brown torts fall 2011

8/2/2019 Brown Torts Fall 2011

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Brown_Torts_Fall_2011

Tort:1. A tort is a breach of a duty, other than contractual, that gives right to

damages. Torts are aimed at solving wrongs against individuals. Three types

of torts: intentional, negligent, strict liability.Intent:

1. Tresspass to the person: Batterya. RST:A person acts with the intent to produce a consequence if: (a) the person

acts with the purpose of producing that consequence; or (b) the person actsknowing that the consequence is substantially certain to result. (9).

i. The person is liable for all harms that result whether or not itis foreseeable.

b. Battery: An actor is subject to liability to another for battery if (a) he actsintending to cause a harmful or offensive contact with the person of the other or athird person, or an imminent apprehension of such a contact and (b) a harmful

contact with the person of the other directly or indirectly results (8).i. Vosburg: if the kicking by the defendant was unlawful then the

intention of the defendant to kick was also unlawful.ii. Intent as Knowledge: act with substantial certainty that

something will happen (Garratt)iii. Intent to act: nonconsensual (white v. University of Idaho),

mental state was the intent to act (Wagner v. Utah)iv. Transferred: D intends to commit tort against person but

instead (i) commits a difft tort against that person, (ii)commits the same tort as intended but against a difft person or(iii) commits a difft tort against a difft person. Talmage v.

Smith.1. Generalized knowledge insufficient; need a specific

person (Shaw)2. Trespass to property:

a. Intentional property invasion, regardless of harm/damages.Dougherty.Mistake is no defense

3. Trespass to chattel:a. act that interferences with Ps right of possession, intent to perform

such act, causation and actual damages required. Hamidi & Ebayb. Conversion: exercising an intended unjustifiable and unwarranted

dominion and control over anothers property, which causes injury to

the property owner (Poggi v. Scott). Mere non-feasance or negligence,without such intent, is not sufficient for conversion. Conversionalways requires some affirmative claim of ownership by D, or someact inconsistent with Ps title.

Defenses:

1. Consent:


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a. Express: Action beyond scope of consent (Mohr v. Williams),unauthorized touching = battery (even though P was unconscious,kissing case).

b. Implied by law: Consent reasonable to infer in emergency situations.Objective- DidMD reasonably believe circumstances required

emergency care? Schloendorff v. Societyof New York Hospitalc. Inplied in fact by custom/conduct: (Objective manifestation) minor

bumping in crowd not battery, consent by custom, P sticks her handout to receive vaccine in OBrien v. Cunard Steamship Co.

d. Illegal acts:i. consent to illegal act bars recovery (new majority) UNLESSP

member class of person law protects; . Hudson v. Craftii. inability to appreciate consequences. Old Majority.

iii. Apparent consent: No consent outside boundaries of sport. Dliable for injury if reckless disregard of rules.Hackbart &Turcotte

2. Insanity:a. D held liable if can form the intent (as desire) (McGuire v. Almy;Intended to act. The policy reasons are: (1) the loss is better borne bythe actor then the victim; (2) liability will encourage closersurveillance by custodians; and (3) insanity is easily feigned.

i. Exception: Ds mental defects must be so massive, pronounced,and debilitating that the bodily movements of D are fits orspasms, and not human action.

3. Self-defensea. Reasonable belief that D ofimminentharm in order to use force

reasonably (reasonable person under like circumstance) necessary

for protection against harm. Courvoisier v. Raymondb. Proportionality Boston v.Muncyc. Obligation to retreat before using deadly harm, if can be done safely

Reasonable stdi. No duty to retreat from home

d. 3rd party: privileged if D reasonablybelieves 3rd entitled to self-defense (even if turns out wrong) and that his own intervention isnecessary to protect that party

i. traditional: Privileged if 3rd party where privileged4. Protection of property

a. Request to desist required unless it would be futile (ie usedforce/arms to enter)

b. Reasonable, non-deadly force unless person is threatened (Mllovy v.Cockran)

c. Mechanical: only privileged if D would be privileged IN FACT to usesuch force. Katko v. Briney,

d. Mistake:


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i. Allowed if: mistake about whether intrusion has occurred orwhether a request to desist is required, mistake regardingwhether force is necessary.

ii. Not allowed if: entranthas privilege (ie officer or friend whoforgot purse (recapture chattels)) to enter, unless intruder

doesnt inform D of such right5. Recapture chattel:

a. Reasonable, non-deadly self-help (force) ONLY when purelywrongfully obtained possession of the chattel and possession byowner, return has been demanded & refused

b. No retaliation/excessive forcec. Not privileged in voluntary transfers/ claim of right when D honestly

believes its his (Kirby v. Foster).6. Necessity:

a. Rule:May interfere with property (but only minimum freedom)where interference is reasonable and necessary to avoid threatened

injury where such injury is substantially more serious than theinvasion (public over private). (Ploof v. Putnam)

i. Trespasser is entitled by necessity to defend his presence onland.

b. Private necessity is incomplete privilege: Vincent v. Lake Erie. D isstrictly liable for damages

c. Public necessity is complete privilege: where property is destroyedfor greater/public good, D (govt or person), isnt liable. Such defenseis absolute.

EMOTIONAL AND DIGNITARY HARMS

1. Assault:a. Elements:

i. D must act (1) act with intent (2) to place V in apprehension(in expectation sense, not fear) ofimminentharmful/offensivecontact or to make such a contact, and (3) the intended V mustreasonably (Does it have to be reasonable?) be placed in fear ofsuch contact (even if P can repeal attack).

ii. Causation: P not protected against exaggerated fears unless Dknows of the unreasonable fear.

iii. Doesnt require physical contact I de S v. W. de S1. But mere words dont constitute assault (Browner v.

Ackerly)2. A threatening gesture will not constitute an assault

when there are accompanying words, which clearlynegate the gestures threat (Tubervill v. Savage).

3. Whether there is an assault depends more upon theapprehensions created in the mind of the person


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assaulted than upon what may be the secret intention ofthe person committing the assault (Allen v. Hannaford).

2. Offensive Battery:a. R: intending to cause offensive contact and offensice contact directly

or indirectly results

i. Specific intent to offend/insult a reasonable persons sense ofpersonal dignity. (Alcorn v. Mitchell).3. False imprisonment:

a. Elements: Act or omission by D thatconfines or restrains the P to abounded area (2) intentto confine to bounded area and (3)causation. Specific intent(negligence doesnt suffice)

b. Must involve some sort of confinement, boundaries on all side. Bird v.Jones

c. D can be privileged if reasonable suspicion, manner and timemerchantprivilege (Coblyn v. Kennedy)

d. P mustbe conscious/aware of confinementUnless physically injurede. Defense: protection of person/property, consent, parentalcontrol/discipline, unintended

Intentional Emotional Distress: Extreme and Outrageous Conduct

1. Three elements: (1) intentional or reckless conduct, (2) outrageousness, (3)and causation (Estate of Trentadue v. U.S.)

2. RST: One who by extreme and outrageous conduct intentionally or recklesslycauses severe emotional distress to another is subject to liability for suchemotional distress, and if bodily harm to the other results from it, for suchbodily harm.

3. Act calculated to do harm to P, D cant argue more harm was done thananticipated (Wilkinson v. Downton)

4. Bouillon: fright and mental anguish are competent elements of damage ifthey arise out of trespass upon Ps person or possession and may be includedin a suit for trespas

5. Words can suffice but struck down in relation to free speech bc too vague(Hustler v. Falwell)

6. Third party: causation requires P to be there, close relative, and D knew closerelative OR if third person experience sever emotional distress in response toPs emotional distress resulting from D (just confused about it not being aclose relative: what is the standard there?)

7. When it is shown that one intentionally subjects another to mental sufferingincident to serious threats whether or not the threats are made under such

circumstances as to constitute a technical assault establishes a cause of action

(State Rubbish Collectors v. Siliznoff)

NEGLIGENCE


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1. Elements: Duty, breach, causation, damages2. Strict liability: prima facie liable for any harm that he causes to the plaintiffs

person or property.

a. Not liable if D and P negligent or if only P negligent. Liable if D negligentonly (Brown v. Kendall) Is this comparative or contributory? Percentage?

b. Stone v. Bolton: The happening of a known risk, even if extremelyslight, is actionable since the injury was foreseeable.

c. Bolton v. Stone: If a party takes reasonable care to prevent a knownrisk or its chances of occurrence are extremely slight, no negligenceexists.

d. A sudden illness, which renders the driver unconscious will not begrounds for an action in negligence or strict liability (Hammontree v.Jenner)

3. Negligence: D has taken the care of a responsibleperson, whether by act oromission, in order to avoid the harms that might foreseeably flow from his

actions

4. Reasonable Person:a. Objective standard: care of ordinary, prudent man: Would reasonable

person under like situation make same decision D? Vaughan v.Menlove

b. Factors:i. Youth judged by equivalent age, experience and skill, when

involved in activities appropriate to their age, experience, andwisdom (Daniel v. Evans).

ii. Mental incapacitation: not considered unless sudden onset ofinsanity that is not foreseeable (Breunig v. American FamilyIns)

iii. Physical disabiites: People with disabilities exercise degree ofcare which a reasonable person with similar condition wouldexercise. Fletcher v. CityofAberdeen, Poyner v. Loftus

5. Calculus of Risk:a. Reasonable depends on: magnitude of the risk, the value of the object

the law desires to protect, the principle object, reason person takesthe risks, utility of risk (probability that X could save Y must byreasonable at time, no benefit of hindsight), necessity or risk (Terry,Negligence).

b. Non-obvious situation: No duty to prepare for unusually cold winterand resulting water damage

; D provided against such frosts as

experience would have led men, acting prudently, to provide against

(Blyth v. Birmingham)

c. Emergency: P must still act reasonably. Eckert: P NOT contri. negl. bcacting reasonably to save childs life.

d. Alternative precaution must be reasonable (i.e. not create anotherhazard Cooley v. Public Works).

e. Hand Formula: cost-benefit analysis: (BLP=not liable)


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i. B: burden of adequate precaution1. B was low in U.S. v. Carroll

ii. L: injury, magnitude of loss/gravity of resulting injuryiii. P: probability that injury will occur

f. Common Carrier/Innkeepers std: higher, utmost care (Andrews v.United Airlines)

6. Custom: Determining appropriate level of precation:a. Used to set reasonable care std: Titus said custom is enough (non-neg

per se). Mayhew-reasonable according to std of law, jury decides.Hooper-custom is admissible but not determinate negligence isbased on reasonableness

b. Medical: stronger role for custom in medical cases. Ps cant est. Ddeviated from custom, case wont go to jury

i. Two schools of thought: D can avoid liability if alt is recognizedand respected by a considerable number of physicians. Lama(D failed to administer a conservative treatment program prior

to resorting to surgery).

In order to establish a prima faciecase of medial malpractice in Puerto Rico, the plaintiff mustshow: (1) the norms of medical care and knowledge applicableto the general practitioner; (2) proof the physician failed tofollow such norms in the patients treatment; and (3) a causalrelationship between the physicians act or omission and thepatients injury.

ii. Error in judgment. Dr liable if treated pt in particular way andshould have known this wasnt proper, then its negligent. If dracted prudently and just picked wrong treatment, not liable.

iii. Custom may not set std. Helling: D liable for negligence,unreasonable not to give P test

iv. Malpractice: professionals must act with skill and knowledgeof members in good standing

c. Informed Consent:i. Duty to disclose materialrisks: material when a reasonable

person, would likely attach significance to the risk in decidingwhether or not to forego the proposed therapy, no matter howsmall.

1. Failure to disclose is breach/malpractice (P consentedw/out info, malpractice)

a. Exceptions:i. Emergency

ii. Disclosure itself would cause immediateharm

ii. Causation: whether appropriate disclose would have madedifference judged by reasonable person std (objective; wouldreasonable P decide no surgery based on such warning) NOTparticular patients (in order to avoid hindsight bias)

7. Statute/Negligence per se


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a. Noncompliance makes D liable if (1) statute intended to protectagainst such harm that occurred AND (2) P w/in class of peoplestatute intends to protect (Osborne, rats). This establishes breach ofduty

b. Compliance is NOT defense when a reasonable person would takeaddl precautions.

c. Causal connection btwn violation and harm required (Martin; nolights does not mean liable b/c still need causal con btwn statuteviolation and harm)

i. Ds noncompliance with statute requiring license (bcchiropractors dont have license), had nothing to do with Psinjury and doesnt est. breach of duty/negligence (Brown v.Shyne)

d. Excuse: implied statutory CL exception (Tedla v. Ellman; walking).e. If violation, does statute provide right of action?

i. If not explicit, then implied when:1. P was part of protected class;2. Recognition of a private right would promote legislative

purpose; AND3. Where such a right would be consistent with legislative

scheme (other agencies for enforcement, allowing suchright would impose $$ burden on schools, which legis.wouldnt want).

f. D can defeat recovery in some instances when the wrong of a thirdperson severs causal connection between the Ds negligence and Psinjur

8. Res Ipsa Loquitur (the thing speaks for itself) allows case to go to jury toinfer negligence:

a. Requirement: RST & Colmenaraes Vivas: it may be inferred thatharm suffered by the P is caused by negligence of the D when

i. (a) The event is of a kind, which ordinarily does not occur inthe absence of negligence.

ii. Other responsible causes, including the (voluntary) conduct ofplaintiff and third persons, are sufficiently eliminated by the

evidence; AND

iii. The indicated negligence is within the scope of the defendantsduty to the plaintiff

a. Applies when P unable to determine cause but accident itself isstrong indication D is negligent. (Byrne; flour).

b. Defense: rebut actual cause of accident, disprove requirementsi. Greenberg v.Michael Reese: didnt know that radiation caused

tumorsc. Doesntapply if:


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i. Accident might happen despite the fact that D used reasonablecare and was free of negligence (Larson v. St. Francis Hotel;chair).

ii. Accident could have plausibly occurred more than one way1. Galbraith: auto accident could have been result of

negligence or mechanical defect2. Holzhauer: no exclusive control b/c emergency buttons

d. Dont need test when strong evidence of negligence: Newing (pilot).So does not go to jury; it is a direct verdict.

e. Conditional RIL-P offers evidence to rule out other causes and thenonce harm is linked D, P uses RIL to complete chain of proof.

f. Medical Cases: if the damage is so far removed from the surgical fieldand unrelated to the medical treatment or when surgical instrumentsare left in a body cavity, then RIL could apply.

i. Multiple Ds: When more than one person had control ofinstrumentality, doctrine may not be used to est. prima facie

neg. against any individual party.1. Ybarra (alternative view) where D have control of

evidence, each D required to est. that his negligencedidnt cause injury. Used doctrine as smoking outdevice Where an unexplained injury occurs during amedical procedure to a part of the body not undermedical treatment, RIL applies against all of the doctorsand medical personal who take part in caring for thepatient.

2. Anderson: had to impose liability because P is entitled to averdict and at least one or more of the Ds is liable.

ii. Common knowledge doctrine: If the routine medical procedureis relatively simple (not complex), the jury rely on its commonknowledge in determining whether the accident is of a kindthat would ordinarily not have occurred in the absence ofsomeones negligence

Contributory Negligence (Plaintiffs conduct)1. Elements: Ds burden to prove

a. Duty to avoid behavior that results in injury to ones self.i. Once P confronts known risk, must mitigate:

1. Butterfield (if not riding so fast, would have saw it)b. Standard of care: P owes the standard of care required of a

reasonable man under like circumstances.i. Beems: P acted reasonable in relying on the employees to

comply with his signals.c. Causation: any negligence in the part of the plaintiff, however slight,

will bar recovery.d. Damages


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2. Doctrine of Avoidable Consequences: diff from CN b/c Ps negligence is b/fDs.

a. Must be causal connection btwn Ps neg and harm: Derheim: P notwearing belt, notCN bc no causal relation bwtn lack of belt & accident.

b. P obligated to avoid after accident: Derheim: P didnt fail to doanything after accident that would avoid/limit damages

3. LCC: CN of P will not defeat the action ifit is shown that D might by the exerciseof reasonable care and prudence have avoided the consequence of Ps negligence

(Fuller v. Illinois R.R.). applied in Kumkumain (train ran over P) LCC so long as

they had the requisite knowledge upon which a reasonable prudent man would

act

a. Party who has LCC of avoiding the accident is considered solelyresponsible for it.

i. 479: Helpless P (a) incapable of saving himself even inexercise of due care and (b) D is negligent in failing to utilizereasonable care either because (1) he knows (or should know)

of Ps situation or (2) fails to exercise duty to discover situationii. 480: Inattentive P (could avoid harm by paying attention) if

D, (1) knows Ps situation, (2) realizing, or has reason torealize, that P was inattentive, (3) fails to utilize existingopportunity to avoid the harm.

4. Assumption of Risk: Did P act voluntarily? P barred from recovery if P hasactual knowledge, usually specific, of risk. Subjective test. Based on Psconsent

a. Industrial accidents: If worker complains about condition to superiorand told a change would occur, the protest negates the employeesassumption of risk. BUT, if employer rejected employees protest and

employee remained, P assumed the risk (Lamson v. American Axe)b. Fellow servant rule: P, with full knowledge, assumes risks incident to

their employer. Farwellc. Murphy (Flopper): One who takes part in a sport accepts the dangers

that inhere in it insofar as they are obvious and necessary and theyare not so serious as to justify the belief that precautions of some kindmust have been taken to avert them.

i. Ifthe accidents had been so many as to show that the game in itsinherent nature was too dangerous to be continued without

change then D can be held liable for negligence. Yet, if the rational

is that D is negligent and we hold P responsible for assuming the

risk, then why say D is laible if it is so serious as to justify the

belief that precautions of some kind must have been taken (i.e. he

is negligent for operating it)? Wouldnt P still be liable for

assuming the risk?

ii. If it were a trap it would be more dangerous than he wouldbelieve it to be so he would not have assumed the risk.


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d. Dalury v. S-K-I Ltd: A standard signed liability waiver form may beheld unenforceable if it violates public policy.

e. Meistrich (skating)- Negligence based on FAULTi. Primary: D NOT negligent bc either didnt breach duty OR

didnt owe duty, focuses on D. P assumed risk whether or not

he was at fault.ii. Secondary: (affirmative defense) P unreasonably encountered

known risk and therefore, P is contributory negligentiii. Meisrich: D breached duty and focus on Ps action. If Ps

acceptance of known risk was reasonably, P NOT contributorynegligent. If P unreasonable encountered known risk, P iscontributory negligent. Negligence BASED ON FAULT. Courtallows for reasonable exposure to risk

f. Duty invites rescue: If Ds negligence creates a rescue situation, P isntcontributory negligence for becoming involved with rescue. Eckert

g. Fremens Rule: When public officer (ie police, firefighter) responds torequest for assistance brought about by the negligent acts of D,recovery is barred. One who has knowingly and voluntarilyconfronted a hazard cannot recover for injuries sustained thereby.

5. Comparative Negligence:a. Pure form: Cts: apportions liability in direct proportion to fault in all

cases bc determining the threshold % is difficult. (Modified system isby legislature: P must show that her negligence is below a fixedthreshold before she may recover any damages at all. P is usuallybared at around 50%)

i. Li v. Yellow Cab: Damage liability will be borne by those whosenegligence caused it in direct proportion to their respective

fault. Gets rid ofContributory Neg b/c its not a fair systemsince its an all or nothing solution.

ii. LCC: mergesiii. SL: stil applies but becomes a question of comparative

responsibility. Examine comparative causation, P and Dsrelative fault in causing the incident. Bohan

iv. Intentional torts: Compar. principles dont apply unless Dsreckless

v. Multiple parties:Most jurisdictions compare all the tortfeasorsnot just those before the court and consider Ps fault againsttorteasors in total

vi. Assumption of risk:1. Certain risks cannot be assumed: common carriers2. If consent-based, Ps assump of risk complete bar to

recovery (complete defense) Murphy3. If fault-based, assumption of risk folded into

comparative neg. (recovery limited if unreasonable)Meistrich


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4. Li: both reasonable and unreasonably assumption ofrisk factored into comp neg

6. Multiple Tortfeasorsa. Definitions:

i. Joint liability: each of several obligors- any person who bearsan obligation- can be responsible for the entire loss if theothers are unable to pay when the entire harm was single andindivisible.

ii. Several liability: each person has an obligation parallel to thatof the others, but the share of any final judgment against oneparty is not increased by the default of another. When do weapply it? Ds indpt and divisible injuries. Each D responsibleonly for harm caused individ.

iii. Joint-and-several liability: obligors are joint to the obligee, butbear several liability amongst themselves. indivisible injuriesor Ds acting in concert. A and B responsible for entire

judgment. Ps negligence measured againstcombinednegligence of both Ds. If they act independently the injury isindivisible(just confused about which one applies when)

b. Equitable indemnification (old rule; under CL): One D cannot recoveragainst another, even if compelled to pay for all damages unless theultimate loss may be attributed to the original wrong doer, shift entireloss.

i. Union Stock v. Chicago RR: attempted to shift burden on D butboth responsible for the act so cant shift

c. Release:i. CL: release of one is a release of all bc indivisible claim

ii. Modern: rejects auto release ruled. Pro-rata share: proportion based on number of Ds (ie 2D = 50%, 4Ds

= 25%)e. Partial equitable indemnity (new rule): Enables Ds to seek

contributioni. Concurrent tortfeasor may seekpartial equitable indemnity

from another concurrent tortfeasor on a pure comparativefault basis (looking at dollar amount instead of %) (AmericanMotorcycle v. Superior).

ii. Now D can maintain an action against any other party, whetheror not joined in the original suit.

f. Insolvency:i. CL: If D1 insolvent, D2 pay for full loss. No right of contribution

bwtn D1 and D2 but equitable indemnification in unusualcircumstances

ii. Modern: there are three positions when D2 is insolvent1. Pure joint and several: D1 pays all


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2. Intermediate: the unrecoverable loss should beapportioned between P and D1 in proportion toremaining liability.. Evangelatos/AMA dissent

3. Modern- D1 only responsible for his % regardless ofsolvency of D2. only in casesof divisible negligence

leading to harmg. Settlement:

i. Cant go after settled party if settlement made in good faithVicarious Liability:

1. Respondeat Superior: Employer liable for torts committed by employeewithin the scope of employment. Applies even if employee was expresslyforbidden to do act OR no negligence in hiring. An employer is vicariouslyliable for the reasonably foreseeable conduct of its employees performedwithin the scope of employment, even when such conduct was not motivated

by a purpose of serving the employer.a. Ira S. Bushey v US: Looks beyond Restatement test (D liable if

employee acting to serve master) and reasons that employee was onlyin drydock bc of employment status (authorized to be there).

2. Frolic and Detour: if deviation was minor in time and area and some portionof trip serving D, D still held liable. If off on frolic, D not liable

3. Intentional torts: generally NOT in scope of liability UNLESS (1) forceauthorized in employment (bouncer), (2) furthering business of master(removing rowdy people from door)

4. Independent contractors: Principle NOT liable UNLESS (1) indep contractorsactivity is inherently dangerous, (2) nondelegable, (3) apparent or implied

authority applies, servant furthering masters businessa. Implied authority test: whether the party for whom the work was

done had the right to dictate and control the means, manner anddetails of performing the service, principle held liable

b. Apparent authority: principles hold out as employee NOT indptcontractor AND P justifiably relied on this info.

Causation:

1. Causation:a. RST: Tortious conduct must be a factual cause of physical harm for

liability to be imposed. Conduct is factual cause of harm when the

harm would not have occurred absent the conduct.b. Factual: but for inquiry: Used when sequence of events uncertain

i. D not cause if result would be the same with or withoutnegligence (Grimstad) P has burden of proof.

ii. Switching burden of proof: P proves breach, negligence at issue(D must prove NOT negligence)

1. If P shows thatmore probably than not based on apreponderance of evidence, that the overdose was the


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cause of illness then burden shifts to D to try todisprove (Zuchowicz)

2. The mere possibility that it might have happenedwithout the negligence is not sufficient to break thechain of cause and effect.

3. Experts:a. P does not show cause in fact if his experts areonly interpreting data contained in peer review.

b. Agent Orange litigation: P must prove thati. The substance can cause injury,

ii. That the defendant and not someone elsewas the source of the substance, and

iii. He was in fact exposed to the substance in away that has caused his disease

c. Medical causation:i. Lost chance and probability (old majority)

1. Rule: if survival was certain with proper diagnosis (ortreatment), and impossible without it, cause-in-factrequirement becomes a certainty.

2. If the initial probability of death is greater than 50%, norecovery is ever allowed no matter what faultydiagnosis does to survival rate. (Herskovits dissent)

3. If failure to diagnose doubles the chance of death then Dcan be held liable.

ii. Challenges to general rule1. Lost chance of survival (Herskovits; now the majority):

LCS should in principle be recoverable even when poor

diagnosis is not more likely to be the cause of deaththan the disease.

a. Test: measure is the probability of death fromfaulty diagnosis divided by the probability ofdeath from both causes, such that when chancesof survival fall from 40 to 25%, the right measureof damages is 20 percent of ordinary wrongfuldeath damages (15/75).

b. LCS does not necessitate a total recovery for alldamage, just award for lost earnings based on

premature death (Herskovits appeal)c. Once shown the jury can conclude that it caused

the death.2. Lost chance of cure (Herkovits concurring) If negligence

casus a substantial loss of chance of cure then theprobability oflong-term survival would be reflected in the

amount of damages awarded for the loss of the chance.d. Indivisible harm:


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i. Iftwo negligent actors causes indivisible harm, but unsurewhich D is actual cause, joint and several liability applies,BOTHDs LIABLE

1. Kingston: Fires: P is not required to have burden ofspecifically identifying the origin of both fires in order

to recover.a. Hypo: if both fires are set by human origin then the

rule is of joint and several liability and if only one is

set by human origin then the rule is no liability

b. Hypo: If D1 is negligent and burns the house andthen D2s fire comes through. D1 can try to argue

that he is only responsible for the time value

before it would have been burned. However, we

want to make P whole. If D says I only deprived him

of time value, then P can say that he intervened

and deprived P of a claim against D2. So D1 is liable

for everything.e. Alternative liability: P proves negligence and harm but uncertain as to

which D caused, burden shift to Ds who must show their negligenceisnt actual cause. If fact finder cannot determine who was cause, holdDs joint and several bc harm cant be apportioned and Ds actedsimultaneously (Summer v. Tice)

f. Market Share Liability (sindell standard/test)i. P recover against Ds in relevant market in proportion to their

presence in market, at time of Ps use if:1. All the Ds are potential tortfeasors;2.

The allegedly harmful products are identical and share thesame defective qualities- fungible

3. The P is unable to identify which D caused her injurythrough no fault of her own; AND

4. All/most Ds manufactured product during time in questionare named defendants

2. Proximate Cause: this is the legal cause, which you can hold them liable fora. R: ask if the chain of events that IN FACT occurred were sufficiently

foreseeable at the outset to hold D liable for the ultimate harm.i. Ryan v. New York: Every person is liable for the FORESEEABLE

consequences of his own acts; he is thus liable in damages for

the proximate results of his own acts, but not for remotedamages

ii. RST legal cause: Can be established by showing Ds negligentconduct to be a substantial factor in bringing about the harm

1. Excuse if Ps injury would have been sustained even ifthe actor had not been negligent

b. Ds conduct


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i. Liable when negligence increased risk of harm (Hines v.Garratt; rapped twice). (GA RR v. Price; not increase harm ofexploding lamp)

ii. D is not liable if the harm was not within the scope of theanticipated risk

iii. D is not liable if D;s active force has come to rest, notproximate cause.Horton: P picked up explosive cap negligentlydiscarded by D. Ps mom continued use of cap (knew capexplosive), breaking causal connection.

c. Ps conducti. Rule: if the P acts in good faith to minimize the risk of loss from

a dangerous situation of the Ds then this do not sever causalconnection.

ii. Coincidence: Negligence or other wrongful conduct is relevantonly if it increases Ps net risk of loss (Berry; speeding didntincrease the risk of hazard).

iii. Acts under compulsion (reactions)1. Innocent actions under the compulsion of D never severcausal connections to Ds prior act

2. Duty to rescue (danger invites rescue): D liable when Pintervenes, even when the reaction is a result ofdeliberate, calculated choice, rather than an impulsion,as long as P is not reckless or rash (Wagner v.International)

d. Ts conduct (intervening acts)i. P can recover for Ds wrongful act even if Ts negligentact

intervenes, as long as it was foreseeable

1. P cannot recover from D if T acted deliberately tointervene UNLESS D has an explicit duty to prevent Tsmischief or criminal conduct (Brower). D is liable whenat the time of his negligent conduct he realized orshould have realized the likelihood that such a situationmight be created, and that a third person might availhimself of the opportunity to commit such a tort orcrime. P cannot recover once D or some independentparty has neutralized the risk.

ii. Natural events: usually not liable UNLESS D knows that such anextraordinary force is about to be launched and can organize

his activities to avoid its wrath then can be found negligent forputting others in harms way.

e. D created harm but resulting injuries are difft than expected:i. Directness test: works backward to see if it is direct or remote.

D not liable if intervening acts sever causal relationshipbetween Ds actions and Ps harm

1. Polemis: some small dents were foreseeable from Dsnegligence, but the expolsion was found not to be; D


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was still held responsible on its interpretation of thedirectness test: if some harm can result then liable forall harm that does result

ii. Foreseeability test: when D is negligent, ask whether Ps harmwas within the class of consequences that was foreseeable

(reasonable person standard) at the time D acted: D liable onlyif harm caused was foreseeable

1. WagonMound 1: P was denied recovery b/c the firewas not seen as foreseeable.

a. Still upheld eggshell skull rule- creating a risk ofharm will make you liable for additional harmeven if only some small harm is foreseeable

2. WagonMound 2: P can recover b/c P can argue that therisk of fire was reasonably foreseeable to D.

f. Harm suffered by someone NOT foreseeable: D does not owe any dutyof care to a particular P, b/c P was not within the ambit of danger

when D acted i.e. it excludes all recovery for a p who is foundunforeseeable (Palsgraf v. Long Island; so not proximate cause at allb/c P cant even establish breach of duty since D did nothing thatwould foreseeably cause harm to the P).

i. Palsgraf did not follow foreseeability reasoning but insteadruled for D because P was not within the scope of any dutyowed. RST: If D creates harm and it injures class of peopleactor could not reasonably have anticipated injury, D not liableto the persons so injured.

g. Proximate cause and Dutyi. R: accident must be within duty and it must be foreseeable

1. Virden v. Betts: D has a duty to construct a ceiling thatdid not fall apart and injure some. The fallen object didnot injure P. Ds mishap (falling from latter) was remoterather than a foreseeable and proximate cause.

a. If people were in imminent danger then hewould have been invited to rescue

2. Herbert v. Enos: shock was unforeseeable accident forwhich D is not responsible

Affirmative duties1. Generally no duty to assist, aid or protect a stranger from any danger, large

or small

a. Misfeasance: doing something wrongb. Nonfeasance: not doing anything

2. Duty createda. You created hazard, even if innocently:Montgomery trucking; Ds

truck stalled at bottom of hill non-negligently. Owed duty to warn ofhazard, bestposition to mitigate.

b. Conduct has caused harm to someone


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c. Gratuitous service expectation: Started providing aid when you haveno duty to: you cannot terminate it if it puts the person in a worseposition or do it negligently R324

d. D liable if negligently prevents 3rd party from giving aid (R327;Soldano: asked barkeeper if he could use the phone). Brown argues

that duty might not have been established.e. Promise to do something by D creates affirmative duty when promise

induces Ps reliance. (Marsalis; D negligently undertook renderingservices, as promised, of keeping the cat inside. P relied on thispromise.)

i. D performs promise negligently (Coggs; D negligent bc brokecaskets when moved. D is not liability if he made a promise butthen didnt perform. But he performed and therefore is liable.)

f. D liable for failure to notify of abandoning practice/duty even ifpractice is not required

i. Erie majority: where the traveler upon the highway knows thepractice and such traveler has been educated into relianceupon it, some positive duty must rest upon the railway.

ii. Erie concurring: not just the educated but public at large isowed a duty to give a warning.

3. Must use reasonable care in all of the above circumstances.4. Duty of landowners:

a. Licensee (social guests, police): D must warn of known (obvious orhidden) dangers; no duty to inspect for hidden

b. Invitee (there for business): D obligated to warn of hidden dangersand keep property reasonably safe

c. Trespasser: no affirmative duty except not to create traps (Bush; 8 yrold)

i. Projecting an attractive nuance can lead to liabilityii. Duty to warn if harm might be suffered by those who dont

know and might stray on (dog sign)iii. Must correct dangerous situations quickly

5. Doctor under no duty to aid: (Hurley; Family doctor may reject request foraid).

6. Special Relationships:a. Rule: R315: No duty to control the conduct of 3rd person to prevent

him form causing physical harm to another unless:i. A special relationship exists bwtn the actor and the third

person which imposes a duty upon the actor to control thethird persons conduct OR

1. Tarasoff; D liable bc had duty to warn specific victim ofhis patients threats. Avoiding foreseeable harm.

ii. A special relation exists btwn the actor and the other whichgives the other a right to protection:

1. Landlord/tenant: (Kline; A landlord is responsible formaintaining the common areas of his property so as to


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minimize the risk of tenants may be exposed to anunreasonable risk of criminal attack.)

iii. Limitations: no duty when threat to unidentified or futurevictims, no duty when pt isnt control by doctor (not confinedby drs care).

Product Liability

1. MacPherson: D liable if probable danger (latent defect) and reasonableknowledge object will be used by persons other than purchaser (P purchasedfrom an independent dealer). TEST: P has to show negligence (failure toinspect, foreseeable (knowledge of danger) when P uses for normal andproper use

2. Strict liability for manufacture defect: manufacturing defects arise when theproduct is not made in accordance with its own specifications.

a. Coca Cola (b/f RST) concurring: created strict liability formanufacture defects b/c

i. Difficult for P to prove exactly what caused negligenceii. D is better equipped to protect against harm; loss spreadingiii. Implied warranty: consumer buys product relying on Ds

reputationiv. PMUST prove unreasonable dangerous (i.e. defective) when

left manufacturerv. PMUST use normal and proper manner; intended use

vi. *Majority was RIL but this gets rid of that standard.b. Greenman (accepted concurring in Cola): a manufacturer is strictly

liable in tort when an article he places on the market, knowing that itis to be used without inspection for defects, proves to have a defect

that causes injury in the course of its intended use.3. Modern Product liability: RST: 402(a): Special liability of seller of product for

Physical Harm to Usera. (1) One who sells any product(not service) in a defective condition

unreasonably dangerous to the user or consumer or to his property issubject to strict liability for physical harm caused to user IF

i. Commercial seller; ANDii. It is expected to and does reach the user without substantial

change in conditionb. (2) The rule applied although:

i. Seller has exercised all possible care in preparation and sale ofproduct (ie strict liability) AND

ii. User/consumer hasnt bought the product from or entered intoany K relationship with seller.

c. Does not apply to casual sellerd. Contributory negligence: or comparative negligence? it is a defense

when user discovers defect and proceeds unreasonably to use product4. Tort or Contract:

a. Economic loss rule (Casa Clara)


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i. If a product malfunctions, damages itself, K (breach ofwarranty) claim.

ii. If injury sustained to person/property, tort claim against D.b. Express warranties: Kremedy Any description of goods which is part

of the basis of the bargain creates an express warranty that the goods

shall conform to the description. P doesnthave to show defectjustthat didnt perform as D said it would (misrepresentation)/disappointed expectation. Hauter: golf gizmo.

5. Proper defendantsa. Casual defendants are not proper defendantsb. In majority of case law, wholesalers, distributors, dealers and retailors

in the original chain of distribution are held to the same standards asmanufacturers for manufacturing design and warning defects.

c. Physicians/hospitals provide services so not strictly liable: Cafazzo;Product incidental to service

i. Services, even when provided commercially, are not products(Murphey; hybrid of product/service. Ct held it was not thesale of a product but a service; diff ruling if it was an over thecounter drug).

ii. Hybrids: usually treated as product unless service can beisolated

iii. Landlord and hotels are services, strict liability doesnt applyd. Used products: D not strictly liable. If reseller/remanufacturer

guarantees the fitness and safety/reconditioned the product thenstrictly liable. Tillman; no strict liability b/c crane was purchased onan as is basis from D.

e. Successor liability: successor company NOT liable bc not seller ordistributor Except:

i. When the purchasing corporation expressly or implied agreedto assume the selling corporations liability

ii. When the transaction amounts to a consolidation or merger ofthe purchaser and seller corporation

iii. When the purchaser corporation is merely a continuation ofthe seller corporation; or

iv. When the transaction is entered into fraudulent to escapeliability for such obligation.

6. Construction/manufacturing defects: dangerous beyond ordinaryconsumers expectation:

a. Ps burden:Must prove dangerous beyond expectation of ordinarycustomer bc of departure from intended design (specs).

i. P can recover by circumstantial evidence by showing that itwas the kind that would not ordinarily occur in the absence ofa product defect.Speller: P valid cause of action bc sufficientevidence on both sides for case to go to jury (fire from fridge).

b. P must also exclude all other causes for products failure that are notattributable to D.


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c. For causation, once P establishes the flaw, D must identify how otherfactors have reduced its causal significance

d. Mususe: D duty to design to protect against intended use and againstforeseeable misuse

7. Design defect: negligence standard: product design was unreasonablydangerous. (Old standard was strict liability under Campo)

a. RST: a product is defective in design when the foreseeable risks ofharm posed by the product could have been reduced or avoided bythe adoption of a reasonable alternative design by the seller and theomission of the alternative design renders the product not reasonablysafe.

b. P must prove:i. D sold product in course of business

ii. Product was defective bc unreasonably dangerous when put toanticipated use

1. Old rule was that Defect cant be open and obvious topass. (Linegar: bulletproof vest; also used risk/utility:this was a reasonable trade-off

iii. Product was used in anticipated manneriv. A reasonable alternative design should have been adopted

that would have reduced or prevented injury to the P. Use risk-utility analysis

1. Minority: P has to make a prima facie showing that theinjury was proximately caused by the product design.Burden shifts to D to prove alt design & their failure(Barker)

2. Do not need alt design if arguing that product shouldntbe on market in first place (Potter)

3. Defect can go to jury under risk-utility analysis even ifalt exists or not (OBrien; pool).

v. Causation:vi. Damages: the appropriate measure of damage is only for the

incremental damage that could have been prevented bycompliance with design standards

c. Unreasonably dangerous tests:i. Consumer expectation test (not used anymore)If product

operates as expected, consumer expectation test fails and risk-utility test doesnt apply (Halliday; gun operated as intended;

Hand formula would have also worked)ii. Rasonable alternative design: Risk-utility analysis (HAND

FORMULA): compare harm caused by product with cost ofalternative. Factors to consider: dangers posed by challengeddesign, cost of alt design, feasibility (BAKER; problem withonly having Consumer expectation is that a manufacturerwould be able to market a product that is more dangerous thanit has to be simply b/c consumer expectation is that it is


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dangerous. So this test creates an incentive to make betterproducts).

1. Wade Risk-Utility standard:a. The usefulness and desirability of the productb. The safety aspects of the productc. The availability of a substitute product whichwould meet the same need and not be as unsafed. The manufacturers ability to eliminate the

unsafe character of the product withoutimpairing its usefulness or making it tooexpensive to maintain its utility

e. The users ability to avoid danger by the exerciseof care in the use of the product.

f. Users anticipated awareness of dangersg. The feasibility of manufacturer to spread the loss

b. Open and Obvious limitation: RST &Micallef: the fact that a danger isopen and obvious is relevant to the issue of defectiveness, but doesnot necessarily preclude a P from establishing that a reasonablealternative design should have been adopted that would havereduced or prevented injury to the P

c. Car crashworthiness: intended use covers involvement in accidents,manufacture to make car reasonably safe in foreseeable actions(Volkswagen; negligence not strict liability)

i. Risk-Utility:Hand formula. Do costs of precautions outweighrisks averted? Volkswagen: An automobile manufacturer maybe held liable for injuries sustained of a second collision ifthose injuries were the result of the manufacturers negligent

design.8. Inadequate warning: negligence standard:

a. Reasonableness standard: 2: A product is defective bc of inadequatewarnings/instructions when foreseeable risks of harm posed by theproduct could have been reduced by reasonableinstructions/warnings by the seller and the omission ofwarning/instructions renders the product not reasonably safe.

b. How Warning must be given:i. Reasonable efforts should be made to inform actual user/all

persons who foreseeably come in contact1. If this is not possible; then to qualified intermediaries

who then can either act on the information required orpass it on to those who need it

a. Medical cases: manufacturer must warn thephysician

i. Exception: if the drug or device ismarketed directly to consumer who, tothe manufacturers knowledge, makestheir decision to use the product without


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direct professional advice (MacDonald;Must warn the consumer).

ii. Pharmicists: any generalized duty to warnposes excessive burdens on pharmaciststo retain records, and might tempt

pharmacists to barrage their patientswith warnings that might induce patientsto disregard the advice of their physicians(Cottam v. CVS).

c. Adequacy of Warning:i. Duty to give comprehendible explanation and to use a degree

of intensity to convey the information on known or knowable(obj. std) side effects (Ortho). Also for inherent dangers(faberje; perfume on candle).

1. Requires reasonable testing to determinedangerousness: Vassallo; breast

2. Compliance with FDA not necessarily sufficient enoughif FDA does not make their rule preemptive of an CLthat exceeds their minimum requirement Ortho

3. Almost always better to overstate, even if debate overwhether there is a link (Givens)

ii. Almost always jury questioniii. Exception:

1. A defendant is not liable under the implied warranty ofmerchantability for failure to warn or to provideinstructions about risks that were not reasonableforeseeable at the time of sale, or could not have been

reasonably discovered through reasonable testing, priorto marketing of the product (Vassallo; doesnt apply tomanufacturer defects b/c strictly liable)

2. A manufacturer need not warn of every mishap orsource of injury that the mind could imagine.Moredetailed warning would undermine the effectiveness ofthe warning (Hood; warned that removing blade couldresult in serious injury is enough)

d. Causation: would change in warning lead P not to use? If so, causation.Use heating presumption?

9. PlaintiffsConduct:a. Application of comparative negligence: A Ps negligent conduct will

reduce his recovery in strict products liability by an amountproportionate to his fault (Daly v. GM; p was not wearing a seat beltand was thrown out of the vehicle.)

b. D still has duty to guard against potential, foreseeable misuse:i. Crashworthiness case: D breaches duty if it doesnt protect

against harm from foreseeable misuse.


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brown torts fall 2011

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