Torts Chamallas 2010

8/13/2019 Torts Chamallas 2010

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b. Adams v. Bullock (1919) Trolleys live wires under a bridge electrocute a child who was twirlinga metal rod on bridge Actions of trolley didnt show unreasonable risk, accidentunforeseeable, no like accident, burden of reducing risk too high

c. US v. Carroll Towing (1947) was barge owner contributory negligent? Holding: bargee was noton board when it was reasonable for him to be, if he had been on boat, could have signaled thatboat was in trouble; burden of bargee being on boat not too great to prevent serious harm thathappened

c. Two tests to determine if actor did not act with reasonable carea. Learned Hand Formula : if B P x L , then liability exists, guides to determine which risk are

reasonable/unreasonable to take 1. This is a cost-benefit analysis using the facts of the case, rarely used2. Shortcomings (1) many harms (human life) are resistant to quantifying (2) formula

not determinative b/c imperfect informationb. Reasonable Person Standard Preferred approach over Learned Hand Formula

1. Characteristics of Reasonable Person no infallible

a.

Focused on conduct of person, not state of mindb. Objective, generalized standard, community norm, not individualizedc. Contextual, must ask reasonable care under the circumstances

2. Standard helps individuality to be considered, yet community wants a standard againstwhich to judge a person

3. Modification to Reasonable Person Standarda. Common Carriers and Inn Keepers : higher standard, if there is any way to make

things more safe, they have to take those measures, liable for slight negligencei. Bethel v. NYC Transit Authority: court ruled no longer high standard of

care, just reasonable care, dont need a higher std, b/c reasonable care

flexible enough to give proper reliefii. Andrews v. United Airlines (1994) luggage fell on passengers head,

common carriers must demonstrate the utmost care, means airlineresponsible for protecting/preventing even smallest risk of injury

b. People with physical disabilities judge disabled person with how others wouldreasonable act with same disability Restatement 11

i. Actor during a period of sudden incapacitation is negligent only ifincapacitation was reasonably foreseeable to the actor

ii. Mental or emotional disability physical disability (mental disabilitiesheld to reasonable care std)

c. Children held to a standard of a reasonably careful person of same age,intelligence and experience (more subjective) Restatement 10

i. Varies between jurisdiction, but children under the age of 5 will mostlikely not be able to be found negligent

ii. EXCEPTION when child engages in an inherently adult activity (drivingcar) as deemed by society

d. Knowledge or Skill If an actor has skills or knowledge that exceeds thosepossessed by most others, these skills or knowledge are circumstances to betaken into account in determining whether the actor has behave as areasonable person


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i. Three criteria to see if employee within scope of employment (need all3)(Christensen v. Swenson (1994)

1. conduct of kind that employee was hire to do2. conduct must be within spatial boundaries and hour of

employment3. serves employer/ benefits employer

2. Employer automatically at fault, fuses strict liability and negligence, based on agencytheory, employee is agent of employer called respondant superior

a. Exception to rule: when employee acts with intentional misconduct3. Roessler v. Novak Hospital and radiologist, who is an independent contractor. who is

considered an employee?a. Three elements of apparent authority/agency

i. Representation by the purported principalii. Reliance on that representative by a third partyiii. Change in position by the third party in reliance on that represent to

third partys detriment b. Non-delegation duty: hospitals duty to provide a service, sole -provider cant

delegate to another company, stricter form of vicarious liability, no jury if thisapproach is used

e. Parents are not vicariously liable for their childrenf. siblings are not vicariously responsible to each other

e. Physical Harm: Duty Requirementsa. Two types of harm

misfeasance nonfeasance

What is D doing? Active creation of risk of harm Failed to prevent harmDuty? Duty to use reasonable care no duty

Exception to Rule? In extraordinary cases, wherepublic policy suspends duty oflimits duty

1)D has special relationship to P2)voluntary assumption of duty3) D has special relationship to X,who caused harm to P4)statute allows courts to give aprivate right of action

b. Nonfeasance

1. No Duty Rule Restatement 37 : An actor whose conduct has not created a risk ofphysical or emotional harm to another has no duty to care to the other unless a courtdetermines that an affirmative duty (38-44) is applicable

a. Decided by the court if a person has a duty to another2. EXCEPTIONS to No Duty Rule, called Affirmative Duties

a. Special Relationship between P and D Restatement 40 i. Special relationship usually exist when other person deprive of normal

opportunities of self-protection (superior knowledge of dangers is notsufficient to trigger a duty to protect)

ii. Types of Special relationships Not exhaustive


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1. Common carrier and passengers2. An innkeeper and guests3. A business or possessor of land that holds its premises open to

the public with those who are lawfully on the premise4. An employer with its employees, limited to situations where:

a. Criminal attack of employee while at workb. Illness and injury of employee while at workc. Cases not covered by workers compensation

5. A school with its students6. A landlord and its tenants (based on contractual duties)7. A custodian and those who have custody if (1) law requires

custodian to have custody (2)custodian has a superior ability toprotect others

a. Examples: day-care, hospitals, nursing home, camps,parents, jailer-inmate

8.

Social relationships, friendship from Farwell v. Keaton iii. Dangers have to arise in scope of relationshipiv. Harper v. Herman (MN, 1993) D did not warn P of shallow water,

court says no special relationship between P & D, so no duty to warnb. Non-negligent injury Duty to avoid enhancing harm

i. If D knows his conduct has cause harm and has made P helpless and indanger, then D has duty to exercise reasonable care to prevent furtherharm

c. Voluntary assumption of duty duty triggered when person starts rescue i. Person who voluntarily helps another is under a duty to act like a

reasonable person throughout the duration of that assistance 1. Good Samaritan Statutes: statutes exempting licensed doctors,

nurses etc, who voluntarily render emergency treatments formliability for ordinary negligence, liability still for gross negligence

ii. Farwell v. Keaton (1976): friend gets in fight, other friend gives him iceand leaves him in the car outside his house, V dies from brain injury,expert testimony concludes if V would have had medical attention rightafter accident would have lived

d. Creation of a Duty from a Statute : Implied Private Cause of Actioni. Narrow use, takes more for a court to allows a statute to establish a

dutyii. Uhr v. School District (NY, 1999) failure to give statute mandated

scoliosis test, P asking to borrow a statute to establish a duty/privatecause of action, Court denied b/c legislature immunized school districtsfor policy reasons Test if should allow private right of action)

1. Is P from class of people statute trying to protect?2. Would a private action promote legislative purpose?3. Would creation of right be consistent with legislative scheme?

3. Duty to Third Person based on Special Relationship with Person Posing Risk Ds failureto act that enabled/facilitate Xs act, which causes Ps harm


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a. Generally two conditions must be satisfiedi. D had actual ability and authority to contro l third persons actions and

ii. D knew or should have known that 3 rd person likely to cause harm1. D usually nonfeasance, X usually misfeasances

b. Restatement 41: Duty to Third Party, types of Special relationship (that giverise to a duty)

i. Parent with dependent children ii. A custodian with those in its custody iii. An employer with employees when employment facilitates the

employees harm to third parties iv. A mental-health professional with patients

c. Randi W v. Mroc Joint Unified School District (1997) : X (vice principal) sexuallyassaults P, who is suing D, the former employers of X, who wrote positiverecommendation for X, P argues D posed an unreasonable risk of physical harmto children. Duty? D only has a duty to not misrepresent; if choose to disclose,

must fully disclose, Court said D misrepresented informationi. CA Standards for imposing a Duty

1. Foreseeability of harm to P2. Degree of certainty that P will suffer an injury3. Closeness of connection between Ds conduct and Pinjury 4. Moral blameworthiness of D5. Policy of preventing future harm6. Extent of the burden on D7. Consequences on the community of imposing a duty

d. Tarasoff v. Regents of USC (1976) D counseling therapist, who patients told

him he would kill his gf and patient did, P (gfs parents) are suing D for patientsactions, MD has relationship with X, has an ability to control X, has a duty togive a reasonable warning based on foreseeability of harm

c. Limited Duty for Misfeasance 1. Restatement 7 (b): In exceptional case, when an articulated countervailing principle or

policy warrants denying or limiting liability in a particular class of cases, a court maydecide that the D has no duty or that the ordinary duty of care requires modification

2. Public Utility Providers: limited duty for public policy reasons a. Strauss v. Belle Realty (NY, 1985) : P injured in common area of apt, during a

blackout in NYC, caused by Ds (utility provider) gross negligence, landlord has

contract with D for electricity in common area, Court limited Ps recovery b/c hedidnt have a contract with D

i. Set precedent to limit actions against utility to only those Ps that havecontract with D

3. No liability for social host, but liability for commercial vendors a. Reynolds v. Hicks (1998) Does P have cause of action against D for serving X,

a minor alcohol and X causing a drunk driving accident as a result? No duty b. If X an intoxicated adult, D no liability ( Burkhart v. Harrod )c. If X a minor, but X was injured, D liable ( Hansen v. Fried )


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4. Negligent Entrustment : D knowingly provides a dangerous instrumentality for X tocause harm

a. Usually based on a borrowing circumstance b. D must have some kind of notice that X is dangerous or have good reason to

believe that X will do something dangerous with objecti. Dangerous aspect could be Xs age

c. Can create a liability to a third person, but may also be between P and D Example: D allowed P to borrow his car while P was drunk

d. Vince v. Wilson (VT, 1989 ) D, great aunt gives X (bad nephew) money to buy acar, P gets hurt as a result of Xs driving, X has a history of bad driving, D shouldhave foreseen harm nephew could cause

e. Gibbons v. Kasey (CA, 2007) D has oxycotine and knows it is dangerous withalcohol, brought to a holiday party, gave to gf of co-worker, co-worker takesthem and dies

5. Charities are immune from torts (old rule)

6. Landowners and Occupiers : variable immunity based on status of land entrant a. Rules kick in if you posses land, dont necessarily have to own it b. Duty of Possessors to Those off their premises

i. Rule: Landowner owes no duty to neighbors for any natural orartificial conditions on land

ii. Exception: Unreasonably dangerous conditionc. Traditional common law duty of care to entrant depended on entrants status ,

judge decides entrants status, status can change over time i. Trespasser comes onto land without permission or consent

1. Unknown trespasser: no duty, no willful of wanton conduct (ex:

setting traps) 2. Known trespasser: duty to warn against artificial conditions in

land, no duty to warn against natural conditions ii. Licensee residual category, non-trespasser, non-invitee; social guest,

family members, and mail carriers, have permission to be on land1. Duty: duty to warn of known and blatant dangers (both natural

and artificial) 2. No expectation that the land would be made safe for them, no

duty to make premise safe3. Has to be foreseeable that P would enter into land (UPS driver

dropping off box and neighbor using bathroom)iii. Invitee : enters land upon request by landowner

1. Two Types look if invitee gave D some kind of benefita. Public : invited to enter to land held open to publicb. Business : enter land with purpose of conducting

business dealings with possessor of land or confereconomic advantage to owner


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2. Duty: duty of reasonable care to protect against known dangeror danger they should have known, duty to inspect forunknown dangers and correct danger

3. A person loses privilege if harm done beyond the scope of herinvitation, D might not be liable, foreseeability of P getting hurt

d. Modern/ Nebraska approach: collapses invitees and licensees into one categorywith a reasonable standard of care, most worried about trespassers

i. Heins v. Webster County (1996) : hospital claims P was licensee, socialguest, not patient, owned no duty to warn him of unknown puddle atentrance of hospital

e. Restatement approach collapses all three entrants into reasonable carestandard called ordinary trespassers Restatement 52 MOST LIKELYTREATMENT

i. Owes duty of reasonable care in regards to1. Conduct of land possessor

2.

Artificial and natural conditions on landii. creates a fourth status of flagrant trespassers: duty not to act willfully

or wantonly to cause harm (limited duty), definition of flagrant left to jurisdiction

1. Duty of reasonable care if person is helpless or unable toprotect themselves

iii. Types of Precautions (not from case law)1. Durable: warning that remain in place, lower risk overtime,

high burden2. Transient: oral warnings, given in space and time then vanish

f. Carter v. Kinney (MO, 1995): P attending bible study class at Ds house, Pslipped on icy steps, Court held P was a licensee b/c D received no financialbenefit for class and class was only for church members

g. Duty to Third Party based on Land Posessori. Posecai v. Walmart Stores ( 1999) P (customer) sues D (store) for harm

caused by X (robber) in the parking lot of Ds store , Walmart had notduty

1. Four approaches to foreseeability of harm on landa. specific harm D must be aware of harm, narrowb. prior similar incident test prior incident must have

happened on premises to put D on noticec. totality of circumstances prior similar incidences and

factors that may bear on if crime likely to take place*d. Balancing Test foreseeability of harm against the

burden of imposing duty t protect against criminalactivity

h. Exception: Recreational Land the landowner is not liable for injury unlesslandowner willfully or maliciously failed to guard against or warn of a dangerouscondition on land, based on public policy

7. Parental Immunity: parents cannot be liable in tort cases initiated by their children


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a. Rationales for parental immunity: domestic tranquility, disturbs parent-childhierarchy, fraud; Courts have begun to quantify immunity

i. Parents have duty to child to dont create harm for child and protectagainst possible harm

b. Discipline privilege: (@ common law) parents allowed to use reasonablediscipline

c. Broadbent v. Broadbent (AZ, 1995) 3 approaches to parental immunityi. Wisconsin / Goller Approach no parental immunity, unless suit

involves parental authority and negligence occurs within the exercise ofordinary parent discretion

1. Includes food, clothing, shelterii. NY immunizes parents in mere negligence supervision cases, broader

immunity, must be actually supervisingiii. Arizona reasonable parent standard, a lower standard of care (most

accepted

d.

Protects parents against direct and indirect actions, parent can raise immunity ifthird party action against child, if negligence claim within scope of parentalduties

f. Nonphysical Harm: Duty Requirement a. Emotional Harm

1. Victim type P must be within the Zone of Danger or meet Bystander rules a. Direct victim: if P in fear of her own safety, in the zone of dangerb. Indirect victim: not in zone of danger but witness event

2. Distinguishing harm

a. Physical harm manifested from emotional distress, can recover for both apply Restatement 7,

b. If serious emotional or mental harm without physical harm applyRestatement 47

c. If emotional harm cause by witnessing anothers harm apply Restatement48

b. Some courts still require a physical manifestation of emotional harm to gauge seriousness,medical technology has eroded this requirement *** analyze under both zone of danger andreasonably foreseeable

c. Direct Victim1. Judge-made tests for recovery for emotional harm, depends on jurisdiction

a. Physical-impact rule : if no physical impact upon P, there can be no recovery forbodily injury (from emotional harm) rule mostly gone

i. P must have physical contact from D even if trivialii. Two exceptions

1. P received mistaken telegram telling them a loved one died2. Miss-handling of corpses; negligently handled

b. Zone of Danger


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i. Falzone v. Busch (NJ, 1965): near -miss case, P sitting in car, husbandstanding in a field, hit by D, Ds car heading straight toward her, Palleges physical injury/illness from fear

1. Holding: If negligence causes fright from reasonable fear ofimmediate personal injury, injured person may recover

2. Zone of Danger testa. P must sustain a physical injury as a result of Ds

negligent conductb. P must be in immediate risk of physical harm

c. Restatement 47 : requires serious emotional/mental distress i. Restatement 47(a) places other in danger of immediate bodily

harm and emotional harm results from danger 1. Courts will not give recovery to super-sensitive P

ii. Restatement 47(b) each jurisdiction determines specifiedcategories of activities, undertakings and relationship that are especially

like to give risk to emotional harm, NO foreseeability d. Reasonably foreseeable (very liberal approach) situations where emotional

harm is reasonably foreseeablei. Dont have to be i n zone of danger

ii. Gammond v. Osteopaths Hospital (1987) P received his deceasedfathers personal items and found a severed leg in bag

1. P & D had a special contractual relationship, applied to specialrelationships where a party is especially vulnerable

iii. Court said people have right for legal protect with psychic well-being asmust as physical

2. No recovery for emotional distress causes by fear of future injurya. Metro-North Commuter RR Company v. Buckley (1997) : P was exposed to

asbestos from job, not showing symptoms, but being medically monitored,suing for emotional distress from the fear of developing cancer

i. no recovery because physical contact does not include mere exposurethat might manifest later into a disease

b. This area of law is developing, Sup. Court has drawn line and said that diseaseneeds to physically manifest itself to have recovery

c. Might be exception if the period between exposure and determination ofdisease is short

d. Indirect Victim1. Bystander Situation serious emotional distress due to witnessing bodily harm/injury

to a third persona. The person who was injured must also have a tort case before bystander can

sueb. Threeapproaches to bystander recovery

i. Restrictive approach (NY Courts), no recovery for emotional harmunless P is in zone of danger

ii. Liberal approach recovery if emotional harm is reasonablyforeseeable, Dillion Guidelines (pre-requisites to recovery)


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1. (1) P located near the accident2. (2) harm is a reaction from P viewing accident3. (3) did P& V have a relationship (family/close relative)

a. Can use functional (brother-like relationship) or formal(actual brother)

4. Bystander must witness V dying being seriously injured5. Portee v. Jaffee (NJ, 1980) P witnesses child suffering and

dying as he was caught in Ds elevator, P suffered depression asa result

iii. Restatement 48 : follows liberal approach, takes a formal approach1. An actor who negligently causes (1) sudden serious bodily injury

to a third person is subject to liability for (2) serious emotionalharm thereby caused to a person who:

a. (3) Perceives the event contemporaneously andb. Is a close family member of the person suffering the

bodily injury c. Johnson v. Jamaica Hospital (NY, 1984) hospitals negligence caused baby to

be abducted for four months, parents sue hospital for emotional distressi. no recovery for zone of danger, nor liberal approach (parents not there

when abduction happened, no sudden serious injury of baby)2. Alternative to Bystander claims: Loss of Consortium: intangible loss of companionship,

relationship damaged as a result of Ds negligence a. Very restrictive application b. Few courts allow parents to sue for loss of consortium when child injured

g. Medical Malpracticea. P challenges the quality of treatment receivedb. Doctors held to reasonable doctor standard objective community norm

1. Customs play a larger role, court has given the medical community the ability to settheir own objective reasonable professional std.

2. P must do two thingsa. The relevant recognized standard of the medical care exercised by medical

community (establish through expert testimony)b. Show D parted from this std. while treating P

c. Expert testimony - used to establish what a reasonable doctor should have done1. Exception: if negligence with in common knowledge , then dont need medical

testimony (sponge left in stomach while operating)2. Expert have same speciality/expertise/ knowledge level of Dr. D

a. Sheeley v. Memorial Hospital (RI, 1998) expert accused of beingoverqualified to testifyCourt says Dr. Leslie board certified is enough

3. Locality rule: judge-made requirement that physicians who testify be from similar areaas D, expert outside of community couldnt speak to community norms

a. Out-dated rule, standard of medical practices now nationalized4. Content of Expert testimony for two different scenarios

a. If have direct evidence of negligence improper procedure/practice


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b. If no direct evidence accident usually doesnt happen in this procedure i. States v. Lourdes Hospital (NV, 2003) res ipsa applied to medical

malpractice 1. Expert testimony established requisite res ipsa unless doctor

was negligent an accident like this does not usually occur, willhave dualing expert testimony

d. Informed consent 1. P claims doctor did not disclose risk of procedure, which left P unable to make an

informed decision on treatmenta. Based on patients autonomy, choice of treatment ultimately patients

2. Types of claims under informed consenta. P claims that risks where insufficiently explainedb. Misrepresentation of Drs credentials and experience c. Health care provider disclosing comparative facilities of providers

3. Two part test

a. Did Dr. failed to disclose a material (significant) risk? Would a reasonablepatient have wanted to know risk? (Objective)

b. P must prove causation, If I had know x, I would have opted for anothertreatment (subjective)

i. Comes from testimony of P, covered by hindsight bias ii. Hard to win case if patient wanted to choose a more risky treatment

4. earlier patients consent maybe withdrawn , while there is still time to adopt analternative course of action or if there is a change of circumstance that requires newconsent Schreiber v. Physicians Insurance Co. of WI (1999)

5. Matthies v. Mastromonaco (NJ, 1999) allowed both invasive and noninvasive

procedures to come under informed consent claima. P claims Dr. did not disclose the option of surgery compared to bed rest with

her hip injury, inadequate amount of informatione. Wrongful Birth and Wrongful Life Limited Recovery, special case

1. Prenatal injuries: focused on the harm done to baby in womb, different from wrongfulbirth

a. Dr. negligence in producing harm, court knows harm done by negligence2. Typical cases must check state statutes due to cause of actions relations to abortion

a. Tort based on procreative choiceb. Wrongful birth: mother or parents sue for denial of reproductive choice

i. Wrongful pregnancy: negligent Sterilization case1. Emerson v. Magendantz (1997) : child not wanted for economic

reasons, child born with congenital defecta. damages for unhealthy v. healthy unwanted baby

i. Healthy baby: get only #1 damagesii. Unhealthy baby: get #1-4 damages (as long as

Dr. is put on notice for reasons child notwanted)


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ii. Non-healthy child birth: Prenatal testing that reveals disease, nevershared with P, violation of informed consent like wrongful death

c. Wrongful life : child is P, claiming he/she would have been better off not beingborn, short painful lives due to disease

i. Courts often deny damages b/c cant gauge value of non -existence3. Types of Damages

a. (1)Unwanted pregnancy damages Cost of resterilizing, Cost of ineffectivesterilization process, Pre and post natal costs, Lost wages, Loss of consortium

b. (2)Emotional distressc. (3) Child-rearing expensesd. (4)Extraordinary care expenses (unhealthy child)

4. most states only give recovery for the consequential damages Harm in these cases isalso a benefit (being a parent) and could have mitigated damages by giving baby up foradoption or abortion, but P didnt

f. Causation: Loss of Chance of recovery caused by Ds conduct

1.

Good data in medical community on peoples chance of recovery, damages notspeculative

a. harm = loss of a chance, not death or injury2. Courts willing to apply to non-fatal situations3. Alberts v. Schultz (1999) : had infect in leg, went to two Drs, P claims he could have

saved legs (by doing proper tests), but Drs prevented him and leg had to be amputateda. CIF problem: P could not prove his leg would have been able to be saved had

tests been timely administered4. If you lose more than 50% chance of saving whatever, then Courts more willing to grant

full recovery because it is more-likely-than-not (preponderance of evidence) that loss

due to Dr s negligencea. Loss of chance from 80% to 40%, no death no recovery (40% difference)b. Loss of chance form 60% to saving leg to losing leg (0% of saving) recovery

IV. Breach of Dutya. P has burden of proving

1. Show that Ds behavior was unreasonable (Reasonable Person Std)2. Indentifying the precaution(s) D should have adopted, can hugely impact case (Learned

Hand Formula)a. What is would have been reasonable for D to do?b. Ps case will most likely focus on one part of Ds conduct, not Ds entire activity

b. Two types of evidence1. direct : eyewitness, documentary2. circumstantial : use certain known facts to infer another set of facts

a. Negri v. Stop n Shop (NY 1955) : all based on duty of employee to clean up spillswithin a reasonable time frame, case turns on how long baby food was there,sufficient facts (baby food messy) for a jury to make inference of time


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b. Gordon v . American Museum (NY, 1986) : is there enough evidence to provevendor had constructive notice of liter? Not enough to prove that paper Pslipped on was specifically from D.

i. Constructive notice: a defect must be visible and apparent and mustexist for a sufficient length of time prior to the accident, permittingemployee to clean it up

ii. Business practice rule: no constructive notice needed for a businesspractice that creates a reasonable foreseeable risk of harm

c. Defendants Conduct is measure by 1. The Role of Custom weight of negligence = some evidence, may or may not be

enough evidence to go to jury a. Custom: a community norm, industry norm, wide-spread practiceb. If custom done by a lot of people, the more feasible that precaution

could/should have been takenc. Custom is not conclusive of defendants negligence Trimarco v. Klein (1982)

i.

Deviation from custom only a factor jury can take into account2. Negligence per Se: Violation of a Statute conclusive of negligence

a. Legislature has more authority than regular personb. Exception to the Rule 15 Restatement

i. If it is reasonable for party to violate the statue under thecircumstances

1. Telda v. Ellman (NY, 1939) two junk dealers walking withtraffic because it was thinner in that direction, hit by a car. Astatue calls for them to walk against traffic. Violation of statuedoes not bar recovery b/c if would have been more dangerous

for them to abide by the statute than notii. Violation by license holders not admissible, no standard of care to

borrow, either have it or not situation, various reasons why person maynot have licenses Brown v. Shime (Dr doesnt have PA license yet)

iii. Federal regulations not negligence per se b/c it establishes minimumstandard, not always reasonable

3. Res Ipsa Loquitor: the fact the accident occurs, shows D negligence , the thingspeaks for itself

a. mysterious case GAP IN EVIDENCE, no explanation other than, not clearlynegligence case

i. common sense allows an inference between the fact the accidenthappened Ps negligence

ii. evidentiary aid for Pb. Three elements must prove in res ipsa to send to jury from Restatement

i. Type of accident that doesnt normally occur without someonesnegligence (most contested criteria)

ii. D in exclusive control of instrumentalityiii. P did not contribute in a causal way to own harm

1. Always ask what probably cause the accident


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c. Restatement Test 17: The factfinder may infer that the D has been negligentwhen the accident causing the Ps harm is a type of accident that ordinarilyhappens as a result of the negligence of a class of actors of which the D is arelevant member

d. Bryne v. Boadle (Eng, 1863) barrel of flour fell on P from Ds warehouse;barrels were in Ds possession, so most likely accident happened because of Dsnegligence

i. Evidentiary aid for P, allows P to prove facts of evidence that is enoughto raise an inference of negligence

e. Must still ask if D lacked reasonable care under circumstancesi. Larson v. St Francis Hotel : P walking by hotel and something fell from

window, most likely a guest threw something out of window1. Hotel has duty to act like reasonable proprietor, hotel could

prevent accident by taking extreme measures (nailing downfurniture, barring windows)

f.

McDougald v. Perry (FL, 1998) gap in evidence: why did the chain holdingthe spare tire under the truck come loose? Issue : kind of case where Dsnegligence most probably explanation of negligence, sent to the jury, sayspermissible to make inference of negligence

g. Multiple Defendants Rule: where there are more than one person in control ofinstrumentality, res ipsa loquitur generally may not be used

i. Narrow allowance of res ipsa for medical malpractice cases1. Ybarra v. Spangard (CA, 1944) dont know how harm

occurred or who caused injury. P went into appendix surgeryand came out with shoulder injury, most likely from being

improperly placed or handleda. Court allows res ipsa because P was unconscious,

special situation, no Ds would take responsibilityii. Conspiracy of silence: reluctance of professionals to point finger at

someone else, all Ds silent on what happened

V. Cause in Facta. Restatement 26: Conduct is a factual cause of harm when the harm would not have occurred absent

the conduct.b. Restatement 27: (Multiple Sufficient Cases) : If multiple acts occur, each of which under 26 along

would have been a factual cause of the physical harm in the absences of the others, each is regarded as

a factual cause of the harm c. General Overview

a. Main function: show connection between Ds negligence and Ps harm , influenced by publicpolicy and courts judgment

b. Use but -for test always use except when multiple causes1. Counter-factual test : If D hadnt been negligent, would Ps harm still have occurred? If

yes, then D not a CIFa. Explain the whole causal chain

2. Multiple Causes: use substantial factor test


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c. Not looking for THE CIF, but looking for a CIF; civil action requires reasonable certainty, notabsolute

d. expert testimony required with medical malpractice, toxic substances and environmental tortcases

1. Zuchowicz v. US (1998 ) Dr. admitted to giving woman excessive dose of a drug, Pbecause pregnant, died from getting PPH Issue: no medical studies to show casual linkbetween drug & PPH

2. Daubert Case: Supreme Court determined that trial court judge plays gatekeeper role by deciding whether expert testimony is scientifically valid and permissible (made ithard to get expert testimony in court) Criteria:

a. theory tested by scientific methodb. theory or techniques subjected to peer reviewc. potential rates and error of theoryd. is theory generally accepted in community

e. Two types of causation/evidence

1.

General causation: sufficient evidence to prove that something is the type of action thattypically causes harm

2. Specific causation: the particular harm caused from a particular action, must show directcause, rule out possible alternatives

a. Stubbs v. City of Rochester : P drinking contaminate water @ work, developstyphoid fever, Issue: proving specific causation -- the citys water was the causeof Ps typhoid fever and not some other thing that causes typhoid fever

f. Multiple Causes substantial factor test : only use when converging causal contributing factors,each sufficient to cause harm

1. Courts willing to say if Ds actions greatly increase the chance of something happening

and that thing did in fact happen, then causation, will vary from court to court and onfacts of case

g. Multiple Defendants 1. If 2 or more Ds acting concurrently and in concert (tortfeasors work together) to produce

single injury Courts legally make one D, Courts have kept joint and several liability2. If 2 or more Ds have successive and independent harms

a. Initial tortfeasor liable for entire damagesb. Successive tortfeasor liable for injury caused by aggravation

3. 2 or more Ds act neither in concert nor concurrently could be considered jointly andseverally liable b/c Court cannot practically divide/allocate liability

a. Summers v. Tice (1948) : both D hunting quail, fired in Ps direction, hit Ps eyeand lip, could not tell whose shot hit P b/c Ds had same shot gun --no way toassign liability

i. Court shifts burden of proof from P to D, D must prove the other D wasmore liable than he, If cant prove then joint and several liability eachpays 50% of damages

4. Issues with co-tortfeasorsa. Absent tortfeasor : fault cannot be reduced by blaming an unidentifiable party,

can blame if D proves another party involved/influence affectedb. Immune tortfeasors : can allocate some blame on non-parties if prove causation


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c. Nondelegable duties : parties liable, but can recover from other Dh. Market Share Approach : market shares of company determine percentage of liability

1. Product must be fungible (interchangeable), pose same risk, universal harm fromproduct

2. Can prove a certain group was negligent, but cant prove who specifically was negligent 3. Hymowitz c. Eli Lilly (1989): EES prescribed to women to prevent miscarriages, greatly

increases likelihood that daughters will get cancer, had long latency period, EES notpatented, everyone produce generic drug, similar ingredients

a. Holding: shares indicate how many much of a manufacturers pill was out on themarket at that time, only several liability

VI. Proximate Causea. @ Issue: when something is too outrageous, something strange in cases, hard to attach liabilityb. f ocused on limiting Ds liability based on public policy, fairness reasons; nothing to do with causation c. Two test available

a. Common Law Test 1. What is the most easily associated risk with activity? What is the foreseeable harm?

a. Generality of harm matter 2. What harmed actually occurred?

b. Restatements Test : Scope of Liability, What are the risks that made Ds act negligent in the firstplace ? What harms actually occurred?

d. Unexpected Harma. Egg-shell plaintiff rule: D must take P as you found him, D liable for entire amount of damages

of Ps harm1. Unforeseeability at the degree of harm done to P, doesnt affect liability 2. Might not be applicable for a mental condition

b. Second Harm : P suffers a second injury in addition to first, greater injury in sum than first wouldhave given D still liable

1. Example: P taken to hospital after D initially injured him, Dr. medically aggravated injurydue to malpractice, D liable because could foresee taking P to hospital and harmpotential occurring

2. Medical help usually not negligent as long as within scope of aid 3. Restatement 35 : D liable for any enhanced harm P suffers due to the efforts of third

persons to render aid reasonably required by the others injury, so long as enhancedharm arise from a risk that inheres in the effort to render aid

c. Superseding cause : intervening causes that serve to negate Ds liability 1. Background conditions for negligent act, not superseding forces2. Unforeseeable intervening cause is not always a superseding cause

a. Example: Hospitals are usually not superseding forcesd. Direct Causation Approach

1. TEST for PC If no independent forces intervene in between Ds tortuous act and Psharm, then D liable for foreseeable and unforeseeable damages caused by his negligentact


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2. Polemis Case (1921) deckhands moving cargo, knock a board down in haul, board sparksa fire, causing ship to go up in flames

i. Expected harm property damage in haulii. unexpected harm spark and fire: different type of damage than

would expect, D still liableb. Plaintiff-friendly, rejected by Restatement

e. Foreseeability Test: D liable for only the foreseeable harm of his negligent actions1. Wagon Mound (1961) : Oil spill in harbor, P is wharf owner, welding someones ship,

assessed oil spill thought it was safe to continue, cotton piece in water caught on fire,wharf damaged

a. Foreseeable type of harm: property damage to boatb. unforeseeable type of harm: fire b/c in waterc. Holding: Overruled Polemis, D should be liable for only foreseeable harm/risk,

can only punish what is foreseeable2. If result is unforeseeable then D is not liable

f.

Restatement29 Scope of Liability Test 1. Risk and liability is limited to those harms that result from the risk that made the

actors conduct tortuous (negligent in the first place) 2. Test: Asking if type of risk within the scope of the risk of the negligent act

a. If Ds tortuous act does not general ly risk of harm (aka applying morereasonable care will not chance of risk happening) then not PC Restatement30

3. How you define the risk matters, general or specific risk, argumentation matersg. Kinsmen Case unforeseeable manner of harm, doesnt preclude PC finding

1. Situation: Boat A came loose from dock from failure of deadman device, shipowners

failed to ready anchor, Boat A ran into Boat B, waters really icy, floated down river, raninto a drawbridge that was down, created a damn that flood the land on the shore, Pswere landowners

2. Type of damage: Ship damage & property damage, actual damage of same general sort,but happened in bizarre way

a. Example: rotting pole, car runs into it and pole falls on heri. Type of harm: pole falls on someone

ii. Manner of harm: pole falls when car hits ite. Unexpected Victim Restatement 29(n) cant see any type of damage happening to P

a. Palsgraf v. Long Island RR Co (1928) unforeseeable Plaintiff, eye of ordinary vigilance ( zone

of danger) 1. D helped passenger onto train, knocked a package from his hands, pkg. contained

fireworks, landed on track, explosion cause the scales of the roof to fall several feetaway onto Ps head

a. most easily associated risk: package and contents destroyed from Ds negligentconduct of helping passenger on train

2. Holding: no negligence to P because D didnt have a duty to P, NO DUTY case, only dutyif she was in a foreseeable zone of danger, P too far away from scene of Dsnegligence


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a. If found that D did have duty to P, then D is liable for any type of harm thatinjures her

b. Justice Andrews Approach: Dissent in Palsgraf characterized case as PC case1. Says that D owes a duty of care to anyone who suffers injuries as a proximate result of

his breach of duty to someone, P is part of greater public2. Multi-factor test

a. Was Ds act a substantial factor in bring about the harm? b. Is there a direct connection without many intervening causes?c. Is cause likely to produce result?d. Could result have been foreseen?e. Is result too remote in time and space from cause?

3. Hindsight Test : now that we know what happened, do we still look at the result withsurprise (shows extraordinary circumstances)

c. Restatement 29 (n) applies Who is at risk of being hurt by the tortuous conduct of D?1. Example: In Palsgraf, wou ld says package was at risk of being hurt by Ds negligence,

not woman standing a bit awaysd. Special Case for Rescuers: Rescuers are always foreseeable as a matter of law, based on public

policy reasons Wagner v. International RR (1921)

VII. Defenses (to negligence)a. Affirmative defense: P maybe right, but nevertheless claim should be defeated/mitigated because of

Ps conduct a. Occurs after Prima Facie case for Ds negligence, D must make a prima facie case for Ps

negligence, must prove all elements,1. P has same standard of care reasonable person

b. D has burden of proof to prove Ps negligence b. Plaintiffs Fault if P had not done negligent act, would accident still have occurred anyways? If no, then

P had fault.c. Contributory Negligence: P barred from any recovery, if D can show P used sub-standard conduct or

negligent used at Old Common Lawa. Cant say that P should have known something was dangerous b. Contributory negligence can be established through a violation of a statutec. Rescuers cannot be contributory negligent in an attempt to rescue, unless attempt done

recklessly under the circumstancesd. Comparative Negligence:

a. Types of Comparative Fault1. pure comparative fault : party recovers the %-tage of fault of tortfeasor2. Modified I comparative fault : If Ps fault > Ds fault, then no recover, D might be able to

recovera. If multiple Ds have to look to statute to see if you can aggregate the entire fault

of all Ds3. Modified II comparative fault : can only recover if Ps fault is less than Ds fault

(triggered with tied fault situations where it is 50-50%), neither party can recover


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b. Special Rule: no comparative negligence in medical malpractice, when Dr. trying to maximizepossibilities/chances of survival of patient Fritss v. McKinne (1996) , public policy driven rule

1. Dr only responsible if a reasonable Dr. could have avoided the same result under thecircumstances

c. Most jurisdictions have abolished implied assumption of risk with advent of comparativenegligence

1. Davenport v. Cotton Hope Plantation (1998) : P fell from poorly lit stairwell inapartment complex, knew stairwell was dark and had other stairwells he could havegone done

a. Holding: Court kept expressed A/R as bar to recovery, but implied A/R mergedwith comparative negligence, no bar to recovery, but comparative negligence

b. D assumed risk, negligent and unreasonable to go down middle stairwayd. Ps negligence is taken into account even if Ds conduct is willful or wanton or reckless

e. A/R and Contributory Negligence some overlapa. P dashes across High Street, unreasonably risky behavior, voluntarily takes risk: both A/R and

Contributory Negligence b. absent-minded person crosses a busy street, oblivious to cars cant appreciate nature of risk of

crossing busy street, unreasonably risky : Contributory negligence, but not A/R c. P knows risk, appreciates magnitude and it is reasonable to take risk (saving a baby from a

burning fire ) A/R no Contributory negligence f. Assumption of Risk very narrow defense because total bar to recovery

a. Reasonable assumption or risk should never bar recoveryb. Express Agreements signed written agreements or oral (see a lot with ski resorts)

1. Two-part test for validitya. Look at if release/agreement is clear?

b. Is agreement against public policy?i. Tunkl Case Factors : test for public policy interest

1. D performing a service of great importance to public essential? 2. Activity open to any member of public?3. D has bargaining power in K4. Standard adhesion K?5. P under control of seller?

2. Most states, if D makes out expressed A/R, no recoveryc. Implied Assumption of Risk must look at Ps conduct, voluntary participation in conduct

1. 4 requisites for the defense

a. P must have knowledge of facts constituting a dangerous conditionb. P must know condition is dangerousc. P must appreciate nature and extent of dangerd. P must voluntary expose himself to the danger

2. Focuses on Ps actual knowledge at the moment, not what P should have known d. Murphy v. Steeple Chase Amusement Co (1929) : P see ppl fall on the Flopper, decides to try

ride, gets on an breaks his knee cap, harm the type P could foresee (and had seen), P took A/Re. Situation where risk cannot be assumed by P, based on public policy

1. Common carriers and public utilities cant limit liability for personal injuries


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2. When a statute protects a class, members of class cant assume the risk that violatesstatute

3. Risk cant be assumed in situations involving fraud, force, or emergency f. Other limitations to A/R

1. Spectators at Baseball game fans assume risk to sit in seats that do not have foul ballscreen, cant net whole field b/c would obstruct view

2. Recreational Sports -- P assumes the risk within scope of sport, public policy driven;might be more limited duty than A/R

a. duty to not intentionally hurt someone or act recklesslyb. limited duty for only harms that arise our sport (throwing intentional punches in

wrestling match outside scope of sportg. Damage doctrine for recovery

a. Joint and Several Liable : one D is responsible for the joint liability of all other Ds, protectsagainst insolvency

1. Contributory Negligence: P chooses which D to go after, if get recovery from D1, then

D1 has right of contribution to sue D2 for part of liability (most likely half)a. Limits the risk of P not getting recovery due to a Ds insolvency

2. Comparative negligence: jury decides the %-tage each D is at fault, D1 still pays all ofrecovery to P, but now can only get payment for %-tage amount of total injuries D2 is atfault for

3. Several Liability : P can recover from tortfeasor only his share of faulta. Less contribution claims, P absorbs any Ds insolvency

VIII. Intentional Tortsa. Overview

a. Has no duty/ breach of duty elementsb. No minimal age for intentional tortsc. Eggshell Plaintiff rule still applies in intentional torts (only physical not emotional)d. Other than IIED, intentional torts are based on a discrete act

b. Elements to showa. Proof of Intent Purpose of knowinglyb. CIF and PC

c. Definition of Intent: two types, make sure to clarify which prong saying (subjective) Restatement 1 a. Purpose of producing consequences: end goal/desire, conscious objectb. Knowing consequences are substantially certain to result

1. Garrett v. Daily (1955) Brian Daily pulled a chair out from under P, P fell and fracturedher hip, P sued forbattery

a. Trial court found D did not intend for P to fall and injured hip, he didnt havepurpose to harm, but didnt ask about knowledge

b. Holding: Reconsidering the case with the broad definition of intent (includingknowingly), Court found Brian knew with substantial certainty that P would falland hit the ground, so guilty of battery

c. D does not have to intend an injury to occurd. Transferred intent: intent can be transferred in between people, cannot be used with IIED


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d. 4 Types of Intentional Tortsa. Assault Restatement 21

1. Interest protected a persons peace of mind 2. Must prove:

a. D intended to put P in fear of immediate harmful or offensive contactb. D acted to put P in reasonable apprehension of an imminent battery

i. Person must be conscious for an assaultii. Have to ask if Ds conduct offends a person of reasonable dignity, super -

sensitive P cannot recoveriii. Fear, intimidation, uncomfortable reasonable apprehensioniv. D doesnt have to actually be capable of causing harm

3. Limits on assaulta. Conditional threat, if future in nature not assaultb. Only words without other acts to create apprehension are not enough

b. Battery Restatement 13 (harmful contact) Restatement 18 (offensive contact)

1.

Interest protected persons sanctity of body 2. Must prove

a. (1) Sufficient contacti. Substances such as split = contact

ii. Grabbing anything connected to the Ps person is viewed as part of P(placing finger on camera that is around your neck) Piccard v. BarryPontiac Buick, Inc (RI, 1995)

b. (2) is contact offensive or harmful?i. Offensive if it offends a reasonable sense of personal dignity

c. Intent to cause harmful or offensive contact to P

3. Apprehension not required Not every battery is an assault, example: offensivetouching of body that person is not aware of

4. Possible defense to battery: P is unduly sensitivec. False Imprisonment Restatement 35

1. Interest Protected freedom of mobility2. Hybrid torts b/c can include physical and emotional harm3. Elements of FI

a. Actual restraint/confinementi. Can be done with words alone

ii. Restatements definition of restraint

1. actual or apparent physical barriers (no reasonable escape)2. Overpowering physical force direct at person, immediate

family or persons property 3. Threat of force4. Other duress5. Invalid assertion of legal authority (false arrest)

b. Against Ps will c. D intends to confine the other within boundaries fixed by actord. Person must have awareness of confinement of physical harm

4. Length of confinement doesnt matter, even if temporary counts as FI


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5. Lopez v. Winchells Donut House (1984) P called into work, P voluntarily went into backroom, D locked door and confronted her about short changing the cash register, P beganto shake, and left room

a. Elements missing in FI case are intent to confine and actual confinement, P wasfree to go, not against her will

6. Shop-lifters, limited defense to FI, have to be caught red-handed and confined forlimited time

7. Future threats and moral pressure are insufficient forms of confinement or restraintd. Intentional Infliction of Emotional Distress

1. Interest Protected catch -all tort, more flexible 2. Elements of IIED

a. Conduct must be extreme and outrageous ** most importanti. Conduct below level of common decency

ii. Extreme means unusual, uncommoniii. Conduct that would make a reasonable person exclaim thats

outrageous! 1. Annoying ill-mannered behavior is not outrageous

b. Intent on part of D to cause P to suffer severe emotional distress orRECKLESSNESSas to the effect of Ds conduct 1

i. Recklessness: deliberately disregard risk that conduct will causeemotional distress willful blindness

c. Ds actions causes Ps harm d. Severe emotional distress Ps distress is a good indication of Ds conduct

outrageousnessi. Most states do not require physical manifestations of emotional distress

ii. Must ask would a person in same position suffer a similar harm (no egg-shell P)

1. Exception if D knew P was more sensitive and susceptible toIIED that the average person and he/she took advantage of that

3. Can look at a manifest of conduct that happens over time, each accident might not beoutrageous, but the sum total is

4. Womack v. Eldridge (1974) Private investigator of defense counsel, took picture of manand used in molestation case in court P had no connection to case, sued for IIEDbecause scared ppl would think he was a child molester, use of picture outrageous

5. Used in actions of cop harassment and in debt collectors

6. Courts are more likely to find IIED when parties are in a relationship of sorts especiallywhen one actor is in position of authority over another

e. Affirmative Defenses and Privileges to Intentional Tortsa. Privileges for intentional torts are more narrow that defenses for negligenceb. Three Types

1. Consent: P must know a risk exits and voluntarily encounter the riska. P is agreeing to an invasion of his rights (somewhat like assumption of risk)b. Especially an issue because actors have dual perspectives on a situation

1 Only intentional tort where D can be liable if reckless


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c. Two types of consenti. Expressed consent : willingness for conduct to occur, subjective,

inquires into Ps state of mind ii. Implied Consent

1. Apparent consent: reasonably understood by another (usuallyD) to be intended as consent

a. Inferred from Usage or Custom, has a lot of culturalovertones

2. Consent implied by Law : implied when action is necessary tosave a persons life or property: emergency situations

d. Limits on Consenti. Scope of consent: given to a particular conduct or to a substantially

similar conduct1. Consequences dont come into play, focus on actors consent to

conduct

2.

Consent given and judged at time of conductii. Having to have legal capacity to consent: issue with minors or when P is

consciousiii. Conditional consent effective for only period of time expressediv. Consent cant induced by duress or fraud v. Cant consent to something illegal vi. Public policy reasons to limit, trying to balance personal freedom and

public policye. Restatement 892:

i. (1) Consent is willingness for conduct to occur. It may be manifested by

action or inaction and need not be communicated to the actor ii. (2) If words or conduct are reasonably understood by another to be

intended as consent, they constitute apparent consent and are good.2. Self-defense 2 Restatement 63 (Non-deadly) Restatement 65 (Deadly) Restatement

76 (defending a third person) a. Two fundamental Questions

i. In this case, did D have a right to defend (imminent danger)?1. Judged from Ds point -of-view = reasonable belief

ii. If it is, was the degree of force acceptable? Must be proportional1. May only use the force that reasonably appears necessary to

prevent the harm2. Deadly force: force causing death or serious bodily injury, only

available if threatened with deadly forceb. Cannot use in retaliation, only in immediate respo nse to Ps action c. Aggression Rule: aggressor cannot use as a defense

2 Next three defenses are situations where (1) D has not agreed to invasion of his rights (2) D claims actions are justified undercircumstances


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d. Courvoisier v. Raymond (1896) D threatened by group of men, goes into houseto get gun, fires shot into air, off-duty police officer comes to scene andapproaches man, D shoots him thinking he is a person from mob mistake

e. Duty to Retreat: majority of courts say a person can stand his groundi. Modern trend: person must try to retreat before using deadly force

unless in homef. Privilege is transferable if actor protect a third party who would be able to use

self-defense3. Defense of property:

a. Katko v. Birney (1971) : Spring gun used to protect abandoned farm house b. Majority Rule: Can use non-deadly reasonable force to protect property,

i. Can only use to prevent the commission of a tort, once person has takenthe property, cant use unless in hot pursuit of someone

c. Minority Rule: Reasonableness Test , no jurisdiction has accepted i. Value of property weighed against value of human life

ii.

Existence of adequate legal remedy as alternative to using force iii. Location of property and difficulty of protecting iv. Warning given before force used v. Deadliness of device

vi. Character of conflicting activities between party vii. Cost of avoiding, interference by other means

4. Necessity Restatement 196 and 197 a. Can invade anothers l and to avoid threatening injury from a natural or other

force, where the threatened injury is substantially more serious that theinvasion of property that is undertaken

b. Restatement distinguishes betweeni. Public necessity: actor can enter land of another if reasonably believe it

be, necessary for the purpose of averting an imminent public disaster(absolute defense)

1. Ploof v. Putnam : During storm P tied boat to Ds island, Dsservant cut Ps boat loose, D argued defense because P wastrespassing, but P has privilege to trespass, D had no right to cutP loose

ii. Private necessity: Can enter on anothers land if it reasonably appearsto be necessary to prevent serious harm to the actor,actor is liable for

any harm done in the exercise of the privilege (incomplete privilege)1. Vincent v . Lake Erie Transport Co (1910) : Storm coming, D

made lines to hold boat fast to dock, storm caused boat todamage dock, D had right to secure boat, but must compensateP for damage done to his dock as a result

c. Both parties are reasonable, but D should bear cost of damage because madechoice to protect self interest at expense of Ps property

d. Comes in during emergency situationsc. Basic Rules for privileges

1. life property


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2. proportionality in reaction3. intentional tort that advance own intere sts will usually invade anothers

IX. Strict Liability : liability in absence of negligence (no reasonable care) and not intentional tort (nointent)

a. Two Strandsa. Abnormally Dangerous Activities

1. Ryland Strand nuisance on property, landowner rightsa. Rylands v. Fletcher: in mining region, D dug large reservoir on property, water

got into old mines and traveled to Ps property where it damaged it heldstrictly liable b/c reservoir a non-natural use of property in that area

b. Not fully accepted in U.S.2. blasting Strand

a. Sullivan v. Dunahm (NY) : D used dynamite to uproot a 60 ft tree, technique forblasting was reasonable, a piece of wood flew on highway nearby and hit P and

killed her (grandfather case of SL)i. D has to pay because blasting is highly dangerous activity that has

foreseeable harm even if you use due care irreducible level of riskb. Blasting is a good example of an abnormally dangerous activity, when deciding

is activity is SL, put activity side-by-side with blasting and see how closely theyrelate

3. Elements of an activity for SL, court ask if case fits within category, legal questiona. Abnormally dangerous

i. High level of dangerii. Unreducable risk

b. D chooses to engage in an activity for their own benefit/ D has an awareness ofdanger of activity

c. Activity causes harm, V cant do much in the way of preventing harm d. D cant use excuse of reasonable care

4. IN Harbor Belt v. American Cynamid Co: D is manufacturer of chemicals (particular oneis flammable, toxic and carcinogenic), chemical shipped on train to NJ, switches manylines, in Chicago rail yard discovered that container leaking, RR switching company hadto pay for spillage clean up

a. Dont know who was negligent in transporting the chemicals because wentbetween so many railroad lines

b. Court held that not a strict liability case, rather negligence caseb. 2nd Restatement 502 has 6 factors to determine is activity is abnormally dangerous multi -

factor test, dont know relationship among factors 1. High degree of risk of some harm happening2. Likelihood that harm that results will be great3. Cannot eliminate risk with due care4. Inappropriateness of activity in place where it is carried on5. Activity is not a matter of common use6. Extent to which activities value to community is outweighed by dangerous attributes


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c. 3rd Restatement 20 - Meaning of abnormally dangerous 1. two requisite elements

a. Irreducible riskb. Not activity of common usage

i. Common usage if carried on by a large fraction of peopleii. If not carried on by many people then also includes activity that are

common and familiar in community (ex. Electricity, gas lines)2. The more common activity the less likely it will fall into SL

d. Proximate Cause D are responsible only for risk that makes activity abnormally dangerous tobegin with

e. Defenses1. Assumption of risk2. Comparative Responsibility Restatement 25

a. If the P has been contributory negligent in failing to take reasonableprecau tions, the Ps recov ery in a strict-liability claim is reduced in accordance

with the share of comparative responsibility assigned to the P f. Products Liability Restatement 1

1. One engaged in the business of selling or otherwise distributing produces who sells ordistributes a defective product is subject to liability for harm to person or propertycaused by defect

2. History Judge-made lawa. Originally based on privity doctrine: P could only sue person they contract with,

Buyer could only sue Seller, not manufacturerb. MacPherson v. Buick Motors (1916) : Cardozo rule if product dangerous when

put in the stream of commerce and cause the harm it is expected to then

manufacturer can be sued3. Escola v. Coca-Cola (1944) : Waitress injured when soda bottle broke in her had, no way

to tell what cause bottle to explode, could be from a discoverable or undiscoverabledefect, held strictly liable

a. Trayners dissent: gives rationale for strict liabilityi. Manufacturer is in best position to reduce hazards of defective product

ii. Manufacturer can insure against loss, loss spreading among customersvs. P paying all damages

iii. Constant and general risk that product might cause injury, risk of doingbusiness, know a certain amt. of products will be defective, so fair to

punish them4. P must show a defect in product that made it unreasonably dangerous

a. Two Tests to see if product is defectivei. Consumer expectation test: define the requisite defect in terms of what

consumer expected Restatement 402(A) 1. Hard to do if specialized product because no general consumer

expectationsii. Cost-benefit analysis Learned Hand formula, risk product presents

weighed against benefit product bringsb. Types of defects Restatement 2


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i. Manufacturing defect : product has something wrong with it, differentfrom other products, the bad apple, gets through quality control,easiest to prove, deviation from product specifications

1. P has to show that defect was present before left factory2. Focus on disappointment of customers

ii. Design defect : defective quality of product is design of product,manufacturers choice, all products equally defective

1. P must establish a reasonable alternative (big debate), atreasonable cost, that would have reduced foreseeable risks ofharm

2. If no alternative design, high degree of danger and no socialuse, then might find strict liability for public policy reasons

iii. Inadequate instructions or warning : manufacturers failed to give allinstructions necessary (like negligence case)

1. Have to not only warn, but give an adequate warning

2.

How many warnings are necessary and how detailed must thosewarnings be?

3. Regulatory agencies have helped reduced # of cases here4. Rule of thumb have to warn against foreseeable risk-use, and

design around foreseeable misusec. If shown that product is defective, injury is the cause of that defect, then all

people in product chain are liablei. Retailers can be held strictly liable, can sue indemnity to manufacturer

d. Courts need to look at overall safety of product, fixing one risky part mightincrease the risk of another aspect of the product

5. Defenses misuse of product can be grounds for comparative negligence claim

Torts Chamallas 2010

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