TORTS Goals of tort law

o want to compensate plaintiffo deterrence for negligent or wrongful activity

VICARIOUS LIABILITY

Respondeat Superior: employer is vicariously liable for negligence of employee while employee is acting in the scope of employment (Christenson v. Swenson)

o Policy Prevent future injuries Assure compensation…spread losses (fairness) Incentive to discipline/supervise Successful suit may deter business for tortuous behavior and give them

an incentive for better future behavior (hiring policy)o need all three criteria to establish what is the SOE: Birkner Test

1. ee’s conduct must be of the general kind that they were hired to perform2. conduct must be within hours and ordinary spatial boundaries of

employment (generally not if you are driving home from work, etc; employer loses control as you get later after operating hours and location)

3. conduct must be serving the employer’s interests (Swenson was trying to be efficient and needed to eat to be effective on the job to help company)

o SOE is highly contextual, and for a jury to rule on (where reasonable minds could differ—Christenson)

o if intentional tort by e’ee, usually they are not hired to do that, and often they are not doing it for employer (what is the drive? are you personally motivated?)

o start with E’ee tort then look at VL Apparent Authority (Roessler v. Novak)

o Principal: hospital; Agent: doctor; Third Party: patient suingo Three elements must be present for apparent agency:

1. representation by the purported principal (seemed like doc was an employee of the hospital)

2. reliance on that representation by third party (relied on hospital to make a good decision for him)

3. change in position by third party in reliance on representation; you would have acted differently had you known the truth (issue is that patient could not really change his position)

o Restatement does not look to D’s conduct, but to P’s reliance o Apparent authority exists when principal creates appearance of an agency

relationshipo AA is mostly a question for the jury and based on “reasonable belief”o Concurrence looks to “nondelegable duty”: hospitals s/b VL for activities w/i the

hospital where the patient cannot and does not realistically have the ability to shop for another provider

hospital is in better position to assure adequate service providers

this has to be an agreed-upon testIndependent Contractors Generally you cannot sue an employer for the tort of an IK Policy

o Doesn’t make sense to go after the company because they have less control and understanding of the work of the independent contractor

o Consumer expectations are differento Insurance/Business Management o Fairness

You want to be able to hire an independent contractor to have a job done more adequately, without concerns of liability

Both parties benefit Seems fair to spread risks to those actually doing the work

Exceptionso Employer’s own liabilityo Non-delegable dutyo Inherently dangerous activities

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NEGLIGENCE

1. DUTY

Misfeasance (an affirmative act which harms or endangers P) v. nonfeasance (a mere passive failure to act)

o Commission makes it easier to find duty, for an omission you have to prove an affirmative duty

Matter of law for the judge to decide on exam: treat like a yes/no question—is there a duty of care?

o then breach will be what the D should have done (what the standard of care should be)

in most cases, we will be owed a duty of careo could be policy reasons for no dutyo why do we have no duty of care for inaction? autonomy, you could make the

situation worse

Affirmative Obligations to act Affirmative Duty to Aid (Harper, Farwell)

o Harper failure to warn about the shallow water: omission

omission: no duty, except a special relationship social host has no special relationship with guest; when no special

relationship exists, NO DUTY superior knowledge alone (with no duty) does not establish liability cannot go around and impose duty on others independently

o Special Relationships: if P is in a vulnerable position (doctor/patient)

Good Samaritan rule for physicians to stop and assist at accidents custodial duty: parent/child common carriers, employer/employee, landlord/tenants

o Creation of Risk (negligently or not—some juris; historically N creation): you have a duty of reasonable care to prevent/warn/minimize harm (because you are putting them in a position that they would not have otherwise been in)

o Farwell duty to co-adventurers; companions on a common undertaking if this special relationship exists, and one party knows of the peril that the

other is in and could give assistance w/o endangering himself, then there is an affirmative duty to come to the aid

o No general duty to rescue: we want to deter inept rescueo HOWEVER: if you begin rescue, you must proceed with reasonable care; cannot

stop aid or leave person in worse position than when you began rescue some juris: if you leave worse off, you have a duty

Affirmative Duty to Third Party (Tarasoff)o Sometimes when special relationship between two people will create a special

relationship with a third (therapist and patient relationship; special relationship between therapist and patient’s acquaintance)

o public policy: unnecessary warning is a reasonable price to pay if some victims’ lives are saved; confidentiality privilege ends where public peril begins

o must be limited to specific threats (i.e. naming the person)/identifiable victims (but some jurs say reasonably FOS) (minority say no duty)

o concerns: therapy will be ineffective without trust; a lot of it is just venting = hard to predict; burden for getting to 3rd party

o jury will decide what the duty was; only rule here is that the duty existedo might look like he began to rescue when he called the police

Policy Basis for Invoking No Duty (Strauss, Reynolds)o Strauss

Failure of CE Elec. Led to NYC blackout. P fell in common area of building where landlord paid for electricity. Court held permitting recovery to those in P’s circumstances would violate the court’s responsibility to define an orbit of duty that places controllable limits on liability

electric company should not be answerable to the tenant for negligence of landlord

Policy is crucial here: avoiding “ruinous liability”; liability cannot be contained to manageable levels; no reasonable opportunity for these Ds

o Reynolds when social hosts serve minors with alcohol, they do not owe duty of care

to third parties for injuries omission argument: failed to card

commission argument: they provided the alcohol social hosts are not as able to monitor consumption as, say, commercial

vendors (also no profit motive like comm. vendors, and no ability to pass costs on)

liability would affect almost every adult policy: it is going to be much to burdensome Dram shop acts: impose liability on commercial vendors for harm

resulting from intox when they over serveo in an exam go after the obvious parties first!! victim would go after the drunk

teen first! then talk about the social hosts Landowners’ Duty to Occupiers (Carter, Heins)

o Key points Liability based on condition of land/property is generally imposed

on possessor of the land Rather than the owner This is because possessor is best situated to control condition of

land Limited duties generally apply only to injuries to someone who comes on

the property…if conditions of or action on your land cause injury to those outside your property

Ordinary principles generally apply OR sometimes SL principles apply Rationales for limiting duty to those who enter your land as

compared to those off your land:o Individualism concernso Notion of sanctity and privacy of homeo Right to use your home as you choose

o Three classes of plaintiffs (NOTE: STATUS CAN CHANGE):Definition Duty of Care

Trespasser All entrants unless given permission

No duty of care

Invitee Material benefit; open to the public; some juris: are you having a business relationship (some juris limits to landowner gets the benefit)

Duty to exercise reasonable care to protect visitor against known and “should have known of” dangers, and those revealed by inspection.

Licensee Visitor with permission, but no material benefit to defendant OR land is open to the public

Duty to make safe dangers of which possessor is aware.

Duties Owed to Trespassers No duty of reasonable care regarding conditions of or activities on

premises Often, duty to refrain from intentional, willful, and wanton conduct

Exceptions Discovered trespasser

o When possessor knows that T is on property, there is a duty to refrain from intentional, willful, wanton injury

o Some courts: Duty to use reasonable care, particularly where risk

is from activity on, as opposed to conditions of, premises

Rationale: misfeasance v. nonfeasance decision Frequent trespasser

o E.g., person who regularly cuts across your lawno Some Js

Duty to warn of hidden dangers Duty of reasonable care to avoid harm through

activitieso Other Js

Also duty of reasonable care for conditions or premises

Rationale: begins to look like tacit permission, merges in licensee

Child trespassero liability if:

Possessor knows or should know children are likely to trespass

Possessor knows or should know that condition poses unreasonable risk of death or serious bodily injury

Children do not discover the condition or realize the risk of condition

Utility of maintaining condition and burden of eliminating it are slight compared with risk AND

Possessor fails to exercise reasonable care to protect children

Rationale: trespassing children are FOS, whether or not enticed; traditional rationale… “attractive nuisance”

Duties owed to licenseeso Sometimes its hard to distinguish Ls from Ts

E.g. if possessor does not stop people from taking a shortcut, may lead to jury question regarding status

o Permission may be implied from Possessor’s conduct Or from condition of property

o Licensee is expected to accept premises as possessor maintains them May be entitled to be warned of known conditions

No duty To inspect premises To discover dangerous condition Or to make premises safe for the visit

Carter v. Kinney P slipped on ice on D’s driveway. Court held that Ds had no

duty to protect P, a social guest, from unknown conditions because he was a licensee. Social guests are classified as licensees because there is a common understanding that the guest is to take premises at the possessor uses them and does not expect preparations regarding his safety, etc.

o Some Js May be duty

To warn of known hidden dangers; duty to make safe known dangers

o Some courts impose duty of care regarding activities on, as opposed to conditions of, land

Operating machinery; Backing up a car, etc. Duties owed to invitees

o Possessors owe an affirmative duty of care:o includes:

to discover dangers to protect against dangers of which possessor is or should be

aware

Heins v. Webster Co.o removes the distinction between licensee and invitee (don’t assume this

for an exam though—it is a slight majority)o requiring standard of reasonable care for ALL lawful visitors (keeps

trespassers separate)o eliminates complexities of distinctions o concern with elimination: having to take more care than you would

otherwise takeo 7 factors to determine whether a landowner or occupier has exercised

reasonable care (breach): Foreseeability Purpose of visitor’s entry Time, circumstance and nature of entry Use to which premises are put or expect to be put Reasonableness of the repair, inspect or warning Opportunity and ease of repair, correction or warning Burden on plaintiff in terms of inconvenience and money

Immunities (NO DUTY)

o spousal immunity: abolishedo parental immunity: abolishedo governmental o charitable

Intrafamily duties (Broadbent)o parental immunity judged with the “reasonable parent test” standard; if they

owe a duty to the rest of the world, the child can then sue (some Js) breach is changing technically eliminating parental immunity

o if the child can’t sue the parent, then the government (other 3rd party) cannot sue parent either

o rational parent test takes into account different parenting styles, norms, and expectations

o **not an affirmative defense, it is ELIMINATING a component (saying NO DUTY)

o Earlier reasons advanced for parental immunity- Court thinks these are weak reasons

Domestic tranquility Court says injury to the child disrupts more than a lawsuit also might help the family if money is awarded

Danger of fraud Court says this is present in all lawsuits jury can figure this out

Deplete family resources Court says the opposite is true because insurance money will

come to parents Benefit the parent

Court says this is a problem for probate court and inheritance, not for tort law

Interference with discipline Court hints that parents can be sued for intentional torts

Governmental Entitieso GI is now the exception rather than the rule, but there are exceptions o varies by jurisdiction, and by type of governmento Bottom line: you cannot sue them unless they say you cano immunity when offering protection from external hazard-protecting the

publico Riss v. City of NY

P repeatedly asked for protection from crazy ex-boyfriend, courts said she could not sue

essentially treat gvnt’s like citizens: no duty to affirmatively act allocation of resources problem; not wanting to have judicial brance

interfere with executive brancho Exception to governmental immunity doctrine

Reliance: when they make a promise Police sought out help, and people responded; in doing this, they

create a risk when police are witnessing harm or beginning to aid NY rule for 911: direct contact with victim + reliance Special relationship

Assumption by municipality of promise or action to act on behalf of party

Foreseeability Direct contact between government agent and injured party Reliance

Duties to Avoid Emotional Harmo must have no physical injury!! or emotional distress that causes physical harmo tough areas:

physical harm is a result of ED bystanders have ED

Direct Victimso Falzone v. Busch

o D’s husband was struck by a car in front of her. o Court held that where negligence causes fright from a reasonable fear of

immediate personal injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright.

o could have also been indirect victim as well (watcho Elements you must show (Zone of Danger test):

reasonable fear of immediate harm

some division on this element that results in severe emotional distress (substantial bodily injury)

permanence or evidence that it is severeo Also must be in zone of danger (must immediately fear for her own safety,

and not of someone else’s o must have proofo Policy

Medical evidence suggests relationship between emotional disturbance and physical injury

Fraud may come up in all tort cases Difficultly of proving causal connection should not bar P’s recovery Expansion of “judicial machinery” in reaction to the impending flood

of litigation However, overdeterring remains a pertinent issue

o Gammon (minority approach—stretching)

o P was sent what he thought was his father’s severed lego Exceptional vulnerability of the family of recent decedents makes it highly

probable that emotional distress would result from mishandling the body. Therefore, defendant reasonably should have foreseen that mental distress could result from his negligence.

o Elements: ordinary person (especially a vulnerable victim) (FOS) high probability of severe emotional distress

o Emotional eggshell cannot recover for NIED because its psychological damage

Indirect Victims o Portee v. Jaffee

o mother sees child die in elevator shafto duty to avoid inflicting ED on third party if:

close relationship P witnesses accident (contemporaneous observation) are near the injured person death or serious injury to third person dt D’s negligence severe emotional distress (not if extraordinary reaction to less

serious injury)o Loss of consortium

o Historically only the husband could recover for loss lost of consortiumo has roots in economic loss (what is the value of a lost wife)o Parents usually can recover from lost of children

Historically rooted in children being economic assetso now it is rooted in emotional distress of sorts

o Courts reluctant to allow recovery for co-habitants on grounds of loss of consortium

o Courts are divided on whether or not to allow kids to recover for the death of a parent

o Scherr v. Hilton Hotels Corp.o no recovery for wife watching television showing fire in hotel her

husband was staying at she perceived endangerment, rather than injury

o courts are divided on whether or not people should be able to recover from the mistaken perception of a loved one’s serious injury or death

o i.e. injury not as serious as it seemed

Economic Harm (from online outline—not sure if needed) Duty of lawyers to clients

o Meeting filing deadlines Good claims exists for legal malpractice

o Making strategic choices Court not likely to allow such claims

Expert testimony would be necessaryo Recommending settlementso Criminal cases

P who had been convicted of a crime could not sue his defense attorney for malpractice without proving that he was innocent of the underlying crime

o Emotional distress Usually not likely, recovery for legal malpractice is often

grounded in economic harm However, other courts have suggested that when the attorney is

retained for non-economic purposes, such as criminal defense, adoption proceedings, or marital dissolution, damages for emotional distress may be foreseeable and may be recovered as one item of damages

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2. BREACH Adams test OR Hand test… don’t need to do both

Historical Development of Fault (Brown v. Kendall) Two dogs fighting. Owner of one of the dogs took a stick and in the process of

beating the dogs to separate them, struck the plaintiff in the eye, inflicting a severe injury

Judge moves away from fault requirement (historically writ of trespass) and starts to discuss “ordinary care” (“that kind and degree of care, which prudent and cautious men would use”; also s/b contextual)

burden of proof should be on the P to show D’s negligence in order to be liable for accidental, lawful harm, one must be found to lack due

care

Factors to Assess Reasonableness Adams v. Bullock

o Boy’s guardian filed suit for his injury resulting from swinging wire on bridge above trolley line and was shocked when wires touched. Court held that jury trial should not have even existed because there was insufficient evidence of fault.

o Sets standard of due care; D’s ordinary precaution could not have expected this extraordinary accident

o when D has taken all precautions to avoid risk during a lawful activity and the harm was unFOS, then D could not be held liable

o if D was liable, it would be treating them as an insurer for harm that they could not forsee

o Adams Factors for due care custom foreseeability

reasonable anticipation of harm likelihood

feasibility (cost, effectiveness, burden, possible alternatives) social value of the activity lawful act magnitude of harm

US v. Carroll Towingo Defendant was negligent in securing the Connor’s barge. The barge rammed

against a tanker, and sank. United States is seeking compensation for its flour on board, while Connors is seeking recovery for barge.

o Hand Formula B < PL = negligence (breach of standard of care)

P- probability (FOS) L- injury (magnitude of harm) B- burden (feasibility, value of activity)

o bargee should have been on boat, or they could have hired another bargeeo Policy:

Advantages: Economic efficiency (won’t pay $5 to avoid $2 of damage) The equation attempts to capture the community standard and is

simple Limits duty – not liable every time an accident occurs

Disadvantages: Immoral to put a cost on life – not everything can be put into

monetary terms, we will take risks for the social value; don’t want to be reduced to this and the equation makes us do this

Assessing value is difficult Hard to apply to individuals Information costs in assessing value (administrative costs) Juries cannot use this equation, so it’s not real life

Reasonable Person Standard external, objective evaluation consider reasonable person in like circumstances Exceptions to the reasonable person standard

o Children: SOC – reasonable child with that age, intelligence, and experience In some states, children < 6-7: conclusive presumption (can’t

comprehend risk); and 7-14: rebuttable presumption (can’t comprehend risk)

When engaging in adult activities, however many jurisd. hold children to regular standard (kids driving)

o Common Carriers (Bethel changed (in NY) this because it is outdated to hold them to higher SOC)

highest SOC (B < PL + x) is very vague; sets standard to “whatever you can do” regardless of cost

Highest Standard of care for parents whose children cause damage: Wood v. Groh (2000): Father had a gun and ammunition in the locked cabinet. 15 year old son broke into the cabinet and took out the gun and ammunition, and shot plaintiff. Court ruled that father should be held to the highest standard of care and it does not matter if the cabinet was locked because amm was in there

o Emergency: SOC- person in the same emergency situation. Some states reject this though.

o Distinct, Apparent, Physical disabilities- SOC as a reasonable person with that disability

o Sudden disability Hammontree v. Jenner

Court held that SL will not be applied to drivers who cause harm as a result of seizure-induced accidents

No exception because ofo Mental disability (hard to prove; risk isn’t apparent to warn others; policy

issues: gives incentives to caretakers); sometimes total insanity is an exception

o Gender (may lead to marginalization)o Elderly (what is the cutoff? they have already learned concepts of

reasonablenessRole of Judge and Jury in Assessing Negligence

o Judge decides lawo if reasonable people would not differ on facts (no need for jury)o determining what the duty was (if any)

o role of jury: o decipher facts

o Andrews v. United Airlineso briefcase fell out of overhead compartment and injured Po Common carrier have heightened duty, so even small risk of serious injury

may form liability (Note that this is California jurisdiction, not Bethel’s New York)

o Defense has not demonstrated that the burden of additional measures would be prohibitively high or that it would be inconvenient for customers

Jury could find that United failed to everything all that “human care, vigilance and foresight reasonably can do under all the circumstances.

o needs to go to jury to determineRole of Custom

o should just serve as a guide; does not define the standard of care (some evidence, but not conclusive)

o must look at purpose of the custom: is it to protect the public/individual, or just for aesthetics?

o look at it’s reasonableness o custom show feasibility (must be feasible if everyone does it)

o shows FOS: was the custom about preventing a certain type of danger? o Trimarco v. Klein

o Landlord left older shower doors in apartment bathrooms. Court held that it is for jurors to decide whether evidence presented establishes a general custom or practice

o Ignorance of customary safety measure MAY establish liability, and accordance MAY defend against it

Customs help develop reasonable expectations, but cannot define them

cannot look at this particular actor, but landlords in general What’s usually done may be what ought to be done is defined by a

standard of reasonable care, regardless if it what is usually done or not

We cannot presume that customs are reasonableRole of Statutes

o Note: violating statutes is ONE FACTOR/SOME EVIDENCE for proving contributory negligence (similar to use of customs)

o look at the statute’s purpose: not enough to just violate a statute, but it has to be one that is intended to protect against risk (is it generally about preventing harm, or is it about just keeping the peace; what type of harm is it trying to prevent—look at narrow and broad interpretations; what type of P is it trying to protect)

o unavoidable/unexcused accidents might be a different storyo if it’s avoidable, and it’s a safety statute, it is NEGLEGENCE PER SEo Not clear how many excuses would be allowed

4 variations of negligence per se:1. Pure negligence per se

Bright line rules gives jury least amount of freedom minority view/more historical…. Martin v. Herzog Three requirements:

D violated a statute The statute was designed to protect against the same type

of accident that D’s conduct caused; and The accident victim (presumably P) falls within the class or

persons the statute was designed to protect2. Negligence per se with excuses (most common)

Usually judge decides what counts:3. Rebuttable presumption (most common) for Prima Facie negligence

Usually jury decides what counts Rebuttable presumption- claim made by P which D must rebut in

order to avoid liability if D offers such a rebuttal, P still has to burden of proving

negligence Some evidence (gives most freedom to jury)

o Martin v. Herzogo P and husband were driving in buggy. Killed by D’s car coming in opposite

direction P: D did not keep to right side of road D: P did not have lights on (evidence refused in trial)

o When there is a unexcused violation of a statutory duty, and the statute is a safety statute, the defendant is negligent as a matter of law and there is no jury question on the matter of breach.

o Impson v. Structural Metalso Court held defendant truck driver liable for injuries incurred by P because he

violated a statute intended as a safety measure and said violation was found to be of proximate cause to P’s harm

o P: driver was passing too soon (points to criminal statute that prohibits it)o D: intersection sign was not visibleo Court found negligence per se for D

o Where are there excuses? The second Restatement: o violation is reasonable because of the actor’s incapacityo if they don’t know the occasion for compliance: if your tail lights aren’t on,

but you don’t know that they arento unable after reasonable diligence or care to comply: tire blowing up and

roads are bado if confronted by and emergency not due to his own misconduct: avoid hitting

a childo compliance would involve a greater risk of harm to the actor or to others:

pedestrian walking rules if it seems safer to walk on the other sideo Licensing statutes:

o drivers licenses: not really relevant to what you did, and not causally related (getting in an accident was not because of the license)

Proof of Negligence

o need to prove conduct and standard of careo most time, all you have is circumstantial evidence; lawyer needs to

investigateo Circumstantial evidence:

o Negri v. Stop and Shop circumstantial evidence about time lapse and dirty food on floor—

sufficient for a jury question can look at dirty food (jars were on the floor for a while—maybe) theory of n brought: constructive notice: shop should have known—

but insufficient evidence ***deciding on evidence, we must look at the case in the light most

favorable to the losing party; if not enough evidence, then case should be dismissed

o Gordon v. American Museum of Natural History to show evidence of constructive notice, the evidence must be visible,

apparent, and must exist for a sufficient length of time prior to accident

no evidence in the record to support this and case should have been dismissed

o Res Ipsa loquituro RIL is a jury question! o Key: trying to figure out the story and trying to fill in the gapso Elements

accident would normally not happen without negligence usually freakish or improbable

negligence is attributable to defendant (instrumentality was under the D’s control)

conduct of P or other Ds are eliminated by the evidence show the cause was D more likely than not

P cannot have contributed only in some juris why did it make sense in the past but not here? we don’t really

have comparative negligence anymore explanation of event must be more accessible to D than to P

only in some juris based in fairness argument not likely to be controlling factor

o Byrne v. Boadle Person passing by store struck by barrel of flour, which fell from

window in defendant’s shop; he had no recollection of how it fell from the window. No warning given.

barrel would not have rolled out without negligence based on prima facie evidence (rebuttable presumption)—

D has to prove that it was not them without rebuttal, P still has burden of persuasion

o McDougald v. Perry Plaintiff driving behind a tractor-trailer driven by defendant. The

spare wheel of the trailer came off and bounced into the air and crashed into the windshield of plaintiff’s Jeep.

do not have to disprove all other possibilities not rebuttable presumption, but permissible inference (majority)

D will not present evident P has burden of persuasion use common experience/general knowledge sometimes have directed verdict is evidence is so

overwhelmingly in favor of P… or if D destroys inferenceo MULTIPLE Ds: Ybarra v. Spangard

Group of doctors and nurses performed appendectomy on the plaintiff. Following operation, he suffered paralysis and atrophy of muscles around the shoulder. Plaintiff sues all doctors and nurses.

trying to combine alternative liability and special case: when the instrumentality that caused the harm is

unknown, and the d’s are the only one with access to evidence, RIL stretches the rebuttable presumption minority approach ruling makes you liable for negligence of team—should

provide incentives to make sure team is careful each person must rebut the evidence

Special Case: Med Mal Sheeley v. Memorial Hospital

o national standard of care upheld; discards the locality ruleo reasoning: family practitioners should be held to the same standard of care

as specialists; nationalization of communication, educationo POLICY rationale: may help break the conspiracy of silence within local

medical communitieso competency of expert witnesses to be determined by a judge; need to assess

the knowledge of the field, not that they are in the same fieldo custom is basis of SoC in medicine

generally need expert witnesses Informed consent

o without physical damages, you cannot recovero not dignitary harm: the harm in not being able to make the decisiono Matthies v. Mastromonaco

81 year old plaintiff fell in her apartment and broke her right hip. Defendant orthopedic surgeon prescribed bed rest rather than surgery. Plaintiff’s right femur displaced, her right leg shortened, and she lost ability to walk. Plaintiff was not informed of her options.

physician has duty to inform patient of all “medically reasonable” alternative courses of treatment/risks, even if non-invasive (look to reasonable doc—slight majority; or reasonable patient for what is material)

duty considered an omission, but is overcome by special relationship POLICY: increase patient autonomy

for patient to recover, they need to show that they would have chosen the alternative treatment (causation)

maj: objective reasonable patient minority: subjective test

3. CAUSATIONo For each case, need to show actual cause + proximate cause

Cause in fact – Actual Cause But-for Causation

o “but-for” D’s negligence, the injury would not have occurred/ sine qua nono Stacy v. Knickerbocker

P brought three claims: failing to erect a fence around the thin ice; failing to notify its employees of the location of the thin ice; failing to keep ropes and other equipment near the lake to pull the horses out

had all of the precautions been taken, they would have not saved the horses

Lack of Particularistic Evidenceo Stubbs v. City of Rochester

P contracted typhoid fever says that it was the city water; unable to prove direct cause

court: if P establishes fact from which it can be said with “reasonable certainty” more than 50% that the direct cause was the one for which D was liable, then P doesn’t have to disprove all other causes

jury question important to determine if the negligence caused P’s typhoid, not the

other 51 people’s typhoido Deterrence (look at handouts…)

100 Ps w/ typhoid, 75 are new probability D caused harm: 75% compensation to each: $100 optimal compensation? 25% overcompensated, 75% optimal overall payments: $10,000 amount harm caused: $7,500 optimal deterrence: overdeterred

100 Ps w/ typhoid, 25 new probability D caused harm: 25% comp to each: $0 optimal? : 25 undercomp, 75 optimal overall: $0 amount harm caused: $2,500

optimal deterrence: underdeterred Loss of Chance (but-for cause)

o Matsuyama argued that because of doctor’s negligence, he lost the chance to have

timely testing and treatment if patient goes from 70% chance survival down to 10%, then it is 60%

loss of change, which is greater than 50% = wrongful death these cases you would get full recovery don’t use LoC doctrine here

rationale for LoC going to doctor to increase chance

if you don’t die, you should still be able to recover because the INJURY is LOSS chance; HOWEVER: no court does this

must prove by a reasonable degree of medical probability Alternative Liability

o Summers v. Tice Ds negligently shot P. court held that burden is on each of the Ds to

show that it was the other’s shot which hit P. D’s “brought about a situation where the negligence of one of them injured P, hence it should rest with them each to absolve himself if he can.” Otherwise, P might be left remediless

when two or more defendants are acting in concert and both are negligent, alternative liability allows P full recovery (jointly and severally liable)

“substantial factor” difference from Ybarra

Ybarra is dealing with breach, while AL is dealing with causation

using rebuttable presumption for two different things Multiple Defendants/Joint and Several Liability

o alternative liability: all were negligent, but we don’t’ know who caused the harm

o a way to get to but-for causationo Joint and Several Liability

If more than one person is the proximate cause of P’s harm, and the harm is indivisible, then under the traditional common-law rule, each D is liable for the entire harm. The liability is said to be “joint and several.”

JSL Each of D is L for full amount of P’s damages P cannot recover for more than the allocated amount

Ds may be sued singly or with the other tortfeasors Applies only to single indivisible injury P is only entitled to one satisfaction of his claims

o Exampleo D1 and D2 jointly caused $2000 damageso P sues and gets a judgment against D1o Under JSL, how much can she recover from D1?o $2000, assuming D1 has the resourceso Under SL, how much can she recover from D1?o Only some portion of the damageso How damages are divided up depends on jurisdictiono May be pro rata (1/2)o OR based on percentage of degree of fault

Market Shareo Hymowitz

Argument for AL: s/b D’s responsibility to prove they weren’t the one that caused damage to the specific mother because they have better access to info; HOWEVER, seems less fair because the pool of Ds is getting too big

NY approach: several liability based on market share rationale: compensation and ***deterrence

No exculpation: this is inconsistent with tort law; the only way to exculpate is if you can prove you only marketed the pill outside the group of pregnant women

you can inculpate (parties show that someone else caused the problem); full damages if P can show causation; creates overdeterrance

P may not get full damages: some Ds might be out of business, others may exculpate, but that is OK because D is only responsible for their proportionate share of the harm

Proximate Cause (legal cause) related to duty (duty is decided by a judge) a mixture of law and fact, but this is mostly a jury question—if you want to avoid

jury, then just say it is a breach of duty looks to whether the wrongfulness of act and Ps harm are connected

factors: o FOS of

harm type of harm extent of harm manner of injury P

o directness are there intervening causes? how direct is the act from D’s original acts: time/space often there are multiple causes… do these cut off liability

Benn v. Thomaso Plaintiff died of a heart attack six days after he suffered from bruised chest

and a fractured ankle in a motor vehicle accident caused by defendant’s negligence

o Eggshell P rule: liability for the full extent of damages, not just those FOS to the D

take the P as the D finds himo what is UnFOS: extent of harm (injuries expected, but not death); type of

harm (thought he might just break an ankle, not die)o what is FOS: harm, P (he is driving in the car)o independent intervening causes may cut off liability (lighting hitting

ambulance on way to hospital) Polemis

o D negligently dropped a plank into hold while unloading it… plank struck spark and ignited ship (filled with benzene), that was later destroyed

o rule: “as long as the damage is directly traceable to the negligent act, and NOT due to operation of independent causes”, causation is found

Wagon Mound (majority approach)o oil spill from WM caused sea to catch fireo burning is unFOS, but slipways messy is FOSo rule: FOS type of harm (burning was not FOS here).. Polemis overruledo D should only be responsible for FOS consequences of his act because they

have to be judged from the reasonable person standard When property, use WM; when personal, Benn’s eggshell P rule applies

Superseding causes Doe v. Manheimer

o Plaintiff was raped by unidentified assailant on defendant’s property at 8 am in an area that had considerable overgrowth that shielded her from public view. Plaintiff suffered serious emotional and psychiatric problems afterward, requiring hospitalization, and attempted suicide.

o Three questions: is the conduct a substantial factor is it in the scope of the risk

is it reasonably FOSo if P is n, then it will only reduce damages, nut cut off liability o here we are not FOS-ing the rape; rather, it would be something like it

scraping youUnexpected Victims

Palsgrafo Plaintiff was standing on defendant’s railway platform. Two men ran to catch a train

and a guard on the car and a guard on the platform helped the second man get in but, in the process, the man’s package fell and exploded because it contained fireworks. The shock of the explosion threw down some scales at the other of the platform many feet away, which injured plaintiff.

o Cardozo looks to scope of danger; P is not in the zone of danger because she was so far away—he wants everything to center around duty (minority opinion): once we find a duty and you breach it, it doesn’t matter about how weird the outcome is; if you are in the scope of FOS, liability exists

o Andrews (Dissent/majority)—looks at proximate cause duty to the world at large once you act affirmatively factors:

natural and continuous sequence substantial factor direct connection without too many intervening causes not too attenuated is the cause likely + is the result too remote from the cause FOS time and space

_________________________________________________________________________________________________________

DAMAGES

Compensatory (Personal Injury/Property Damages)o goal is to “make the P whole” or “return the P to her pre-injury condition”o problem of commodifying life, limb—but no better alternativeo prove past and future (reasonably probable) damageso may be a windfall for either party

P windfall if recovers damages for future harm that doesn’t happen D windfall if P doesn’t recover damages for future harm that happens

o Future disease can usually recover if future disease is “reasonably probable” difficult to prove if you have to wait years P could get damages even if disease doesn’t develop…could deplete D

of money to pay those who do get disease most common approach is “two-disease” rule: allow P to sue for

second disease when it develops some bar recovery under single recovery rule even if future disease

develops

o Elements of Compensatory Damages Economic losses:

medical expenses (past and future) o requires expert medical and actuarial testimony

lost earning (past and future)o from time of accident to trialo future:

expected duration of injury/disability type of work P would have done without injury

(difficult when career path is undefined: students, children, homemakers)

how long P would have worked if no injury (life expectancy, type of work, level of interest)

fringe benefits reduced by earning capacity post-injury

property damage Non-economic losses

Pain and sufferingo physical pain from injury, recovery and/or disabilityo emotional distress: anguish, humiliation from

disfigurement, fear of recurrence, depression, reduced life expectancy

o Loss of Enjoyment of Life (LEL; Hedonic damages): loss of ability to enjoy experiences enjoyed prior to injury; measured against pre-accident life expectancy

unconsciousness? most courts deny recovery for P and S; divided as to whether they may recover for LEL

o Collateral Source Rule: traditional view: none of D’s business if P is compensated from

“collateral sources”: private insurance, workers comp, etc Wrongful Death and Survival Actions

o governed by statute (common law said death was not an injury): allows actions based on injuries that cause death

o [P injured -----SA-----{death]------WD----}o WD: actions on behalf of survivors for losses due to death of decedent

statutes determine which survivors can recover Economic (lost financial contributions; lost household services) non-economic (loss of consortium/companionship; emotional

distress)o SA

actions for personal injuries of decedent that decedent could have brought if still alive

economic and non-economic losses PRIOR to death (med expenses, loss of earnings, property damage, P&S)

o Contributory neg of decedent affects recovery in the way it would have if decedent had lived and brought suit (reduced)

Punitive Damageso above and beyond compensatory damageso intended to punish D for wrongdoing

limited to egregious wrongdoing (spite, malice, fraud/evil motive)o often N is not sufficient; mainly for intentional torts (but depends on

motive/conduct) Nominal Damages

o apply in some cases where P has not suffered compensable harm through D’s intentional wrongdoing (offensive contact batteries)

o not intended to compensate, but to recognize D’s wrongdoing really rare, small $, usually only to some intentional torts

**DEFENSES TO NEGLIGENCE

burden of proof on the D: “assuming that I had a duty that I breached, even if all four elements can be shown, I’m not liable because:

o P’s fault as well: contributory/comparative negligence most juris in comparative negligence look to standard of conduct: reasonable person of ordinary prudence

in like circumstances contributory:

completely bars P from recovering seems contrary to goal of letting P recover consistent with individualism: holds people responsible for

taking care of themselves never a defense for intentional torts, recklessness or willful

misconduct Last Clear Chance

o when it applies, D is L in full for the entire harm as if the P had not been contributorily N

o Allows P whose N placed him in a position form which he is powerless to extricate himself to recover for his injuries when:

D discovers the danger still has time to avoid the harm, AND D fails to exercise reasonable care to do so

o EX: P’s N causes her to fall over bridge into river; D in boat could have avoided harm, but acts negligently and doesn’t

o eliminated in most juris

comparative reduced damages for P based on degrees of fault (negligence) some also consider causation

o Uniform Comparative Fault Act: nature of the conduct of each party extent of the causal relationship excludes intentional torts

pure comparativeo most judicially adoptedo UCFA (see above)o Ps recovery reduced in proportion to their faulto If P is 80% at fault, D is 20, $100 damages, P gets $20

modified comparativeo most statutorily adoptedo Not-as-great-as: P recovers if fault is < D’so Not-greater-than: P recovers if fault is <= D’so who do we compare to?

Some juris say with each D some say with the aggregate fault of Ds; this is

better because P has better chance of having less fault than the aggregate; most juris use this

multiple Ds: JSL applies: o if P is 20% fault, D1 is 30%, D2 is 50%, D1 is liable for

$80o SOME juris hold D’s severally L: pro rata ($40) or

degree of fault ($30)o Contribution: Ds can get help from other Ds for paying

for damages Some Js apportion damages equally (traditional

rule) some Js (UCFA) apportion based on respective

fault If P is N and D is reckless: most states with pure comparative

N compare conduct If P is reckless, D is N: traditional contributory N rules barred

recovery; modified states P loses because fault is greater than D; in pure comparative, P gets reduced damages

If Ps conduct is criminal: mixed juris responses Do not talk about duty; just do Adams/Learned Hand

o P’s assumption of risk express and primary implied are not affirmative defenses because this

means there is no duty bar recovery in this case reduce damages in secondary AoR

Express Assumption of Risk Hanks v. Powder Ridge

o snowtubing accident due to negligence of tubing facility; Court concluded that the agreement expressly and unambiguously purported to release the facility operators from liability; HOWEVER, ti violated public policy

o minority approach because of policy reasons Tunkl factors

o suitable for public regulation P: potential danger, open to the public, for family

fun (want to help protect kids) D: you can do it anywhere, not statutorily

regulated anywhere elseo importance to the public

P: healthy D: leisure

o any member of the public can use it: for the P; no argument that it is open to the

publico advantage of bargaining strength

P: if you don’t sign, then you have to drive home D: don’t have to go to that specific venue to do it BUT: can you go to another resort that won’t

have a waiver for you to sign o standardized adhesion contract

for the P; no moment where it was not a contracto purchaser is placed under the control of the seller

P: run is designed and controlled by Ds D: he was in control of his own activity; not as

much as the cases in hospitals most juris will not uphold waivers that cover things worse

than neg (gross negligence, recklessness, intentional neg) this is treated as a barred recovery because you are

ELIMINITATING duty—not technically an affirmative defense because of this reason

Implied Assumption of Risk Murphy v. Steeplechase Amusement Co.

o Plaintiff fractured knee cap defendant’s amusement park ride (“The Flopper”) due to a sudden jerk. Plaintiff was fully aware that the ride consisted of jerks before he got on it.

o when a person takes part in a sport that you have observed, you accept the inherent dangers (violenti non fir injuria)

AoR is subjective: did THIS person know and NOT what she should have known

don’t want to inhibit vigorous participation in sports spectators: too much protection would reduce quality

experience and would increase ticket prices Elements:

o must appreciate the nature and extent of risko must voluntarily accept it

Typeso primary implied: risk is inherent to the particular

activity why bar: flood of litigation; vigorous

participation; hard to tell what is negligent activity and not—hard to assess

o secondary implied: encountered risk created by D’s negligence

**true defense here because negligence exists Davenport v. Cotton Hope

o Plaintiff was descending unlit stairway near his apartment and fell and was injured. He had complained to defendant management that the lights were not working two months prior to fall.

o P not barred from recovery unless degree fault > D’s negligence JURY QUESTION

o reduces damages if it was unreasonable to confront the risk

INTENTIONAL TORTS Intent

o the person acts with the purpose of producing the consequence oro the person acts knowing that the consequence is substantially certain to

resulto ***contributory negligence is not a defense hereo Majority feel like children can have intent just as easily as with adultso Garratt v. Dailey

Five year old defendant allegedly pulled chair as defendant was about to sit down, causing injury

intent can be proven though substantial certainty that a certain outcome will occur

if you are on notice that an act will cause an intentional tort, you are substantially certain, thus liable (we don’t care about intent here)

what if there is no SC, but there is intent? LIABLE! You cannot simply intend the act, you have to intend the injury battery… see below

Batteryo Elements:

Intentionally (either actual intent or constructive/legal intent proven though SC test)

Causing Harmful, offensive, or unconsented to (you could intend assault

too) (offensive contact): damaging to a reasonable sense of

dignity; usually results in nominal damages (see Wishnatsky) unconsented: hard to prove unless P has given notice

o if you are on notice that act will cause intentional tort, then you are substantially certain and thus liable (even if unreasonable: think “no hugs” sign)

**implied consent to touching (going through a crowded hallway, metro station)—no liability

Bodily contacto protects: security of person, dignity, respect to personal space and

boundarieso known eggshells depend on juris

majority: say no recovery minority: yes recovery (because this shows intent and “substantial

certainty of harm”) Assault

o Elements Intentionally

no hostility required intend to cause fear (sometimes to cause battery) intent can be transferrable: if you intend to cause battery but

cause assault instead, it transfers, and visa versa what if you intend to hit someone but hit someone else? Intent

will transfer (deterrence) Causing A reasonable apprehension of imminent harm

eggshells cannot recover: worried about fraud known eggshells? still fraud concern; flood of litigation

(minority approach says OK) mere words are usually not enough; sometimes enough in the

context conditional threats can work now Harm being threatened must be imminent (no futurity; you

have alternatives) P must be AWARE of threatened contact (think of Suter

throwing book at an oblivious person)o protects: mental autonomy; peace of mindo Picard v. Barry Pontiac-Buick

Plaintiff hired D to do a break inspection. She suspected foul play so she took picture of the 2nd inspection. D came after her shouting and pressed his finger against her camera. P claims to have suffered back trauma and sues for assault and battery

Battery? Yes: camera is “intimately connected” to the body and is such an extension

Assault? Yes: waving finger in menacing mannero Wishnatsky v. Huey

Plaintiff entered room without notification, and defendant, who was in a meeting, pushed the door closed, thereby pushing plaintiff back into the hall. Plaintiff sought damages for battery.

behavior that is rude and abrupt is not battery so long as the bodily contact was momentary, indirect, and incidental such that a reasonable person would not be offended under similar circumstances

must be a reasonableness factor for offensive contact; based on social usages

offensive contact/battery without damage = nominal damagesEggshell Plaintiff

NIED A Offensive Conduct Harmful

Recovery No No No Yes

Defendant knowsof sensitivity No Yes (Minority) Maybe Yes

False Imprisonment o Elements

Intend Unlawful restraint

space must be confined Restatement:

o actual physical barriers (cage)o apparent physical barrier (door is rigged and will

electrocute) overpowering physical force threats of physical force (imminent) other duress (moral pressure is not enough, nor is

economic threat) (think threats to property or family—could count)

o no threats of firing because you typically have that power as an at-will employer

asserting false legal authority against Ps will

o P must be aware of imprisonment or be harmedo reasonable period of time o Lopez v. Winchell’s Donut House

Ds called P into donut shop back room to confront her about stealing. Ds used no physical force, did not keep her against her will, and did not admit using unlawful restraint. Therefore, judgment upheld, no FI.

mere future threats (firing) is not sufficiento Damages: nominal; may also recover for mental suffering, humiliation,

loss of time; sometimes punitive damages Intentional Infliction of Emotional Distress

o Elements Intentional or reckless

recklessness: the harm will be likely to occur (greater probability than negligence (“likely” is slightly less than “substantially certain” which is the rule for intent)

Extreme and outrageous conduct abusing power, known eggshells (this helps make the case,

but does not prove), look at the time context, if it is repeated

nursing student decision was unusual (normally this would count as extreme and outrageous)

Causes (but-for, and proximate) liable for a broader range of harms than for negligence

SEVERE emotional distresso Womack v. Elridge

Defendant, in the course of investigating a case for an attorney, took picture of plaintiff that was later used for verification in a pedophilia charge. D fraudulently told P that she was a reporter, and later, D was summoned to appear before court several times, and suffered great emotional distress.

Court does not require physical harm; can recover for pure EDo Review so far:

Negligence: moderate risk; objective test (what is “reasonable”) Reckless: serious, grave risk; could be either—moving towards

more likely Intentional: substantially certain; subjective (state of mind of D)

Defenses Consent

o consent is to battery what assumption of risk is to negligenceo not a defense for anger fights (these are not planned)o must show capacity to consent; no duress, no fraud, and no

misunderstanding o **can be affirmative OR implied consent o children can consent to small things (handshake), but not to big decisions

(medical decision)o Hart v. Geysel

P dies in an illegal prize fight both engaged in the illegal behavior; unfair to deter one but not the

other consent is a defense here; also, battery requires unconsented

touching, which didn’t happen here since he consented! Self-Defense

o Elements: reasonable belief in light of the circumstances (this is an objective

standard—not an “honest” belief—subjective) imminently harmful circumstances (cannot be retaliation)—mistakes

are ok because of the imminence of the danger means of defense was reasonable/proportional force (non-

proportional force will reduce damages)o true affirmative defense? yes because you are admitting to the crime, but you

are saying that you did it in self-defenseo Carvoisier v. Raymond

P thought D police officer was part of a group of angry men mob and fired a shot at him in the crown

o third party self-defense? (trying to protect a loved one, etc) mistakes go to the Ps benefit (creates disincentives to not act rashly) cannot be retaliation; harm must be imminent maj: if you rx believe that [all the elements] then no liability, but if

mistaken, minority says liable o Duty to retreat?

restatement and minority view: yes, you have a duty to retreat no duty to retreat if in your own home majority: no duty to retreat if they are presenting with non-deadly

force if you can reasonably escape, then you have a duty to retreat and not

use deadly force (majority)

Defense of Propertyo must have a verbal demand prior to using force (GET OUT!)o must be reasonable/proportional force (jury question) if they don’t leaveo can use deadly force if justified in self-defense (not defense of property)o if there is a substantial chance that someone would get hurt, it reaches to a

level of recklessnesso better to use things like barbed wire: it is apparent and non-deadlyo Katko v. Briney

D, owner of unoccupied farm house, experienced several trespassing and housebreaking events. He installed a spring gun which fired at plaintiff who entered house to collect antiques. P entered house by removing board from porch window without glass. No sign warning spring gun. P sued for battery

court holds life more valuable than property have signs: AoR landowners are not responsible for eggshell Ps punitive damages? depends on the severity of the injury; con: the

trespasser broke the law too! Necessity

o usually deals with interference on propertyo must have reasonable fear of of imminent serious harm using reasonable

means (risk avoided > risk caused)o D is privileged to harm the property interest of P where it is necessary to do

so in order to prevent greater harm to third persons or to D herselfo Public: protecting the interests of others

complete privilege: not liable for damages; we don’t want to deter service to public interest

have to have reasonable fear of imminent serious harmo private: protecting your own interests

D has to pay damages here incomplete defense complete defense if you are doing it to protect the landowners’

property because you are helping them out what if you are harmed in the process? assumption of risk,

unless caused by neg of LOo Ploof: person comes on the land and the person expels the person; person

does not have this right because they are on there because of necessityo Vincent v. Lake Erie Transportation

D moored ship to P’s dock. Storm stayed on dock and kept tying it on. Ship rocked and caused damages

P is allowed damages because D did it to protect his own property case where burden is so high that D would rather pay damages than

bear burden (feels like SL: you caused the harm, even though out of necessity)

Elements:

reasonable belief of serious imminent harm cannot pose a greater risk

rationale: both are innocent religious tradition: the poor can take what is necessary to

sustain life, but they still have to pay (not entirely clear) if considering the “no duty to rescue” rule, there should be no

necessity defense: if you are bleeding in the street, I don’t have to save you, so why should saving you from a storm be any different

we want to incentivize the least amount of harm: staying on the dock

STRICT LIABLITY

Ultrahazardous activities more economic reasons wild animals in America, we recognize that by living near each other we are assuming risk;

negligence should be the test Fletcher v. Rylands

o Under no fault of D’s, his reservoir broke and the water entered P’s mine; D took due care, and did not realize that the two lands were connected

o holding: when a person for his own purpose brings something that is likely to do mischief onto his land, and it escapes, he is liable regardless of if he was not negligent

o Rationale: importance of land innocence of P water was not “naturally” there

o Excuses: contributory negligence OR act of Godo what about highway drivers? equal risk and reward to both

Sullivan v. Dunham o case of trespass on the person (not the land)o through no fault or negligence of defendant, they dynamited a tree and a

fragment killed P on the highwayo impose strict liability where injury is direct result of act o tension between landowner’s use of their land and the safety of others

Restatements:o 1st: ultrahazardous activities, risk of serious harm, can’t eliminate risk, not

common usageo 2nd: abnormally dangerous; 6 factors; have to show proximate cause (what

about it makes it abnormally dangerous; is it FOS)o 3rd focus on FOS, value to community

Indiana Harbor Belt

o Posner: law and econ; uses 2nd restatement o railcar was carrying toxic chemical and it leaked during transport.

homeowners forced to evacuate, and decontamination $$. Suing manufacturer

o this should be negligence, not SLo uses 6 factors:

high degree of risk: NO—very few accidents, non-corrosive substance likelihood that the harm that results from it will be great: YES inability to eliminate the risk by using due care: NO; can eliminate risk extent to which the activity is not a matter of common usage: Common

usage; important transportation hub inappropriateness of the activity (locale): NO; rerouting would

increase danger extent to which its value to the community is outweighed by its

dangerous attributes: NO; benefit to the entire country; cheaper property, more jobs

o focus on the activity, not the specific act; negligence focuses on specific acto SL can stop the activity all together

Moves us into Economic Theoryo is B > PL , we need to consider whose activities levels we want to change

it will make D change/reduce/stop activity levels if they are going to be held SL

o Loss spreading: goal: spread among multiple actors is less harmful than one person

paying $100 (each dollar for them is worth more than the one before)o Loss avoidance:

reduce number of accidents and the costs of those accidents do this through DETERRANCE

specific: laws against it general: tort law, taxes, the actors can decide now

o Loss allocation: internalizing the costs if they have to internalize, then they will make judgments on good

uses of the resources who do we want to internalize the cost: the party that can avoid the

risk and who can reduce the risk most cheaply (look for cheapest cost avoider)

o administrative efficiencies Special cases

o Wild animals: look at context (wild animal in one country might not look like a wild animal in another)

not necessarily based on propensity of harm: zebra and tiger are equally as wild

probably no SL for zoos/circuses: we want to encourage these activities

look to what is normally expected of the type of animal (abnormally dangerous poodle you would be SL)

Product Liability **Theoretically could sue for SL, negligence, and implied warranty (on exam, treat it

for SL… don’t do negligence or IW) issues: how are D and P connected? how is the product defective? where in the chain

of distribution do the parties lie MacPherson v. Buick Motor Co.

o Plaintiff was thrown out of a car that the defendant manufactured when the wooden wheel that plaintiff did not manufacture crumbled because of defective wood/spokes. There was evidence that the defect could have been found through reasonable inspection. There was no contractual relationship between plaintiff and Buick, the only contract was between plaintiff and dealer.

o moves away from privity of contracto could recover for negligenceo duty will go to manufacturer because consumers cannot test these thingso scope: FOS (know P will be the user—FOS P); know there will be no

inspection by consumer; knowledge that the danger is probableo difference between visible and invisible defects

Escolao Coke bottle exploded in waitress’ hands when moving ito Majority: RIL, but it’s a stretcho Traynor says SL

Policy reasons: loss avoidance: eliminate products that are a menace to society internalization: business is more able to bear costs risk spreading: mfr is able to spread losses to public lessen admin costs: SL is more straightforward

o SL when normal and proper use, in the market, and when it is used w/o inspection (MUST SHOW DEFECT CAUSED INJURY)

Potential Ds: o retailers can be SL (they will put pressure for quality on the manufacturer)o supplier of parts can if they provide a defective parts (split jurisdiction)

Potential Pso user/consumero passengers: must be FOS victims who are unable to inspecto bystanders: split because they are more remote, BUT they have zero chance

to inspect, and they can’t change their activities

Manufacturing Defects came off the assembly line incorrectly even if manufacturer exercises care; deviates

from the intended design restatement sets up the consumer expectation test (“unreasonably dangerous”)

Design Defects the design itself is defective (“unreasonably dangerous”) and all of the products

reflect that have to show but-for cause and proximate cause; think about intervening causes 3rd Restatement creates the 3 types of defects (manufacturing, design, warning)

o Consumer Expectation is incorporated into Ortho factorso says you have to show RAD except if the product is irreducibly unsafe and

they have no utilityo not all that different than Ortho factors

Cronin court wants to get rid of “unreasonably dangerous” from the restatement because it sounds too much like negligence

o A bakery truck driver was injured when in a crash the bakery trays came forward and struck him in the back – safety latch broken

o holding: This is not the majority of J’s. Here P does not need to show that the defect was unreasonably dangerous, must show manufacture or design defect and proximate cause

Barker caseo Liability not only when product is being used properly, but also when the

product is being used in an improper but reasonably foreseeable fashion Ex: using chairs to change lightbulbs—reasonably FOS misuse

o Two tests: consumer expectation test:

origins in implied warranty feels more like SL consumer wants it if it was hidden/complicated consumer doesn’t want it if the danger was open an obvious

Risk/Utility test (R/U) sounds a lot like Learned Hand test/negligence

Soule v. General Motors Corp.o The plaintiff claims that a defect in the defendant’s automobile design allowed the

left front wheel to break free in an accident and collapse rear-ward, smashing the floorboard into the plaintiff’s feet. Alleged defect caused enhanced injuries (CRASHWORTHINESS)

o Court decides to use R/U because it is a more technical/complex matter/producto CE Rule: Use where experience of the consumer permits evaluation on

whether the product is performing as it should (beneficial to D where danger is open and obvious)—makes sense in manufacturing defects cases because we know what to expect as customers

Manufacturer thinks this test is stupid and wants to eliminate it: consumers don’t have reasonable expectations; they don’t have the manufacturing knowledge to know how complex it is

good for bizarre things: car randomly exploxingo R/U Rule: Use where too technical for consumers. (hidden defect) (better

for manufacturer in this case) Camacho v. Honda

o The plaintiff bought a new motorcycle manufactured by the defendants and was in an accident where his legs were severely injured. The plaintiff claims that the absence of crash bars made the product defective. Crash bars were available from other companies as optional equipment.

o Honda wants CE test: pro-consumer-autonomy; consumer can make their own choices

o Camacho wants R/U (Ortho factors): if you use CE, then there would be no incentive for man. to make product safer, but just to make risks more obvious

USE ORTHO FACTORS ON EXAM utility (usefulness/desirability) probability/magnitude of harm safety available substitute (like RAD) ability to eliminate danger w/o impairing utility/cost user’s ability to avoid danger user’s awareness (like the CE test) feasibility of spreading loss: always in favor of manufacturer

3rd restatement requires an RAD (mention this)o Irreducibly unsafe products (knives)

look at utility knives have high utility, no RAD = no defect choppers have low utility, no RAD = defect

o Still in SL? we are focusing on the product itself, not the conduct of the manu.

(negligence) but in reality, we are still blaming the manufacturer and saying they made

the wrong cost/benefit analysis more like direct SL for the retailer because they didn’t make any design

choices, they just carry the product

Warning Defects two types of defects: failure to warn AND inadequate warning two types of warnings:

o how to use product safelyo to make customers aware of inherent risk

you cannot “warn away” risks—must warn for any risk that cannot be reasonably designed away (3rd restatement)

First question: do you need a warning, or should it be common knowledge? o if yes, is it adequate?

Hood v. Ryobio Plaintiff operated a miter saw without the blade guards in place despite

numerous warnings on the saw and in the instruction manual. As a result, the blade flew off and severely injured the plaintiff

o P thought that the guards were there to protect one’s clothing and hands from coming into contact with saw, not to protect the blade from flying off apparatus

o claim: insufficiently specific warning

o court’s test: warning that is reasonable under the circumstances (sounds like negligence)—if you overdo warnings, then the ones that are there lose their meaning

o Considerations for warnings (from the restatement) Intensity: how it is seen

size, font, placement, color, context language/diagrams/pictures/symbols

Comprehensibility Characteristics of users: audience (children?) Content: consequences of violation—type of harm, severity,

probabilityo need to show causation

looks like informed consent: a good warning would have led to different actions

heeding presumption: you presume that your P would have heeded the different warning; pro-P; burden on D to show that P would not have heeded warning

Vassaloo are warnings required only if they were known/knowable, or can you be

liable for things you find out after?o defective silicone breast implanto liability if:

reasonably FOS (feels like breach) through reasonable testing based on standard knowledge of an expert in the field

o majority do it ex ante: reasonably knowable based on what you knew at the time

o Minority: what is the argument for having to warn everything: admin ease,

research, invest in safety concerns for this rule: might restrict innovation

o Duty to warn: known or should have known can id who can benefit from warning and can effectively communicate

Defenses Is contributory neg a bar under 2nd restatement: no

o Assumption of Risk: bar 3rd restatement:

o contributory: damages reducedo AoR: doesn’t really talk about it

Tensions: can you really compare SL with N? Seems so different o in favor: incentivizes consumers to use products carefully and reduces risks

of accidents GM v. Sanchez

o duty to discover?o Texas: no dutyo 3rd restatement: duty to inspect if you could reasonably discover the defect

3 ways that consumer could be at fault: negligently failing to discover the defect negligently assuming the risk misuse: using the product in a negligent way

o design defects: is it a FOS misuse = defecto prox causeo defense: if misuse is negligent

courts divided about express assumption of risk