Download Torts - Free Law School Outlines

I.
Summary
A. Is there intentional harm?
1.
2.
3.
4.
Is there battery or assault? (Purpose/knowledge? Harmful/offensive contact? Apprehension? Self-defense?)
Is there intentional infliction of emotional distress? (Outrageous conduct? Reckless mens rea?)
Is there an intentional taking of property? (Emergency?)
Is there a trespass or nuisance? (Infringement of property right? Excuse?)
B. Is there a negligence claim?
1.
2.
3.
4.
5.
6.
Did D meet the standard of reasonable care? (B<PL? Individualized objective test? Custom?)
Is there a case for negligence per se? (Class statute designed to protect? Harm caused by violation?)
Is there a case for negligence res ipsa loquitor? (Probably negligence? D control? P innocence?)
Is P at all “at fault”? (Comparative fault? Assumption of risk?)
What is connection between P & D? (Duty to care? But-for cause? Foreseeable cause? Multiple Ds?)
Is the harm purely financial? (Better guaranteed in contract? Suit available in public nuisance?)
C. Is there a vicarious liability claim?
1.
2.
3.
4.
Is there a master/servant, master/independent contractor, or partner/partner relationship?
Did the servant commit a tort?
Is the act within scope of employment? (Common? Master expectation/benefit? Substantial control?)
Is the master liable even outside scope of employment? (Non-delegable duty? Negligence? Intent?)
D. Is there a strict liability claim?
1.
2.
3.
Is this an ultrahazardous activity? (Large risk? Large harm? Can’t eliminate risk? Uncommon?)
Is a wild animal responsible? (Is the attack foreseeable?)
Do rationales behind strict liability fit anyway? (Background safety? Market allocation? Spreading?)
E. Is there a products liability claim?
1.
2.
3.
4.
5.
6.
Is there a manufacturing defect? (Different from other goods of same kind? Unreasonably dangerous?)
Is there a defective design? (Expectations? Reasonably foreseeable use? Design risk/benefit balance?)
Is there a failure to warn?
Is there a misrepresentation or breach of warranty? (Express: Statement of fact? Implied? Disclaimer?)
Is this a mass tort? (Multiple possible makers of given product? Mutiple possible causes of given harm?)
Should liability follow negligence or strict liability more closely?
F. Is an administrative no-fault scheme at work?
1.
2.
3.
Is this a worker’s comp case? (Accident? In the course of employment?)
Is this an auto no-fault case?
Is there other active regulation at work? (What is the standard of acceptable risk?)
G. What are the appropriate damages?
1.
2.
3.
4.
5.
Does an administrative scheme limit damages?
What are the compensatory financial damages? Associational damages? Pain & suffering?
Were there avoidable damages?
Should there be punitive damages?
If wrongful death or loss of consortium, who can recover?
H. How do the above doctrines interact with the policies behind tort?
1.
2.
3.
4.
5.
Has there been adequate reparation? Deterrence? Allocation of risk and blame?
Would the situation best be served by a system addressing fault? Activity? Contractual choice? Need?
What would Posner say? Calabrisi? Rawls? Does the moral responsibility match the legal responsibility?
Are we engaging in primary criticism or secondary criticism, or no criticism at all?
Does it feel right?
II.
General policy themes
A. Purposes of tort law
1.
2.
3.
Reparation of damage
Prevention of unreasonable damage
a. “Unreasonable” requirement allows protection of broader social utility
b. “Unreasonable” varies – e.g., pro-industry v. pro-worker
Allocation of risk and blame
a. Balances best reparation with best prevention, seeks to avoid injustice
b.
Don’t always just have person best able to pay pay for damages
c.
Example: should awkward man have same duty of care? (unfair to hold person to impossible standard
vs. unfair to subject victim to undeserved damage)
B. Principles of compensation
1.
2.
3.
4.
Fault (negligence)
Activity (strict liability, worker’s comp, auto no-fault)
Choice/contract (private insurance) – you get what you pay for
Need (welfare) – basic, grave need should be met
C. Microeconomic utilitarianism (Posner) v. System utilitarianism (Calabrisi) v. Rawls mutual benefit
1.
2.
Evaluate social benefit of overall holding, make sure individual policy does not destroy greater social
benefit!
Posner utilitarianism
a. Do not create disincentive for activities with greater social utility than damage
b.
Only require precautions up to B<PL, only require costs when justified
c.
3.
4.
Buchanan twist: Requisite safety levels already built into price, gives consumers choices
i. Company will take all Bs, spread cost among consumers into price
ii. At market equilibrium, purchasing consumers will have assumed risk of Bs not built into price
iii. Let market work out reasonable care
iv. Assumes perfect information, infinite opportunity to micro-insure
d. Look for short-term cheapest cost avoider
Calabrisi utilitarianism: strict liability
a. Saves primary costs (accident loss)
i. Gives proper market allocation (makes market price true price, incorporates externalities)
ii. Improves deterrence / background safety (long-term cheapest cost avoider has incentives to
improve)
b. Saves secondary costs (burden of concentrated damages)
i. Improves risk spreading (ability to pass cost on to broad base of insurers, customers)
c. Saves tertiary costs (admin costs)
i. Strict liability easier to assess responsibility
Rawls mutual benefit
a. Cannot improve overall social utility at expense of individual
b.
Everyone must benefit to comply w/ social contract
c.
Must also ensure that those who reap benefit bear associated burden
D. Moral v. legal responsibility
1.
2.
3.
Kantian respect for others (duty to care) vs. legal responsibility (duty to care)
Can morally criticize action w/o morally criticizing actor
Degrees of moral culpability
a. Disregard = recklessness, gross negligence
b.
Inadvertence = negligence
c.
Error = strict liability, no liability
E. Primary criticism/secondary criticism
1.
2.
3.
Primary criticism: don’t permit activity if harm > social utility, or require extra B if B<L
Secondary criticism: permit activity (harm < social utility), but force actor to pay
No criticism: permit activity (harm < social utility), don’t force actor to pay
F. Fault vs. no-fault, tax-risk v. tax harm
1.
2.
3.
4.
Fault: negligence system (tax harm)
No-fault: Victim pays (If no negligence, let harm fall where it may) (tax blame)
No-fault: Actor pays (If act and cause damage, must pay, unless unavoidable: strict liability, Case of
Thorns)(tax harm)
No-fault: 3rd party pays (Insurance system) (tax risk)
G. Objective v. subjective, individualized standards
1.
Who decides “reasonable” care?
H. Irreparable harm (personal injury) vs. reparable harm (property damage)
1.
2.
I.
Standard of care
Method of analysis
Function of judiciary v. function of legislature
1.
Activist courts determining public policy
III.
Intentional harm (knowledge OR purpose)
A. Insurance doesn’t usually cover intentional harm
B. Battery
1.
2.
3.
4.
Intentional (purpose or knowledge) contact that
Is reasonably regarded as harmful OR offensive (implied lack of consent)
a. Medical consent is assumed general for abnormal condition during operation (reasonable consent)
b. If the actor exceeds the terms of conditions of a given consent, consent is no defense to liability
And results in harm
And is unexcused (by self-defense, implied consent)
a. Self-defense OK if with force to repel assault, to protect self, if reasonable perception of bodily harm
b.
For intent to use excess force, greater than required for protection, D is liable.
c.
Essentially same standard as crim – but individualized standard, based on qualities of individual
C. Assault
1.
2.
3.
Core: Attempted battery, but also includes no intent to actually batter
Intention to cause harmful or offensive contact OR imminent apprehension of such contact
a. But must be imminent apprehension of harmful CONTACT, not just fear in general
Other person must actually have apprehension
D. Intentional infliction of emotional distress
1.
2.
Elements
a. D outrageous conduct (abuse of power, knowledge of other person’s extreme susceptibility)
b.
D intent or reckless disregard of probability of causing emotional distress
c.
Reasonable P suffers severe emotional distress
d. Distress proximally caused by outrageous conduct
D liable for distress damages + any resulting bodily harm
E. Intentional taking of property
1.
2.
Taking with compensation
a. Gov’t can take property for public use, but, by 5 th Amendment, must provide due compensation
b. Private people can take property / trespass for emergencies only, but must provide due compensation
Takings b/c extreme emergency public welfare (fire, police) don’t need compensation
F. Trespass
1.
Intentional entering or causing entry of object into space
a. Includes smallest possible particles
b.
Also includes non-physical shockwave
c.
2.
3.
4.
5.
6.
For non-tangible particles to be trespass, must have physical damage (no electromagnetic fields from
power lines)
Space happens to be other’s property
a. No intent necessary to go onto other’s property
b. Property includes airspace!
Without permission
a. Implied consent may be found
Resulting in damage
a. No intent necessary to cause damage
Owners liable for harmful trespass of animals
Foundation in Constitution: private taking of property, public taking of property w/o due compensation
G. Nuisance
1.
2.
3.
4.
5.
6.
Core nuisance = fallout (Wheat), but fallout can also be trespass (Martin)
Intentional, ongoing conduct
Causing unreasonable, substantial interference w/ use and enjoyment of property
a. Not necessary to show physical damage
b.
Reasonable person in locale must reagard injury as such (notion of "proper zone")
c.
Injury must be "substantial" = tangible
d. Loss can't be plaintiff's responsibility
Nuisance, not trespass, for noise, odor, light intrusion b/c no physical damage (but smoke can be trespass)
Usually enjoin if substantial damage, but can also just require damages (primary v. secondary criticism)
a. If utility of conduct > harm, just pay damages, unless damages would put activity out of business
May have different range of time for collection of past damages, depending on jurisdiction (trespass may
be more lenient)
IV.
Negligence
A. D liable if did not use “reasonable care”
1.
2.
What person of ordinary prudence & caution would do or not do if whole risk were his own.
a. Attempt to foresee consequences
b. “Reasonable person” is reasonable person of today, not reasonable person of past
Hand formula: reasonable care means taking precaution if B<PL
a. Liable for negligence if burden less than probability of injury * magnitude of injury
b.
3.
Restatement: judge by marginal burden and marginal loss, not absolute.
c. P may include others’ negligence, even violation of law (Conrail), especially if really, really low B
Unclear whether to use objective v. subjective assessment of "reasonable care"
a. Usually objective: what would average individual’s B<PL balancing test say to do in circumstances
i. Holmes: awkward man still held to everybody else's standard
ii. BUT average man is imperfect, lapses in judgment at times
iii. BUT experts should be held to HIGHER standard than average
b. Occasionally subjective: individual made B<PL balancing test, seemed right to him at time
c.
4.
5.
In emergencies, cts. divided on objective/subjective
i. Whicher: subjective; if only opportunity for instinctive action AND no proof of unfitness to act
in emergency AND D had no part in causing emergency to exist, no negligence
ii. Fruehauf Trailer: objective; D must act at all times as reasonable person in situation
iii. Peril, stress, strain, haste, or distraction may excuse lapses from “reasonable care”, but usually
only considered in whether to excuse contributory negligence (i.e., let P have claim)
d. Kids given individualized objective standard
i. First subjective test: what is capacity of child? (age, intelligence, experience)
ii. Second semi-objective test: what would reasonable child of like capacity do in circumstances?
Custom & professional standards
a. Custom can be used as potential evidence of reasonable care, but not as absolute defense
b. Docs, lawyers, accountants, NOT industrial design standard of care defined by professional standards.
Negligence per se
a. Standard of care is defined by statute
b.
Statute must be intended for care of others
c.
Harm must be caused by violation of statute
d.
P must be in class of people statute is designed to protect
e.
6.
Exceptions to liability:
i. Greater harm to obey statute than to violate (preserve statutory intent to care for others)
ii. Children: violating statute is evidence of negligence, but not negligence per se
iii. D doesn’t know or have reason to know of occasion for compliance with statute
Negligence res ipsa loquitur
a. Accident of nature that doesn't ordinarily (probably) occur w/out negligence,
b.
Accident must be caused by something in exclusive control of D
c.
No contributory action from P
d.
Burden of proof
i. P has burden of production: must produce evidence to survive dismissal; then D burden of proof
ii. Some juris. (CA): res ipsa loquitor is rebuttable presumption of negligence; some (MN), res ipsa
loquitor is mere evidence of negligence
Rationale
i. In these cases, D usually has more info, better chance to prove true cause of accident
e.
B. AND P not at fault
1.
2.
Comparative negligence
a. P negligence must also be cause of accident
i. Not wearing seatbelt doesn’t count – doesn’t cause accident
b. Liability apportioned proportional to fault or up to P liability more than D liability (majority!)
c. IS mitigating of strict liability (at least in NJ): purpose – regulate overall fault
Contributory negligence
a. Old system: If P was at all negligent, negligence claim fully barred
b.
3.
4.
5.
IS defense to negligence per se, not defense to strict liability, not defense in ped. suits v. negligent
motorists b/c peds can’t possibly harm car
If D had last clear chance (superior knowledge), contributory negligence is not a defense (might be
included in comparative negligence doctrine – see Li)
a. D aware of P presence
b.
AND D aware of P ignorance of peril or inability to save himself
c.
AND D can act in due time to avoid injury
d. Doctrine is used as attempt to find single “actual” cause
Some cts. may require reasonable care to take others’ negligence into account (IS THIS TRUE?)
Assumption of risk
a. Older doctrine, now usually superceded either by worker’s comp or comparative fault
i. Still alive and well in playing of dangerous sport – athlete assumes risks
b. Types
i. Primary assumption of risk: voluntary choice to enter into dangerous activity
ii. Express assumption of risk: in contract
iii. Fireman’s rule: Special occupations choose as occupations to enter into risk, cannot complain
about harm
c. P voluntarily chose conduct, assumed risk of loss
d.
e.
f.
No voluntary choice if only options are to
i. Undergo harm to self or other
ii. OR forego right which D has no right to take away
Employer must take reasonable care to provide reasonably safe place to work; assumption of risk in
employment context is evidence of contributory negligence but not bar to suit
Assumption of risk inherent in ongoing contract price – bargain for particular level of safety
C. And connection between P and D was sufficient
1.
P duty to care for D
a. Special relationship: public safety official
b.
Special action: preparation of food
c.
Special relationship & situation: victim is servant or invitee, or hurt by instrument under D control
AND person helpless AND in situation of peril, D has obligation to act even if no negligence in
causing harm
d.
Landowner has duty to maintain property in reasonable care – plain negligence standard
e.
Classical: No requirement to apply B<PL in situations where you're not at fault
f.
Plenty of legal duties limit action (negative, misfeasance, Kantian "duty of respect" -- don't hurt) but
few legal duties compel action (positive, nonfeasance, Kantian "duty of love" -- help)
g.
Privity (only responsible to party contracted with) is dead
2.
P action must be but-for cause of damage to D
a. Usual: damage would not have occurred “but for” negligent act of D
b.
Restatement §323a: If protecting P, D liable for negligence, if negligence increased risk of harm AND
is substantial factor in producing actual harm
If D’s acts aggravate P condition, D liable only for harm caused by negligence; liability = total harm harm occurring anyway (lost chance of recovery – D burden of proof to show % of lost chance)
P action must be legal / proximate cause of damage to D
a. Was damage reasonably foreseeable from P action (what do we fear b/c of negligent act)? (foresight)
i. What similar actions would therefore also be reasonably foreseeable, but seem unfairly
unconnected? (LJN Toys – Voltron blade v. Spiderman costume)
b. Is injury traceable to negligent act (hindsight) – less in favor
Intervening actor
a. Now intervening causes handled by comparative fault
c.
3.
4.
5.
b.
Once was rule: no proximate cause if intervening actor – other people’s negligence not foreseeable
c.
Other cts. left open question, if intervening (negligent OR intentional) act was foreseeable or not
d. Dramshop liability for pro hosts (bars), social hosts of minors BUT NOT for regular social hosts
Joint causation
a. Proportionate liability (each D contributing to same harm liable in proportion to responsibility)
i. Now: comparative fault (each D liable for proportional fault contribution UNLESS intentional)
b. Was: Joint-and-several liability (each D contributing to same harm liable for all of damages)
i. Contribution – given 2 jointly-and-severally-liable Ds, 1 can demand contribution from the other in
proportion to numerical share of common liability UNLESS intentional injury.
ii. Indemnity: two people, jointly & severally liable; one takes entire loss
iii. If one D settles in suit with more than one liable D, huge problems with getting proportional
contribution from other Ds
c. Mass tort (can’t identify particular manufacturer or exact cause, just increased likelihood of risk)
i. Don't have to attribute specific manufacturer to specific cause -- if products are there, and those or
others just like it could have caused injury but no way to tell, still OK to apportion liability
ii. See product liability for more mass tort
D. Can’t recover in negligence for financial harm (profit loss) only – that’s what contract is for
1.
2.
3.
4.
Unless very limited damages, can’t recover for financial damages caused by negligence
Can recover for:
a. Financial harm w/ physical harm caused by negligence
b.
Intentional financial harm (also public nuisance, if harm for P different than harm suffered by all)
c.
Defamation, injurious falsehood (libel)
d.
Negligent misstatements of financial matters
e. Financial harm to commercial fishermen caused by negligence (weird subsidy in admiralty law)
CAN’T recover for economic damages from intentional harm to someone else
Rationale
a. Pragmatic difficulty of limiting lawsuit -- everyone's got opportunity cost from certain things
b.
Other avenues for redress for financial damages (insurance, proper contracts)
c.
Disproportionality of liability & fault -- too huge liability for people to conduct business
V.
Vicarious liability
A. Master liable for torts of servants (but not independent contractor) when servants act within scope of
employment
1.
2.
3.
Definition of “within scope of employment”
a. Must be of same general nature as, or incidental to, conduct authorized.
b.
Is act commonly done by servants?
c.
Does master have reason to expect act will be done?
d.
Is employer exerting substantial control over activity or instrument?
e.
Is benefit conferred on employer?
f.
Utilitarian argument: within employment if liability would introduce beneficial changes in activity.
g.
Not within scope if no intent by employee to be within scope
h. Decision usually left to jury
Definition of servant / employee
a. Agent employed by master whose physical conduct is controlled
Difference between independent contractor and employee
a. Extent of control that agreement says master has over details of work
b.
If employee is engaged in a distinct occupation or business
c.
Whether job usually done locally under direction of employer or without supervision
d.
Skill required in occupation
e.
Whether employer or employee supplies tools & workplace for work
f.
Length of employment
g.
Method of payment (hourly, by job)
h.
If work is regular business of employer
i.
If parties think they are master & servant
B. Master liable for torts of servants when servants outside scope of employment AND:
1.
2.
3.
4.
Master intends conduct or consequences
Master negligent or reckless (negligently chose shitty employee)
Conduct violates non-delegable duty
Servant helped to accomplish tort by agency relationship
C. Master NOT liable for torts of independent contractor EXCEPT:
1.
2.
3.
Employer retains control over aspect of activity where negligence happens (looks like master-servant)
Contractor employed is incompetent, physically or financially (no insurance) (looks like negligence)
Performance of contract involves inherently dangerous activity -- nondelegable duty (looks like strict
liability)
D. Master can file contribution action against servant to reclaim damages
E. Partners may be responsible for actions of partner when acting in scope of employment
1.
Concert of action theory: Liable for harm if commits tort in concert w/ 3 rd party or pursuant to common
intent, OR knows that 3rd party action constitutes breach of duty and gives enough assistance to implicate
self
VI.
Strict liability
A. Ultrahazardous activities
1.
2.
Actor doing abnormally dangerous activities is liable if harm is of type that makes activity dangerous,
even if has exercised utmost care.
Abnormally dangerous activities defined by:
a. Large risk of harm to person or property, inability to eliminate risk through reasonable care
b.
Likelihood of large amount of harm
c.
Extent to which activity is uncommon
d.
Inappropriateness of location for activity
B. Vicious animals
1.
Strict liability to wild animal owners if propensity of animal is foreseeable
C. Other random activities with strict liability
1.
2.
3.
4.
Bona fide purchaser of stolen goods to true owner
Bailee for misdelivery of bailed property
Innkeepers & hotels at common law
BUT not usually strict liability for other non-negligent activities (no Rylands rule)
D. Utilitarian rationale (Calabresi, Posner, Hand)
1.
Which of parties to accident is cheapest cost-avoider
a. In best position to make cost-benefit analysis between accident costs and avoidance costs and to act on
decision once made
b.
2.
Find structural (long-term) cheapest cost avoider, not situational cheapest cost avoider
c. Prefer large actors with staying power with capacity for system change
Strict liability better to avoid primary costs: loss of accident (B&L)
a. Background safety (deterrence)
i. Burden on actor (strict liability) reduces accidents over time
ii. Difficult to prove negligence back on the wedge; if burden on actors far back in the wedge, actors
induced to engage in self-criticism, find opportunities for improvement before damage happens
b. Market allocation (pricing)
i. Assume X causes more accidents than Y, even when both at "optimum" level of safety by BPL,
"reasonable risk" still exists
ii. In strict liability system, X would cost more, taking accident liability into account
iii. More people would choose Y b/c cheaper, avoid more accidents
iv. Fault externalizes cost of reasonable risk, strict liability internalizes cost of reasonable risk
v. BUT Buchanan critique: some want to assume risk, can’t afford internalized pre-paid cost
(a) Assumes perfect information, availability of perfect insurance, doesn’t compensate 3 rd party
3.
4.
Strict liability better to avoid secondary costs: addtl. costs of insufficiently spreading burden
a. Under fault, victims pay for accidents due to reasonable risk
i. Concentration of cost, single large burden harmful in itself (if diminishing marginal utility of $)
b. Under strict liability, actor (person receiving benefit from reasonable risk) pays
i. Large actors can prima facie afford
ii. Small actors can afford insurance
iii. Any commercial actor can pass cost onto customers
c. BUT spreading reduces deterrence to avoid activity
Strict liability better to avoid tertiary costs: administrative costs
a. Cheaper to determine who actor was than to determine degree of fault
E. Other rationales for strict liability
1.
2.
3.
Justice
a. Among two innocents, put burden on party causing harm
Pragmatism
a. Hard to prove negligence, especially in cases of ultrahazardous activities destroying all evidence, or
chemicals seeping through land
Reciprocity of risk (Fletcher)
a. If I impose less risk than I suffer, I should be compensated for harm, even if suffered risk is
"reasonable"
b.
Example: everybody driving ordinarily = reciprocated risk, each actor bears own loss
c.
4.
When is risk non-reciprocated?
i. Situational -- in particular situation, was risk thrown out equal to risk received (tip of wedge)
ii. Aggregated -- add up all risks in certain time period, compare to other actors
iii. Categorization approach -- risks of same "kind" offset each other
d. Corrective, not distributive (Calabrisi), punishes action, not status; conduct, not results
Proportionality
a. Distributive justice -- did you end up with more or less than your share of good and bad
b.
c.
Beneficiaries of activity should exclusively bear proportional burden (risk)
i. Unfair to thrust burden of your beneficial activity on someone who doesn't feel benefit
ii. Unfair to concentrate loss of collective activity on one individual, allow all others to benefit
iii. Public should bear costs of public benefit
Actors throwing out burden can usually redistribute burden to beneficiaries (shareholders, customers)
VII.
Products liability
A. Responsibility
1.
Manufacturer and seller of new goods (food usually gets strict liability)
a. Privity of contract is dead
b.
Manufacturer also strictly liable for negligence of component-part assembler
c.
Some states have statutes freeing non-negligent sellers (NOT manufacturers) from liability
B. Manufacturing defect
1.
2.
Restatement §402A: Strict liability when:
a. Sell product in unreasonably dangerous condition
i. Dangerous beyond consumer expectations when used in reasonably foreseeable manner
b. Seller engaged in business of selling
c. Reaches the user without substantial change in condition
Different theories
a. Negligence: Should have had better quality control procedures
b.
Negligence res ipsa loquitor: what else could it be
c.
Strict liability: Particular product is defective
C. Dangerously defective design (Restatement §402A)
1.
Test
a. Whenever something is “wrong” with the product
b.
Consumer focus: Dangerous beyond reasonable user expectations when used in reasonably
foreseeable manner
c.
2.
3.
OR manufacturer hindsight focus: Risk of danger outweighs benefit of design (excessive
preventable danger)
i. Risk v. utility balancing factors: usefulness & desirability of product
ii. Availability of substitutes
iii. Likelihood and magnitude of risk
iv. Obviousness and public expectation of danger (consumer assumption of risk)
v. Avoidability of danger by warnings
vi. Ability to eliminate danger w/o undue expense
Manufacturer has responsibility to protect against foreseeable, even if negligent, user activity
Different theories
a. Negligence: Didn’t design safely, should have realized at time benefit<risk of design
b.
Semi-strict liability: Didn’t design safely, burden of proof on D to show benefit>risk of design
c.
Strict liability: Didn’t design safely, now we know benefit<risk of design
D. Failure to warn
1.
2.
Duty to warn sometimes stops at learned intermediary, but if foreseeable negligence, must warn consumer
Different theories
a. Negligent: Didn’t warn, should have known of product defect
b.
Semi-negligent: Didn’t warn, could possibly have known of defect (was knowable) even if individual
D reasonable
c.
Semi-strict liability: Didn’t warn, burden of proof on D to show defect wasn’t knowable
d.
Strict liability: Didn’t warn, now we know of product defect
E. Misrepresentation / breach of warranty
1.
Express warranty (Restatement §402B, UCC §2-313)
a. Material fact is actually not true, even if no negligence in stating fact
b.
2.
3.
P reliance on misrepresentation
c. Reliance caused damage
Implied warranty (UCC §2-314)
a. Warranties implied when goods are sold that goods are:
i. Fit for ordinary uses (fit for particular use if seller knows of buyer use)
ii. Fair average quality
iii. Adequately contained, packaged, and labeled
b. Must expressly disclaim warranties; “as is” counts
Warranties extend to foreseeable users of product (UCC §2-318)
F. Rationales
1.
2.
3.
4.
Calabresian strict liability: Background safety, risk spreading, market allocation
Misrepresentation/breach of warranty/”justice”
Complexity: Products today are complicated, people can’t expect to inspect and understand if defective
Practical: Manufacturer has best connection to evidence of negligence
G. Mass torts: many people hurt by same tortious conduct
1.
Collective responsibility (generic injury)
a. Many firms produce identical product that causes characteristic (signature) harm, P hurt by product,
can’t tell which firm produced his
b.
c.
Some say no responsibility w/o proof of cause
i. Deters useful activity like drug manufacture
Some say all possible firms responsible (must join substantial majority of all potentially culpable Ds to
have suit)
i. D burden of proof to show not responsible for specific product causing harm
ii. Market share approach: liability by market share
(a) Cts. split on whether national or local market share
(b) Cts. split on whether if 80% of market share represented by Ds on $100MM claim, P gets $100MM out
of Ds or just $80MM
(c) Each D responsible only for market share % of damages, not jointly and severally liable
(d) Some say Ds originally presumed to have equal market share, if Ds can prove less, responsible for less;
if some Ds can prove less, other Ds suck up difference to 100%; if all Ds prove less, P collects <100%
(e) Breach of express warranty or fraud cases not covered by market share responsibility (indiv. co. fault)
iii. Single D approach: sue one D, let D implead others
(a) Responsibility by “relative fault”
2.
Collective harm (toxic exposure)
a. Population exposed to substance creating increased risk of disease for everyone.
b.
Should P sue now, when may never contract disease, or should P wait, though can’t prove got disease
BECAUSE of substance?
VIII.
Administrative schemes (No-fault)
A. Differences between administrative schemes & tort
1.
2.
3.
4.
5.
6.
Who makes law -- Legislative v. judge-made law
Who is eligible for payment – classification of type of harm v. assignment of fault
Process of settling claims -- administrative v. adjudicatory
Amount of damages -- compensation limits v. unlimited damages (e.g., pain & suffering)
Financing of damage award – regulatory mandate v. left to D
Purpose of system – compensate victim OR modify conduct v. compensate victim AND modify conduct
B. Worker’s comp
1.
2.
3.
4.
Employer liable for work-related injury & death: “accident or disease arising out of and in the course of
employment”
a. Was injury accidental?
b.
Is risk incident to or condition of work? (Would person have been there if not working?)
c.
Does employment expose workmen to increased risk over others in area?
d. Unclear whether proximate cause is issue: Whetro (tornado cases)
No-fault system: Negligence of employer or contributory negligence is immaterial
Coverage limited to employees, not ind. contractors
Minimum benefits, but also limited to cap
a. % of lost wages (also for death)
i. % b/c don’t want to incent workers to stay away from work
ii. High earners could purchase insurance to cover remainder (choice)
b. Medical costs
c.
5.
Set disability packages (certain injuries receive set amounts of compensation (loss of body part, etc)).
d. No pain & suffering
Can’t sue in tort for claims covered by worker’s comp
a. Employee can still sue 3rd party (like insurance co. for negligent accident-prevention program in
workplace), recovered damages usually 1st go to employer to reimburse worker’s comp payments
Relatives can sue for loss of consortium, even if person harmed has already received worker’s comp
benefits
Purpose
a. Spread cost of industrial injuries (industrial revolution)
b.
6.
b.
Simplify claim process – administrative fact-finding, administrative dispute resolution
C. Auto no-fault
1.
2.
3.
Core no-fault: abolishes tort for certain kinds of injuries, below certain threshold
a. Threshold determined based on medical injuries, not wage loss (to eliminate class bias)
b. Moral hazard in encouraging medical injuries above threshold to get into court for tort claim
Add-on plans: doesn’t abolish tort, but acts as disincentive
a. Provides limited compensation, lowers incentive for going to court
Differences from worker’s comp
a. Auto involves claimant receiving risk and throwing out risk, worker’s comp is just about taking risk
b.
Auto doesn’t completely displace tort, it just displaces lower damage spectrum of tort (must have
minimum damage to go to tort)
Why go to no-fault from traditional fault?
a. Massive litigation costs (burden on court, premiums too high)
c.
4.
Auto involves claimant freedom to select particular plan, worker’s comp is pre-selected by employer
b.
c.
Massive inefficiencies in awards
i. Low damages overcompensated b/c insurers settle
ii. Large damages undercompensated b/c insurers keep ct. cases going, force lower settlement
Massive evidentiary problems in determining negligence at trial in auto accident cases (he said, she
said)
d.
5.
BUT removes deterrence effect of tort litigation (except litigation has liability insurance to diffuse
deterrence, and economic deterrence of litigation doesn’t supercede perceived danger risk, police
regulation when driving anyway)
Merit categories (don’t target bad drivers, target risk pools, focus on characteristics of injured, not
injurer)
a. Age
b.
Gender
c.
Where car is
d.
Length of commute
D. Active regulation of risk (health, safety, environmental)
1.
What is justifiable level of acceptable risk? For reparable loss? For irreparable loss (personal injury?)
a. Safe level (food pesticides)
i. Absolute set level of no significant risk
b. Feasible level (clean air, clean water)
i. Avoid avoidable risk (don’t have to value life)
ii. Technological feasibility: what is best achievable, best probable technology?
iii. Economic feasibility: can industry maintain feasible level and stay economically viable
c. Unreasonable risk (product safety)
d.
Cost-benefit (auto fuel emissions)
i. Utilitarian – preserve economic efficiency – will impose burdens on some for greater benefit in
total
ii. Marginal costs = marginal benefit (Posner)
iii. Activity permitted all depends on what you include in costs
(a) Value of life
(1) Grush-Saunby report, value of life = wage, economic productivity loss
(2) Studies saying value of life = acceptable risk (compares riskier job salaries)
(3) Tort never attempts to value life
(b) Focused (limited cost of specific activity vs. direct, limited benefit of activity)
(c) Plenary (total social costs/benefits)
(d) If costs passed back on to consumer, what’s elasticity of demand?
2.
Regulation meets tort at negligence, negligence per se
a. Regulation is proactive, tort is reactive
b.
Regulation steps in to cover situations where worker’s comp eliminates tort
c.
Regulation also takes in attributional problems of legal cause in tort
d.
Regulation takes in broad range of potential tortfeasors, tort applies to only one particular D
e.
3.
Regulation tries to account for value of life in cost/benefit balancing, tort (b/c reparation scheme) never
does
Legislation sets up administrative body w/ general criteria, admin body is charged with actually
constructing relevant rules
IX.
Insurance
A. Partially removes deterrent effect of tort judgment
B. Shifts tort from tax-harm to tax-risk
C. Insurance co. has duty to defend any lawsuit against insured for damages payable under policy
D. Purposes
1.
2.
Makes individual losses collectively predictable
a. Aim is reduce variability, uncertainty – the larger the pool, the lower the statistical uncertainty (narrow
the range)
b. Substitutes small, definite cost (premium) for large, indefinite cost (loss)
Makes individual losses collectively affordable
a. Need narrow pool to set proper rate but diverse pool to spread riskier parties
b.
Small cost is lesser burden on individual than large cost, even if probability is mathematically same
E. Rate systems
1.
2.
Uniform rate
a. Everybody pays same premium
Class rate (pooling)
a. Aka manual rates, schedule rates (+- points for deviation from "average")
b.
Mostly small actors (no statistical significance for predicting future risk from past accidents)
c.
Regulatory, public opinion pressure quasi-individualizes classes by providing bonuses for good
behavior
d.
3.
4.
5.
To set rates, group by conditions creating or increasing chance of loss (regulation of both rate and
composition of risk classes)
i. Physical conditions increasing likelihood
ii. Moral conditions (dishonesty = bigger chance of arson)
iii. Morale conditions (lack of care = bigger chance of loss)
Individualized rate
a. Aka experience rate-making, merit rate-making; mostly for large actors
b.
Portion of premium directly dependent on experience of particular entity
c.
Experience rate-making: experience of past determines future premium
d.
Retrospective rate-making: experience of past determines present premium; good performance =
rebate, bad performance = penalty; includes maximum premium provision so people don't actually just
pay for damage
e. Encourages individual reduction of chance of loss
Self-insured rate
a. Actor is sufficiently large that risk tax = harm tax; if you were to pay premiums to outside body,
premiums would = actual harm you'd cause
b. Just set aside reserve fund to cover damages
Assigned rate
a. Mandated by regulatory body
b.
For those "uninsurable" under normal risk pools
F. Prerequisites for insurance
1.
2.
3.
4.
5.
Large pool of relatively homogeneous exposure units (entity & time period)
Occurrence of loss is accidental but statistically certain
Loss large enough to produce hardship
Premium cost is economically feasible
Peril unlikely to produce loss to many insured units at once
G. Types of insurance
1.
2.
3.
4.
Loss insurance: Damage to insured
Liability insurance: Damage to third party by insured
Auto insurance (collision = liability + loss, comprehensive = loss)
Mandatory / optional / semi-optional insurance
X.
Damages / compensation
A. Compensatory damages
1.
2.
Put injured P in position they would have been in if there had been no wrong
Financial damages
a. Lost wages / lost productivity
b.
Out-of-pocket expenses
3.
c. Lost property of victim
Associational damages
a. Loss of consortium
4.
b. Disability / loss of function (can be in coma, still get award)
Pain & suffering
a. Some separate hedonic damages – loss of enjoyment of life
5.
b. Some separate emotional loss (grief & sorrow) from loss of loved one
No recovery for damages which could have been eliminated by reasonable conduct of P
a. Usually applied post-accident (seeking medical care, etc.), but also if not wearing seatbelt
b.
D has to prove damages would have been avoided
B. Punitive damages
1.
2.
3.
Some jurisdictions require oppression, fraud, or malice (intent OR recklessness)
In commercial settings, punitive damages may be only way to achieve deterrence
Determining acceptable amount:
a. Degree of reprehensibility of D conduct
b.
D wealth (amount likely to serve as deterrent)
c.
Proportional to compensatory damage amount
C. Wrongful death
1.
Damages awarded
a. All cts.: financial damages
b.
Some cts.: associational damages (consortium)
c.
Some cts.: emotional loss
d.
Some cts.: pain & suffering of victim, while alive
2.
e. Few cts.: punitive damages
Who can recover
a. Depends on wrongful death / survival statute
3.
b. Usually spouse, kids ONLY
History
a. In early common law, if tortfeasor or claimant dies, all actions cease
b.
14th c., estate could sue for pre-death taking of property that diminished estate
c.
Now, most states have survival statutes, allowing tort actions to be carried on by estate
d.
Also, most states have death statutes, allowing beneficiaries to sue for $ they would have had if no
death
D. Loss of consortium
1.
2.
Who can recover
a. Spouse for spouse
b. Sometimes parents for child, child for parents
Rationale for excluding parties
a. Damages not accurate measure of loss
b.
Potential for exponential increase in claims
c.
Increased social cost w/o really compensating loss
E. Unwanted pregnancy
1.
2.
Definitely able to recover for costs of pregnancy itself
Maybe able to recover for costs of raising child, especially if reasons vs. wanting pregnancy were
economic
F. Purely financial harm
1.
2.
See negligence – can’t only recover for purely financial harm in negligence in exceptional case
Can only recover for purely financial harm from intentional act if against P
G. Award amounts
1.
2.
3.
4.
Awards given in today’s $, discounted by real interest rate (nominal-inflation)
a. Doesn’t take sectoral inflation into account (med. expenses growth)
Collateral source rule
a. P compensation from 3rd party NOT be deducted from damages P collects from tortfeasor.
OK to let jury estimate financial damages, pain & suffering
a. CAN’T suggest specific number for pain / period of time
Damages for death do not pretend to assess value of person, do not compensate individual for own loss of
life
H. Immunity from tort claims – now invalid
1.
2.
Classical immunity: government, charitable institution / business, spouse
No longer, thanks to insurance, other means of spreading
XI.
Cases
A. Intentional harm:
1.
2.
3.
4.
5.
6.
7.
8.
Garratt v. Dailey (WA, 1955)(chair pulled out from under)
i. P tries to sit in chair, D (5-yr-old), pulls chair from under her, P sues D
ii. Fact that D is minor does not exempt him from liability, but does determine reasonableness
standard
iii. Ct. remands to find out if D knew contact was substantially certain
Mink v. U. of Chicago (IL, 1978)(drug treatment w/o knowledge) (47)
i. 1000 women (P) given experimental drug (DES) by D as double-blind, without knowledge or
consent, while in prenatal care, sue D & Eli Lilly for battery, strict liability defective product
manufacture, breach of duty to inform patient of medical procedure
ii. P claim that they and children have developed reproductive tract abnormalities, abnormal cervical
cellular formations w/ increased risk of cancer
iii. Could be battery – battery used in circumstances when patient gives permission to perform one
type of treatment, doc performs another non-emergency treatment
O’Brien v. Cunard Steamship Co. (MA, 1891) (forced immunization)
i. P on D ship – immigrants must have ship med. doc certificate disembarking, or be quarantined to
protect from smallpox. Normal practice is for ship surgeon to vaccinate everyone not already
vaccinated. Notice posted everywhere in multiple languages.
ii. ~200 women to be vaccinated; P sees other women show arm to surgeon, get vaccinated. P comes
to surgeon, she holds up her arm, does not refuse to be vaccinated, he gives her shot.
iii. “If P behavior was such as to indicate consent on her part, D justified in his act, whatever P
unexpressed feelings may have been.”
Kennedy v. Parrott (NC, 1956)(cyst removal during operation) (59)
i. P sues D (doc) for negligence & battery, ct. finds for D
ii. During appendectomy, D finds cysts on P ovary, punctures cysts w/o specific authorization. P gets
phlebitis. Experts say procedure is standard.
iii. Ct. says unreasonable to expect doc to check every procedure in the course of surgery w/ patient,
especially if no family around, internal operation, patient anesthetized, express medical need
Rogers v. Lumbermen’s Mutual Casualty Co. (LA, 1960)(remove reproductive organs)
(61)
i. During appendectomy, D doc removes P’s reproductive organs, with P relatives at hospital
ii. Finding for P: Despite consent form, no actual consent given, no emergency
Fraguglia v. Sala (CA, 1936)(self-defense from pitchfork) (63)
i. D insults P, P comes after D with pitchfork, D knocks P down
ii. Finding for D: self-defense OK if with sufficient force to repeal assault to protect self from bodily
harm
iii. For excess force, greater than required for protection, D is liable.
Nelson v. State (OH, 1932)(timid manslaughter) (64)
i. Finding for D: Self-defense not based on fear of reasonable person, but person w/ D qualities (e.g.,
timid)
Dupre v. Maryland Mgmt. Corp. (NY, 1954)(super-bellboy self-defense)
(65)
i. P starts fight w/ D’s bellboy, P hits D, D hits P once, fractures his jaw
ii. Finding for D: Must have intent to use more force than necessary.
B. Intentional harm:
1.
2.
3.
4.
Battery
Assault
Read v. Coker (England, 1853)(gang-threat at work)
(86)
i. D fires P, P comes to work, D collects workmen who circle P, threaten to break his neck
ii. Finding for P: Threat of violence exhibiting intention to assault, and ability to carry threat into
execution
Cullison v. Medley (IN, 1991)(threat with gun) (87)
i. Ds surround P, threaten while armed, D keeps grabbing at holstered pistol
ii. Finding for P: assault if P’s fear of being imminently injured is reasonable
State v. Ingram (NC, 1953)(stalker)
(88)
i. D drives slowly by P, stops car, walks behind P, stops & watches P, turns back
ii. Finding for D: Must have overt act or attempt of immediate physical injury
State v. Barry (MT, 1912)(pointing gun) (89)
i. D points rifle at prosecutor, prosecutor doesn’t see until D unarmed
5.
6.
ii. Finding for D on assault: P must actually apprehend injury
Wilson v. Bellamy (NC, 1992)(drunken frat rape)
(89)
i. P goes to frat party, drunk, passes out, has sex with D
ii. Finding for P on battery: drunk or unconscious person can’t give consent
iii. Finding for D on assault: if unconcious, can’t perceive harm, can’t be afraid of contact
Manning v. Grimsley (1st Cir, 1981)(baseball into crowd) (89)
i. P at baseball game, D pitcher throws fastball at fence to scare crowd, hits P
ii. Finding for P: says battery includes “intent to cause apprehension of imminent harmful contact” –
conflates assault and battery
C. Intentional harm:
1.
2.
3.
4.
5.
State Rubbish Collectors Assn. V. Siliznoff (CA, 1952)(duress garbage contract)
(90)
i. Trash collector has D son-in-law pick up trash, instead of original collector; D not member of
union; D forced to join union on threat of beating, cut truck tires, burned truck
ii. Cause of action: “Intentionally subjects another to mental suffering w/ serious threats to physical
well-being, without privilege”
iii. Finding for P
iv. Before, always needed physical harm due to emotional distress to sue; with this case, shouldn’t
deny recovery b/c tried and failed to cause physical injury through emotional trauma
Eckenrode v. Life of America Insurance (7th Cir, 1972)(insurance won’t pay) (95).
i. D refuses to pay on legit accidental death life insurance claim, "invites" poor P to "settle"
ii. Finding for P: “new” tort of IIED exists
Whelan v. Whelan (CT, 1991)(lying about AIDS) (99)
i. Ex-husband D lies to P: while married, he had AIDS, wanted P to go abroad w/son so P wouldn't
see suffer & die.
ii. Finding for P: conduct above & beyond divorce or break-up, could be IIED
Schieffer v. Catholic Archdiocese of Omaha (NE, 1993)(priest sex)
i. Priest counsels married P, seduces P, lots of consensual sex.
ii. Finding for D: consensual sex not outrageous conduct
iii. Dissent: jury should decide if abuse of priest power = outrageous
Paul v. Watchtower Bible & Tract Society (9th Cir, 1987)(Jehovah’s Witness shunning).
i. P is ex-Jehovah's Witness, church tells friends & acquaintances to shun P, cause emotional distress
ii. Finding for D: shunning protected under 1st Amendment as religious practice.
D. Intentional harm:
1.
2.
3.
4.
5.
Intentional Infliction of Emotional Distress
Intentional taking of property
Monongahela Navigation Co. v. U.S. (US, 1893)(damming river) (121)
i. US wants to condemn lawfully constructed P river dam, P sues for compensation
ii. Finding for P: US can take property, but by 5 th Amendment, must pay due compensation
Customer Co. v. Sacramento (CA, 1995)(police trap felon in store) (122)
i. Police trap felon inside P store, fire tear gas in store, store damage, P sues
ii. Finding for D: Damage to property b/c of emergency requires no compensation
iii. Emergency exception should be extremely narrow
iv. Deliberate police action on innocent property usually doesn’t count – spread public welfare costs
to public
Harrison v. Wisdom (TN, 1872)(destroy booze before army)
(123)
i. D citizens of town destroy all liquor (including P) before Fed. army comes in, to prevent drunken
troop damage
ii. Finding for D: question for jury if absolute public necessity for destruction
iii. Destruction of property in extreme emergency is not eminent domain or public taking of private
property
Ploof v. Putnam (VT, 1908)(storm on Lake Champlain) (124)
i. P sailing on lake, storm, moors boat to D dock to save boat, D servant unmoors boat, P hurt in
storm
ii. Finding for P: was trespass to unmoor boat
iii. Necessity (to save life) justifies entry on land, property damage otherwise trespass
Vincent v. Lake Erie Transportation (MN, 1910)(storm drives ship vs. dock)
(126)
i. D steamship moored to P dock, storm, D takes actions to stay on dock, damage to dock in storm
ii. Finding for P: P OK to stay on dock (necessity) but still must pay damage
iii. Not extreme emergency, just good judgment to save more expensive at cost of less expensive, but
must reimburse less expensive
iv. If unintentional taking (D hadn’t taken actions to stay), no liability if no negligence
E. Intentional harm:
1.
2.
3.
4.
5.
6.
Cleveland Park Club v. Perry (D.C., 1960)
(tennis ball in pool)
i. 9-yr-old D puts tennis ball in pool drain, ball sucked into pipes, damaging pool
ii. Finding for P: trespass = intentional act which releases harmful force, not intent to harm
iii. Lifeguards not saying anything for boys playing w/ drain before may = implied consent, no
trespass
Smith v. New England Aircraft Co. (MA, 1930). (aircraft over home property)
i. Aircraft flying under 100 feet = trespass
ii. If you have to fly under 100 ft., let airport buy property
Griggs v. Cty. of Allegheny, PA (US, 1962).
(aircraft over home property)
i. Flights violating airspace = taking of air easement over property
ii. Airport must pay for taking air easement
Martin v. Reynolds Metals Co. (OR, 1959).
(aluminum plant spew)
i. Aluminum reduction plant spews out fluoride compounds, settle on farms, cause damage, P sues
for trespass
ii. Intrusion can be both trespass and nuisance
iii. Size of particle intruding doesn't matter -- slippery slope (molten lead, spray from cooling tower,
soot & carbon, blasting concussion = trespass), then fluoride particles = trespass
iv. Shoddy job of distinguishing Amphitheaters (basically, if it’s physical damage or taking
possession, it’s trespass)
State of NY v. Fermenta ASC Corp. (NY, 1995). (herbicide contaminates drinking water)
i. Herbicide contaminates drinking water
ii. Distributing herbicide is trespass b/c direct & intentional (knowledge, not purpose)
iii. But why is selling product, and not people who put product on soil, trespass?
iv. I tell friend to go get apple, I know it's not my property, friend doesn't know: can I be liable for
trespass?????
San Diego Gas & Electric Co. v. Superior Ct. (CA, 1996).
(electromagnetic field trespass)
i. Electric power lines, electromagnetic fields is no trespass if no proof of physical damage
ii. Actionable trespass cannot be had from nondamaging noise, odor, light intrusion (that's all
nuisance)
F. Intentional harm:
1.
2.
3.
Trespass
Nuisance
Atkinson v. Bernard (OR, 1960).
(airport noise)
i. Airport in as of 1918, homes move next door in 1948, noise, community sues airport for nuisance
ii. Finding for P: enjoins all flights above decibel level
Boomer v. Atlantic Cement Co. (NY, 1970).
(LRA cement plant case).
i. Huge investment cement plant spews dirt, smoke, vibration despite all reasonable precautions
ii. P neighbors sue for nuisance, ask for reparation, injunction
iii. Finding for P but only for damages, no injunction (secondary criticism)
iv. Majority: cement co. can’t solve air pollution on its own, unfair to require stoppage
v. Damage to P is small compared to value of D interest destroyed in case of injunction
vi. Incentive to reform conduct in damage judgment, potential for future suits
vii. Dissent: Follow old rule -- if substantial damage, injunction, support public policy vs. air pollution
viii. Cement factory is private, unconstitutional to allow private taking of land even if recompensed
Jost v. Dairyland Power Coop. (WI, 1969).
(high-sulfur gas on crops).
i. Power plant spits out sulfur gas, lands on fields, kills plants; P sues for lessened land value
ii. Finding for P: substantial damage, due care & utility of activity not excuse to 2ndary criticism
iii. Could people breathing sulfur be battery? Sure. Knowledge of bodily contact + reasonable
knowledge of offensive nature, resulting in injury = battery BUT if you live there, do you consent,
remove "knowledge of offensive"
G. Negligence:
1.
2.
3.
4.
5.
6.
The Case of the Thorns (1466).
(if you act, you pay)
i. D cuts thorns, fall onto P property, though D lawful act, because injured P, has to pay
ii. "For though a man doth a lawful thing, if any damage thereby befall another, he shall answer for it,
if he could have avoided it."
iii. "And the reason of all these cases is, b/c he that is damaged ought to be recompensed."
Fletcher v. Rylands (England, 1866). (leaking reservoir destroys mines – return to Thorns)
i. D builds reservoir, water leaks & damages abandoned mine shaft leading to P mines.
ii. D did not know mines near reservoir, competent contractors building reservoir also missed mine.
iii. Finding for P: If natural accident, no liability; if you take voluntary act (build reservoir), you pay.
iv. D, though free from all blame, must bear loss, unless he can establish P is responsible.
v. If you bring something harmful (animals, filth, vapors) to a place where it wasn't -- strict liability
Brown v. Kendall (MA, 1850). (birth of negligence)
i. D beating dogs to separate them, backs up, accidently pokes P in eye w/ backstroke of stick
ii. Finding for D; P must prove D unlawful intent or negligent fault
iii. If act voluntary but unintentional; P must show D negligence; if injury unavoidable & conduct
blameless, no liability
iv. Ordinary care depends on circumstances, action of prudent and cautious men
v. New burden of proof: P burden of proof of D lack of reasonable care in commission of voluntary
act
Blyth v. Birmingham Waterworks Co. (England, 1856) (waterworks explode)
i. D lays down properly made water system, fine for 25 years but explodes after extreme month-long
frost into P’s house.
ii. Finding for D: actions not negligent
The Nitro-Glycerine Case (US, 1872). (nitro-glycerine package)
i. Commercial shipper D transporting leaking package, package examined (normal practice), blows
up, kills everybody & damages P building.
ii. Finding for D: D took reasonable care, had no reason to know what was in box, not liable for pure
accident
iii. Negligence = omission to do something which reasonable man would do, or doing something
which reasonable man would not do.
iv. Standard of care = that which person of ordinary prudence & caution would use if whole risk were
his own.
Losee v. Buchanan (NY, 1873).
(steam boiler explodes)
i. D steam boiler explodes, parts land on P property & cause damage.
ii. Finding for D: If no negligence & important social benefit, no liability
iii. If properly operate factories AND no nuisance, THEN not responsible for unavoidable industrial
accidents.
iv. "Most rights in the social state, are relative, and must be arranged to promote the general welfare."
H. Negligence:
1.
2.
3.
Negligence = standard of liability
Standard of reasonable care
US v. Carroll Towing (2nd Cir, 1947). (Hand formula)
i. B < PL -- people should take precaution when B (burden of activity) < P (probability of loss) * L
(amount of loss)
Chicago, Burlington & Quincy RR v. Krayenbuhl (NE, 1902).
(RR turntable severs kid’s foot)
i. Children playing near D RR track, turn unlocked RR turntable, sever P foot at ankle.
ii. Finding for P: burden of locking table is small, potential loss is large, company is negligent
iii. Turntable is dangerous, but benefits outweigh dangers – allow keeping of turntable
Van Skike v. Zussman (IL, 1974).
(cigarette lighter from gumball machine)
i. P (minor) buys toy cigarette lighter (no spark) from gumball machine operated by D's store, buys
lighter fluid from D, "sets himself on fire" using external spark.
ii. Finding for D: D could not reasonably foresee risk of harm from selling lighters, lighter fluid not
inherently dangerous
iii. Negligence must set out: existence of duty owed by D to P, breach of duty, resultant injury.
iv. Selling lighter fluid to minor is not foreseeable negligence -- not in same class as explosives,
public policy wants kids to be able to buy paint, glue, etc., not reasonably foreseeable that kids will
ignite. P has burden to show that circumstances make harm foreseeable.
4.
5.
6.
7.
8.
I.
Lugo v. LJN Toys (NY, 1989).
(Voltron blade flinging)
i. 8-yr.-old flings detachable toy Voltron blade (as in TV show) at 6-yr.-old (P), pokes out her eye, P
sues D toy maker
ii. Finding for P: jury could find detaching, flinging of blade is foreseeable unreasonable risk to kids.
iii. Dissent says Spiderman costume manufacturer could be liable for same reason for kids climbing
buildings.
Clinton v. ComEd (IL Ct. of Appeals, 1976).
(uninsulated electric line zapping)
i. 15-year-old (P) electrocuted by 7200V electric line in yard, P sues D Com Ed.
ii. Finding for D: Unreasonable burden to insulate all electric lines, no negligence
iii. Compare to Ford Pinto case – isn’t real issue value of life, probability of death?
iv. Also, Brillhart v. Edison Light & Power (1951) says electirc co. held to higher standard than
average.
Davis v. Conrail Corp. (7th Cir, 1986).
(railroad inspection, train moves)
i. P (RR inspector) inspects train, engine unseeable distance away moves train, no whistle or horn,
severs P legs.
ii. U.S. law, custom is to blue flag train during inspection to tell people not to move train -- P didn't
blue-flag train
iii. Finding for P: D negligent b/c didn't blow horn before moving -- negligible B, even if low P
iv. P found 1/3 contributorily negligent.
Snyder v. American Assn. of Blood Banks (NJ, 1995). (AIDS blood).
i. P has surgery, given AIDS blood from member of AABB, P gets AIDS, sues everyone, all settle
but AABB.
ii. Finding for P: AABB 30% responsible, negligent for not recommending surrogate testing for
AIDS.
iii. Yr. before surgery, very clear AIDS probably blood-borne -- CDC Task Force says definite,
recommends screening; AABB refuses to accept findings – others who take CDC
recommendations don't transmit any AIDS blood afterwward.
iv. AABB huge industry factor, when it says don't test, when it doesn't say test, people follow its
guidelines.
v. In case, donor w/ AIDS would have been caught by screening, AABB direct proximal cause of P
infection.
T.J. Hooper (2nd Cir, 1932). (barge w/o weather radio sinks)
i. Barges tugged by D, lost in storm; D tugs have nonworking radios, don't know about weather,
cargo owners sue
ii. Learned Hand decision for P: tugs responsible for potential barge negligence (barges poorly built,
sink in storm)
iii. Reasonable care is B<PL, custom is only evidence.
iv. "There are precautions so imperative that even their universal disregard will not excuse their
omission."
Negligence:
1.
2.
3.
4.
Subjective / objective standards
Vaughan v. Menlove (England, 1837). (stupid is no excuse)
i. D stacks hay sloppily, despite several warnings, near P cottages, hay ignites, fire spreads to P
cottages.
ii. Finding for P: test is objective, not subjective reasonable care – stupid is no excuse.
Whicher v. Phinney (1st Circuit, 1942).
(emergency negligence)
i. D driving on straight road, 35 mph, 50 ft. behind other car. 1st car swerves suddenly to avoid
wagon, knocks driver out of wagon, D can't swerve quickly enough, runs over wagon driver.
ii. Finding for D: no negligence.
iii. If only opportunity for instinctive action, no proof of unfitness to act in emergency, D didn’t cause
emergency to exist, no basis for finding negligence.
Williamson v. Garland (KY, 1966).
(biking kid – reasonable kid standard)
i. P, 12-yr.-old, racing bikes, skidded & turned onto main street, hit by D car; P didn't look before
turning onto street
ii. Finding for P but P may be contributorily negligent; reasonable care = reasonable care of ordinary
child of like age, intelligence & experience under like circumstances.
Mastland. v. Evans Furniture, Inc. (IA, 1993). (reasonable kid standard).
i. Landlord (P) sues tenant (D), saying tenant's kid negligent in playing w/ cigarette lighter.
ii.
Two step process for negligence of child
(a) SUBJECTIVE step: "what is capacity of child to perceive & avoid risk?"
(b) OBJECTIVE step: "would reasonable child of like capacity have acted same under like circumstances?"
J.
Negligence:
1.
2.
3.
Martin v. Herzog (NY, 1920). (lights out on buggy)
i. P driving buggy, crash into D car; P husband killed, P sues D for negligence
ii. D counterclaims contributory negligence per se: buggy traveling w/out lights
iii. Finding for D: unexcused acting v. statute = negligence b/c statute defines standard of care for
others
iv. Hurt must arise out of violation of statute
Tedla v. Ellman (NY, 1939). (walking on right of road)
i. Heavy traffic on left side of road, less on right, P walks on right, hit by D car in passing.
ii. Finding for P: no contributory negligence per se, would have been less safe to follow law
Gore v. People's Savings Bank (CT, 1995).
(landlord w/ lead paint)
i. Son of P eats lead paint chips; D landlord didn't have notification beforehand.
ii. Statute: landlord shall do whatever necessary to keep premises in fit condition, including no leadbased paint
iii. Finding for P: negligence per se b/c P w/in class of people protected by statute, injury suffered b/c
violation of statute is exactly type of injury statute intended to prevent
K. Negligence:
1.
2.
3.
4.
2.
3.
Negligence res ipsa loquitor
Newing v. Cheatham (CA, 1975).
(drunk plane crash)
i. P Newing, D Cheatham go drinking, get in airplane owned by Cheatham (only pilot). Clear
weather, unrestricted visibility, no radio messages from plane. Plane crashes later with very little
fuel in tanks, P sues D for wrongful death
ii. Finding for P: circumstantial evidence proof and res ipsa loquitor proof fo D responsibility
iii. Circumstantial case: beer cans in plane, D alcohol odor, expert says crash looks like no fuel, little
fuel found, 4.3 hours = probable fuel consumption
iv. Res ipsa case: 1) accident of nature that doesn't ordinarily (probably) occur w/out negligence, 2)
accident must be caused by something in exclusive control of D, 3) no contributory action from P
v. Res ipsa 1) satisfied by good weather, no collision; 2) satisfied b/c no other person is pilot, D
responsible for maintenance as owner; 3) satisfied b/c P in back seat, unable to operate plane
vi. Once P proves case, burden of proof on D to prove D not negligently responsible
U.S. v. Kesinger (10th Cir, 1951).
(bomber crash)
i. B-17 crashes on farm, farmers (P) sue U.S. (D) under Fed. Tort Claims Act
ii. Finding for P: res ipsa loquitor -- normally no crash unless negligence, exclusive control of D, no P
contribution
iii. Doctrine exists b/c D has best opportunity to determine true cause of accident, P has no such
opportunity -- burden of proof shifts due to imbalance of information
Ybarra v. Spangard (1944).
i. Paralysis in hospital during operation
Other cases I didn’t get to
L. Negligence:
1.
Negligence per se
Comparative fault
Butterfield v. Forrester (England, 1809). (drunk rides into pole)
i. D obstructs highway to make house repairs, P leaves pub at dusk riding horse violently, rides into
pole
ii. Finding for D: P contributory negligence eliminates P negligence claim
Quanah, Acme & Pacific Railway v. Stearns (TX, 1918). (train starts fire)
i. Railway sparks start fire on adjacent P grazing land, D says P contributorily negligent in not
plowing fireguard
ii. Finding for P: P not required to anticipate D negligence
Clark v. Boston & Maine Railroad (NH, 1935). (standing on tracks watching train)
i. P standing on tracks watching train hit by D train coming the other way
ii. If last clear chance doctrine applies, then contributory negligence not a defense.
4.
5.
6.
iii. Last clear chance doctrine (D has superior knowledge): D aware of P presence, D aware of P
ignorance of peril or inability to save himself, D can act in due care to avoid injury
Spier v. Barker
i. P car hit by D, P (not wearing seatbelt) thrown from car, pinned under car
ii. Not wearing a seatbelt can impact damages, but NOT liability
iii. Not wearing seatbelt is not contributory negligence b/c not proximal cause of accident
iv. D has burden of proving unreasonable not to wear seatbelt, & that some injuries would not have
been received if wearing seatbelt
v. Doctrine of avoidable consequences -- no recovery for damages which could have been eliminated
by reasonable conduct of P -- usually only applied post-accident (seeking medical care, etc.), but
OK in seatbelt case
Li v. Yellow Cab Co. of CA (CA, 1975). (car accident in center of intersection)
i. P tries to make left turn across 3 lanes, oncoming D car hits P -- both partially at fault
ii. Finding for P w/ D comparatively negligent
Champagne v. U.S. (ND, 1994).
(hospital discharges suicidal boy)
i. Hospital admits boy who attempted suicide, discharged in 3 days, commits suicide 1 month later
ii. Parents sue hospital; ct. weighs fault of suicide victim in causing own death w/ fault of hospital
iii. If patient too mentally incapacitated to assume responsibility, patient's fault much reduced
M. Negligence:
1.
2.
3.
4.
5.
6.
Eckert v. LI RR (NY, 1871)
(man saves boy on train tracks)
i. P husband saves small child on train tracks, hit by negligent D train, killed
ii. Finding for P; Dissent says P assumed risk
Lamson v. American Ax & Tool (MA, 1900)
(worker hit by hatchet)
i. P at work complained of hatchets falling, given choice: shut up or quit, hit by hatchet, sues D co.
ii. Finding for D: P assumed risk by staying
Hudson v. KC Baseball (MO, 1942)
(guy hit by foul ball)
i. P sues D baseball team b/c hit by foul, no netting
ii. Finding for D: P assumed risk
Morris v. Cleveland Hockey (OH, 1952)
(guy hit by puck)
i. P sues D hockey team b/c hit by puck
ii. Finding for P: No assumption of risk b/c people aren’t as familiar with dangers from hockey
Siragusa v. Swedish Hospital (WA, 1962)
(hospital worker hit by hook)
i. P nurse’s aid hit by opening door in D hospital
ii. Finding for P: Employer must provide reasonable care to make reasonably safe place to work
iii. Knowledge and appreciation of risk of injury (assumption of risk) is evidence of contributory
negligence, but not bar to suit
Scott v. Pacific West Mountain Resort (WA, 1992)
(ski school accident)
i. P ski racing in ski school, crashes into D shed
ii. Finding for P: P assumed risks of skiing, but not of dangerously laid out ski path
N. Negligence:
1.
2.
3.
Assumption of risk
Duty to care
Union Pacific RR v. Cappier (KS, 1903) (RR accident victim w/ arm cut off)
i. P's son tries to cross RR tracks, hit by D freight car, leg & arm cut off; yardmaster tells engineer to
move ahead in order not to be hit by passenger train, ambulance called slightly later, P dies
ii. Finding for D: If trespasser injured b/c of own negligence, those in charge of instrument inflicting
hurt are morally but not legally responsible for helping
Ward v. Morehead City Seafood Co. (NC, 1916).
(grocer sells bad fish)
i. D sells fish to grocer, who sells fish to P's rep, rep dies, P sues; D knew fish was making people
sick, didn't notify retailers to stop sale
ii. Finding for P: Negligence in duty and care of giving notice if injury would have been avoided
iii. Special place given protection from impure preparation of food, especially selling adulterated food
L.S. Ayres & Co. v. Hicks (IN, 1942). (store escalator catches fingers)
i. P catches fingers in escalator in D store, D negligent in not stopping escalator (aggravated existing
harm to fingers)
ii. Finding for P: legal duty arises out of social obligation
iii. If person helpless & in situation of peril, if person servant or invitee of D or hurt by instrument
under D control, D has obligation to act even if no negligence in causing harm
4.
Basso v. Miller (NY, 1976).
(Ice Caves visitor falls into crevice)
i. Visitor to D Ice Caves Mtn. falls into crevice. Ps, in town, find out, told not to go in, go anyway,
help in rescue although told to go home
ii. After rescue, Ps ride off, at dark, still on D land, hit potholes & crash -- P sues D.
iii. Status used to matter: If Ps trespassers, then duty not to act wantonly, but no passive duty; if Ps
licensees/guests, duty to warn of potholes; if Ps invitees/patrons, duty to maintain grounds in
reasonably safe condition
iv. Finding for P: One standard -- landowner must act as reasonable man in maintaining his property
in reasonably safe condition under the circumstances
v. Dissent: Keep the status categories, don’t make D care for safety of trespassers
O. Negligence:
1.
2.
3.
4.
“But for” and proximate cause
Barnes v. Bovenmyer (IA, 1963).
(doc doesn’t take out steel in eye)
i. P gets steel in eye, D doc doesn't remove until 36 hrs. too late, but expert says delay doesn't matter
in eye damage
ii. Finding for D: not just D negligence, must have D negligence = actual cause of damage to find for
P.
iii. Expert testimony OK to prove actual cause where beyond knowledge of layperson
Dillon v. Twin State Gas & Electric (NH, 1932). (boy falls from bridge on electric wire)
i. Boy falls from bridge, electrocuted when falls on uninsulated live wire
ii. D negligent, but not actual cause of death (boy would have died anyway)
iii. Finding for P: Allows trial for damages caused by wire above what would have happened had the
boy landed
Ford v. Trident Fisheries (MA, 1919). (sailor thrown off boat)
i. P intestate was on D boat, thrown overboard but nobody saw; P says D negligent b/c lifeboat not
properly equipped
ii. Finding for D: Even if boat not properly equipped, not contributing cause of P death
Scafidi v. Seller (NJ, 1990). (docs mistreat early labor)
i. P into early labor, doctors don't properly treat early labor, premature birth, baby dies; P mom sues
D doc.
ii. Finding for P: "increased risk" expanded standard of causation (Restatement §323)
(a) §323a: If providing protection for other, liable for harm for failure to exercise reasonable care if failure
increased risk of harm
5.
iii. P has preexisting condition, D negligent w/ regard to condition -- if, within reasonable degree of
medical probability, negligence increases risk of harm AND risk is substantial factor in producing
actual harm, negligence can be actual cause
iv. D whose acts aggravate P preexisting condition is liable only for amount of harm caused by
negligence; liability = total harm - harm that would have happened anyway
v. Burden of proof is on D to show what % of harm would have happened anyway -- "lost-chance of
recovery damages"
Overseas Tankship v. Morts Dock and Engineering (Wagon Mound)(Australia, 1961).
(boat leaks
oil, oil burns)
i. D ship (the Wagon Mound) leaks oil outside of P wharf, doesn't clean it, leaves
ii. Dock sees oil, doesn't think burnable, welding work continues, oil ignited, wharf catches fire
iii. Finding for D: shouldn’t have known that furnace oil burns on water, not foreseeable consequence
of act
P. Negligence:
1.
2.
3.
4.
5.
6.
7.
McLaughlin v. Mine Safety Appliances Co. (NY, 1962). (heat blocks burns kid).
i. Fireman unwraps D heat blocks, gives to nurse who puts them under patient blankets, 3rd-° burns
ii. Instructions on container say wrap in blanket, demonstration to fireman beforehand saying wrap in
blanket
iii. Finding for D: If purchaser knew about danger, passed product on w/o warning, his negligence was
cause of accident, distributor D not liable -- D could not have foreseen fireman would not warn
iv. Dissent: If reasonable to anticipate others’ negligent conduct, negligence of others does not OK
own negligence
Cruz v. Middlekauff Lincoln-Mercury (UT, 1996).
(car stolen from lot hits ped)
i. Car stolen from D dealer lot (keys in car, thief walks in and takes), police pursue, thief hits P &
injures couple
ii. Finding for P: jury could find theft foreseeable, D negligent for leaving keys in car
iii. P needs to prove lot conduct was substantial, causative factor and that intervening cause was
foreseeable
Sheridan v. U.S. (US, 1988).
i. D is liable if intervening act is foreseeable even if negligent or intentional or criminal
Godesky v. Provo City (UT, 1984).
(roofer electrocuted)
i. P is unexperienced temp. working on roof, told to tie off electrical wires, zapped
ii. Finding for P: city (70%), building owner (20%), roofing crew (10%) negligent
iii. City owned uninsulated wire -- first installed over 1-story building, 2nd story added later
iv. Building owner reps knew about electricity, on site at time, said nothing; roofing crew didn't know
wires electrified
v. WAS rule that more recent reckless act breaks chain of causation, relieves liability of earlier
actors, but intervening actor had to be reckless; now, causation follows comparative fault, jury
determines both relative fault & causation
Largo Corp. V. Crespin (CO, 1986). (dramshop liability)
i. D bar serves obvious drunk 10-13 beers -- gets out & drives off into traffic, kills P's husband
ii. Finding for P: dramshop liability -- serving is proximate cause b/c foreseeable drunken damage
Johnston v. KFC Natl Mgmt. Co. (HI, 1990).
(no dramshop liability for social host)
i. Traditionally -- if person gets drunk & injures someone else, is sole proximate cause
ii. Sweep to holding commercial supplier of alcohol liable
iii. Doesn't see reason to expand to non-commercial supplier (social host) just yet
Ely v. Murphy (CT, 1988).
(dramshop liability for social hosts of minors)
i. D social hosts at H.S. graduation party, 18-yr.old guest drunk driver, hits P's son
ii. Social hosts not insulated by minor's consumption; should foresee minor negligence if drunk
Q. Negligence:
1.
2.
3.
Intervening actor
Joint cause
Johnson v. Chapman (WV, 1897).
(warehouse walls fall)
i. 2 Ds own warehouses next to P warehouse, Ds’ walls defective, walls fall, damage P warehouse
ii. Finding for D: Both negligent, both caused injury, jointly & severally liability
iii. Joint D cannot mitigate liability by proving comparatively more negligence of other D -- both
liable for all of damage.
Maddux v. Donaldson (MI, 1961).
(3 car accident)
i. P driving at dusk on wet road, D following; speeding car hits P, D can't stop in time, hits P as well
ii. Finding for P: OK to find each D liable for whole if can't assess proportional responsibility of each
O'Brien v. National Gypsum (2d Cir, 1991).
(asbestos inhalation)
i. P dies of mesothelioma from asbestos, P sues everyone making asbestos stuff at Brooklyn Navy
Yard
ii. All manufacturers held equally liable, share damages equally
iii. Don't have to attribute specific manufacturer to specific cause -- if manufacturers' products are
around, and those specific products or others just like it could have caused injury but no way to
tell, still OK to apportion liability
R. Negligence:
1.
2.
3.
4.
5.
S.
Financial harm
Barber Lines v. Donau Maru (1st Cir, 1985).
(ship prevented from docking)
i. D ship spills oil into harbor, P ship has to dock elsewhere; P sues D to collect extra expense
ii. Finding for D: Even if foreseeable injury, can't recover financial damages b/c of negligence unless
also physical damage
Union Oil Co. v. Oppen (9th Cir, 1974).
(damage to fishermen)
i. Commerical fishermen sue offshore drilling D for profit loss due to oil spill
ii. Finding for P: exception of suing for financial harm for fishermen
iii. D could reasonably foresee that oil spill would harm fishermen, public policy of preventing
environmental injury
In re One Meridian Plaza Fire Litigation (PA, 1993)
(economic damage b/c fire)
i. City shuts down fire area, Ps sue for economic damages
ii. Can't sue for economic loss under negligence
iii. Can sue for economic loss under nuisance, if harm suffered different than harm suffered by all
CT Mutual Life v. NY, New Haven & Hartford RR (CT, 1856).
(life insurance policy held by other)
i. P has insurance policy on guy killed while on D train, D paid victim's estate for wrongful death
ii. P sued D to recover policy amount
iii. Finding for D -- can't recover economic damages if not intentional wrong against you
People Express Airlines, Inc. v. Conrail (NJ, 1985).
(RR accident closes P office)
i. Accident at nearby D RR yard, P has to evacuate offices, sues D for profit loss
ii. Finding for P: recovery possible b/c particularly foreseeable evacuation in event of accident
iii. Maybe recovery for small $ loss if very foreseeable, injury directly caused by negligence
Vicarious liability
1.
2.
3.
4.
5.
Kohlman v. Hyland (ND, 1926)
(car accident on personal errand) .
i. Employee of D takes personal detour, finishes errand, car accident on road back to work hotel
ii. Finding for P: employees will wander, and whether they are on co. business or not is question for
jury. When in doubt, let industry, not private person, carry liability.
iii. If accident on way to personal errand, employee liability, but since after errand on way “back” to
work, enough flexibility to let jury decide if vicarious liability.
iv. Dissent says is clearly own liability.
Houston Transit Co. v. Felder (TX, 1948).
(bus driver beats bumper-hitter)
i. P’s car hits D employee’s bus; employee smacks P with money-changing box
ii. Finding for P: jury says in scope of employment
Konradi v. U.S.
(mailman accident during commute)
i. Rural mailman hits & kills P's decedent in car accident on way to work
ii. ?: is commute in scope of employment, is U.S. vicariously liable?
iii. General rule: commute is out of scope, Posner makes utilitarian exception
Ira S. Bushey & Sons, Inc. v. U.S.
(drunken sailors damage drydock)
i. Background safety, cost allocation, spreading arguments for strict liability
ii. Coast Guard boat in drydock, drunken sailor opens water pump, ship sunk, drydock damaged
iii. Finding for P: vicarious liability b/c enterprise cannot JUSTLY disclaim responsibility for
accidents characteristic of its activities (drunken sailor)
iv. Utilitarian argument: gov't strictly liable if will change activities for greater social good; more
sense if drydock owners liable -- ensure locks on valves; here, drydock is cheapest cost avoider
v. P drunken damage is foreseeable, employer should expect foreseeable risks in course of
employment (return to ship)
Becker v. Interstate Properties (3d Cir, 1977). (paving employee run over)
i. 3 reasons for strict liability: spread costs, minimize losses, risks of activity borne by beneficiaries
ii. D hires X contractor, which hires Y subcontractor, sub employee runs over P (X employee)
iii. Finding for P: D should have known contractor would hire sub, should have ensured sub not
financially insolvent
iv. Utilitarian (risk spreading) argument: let costs fall on contractee, not innocent victim, b/c at least
there's a relationship contractor/contractee, ability to spread costs
v. Justice argument: let costs fall on party better able to control factors leading to accidents -contractee better able to control financial situation of contractors than victim
T. Strict liability
1.
2.
3.
Exner v. Sherman Power Construction Co. (2nd Cir., 1931)
(dynamite blows up).
i. D working on power plant, keeps lots of dynamite in shack permitted by deputy fire marshal.
ii. Dynamite accidentally explodes, damages P >50 rods away on other side of river.
iii. VT statute: keeping >50 lbs. dynamite w/in 50 rods of inhabited building -- fined $25 / day after
notice.
iv. Finding for P: despite no negligence, no illegal storage, simply b/c involved in dangerous activity,
co. becomes insurer
v. No negligence per se: P not in class designed to be protected by statute
Marshall v. Ranne (TX, 1974). (hog stalking)
i. Neighbor's vicious hog stalking & bite when farmer goes to car
ii. Attempted defenses: assumption of risk, contributory negligence (but contrib negligence no
defense to strict liability)
iii. Finding for P: strict liability to wild animal owners if propensity of animal is foreseeable
iv. Restatement of Torts §507, 509, gives strict liability to wild animal owners if propensity of animal
is foreseeable
v. No assumption of risk: assumption of risk needs voluntary choice of conduct
vi. Not voluntary if D leaves P no reasonable alternative conduct in order to 1) avert harm to self or
other, 2) exercise or protect right which D has no right to take away -- can't be forced to stay in
house or shoot animal (criminal prosecution)
Siegler v. Kuhlman (WA, 1972).
(gas truck spills)
i. Gasoline tank truck tips, spills, P car runs into gas pool, ignites, burns
ii. Negligence per se: state codes say load can't spill; statute focuses on result; potential defense = we
took no act violating statute?
iii. Negligence res ipsa loquitor: tipping doesn’t happen w/o negligence, control of D, P did nothing
iv. Strict liability: transportation of gasoline as freight along public highways = ultrahazardous activity
v. Other strict liability cases referred to in Siegler:
(a)
(b)
(c)
(d)
Harm by trespassing animals
Bona fide purchaser of stolen goods to true owner
Bailee for misdelivery of bailed property
Innkeepers & hotels at common law
U. Products liability:
1.
2.
3.
4.
5.
MacPherson v. Buick (NY, 1916)(car wheel collapses)
i. D car wheel collapses, P driver sues D
ii. Finding for P: Privity is dead, manufacturer owes duty to final consumer, not just buyer (retailer)
iii. If thing is reasonably certain to be dangerous if negligently made, and if knowledge that will be
used by other than buyer, then manufacturer must make thing w/o negligence
Ford Motor v. Mathis (5th Cir, 1963)(car lights go out)
i. P car lights go out, runs into tree, sues D car manufacturer
ii. Finding for P: D assembler is liable for negligence of component-part manufacturer, even if no
negligence by assembler
Escola v. Coca Cola Bottling (CA, 1944)(Coke bottle explodes)
i. Coke bottle explodes in P’s hand, negligence res ipsa loquitor
ii. Finding for P: negligence res ipsa loquitor met
iii. Traynor concurrence argues for strict liability – argues Calabresian background safety, spreading
Elmore v. American Motors (CA, 1969)(drive shaft drops out)
i. P driving D car, drive shaft drops onto road, P hurt
ii. Finding for P: Manufacturer has duty to P bystanders as well as users
Goldberg v. Kollsman Instrument (NY, 1963)(LaGuardia airline crash)
i. P daughter dies in airline crash due to faulty D altimeter
ii. Finding for D: manufacturers of component parts not themselves liable (huh?)
iii. Dissent thinks AIRLINE, not manufacturer, is actually best for spreading, market allocation except
regulation restricts airline market price, runs against allocation
V. Products liability:
1.
Manufacturing defect
Breach of warranty
Henningsen v. Bloomfield Motors (NJ, 1960)(car steering breaks)
i. P buys Plymouth from D, boilerplate disclaimer of warranty, steering breaks, wife hurt
Finding for P: No privity, D’s expressly disclaiming warranty is unconscionable & invalid by
public policy
Casa Clara Condos v. Charley Toppino & Sons (FL, 1993)(rusting concrete)
i. Flawed D concrete used to build P buildings
ii. Finding for D: No physical harm, just economic loss: use contract, not tort
ii.
2.
W. Products liability:
1.
2.
3.
4.
Patterson v. Rohm Gesellschaft (TX, 1985)(gun manufacturer strict liability)
i. D Saturday Night Special used in armed robbery, P killed
ii. Finding for D: Gun was not unreasonably dangerous b/c not beyond expectations of user
Henderson v. Ford Motor (TX, 1974)(car w/o speed control)
i. P driving D car, can’t slow down; dislodged piece of gasket is cause, no defective installation
ii. Finding for D: could be designed better, but DESIGN not unreasonably dangerous beyond
expectation
iii. Dissent criticizes focus on manufacturer; if design not expected to make crash, and made crash,
then unreasonably dangerous
Barker v. Lull Engineering (CA, 1978)
i. P hurt at construction site by D loader
ii. Strict liability if product doesn’t meet ordinary expectations OR hindsight – excessive preventable
danger
iii. Wherever something “wrong” with product
Grimshaw v. Ford Motor Co. (CA, 1981).
(flaming Pinto)
i. Ford Pinto stalls, is rear-ended, bursts into flames, kills driver, burns P passenger, P sues D
ii. Finding for P: $2.5MM compensatory & $125 MM punitive damages, punitive then reduced to
$3.5MM
iii. D negligent/reckless: wanted to build cheap car quickly, relied on style over engineering, knew of
risks
iv. Extremely low burden (B) to redesign with more safety, L used is productivity value of life
(lawsuit award)
X. Products liability:
1.
2.
3.
Design defect
Failure to warn
MacDonald v. Ortho Pharmaceutical Corp. (MA, 1985). (birth control pill stroke)
i. P gets D birth control pills from gynecologist, has stroke, sues for breach of warranty, negligence
ii. Finding for P: Pill sufficiently consumer-driven that D has direct responsibility to D even though
prescription drug, learned intermediary in the way
iii. Jury could find that nature of warning or form in which warning conveyed is insufficient
Crocker v. Winthrop Labs (TX, 1974). (“non-addictive” addictive drug)
i. P’s husband takes D drug, drug labeled non-addictive, gets addicted, goes through detox, calls for
demerol, dies
ii. P sues for suffering, wrongful death
iii. Finding for P: Restatement §402B says manufacturer, seller strictly liable for misrepresentation,
even if not fraudulent or negligently made
Shanks v. Upjohn (AK, 1992). (painkiller + downer = suicide)
i. P’s decedent commits suicide after taking D painkiller with non-prescribed codeine, other
depressant
ii. P sues for strict products liability (defective design, failure to warn), negligence (failure to warn,
per se), breach of warranty
iii. Finding for P: D strictly liable for painkiller design defect
(a) Test: product failed to perform as safely as ordinary consumer would expect when used in reasonably
foreseeable manner OR
(b) Test: Product’s design proximately caused injury and D fails to prove design benefits outweigh risk
Y. Products liability:
1.
Joint causation and mass tort
Hillrichs v. Avco Corp. (IA, 1994).
(machine mangles cornpicker)
i. P runs cornpicking machine, mangles hand while trying to unplug it (machine’s still running)
ii. Finding for D: P 100% at fault, new trial for only enhanced injuries: should have been emergency
stop to save hand after initial mangling?
iii. Finding for P: D 80% at fault; no punitive damages b/c P didn’t show D acted with malice
2.
iv. D argument: if we put emergency stop in, would encourage, not discourage, dangerous use of
machine
Sindell v. Abbott Laboratories (CA, 1980).
(DES cancer case)
i. DES given to pregnant mothers (w/ FDA OK), later found may cause cancer in daughters
ii. P (daughter) sues (class action) drug cos., cos. jointly liable no matter which co. made her DES b/c
companies collaborated in marketing, promoting, testing, making industry safety standard
iii. Finding for P: strict liability for products liability
iv. OK to sue when can’t prove causal responsibility of particular company for damage
(a) If P can’t identify which of jointly & severally liable Ds caused injury, D burden of proof to show not
responsible
(b) Must join substantial majority of potentially responsible Ds
(c) By # of tortfeasors, chance that 11 named Ds were involved too low to require bearing burden of proof
(d) BUT count not by possible tortfeasors, but by market share (and thereby probability that product sold by
co. was product actually injuring P): suit allowed as long as substantial % of product sold by joined Ds
(e) Ds liable to proportion of sales in market, unless can prove that they DIDN’T sell damaging product
3.
4.
Summers v. Tice (CA, 1948) (2 hunters shoot at one P)
i. 2 hunters both shoot at P, both liable, burden shifts to each hunter to prove didn’t cause damage
Martin v. Abbott Laboratories (WA, 1984)
i. Ds originally presumed to have equal market share
ii. Any D which can prove own market share liable only for that share
iii. If everybody proves share, and total proved shares < 100%, P gets <100% of damages
iv. If not everybody proves share, those who don’t suck up the difference
Z. No-fault, worker’s comp, regulation
1.
2.
Whetro v. Awkerman (MI, 1970) (tornado crushes business house)
i. Tornado crushes house where P was working as caretaker
ii. Finding for P: injury arises out of and in course of employment
Ives v. South Buffalo Railway Co. (NY, 1911). (struck down worker’s comp).
i. Totally new 1910 workmen’s comp law = employer pays for employee injuries
(a) Arguments for law: risk spreading, workman=machine (if you break it, you pay to fix it)
(b) Arguments against: slippery slope – how much injustice must you compensate?
ii.
3.
4.
Finding vs. new law: Unconstitutional taking of property w/o due process b/c employer must pay
without fault
New York Central RR v. White (US, 1917).
(allows worker’s comp).
i. New NY Constitutional amendment, worker’s comp statute after Ives
ii. Finding for worker’s comp: new system doesn’t gut old system, it just provides new system
iii. Just to charge employer b/c employer expected to make profit from activity causing harm
iv. Proximate cause of harm is no longer specific activity, but employment generally
The Benzene Case (Industrial Union Dept. v. American Petroleum Institute, (US, 1980)
i. OSHA regulates exposure to benzene (causes leukemia at high exposure), sets appropriate
standards for employer
ii. OSHA standard is lowest technologically feasible level not impairing viability of industry
(a) Sets benzene level at 1ppm even though some evidence that safe exposure = 10ppm
(b) Assumes any level > 0 presents some increased risk of cancer
5.
iii. Finding vs. OSHA: Statute says feasible elimination of significant risk of harm, doesn’t require
absolute elimination of any risk of serious harm; statute also says OSHA has duty to prove
workplace unsafe before regulating
iv. Powell concurrence: OSHA also has to do economic cost/benefit comparison
Cotton Dust Case
i. Overrules Benzene Case, no?
ii. OSHA can set technologically feasible standard