Torts Outline Spring 2012 1
Torts Outline
Spring 2012
1
Intentional Torts
Intentional torts are torts where intent is present
Spectrum of tort liability
Unintentional acts intent to act (SL) intent to act unlawfully intent to act w/ certainty of
knowledge intent to harm
Trespass
Person
o Intent to act (if act is unlawful)
o Assault and Battery
Assault – threat, intent
Battery – unlawful touching, intent not always necessary
o In Vosberg v. Putney D kicks P. The wrongdoer is liable for all injuries resulting from the
wrongful act whether or not they are foreseeable. The intent was intent to act. D kicked P
with no intent to actually harm D but is still liable because of the intent.
“Eggshell skull rule” => D takes P as he finds him => rights view
D argues that P is the cheapest cost avoider and should pay. Countered by moral
arguments that P shouldn’t have to protect himself from the wrongs of others
o In Garratt v. Dailey, the D had intent to act with certainty of consequences. He pulled the
chair out from under P, knowing that she would fall. Here the D is liable because the harm
was foreseeable and his intent was to act.
Land
o Every unauthorized entry onto another’s land is trespass, in Dougherty v. Stepp the law
inferred some damage even when there wasn’t any and the trespasser thought the land was
his.
Intent to step is enough, there does not need to be intent for unlawful action
o Injunctions – prohibit behavior
o Damage can be real or interference with use. Gas meters don’t move. (Gas meters case.
Blondell v. Consolidate Gas Co., pg. 12)
Injunction works better than self-help if you can’t move the property like you can a
chattel
Chattels
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o Damage/moveability
If there is damage resulting from trespass to chattel lawsuit
Without damage reasonable force to protect property (you can move it). Self-
help is the only recourse when there’s no damage
o No damage, no trespass
o Requires intent to act => strict liability
o In Intel v. Hamidi D used computer system but did not impair its functioning or quality (no
damages), therefore there is no trespass. Court ruled that computer servers are akin to
phone lines and not real or immovable property as Intel claimed. Intel could have put a
“fence” around its email system if it wanted to (like moving a chattel). Intel tries to make
Blondell argument but they dismisses it. No adverse possession by D.
o Adverse Possession - The use or enjoyment of real property with a claim of right when that
use or enjoyment is continuous, exclusive, hostile, open, and notorious
o Conversion – ultimate trespass to chattel; completely destroys the object belonging to
someone else (stealing, selling, etc.); innocent mistake is no defense (Poggi – wine case)
Bad faith: P gets gross profits
Good faith: P gets net profits (Maye v. Tappan)
Defenses to intentional torts
Consent (brief outline first)
o Express
o Transferred/proxy
o Necessity/emergency => purely implied
Life threatening/health
Patient unavailable
Would have consented
Imminent danger
o Implied broader consent
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Doctor needs more latitude today; doesn’t know family
Kennedy – cyst (Major abdominal surgery, higher cost)
Mohr – ear (No real cost to waking someone up)
Scope of surgery – Kennedy does not exceed extent of scope, Mohr does
o Contract (broad) – More coercive the contract, the less likely the court is to enforce it
Express
Implicit – Vosburg playground (context)
Consent of guardian – Comes from express, from someone capable to give consent
Necessity
o Consent can be express or implicit (Vosburg, “implied license of the playground”), consent of
guardian, necessity (life threatening, patient unavailable, would have consented, imminent
danger)
o In Mohr v. Williams (ear case) an operation was performed without a patient’s consent, no
intent to harm was required to hold the doctor liable. Damages could be recovered. D
operated with intent to act unlawfully, no consent. Intent to harm would only be required
for criminal case. Circumstances did not justify performance without consent.
Remittitur – An order awarding a new trial, or a damages amount lower than that
awarded by the jury,
o Scope of consent
When doctor fused two vertebrae when only one was consented to the scope of
consent was exceeded (Washburn v. Clara, pg. 22)
o Unanticipated circumstances
In Kennedy v. Parrott large cysts were found during surgery. Unanticipated events
offer more latitude, broader implied consent is inferred when nobody can be found
to give consent.
It is more efficient to allow doctor to do the job compared to forcing him to wake
up the patient
o Written consent forms
Covered unanticipated events, gives consent for these unanticipated conditions to
be addressed in surgery.
o Consent to illegal activities
Consent of participants does not remove liability from promoter of illegal prizefight.
The state has a long history of regulating prizefighting and the statutes are for the
protection of fighters. (Hudson v. Craft, pg. 27)
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Majority rule – can sue winner sues loser for damages (deterrence)
This case: Promoter as principal for the winner
Minority rule – consent nullifies actions (Geysel)
Volenti non fit injura – no claim since you volunteered
Ex turpi causa non oritur action – no actions shall arise from an
improper cause
This case: Protected classes can’t consent to act. No equal
wrongdoing between P and promoter, promoter was “worse”
than the fighter. Statute was in place to protect fighters in these
very situations.
o Informed consent
Duty to disclose. The court in Canterbury v. Spence ruled that the consent standard
is what is reasonable under the circumstances. The test for disclosure is materiality
to patient’s decision
Exceptions for unconscious patient and situations where risk disclosure
would harm the patient
Arguments for informed consent
Autonomy => people have right to determine what is done to their bodies
Cost-benefit analysis, patients will act in their best-interest
Arguments against
Scope, only a reasonable explanation is required
Cost/time
Insanity
o McGuire v. Almy ruled that insane people are liable for intentional torts when they have the
intent to act. Insanity does preclude intent to harm. The court said nothing here about
negligent torts, only intentional ones.
Thinly veiled SL
Caregivers will be more careful
No incentive to plead insanity
Can pay for services should pay for harms
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Fairness – between two innocents the cause should pay
If caregivers can’t recover than there will be none
Administrability – courts find negligence hard
o Gould institutionalized not liable for attacks on caretakers
Assumption of risk
Trustees have done all they can (institutionalized), serves policy interest
Self-Defense
o Riots, robberies and police. When the D assaulted a police officer that he thought was an
attacker Courvoisier v. Raymond held that self-defense includes situations where a
reasonable person believes his life is in danger. The jury instructions in this case should have
included that possibility.
o Types:
Person is actually being attacked:
Truth
SL
Person reasonably believes they are being attacked:
Objective statement
Negligence
Person, in heart of hearts, actually believes they are being attacked:
Subjective statement
Intentional tort
o Accidental harming of a innocent bystander by force reasonable intended to repel an attack
by a 3rd party is not actionable unless intentional or the risk is excessive (Morris v. Platt, pg.
39)
o Defense of property => Bird (spring gun trap) => can’t do indirectly what you’re forbidden to
do directly => spring gun is disproportionate force
Necessity
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o In Ploof v. Putnam P moors boat during storm, D removes it. Necessity justifies entries upon
land and interferences with property that would otherwise have been trespass.
Defense to trespass
Applied with special force to the preservation of human life
Self-defense involves people, necessity involves property
Allows an imposition on the right of a 3rd party
Cannot be contracted
Bilateral monopoly – monopoly created out of a conversation, dock owner
holds all the cards, no competition
o D’s ship damaged P’s dock during storm. When someone uses another property for the
protection of their own, damages are owed (Vincent v. Lake Erie, pg. 51). The ship used
proper care in staying at the dock during the storm. Those in charge of the ship kept it
there. Necessity here is an incomplete defense; D still have to pay for damages
Intent with certainty of consequences (Vincent and Garratt)
Liability v. No liability
Liability – boat insurance
No liability – dock owner takes damages as an operational pass through,
passes costs to boats
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Historical Background: SL v. Negligence
Introduction
Two forms of action in English law
o Trespass : Most of the harms actionable at English law; Direct harm
o Case : Indirect harms not involving the use of force; Developed later; Consequential/indirect
harm
SL – fault, Negligence – no fault
Chronology
o 17/18th Century – SL
o 19th – Negligence
o 20th – Negligence + SL
o Today – “Sea of negligence with islands of SL”
Forms of Action
In Scott v. Shephard trespass held even though injury was not a direct result of D throwing squib into
a market, where others threw it until it exploded in P’s face. Everyone who does an unlawful act is
the doer of all that follows. The consequences of the original act were foreseeable to the D.
o Blackstone’s arguments against majority
Damage was caused by the explosion, this was not a projectile that was diverted
but one that was given new life by the actors
Not self-defense action of 3rd parties was unreasonable
Not necessity
In Guille v. Swan ballooner calls out for help and people trample a field. Court rules that if D invites
the damage caused, he is liable for it in trespass. Lack of intent doesn’t shield the D from
responsibility; he should have foreseen the consequences.
Strict liability and negligence in the last half of the 19th Century
Growth of negligence during this time
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In Brown v. Kendall D raises stick to separate dogs, hits P in the eye. D not liable unless not using
ordinary care and P is not contributorily negligent. Without fault or intent to harm or act unlawfully
this is not an intentional tort. Fault is the beginning of negligence.
o Ordinary care – the kind of degree of care that prudent and cautious men would use based
on the case and necessary to guard against danger
Fletcher v. Rylands – D’s reservoir spills water onto P’s land.
o Court of Exchequer Pleas – No liability without negligence
o Court of the Exchequer Chamber – Anyone who keeps anything on their property that
would do damage if it escaped does so at their own peril.
Reservoir is an unbalanced risk, inherently dangerous
o House of Lords – Affirms
Brown v. Collins – D’s horses frightened by train and damage P’s lamppost. Court rejects Rylands’
escaping rule, rules that D is not liable because he used ordinary care. Holding D liable would hamper
societal progress. Distinguished from Rylands because escaping water/fire is dif. than escaping animal
In Losee v. Buchanan an exploding boiler harms P’s land. D not liable. Living in civilized society
requires risk. P receives compensation for damages in the general good and in the fact that P can
have a boiler on his own land.
D’s car, properly operated, releases sparks and ignites D’s hay. D is held liable. Bramwell says that if
the use of a machine is profitable then damages must be paid, if not use is a nuisance and should be
barred (Powell v. Fall)
o Considerations: fairness, cheapest cost avoider, with SL factories internalize externality
Issues – Distributional fairness, allocative efficiency
Allocative Efficiency Distributional Fairness
SL Powell – have factory account for all
costs
Cost internalization
Don’t stick one person with the bill
Powell – make money, pay for harm caused
Negligence Losee – we need boilers
Subsidy/incentives
Losee – P has benefit of boiler, can’t complain
Mutual risk
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Holmes writes about two theories of tort liability
o Man is answerable for all his actions (rejected)
o Personal fault (no foreseeability, no fault)
Strict liability and negligence in modern times
Bolton v. Stone is the cricket case. House of Lords, overruling lower court says because risk of ball
hitting someone outside the ground was small, reasonable person would have done nothing and
there is no breach of duty. Holds that risk must be foreseeable and substantial to impose duty.
o Distinguishes from Rylands, this is personal injury case (neg) as opposed to property (SL)
o Negligence schemes
Foreseeable quasi-SL => P
Foreseeable and substantial => P x L
BPL – Burden, Probability of harm, Loss/magnitude of harm
In Hammontree v. Jenner a car driver has a seizure that forces him into a collision. Court refuses to
apply SL to users of the road. Legislature can if it wants to.
o If no foreseeability, no liability
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Negligence
Quick Outline
Breach => did D’s conduct fall below applicable standard of care; when you don’t behave as a
reasonable person?
Duty => did D owe P a duty to conform conduct to avoid unreasonable risk?
Causation => was D’s failure to meet standard of care causally connected to P’s harm?
Damages => did P suffer harm?
PART A – BREACHReasonable person standard
In Vaughan v. Menlove the court ruled that a man must use his property so as not to injure others.
The court held the D liable when improperly stacked haystacks caught on fire. Test for gross
negligence is the “reasonable person” standard.
o Majority ordinary prudence
Like reasonable belief (Courvoisier)
o For simpleton, negligence is SL
If you aren’t up to the “reasonable person” standard, you pay for everything
o In Roberts v. Ring the court held that there is no individualization of the negligence
“reasonable person standard” for old age. Here the old guy hit a child while driving. Children
not held to same standard as adults.
Like Menlove, D can’t raise his level of care to “ordinary person” like SL
Child may have been CN, but not held to same standard when engaging in child-like
activity
When children engage in adult activities they are held to the adult standard. (19 year old killed riding
a motorcycle, crashed into car. Daniels v. Evans, pg. 153)
o Would be unfair to the public otherwise
Bruenig v. Am. Fam. Ins. Co. – the court held that sudden mental incapacities are equivalent to
sudden physical attacks (heart attacks, etc.) instead of being grouped in with general insanity. The
jury could have found that they were foreseeable and could have made her liable for her negligence if
so (pg. 158)
o Can handle the case like either McGuire (insane liable for intentional torts) or Gould (person
who commits act is liable if everyone is innocent)
Court in Fletcher v. City of Aberdeen ruled that cities have a duty to provide reasonable warning of
risk to people using reasonable care based of their subjective situation. Subjective reasonable
standard – can’t hold blind guy to the same standard as a seeing person. Contributory negligence.
(pg. 162)
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o City is cheapest cost avoider
Summary – Personalize reasonable person standard?
o Intelligence – No
o Elderly/infirmity – No
o Infancy – Yes, except for adult activities
o Physical disability – “Yes”
Objective v. Subjective
o Objective – no individualization
Easy admin, less fraud, outsiders deserve basic level
o Subjective – individualization
Deterrence level, moral desert (how can we ask someone to do better than they
can), can never have a purely subjective standard (jurors can’t know exactly what D
knows), moral desert (punish dumb guy for doing the best he can)
Calculus of Risk – BPL
Scenarios:
o 1) PB>PC and SB>SC
Good
o 2) PB<PC and SB<SC
Bad activity, but good state of world
o 3) PB>PC and SB<SC
Net harmful activity that people have incentive to do => tax, criminalize
o 4) PB<PC and SB>SC
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Good activity that people have no incentive to do => subsidize
Negligence by omission: negligence is omission of an act that a reasonable man would do or vice
versa. D in Blyth v. Birmingham Water Works not liable for frozen and busted pipes because cold
weather was unforeseeable. (pg. 166)
In Eckart v. Long Island R.R. a man died trying to move a child from the path of an oncoming train.
Negligence implies an act or omission that is wrongful in itself => not wrong to try and save the child.
In looking at collateral object (thing being rescued) we look at the value of the thing saved and the
probability of success. (pg. 167)
o High regard for human life
(Terry, Negligence, pg. 169) To make conduct negligent the risk involved must be great and
unreasonably probable.
Not every want of care results in liability, just want of ordinary care. Idea of balancing social
interests. Example of splashing someone while driving in the rain. Not liable because ability to travel
in rain is highly valuable. (D opens car door, P hits it with his bike. Osborne v. Montgomery, pg. 33)
In Cooley v. Public Service Co the court ruled that a D cannot be “liable if you do and liable if you
don’t.” D’s power lines hit phone lines and injured someone speaking on the phone. She claimed
that a basket to catch the lines would have presented the accident. This basket would have created
other dangers. Reasonable alternative standard no duty to take a precaution that will create a
new danger for someone else. (pg 173)
o Cost-benefit analysis not done in a vacuum.
THE BPL CASE. Owner’s duty to provide against injury a function of three variables: B – Burden of
precaution, P – Probability, L – Magnitude of harm. Fair requirement that their be a bargee on the
boat. The court noted that if there was a custom it might control. (D towing boats, one gets loose.
U.S. v. Caroll Towing Co., pg. 175)
BPL chart (cricket example)
o Marginal calculation
o Liable if B<PL
o Stop at 20 ft, pay $200 to save $300 in losses
o Activity Level
o Risk neutrality
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Height Cost Total cost P of ball
hitting head
Head = $1k
(P*L)
Total loss
avoided
10 feet $100 $100 40% $400 $400
20 feet $200 $300 30% $300 $700
30 feet $300 $600 20% $200 $900
40 feet $400 $1000 10% $100 $1000
50 feet $500 $1500 0% $0 $1000
SL v. negligence – both efficient
o Why choose SL?
Distributional fairness – why make victim pay?
Discontinuity – With negligence, damages go to zero at BPL line
Negligence encourages taking excess precaution
Administrative costs – with SL jury doesn’t have to deal with care issue, just
damages
Activity level – more activity equals more risk, negligence doesn’t account for this
Makes parties take a higher level of care
Custom
In Titus v. Bradford, B & K. R. Co., D RR company not negligent for using “Nypano” cars, juries cannot
dictate customs or control the business of a community (old time view). Employers are not insurers.
Not bound to use the newest and best appliances. Custom dictates ordinary risks of business.
Assumption of risk of workers. (Pg 188)
P in Mayhew v. Sullivan Mining Co. argued that not placing railing around hole in mine was negligent.
Court decided that custom is no defense for lack of ordinary care. No rail grossly negligent. (Pg.
190)
There was no custom; it was negligent not to have radios. Cost low, probability of harm medium, loss
high. (Tugboats without radios. The T.J. Hooper, pg. 191 & 192)
o Carroll, 15 years later, if there is a custom, it controls
o Here: BPL regardless of custom
o If the utility of a safety precaution outweighs the cost of the precaution, then it is negligent
not to carry the safety precaution
Overview:
Mayhew
Custom irrelevant
TJ Hooper
BPL trumps custom
Bimberg
Custom is evidence
of care
Titus
Custom controls
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Medical Custom
o Practice of general practitioners or specialists relevant in malpractice cases. (No
conservative treatment. Lama v. Borras, pg. 197)
One of the few areas where custom defines the standard
o (Helling v. Carey, pg. 207) P suffered from not receiving glaucoma test. Professional norms
didn’t require pressure tests. Doctor was liable. BPL applied.
Holding limited to its facts
Single most notable break from standard of customary care
o (Small v. Howard, pg. 205) Locality rule, custom is standard of doctors in the community.
1880.
o (Brune v. Belinkoff, pg. 205) Overrules locality rule. 1968
Problems
Rural – less equipment
Poor v. Rich, clinics v. hospitals
SL for less well-equipped hospitals, Menlove for hospitals
o Informed consent => Canterbury => doctor has a duty to disclose all reasonable information
about a proposed treatment to his patients => British reject this because of paternalism
o The standard of care in medical malpractice case typically requires:
That a doctor must use the degree of skill and learning which is normally possessed
and used by doctors in good standing in a similar practice in a similar community
and under like circumstances; OR
That a physician who undertakes a mode/form of treatment that a reasonable
resident member of the medical profession would undertake under the same or
similar circumstances shall not be liable for harm caused thereby to the patient.
Often there’s no single custom
Epstein on custom
o Consensual/people in industry custom
Assumption of risk (Titus)
Bilateral risk (car collisions, barges)
Possible to contract around customs you don’t like
Bargaining power issue
o Stranger no custom
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No idea about the custom
No assumption of risk (Mayhew)
Negligence per se
Violate statute
Statute a factor Exceptions No exceptions
Pure negligence Emergency, necessity Strict negligence per se
(Thayer, Public Wrong and Private Action) Legislative supremacy justifies rule that violating statute is
negligence per se
Harm must be within purpose of the statute
o No liability for sheep falling off boat when statute was designed to prevent exposure to
disease (Gorris v. Scott (Eng.), pg. 230)
States can’t enforce defective statutes, but violation of those statutes in negligent (Clinkscales v.
Carver, pg. 227)
OSHA regulations that weren’t implemented until 6 months after incident were allowed as evidence
of negligence in selling tractor without roll cage. (Roll cage. Hammond v. Int’l Harvester Co., pg. 227)
Violation of a statute constitutes negligence per se and cause of action can come from that violation.
(Mislabeled poison. Osborne v. McMasters, pg. 228)
Restatement (Third) of Torts – violation of statute = negligence per se
o Court may adopt as a standard of conduct of a reasonable man the requirements of a
legislative enactment or an administrative regulation whose purpose is found to be
exclusively or in part:
To protect a class of persons
To protect a particular interest
To protect the interest against the kind of harm which has resulted
AND
To protect that interest against the particular hazard from which the harm results
(Stimpson v. Wellington Service Corp) Statutes can have dual purpose for cause of action. In this
case, protecting drivers and protecting streets from overloaded trucks. Case involved driver without
truck license harming property with overloaded truck.
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Unexcused violation of statute is negligence per se. Legislature sets the standard of case and
reasonable person follows those statutes. There still has to be causation between the violation of
statute and the injury that results. (No headlights. Martin v. Herzog, pg. 233)
(Tedla v. Ellman, pg. 234) P walking wrong way on highway. Statute that codified common law rule
also codified exceptions, even if not explicitly in statute. Difference between rule (like SL) and
standard (like negligence)
Violation of statute requires no remedy if there is no injury. The purpose of the legislation in Brown
v. Shyne (pg. 235) was to prevent unskilled people from practicing medicine, not to prevent medicine
being practiced without a license.
o Violation not necessarily evidence of negligence – CHANGES RULE
Violation of statute that results in injury is negligence. P was in protected class, like Hudson v. Kraft.
(Keys left in car, thief steals is and hits P. Ross v. Hartman, pg. 240)
Dram shop statutes
o Bartender has to defend himself normally
o Person who gets drunk now a protected class (Ewing v. Cloverleaf Bowl, pg. 241)
No negligence per se without duty. Statute imposed no duty to administer tests, legislature intended
for administrative enforcement. Here there was no legislative intent to create a private cause of
action. (Scoliosis tests. Uhr v. East Greenbush Central School Dist., pg. 242)
Res Ipsa Loquitur
Res ipsa loquitor: the thing speaks for itself => invoked when P seeks to establish D’s negligence by
circumstantial evidence
Modern Res Ipsa elements:
o Ordinarily doesn’t occur without D’s negligence
Most important
o Exclusive control (responsibility)
Byrne – employees (vicarious liability)
Because barrels don’t fall out of windows without negligence the burden is
on the D to prove he hasn’t broken duty to care
Colmenares – non-delegable duty (3 rules, below)
Ybarra – Either everyone or head surgeon has duty
o No CN (Contributory Negligence)
Results
o Circumstantial Evidence
o Allows case to go to jury
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Who wins??
0% 20% 49% 51% 80% 100%
D, direct
verdict
D wins P wins by
jury w/
ipsa
P, direct
verdict
o Res ipsa only gets you to the jury, directed verdict is rare
The court in Colmenares Vivas v. Sun Alliance Insur. Co. (Escalator case, pg. 268) ruled that res ipsa is:
o (1) Inference of negligence
o (2) Exclusive control on part of D
o (3) Accident not due to P’s voluntary actions (no CN). Exclusive control when responsibility
shared if duty is non-delegable.
In a case where a patient was injured while unconscious during surgery the court in Ybarra v.
Spangard said that assisting nurses and physicians become the agents of the head surgeon during
surgery. Several defendants not a defense to res ipsa. (pg. 276)
Plaintiff’s Conduct
Introduction
o CN
P has not taken reasonable care
o Assumption of Risk
When P has deliberately and voluntarily encountered a known risk
Contributory negligence
o For negligence, D must be negligent and P must not be. CN occurs when D is negligent and
then P is negligent. (Pole on road, no ordinary care used, Butterfield (Eng.), pg. 288)
o Burden of proof of CN defense rests on D. In Gyernam v. United States Lines Co. the D did
not show that reporting the unsafely stacked fishmeal would have done nothing to improve
the situation. Causation between the CN and the harm is required. (pg. 293)
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o CN turns on whether the trier of fact concludes that the injured person was able to control
his actions. If you can’t control your actions you can’t be contributorily negligent. (Ditto
fluid and tang. Padula v. State, pg. 298)
o Absolute right of property concerning CN. (Train sparks ignite hay. LeRoy Fibre Co. v.
Chicago, Milwaukee and St. Paul Ry., pg 300)
Spark preventer on RR, B<PL
o Not wearing seatbelt is NOT CN. Not wearing belt is conduct before the accident Eggshell
skull rule, no statutory requirement to wear seatbelts. (Accident, P not wearing seatbelt.
Derheim v. N. Fiorito Co., pg. 304)
o Beems v. Chicago RR said that P should expect train to slow down, took reasonable care
before trying to unhook cars, no CN when his foot was run over.
Last Clear Chance
o CN does not mean no recovery if D could have avoided the accident with reasonable care.
o The party who has the last clear chance of avoiding the accident is responsible for it. (RR hits
guys on the track. Fuller v. Illinois Central R.R., pg. 308)
The donkey car crash story (Davies v. Mann).
Can look at it temporally (Fuller, Davies) or moralistically (WMATA, higher level of
action is liable)
Assumption of Risk
o Pro
Blame – P knew risk but continued to work
Freedom of contract/risk premium
o Con
Coercive bargaining problem
Paternalism, P is supposed to be protected by statute
o Where a worker knows the risk and stays no suit for negligence is valid. (Falling axes.
Lamson v. American Axe & Tool Co., pg 318)
Argument against – economic duress, change in job/hidden hazards
Progressives pass workers compensation
o The timorous may stay at home. One who takes part in a sport accepts the risks so far as
they are obvious and necessary. A hidden danger would be a tort, here the danger was not
hidden. (Flopper. Murphy v. Steeplechase Amusement Co., pg. 322)
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Hidden danger is tort
CN is reasonable person (objective), AR is voluntary acquiescence (subjective)
Global negligence argument – If injury costs are too high compared to
entertainment value then the flopper should close
o In the ice skating case, Meistrich v. Casino Area Attractions, the court set out primary
assumption of risk: D is not negligent (consent, no duty, therefore no breach of duty) and
secondary AR: D is negligent (breaches duty) but P is unreasonable (CN) (pg. 326)
Kills AR defense – it depended on P’s intention to get involved in an activity, this
case makes everything objective (based on reasonable person)
o Fireman’s rule – Because firefighting is an inherently dangerous job, if someone’s CN affects
a firefighter the person who is CN is not liable to the firefighter. Applies to other jobs as
well.
Comparative Negligence (CMN)
o The idea that many people can be the cause. Apportions liability based on the level of fault
of the parties
o Rule is intended to discourage accidents by denying recovery to those who fail to use proper
care for their own safety => but rule promotes accidents by encouraging the negligent
defendant
o Rules
Pure – all proportion
50% - P needs to be less than 50% responsible
o Establishment of pure CMN (see above). CN is unfair if the P is only slightly negligent
compared to the D. Legislature created CN statute expecting judicial evolution. (Li v. Yellow
Cab Co. of CA, pg. 337)
PART B - DUTYThe general rule is that there is no duty to a stranger. Exceptions below.
Duty to Rescue
No duty to trespassers of any age. Not bound to warn of hidden dangers or to protect him from
injury. Only bound not to use violence. No intentional torts allowed. (Child crushes hand trying to
learn brother’s machine. Buch v. Amory Manufacturing Co., pg. 497)
Doctor under no duty to help all patients. A license doesn’t mean that a doctor has to help patients
at their request. (Doctor won’t treat patient. Hurley v. Eddingfield, pg. 499)
No duty to save a person in danger unless legally responsible for putting them in that danger.
Nonfeasance doesn’t bring a duty to rescue. Taunting causes no harm in adults. (Guy taunts other
guys who jumps in water and drowns. Yania v. Bigan, pg. 500)
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Good Samaritan laws:
FOR AGAINST
Act/omission is poor distinction Rugged individualism/liberty
Cost-benefit (low cost, high benefit) Hard to regulate
Slippery slope
Potential liability/dangers
Create dependence
Law does legislate morals Legal system not for legislating morality
Administrability
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o Common law establishes clear duty
o Ways to implement: criminal liability, tort liability, tort immunity, restitution/implied
contract
Duty to take precautions when the omission of precautions creates dangerous situation. (Truck dies,
no warning on hill. Montgomery v. National Convoy & Trucking Co., pg. 507)
o Owner of truck created the risk
o Implied contract (Posner)
o Recognized duty (they put up some signs)
Once a risk is undertaken you can’t omit something that an ordinary person would do in performing
the task. (D messes up rescue. Zelenko v. Gimbel Bros., pg. 511)
Duty not to interfere with third party giving or ready to give aid. (Bartender doesn’t let guy call cops.
Soldano v. O’Daniels, pg. 512)
Gratuitous Undertakings
If one voluntarily recognizes a duty they can’t stop performing without notice because others rely on
that standard. If a business recognizes a custom the court will hold them to it. (Railway watchman.
Erie R.R. v. Stewart, pg. 536)
One who volunteers to take care of or assist an ill, injured or helpless person is legally required to use
reasonable care. (Cat scratching. Marsalis v. LaSalle, pg. 539)
o Cat escaped, reasonable care was not used
o Contract (express or implied)
One who undertakes to perform a contractual duty for another, and fails to adequately perform this
duty, owes no special duty to any third party harmed by his non-performance, unless he specifically
agreed to perform for the third party. Moch, waterworks case.
Duty to owners and occupiers
Duty of care for people on land (Child gets caught in wheel. Addie v. Dumbrek, pg. 513)
o Invitee (business) – reasonable standard
o Licensee (social) – warn of hidden danger
o Trespasser (no permission) – no duty
Attractive nuisance – artificial condition on the land that could bring unreasonable risk of death or
serious bodily harm to children
Duty to exercise reasonable care for everyone. The old factors of invitee, licensee and trespasser can
be used as exceptions from the standard of reasonable but this is not guaranteed. (Guest hurts
himself on faucet. Rowland v. Christian, pg. 521)
o Found that old distinctions do not make sense in modern society
o General retreat from the distinctions over time
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Visitor Distinction Common Law In Rowland
Invitee Reasonable care Reasonable care – spectrum
of care based on situationLicensee Warn
Trespasser None
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Landlord has duty of taking protective measures guarding the premises against the perpetration of
criminal acts. Court finds special relationship between landlord and tenant based on foreseeability of
crime and control of the landlord over the premises. (Woman robbed in apt hallway. Kline v. 1500
Mass. Ave. Corp., pg 549)
o Landlord in cheapest cost avoider, avoids free-rider problem
o Also could have decided the case based on reliance leading to duty, the status of tenant as
an invitee (assumption of risk), paternalism, cost-pass-through (security makes apt’s less
affordable)
(Frances T. v. Village Green pg. 556) Duty from Kline passed on to condo boards that function as de
facto landlords. May deter sitting on condo boards
Special Relationships
Duty to control conduct to prevent harm when:
o There is a special relationship between actor and third person which imposes the duty
o The actor and the other which gives the other a right to protection
Liability is predicated on defendant’s creation of an unreasonable risk. Duty to protect when you
cause the potential harm. Misfeasance (D responsible for making P’s position worse), not just
nonfeasance (D fails to aid P). (Radio promo. Weirum v. RKO General Inc., pg. 548)
o Liability because an act of D caused the harm
o Anyone can recover from misfeasance
o Only special relationship can recover with nonfeasance
The protective privilege of the doctor-patient relationship ends where public peril begins. Doctors
and therapists have to conform to a reasonable standard of care. A has special relationship to B, duty
to C (Tarasoff). (Patient tells therapist about intent to kill, then kills. Tarasoff v. Regents of the Univ.
of CA, pg. 559)
o Problems include patients being less likely to divulge information, and a shortage of doctors
unwilling to be liable for the acts of their patients.
o Person must threaten a specific person
PART C - CAUSATIONFactual causation – scientific, “but for” causation. “Does the D’s activity have any link to P’s harm?”
Proximate causation – policy determination
Joint and Several Liability – joint tortfeasors
Introduction
o Right of P among several D’s
In Joint liability P’s are entitled to full recovery from each D
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Ex: P sues D1, D1 tries to recover from D2
Several liability – D’s only responsible for their share of fault. Doesn’t matter if one
is bankrupt
Ex: Can only recover 50% from D1 and D2
Joint and Several (J&S) - Remaining D’s have to eat the whole if some D’s are
bankrupt
o Rights between D’s
Contribution
Indemnity
Partial Indemnity
Original rule was pari delicto, D’s could not recover from other D’s who were also at fault unless their
fault was different in kind (indemnity). Indemnity allowed to hold a primary wrongdoer responsible
(Faulty nut injures RR employee. Union Stock Yards Co. v. Chicago, Burlington, & Quincy R.R., pg. 355)
Court decides not to follow Li and abolish J&S in favor of a comparative negligence scheme. Court
allows partial indemnity of D’s on a comparative fault basis. (Boy injured in race. American
Motorcycle Assn. v. Superior Court, pg. 359)
Examples from Restatement (P – 30%, D1 (bankrupt) – 60%, D2 – 10%)
o Pure J&S - P responsible for 30%, D2 pays 70% (D1 + D2)
o Several - P responsible for 90% (P + D1), D2 pays 10%
o J&S with reapportionment - P eats 75% of D1 amount, D2 pays 25% of D1’s responsibility
Rights of D’s among themselves in American Motorcycle
o Intermediate (CA before Amer. Motorcycle)
Contribution – pro rata (divide into equal chunks) – 33%/33%/33%
Indemnification
o Partial indemnification (Amer. Motorcycle)
60%/30%/10%
Settlement options (we didn’t really touch on any cases with this except McDermott)
o Pro tanto – Remaining D’s settle for the remainder of the damages when one D settles
o Pro tanto with contribution – Remaining D’s can sue the settling D to equalize the amounts
paid. This provides no incentive to settle.
o Proportionate – All non-settling D’s pay their fair share and P loses money if she settles low
and keeps windfall if she settles high
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What if you can’t figure out causation? The theory of alternate liability tells us that both are liable
when it can’t be definitively proven which of the negligent D’s caused the harm. In Summers v. Tice
the D’s who accidentally shot at P argues that since they were not joint tortfeasors that they were
J&S liable. This is similar to res ipsa cases (not breach here), although res ipsa is useful in cases where
who breached his/her duty cannot be proven and alternate liability is useful when causation cannot
be proven. (Summers v. Tice, pg. 425)
o Reasons for imposing alternate liability include moralistic reasons (D’s are more culpable
compared to the P), evidentiary ones (adds incentives for D’s to rat each other out) and
incentive ones (if nobody pays, nobody is deterred from being negligent)
Vicarious liability
An employer will be held liable under respondeat superior if the actions of the employee arise out of
the course of his employment. (Ira S. Bushey & Sons, Inc. v. United States, employee who gets drunk
and floods dock)
o Respondeat superior – history:
Vicarious liability refers generally to cases where one person is held responsible for
the wrongful acts of another by virtue of some status connection between them =>
often called respondeat superior => unquestioned acceptance in all common law
jurisdictions
Law today holds both master and servants liable for torts that arise out of and in
the course of employment
o General rule: respondeat superior covers small deviations, but not large ones
As a general rule, no vicarious liability exists for the actions of independent contractors. Vicarious
liability may nevertheless be imposed for the actions of independent contractors when an agency
relationship is established under either the doctrine of apparent authority, or the doctrine of implied
authority. (Petrovich v. Share Health Plan of Ill., Inc.)
Factual Causation – scientific, “but for” causation. “Does the D’s activity have any link to P’s harm?”
If negligence increases the risk of some harm and the harm occurs then we can create the
presumption that negligence caused the harm. In Zuchowicz v. U.S. the P was overprescribed a drug
and developed a fatal lung condition. Even though it could not conclusively be proven whether it was
the drug or the negligence in overprescribing the drug that led to the P’s death the court held that
the D bears the burden to deny the but for cause.
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Traditionally in medical malpractice suits if the doctor is negligent in the care of the patient but the
patient has less than a 50% chance of survival notwithstanding the doctor’s negligence the P cannot
recover. In Herskovitz v. Group Health Cooperative the court allowed a damage award when late
diagnosis of cancer reduced the P’s chance of survival from 39% to 25%. The P was allowed to
recover reduced damages to compensate for his reduced chance of survival.
o If it is proven that harm was more likely than not caused by the D’s negligence then P can
still recover the full amount.
o Enhanced risk
Traditional scheme - >51% 100% recovery, <51% nothing
Herskovitz (Hybrid) - >51% 100% recovery, < 51% proportion of risk
Over-deters
Radical Risk Regime – everyone can sue for their risk, regardless of harm
Kingston: establishes certain rules for simultaneous causes => violates but for causation => Fire A +
Fire B combine and destroy P’s house => If A and B are humans = joint and several liability => human
+ nature = no liability (would have happened anyways) => human + unknown (Kingston) = burden
shifts to A, otherwise joint and several => sequential causes (covered well in Abraham) = first in time
is the cause => but B imposes risks too?! (In tort if you engage in dangerous conduct and nothing
happens you DO NOT pay)
Market Share Liability – Used to assess liability based on market share when:
o All D’s are potential tortfeasors
o The allegedly harmful products are identical and share the same defective qualities P cannot
identify which manufacturer made the product
o Substantially all manufacturers who created the product during the relevant time are Ds
In a market share case featuring lead paints the court found that lead paints aren’t necessarily
fungible because they vary in their levels of bioavailability (different lead compounds), their amounts
of lead and that all relevant manufacturers were not represented because some of them had left the
market. Skipworth v. Lead Industries Assn.
Proximate Cause – policy determination
Introduction – two theories
o Direct
o Foreseeability
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In Ryan v. New York Central R.R. the D negligently set fire to his own woodshed which spread to
another house. The court ruled that the P would not be able to recover because the negligence of
the D was not the immediate but the remote result of their negligence. If the blaze has spread
throughout the city everyone would not have been able to recover from the D. The remote cause of
the negligence wasn’t foreseeable. The court talks about the consequences of allowing everyone to
recover including crushing liability and “insurer” concerns.
Intervening causes break the chain of causation and can reduce the liability of the original negligent
act. In City of Lincoln the court held that acting with reasonable care does not break the chain of
causation and is not an intervening cause. A captain being unable to bring his ship to port using
reasonable care after an accident is not an intervening cause and does not absolve the negligent
actor of liability.
In Wagner v. International Ry. the P injured in search for his cousin who had fallen off D’s train. The
court held that danger invites rescue and the acts of P trying to rescue someone else were not an
intervening cause and didn’t break the chain of causation. P’s actions were a natural consequence of
D’s negligence.
In general, where the intervening actor has greater culpability he is a superseding cause, where the
intervening actor has less culpability he is not => like last clear chance, last really bad actor with ties
will be culpable
In Polemis the D’s agents dropped a plank that started a fire that blew up the ship they had rented
from the P. The explosion was not foreseeable but the court ruled that the damage being
foreseeable didn’t matter as long as it was a direct result of the negligence of the D. The court rules
that as long as you have duty (reasonable care) and breach (dropping the plank) you are liable for any
damages that result regardless of the foreseeability. One there is negligence, the D is liable for all
direct consequences.
Compare that case to Wagon Mound where a ship explodes after welding sparks fell onto an oil spill
and the ship in question exploded. Under Polemis the D (the people who spilled the oil) would have
been held liable for all the consequences of the negligence (namely the explosion of the ship)
regardless of the degree of foreseeability. Here the court ruled that D is liable only for damages that
were foreseeable and probable. The court ruled that the explosion of the ship was not something
that should have been foreseen.
Wagon Mound overrules Polemis
o Are these cases distinguishable by the fact that the P in Wagon Mound sent sparks?
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In Palsgraf v. Long Island R.R. a passenger tried to board a moving train helped by the train’s
employees. In the process of pushing him aboard his box of fireworks drops, explodes and tiles injure
the P on the other side of the station. Court holds that you have to examine duty before anything
else. You can only sue if there’s duty and only win if there’s proximate cause; the two are basically
the same thing. The RR owes no duty to the woman on the platform, only to the passenger boarding
the train. The damage was not foreseeable. The conduct of the guard was not a wrong towards the
P, opposite of Polemis
o Andrew’s dissent says that everyone has duty; duty is general. Proximate cause is practical
application of “but for” causation.
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Strict Liability
Introduction Everything is negligence except for a few things: Trespass to land, McGuire rule for insane
people, escaping things, common carriers, vicarious liability (employer-employee), things in this section (animals, ultra-hazardous, nuisance, products liability)
Animals The rule for wild animals is SL (global negligence, its negligent in an of itself to have a wild
animal). For domesticated animals Gehrts v. Batteen says that if there is knowledge of an animal’s dangerous characteristics it is SL, if there is no knowledge it is negligence standard.
Ultra-hazardous Before Spano v. Perini Corp the rule on ultra-hazardous activities was SL if there was physical
invasion and negligence if there wasn’t (concussions, vibrations, etc). The Spano court ruled that all damage from blasting is SL when the P’s property was damaged by blasting but was not subject to a physical invasion.
Transportation of dangerous chemicals is not in and of itself an ultra-hazardous activity according to Indiana Harbor Belt RR v. American Cyanamid Co. The risks involved can be eliminated by not being negligent and the activity is not inappropriate to location because it would be prohibitively expensive to reroute the shipments away from cities.
In Madsen v. East Jordan Irr. Co. the court held that the D was not liable when blasting resulted in the P’s minks eating their own offspring. The court held that the harm was not within the risk because it was not direct (like Polemis) or foreseeable (like Wagon Mound).
Nuisance Nuisance is a property concept and is on decline. Before the creation of the EPA it was the
primary way to go after pollution. Nuisance is a non-trespassory invasion that detracts from the use of the land. Nuisance law
is applicable to stray voltage when it kills cows because that detracts from the use of the land, even when the landowners purchase the electricity. Nuisance must be intentional, if it is unintentional then negligence laws govern. Vogel v. Grant-Lafayette Electric Coop.
Types:o Intentional nuisance A:
Intentional / knowledge of continuing harm Social benefit < social cost Strict liability
o Intentional nuisance B: Intentional / knowledge of continuing harm
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Serious harm and ability to pay Strict liability
In Rogers v. Elliott (bell ringing case) the court ruled that nuisance must be determined by the effect of the activity on the people generally, not just by its effect on one sensitive person. This doesn’t go against the eggshell skull rule because it just determines liability and not damages. Coming close to a ringing bell is like coming to the nuisance.
If someone doesn’t come to the nuisance but is the nuisance that people come to the court in Ensign v. Walls wouldn’t let the nuisance (here, a dog kennel) stay forever. The kennel wouldn’t be able to stay against the wishes of an entire neighborhood that has sprung up around it.
In Boomer v. Atlantic Cement area residents sued a polluting plant. The court did not grant an injunction because of the economic disparity between the effects of the activity and the injunction. Alternatives to injunction include delayed injunction and awarding of permanent damages. The court here ruled for the payment of permanent damages.
o Isn’t this just punch and pay? Complications to negligence
o Extra-sensitive – benefits need to be measured relating to everyone, individual exceptions would hurt that.
Vosburg relates only to damages, not liabilityo Malice/spite fences
Nuisance under SL because it is unreasonable – fails global cost/benefit analysis
o Coming to the nuisance Majority (no) Minority (yes) – assumption of risk
Allows kennel owner to dictate use forever Purchased injunction
Products Liability MacPherson v. Buick changed the privity of contract requirement for products liability. Prior
to this case (Winterbottom v. Wright was the rule) you had to have privity of contract to sue under products liability. The only exception was for inherently dangerous products. MacPherson allowed a car buyer to sue Buick even though Buick had sold the car to a dealer, not the individual. Cardozo wrote that a product is negligently made than it can be classified as inherently dangerous. He held that it was foreseeable and probable that a car would be dangerous if it were negligently made. You can sue the manufacturer if there’s knowledge that a 3rd party is likely to use it or is there’s no additional testing. Cardozo also looked at the progression of products liability through older cases
o Loop – Lessee of circular saw cannot sue the original seller despite inherent dangerousness because of assumption of risk. The buyer of the saw assumed the risk because he bought it cheaply.
o Losee – The buyer testing the exploding boiler was an intervening cause
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o Devlin – Extension of doctrine, privity of contract not required if product is dangerous when badly built.
o Exploding coffee urn – same extension Escola v. Coca Cola Bottling Co. is best known for Traynor’s concurrence that set the state for
future products liability. Here a bottle exploded in a woman’s hand. The majority said that res ipsa allowed the suit. Traynor’s concurrence would have imposed SL. First, the manufacturer is in the best position to prevent damages (cheapest cost avoider – activity level). The manufacturer can spread the losses among all consumers (problems include lack of incentive to stop and first-party insurance). SL was already in place for foodstuffs, even though the Legislature hadn’t extended the rule Traynor might have. Traynor looks at implied warranty. Finally in looking at res ipsa he notes that nobody, including the manufacturer actually knows what went wrong. He reasons that SL is the solution.
Defects Manufacturing defect – departs from intended design (SL) Design defect – Need a reasonable alternative design. Unsafe because alternative was not
followed (negligence) Warnings
Manufacturing Defects You cannot recover for economic losses under products liability. It is governed by contract,
not tort. Casa Clara v. Charley Toppino & Sons noted the economic loss rule where tort recovery is prohibited when a products damages itself causing economic loss but doesn’t cause injury or damage to any other property. The court applied this rule to the case here where poor concrete fell off a condo and damaged the steel. The court ruled that the condo was one entity and that the concrete and steel were not separate products.
Casual sellers cannot be sued under products liability; they have to be sued in negligence. They can’t loss spread or innovate new methods.
Caffazo v. Central Medical Health Services ruled the doctor is not liable under products liability for prosthesis. The P likens the doctor to a reseller but the court notes previous rules that state that concepts of purchase and sale cannot be applied to healing materials. Generally a seller is SL and a service is negligence. The court ruled that the D failed the four part inquiry for products liability: availability of some entity to redress, incentive to safety, supplier in better position than consumer to prevent the circulation of defective products, and whether supplier can spread the losses.
Pharmacists are not subject to SL because they are engaged in the provision of a service. If there was SL they might not carry some drugs or they’ll raise prices. Loss spreading works fine with large chains but not with small independent pharmacies. Murphy.
Design Defects How do we test?
o Open and obvious (tradition)o Consumer expectation (2nd Restatement) – comes from warrantyo Risk/utility – make it safer cheaply (B) and effectively (PL)o Reasonable alternative (3rd Restatement) – burden of proof on P
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Prefers consumer choice Manufacturers have a duty to protect against reasonably foreseeable things. In VW of
America v. Young the court held that car manufacturers have to protect drivers from “second collision” effects (like the seat breaking off the frame in an accident). Court applies standard of reasonableness. No recovery if danger is obvious to the consumer
o Evans – no design defect because the only intended use of a car is transport, not getting into accidents.
o Larsen – design defect because accidents are reasonably foreseeable The Barker v. Lull Engineering court held that a product is defective in design if: (1) the
product doesn’t perform as safely as a customer might expect or (2) the benefits of the design do not outweigh the danger inherent in the design
The court in Linegar v. Armour of America held that the test for unreasonable dangerousness is the consumer expectation test. This is similar to part 1 of the Barker holding. The vest in question stopped bullets that hit it but obviously did not stop bullets that did not contact the vest. The court also looked at part 2 of the Barker test and noted that the vest allowed mobility and comfort.
The reasonable alternative test can be made more P or D friendly depending on who has to prove what.
When a product operated as the consumer intends it to there is no case, even when its use is deadly. In Halliday v. Sturn, Ruger and Co. the court held that there was no cause of action when a child operated his father’s gun and shot himself with it. The court punted on the need for heavy triggers and other safety measures, deferring to the legislature.
MacDonald v. Ortho Pharm. Corp. introduces the learned intermediary doctrine. A manufacturers duty to warn the end user is interrupted by the doctor’s duty to warn the patient. The doctor is an intervening cause. Here the patient sued the manufacturer for inadequate warning. Here the court said the manufacturer had a duty to warn the end patient because of several factors including advertising, activity of the consumer, lack of meetings between patient and doctor. Also, the manufacturer can foresee that the doctor will fail to warn the patient.
Vassallo v. Baxter Healthcare Corp. changed the duty to warn. In this breast implant case the court ruled that the manufacturer has the duty to warn of known risks and ones that could be known with reasonable testing. (Majority rule)
o Minority rule – D liable for all risks, known and unknown In Hood v. Ryobi the P sued Ryobi for inadequate warnings regarding use of the guards on a
table saw. The court ruled against the P noting that the warning need only be reasonable. The court also looks balances the benefits of requiring more specific warnings against their costs.
o Court, it seems, applies the Polemis rationale. The injury occurred as a direct result of P’s CN act, so Ryobi is not liable.
o The actor’s CN was also an intervening cause in Ayers v. Johnson and Johnson. The jury regardless found for the P and the verdict was sustained on appeal. The court noted that the jury could have found that with greater warnings the P would have taken greater care. Ayers appears to take a Wagon Mound (Harm not within risk, but unforeseeable)
Daly v. GM expanded CMN to strict products liability. Here the P’s CMN was ruled to be a defense to SL when the driver of a car who was drunk got in an accident and the door was forced open. P died. The court ruled that CN/CMN is a defense to SL (majority rule)
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Damages
Three kinds of damages Compensatory (making P whole)
o Pecuniary/economic – hospital bills, lost wages, etc.o Nonpecuniary – pain and suffering
Punitive (deter punishment)
Non-pecuniary damages McDougald v. Garber is a med-mal case, a woman went in for a c-section and came out with
brain damage. The jury awarded separate awards for “pain and suffering” and “loss of pleasures of life.” The court ruled that someone with brain damage can’t recover for loss of pleasures of life because they don’t recognize that they have. The dissent argued that this means that people with more injuries receive less damages.
In Duncan v. KC So. RR the court looked at other similar cases to determine a proper award for non-pecuniary damages.
Punitive damages Kemezy v. Peters is the prosecution of a constitutional tort. It lays out 7 reasons for punitive
damageso 1. Compensatory damages don’t always fully compensateo 2. Punitive damages are needed to deter tortuous conducto 3. Punitive damages are necessary to force people to channel transactions through
the market when costs of voluntary transactions are lowo 4. If an act is concealable, damages equal to the harm underdeterso 5. Punitive damages register public disapprovalo 6. Punitive damages relieve pressure on the criminal systemo 7. Giving redress for minor offenses better than violent self-help
Several of these reasons were included in the discussion of Jacque v. SteenBerg Holmes in class where a mobile home company built a road on someone else’s land. Reasoning: avoids punch-and-pay, quasi-criminal (criminal sanction insufficient, self-help), expressive, compensation for intangible harms, detection, deterrence
Sometimes punitive damages are enormous compared to actual damages in a suit. In State Farm v. Campbell compensatory damages were $1M and punitive damages were $145M. The court noted that it was punishing State Farm for its nationwide business practices. The appellate court looked at the BMW test (not covered previously) to see if the award violated due process. The test is:
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o Reprehensibilityo Ratio of compensatory/punitive damageso Punitive v. civil penalties
Two things came out of the State Farm decisiono Using a “nationwide problem” as a justification for a large punitive damage award
violates due processo Few ratios larger than 9/1 will satisfy due process
Emotional Distress Ordinary case
o Physical harm Physical damages and emotional distress In Wilkenson v. Downton D told P that her husband has suffered serious injury as a joke. P
suffered injury. The court held that since the intent was to inflict emotional distress, which is unlawful, D is responsible for everything that follows.
o It’s the Vosberg of emotional distress cases Restatement on IIED
o Intentional (reckless)o Cause severe emotional distress/physical harm
Reduce number of cases Reduce fraud
Elements of IIED:o Extreme and outrageous conduct
Reasonable person standard Consider situation of individual
o Intent to harm Awareness Garatt v. Dailey issue => intent to act with substantial certainty that harm
will occuro Severe emotional distress or physical harm
You need:o Negligent acto Emotional harmo Proximity requirement
Key concern: without establishing physical/proximity nexus, liability expands too much
Dillon (direct observation): Physical proximity Personal proximity Close relationship
NIEDo Negligent acto Proximity requirement (expands going down)
Suffer physical harm Any impact
Warps the physical harm requirement, using the nudge as a marker to distinguish you from everyone else who wasn’t touched
Zone of danger Dillon v. Legg (close relative who saw injury to child) => Plaintiff can recover for negligent infliction of emotional distress even if he is not within the “zone of danger.”
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