gold torts fall 2015

7/24/2019 Gold Torts Fall 2015

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Professor Steve GoldTortsFall 2014

Torts Outline

1. Introduction to Torts/General Information

Definitions:

Tort - civil claim for injuries that develop from commtween partiesStandard:in !rantin! a motion to dismiss if plaintiff wins trial moves on" if defendant

then case is over e#cept on appealDiscovery$ Findin! facts throu!h as%in! witnesses& etcPre-trial$Complaint:alle!es courses of action and sets forth facts supportin! the alle!ationsDemurrer - 'motion to dismiss( P has failed to state elements or cause of actionAnser$ disputes alle!ations and raises defensesSummary !ud"ment- no !enuine issue of material fact 'assumes facts most favora)le tonon-movant( either part* can sa* + win all facts !ivenTrial$,ench or jur* trial$ can )e either$ when jud!es then he hears and decides& when jur* thenhe is there to tell jurors law

Directed verdict- part* has failed to esta)lish facts sufficient to rule in his favor'assumes facts most favora)le to non-movant(erdict$ jur* decides who is tellin! the truth#urden of Proof:

,urden of Production - presents evidence" each element of the claim 'P.s )urden(,urden of Persuasion - convince fact finder whose version is more convincin!" if the jur*finds either set of facts are possi)le& the person with the )urden 'usuall* P( loses!ud"ment n.o.v.- motion to set aside jur* verdictCollateral $stoppel- issues liti!ated and determined are )indin! for parties involvedshould those issues arise in an* su)se/uent proceedin!Appeal: Standard of %evie

2 wa*seference - was the trial court reasona)le ')ased on facts(o eference - was the trial court correct ')ased on law(Several levels of review$ first level entitled to one appeal Second appeal is from supremecourt is optional the* decide if the* wan to hear it

&nintended In'ury


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(ammontree v. !enner- 3alif 151(STRICT LIABILITY V. NEGLIGENCE)epilepticdriver crashes into store& no lia)ilit* 6nintentional injur* should result in lia)ilit* O78when ne!li!ence can )e proven o strict lia)ilit* 9enner e#ercised reasona)le care'medication( and there was no reason to )elieve he would have a sei:ure ar!ued that

he was not lia)le )ecause he had ta%en all necessar* precautions to prevent a sei:ure andthe accident was unforeseea)le istinction )etween people who use drivin! and)usinesses ifference )etween drivin! and manufacturin! cases ;h* cost spreadin!

1 Once the emplo*ee is found ne!li!ent& the emplo*er is held strictl* lia)le& althou!h he

can assert an* defenses the emplo*ee ma* have had4 There is an important distinction )etween servants and independent contractors

3ontractors !overn themselves and thus it is unfair to impose strict lia)ilit*? Same rules seem to appl* to intentional torts )ut pro)lems arise )=c emplo*ees are not

authori:ed to use force& thus& if an intentional tort is carried out while doin! theemplo*ers )usiness& the emplo*er is held strictl* lia)le" if the intentional tort is wholl*unrelated to the emplo*er.s )usiness& the emplo*er will not )e lia)le

Cristenson v. Senson

1 Factsa Swenson wor%ed for the compan*& ,urns ;ent out for a lunch )rea%& !ot into a car

accident& and plaintiff sued Swenson and ,urns

2 +ssuea ;as ,urns vicariousl* lia)le> @oldin!=


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) Amplo*ee.s conduct must occur su)stantiall* within the hours and ordinaril* spatial)oundaries of the emplo*ment ';here B ;hen(

c The emplo*ee.s conduct must )e motivated& at least in part& )* purpose of servin! theemplo*er.s interest ';h*(

i This test onl* wor%s for Amplo*ees& not independent contractors

. Restate!ent o" E!#loyee Testa Amplo*ee acts within scope of emplo*ment when performin! wor% assi!ned )* theemplo*er or en!a!in! in a course of conduct su)ject to the emplo*er.s control

) Cn emplo*ee.s act is not within the scope of emplo*ment when it occurs within anindependent course of conduct not intended )* the emplo*ee to serve an* purpose of theemplo*er

Apparent Autority/A"ency

%oessler v. 0ova2

1 Facts

a Plaintiff suffered serious complications after sur!er* which was ordered )* anindependant contractor 'radiolo!ist( for Sarasota Demorial hospital Plaintiff sueshospital& and hospital sa*s the* are not lia)le )ecause the independant contractor was notan a!ent or emplo*ee of the hospital

2 +ssuea id the contractor=radiolo!ist have apparent authorit* to act on )ehalf of the hospital> @oldin!=


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4. 0e"li"ence Principle

1( Alements of a e!li!ent 3laima( ut*)( ,reachc( 3ausationd( ama!es

5ault +ia,ility

#ron v. 6endall- Dass 1E?0 (BREAC$ %& 'E CARE) tries to stop do!s fromfi!htin! and hits P with stic% was actin" lafullyand was not lia)le unless he wasactin! ne!li!ent or careless o need to show he e#ercised e#traordinar* care& reasona)lecare is sufficient +f the injur* was unavoida)le and .s conduct was free from )lame&there is no lia)ilit* ,e!innin! of reasona)le man standard for esta)lishin! lia)ilit*

Standard of Care

Adams v. #ulloc2- 8 11 (REAS%NABLE CARE)%id swin!in! wire )rin!s it incontact with electrical wire and is electrocuted not lia)le )=c injur* was notreasona,ly foreseea,le ;here e#ercises reasona)le care& he will not )e lia)le for an*e#traordinar* peril that ma* result +f no dut* was i!nored& there was no )reach3ompare to ,raun case 'def should have foreseen that a )uilder would !ra) the wires -lia)le( and Green case '%neelin! mechanic trips lad* in store - not lia)le( otecould asi!n warnin! of dan!er have prevented the accident rdinary ris2 re7uires ordinarycare 3an )e foreseea)le and not )e ne!li!ent - there is no )ri!ht line AconomicCnal*sischance of harm is so remote that the cost to avoid such injur* 'evenforeseea)le injuries( is enormous and disproportionate to the cost of injuries

&.S. v. Carrol Toin" - 145 (LEARNE' $AN' &%RLA))ar!ee a)sent when )ar!e)ro%e loose and caused dama!e& lia)ilit* )ased on formula )=c )ar!ee should have )eenthere durin! )usiness hours There is a )reach of the dut* when ,P7 '#urden ofade/uate precautions is less tanPro)a)ilit* of injur* timesthe potential +oss resultin!( This sort of cost-)enefit anal*sis is difficult in that it is difficult to /uantif* values +t isnot li%el* that the determination of ne!li!ence can )e this precise

1 @and Formula ',P7(2


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!ettin! out to loo% is automatic contri)utor* ne!li!ence and creates one standard forever*one in all situations

Po2ora v. a,as %ailay Co.- Sup 3t 1>4 (RLE %& LA+) P !ot hit )* traindrivin! across


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Trimarco v. 6lein- 8 1E2 (Role %& CST%) Tenant injured )* fallin! throu!hshower door that was not made of safet* !lass 'custom( 3ourt found custom sets theminimum standard if it.s reasona)le& )ut the jur* can determine reasona)le +f standardsare left up to industr*& the* can )e %ept low to cut costs

Plaintiff ar!ued that the industr* has a custom of doin! thin!s a safe wa* and if

*ou.re doin! somethin! less safe than the custom& *ou.re not ta%in! reasona)le care3ourt said that not followin! industr* custom does not automaticall* mean there.sne!li!ence& )ut it.s evidence of what the standard of care is 'enou!h for a jur* trial(

Te %ole of Statutes

3ompliance with statute is not enou!h to meet the standard of care& ,6T une#cusedviolation of a statute is a presumption of ne!li!ence - ne"li"ence per se. There aree;ceptions$

1 violation of the statute is safer or more reasona)le2 statutor* purpose - when actual harm that occurs is different than what statute is tr*in! to

prevent> licensin! statutes not used to set standard of care1 followin! the statute does not automaticall* mean had met the dut* of care

1 %estatement < )== A$$;cuse for statutory violations.2


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1 Constructive notice- ' should have %nown of ha:ard( Dust )e visi)le and apparentand must e#ist for a sufficient time to permit to discover and remed* it 3ourtconclusivel* presumes an event occurred or fact is true )ased on circumstances

0e 8or2 %ules- must have constructive notice and prior accidents are irrelevant

0e !ersey %ules- mode of operation 'self-service( determines the standard Puts)urden of production on )=c 1( is pro)a)l* ne!li!ent and 2( is in a )etter positionto %now what happened 3an use evidence of past accidents to show mode of operationis inade/uate

0e"ri v. Stop and Sop Inc.- 8 1E? (C%NSTRCTIVE N%TICE) P slipped on)ro%en 'dirt* and mess*( )a)* food jars& lia)le )=c there was constructive notice& )a)*jars were )oth visi)le and apparent and present for a reasona)le enou!h time such that should have %nown of ha:ard

Gordon v. American >useum of 0atural (istory- 8 1EH (N% EVI'ENCE %&C%NSTRCTIVE N%TICE) P slipped and fell on wa#ed paper from vendor located nearsteps to s premises o lia)ilit* )=c no constructive notice& ha:ard was not visi)le&apparent and did not e#ist for lon! enou!h

%es Ipsa +o7uitor

1 Res Ipsa Loquitor- 'Ithe thin! spea%s for itselfJ( 4 elements$ or four1( Cccident does not normall* happen with out ne!li!ence&2( must have e#clusive control over instrumentalit* that caused injur*& and

a. >ultiple defendants: two or more defendants& and P can show that atleast one of the defendants was in control& some cases allow P to recover This isespeciall* li%el* where all of the s participate to!ether in an inte!ratedrelationship P !ets the )enefit of res i#sa& and it is up to each individualdefendant to e#culpate himself NY-arra v. S#anar/(>( o evidence that P did not act voluntaril* or contri)ute to the injur*4( P did not contri)ute

;hen %es Ipsa is proven&a there can )e no summar* jud!ment&) )urden of proof shifts to )=c he has )etter access to evidence concernin! the injur*& )ut

if meets )urden it shifts )ac% to P andc

permissi)le inference and presumption of ne!li!ence 'jur* ma* accept or reject(Defenses$ no e#clusive control& alternate e#planations sa* injuries happen fre/uentl*without ne!li!ence I+f it.s not clear how the accident occurred& consider res ipsaJ -,A77>ode of peration- choosin! self-service& operators a!ree to assume responsi)ilit*of conduct of customers who create ha:ards Ps do not need to find >rdpart* whocreated ha:ard& instead& store is ne!li!ent
http://www.lexis.com/research/xlink?searchtype=lxe&search=154+p2d+687http://www.lexis.com/research/xlink?searchtype=lxe&search=154+p2d+687


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%$S IPSA +B&IT%

1 Cllows Plaintiff to point to the fact of the accident and to create an inference that& evenwithout a precise showin! of how efendant )ehaved& efendant was pro)a)l*ne!li!ent

2


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ii +njur* must )e traced to a specific instrumentalit* or cause for which was responsi)le"or

iii P was respona)le for all reasona)l* pro)a)le causes to which the accident could )eattri)uted

iv A#clusive control ver* fle#i)le term

1 ma* )e enou!h that has the ri!ht or power of control" and2 the opportunit* to e#ercise itv Avidence must reasona)l* eliminate other e#planations than .s ne!li!encevi other responsi)le causes& includin! the conduct of P and >rd persons& are sufficientl*

eliminated )* the evidence1 e# e#plodin! )ottles and shippin! )ein! handled w= care manufacturer.s fault1. >ultiple Ds

i Dajorit* of decisions >rd part* injured - one part* must )e a)solved of fault )* someother specific evidence )efore res ipsa can appl* to other part*

ii A#ceptions Polic* concerns and hi!hest care duties where there is a specialresponsi)ilit*

1 uties re/uire to e#plain or pa*2 e# 3ommon carrier& doctors& sur!eons& hospitals etciii Dedical profession conspirac* of silence ma* also push this e#ception

#yrne v. #oadle- An! 1EH> P struc% )* flour )arrel fallin! from .s shop whilewal%in! past %es Ipsa +o7uitur case )=c P was in e#clusive control of )arrel and thist*pe of injur* doesn.t usuall* happen a)sent ne!li!ence therefore defendant must have)een unless evidence contrar*

>cdou"ald v. Perry

Facts$P was drivin! )ehind Qs tractor trailer while crossin! over some railroad trac%sC spare tire fell off of Qs truc% and hit PQs windshield The tire was secured )* a chainthat came with the trailer in 1H testified that he did a pre-trip inspection of the chain )ut did not chec% ever* lin% in thechain

+ssue$oes the doctrine of res ipsa lo/uitur appl* to the facts of this case

@oldin!$


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The spare tire escapin! from the cradle is the t*pe of accident which& on the )asis ofcommon e#perience and as a matter of !eneral %nowled!e& would not occur )ut for thefailure to e#ercise reasona)le care )* the person who had control of the spare tireP is not re/uired to eliminate with certaint* all other possi)le causes or inferences Cllthat is re/uired is evidence from which reasona)le persons can sa* that on the whole it is

more li%el* that there was ne!li!ence associated with the cause of the event that thatthere was not

8,arra v. Span"ard - 3alif 144 (E,CLSIVE C%NTR%L E,CE*TI%N) P injuredwhile unconscious durin! sur!er* invo%es resipsa lo7uitur 3ourt held all s lia)le thathad e#clusive control over P and P does not need to show which instrumentalit* causedinjur* @owever& court limits this application to medical conte#t

>edical >alpractice

Standard of 3are1 Set )* the medical profession and customs therein& juries can.t second !uess the standard1 +f r acted in conformit* with the standard& there is no )reach& if he didn.t there is a

)reach1 P must )rin! e#pert to esta)lish standard& unless standard is o)vious to la* person2 must meet minimum standard of s%ill and %nowled!e commonl* possessed )*

mem)ers of profession in !ood standin!> 7ocal and ational standards ma* differ4 Ph*sicians are jud!ed )* reasona,ly prudent pysician standardwhich allows custom

to set the standard This standard is hi!her than the ,reach arises when there is a failure to inform of relevant ris%s

Seeley v. >emorial (osp.

1( Facts$ Sheele* 'P( !ave )irth and received an episiotom* Sheele* developedcomplications and sued the ph*sician and Demorial @ospital '( P sou!ht to introducethe testimon* of an e#pert witness to esta)lish the standard of care and o)jected on the!rounds that an e#pert witness must )e in the same field as the defendant ph*sician Thetrial court sustained and entered a directed verdict in favor of P appealed

2( +ssue$ 1( ;hat are the criteria for determinin! whether an e#pert witness is /ualified totestif* re!ardin! the standard of care in the medical field 2( +s the appropriate standardof care re!ardin! cases in the medical field )ased on the standard of reasona)le care inthe same or similar localit*& or on a national standard

>( @oldin! and


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re/uisite standard of care +n decidin! whether to /ualif* an e#pert the court shouldconsider a ph*sician.s resources& practice area& and e#perience& )ut no one issue should)e determinative 2( The appropriate standard of care re!ardin! cases in the medical fieldis )ased on a national standard of reasona)le care

4( Polic*$ The Isame or similar localit*J rule has come under attac% )ecause it le!itimi:es a

low standard of care in smaller communities" furthermore the standard failed to addressthe conspirac* of silence that has prevented plaintiffs from o)tainin! e#pert testimon*The old standard is no lon!er applica)le in view of the present da* realities of themedical profession and modern transportation and communication

Sides v. St. Antonys >edical Center

3ausation element for consent cause of action$ what would have happened had the*

%nown all the information

Su)jective approach$ self-interest affects& not o)jective and all opinion& not relia)leO)jective approach$ would reasona)le person under!one had the* %nown the info opro)lem of su)jectivism& self interest& )ut conceptual pro)lem" the avera!e rationalperson does not represent ever*one elseDi#ed approach$ Aither too su)jective or o)jective& where do *ou draw the line Creasona)le person with li%e characteristics

. Duty

+n order to sustain a cause of action for ne!li!ence& P must first show there was a dut* onpart of not to e#pose P to unreasona)le ris% The rule of thum) is that there is no dut*when the action does not foreseea)l* cause harm +f harm is foreseea)le& there is a le!aldut* to consider how *ou act General rule sa*s tere is no dutyunless$

1 special relationship2 contractual relationship> statute4 assumption of care? creation of ris% 'co-adventurers(H The pu)lic interest in the proposed solution

Aven if one has no dut* to act& the* cannot prevent another from actin! o dut* torescue or )e a I!ood samaritanJPolic* considerations$ de!ree of certaint* the plaintiff suffered injur*& closeness ofrelationship& moral )lame& severit* of )urden placed on class of actors with )urden& andavaila)ilit*& cost and prevalence of insurance of those involved


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>alfeasance- the doin! of a wron!ful or unlawful act>isfeasance- the doin! of a proper act in a wron!ful or injurious manner actin"ne"li"ently

0onfeasance- the total omission or failure to enter upon the performance of somedistinct dut* which a person has a!reed to do failin" to act

LLLwhen creatin! a dut*& courts often create a slipper* slopeLLLThe /uestion of whether people have a dut* of care to prevent injur* to others is not afactual /uestion& )ut more of a le!al polic* /uestion

0o duty rule:autonom* is a!!ravated )* slipper* slope$ even trivial )urden ma*a!!revate a slipper* slope )ecause there is no place to draw the line For polic* reason nodut* to rescue$;ceptions: start to render aid& then *ou have to ma%e sure it is competent Start )ut cantput them in a worse off position& *ou create the ris%& dut* to do somethin! a)out the ris%*ou created even if not ne!li!ent& and special relationship such as inn %eeper& custod*&and to some e#tent friends

Affirmative ,li"ation to Act

Satterfield v #reedin" Insulation

(arper v. (erman- Dinn 1> (S*ERI%R N%+LE'GE) P dives off .s )oat intoshallow water and is paral*:ed 3ourt found no duty to arn e;cept en tere is aspecial relationsipand Isuperior %nowled!e )* itself in the a)sence of a dut* toprovide protection& is insufficient to esta)lish lia)ilit* in ne!li!enceJ

5arell v. 6eaton- Dich 15H (S%CIAL VENTRE) two !u*s !et drun% P !ets )eat

up& drives around with passed out P in car and leaves him in !randparents drivewa*& hedies > da*s later 3ourt found a special relationsip)=c the* were Hcompanions on asocial venture Clso said he had a dut* to rescue also )=c he had started to rescueandwas o)li!ated to continue

,li"ation to Control te Conduct of ters

The dut* e#ists when the victim is identifia)le and foreseea)le and when the e#istence ofreal and serious dan!er is esta)lished

%andi . v. >uroc !oint &nified Scool District

1. 5ACTSa. -The plaintiff&


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a. 6nder 3C law& does ne!li!ence arise from non-disclosure of past se#ual misconductwhen a teacher se#uall* assaults a student at a new school after )ein! hired due to lettersof recommendation that do not e#plain his resi!nation and=or alle!ations of se#ualmisconduct

4. (+DI0G

a. -8es The schools had a dut* to inform the hirin! school of those /ualities that couldpossi)l* cause harm to a third part*. Did defendants oe a duty of care3

a. -efendant ar!ued that there was no special relationship present that re/uired them todisclose

,. -3ourts have held in previous cases that if *ou )e!in to communicate information& *ouare re/uired to deliver all pertinent information

J. A0A+8SIS

a. Foreseea)ilit* of harm to the P& and connection )etween harm and ,. Cvaila)ilit* of insurance or alternate courses of conductc. Pu)lic polic* considerations 'moral )lame& preventin! future harm& etc(

Foreseea)ilit*$ Cssault was reasona)l* foreseea)le efendant.s actions form a causal connection to the

assault Cvaila)ilit* of +nsurance '+nsurance e#isted"

standard )usiness lia)ilit*( The defendants had alternate courses of conduct

the* could have pursued$1 The* could have refused to write a letter of

recommendation2 The* could have written a letter of full disclosure> The* could have written a no-comment letter

Pu)lic Polic*$ The disclosure owes to a third person not to

misrepresent the facts" ot disclosin! the whole truth is in fact& l*in!& or

misrepresentin! +f it is understood to )e the whole 3ould )e characteri:ed as morall* )lameworth*

Disleadin! or Disrepresentation The fact that omissions weremade in this case allows for the e#ception to the rule e#cludin!lia)ilit* for mere non-disclosure or failure to act

Tarasoff v. %e"ents of te &niv. of California - 3alif 15H ('TY T% +ARN) Patientof shrin% told him he was !oin! to %ill P& shrin% does not warn P and patient %ills her3ourt found special relationsip esta,lises a duty to arn identifia,le 4 rdpartieswho ma* )e affected& confidentiall* does not appl* where& )ased on esta)lishedprofessional standards the doctor %new& or should have %nown& that patient posed adan!er to these >rdparties Polic* issue re$ impediment of therap* process The court


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)alances confidentialit* a!ainst ris% to others ormall*& rs have no dut* to disclose&)ut now the* must if the ris% is Iso dan!erousJ@*po$ Paula piper$ dut* to warn 3an *ou appl* 7 R P # 3 6se standard of )elief ofps*chiatrists

0o Duty %e7uired

Strauss v. #elle %ealty Co.- 8 1E? (C%NTRACTAL RELATI%NS$I*) P tenant felldown stairs of landlords )uildin! durin! cit*wide )lac%out and sues & 3on Ad 3ourtfound no dut* )=c privity of contractutilit* has contracted with landlord and thereforeowes no dut* to tenant Polic* ar!ument that court has responsi)ilit* to Ifi; te or,it ofdutyJ to limit le!al conse/uences to controlla)le de!ree P was not a mem)er of a narrowclass Privity of contract defines scope of duty.

6u,ert v #est te;tin" case

1 Facts

a Plaintiffs are suin! the !irlfriend of the defendant for ne!li!ence )ecause she was te#tin!the defendant when he hit the plaintiffs while the* were on their motorc*cle

2 +ssuea +s the !irlfriend 'third part*( lia)le )ecause she was te#tin! her )o*friend while he was

drivin!> @oldin!a o C third part* can )e lia)le if the* %now that the person the* are te#tin! is drivin!& )ut

without that %nowled!e& the* are not lia)le) Te#ter.s dut* of reasona)le care is esta)lished when the* have actual %nowled!e or

special reason to %now that the recipient is '1( drivin! and '2( is li%el* to read or respondwhile drivin!

c For these reasons& !irlfriend is not lia)le

Social (ost +ia,ility

Drams Sop Acts

1 Da%es licensees lia)le for harm to third parties caused )* into#icated customers served at)ars

%eynolds v (ic2s

1 Factsa The @ic%ses !et married& and itQs a )i! part*& with >00 people there C *oun! relative&

Steven& is served alcohol @e drives off with his sister& and the* smash into


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a o The court declines to e#tend social host lia)ilit* to third parties injured )* into#icatedminors

) Social hosts aren.t capa)le of the same level of monitorin! that a commercial vendorwould )e a)le to do

i 3ommercial vendors are licensed4 3ommercial vendors are motivated )* profit? There would )e an increase in the num)er of defendants if social hosts have to ta%e

precautions

6elly v. Ginnell- 9 1E4 (S%CIAL RELATI%NS) !u* !ot drun% a P.s house and !otin accident on wa* home& court found P lia)le for dama!es caused )* drun% Asta)lished0!rule Isocial ostis lia)le when he willfull* and %nowin!l*. supplies alcohol to a!uest who is visi)l* into#icated. in the host.s presenceJ when he %nows the !uest will

have to drive 5oreseea,ilityKThe host will )e lia)le to >rd

part* victims of the social!uest in this situation +t esta)lishes a dut* to act reasona)l* to prevent foreseea)le injur*to >rdparties

arr v !>G> "roup

Statutes on #lac2,oard

1 A#clusive 3ivil


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h +njur* results from ne!li!ent operation of a motor vehicle )* the person who the alcoholwas provided 'drun% driver(

> Statue was more concerned with decidin! who is OT visi)l* into#icated4 This statute severel* limited ell* v Gwinnella The 9 supreme court descri)es the elements of the dut* it reco!ni:es 3ompare what the

supreme court said in ell* and the statute& and how do these claims line up +n whatwa* did the state le!islature limit the scope of what the supreme court did in ell*

Duty of +andoners and ccupiers

Carter v. 6inney- Dissouri 1? ,i)le stud* !roup - presents traditional > status view$

1 Invitee- either e#pressl* or impliedl* invited onto premises and whose presence is ofmaterial )enefit to the owner Or when opened up to the pu)lic 6T8 - must remed*conditions which landowner %nows or should have %nown 'must inspect( are dan!ersDust )e somethin! landowner %nows invitee will come in contact with and not )e awareof 'cant protect self( and landowner fails to ta%e reasona)le care to inform invitee

',usiness relationship(2 +icensee- enters landowners premises with permission )ut whose presence is not a

material )enefit to owner 6T8 - to ma%e safe dan!ers of which the owner is awareTa%es land as owner uses it 'Social !uest( oes not have to ma%e safer than personlivin! there ,ut no wanton ne!li!ence& has affirmative& dut* to warn

> Trespasser- on land without permission 6T8 - propert* owner cannot inflictwillful injur*" cannot intentionall* create a ha:ard" must warn foreseea)le trespassers ofha:ards that mi!ht cause death or serious )odil* harm ote$ Special dut* to childrenattractive nuisance hi!her standard of care owed to children which forces landownerto protect children a!ainst ha:ards which the* mi!ht not )e a)le to reco!ni:e )ecause oftheir a!e

($I0S *. $#ST$% C&0T8

(C%RT AB%LIS$ES T$E 'I&&ERENT CATEG%RIES)U court throws awa* the cate!oriesU @eins !oin! to visit his dau!hter on her lunch )rea% at the hospitalU P tries to wi!!le into invitee cate!or* )* sa*in! he went to the hospital to discusspla*in! SantaU ,ut P is la)eled a licensee accordin! to the traditional doctrine )ecause on this visit hewas purel* a social !uestU 3ourt sees that the distinction is completel* unfair in such fact-)ased anal*ses !oes

a!ainst modern social moresU The cate!ories are relics of feudalism and we don.t need them in an ur)an industrialsociet*U 3ourt holds that owners and occupiers onl* have the dut* to e#ercise reasona)le care inthe maintenance of their premises for lawful visitorsforeea)ilit* test

1 the foreseea)ilit* of possi)ilit* of harm2 the purpose for which the entrant entered the premises


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> the time& manner& and circumstances under which the entrant entered the premises4 the use to which the premises are put or e#pected to )e put? the reasona)leness of the inspection& repair& or warnin!H the opportunit* and ease of repair or correction or !ivin! of the warnin!5 the )urden on the land occupier and=or communit* in terms of inconvenience or cost in

providin! ade/uate protection

Posecai v almartFC3TS

Plaintiff was ro))ed in defendantQs par%in! lot Plaintiff sued& contendin! thatdefendant was ne!li!ent in failin! to provide ade/uate securit* in the par%in! lotconsiderin! the hi!h level of crime in the surroundin! area The trial jud!e ruledthat defendant was 5? percent at fault and the un%nown perpetrator was onl* 2?percent at fault efendant appealed The court of appeal found that the trial jud!eerred in apportionin! fault )etween defendant and the criminal who ro))edplaintiff +t amended the jud!ment to find defendant solel* at fault for the

dama!es suffered )* the plaintiff The court !ranted certiorari to review thecorrectness of that decision

+S36SS+O The court reversed& findin! that defendant owed no dut* to protect plaintiff from the

criminal acts of third parties The foreseea)ilit* was not present to impose a dut* on defendant to provide a securit*

!uard in its par%in! lot3O376S+O

The jud!ment of the court of appeal was reversed and jud!ment was rendered infavor of defendant efendant corporation owed no dut* to protect plaintiff from)ein! ro))ed in defendantQs par%in! lot The foreseea)ilit* was not present to

impose a dut* on defendant to provide a securit* !uard in its par%in! lot

5oreseea,ility and Duty

A v +ancaster County

Soverei"n Immunity/Governmental $ntities

Municipal and State Liability

5.) Dinisterial Ccts vs iscretionar* Ccts- Dinisterial acts are to )e done with reasona)le care- iscretionar* !overnmental polic* acts 'puttin! )arriers& etc( have a I/ualified

immunit*J


19/37

%iss v. City of 08- 8 1HE ('%CTRINE RETAINE')P was threatened andrepeatedl* as%ed police for protection police refused and P was injured 'l*e( P said owed dut* of care& 3ourt said O

1 A#ception - if a special relationship arisin! from a( a promise or assumption of

protection& )( %nowled!e that Iinaction could lead to harmJ 'person threatenin! has ahistor* of violence(& c( direct contact )etween a!ents of the municipalit* and injured or d(the injured part* justifia)l* relied on the protection

2 3ourt sa*s that the police department doesn.t have a dut* to protect as#e1i"i1 #erson'unless the*.re the /uasi-private entities such as hospitals( )ecause it protects the pu)lic!enerall*

1 Police do have a dut* to specific individual if the* decide to un/ertakeresponsi)ilit*

+auer v City of 08

1( Factsa( C %id dies of a )rain aneurism C preliminar* report indicates that itQs homicide )* )lunt

trauma& and the dad )ecomes the prime suspect 7ater& the DA determines that it wasnatural causes& )ut fails to correct the report& so the investi!ation continues for *ears Thedad has suffered /uite a )it in the meantime

2( +ssuea( 3an a mem)er of the pu)lic recover from a municipalit* for its emplo*eeQs ne!li!ence>(


20/37

5riedman v State of 08

1( Factsa( Friedman

i( ? *ears )efore& a stud* done )* department of transportation had said a )arrier needed to)e put up oesn.t do so for five *ears

'1( Trial& appellate& and court of appeals found for the plaintiff)( 3ataldoi( oes a stud* that sa*s a )arrier doesn.t need to )e put up& which turns out to )e incorrect

later'1( Trial court found for plaintiff& appellate court found for defendant& and court of appeals

found for the defendnatc( Duller

i( Three *ears after stud*& a )arrier was put up'1( Trial court found for plaintiff& appellate division found for defendant& and court of

appeals found for plaintiff2( +ssue

a( id the state of 8 owe a dut* to these people>(


21/37

a( 3ope !ot into a traffic accident on a ver* slipper* stretch of road There had )een priorstudies a)out the over-use of the road& and how slipp* it was +t was a hi!h-accident area&and seemin!l* low on the par% serviceQs list of priorities for repair

2( +ssuea( ;as this a discretionar* set of decisions 'su)ject to polic* anal*sis(

>( @oldin!=


22/37

(oldin" and %ule:o To )e lia)le for ne!li!ence& a part*.s act or failure to act must )e

the cause in fact of the accident +t cannot )e a matter of speculation

The court held that the pro#imate cause of P.s death was his ina)ilit* to swim& not the

failure of to maintain life preservers a)oard the )ar!e and the jur*.s decision was pure

conjecture and speculation The )urden of proof was on P to show that his a)ilit* to swim

did not pla* an important role in the drownin! There was no proof to show that if there

had )een a life preserver availa)le that P would not have drowned )ecause there was no

evidence that the wife would have )een a)le to save him

Stu,,s v. City of %ocester- 8 11 (*LAINTI&&7S BR'EN) ne!li!entl*intermin!led water s*stems for drin%in! and firefi!htin! P contracted t*phus and said itwas caused )* .s ne!li!ence 3ourt does not use I)ut forJ rule and introduces theHreasona,le certainty test. ;hen there are multiple possi)le causes& P need not

disprove oter possi,le causesand must onl* esta)lish with reasona)le certaint* that.s actions caused harm ,ut for test was not certain

>ultiple Sufficient Causes

>ultiple sufficient causes - Dore than one cause that can cause dama!e independentl*'two fires that )urn down a house at the same time( 3ompetin! causes& on the otherhand& are two possi)le causes& )ut onl* one can )e the cause to the injur*

Mucoic? v &nited States

1( Facts

a( Plaintiff filed prescription for the dru!& anocrine The prescription erroneousl*instructed plaintiff to ta%e 1H00 milli!rams per da* 'twice the ma#imum recommendeddose(

)( P was dia!nosed with primar* pulmonar* h*pertension 'PP@( She lived for 2? *earsand then died P.s estate claims that she developed PP@ due to the overdose ofanocrine& and )rou!ht suit under the Federal Torts 3laims Cct

2( A#pert Testimon*a( ( +ssuea( id P present sufficient evidence that the overdose of anocrine was the cause of her

illness4(


23/37

c( The mere fact that the e#posure to anocrine was li%el* responsi)le for the disease is notenou!h

i( +f aa ne!li!ent act was deemed wron! )ecause the act increases the chances that aparticular t*pe of accident would occur" and ,a mishap of that ver* sort did happen&this is enou!h to support a findin! )* a trier of fact that the ne!li!ent )ehavior caused the

harm ;hen such a stron! causal connection e#ists& the )urden shifts to to show thatthe wron!ful conduct was not a su)stantial cause

General Alectric v 9oiner---au)ert case

!oint and Several +ia,ility

!oint and Several +ia,ility- all defendants are responsi)le for entiret* of decisionPlaintiff ma* recover entirel* from one or all of .s& whichever P decides 9ointl* andseverall* lia)le is )ein! replaced )* comparative ne!li!ence where .s pa* )ased on

their personal V of fault +f .s were actin! in concert the* are jointl* and severall*lia)le @owever& courts prefer su,stantial factor test in which .s caused injuries andeither one alone would have caused it& 'independent sufficient causes( )ut the conduct ofeach was a su)stantial factor

Summers v. Tice- 3alif 14E (ulti#le 'e"en/ants)P and .s were huntin! to!ether Pwas injured when 2 .s ne!li!entl* fired !uns and it.s impossi)le to tell which one I,utFor testJ fails 3ourt held )oth .s lia)le 00companies There was onl* 1 chemical composition and therefore impossi)le to identif*the producer of the specific dru! that caused injur* 3ourt alloedrecover* on anational mar%et share )asis %easonin"$

1 This in an e/uita)le wa* to divide lia)ilit* and allow P.s recover*2 Dar%et share should )e on a national level to correspond to the overall culpa)ilit* of each

& measured )* amount of ris% each created to pu)lic at lar!e> does OT escape lia)ilit* even if he proves P did not use his product

4 Several not 'oint lia,ility& so P.s cannot collect entire amount from one

Pro;imate Cause

6sed to determine the e#tent of .s lia)ilit* after actual causation Goes )e*ond cause infact

) APP%AC($S$


24/37

1 Direct (arm - was ne!li!ence of a direct cause of injur* eed to loo% at closeness&time& space and intervenin! effects ,utdirect harm can also include foreseea)ilit*- thenatural and continuous pro!ression of events Polic* /uestion

2 5oreseea,ility- was the injur* reasona)l* foreseea)le +f *es& pro#imate causationifno& no pro#imate causation

STA0DA%D SIT&ATI0S: 4 SP$CIA+ SIT&ATI0S:

1. pected e;tent use direct arm approac 1. misconduct of 4rdparty

). pected manner use direct arm approac ). a""ravation of in'ury

4. pected plaintiff use foreseea,ility 4. amateur rescuers

. pected type use foreseea,ility

pected >anner: The defendant is ne!li!ent& the defendant could have e#pectedinjur* )ut what is une#pected is the wa* he was hurt e!li!ence still applies if the wasdirect causation Oil spill on plan% )ut weird thin! happens and fire

)oat fire caseR

pected $;tent: the* e#pect dama!e )ut just how much C )oard dropped causin!ship to e#plode 7ia)le )ut use e!! shell defense to limit the dama!es$ accident wouldhave happened an*wa* to limit dama!es Ta%e into account

pected (arm

#enn v. Tomas $""sell case

1( Factsa( P had a histor* of heart disease and died of a heart attac% H da*s after )ein! in an accident

caused )* .s ne!li!ence P.s e#pert said accident was the straw that )ro%e camel.s )ac% ar!ued that it pro)a)l* would have happened without the accident )ecause of thepree#istin! condition

2(


25/37

pected Type: uncommon 3ourt sa*s use two t*pes of tests direct harm andforeseea)ilit*

In re Polemis('I&&ERENT IN8RY &%RESEEABLE) .s servant dropped plan% intohold of ship which i!nited spar% which i!nited petrol vapors which caused fire which

destro*ed P.s vessel 3ourt found lia)le for all conse/uences& whether foreseea)le ornot atural and continuous pro!ression of events nce ne"li"ence is esta,lisedne"li"ent party is lia,le for all dama"es Overruled )* ;a!on Dound

verseas Tan2sip v. >orts Doc2in" 9 $n"ineerin" Co. - a"on >ound - Priv*3ouncil 1H1 (ACTAL RESLTS ST BE &%RESEEABLE).s ship ne!li!entl*spilled oil which spread over the water to P.s ship P.s wor%ers were weldin! and a spar%fell onto cotton floatin! on )oard in water& causin! spar%& causin! fire& causin! dama!e toP.s ship 3ourt found for & statin! that actual dama"e tat resulted must ave ,eenforeseea,le did not %now oil could )urn in water and could not have foreseen theintervenin! events that led to the fire This is now the ma'orityview

pected Plaintiff: did not %now that person !oin! to !et injured +f not foreseea)lethen no pro#imate cause and foreseea)ilit* test fails +f e#pected then *ou fi!ure outune#pected manner or e#tent Duty is oed to foreseea,le plaintiffs.

Supercedin" Cause

Second %estatement Section )# P". 1):

Supersedin" cause en$ ;hen third part* '1( intentionall* commits the harm&and '2( if the harm was outside the scope of ris% of defendant.s ne!li!ence& t2enthe defendant is not lia)le

Doe v. >aneimer

1( Factsa( Plaintiff is raped )* an un%nown assailant She sues the owner of the propert* where it

happened& )ecause there were some )ushes that screened the incident from view +t was a)ad nei!h)orhood& there were crimes& and this shielded area was a nuisance& perhapsattractin! the wron! element and ma%in! them )old to do thin!s the* otherwise wouldnot

2( +ssuea( 3an a landowner )e lia)le to victims for crimes committed a!ainst them on the

landownerQs propert* )ehind )rush and trees that shielded the area from pu)lic view

>( @oldin!=


26/37

c( This was clearl* not a case of cause in fact Cnd the rapist clearl* acted intentionall* Cndit seems farfetched that a prudent landowner would assume that over!rown ve!etationwould prompt criminal acts

d. Supersedin" Cause:;hen third part* intentionall* commits the harm& and if the harmwas outside the scope of ris% of defendant.s ne!li!ence& then the defendant is not lia)le

pected *ictim

Pals"raf v. +on" Island %ailroad- 8 12E('TY %+E' T% *LAINTI&&)- P stoodon platform waitin! for train .s 'wor%ers of


27/37

tou!h luc% 3ant claim soft shell 6se direct harm test Steinhauser v @ert:Xta%e themas *ou !et them

1 Amateur rescuer$ Pu)lic polic* sa*s we do not want to let defendants escapelia)ilit* for puttin! someone in dan!er and havin! a rescuer !et hurt and not !et

compensated for injuries Cmateur rescuer is a foreseea)le event Professional rescuer isdifferent

N. Defenses

Contri,utory 0e"li"ence

Ct common law& contri)utor* ne!li!ence was a complete defensean all-or nothin! rulein that if P was CT C77 ne!li!ent& it )arred an* recover* must prove same elementsof prima facie case to prove that P was also ne!li!ent

1 P had dut* to protect him=herself from dan!er2 ,reach of dut*> Cctual cause

4 Pro#imate cause? LLdama!es irrelevantLL

$;ceptionsto contri)utor* ne!li!ence$1 Statutes- where statute is desi"ned to protect personwho normall* can.t protect

himself& that person cannot )e held lia)le '%ids crossin! in front of school )us(2 H%easona,le Person- standard not used on persons with mental or ps*cholo!ical

difficulties 3ourts use a capacity ,ased standard> 3ontri) ne!li!ence is not a defense to rec%lessness& intentional torts4 H+ast Clear Cance- %new 'or did not %now )=c of ne!li!ence( of P.s ne!li!ence

and did not ta%e last chance to avoid injur*? Imputed ne"li"ence- transferrin! ne!li!ence of one part* onto another part* '3ourts

don.t li%e doin! this(H


28/37

t*pes$

1 Pure comparative ne"li"ence- if was 50V at fault and P was >0V at fault& then P willrecover 50V of the dama!es

2 H0ot as "reat as comparative ne"li"ence- if P is up to 4V ne!li!ent& P ma* recover

?1V of dama!es> H0o "reater tan comparative ne"li"ence - if ?0V or more ne!li!ent& P ma* notrecover an*thin!

C>PA%ATI*$ 0$G+IG$0C$: The comparative ne!li!ence s*stem re'ects te all-or-notin" approac of contri)utor* ne!li!ence& and instead divides te lia,ility)etween P and in proportion to their relative de"rees of fault Ps recover* is reduced)* a proportion e/ual to the ratio )etween his own ne!li!ence and the total ne!li!encecontri)utin! to the accident >ost states ave replaced contri,utory ne"li"ence itcomparative ne"li"ence

E 3ommonl* adopted$ 4H states have adopted some form of comparative ne!li!ence

F. !ustificationsa. P sould not ave to ,ear te entire financial ,urden of is loss

,. >ay encoura"e ne"li"ence on te part of D if e as reason to ope tat e ill

escape te conse7uences

c. Ps ne"li"ence could ,e very sli"t and Ds muc more responsi,le for Ps in'ury

d. See2s to avoid ne"li"ence on ,ot parties

1. Apportionment of Dama"es

a. $ntirely different approac

,. 5ocus attention on dama"es not lia,ility

11 P&%$ C>PA%ATI*$ 0$G+IG$0C$ Cll parties are lia)le for their share of thene!li!ence

a ama!es for P reduced in proportion to his fault) 3riti/ue allows major wron!doer to still recover some dama!es from a minor one

4. 5actors to ,e ei"ed

12 factors in considerin! contri)utor* ne!li!ence of )oth parties1> factors in considerin! causative ne!li!ence14 comparative ma!nitude of part*.s ,P71? comparative de!ree of a part*.s %nowled!e of ris%1H comparative de!ree of attentiveness to dan!er15 comparative de!ree of capacit* to control ris%vii 5I5T8 P$%C$0T C>PA%A TI*$ 0$G+IG$0C$ P.s contri)utor* ne!li!ence

does not )ar recover* so lon! as it remains )elow a specified proportion of total fault1 usuall* set at ?0V2 P cannot recover if his fault is e/ual to or !reater than that of viii OPureO versus OJO systems$ Onl* 1> states have adopted WpureW comparative

ne!li!ence The rest completel* )ar P if his ne!li!ence is 'dependin! on the state( 9asreat9 as .s& or 9reater9 than .s Pure form of comparative ne!li!ence apportionspercenta!e of lia)ilit* in direct proportion to fault 9ur* decides percenta!e ?0V


29/37

s*stem$ +f P is more than ?0V ne!li!ent& no recover* +f ?0V& states deal with it case )*case +f P ?0V& recover* can )e found

i;. Strict lia,ility offenses

1 courts denied defense sa*in! that le!islative intent was for it to miti!ate unfairness in)roader sense than just ne!li!ence

iii. Intentional torts1. Courts are split

). 1Q) - can apportion fault ,eteen D committin" an intentional tort and P committin"

ne"li"ence

1 Punitive dama"es are reserved for intentional tortfeasor to punis te

ron"doer

) purpose of comparative fault is to apportion dama"es ,ased on fault of eac

party and intentional conduct differs merely in de"ree from anton and ne"li"ent

conduct

4. 1Q) - Comparative fault is inapplica,le in conte;t of an intentional tort

iv. Causation

1 Once the determination of causation in fact has )een esta)lished& pro#imate or le!alcause ma* remain a /uestion of polic* that ma* )e suscepti)le to proportionment;. (o to Compare 5ault

1 6niform 3omparative Fault Cct Y 2')( +n determinin! the percenta!es of fault& thetrier of fact shall consider )oth the nature of the conduct of each part* at fault and thee#tent of the causal relation )etween the conduct and dama!es claimed#i $lements to Consider en Comparin" 5ault: >$>%IM$ Duty analysis Rcausation analysis

1 ature of conduct and e#tent of relations )etween conduct and dama!es2 ;hether the conduct was mere inadvertence or en!a!ed in with an awareness of the

dan!er involved?5> Da!nitude of the ris% created )* the conduct& includin! the num)er of persons

endan!ered and the potential seriousness of the injur*4 Si!nificance of what the actor was see%in! to attain )* his conduct '6tilit*(? Cctor.s superior or inferior capacitiesH The particular circumstances& such as the e#istence of an emer!enc* re/uirin! a hast*

decision5 3ausal relationship )etween defendant.s conduct and harm and the pro#imit* of it must

also )e considered )* the fact finder#ii >ultiple parties: ;here there are !ulti#le /e"en/ants& comparative ne!li!ence isharder to appl*$

1 Cll parties )efore court$ +f all defendants are joined in the same lawsuit& the solution issimple$ onl* the ne!li!ence due directl* to P is deducted from his recover*

2 ot all parties )efore court$ +f not all defendants are )efore the court& hard /uestions ariseconcernin!:oint6an/6several lia-ilitya The issue is whether the defendant's( )efore the court& who is=are found to )e onl*partl* responsi)le for P.s loss& must pa* for the whole loss aside from that caused )* P.sown faulti 'E0a!#le; P.s accident is caused )* the ne!li!ence of and Z P sues & )ut can.t findor sue Z The jur* finds that P was 20V responsi)le" & >0V responsi)le"" and Z& ?0V


30/37

responsi)le P.s dama!es total [1 million +t is not clear whether P can collect the full[E00&000 from 6nder traditional Wjoint and several lia)ilit*W rules& P would )e a)le tocollect this full [E00&000(> *arious approaces$ States have four or five different approaches to this pro)lemSome states have completel* a)olished the doctrine of joint-and-several lia)ilit* in

comparative ne!li!ence cases 'so that P could recover onl* [>00&000 on the a)ovee#ample( Cn important emer!in! approach is the 9allo1ative9 approach& )* which P andthe ss2are t2e -ur/en of an a)sent or insolvent defendant& in proportion to their ownfault 'E0a!#le; On the facts of the a)ove e#ample& P would )ear 2=? and >=? of the)urden of Z.s a)sence So P would recover [H00&000 total#iii +ast clear cance: 3ourts ares#lit a)out whether the doctrine of last 1lear 12an1eshould survive in a comparative ne!li!ence jurisdiction

63FC and +O;C and 9 comparative acts

5ritts v. >c6inne

1 Factsa Cfter )ein! injured in a car accident with his friend& plaintiff dies in

sur!er* after defendant tries to repair Fritts.s facial fractures efendantne!li!entl* failed to isolate the proper arter* durin! sur!er* efendant& incourt& tries to include plaintiff.s prior a)use of alcohol in dru!s evidence attrial

2 +ssuea 6nder O law& does a comparative ne!li!ence defense wor% when the

plaintiff& throu!h drun%enness& ended up in the hospital& which promptedthe operation which ended his life

2 @oldin!=


31/37

A#press a!reements$1( oes the contract do the jo) 'release from ne!l!ience(2( +s the contract enforcea)le 'A# sound pu)lic polic*(

(an2s v. Poder %id"e %estaurant Corp.

1. Factsa( efendant.s owned a snowtu)in! facilit* had plaintiffs si!n an a!reement& whichpurportedl* released Power ( @oldin!=


32/37

a(


33/37

1). A,normally dan"erous activity:

a. (i" de"ree of ris2

,. +i2eliood of "reat arm

c. Ina,ility to eliminate ris2 ,y reasona,le care

d. $;tent to ic activity is not commonly used

e. Inappropriateness for placef. $;tent to ic value for community is outei"ed ,y dan"erous attri,utes

14. Tere is strict lia,ility for dan"erous animals and for domestic animals if te oner

2nos of te animals propensities

14 Policy considerations$a 7oss containment one should not )e lia)le if not at faulti Goes to victim and advocates a fault-)ased s*stem) 7oss spreadin! this compan*& )* en!a!in! in this activit*& must a)sor) losses=costsspread to the communit*i Da*)e can pass losses to insurance companies

1. Doctrine of fairnessa. Allocation of loss is ,ased on fairness

,. Appeals to moral intuition tat D sould ,ear te costs and ris2s of is activities

2 A,solute lia,ility to )rin! upon *our land somethin! that could injure *our nei!h)ora )rin!s such thin!s upon his own land at his own peril) P is not at fault and should not have to )ear the loss> Trespass C direct and immediate violation of e#clusive enjo*ment of land w= the intent

re/uired i roppin! a )eam on propert* when it shouldn.t )e there4 has to show he didn.t cause the injur*? Trespass on te case Crises when there.s an indirect and inconse/uential injur* i P has

to show was at fault

H \uestion of who should )ear the )urden of sustained loss

%ylands v. 5letcer

1( Factsa(


34/37

not %ept under proper control& thou!h in so doin! he ma* act without personal willfulnessor ne!li!ence& he will )e lia)le in dama!es for an* mischief there)* occasioned

)( The law casts an a)solute dut* on a person who lawfull* )rin!s on his land somethin!which thou!h harmless while it remains there will naturall* cause dama!e if it escapess are prima facie answera)le for all the dama!e which is the natural conse/uence of its

escape The plaintiff does not have to show ne!li!ence The defendant however can useas a defense a showin! that the escape was P.s fault or that it was caused )* a major actof God

4( A#che/uer 3ham)era( ,rin!in! somethin! dan!erous& if water escapes& onto a propert* Strict lia)ilit* if it

escapes)( 3ourt wanted to analo!i:e these t*pes of cases with ridin! down hi!hwa*s 8ou accept

the ris% of non-ne!li!ent injuries To avoid the ris%& *ou don.t have to !o on the hi!hwa*;ith this case& however& the plaintiff could not avoid the injur* in an* wa*

?( @ouse of 7ordsa( IaturalJ v Ion-naturalJ

Sullivan v. Dunam

1( Factsa( Some !u*s are )lastin! a tree C piece of wood flies onto a hi!hwa* and %ills the

plaintiffQs decedent The )lasters were )ein! careful& thou!h2( +ssuea( Cre )lasters lia)le for the conse/uences of their )lastin!>( @oldin!=


35/37

)( +ndiana @ar)or 'P( maintained that the transportation of to#ic chemicals is anultraha:ardous activit* and therefore strict lia)ilit* should appl*

2( +ssuea( 6nder what circumstances is strict lia)ilit* appropriate>( @oldin!=


36/37

'1( The seller is in the )usiness of sellin!'2( Cnd product has not )een su)stantiall* chan!ed when it reaches the consumer

v( Aven if$'1( The seller used all possi)le care& and'2( There was no privit* of contract

>acPerson v. #uic >otor Co.

1( Factsa( ,uic% ma%es a car& sells it to the dealer& and dealer sends it to the plaintiff The plaintiff is

injured when the wooden wheel collapses2( +ssuea( oes ,uic% owe a dut* to plaintiff>( @oldin!=


37/37

d( 3onsumers will no lon!er need to )e war* of products The manufacturer.s o)li!ation tothe consumer must %eep pace with the chan!in! relationship )etween them

i( andermar% v Ford Dotor '3alifornia('1( Aver*one in the chain is lia)le 'dealer included(

ii( Almore v Cerican Dotors 3orp

'1( ,*standers can also )e entitled to dama!es from manufacturer and dealer

gold torts fall 2015

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