-machine and was killed?
Company is not liable. No duty to trespasser. Invitee = duty to
exercise reasonable care for safety. Licensee = no duty of safety
except hidden dangers. Trespasser = no duty except
will-full/wonton, reckless MAJORITY: lack of fence and commonly
ignored warnings is not permission to trespass (not licensee). So
no duty to warn of latent defect. MINORITY: if tolerance of
trespassing is egregious enough then trespasser becomes licensee.
Implied permission.
Busch v. Armory
Is a Mill liable for not removing Child-Trespasser?
Mill is not liable. No duty to trespassers except no excessive
force in removal. Mills dangerous machinery is normal condition of
the premises, no duty to warn b/c:
Rowland v. Christian
Is a Owner liable to a Guest when Owner knew sink handle was
broken, failed to tell Guest and Guest cut hand when handle
snapped?
Owner is liable. abolish status categories. Must exercise
reasonable care in managing property as to not injure others.
Heaven v. Pender = duty to use reasonable care when a reasonable
person in that situation would recognize that failing to exercise
care is going to cause harm. Impose reasonable person b/c: (1)
Status Categories dont allow connection b/w injury and cause of
injury. (2) Stop the moral hazard (3) Prevent future harms. (4)
Reasonable people dont change level of care based on status of
other people. Status can impact the $ compensation but not
fault.
- Attractive Nuisance Doctrine -View as Trespasser becoming
Licensee also, Owners actions are Wilful and Wanton
Requirements (1) reason to know child trespassers are around.
(2) the thing is harmful (3) children wont realize its harmful (4)
fails BPL
(5) Artificial Condition
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Cause in Fact [ But for s negligence no harm ] (1)
Interderminent Causation (2) Joint and Several Liability (3) Market
Share Liability (4) Lost Survival. Zuchowicz v. U.S.
Is a Pharmacist liable for a Users death when the prescription
instruction was double the prescribed dosage and the drug allegedly
caused a illness but the illness was acerbated when User became
pregnant and ineligible for heart/lung transplant? RULE: if type of
negligence increases a specific type of accident and that accident
occurs assume negligence.
Pharmacist is liable. Over-prescription was proximate cause of
the illness. 2-Parts to Causation: (1) Does drug cause illness (2)
Did over-prescription of drug cause illness? Drug causes illness
b/c all other potential causes of illness ruled out with
differential eteology. Overfilling was Negligent per se b/c:
against FDA regulations and against the implicit assumption of drug
use that benefit > cost. Martin v. Herzog: infer negligence from
violation of statute that was designed to prevent the exact harm
that occurred. Assume that Over-Prescription caused Illness b/c:
Over-prescription is negligence because it increases risk of
illness, here, there was over-prescription and the illness
occurred. RULE: If a negligent act is considered wrong because the
negligent act increase the chances of a specific type of accident,
and that very accident happens; it is sufficient to say that
negligence is the cause of the accident.
- Indeterminate Causation = Joint and Several Liability Summers
v. Tice
Are Hunter1 and Hunter2 both liable to Victim when Hunters fired
at a bird, missed and hit Victim but its unknown which Hunters
bullet actually hit Victim?
Hunter1 and Hunter2 are liable. Indeterminate Causes = impose
Joint / Several Liability. Not independent tort-feasors = acting in
concert Both Hunters acted negligently; Shift Burden to defendants
to sort out who is more negligent. Like (Yabara) res ipsa = we dont
know who the exact negligent person was but there is negligence.
Policy Reasons: (1) Prevent moral hazard of no liability. (2)
Evidence is exclusively b/w the tort-feasors.
-
Kingston v. Chicago
Is a Railroad liable to a Landowner when Railroad caused NE-Fire
that joined with an unknown NW-Fire and destroyed Landowners
house?
Railroad is liable. Assume NW-Fire was result of negligence =
impose joint / several liability. Indeterminate Cause = burden
shift to to show superseding cause (show that NW-Fire had): (1)
natural cause or (2) bigger more dangerous fire or (3) Was result
of more negligent behavior If NW-Fire had natural cause = not
liable b/c -Not true that but for s negligence no fire harm
- Joint and Several Liability (1) Old Idemnity Rule = If two
parties are joint torfesors there is no contribution or indemnity.
(2) New Indemnity Rule = s share liability on Comparative Fault
basis. (Li v. Yellow Cab)
Joint and Several Rules for Insolvency
Scenario: (at fault) = 30%; 1 = 60%; 2 = 10% 1 is insolvent.
Pure Joint / Several: 2 pays 70% (2 assumes all liability =
total recovery for plaintiff) Several Liability: 2 pays 10% (2 only
pays the % he was liable for) Joint / Several with Apportionment:
40% total liability remaining pays = 30/ 30 +10 = 75% pays =
10/30+10 = 25%
Proportionate Share v. Pro tanto
Scenario: 2.1m verdict 1 = settled for 1m 2= 32% 3 = 38%
Proportionate Share Rule: 1 = 1m settlemtn = 1m 2 = 32% of 2.1m
= $672 3 = 38% of 2.1m = $798 Total Recovery of 2.4m Pro Tanto
Rule: 2.1m verdict - 1m settlement 1 = 2 = 32/70 x 1.1m = $914 3 =
38/70 x 1.1m = $1m If 1 pays less in settlement than the % of fault
awarded at trial 2 and 3 will sue.
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- Market Share Liability Sindell v. Abbot Laboratories
Is a Drug-Manufac liable to a Child where the drug causes cancer
to children when Mothers consume it and when the Manufac(one of
hundreds) probably did not produce the exact pill that harmed
Child?
Manufac is liable. Market Share Liability. Liable for % of drug
you produced. No indeterminate cause doctrine (Tice) b/c: (1)
impossible to identify tort-feasor but (2) all possible s are not
joined (many unknown). No concert of action b/w s. Loss Spreading
and Moral Reasons to hold liable Criteria for Market Share
Liability: (1) harmed and not negligent. (2) All s are potential
Tort-Feasors (3) s produced a similar, fungible good. (4) Must join
substantial # of manufactures. Damages: Several liability regime =
liability limited to manufactures % of market share, relative total
amount of liability available (insolvent s liability removed from
calculation).
-
- Lost Chance at Survival Herkovits v. Group Health
Cooperative.
Is a Doctor liable to a Patient for lost chance of survival when
Doctor diagnosed Patient with cancer but failed to detect it
six-months earlier?
Doctor is liable. Proximate cause of reduced chance for
survival. Rendering incomplete services is failure to exercise due
care. Causation Problem But for Doctors negligence, Patient
survives = but for analysis is not true. Patient was going to die
w/ or w/o negligence. - w/o Negligence = 39% survival chance - w/
Negligence = 25% survival chance 36% reduction in survival chance.
MAJORITY: Damages for reduced chance of survival even when
reduction in survival chance is less than 51%, eliminate perverse
incentives b/c holding otherwise means no liability to persons w/
less than 51% chance of survival. MINORITY: No Damages for reduced
chance of survival if survival chance is less than 51% = Idea is
negligence not really cause for death, going to die anyway. (fails
preponderance standard). Damages Theories Rules: Neg. reduced
survival chance by less than or equal to 50% = recovers only % of
enhanced risk Neg. reduced survival chance by greater than 50% =
recovers 100% damages. Example of enhanced risk: w/o negligence =
40% Survival = 60% death rate w/ negligence = 20% Survival = 80%
death rate (1) 50% decrease in survival rate. (2) 33% increase in
death rate. [b/c Tort theory] 100 Patients: w/o negligence = 60 Die
20 Excess Deaths w/ negligence = 80 Die 80 Total Deaths Enhanced
Risk or Harm is 25% increase in death rate, so 25% liable for
damages. Herkovitzs Creates Over-deterrence Problem: w/o negligence
= 75% Survival rate = 25 Die w/ negligence = 25% Survival rate = 75
Die Actual excessive deaths = 50 [33% increase death] Under 51%
Rule, 75 ppl recover @ 100% b/c reduced survival rate is 74%
[75-25/75]
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Proximate Causation I Requirements (1) Forseeability (2) Moral
Cuplability (3) No major Intervening / Superseding causes. Ryan v.
NY Central R.R.
Is a Railroad liable to a Homeowner for a negligent fire that
spread and damaged Homeowners property 130ft from origin of
fire?
Railroad is not liable. Damage is remote result of Railroads
negligence. Example = Fire - A - B - C (1) Fire burning A is
foreseeable / anticipated (2) BUT Fire burning B or C not
necessarily foreseeable. Reasons to Limit Liability: (1) Loss
spreading: Railroad cant insure everyone, better / more efficient
for individuals to insure. (2) Public Benefit of Railroad (Losee v.
Buchanan) (3) Unfair to hold Railroad liable for everything.
City of Lincoln
Is Captain liable for ship sinking after a collision when the
during the collision the Captain lost his maps, compass?
Captain is not liable. Captains actions are not superseding
cause between collision and sinking. 3rd Party Negligence deprived
him of the ability to navigate; Captain not contributorily
negligent for ship sinking. But For s negligent collision ship does
not sink.
Palsgraf v. Long Island R.R.
Is Railroad liable to Bystander when Railroad employees pushed
man on a train, who dropped fireworks which exploded that caused
scale to fall and injure Bystander?
Railroad is not liable. Bystander is not a foreseeable plaintiff
= NO DUTY. Chain of events: Push - Drop - Explosion -Scales -
Injury CARDOZO: Railroad did not have duty b/c injury was
un-foreseeable. Eye of vigilance perceives the risk of damage. No
duty for un-foreseeable injuries. Railroad - bumped a bomb carrier
in a crowd - not liable. ANDREWS: (find cause of best fit)
Explosion = proximate cause. But for Railroad negligence Everyone
has absolute duty to not injure. -if someone engages in
unreasonable behavior (negligence) the remoteness of harm is
irrelevant. Proximate Cause = ripples in pond, we stop following
causal chain @ socially efficient point.
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Proximate Causation II (1) Cause = all direct consequences from
breach of reasonable care. (2) Cause = only consequences that were
reasonably foreseeable. MODERN RULE Polemis Is a Merchant
liable to a Ship-Owner when Merchant knocked plank into ships
hold and ship exploded?
Merchant is liable. Liable for all direct consequences.
Explosion = direct result of negligence [ Reasonable people dont
drop planks ] PROBLEM BPL Analysis favors imposing negligence and
reasonable people dont drop planks BUT: explosion is not
foreseeable (harm not w/i the risk). Irrelevant that the reasonably
expected (foreseeable) harm of a falling board is not ship
explosion b/c Merchant could have reasonably anticipated some
injury. Vosberg: Egg-shell skull rule
Wagon Mound
Is an Oil-Tanker liable to a Dock Owner when the Tanker spilled
oil and the sparks of Docks welders lit a cotton rag that ignited
the dock/harbor?
Oil-Tanker is liable. Reverse Polemis Holding Dock
contributorily negligent (fire as direct result of welding) =
illogical outcome Fire = reasonably foreseeable result of Tankers
negligence. Polemis Rule = too expansive, (like SL regime) b/c
liable from almost all damage from negligent act (explosion was not
reasonably foreseeable. Common Sense that Tanker should be liable.
PROBLEMS: (1) Tension w/ Egg-Shell Skull Rule = Tort-feasor takes
victim as he finds him. Wasnt reasonably foreseeable that Vosberg
would lose leg.
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Strict Liability [ fit case into SL box = duty + breach ] -
Policy Objectives of SL (1) Regulate activity level (Incentivize
cricket club to play less games) (2) Subsidy/Tax to align Social
Costs with Benefits Ex. Industry with lots of externalities; impose
SL but not on Zoos or Fireworks. (3) Eliminate Non-Reciprocal Risks
(4) Assess liability even if evidence is destroyed (gas truck
explosion) - Ultra-Hazardous / Abnormally Dangerous Activities: (1)
RST 519: if you engage in Ultra-hazardous activities, liable for
all harm w/i risk) (2) Harm w/i Risk = Madsen v. East Jordan = not
liable for blasting that made Minks kill babies. = (limited to)
type of harm that makes the activity dangerous in the first place.
Factor Test (RST 520) (1) High Risk of Harm Occurring Bolton v.
Stone (2) High Loss Potential Bolton v. Stone (3) Ability to
eliminate with reasonable care. BPL Analysis + Garrett v. Daly
(intent to act w/ sub. certainty) (4) Not Common Usage (% of
population) Rylands (nonreciprocal risks) (5) Inappropriate
Location Rylands (nonreciprocal risks) and Bolton v. Stone (6)
Value to Society Losee (dont deter Socially Beneficial behavior) -
Animals (1) Domestic Animals = negligence regime (2) Wild Animals =
Strict Liability Regime (but maybe global negligence, its negligent
for you to have that animal. The Flopper: if the ride caused lots
of injuries then maybe negligent to have it.
Gherts v. Botten
Is Dog-Owner liable to Neighbor when dog, tied up in back of
truck, bit neighbor?
Dog-Owner not liable. SL regime ONLY for dangerous animals.
Neighbor must show that Owner knew dog was dangerous. (Fit case
into the SL box) Harm not Reasonably Foreseeable: (1) no evidence
of dangerous dog (2) people dont know that having the scent of
another dog scent would make this dog dangerous. (3) no evidence
that restraining dog would have prevented injury.
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- Blasting; Shipping Dangerous Chemical Spano v. Perini
Is Blaster strictly liable to Garage when explosion causes
damage to the garage 125ft away?
Blaster is strictly liable = ultra hazardous activity.
-Substantial risk of harm regardless of care used. Expand Booth
doctrine of Strict Liability for flying debris and Negligence for
other damage = pure strict liability regime. Blasting = substantial
risk regardless of degree of care used = Blaster should bear the
risk. Old argument = blasting benefits public (no SL) New argument
= cost of public benefits should not be allocated to innocent
parties. Blasting Company can loss spread = higher rates.
Indiana R.R. v. American Cynamid NO SL
Is a Manufac who shipped a dangerous chemical strictly liable to
a Railroad when the chemical spilled in a residential area and
either party could have prevented the car from leaking?
Manufac is not strictly liable. (1) Chemical itself is not
inherently dangerous. (2) Spills can be prevented w/ reasonable
care. Purposes of SL Regime: (1) High % of risk, High cost of
Liability = unpreventable w/ reasonable care. (2) Incentivize
relocate or change activity level. No SL b/c: -Chemical is similar
to 125 other chemicals, not inherently dangerous to store / move.
-Impractical or inefficient to force Manufac to ship chemical away
from residential areas. (1) Increased cost. (2) Longer route = more
exposure to risk.
-
Vicarious Liability [ get at the party with the $ and
incentivize ] Possible Rules: (1) Acts authorized by employer. (2)
Failure to supervise / negligent hiring practices. (3) Acts with
purpose to serve employer. (4) Accidents foreseeable from biz
activity. Ira Bushey v. U.S
Is Coast-Guard vicariously liable to Dock-Owner when sailor
walked back to ship drunk and opened valve that flooded and damaged
the dock?
Coast-Guard is vicariously liable. Employers are liable for
reasonably foreseeable activities. Problems: (1) Old Test (RST +
Nelson) = employers liable for: - activity w/i scope of employment
and motivated by intent to serve master. (2) Incentives ( is
cheapest cost avoider?): - Coast Guard find better sailors? - Dock
Owner to Install better safety mechanisms? Maxim = Respondent
Superior let the employer answer, employers shouldnt be able to
avoid responsibility = use foreseeability standard.
Petrovich v. Share Health INDP. CONTRACTORS
Is an HMO vicariously liable when Doctor failed to
HMO is vicariously liable. Reasons for liability: (1) HMO had
apparent authority over Doctor: - Hold Out / Project to public as
health provider. - Induce Public Reliance, assume Doctor is
employee of HMO; people must choose from HMO plan list of doctors.
(2) HMO had implied authority over Doctor: - HMO makes decisions
about medical necessity - HMO refuse to pay for some procedures.
(3) Policy = Liability balances HMOs profit motive.
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Products Liability [ show Defect, Seller, Harm, ] Impose SL for
Activity Limits, BPL, Force Innovation, Cost Internalization and
Loss Spreading - Sellers Distinguish b/w: Sellers = Strict
Liability / Service Provider = Negligence. (1) Scope of Inquiry =
Is Consumer looking for object. (2) Consumer Choice = What was
Consumers level of choice in selecting product? (3) Necessity of
service = How necessary is the Party to the goal that the consumer
desires? Ex. Electrician probably not seller of wire. (4) Purpose
of Service = Is what this Party doing party of marketing or core
biz operations. (5) Ability to Control Manufac = is intermediate
Seller able to loss spread? Excludes Casual Sellers from SL but not
Custom Sellers Custom Sellers are Strictly Liable, tension b/c
Service Providers (standardized services) = negligence. -
Defects
(1) Manufac Defect = departure from intended design.
(2) Design Defect = Is the design reasonable = TEST = (1) RAD
(2) Consumer Expectations.
(3) Inadequate Warning = is the warning reasonable ( really goes
back to Design Defect ) - Manufac Defect MacPhearson v. Buick
Motors
Is a car Manufac liable to a Consumer when wheel of car made
from defective wood, however, Consumer purchased car from
Dealer?
Manufac liable for products = Duty flows to consumer - Abandon
privity requirement. - Distinguish old cases w/o product liability
as cases with significant superseding causes. Problem: A - B - C
[If C buys from B can C sue A?] Reasons for Products Liability: (1)
General knowledge that in usual course someone other than 1st
purchaser will use product. (2) Negligently constructed products =
dangerous. Duty (1) Liable for the complete finished product. (2)
Test / Inspect component parts.
Escola v. CocaCola
Is a Coke-Manufactuer liable to a Waitress for manufacturing
defect when coke bottle explodes on Waitress?
CocaCola is liable for manufacturing defect.
Res Ipsa - No overpressure w/o negligence.
CocaCola is least cost avoider and best cost spreader.
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- Defense to Manufac Defect = Economic Loss Rule (harm to
product, itself) CasaClara v. Toppino
Is a Concrete-Maker liable to a Home-Owner in products liability
when the concrete is found to be defective but has not caused any
damage yet?
Concrete-Maker is not liable, economic loss rule. - no Tort
liability w/o damage or injury. (Contract Law area) Reasons for no
liability: (1) Product has only harmed itself. (2) Only damage is
to economic expectations. (3) Would create Tort Imposed maintenance
plan. Problems: (1) Perverse incentives = Tort goal is to prevent
future harm. (2) Loss Spreading / Cheapest Cost Avoider = allocated
cost to Concrete-Maker, higher prices for better concrete.
- Design Defect 4 Rules (evolution) ANALYZE ALL!
(1) Open and Obvious Test (any hidden dangers a.k.a. assumption
of risk test)
(2) Consumer Expectations Test (product deviates from how
reasonable consumer would expect it to function)
(3) Risk-Utility Test (cost / benefit analysis of product) (4)
Reasonable Alternative Design [RAD] (Heart of the Risk Utility
Test, show better design) (Created after OBrien v. Muskin, dove
into shallow pool, hands slipped on liner and broke neck)
- Shift to Risk Utility / RAD from Consumer Expectations b/c:
(a) Paternalistic Notions = you dont know what you getting into (b)
Tort Law as Police (c) Defeat you Assumed The Risk argument (Titus,
American Axe) with Unsafe Custom (TJ Hooper) (d) Protected Class =
no consent. VW America v. Young
Is Car Manufac liable when seat broke during accident?
Liable for Intended uses, which includes: reasonably foreseeable
uses. Collisions are reasonably foreseeable = w/i the intended
purpose of the car. Duty to eliminate latent risks. Connect to
Kline = duty to protect from 3rd party negligence.
Barker v. Lull Engineering
Is Lull Manufac liable when lull tipped over during use on
incline surface?
2 Tests for Design Defect (defective if either is satisfied)
Consumer Expectations Test (1) Fails to perform as safely as a
reasonable consumer would expect during a reasonably foreseeable
use. Risk Utility Test (2) Do the Risks / Costs of design outweigh
benefits? s Burden to show design not defective.
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- Failure to Warn (a) Trade-off b/w expensive design or cheap
warning. (b) Safer design not possible [ Ex. chain saw ] McDonald
v. Ortho
Liable for failing to warn about stroke risk on Birth Control
Pills? Foreseeable risk. Feasible Warning.
Manufac is liable. [ State Tort Law controls ] argues = learned
intermediary doctor in best position to give educated warning,
unique to consumer. Not learned intermediary and FDA Regs
insufficient (1) High degree of consumer choice with birth control.
(2) 1yr Renewal cycles foreseeable that Doctors might fail to warn
or consumers will forget. (3) High feasible for manufacs to warn
and product poses substantial Risk ( BPL ) Problem: tension w/ But
for causation If Girl knew about risk of blood cots and took
drug... Is it true that But for warning about stroke no injury?
Vassello v. Baxter
Liable for failing to warn about risk of silicon damage to
muscles from rupture of breast implant?
Test - Failure to warn when: (1) Foreseeable Risks could have
been reduced by (2) Provision of reasonable warnings and (3)
Omission of warning = unsafe product Duty to perform reasonable
testing to uncover risks.
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Federal Preemption [ When does Federal Regulation trump State
Tort Law ]
(1) Express Preemption = statute says it preempts all tort
claims. (2) Conflict Preemption = statute and tort law conflict,
statute preempts. (3) Obstacle Preemption = is allowing tort claim
/ liability an obstacle to policy goal. (4) Field Preemption =
federal regulations completely dominate a field.
- Test for Implied Right of Action [ Cort v. Ash (1) Is member
of protected class, is right created for s benefit? (2) Evidence of
Legislative Intent to create right of action? (3) Is right of
action consistent with Legislative Policy? (4) Is right of action
basically the concern of the states? Geier v. American Honda
Is a Car-Manufac liable to Owner for not installing airbags when
airbags are not required by federal statutes but airbags are within
the state common law duty?
State common law duty pre-empted by Federal Motor Vehicle Safety
Act?
Manufac is not liable. Federal Statute pre-empts state law,
here. Intent of Federal Statute was a gradual phase-in period,
airbags not required. Pre-emption created floor, minimum safety
standard.
Allowing State tort claim contracts goals of statute.