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Jing-Li Yu
Torts Outline
I.
Intentional Torts
- more or less deliberately inflicted. For each intentional tort, prima facie case consisting
of certain elements that plaintiff must allege and then prove to win lawsuit. Defendant
can respond to prima facie case either by denying allegations or raising affirmative
defense (alleging & proving additional facts that undercut plaintiff’s case)
A. Battery & Intent:
a. Elements of Battery:
- “A harmful or offensive contact with a person, resulting from an act intended to cause the
plaintiff or a third person to suffer such a contact, or apprehension that such contact is
imminent.” (P & K, based on Restatement §13)
i. Intent: intent to act: somewhere between intent to harm and mere intent to
touch.
ii. Voluntary unlawful act: not only criminal. Something like, inappropriate
under the circumstances.
iii. Results in offensive or harmful contact
b. Intent
i. Knight v. Jewett (NL): touch football -> falling & breaking finger. No
intent: “Knight did not believe Jewett had the intent to step on her… or
injure her.”
 Circumstances matter: maybe it’s expectation of contact & level of contact
-> whether or not intent.
ii. White v. University of Idaho (L): purpose behind intent doesn’t matter.
Seems to run toward intentional touch. Teacher intentionally touched
student’s back w/ purpose to simulate movements of pianist. Court holds
doesn’t matter what purpose is. Intent to touch + contact that is
unpermitted & harmful/offensive.
iii. Polmatier v. Russ (L): insanity does not negate intent for battery.
 promotes guardianship of the insane.
 except when insanity -> intent to touch that’s privileged (eg if believe
under attack, exercise self-defense)
iv. Keel v. Hainline (L): transferred intent itself can be transferred. If intent
re: B but hit C, still liable to C. In Keel, B would’ve been hittee but still
liable to C b/c he incited or encouraged battery.
v. Manning v. Grimsley (L): transferred intent for battery when hit C, but
intent was to put B in imminent apprehension of harm (pitcher throws ball
in direction of hecklers, hit someone who maybe wasn’t heckler)
 maybe it was enough intent to commit some battery, but results in battery
= enough liability for battery. B/c pitcher had intent for assault.
c. Voluntariness of Act
i. Polmatier v. Russ (L): insanity does not negate voluntariness of act. Act =
voluntary muscle contraction. Doesn’t require rationality.
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ii. Laidlaw v. Sage (NL): involuntary act b/c of instinct of self preservation in
face of pressing danger. (D had moved over P as human shield when
threatened w/ explosives by 3rd party)
- maybe distinction bw Polmatier and Laidlaw has to do with deterrence. In
Laidlaw, D wouldn’t be deterred anyway by L bc his life was in danger. In
Polmatier, at least D’s guardian would keep more careful watch if insane are
L.
d. Offensive or Harmful Contact
o the minimum required for battery.
o Objective test: what reasonable person would think is offensive or harmful.
 Although, D is liable for actual harm. Not just foreseeable harm. See
Vosburg v. Putney
o Contact can be w/ someone’s object (eg, bag, hat, etc.) not necessarily with their
person. See Morgan v. Loyacomo.
 Restatement: “All that is necessary is that the actor intend to cause the
other, directly or indirectly, to come in contact with a foreign substance in
a manner which the other will reasonably regard as offensive.”
 Not necessary for other person to know at that moment offensive
contact had been made.
 Actor is not liable for act that only involves risk of offensive
contact.
i. Leichtman v. WLW Jacor Communications, Inc (L).: smoke blown into
face is “particulate matter” that can constitute offensive physical contact.
ii. Madden v. D.C. Transit System (NL): absent showing of specific wrongful
intent, exhaust fumes fr bus cannot constitute offensive physical contact.
iii. Wallace v. Rosen: consent assumed for all common and “reasonably
necessary” contact in ordinary life.
B. Consent
a. Defense:
i. Negates what would have otherwise been an intentional tort
ii. To whom consent is given
iii. Scope of consent
iv. Info-eliciting: impose liability on who can get info most readily
b. Info-forcing at work:
i. Grabowski v. Quigley (L): where plaintiff consented to surgery to be
performed by specific person but someone else performed surgery w/o P’s
knowledge, held that P did not consent (in absence of emergency)
 make one in best position to divulge info do so
ii. Brzoska v. Olson (NL): Dentist not telling patient he has HIV does not
lead to different kind of touch than patient consented to. P’s fear held to be
unreasonable b/c no chance of infection.
 framed as positive claim but leans toward normative claim. Perhaps we
don’t want people to force info about their illness to others b/c we fear
stigmatism
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iii. Cohen v. Smith (L): idiosyncratic beliefs can be basis for not granting
consent when one informs others beforehand. P had informed hospital her
religious beliefs forbid being seen unclothed by a man. L when male nurse
saw her and touchd her.
iv. Werth v. Taylor (NL): implied consent of unconscious patient to medical
procedures necessary to save her life, even when she had told them her
religious beliefs forbid blood transfusions. Court reasons when she made
that decision, she was not in life-threatening situation.
v. Restatement: Consent as willingness in fact. May be manifest by action or
inaction and need not be communicated. If words or conduct reasonably
understood by another to mean consent, constitute apparent consent and as
effective as consent in fact.
 “implied in fact” implies actual consent
 “implied in law” fiction. Assuming consent based on what most people
think (e.g., Werth is implied in law consent)
c. Fraud / Deception and Mistake:
i. Negates consent when goes to “essential character of the act.” Example:
fraud from fact.
 Rains v. Superior Court (L): consent for beatings claimed to be therapeutic
negated b/c non-therapeutic nature of touch.
 Restatement examples: seduction of voice pupil by claiming would
improve er voice; A’s consent to boxing with B when B knows A does not
know A has defective heart- then B is liable to A for causing his heart
attack; A permits B to stain his face w/ walnut juice but doesn’t know it’s
permanent while B knows A doesn’t know.
ii. Does not negate consent when “collateral matter”. E.g., fraud from
inducement. Or when food critic lies about his job while in restaurant.
 restatement example: seduction by false promise of marriage. A seduces B
by offering a counterfeit $20.
 HOWEVER, when counterfeit $ offered to B to submit to blood
transfusion, A is liable.
 Freedman v. Superior Court: D told P a medication prevents infection but
it actually induces labor. P held to have consented; “essential character”
not effect of drug but control of patient by physician.
o concern with i & ii May be with capacity to consent. Minors, for instance, cannot
consent to some things while they can to others. Maybe also informational
concerns- since often L is when one party knew of a condition other party didn’t.
o Other principles:
 Ex ante Behind the Veil Bargains
 Magnitude & Distribution of Benefits & Burdens.
 Public benefits of deception > private costs -> NL
 Even when benefit is purely private, maybe NL when benefit to P
and no benefit to D (see Freedman)
o Example: Desnick (also a trespass case): NL b/c:
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
Ex ante, behind the veil, doctors want to disclose info b/c good doctors
have nothing to hide.
 Small private loss. Big public benefit to many people.
o Deception negates consent when no benefit AND no alternative remedy at torts.
iii. usually, consent to illegal activities is not effective. However, also a
counter-view.



McNeil v. Mullin: consent to illegal fight does not bar recovery. Broader
purpose of guarding against breach of peace. “consent to an assault is no
justification.” Majority rule.
Restatement (a minority view):
 Consent bars recovery although conduct consented to is criminal
o See Hart v. Geysel. Illegal prize fight -> no recovery when
death results. “No man shall profit by his own wrongdoing”
– a general principle applied to this case.
 If conduct made criminal to protect a class (e.g., sex with minors),
then consent of members of class does not bar recovery.
Perhaps concerns about autonomy, and about deterring wrongdoing.
However, mixed system may lead to sorting (e.g., bad fighters prefer
McNeil; good fighters prefer Hart) may lead to more wrongdoing overall.
C. Trespass
a. Elements of Trespass
Restatement §158: liability for trespass where:
i. intentionally
1. enters land in possession of other (or causes a thing or person to do
so)
2. remains on land or 3. fails to remove from land something he has
duty to remove
Restatement §168: Conditional (Or restricted) consent to enter land creates
privilege to do so only as far as condition or restriction is complied with.
o liable for trespass if intentional entry BUT mistaken belief it’s his land
(Restatement §164)
o NOT liable for trespass for unintentional or non-negligent entry on land of
another (or causing someone/something to do so)
 EXCEPT when engaged in abnormally dangerous activity.
o Harm is NOT necessary for liability to result.
b. see analysis for consent re: fraud & mistake.
c. Reciprocity of risks:
o May explain why traditionally, wandering dogs = NL, b/c my dog may trample
your garden today and your dog may trample mine tomorrow.
 Possibly b/c L = high admin costs but low or nominal damages.
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
But see Pegg v. Gray: intentionally letting dogs onto others’ land OR
constructive or actual knowledge of substantial risk of going thr others’
property = L. (D owned foxhounds -> overrunning P’s property and
causing her cows to stampede)
d. caves & airspace
i. Smith v. New England Aircraft Co.: D owned neighboring airport.
Airplanes often flew over D’s land.
1. NL for flights of over 500 feet. b/c statutes requiring planes to
maintain at least that altitude implying authorization for flights of
that height under gov’t’s police power.
2. L for flights as low as 100 ft b/c unfair levy on P’s property. Many
trees, buildings, etc. reach over 100 ft.
o gov’t can use eminent domain if strong public policy for
such low flights
ii. Edwards v. Lee (L): trespass when D opened a cave to make $, entry on
his property, but most of cave’s area under neigbor’s property. “to
whomever the soil belongs, he owns also to the sky and to the depths”
iii. Distinction between the two cases?
 possibly private use vs public use (but we don’t allow railroads to have
easement)
 possibly transaction costs: easy to ID entrance owner and neighbor, but
cost of IDing all that airline flies over is way higher (they don’t even know
whose property they’re crossing sometimes)
D. False Imprisonment
a. Elements:
i. Intent to confine within boundaries fixed by actor
- OR involves unreasonable risk of imposing confinement or harm
AND is negligent or reckless in risking bodily harm
ii. Directly or indirectly results in confinement
 confinement may be actual or apparent physical barriers (eg taking
crutches away from cripple)
 confinement must be complete:
o is complete although reasonable means of escape unless
other knows of it
o NOT liable for false imprisonment by intentionally
preventing another fr going in direction he has a right or
privilege to.
iii. Other is conscious of confinement or harmed by it.
b. Deprogramming cases / Duress
i. Peterson v. Sorlien (NL): indoctrination by cult undermines capacity for
informed consent. Therefore, individual confined for deprogramming
waives her lack of consent to confinement.
ii. Eilers v. Coy (L): distinguished from controlling precedent of Peterson.
Held plaintiff did not consent and defendants liable for false
imprisonment.
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c.
o
o
o
- perhaps distinction b/c Eilers repeatedly tried to escape, was forcibly
abducted, and was somewhat older than Peterson.
Citizen Arrest
typically asserted as defense after plaintiff has made prima facie case for F.I.
Actions taken in excess of c.a. can still be f.i.
traditionally recognized as privilege only for felonies or violent misdemeanors.
 Shopkeepers traditionally could also be liable for f.i. if wrongly deter
someone suspected of shoplifting but now statutes provide for reasonable
detention on reasonable suspicion.
 Depends on cheap & easy alternatives for people to avoid confinement (eg
empty pockets to show nothing stolen) – info-eliciting rule.
Police are usually immune to F.I. claim.
 Citizens don’t have as much expertise as police. Induce too much chaos if
we have loose c.a standards.
 Police can be fired for wrongful arrest but a citizen can’t be “fired.”
 C.a. as option when police aren’t available.
i. Bright v. Ailshie (L): bounty hunter who confined wrong person L for F.I.
b/c “probable cause” not excuse to arrest wrong person under statute.
ii. Baggett v. National Bank & Trust Co: P gave a deposit slip to bank teller
which had “this is a stek up” written on back (unknown to P). Bank teller
NL for getting police to arrest him b/c good faith providing info fr bank.
 legal doctrine: b/c teller just gave info to police. Didn’t persuade
police to arrest.
iii. Melton v. LaCalamito: P rented a u-haul. D thought some furniture
belonged to u-haul. P insisted they belonged to him. D summoned police
and insisted on surrender of pads, which forced police to arrest P. P was
right re: ownership.
 legal doctrine: instigating arrest/ persuading police is liable for f.i.
E. Conversion & Assault
E1. Conversion:
a. Elements
o similar to trespass to chattel. Conversion entitles plaintiff to collect damages
where defendant has so interfered w/ plaintiff’s personal property that defendant
must pay its full value (kind of forced judicial sale)
o Trespass to Chattel: Restatement §217: intentionally 1) dispossessing someone of
chattel; 2) using or intermeddling w/ chattel possessed by other
o Conversion §222A: intentional “exercise of dominion or control over a chattel”
which so seriously interfere’s w/ other’s right to control that actor may justly be
required to pay other full value of chattel. Measure:
 Extent and duration of exercise of dominion or control
 Actor’s intent to assert right inconsistent w/ other’s right to control
 Actor’s good faith
 Extent and duration of resulting interference
 Harm done to chattel
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

Inconvenience and expense caused to other
Also liability if intentionally destroy or materially alter physical condition
so as to change identity or character
b. Intersection of property & Tort
i. O’Keeffe: when one purchases from thief, good faith purchaser may still
be liable for conversion
BUT
when one purchases goods fraudently obtained (or fr bailor but one is not
the bailee), bona fider purchaser protected.
why distinction?
 Owner does not “choose” thief but does choose defrauder or bailor
so he should’ve taken more care.
 When neither A nor C know either party, lead to high transaction
costs if allow conversion.
ii. Extension of conversion to intangible property.
Kozinzki’s 3 part test for property rights in Kremen v. Cohen (whether
domain name is property):
 interest capable of precise definition
 capabe of exclusive possession or control
 putative owner must have established legitimate claim to exclusivity
 may also be applicable in Moore v. UC Regents
 CA SC holds fiduciary breach better remedy than conversion b/c
conversion may reach too many innocent parties (who don’t know
source of cells, and conversion is SL)
 Appellate court had held that unconsented to use was conversion,
property interest in body part.
E2: Assault
a.Elements
-
acts intending to cause harmful or offensive contact w/ another or third party or
“imminent apprehension of such contact”
AND
other is thereby put in such imminent apprehension
liable even if “merely” intends to put other in apprehension of bodily contact, other
realizes that actor doesn’t intend to contact, but is still put in apprehension of it.
Brower: (threatening phone calls) NL b/c no immediate threat.
Tuberville: (Saying wouldn’t assault while judges in town) NL not imminent & no act.
Bennight v. Western Auto: motive doesn’t matter. Intent to have P work in unsafe work
conditions -> when P was bitten by bat, L for assault (when she was in imminent
apprehension of bodily harm). Transferred intent from assault to battery when she was
bitten.
F. Outrage & Intentional Infliction of Emotional Distress
a. Elements
i. Extreme and outrageous conduct
- would cause average member of community to feel it’s “outrageous!”
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ii. Intentionally or recklessly
iii. causes severe emotional distress
1. if conduct directly toward third person, liable for IIED
a. if immediate family member present, whether or not bodily
harm results.
b. Any other person present if bodily harm results.
iv. Factors that matter:
1. Special relationship b/w A&B
2. Bystander rules
3. Benefit to world at large (?)
b. Reasons for concern for unclear standard in IIED versus battery/assault
i. Chilling effect on certain borderline behaviors (for example, political
expression)
 bad Burkean, preventing social change
 but outrage tracks contemporary values
ii. Due process/ fair notice concerns
 what is “average community member” – large or small scope of
community? (nation? Town?)
iii. Proof problems
 worry over flood of frivolous lawsuits
-
c. Doctor cases
i. Roberts v. Saylor: NL when doctor walks over and proclaims dislike of
patient in hospital for unrelated surgery.
“blowing off steam” not outrage. Maybe NL b/c wasn’t his doctor for that operation. So
no special relationship.
ii. Greer v. Meddars: L when doctor’s rant in P’s hospital room b/c P
complained about him.
- maybe bc was his doctor. Special relationship.
d. Photographer cases
i. Muratore v. M.S. Scotia Prince: L when D kept taking pictures of P on
cruise after P repeatedly requested for D not to.
 special sensitivity taken into account when information divulged
beforehand
ii. Pemberton v. Bethlehem Steel: NL when D hired PI to take pics of D (a
union lap) showing he had an affair-> divorce.
 bc union officials expected to live in rough and tumble world. Special
insensitivity
II.
Privileges
A. Defense of Person and Property
- if privileged to use force, no liability in tort for resulting harm.
i. Deadly force justified if:
1. To prevent attack w/I one’s home AND if otherwise allowed to use
deadly force (for example, when threatened with deadly force)
2. To make a lawful arrest, if threatened with force
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
Duty to exhaust all means of self-defense other than force, although no
duty to retreat. “Reasonable force” proportional to threat.
 Privilege to defend 3rd party under same conditions as self-defense if
circumstances would allow 3rd party to assert self-defense privilege & if
one’s intervention is necessary.
 Sacrificing property to save life is ok.
 Sacrificing life to save property is NOT ok.
See Katko v. Briney: L. spring gun.
ii. Saccing property to save property?
 unified owner principle may help determine what measures to protect
property are ok, and who should have liability.
 Hull v. Scruggs: NL. P’s dog had developed habit of sucking D’s
eggs. D had tried other methods but when they didn’t work,
privilege to shoot & kill P’s dogs.
 Kershaw v. McKown: NL. P’s dog had been attacking D’s goat. D
was privileged to shoot P’s dog b/c relative value of animals could
be considered.
 Bamford v. Turnley: “single owner principle.” D was brickmaker
sued by P for creating nuisance.
B. Private Necessity
o incomplete privilege. Can use it, but have to pay.
o Last resort.
i. Dock cases.
 bilateral monopolies. Opportunities to bargain ex ante seem to be
important.
 High transaction costs as reason for why we have necessity privilege
instead of bargain every time.
 Unified owner principle.
 Ploof v. Putnam: L. D is L to P for loosing P’s ship when P’s health in
danger bc of storm.
 Vincent v. Lake Erie Transportation Co: D allowed to moor @ P’s dock
but must pay damages.
ii. private necessity vs defense of property:
 threat of starvation does not create privilege.
 Southwark v. Williams: homeless does not give privilege to squat in empty
house.
C. Public Necessity
o Complete privilege to do something to prevent public disaster.
 Mouse’s case: general average contribution rule + privilege to cast
property overseas to prevent ship from sinking. GAC encourages
overvaluation of goods.
 Surocco v. Geary: NL. Mayor’s order to destroy one house to prevent
huge fire from spreading is ok. Maybe reason for no compensation is want
to incentivize ppl to buy insurance.
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
Crabtree: reasonable mistake -> not pay. But publicity necessity cases –
reasonable mistake -> pay.
III.
Negligence (Pt 1)
A. Reasonable Person
o Restatement §283: “Unless the actor is a child, the standard of conduct to which
he must conform to avoid being negligent is that of a reasonable man under like
circumstances.”
o Negligence claim requires 4 factors (doctrinally): Duty. Breach. Causation.
Damage.
o Different standards of care depend on underlying relationship
i. insanity does not relieve person of duty to exercise due care unless
insanity is caused by his reasonable efforts. Williams v. Hays
ii. stupidity will not allow one to exercise lower standard of care. Vaughan v.
Menlove
iii. but when one knows of other’s infirmity, may need to in turn factor that
into their exercise of due care. See Lynch v. Rosenthal: (D knew P was
retarded. When P injured, not held to be contributorily negligent. Possibly
court just did not want P to have no recovery b/c of c.n.)
B. Physical Infirmities
o Restatement §283: children, sick or physically disabled – conduct standard
becomes reasonable man w/ such qualities (Ie, reasonable child, reasonable blind
man)
 However, in all other cases, reasonable person standard applies, as to:
attention, perception, memory, knowledge, intelligence, judgment, etc.
 YET, when one has “superior qualities,” one must use them in exercising
reasonable care. (Restatement §298)
i.
Age
 Purtle v. Shelton: D was 17 yr old who accidentally shot 16 yr old friend
while hunting. Minor cannot be held to adult standard of care only b/c it’s
dangerous. It must also be an activity normally engaged in only by adults
(eg, driving – fixed by statute, which doesn’t distinguish b/w kids and
adults)
 Dellwo v. Pearson: minor held to same standard as adult when operating a
vehicle b/c other party cannot know whether operator is minor or adult,
and therefore cannot protect self against “youthful imprudence” even if
warned.
 Dunn v. Teti: presumptions: 1) conclusive that minors under 7 incapable
of negligence; 2) minors b/w 7-14 presumed incapable of negligence but
rebuttable and weaker as age increases; 3) minors over 14 presumed
capable of negligence w burden on minor to prove incapacity
 Roberts v. Ring: an elderly man’s standard of care is same as adults- must
exercise care taking into account infirmities of age.
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IV.
Negligence vs. Strict Liability
A. Risks & Precautions
- Learned Hand formula. US v. Carroll Towing: Liability if B<PL (burden less than
probability of injury* resulting injury)
o marginal analysis: marginal cost of extra precaution < marginal benefit of extra
precaution.
 SL & N = same precautions taken by injurer, but residual costs borne by
different parties.
 NL & SL = still same outcome if no transaction costs bc bargains.
 BUT activity levels are higher in SL than in N. b/c in N, injurer will
devote less time to activity so as to cause fewer accidents.
 SL w/ contr neg -> injuree has same incentives to take precautions as in N.
 N w contr neg -> injuree may reduce level of activity so be
exposed to fewer accident poss.
 In N regime, probably some overdeterrence b/c ppl don’t estimate social
optimum properly. In SL, since one has to always pay anyway, no
systematic bias to over-precaution.
o Softer versions of Hand formula:
 Untaken precaution view
 Unreasonable risk
 Both views aren’t strictly cost-benefit. Just if a precaution is easy to take
or risk easy / cheap to avoid, then obligation to/ duty to warn
o Cases:
 In Re Margharita: ship not bound to seek soonest possible treatment for
sailor. Legit to weigh costs for everyone vs benefit for sailor.
 Ex ante bargaining power (before going on ship) not grossly
unequal. Want ppl to get info up front and contract contingencies
there.
 Eckert v. LIRR: P (who’s dead) was justified in saving kid’s life b/c fair
chance of saving child.
 Maybe b/c we’re uncomfortable with life/ life trades
 Ford pintos cases: juries dislike companies taking into cost risks on human
life as if it’s just another cost of business.
B. Rylands
Two holdings:
o Chancellor’s chamber: SL for all natural consequences
o Lords: SLS for non-natural use.
o Heuristics for Rylands list: injurer activity level; location; inherently dangerous;
info-eliciting, precaution
i.
reciprocity of risks
 may explain why 19th century American law reluctant to apply Rylands
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
ii.
NL for Losee v. Buchanan (steam boiler of D exploded and damaged P’s
property) and England v. Texas (salt water collected as byproduct of D’s
oil well operation -> damaging P’s pastures. Court’s doctrinal answer:
“natural” use in TX).
SL as a substitute for N when hard to prove N.
 Lubin v. IA City: SL for city when it just holds pipes in place till they
break
V.
Negligence (Pt 2)
A. Custom
- partial sword and partial shield. Deviation from clear practice is evidence of negligence;
compliance is evidence of due care. A shortcut to due care.
o TJ Hooper: custom as sword. AND just obeying system when further precautions
possible does not excuse liability.
 For 3rd parties, custom as perfect shield would remove incentive for
industry to take more precautions.
o Rodi Yachts: custom as shield. Evidence of due care when it reflects (potentially)
contracted for market outcomes.
 Even when A is dealing w/ B, who is dealing w/ C, A & C still in market
relation.
- Medical customs/ malpractice: custom is dispositive, not just evidentiary. Custom is
standard of due care.
o Brune v. Belinkoff: overruled “locality rule” – custom of entire profession as
standard
o Gambill v. Stroud: modified locality rule – similar communities.
o Johnson v. Wills Memorial: locality rule applies to facilities b/c unequal
resources. But training, knowledge, info easier to obtain so less likely to apply
locality rule.
o Locality rule = custom of local community. Good rule to encourage doctors to go
to smaller communities, alt some collusion concern (Gambill addresses that w/
“similar” communities)
B. Negligence Per Se
- another shortcut to due care, like custom
- Relations of statute to negligence:
a. Civil liability / criminal liability -> negligence per se
- including judge-made rule, e.g. Goodman test (“stop, look, listen”)
b. Violation of statute -> negligence per se
c. Violation of statute -> evidence but not disposition of negligence
d. Automatic negligence but only sometimes. See Herzog
why? Recurrent miss: miss a lot of outcomes that are otherwise hard to prove or hard to find.
- Martin v. Herzog: 3 step inquiry for negligence per se:
o Whether statute violated
o Whether kind of harm statute intended to prevent
o Whether the act actually matters (eg if a lot of headlights, then my turning on light
would be superfluous)
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-
-
Tedla v. Ellman: violation NOT negligence per se when act is safer under circumstances
Sunday laws.
o Tingle: no NPS when cow run over by train running on Sunday, b/c statute’s
purpose not to protect cows
 maybe also b/c would be otherwise deterred if they ran over a kid
o White v. Levarn: NPS when violate Sunday law against hunting.
 Alt both are statute violators.
Brown v. Shyne: unlicensed chiropractor case. No NPS b/c license =/= indication of skill.
Cannot indicate lack of due care just by showing no license.
C. Res Ipsa Loquitur
-
-
allows case to go to jury even when otherwise no evidence for negligence.
Modern usage: when only circumstantial evidence is available
Restatement: 1) exclusive control; 2) harm ordinarily doesn’t occur w/o negligence.
Maybe a way to deal with compliance errors. See Haasman (plane disappears)
o Precisely when things have complex safety measures, compliance error chance
increases. Eg nuclear power plant.
Dealing with recurring misses. Judson (factory explodes, all evidence destroyed)
Info-forcing. Ybarra (though minority rule). Using res ipsa + liability on all D’s ->
divulging who injured
VI.
Strict Liability
A. Wild Animals Cases
- distinction between wild & non-wild
- but, situation/ institution setting matters
- animal out of normal behavior/ location/ usage -> wild animals -> SL
- elephants are wild animals here, but not in Burma. So maybe no SL there?
Owner strictly liable for all harms caused by wild animal except for uncharacteristic harms
- For example, if escape back into wild and harm, no SL b/c would’ve been in the
wild anyway
- “one bite rule” or one gore rule. See Banks v. Maxwell
- injury on one’s property and no escape – for both wild animals and domestic
animals. But, no SL for trespasser. For licensee or invitee, no SL so long as notice of
danger. SL where hidden hazard.
- Circus cases.
- See Behrens. b/c elephants are wild animals, no precautions can be enough.
B. Abnormally Dangerous Activities
Six factors in 2nd restatement for determining abnormal danger
a. Existence of high degree of risk of some harm to person, land, or chattel
b. Likelihood of great harm
c. Inability to eliminate risk thr due care
d. Extent to which activity isn’t common usage
e. Inappropriateness of activity to place where it’s carried
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-
f. Extent to which value to community’s outweighed by dangerous attributes
3 restatement: moving away from social utility or general negligence inquiry. Social
utility may serve as proxy for reciprocal benefits/ risk.
- Rylands list:
o blasting Sullivan
 but see Madsen. Info-forcing – gotta tell blasters about hypersensitivity
(minks eat babies)
o
rd
C. Respondeat Superior
“let the master answer” holds employers/ principal SL for torts committed by employees /
agent in course of employment. A form of vicarious liability.
Depends on:
a. if employee: employer pays iff scope of employment. Purpose/motive test,
foreseeability test, elasticity test.
b. If contractor: no vicarious liability unless actual or apparent authority & reliance
(taxicab) OR nondelegable duty (Yazoo)
- Yazoo rule sometimes also formulated as (in §416 of Restatement): failure of
contractors to exercise reasonable care when physical harm results fr a peculiar
risk of harm unless special precautions taken, even when employer provides the
precautions.
-
Tests:
o Foreseeability. See Bushey: Coast guard vessel damage. Sailor was drunk. L alt
not “furthering employer’s purpose” “not so unforeseeable”
o Traditional background test- motive- did employee do it to further employer’s
purpose?
o Elasticity of Activity. See Konradi: post office’s requirement of workers to use
own cars > activity level of driving < public transportation commuting -> >
probability of accident.
VII.
Duties & Limitations
- in negligence claim, must first establish duty to use reasonable care for plaintiff, then
establish defendant breached duty.
A. Affirmative Acts & Undertakings
- generally, duty of care on people when they engage in affirmative acts (that can create
risks for others)
- generally does not impose liability for doing nothing (nonfeasance. Not misfeasancewhich is inducing careless acts- which does result in liability)
- Duties to Rescue or Assist
 no duty to aid strangers Yania
 if start rescue & stop, liable if leave in worse position (Lawter or O’Neill)
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

If help, must be non-negligent (Restatement §323)
Common law uncomfortable w/ imposing duty when don’t know who
right rescuer is
 Courts tend to find special relationships in one-on-one situations,
but not when multiple possible rescuers. (Levmore article)
B. Special Relationships
- Duties to Rescue or Assist
o Shipowners & operator duty to rescue crew members & persons who may be
washed overboard. Trans-Pacific Fishing
o Passengers seated on airline. Brosnahan
 But duty stops when passenger has safely reached an airport. Boyette
 Common carriers have special duties & obligations b/c of quasimonopoly. Negligence when injury to person, but SL when injury to
property.
o Usually hosts do not have duty to prevent guests from harming themselves
(Seigfried – allowed minor to get drunk and drive herself home, where she died in
accident) but (contrary to traditional common law) maybe liable for preventing
third party harm (Kelly v. Gwinnell)
- Duties to Protect Others from 3rd Parties
o One is responsible for 3rd party’s conduct only when 1) special relationship b/w
actor and 3rd person which imposes duty of actor to control 3rd person’s conduct
(see Tarasoff) or 2) special relation b/w actor and other which gives other right to
protection (Restatement §315)
o Kline: not common law. Landlord has to take steps to minimize predictable risk to
tenants.
- Public Duty Doctrine
o Wanzer: general duty of protection of citizens by city does not extend to
individuals.
 But individual rescuer liable for starting then stopping rescuer (or being
negligent)
 Flip side: fireman’s rule. Fireman can’t sue rescuee for negligence when
rescuee starts fire negligently. But can sue if rescuee does intentionally
start fire.
 Also see Riss. Police have general duty but limited resources, no duty to
specific people.
 But, Schuster: special duty to whistleblowers when public actively
solicited their aid.
C. Occupation of Land – Trespassers, Licensees, & Invitees
about half states use invitee/ licensee/ trespasser common law categories.
Licensee: someone privileged to enter or remain on land b/c of possessor’s consent.
Invitee: (invited to enter or remain on land for purposes open to public (public invitee) or
business (business invitee). When invitee goes outside area of invitation – may become
licensee, or trespasser.
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a. Landowners owe no duty to trespassers, but if actual or constructive knowledge of
trespasser’s presence, no duty for ordinary activities, but due care for dangerous
activities if trespasser wouldn’t have discovered on own (many jurisdictions also
do not allow willful or reckless causing harm) (Restatement 333, 334, 337)
- but owe duty to children who are “enticed.” (Restatement 339; Keffe)
b. Landowner owes same duty to licensee as he owes himself.
c. Landowner owes greater duty to invitees than he owes himself. Landowner has
duty to inspect.
d. About 1/3 states have no distinction. Landowner must exercise due care.
(Rowland)
D. Negligent Infliction of Emotional Distress
3 types of cases:
a. near miss (Robb v. Penn): “zone of danger” + physical harm.
b. Bystander:
i. Traditional: zone of danger test.
ii. Dillon v. Legg: proximity to accident + closeness of relation +
reasonableness of emotional response
iii. Marzoff v. Stone: reasonableness + substantial evidence
c. Exposure: terrified in interm but didn’t get disease or danger that’s exposed to.
VIII. Simple Causation & Preponderance of the Evidence
once P establishes that D acted negligent, must sow negligence was cause of injury. Two
elements:
1) Cause in fact – “but for” D’s negligence, no injury.
2) Proximate cause whether injuries too remote a result of negligence to permit
recovery
A. Expected Deterrence. Grimstad compared with Gardner
“but for” causation as reasoning to justify proper deterrence measures.
Grimstad: the usual application of POE. Since < 50% of successful rescue, NL for not
having buoy. Grimstad’s captain is otherwise deterred b/c many prospective cases where >
50% of successful rescue if he had a buoy. Therefore, already proper incentives for Grimstad
to take precautions.
BUT, in Garner, application of POE would -> no rescue attempts even when cost
justified, b/c % chance of successful rescue in this situation always under 50%. Therefore, L
for not turning around to look for man overboard.
B. Error Minimization. POE compared with other decision rules.
POE (outside criminal law) is relied on b/c it is (usually) the error-minimizing rule.
Example: B is held liable. Damage is $900. 2/3 of time, B did it. But 1/3, C did it.
c. POE pay aways. Error = 2/3 (0) + 1/3 (900) = $300
d. No recovery. Error = 2/3 (900) + 1/3 (0) = $600
e. Treble damages. Error = 2/3 ($1800) + 1/3 ($2700) = $2100
Error is $1800 2/3 time b/c should have made him pay $900. Instead, we
made him pay $2700, so $1800 of that is error.
f. Randomized factor (we know L 2/3 time, so roll a die w/ 3 sides):
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Divide it into 9. 6 for “pay” 3 for “no pay”
1. Pay = 4/9 should pay. 2/9 shouldn’t.
2. Don’t pay = 2/9 shouldn’t pay but 1/9 should pay
Error = 4/9 (0) + 2/9 (900) + 2/9 (900) + 1/9 (0) = $400
g. Probabilistic recovery. 2/3 ($300) + 1/3 ($600) = $400
$300 under 2/3 b/c should have paid $900 but he paid $600)
error-minimizing function not explicitly stated by judges.
D. However, sometimes there are lower cost alternatives to POE that minimize error. In that
case, we don’t use POE so as to encourage alternatives. These alternatives are infoforcing:
a. Rodeo promoter hypothetical. Get him to sell tickets instead of picking out guys
at random to pay.
i. Doctrine: “naked statistical evidence is not sufficient to establish liability
as a matter of law.”
b. Other info forcing rules & cases:
i. Hadley v. Baxendale
ii. Ybarra
iii. Blasting cases. Sullivan (SL) and Madsen (minks. Negligence)
C. Recurring Misses. Statistical Evidence. Herskovits
- Herskovitz: background risk vs increased risk. But even increased risk is not over 50% of
total risk. Can’t double chance of risk, since background risk was 61% chance dying. Classic
recurring miss problem.
c. court solves recurring miss problem by switching from POE to probabilistic “lost
chance.”
E. Lone Palm: if NL, hotel would have no incentive to ever put up sign or lifeguard.
a. Court’s solution: encourage settlement through proximate cause language &
procedural rule (shifting burden of proof to D)
b. Legislation/ regulation with a high fine would’ve also solved recurring miss
problem – hotel would’ve been deterred by it
c. Other possible solutions:
i. Probabilistic recovery
ii. Strict liability (but this would lead to putting in too many signs)
Daugert: lawyer didn’t file on time. Client likely wouldn’t win anyway.
d. POE instead of probabilistic recovery despite recurring miss problem.
i. Maybe b/c judges have expertise about the law, so they’d have better idea
of how likely the case would’ve been to win or lose. Therefore, not much
of a recurring miss problem.
When negligence & some causation established, should one be liable for ALL damages or
just incremental damage? (what’s above and beyond damage incurred in non-negligent
environment anyway)
e. IL seems better, and when data good, courts try to apply IL.
f. But w/ less good data, courts apply FL
i. FL + uncertainty -> overdeterrence (“chilling effect”)
1. Eg, if driving > 55 mph -> liable for all damages -> much slower
driving.
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D. Suboptimal Fences. Summers v. Tice compared with Ybarra
ii. Summers v. Tice: 2 hunters, both negligent, 1 injury. Both held to be liable
– P can recover from either D.
g. No POE. When exactly at 50%, any rule results in same error level.
h. What if 3 hunters, all negligent, 1 injury? NL – probably. Why? (b/c no POE?)
F. Other examples (from res ipsa unit?)
a. 2 buildings, 2 owners, 1 barrel – NL
b. 1 buildings, 1 owner, 1 barrel – L (Byrne)
c. 2 buildings, 1 owner, 1 barrel – probably L
d. 1 building, several owners (each floor diff owner), 1 barrel – NL
E. Market share liability. Sindell. Kingston handout.
G. Sindell v. Abbott Laboratories:
a. Seems to be high error in one case, but what if it’s many people injured? Then
practically zero error on # injured by each company.
b. Sindell’s become the mainstream law.
H. Lead poisoning cases: when most companies out of business (90%)- NL
I. Perfume case- NL
J. HIV – most are L
K. Restatement. A has 3 dogs. B has 2. 10 sheep killed. Proportional liability.
F. Joint and Several Liability
L. only when in concert and/or either alone could’ve done harm (roughly, allocate
responsibility for injury among D’s equally)
M. For JSL – P can recover in whatever combo he wants fr D’s (Summer v. Tice)
a. If T or V could show one was more harmful than other, wouldn’t be JSL to begin
with
b. BUT JSL applied in erratic ways by some courts. E.g. 95/3/2 for 3 D’s (alt one
was insolvent), JSL – Gehres v. City of Phoenix .
i. In those cases, JSL often then abolished by statute except when in concert,
alone could’ve done harm, or 50/50 responsible.
c. If victim is also negligent- apply comparative negligence and reduce award by his
negligence.
i. If one D is judgment proof, sometimes victim just gets what would’ve
been other D’s share, sometimes the remaining D and P split the
difference, but majority rule is other D bears the full brunt.
G. JSL handout and apportionment
IX.
Proximate Cause
A. Proximate Cause. Overextraction. Foreseeability & alternative doctrines. In re Polemis.
Wagon Mound. Palsgraf
N. in re Polemis: drop something -> spark -> ship burns down -> L
a. doesn’t use foreseeable/ unforeseeable, but direct/ indirect analysis.
b. Just one wrongdoer. So just one party to deter. Therefore proximate cause
analysis focuses on directness.
O. Overseas Tankship v. Morts Deck (Wagon Mound): oil spill fr ship. Spreads. Experts say
oil won’t burn. Returned to operations. Oil catches fire, burns two other shps there.
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a.
b.
c.
d.
Wagon Mound #1: NL. Direct but unforeseeable.
Wagon Mound #2: same court, different ship. L. Some foreseeability.
Puzzle: why recovery for further away ship?
We really want to deter oil spiller. We probably want to deter welders. Welder is
dockowner (which burned down). Let oil spiller pay for ship, and let dock owner
pay for own losses.
e. Proximate cause (through foreseeability doctrine) as way to deter multiple
tortfeasors.
i. Predecessor to contributory negligence.
P. Overextraction. Ybarralike rule. Make everyone overpay when one wrongdoer, so that
even wrongdoer has incentive to confess rather than pay. Make sure they’re the real
wrongdoers- have to produce clear and convincing evidence. (this prevents
nonwrongdoer fr falsely fessing up to avoid overpaying)
a. Not directly done in law. But maybe indirect: high taxes, incarceration costs, plea
bargaining, police brutality, war.
b. Can’t make victim better off b/c moral hazard + collusion.
Q. foreseeability: key in Hand formula in determining negligence (part of taking into
account probability of harm)
a. if negligent- liable for only foreseeable harms or also unforeseeable harms?
Sometimes “yes” to either. Seems something else is at work rather than just
foreseeability/ unforeseeability
b. Palsgraf v. LIRR: how can system deter both pusher and fireworkers carrier?
i. NL for RR b/c RR is otherwise deterred (no recurring miss) when say their
pushers negligently cause someone to break leg and RR is sued and liable.
ii. (so encourage injurer to sue the fireworks carrier)
iii. if L for RR, then would be recurring miss for fireworks carrier b/c he
wouldn’t be deterred fr carrying them
B. Hines / Price distinction & incremental liability.
R. Hines: L for letting woman walk back by tracks then assault
a. MUCH greater likelihood of fire by walking RR tracks at night than at home or
normal stop
S. Price: NL for leaving woman in hotel then fire
a. No more likelihood of fire @ hotel than @ home
T. Distinction goes to whether D adds incremental risk. Proximate cause as proxy for
increased risk.
C. Intervening wrongdoers
U. Brauer – goods strewn on ground stolen. Theft held as foreseeable. RR is L. Why
doesn’t this contradict doctrine of “intervening causes (the theft) break chain of
causation”
a. Maybe “rescue” issue. Getting RR detectives to take action.
b. OR, Hines/ Price: even if there weren’t detectives, colliding into a truck ->
increased risk of theft.
V. Watson: NL. No increased risk of arson w/ gas spill in public since more witnesses.
(Hines/ Price analysis)
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a. Or. Info-forcing: if recovery anyway, people may not care as much about
whistleblowing.
b. What if accident? Probably b/c higher risk of fire w/ gas spill.
X.
Plaintiff’s Behavior & Economic Losses
A. comparative negligence cases & assumption of risk types
W. comparative negligence:
a. Last clear chance during contributory negligence regime.
i. But LCC has virtually disappeared in comparative negligence.
ii. More damages on cheapest cost avoider/ best info provider
iii. But if parties can bargain, rule doesn’t matter.
X. Assumption of Risk
a. Express assumption of risk (signing waiver)
i. Why are some of following effective while others ineffective?
1. Hospital: ineffective
2. Coat room: ineffective
3. Ski lift: effective
4. Clerical fare on train: effective
5. Normally on train: ineffective
ii. Deterrence of bad behavior as bed predictor than “choice.”
iii. Law is accommodating Heterogeneity of preferences. No need for
deterrence when one voluntarily takes on an obvious risk: prima facie no
case.
b. Secondary assumption of risk:
i. Hennessey v. Pyne: living by golf course.
ii. Both parties negligent. SAR mostly replaced by comparative negligence.
iii. Deterrence of primary wrongdoer and some deterrence of secondary
wrongdoer (or give her incentive to warn others).
1. E.g., ice rink hypothetical. Hard ice.
a. NL re professional
b. L re party, amateur.
B. Economic Losses
Y. No recovery for pure economic losses. Why?
a. Step 1: seems to depend on whether offset of loss is large or small. If small,
ignore offset and give private loss damages. But if large, ignore private loss and
NL.
b. Step 2: deterrence of wrongdoer. Why NL for economic loss to employer for
running over employee – b/c already deterred by having to pay for physical
injuries. But L for fisherman’s loss b/c otherwise no deterrence b/c no other
damages to pay for other than economic losses. Use “proximity” (proximate
cause?) as legal doctrine.
c. Examples:
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i. Finlandia: building explosion, area blocked off, nearby deli loses
business. NL b/c 1) benefit elsewhere offsets loss to deli; 2) already liable
for injuries fr explosion
ii. People Express: difficult to predict. Newark airport. Gas creates explosion
risk. State authority evacuates and closes off area, stop trains from running
and airlines lose business. L: 1) otherwise not taking into account cost of
evacuation; 2) no deterrence since gas didn’t actually explode (so no
physical injuries)
iii. Robins: propeller breaks. Ship doesn’t move. P loses business. NL b/c
should all be factored into price of propeller ?
XI.
Privity & Products Liability
A. Privity & Strict Liability
Z. privity: direct relation. More in privity = can sue. Otherwise can’t.
a. privity may explain liability for one house burned liability rule.
b. Privity as way to focus liability on one person (VERSUS comparative negligence
or JSL) b/c want to incentivize one person to take care.
i. L to focus on “best problem solver” (or in best position to bargain w/ other
parties to solve problems)
ii. Prevent too many “rescuers” or that each will think someone else will do it
(which would be counterproductive)
c. Cases:
i. Moch: b/w city & utility. Beneficiaries either can’t sue or maybe can
collect fr city -> NL.
ii. Ultramares: corporation hires law firm & accounting firm. Can
shareholders sue law and accounting firm for malpractice / negligence ->
firm’s bankruptcy?
1. NL b/c no privity. b/c corp in privity w/ firms but shareholders
aren’t
2. Some cases should be L. 1) wanton disregard/ gross negligence; 2)
intentional ignoring 3rd party interest.
iii. Glanzer: inaccurate scale in store. Customers try to sue certifier of scale
who’s known to be fudging.
1. L even tho no privity. Maybe to prevent recurring miss / no
deterrence otherwise of certifier.
AA.
Products Liability strict liability replacing privity
a. SL for defective products: when product doesn’t fulfill its intended purpose
i. Eg L when toaster blows up and burns down kitchen, but NL for Nokia
when Nokia users have a higher accident rate.
b. MacPherson v. Buick: P buys car fr dealer, who bought it from Buick. Wheel
made by someone else; defective, breaks -> accident. P sues Buikc. Traditionally,
no privity -> NL.
i. But here,L b/c Buick is “best problem solver”
1. Buick can better inspect own products
2. Buick can bargain with wheel maker, etc. Manufactuer has most
contractual avenues w/ suppliers, as compared w/ dealer.
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c. Welge v. Planters: L for seller of product. Could also have L for Planters &
Brockway (glass manufacturer). Won’t duplicate liability b/c these 3 can contract
w/ one another for indemnity.
d. More puzzling: Winter: NL for book w/ incorrect info on what safe mushrooms to
eat; Saloomey: L for mislabeled map. Wiki’d probably be NL, too.
i. Standard explanation for difference in liability:
1. expression chilling re: book, no real chilling for maps b/c everyone
needs to use it.
2. Maybe also bc intended use. Map intended for safe landing. Not
sure if encyclopedia intended to help id safe mushrooms to eat.
ii. For map vs wiki. Maybe b/c cost-spreading by seller of maps across all
buyers. Seller of map can spread costs across all buyers.
B. Design Defects
BB.
negligence
CC.
Regulations & statutes:
a. Not good as shields b/c of circumstances (eg driving 53 mph in 55 mph zone may
still be N in the rain)
i. Statutes usually don’t state whether it’s EXCLUSIVE remedy
1. Some courts have considered a takings claim when statutory
remedy pre-empting lawsuits < common law remedies.
a. Legislation usually no makes it tit for tat (conferring a
benefit by structuring remedy)
b. Good as swords in liability.
DD.
Companies want to make statutes pre-emptive. But law skeptical about strong preemption:
a. Discourage regulatory capture:
i. Companies may get lawmakers to use wrong standard that are NOT
socially optimal but make arguments that it’s right standard (eg, claim
such design is safer when really it’s just cheaper. Preventing lawsuits can
also disincentivize later better changes)
EE.Retroactivity: may be better system. Reliance as reason against retroactivity but reliance
often leads to inefficiency. Law has become more retroactive outside criminal law to
encourage anticipating change rather than fighting to prevent it.
a. But are judges best at gauging efficient innovation levels?
FF. Disclosure rules: eg termites, poison well in backyard, property boundaries – must
disclose. School district’s quality: no req to disclose.
a. UNI disclosure req: uniquely situated to have info; net social loss fr
nondisclosure; incentives for innovation.
GG.
Cases:
a. Dawson v. Chrysler:
i. car design not rigid enough – not safe enough: P’s claim
ii. car design’s flexibility prevents more accidents and reduces injuries more
often – D’s claim
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iii. Chrysler tries to use its following regulations as shield. However, would
also need regulation to be pre-emptive; otherwise it’s a sword (not
following it’d be negligence per se)
b. Bruce v. Martin-Marietta Corp: plane made in 1952 was state of the art. Lawsuit
in 1970 (when planes usafer design). NL.
C. Warnings
Warnings Req fits well w UNI disclosure. Can pass some costs to consumers. But
concern w/ overwarning and -> too much info.
See Grinnell. Does one have to warn past purchasers? Maybe – but don’t have to
repair w/o compensation. Also don’t know if someone has read the warning or would’ve
heeded it – but law prevents recurring misses by a heeding presmption.
See MacMahon: optimal safety =/= maximum safety.
XII. Damages
A. British Rule vs American Rule; collateral source and no-fault
HH.
Goal: to establish damages now for future events (lost earnings, etc.) Usually take
facts from point of injury up to point of trial to figure out total harm.
a. Usually NOT opportunity cost, but at least current value.
i. No clear rule on people about go back to workplace but were injured (eg,
housewives about to return to workforce).
1. Professionals usually will get such damages. Counter to usual rule
re: opp costs.
b. Present value of future income stream is less than the income (ie, if $100, present
value may be $95ish if interest is 5%$ b/c can invest $95 to make $100).
i. Usually “real interest rate” + “inflation” taken int account.
ii. Post-judgment interest almost always awareded. Most courts have not
given prejudgment interest (between injury and judgment)
II. Selling claims, derivatives (borrowing $ but pay w/ claim) are increasingly allowed,
although generally still not allowed.
JJ. Contingency fees generally allowed in US but not in UK/ Commonwealth. NOT allowed
in criminal or divorce. Attorney fees usually also not in damage calculation.
KK.
Collateral Source rule: tortfeasor does not get to offset collateral sources (such as
insurance)
a. But insurance company may offset by suing for damages fr tortfeasor.
i. In practice. Subjugation. Insurance company pays but will claim against
tortfeasor.
1. life insurance companies do not subjugate.
LL. American rule vs British rule
a. American: each party pays own attorney fee (and often, all costs)
i. Statutory exceptions to American rule.
b. British rule: winner recovers all costs (including attorney fees) from loser.
Usually measured as “reasonable” attorney fees.
i. Countries w/ British system do NOT allow contingency fees.
c. Settlements can contract around either rule.
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i. But people may not bargain b/c they think willingness to bargain signals
weakness to other side.
B. Punitive damages
MM.
as an alternative to criminal law system. Look toward things compensatory
damages don’t, such as malice, wealth, intentional wrongdoing.
a. Defendants often appeal PD as criminal penalty but w/o procedural safeguards of
criminal law.
b. To deter some behavior where we don’t think just paying damages repeatedly is
ok. (eg, don’t want someone to repeatedly trespass and just pay damages each
time. Maybe to stop people from thinking of damages as just a fee)
XIII. Nuisance
Approaches toward nuisance law:
NN.
some courts hold only physical invasions violate property rights. Nuisances as
akin to negligence (reasonableness – Learned Hand calculation)
OO.
some courts hold nuisances to be prevented by property rule protection
(injunction). Nuisance as strict liability.
a. Injunctions often applied to repeat players.
i. Like repeat trespass cases. Injunctions to stop people from repeating
negligent activity and simply paying “price.”
ii. Court’s assessment of cost refraining fr activity higher than benefit, while
individual may feel opposite.
PP. Law and econ: liability as “price” of negligent activity.
QQ.
Public/ Private nuisance distinction: public nuisances dealt w/ by statute or by
regulation, NOT by private action.
a. Collective action problem (of people banding together to bargain) doesn’t really
explain why distinction b/w private & public nuisance.
i. Class-actions w/ opt-out as way to solve collective action problem w/o
public nuisance action.
1. Lawyer’s incentive: common fund. If lawyer monetarily benefits
each member in group, can recver share from each member of
group.
b. D winning in private action not nec good for him b/c if public nuisance -> AG or
leg action)
A. Endowment Effect
RR.
legal rule itself becomes a valuable of asset.
SS. Statute of limitations may affect value of entitlement (drop in value less when w/I SL b/c
expected value of lawsuits)
TT.See handout.
B. Nuisance Cases; Property & Liability Rules; Options; Self-Assessment
UU.
Calabresi/ Melamed property & liability rules: given 2 parties, A&B, and one has
nuisance claim
a. B stops A. property rule for B, or injunction in B’s favor
i. Deters repeat wrongdoing
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b.
c.
d.
e.
VV.
a.
b.
c.
d.
WW.
a.
b.
ii. Damages if broken. OR no damages (forward looking)
A modification: General average contribution in admiralty (sharing damages). b/w
property and liability rule
A pays B: liability rule.
i. Also a partial property rule. A has property right to pollute up to X
amount. But afterwards, B has right to sue and collect (all, or
incremental?)
A ok.
A stops, B pays A.
Other possible rules:
A wins, gets to choose either to continue, or to stop but collect A’s gain. Deters B
from overclaiming damages.
A wins but make A pay B (to make sure A isn’t overclaiming benefit). But moral
hazard and overcompensation risk.
These latter two rules are options to encourage honest info disclosure.
Last 3 rules are thought up by academics, but have had some RL application (or at
least #4 in C/M. See Spur)
Cases:
Portland Meadows: both built same time so no coming to nuisance problem. NL –
should be able to bargain since they both see each others’ businesses being built
up.
Fountainbleau: not a nuisance since 1) not physical invasion; 2) not social loss; 3)
already worked out w/ legislature (zoning permit, etc.)
C. Remedies for Nuisance
XX.
Boomer v. Atlantic Cement Co.: modified C-M rule #2. moral hazard possibility
of people moving there just for payment, which is why court did not award giant
damages.
YY.
Madison v. Ducktown: economic value of company - why they apply C-M #2.
(damages, no injunction)
ZZ. Whalen v. Union Bag & Paper: C-M #1. Injunction. Cost-benefit analysis not enough.
Riparian water rights (everyone along river entitled to clean water). Is P’s est before D is
in area significant? Maybe P isn’t only harmed party by river.
AAA.
Spur v. Del E. Webb: C-M rule #4
a. May be double recovery for Spur, however. Because before he had to shut down,
his property value increased in value b/c residential neighborhood came closer.
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