Download Self-Defense by Force Threatening Death or

INTENTIONAL TORTS AGAINST PERSONS
a. BATTERY:
i. Harmful or offensive contact w/a person resulting from an act that is intended to cause π or a 3 rd person to:
1. (a) Suffer a contact, OR
2. (b) Suffer apprehension that such contact is imminent (i.e. an intent to commit an Assault).
ii. Requirements:
1. Act: must be of the actor’s will (volitional movement of the actor’s body).
2. Intent: π must show that  intended to cause a touch – (intent to do harm or malice are not necessary)
OR that π was substantially certain that a touch would occur from his act.
a. Consent: π must not have consented to the touch.
3. Harmful or Offensive Touching:  must have inflicted a harmful or offensive touch to the π’s person
or something closely associated. There must be some form of physical contact.
a. π does not have to have actual awareness of the touching.
b. Touching extends to personal effects of π - clothing, something π is holding etc.
c. Once it is established that  intended the battery and the battery occurs, Δ is liable for
ANY CONSEQUENCES which ensue – reasonably foreseeable or not.
4. Causation: harmful or offensive touching must be the direct result or indirect result of the ’s actions
(if a totally independent force causes injury, then  not liable).
Vosburg v. Putney: π and  were sitting next to each other in school. During class  kicked π slightly below his knee – π
did not feel it. π was overcome with pain where he was kicked. π was ill as a result of the injury and eventually π lost the
use of his leg. Earlier that year, π received an injury on the same leg, which was now “healing up and drying down”. The
medical experts testified the kick to the leg was the exciting cause of the π’s injury. Crt. Held for π b/c act didn’t happen on
the playground where implied consent, but was intentional. (∆ would not have been liable). Example of battery w/o assault
b/c π did not know he was going to be hit.
 is liable for all injuries resulting directly from the wrongful act regardless of whether he could have or not foreseen the
harm. The  takes his victim as he finds him.
Leichtman v. WVW Jacor communications.: Radio hosts con anti-smoking guy onto show and blow smoke on him. P
found it offensive and sued for battery. Radio hosts LIABLE for battery b/c smoke (particulate matter) made physical
contact with P which was offensive and unwanted.
Morgan v. Loyacomo: P purchased clothing and left store. D yanked bag away from P, thinking she stole. P sued for
battery. Offensive contact with anything connected to his person, if rude and insolent, is sufficient for battery. LIABLE.
b.
ASSAULT:
i. Intentionally putting a person in reasonable apprehension of harmful or offensive contact.
ii. Requirements:
1. Act: The act must be volitional movement. Words alone are NOT enough.
a. Under the RST/RTT: Assault requires (1) Intention to cause a battery (imminent contact) (2)
make someone think that he is going to suffer a battery and (3) the person has to think that
you will commit a battery (apprehension of imminent battery – this must be reasonable).
2. Intent: Must intend to inflict harmful or offensive touching (intent to cause a battery), or put a
reasonable person in imminent apprehension of a harmful or offensive touching.
a. Like battery, intent to do harm or bear malice is not required.
3. Apprehension: π must have been put in apprehension of an imminent harmful or offensive touch. (fear
is not required – look to Restatement).
a. Interest being protected under assault is π’s freedom from apprehension of the contact, thus
assault can exist even if no contact occurs – i.e. battery and assault are mutually exclusive
although they often occur together!
4. Causation
Brower v. Ackerley – the billboard case
The plaintiff received several phone calls that became threatening to him
the calls were traced to the defendant’s home. Brower sued for assault (among other things) because the calls caused
him feelings of panic and terror. NO LIABILITY. Ruling: the phone calls did not constitute imminent harm because
the defendant was not in a position to immediately reach and touch the plaintiff.
Bennight v. Western Auto Supply – the bat warehouse case
D forced P to work in the bat-infested warehouse at the back of the store. She protested this, fearing the bats. P was
attacked by bats and sued D for assault. LIABILE. Ruling: By intentionally forcing Mrs. Bennight to work in the
unsafe conditions, the defendants must be liable for an assault. It was an invasion of her person, and they placed her
where she had unreasonable apprehension of bodily harm
Langford v. Shu – the mongoose case
D showed P a box and said her husband had sent something for the kids. D said the animal inside would not harm her if
she took a look. One of the children released the spring holding the box closed and a furry thing flew up from the box. P
was scared and fell over. P sued for assault. LIABLE. Ruling: D intended to show her the box and play the prank and
P had reason to think her bodily safety was at risk
Newell v. Whitcher – the blind tutor case
a blind woman tutored some children on the piano. She spent the night at her employer’s home after the lessons. D
(kids’ father) entered her room at night and propositioned her. She rebuffed the man and asked him to leave…he left.
She sued him for assault. LIABLE. Ruling: He intended to make inappropriate advances on her, and his actions were
threatening enough to cause her to be afraid.
II. INTENTIONAL TORTS AGAINST PROPERTY
a. TRESPASS
i. Occurs either when (1) Δ intentionally enters π’s land, w/o permission (2) Δ remains on π’s land w/o the right
to be there, even is he entered rightfully; or (3) Δ puts an object on (or refuses to remove an object) π’s land
w/o permission. REQUIRES ACTUAL ENTRY ON THE LAND.
1. Liability: trespassers are held civilly liable for the consequences which directly flowed from their
unauthorized acts. Even if they cause physical harm. Even if no real damage done by the trespass, the
law infers some damage and awards Nominal Damages.
2. Intent: Trespass only refers to the intentional interference with π’s interest in property. The intent
controlling = intent to complete the physical act and not the intent to cause injurious consequences.
ii. Particles and Gases: if Δ knowingly causes objects, including particles and gases, to enter π’s land, this is a
trespass. (i.e. a factory emitting soot – even if the intention is in good or bad faith, they know it has to go
somewhere). For invisible gases – this is an Intangible Trespass and thus is a nuisance action. Trespass not
allowed for cases where there is no visible or tangible trespass to physical property. Damage must be shown!
iii. Air Space: This is technically a trespass but allowable at certain altitudes where it does not interfere with P’s
use and enjoyment of his land.
quare clausum fregit = trespass to land, “broke the close”, the writ called upon the defendant to explain his entering the
property
trespass de bonis asportatis = “of good carried away”, writ for interference with or damage to property
Desnick v. ABC: Reporters took concealed cameras and microphones into the Desnick Eye Center posing as patients
seeking eye exams. The footage they collected was aired on an ABC television program. The clinic (plaintiff/appellee)
sued for the tort of trespass stating they would not have consented to the entry and actions of the reporters if they had
made their true purpose known. LIABLE. Ruling: while fraudulent in how they represented themselves, the reporters
entered a open public store, did not break any confidentiality rules, and did not disrupt the decorum of the clinic.
Therefore, their action was not trespass.
Accidental Intrusion
- a person who intentionally enters another’s land even by mistaken belief of law or fact is still liable for trespass
- He could mistakenly believe he:
o Is in possession of the land or entitled to it
o Or has the consent of the possessor or a third person with the power to provide consent
o Or has some other privilege to enter or remain on the land
Non-liability for Accident Intrusions
an unintentional and non-negligent entry onto private land, or causing a third thing to enter the land, does not subject the
actor to liability even if the entry harms the owner.
b.
c.
TRESPASS TO CHATTELS
i. Any intentional interference with a person’s use or possession of a chattel (short of conversion).  only has to
pay damages, not the full value of the property as  would under conversion.
1. Loss of Possession: If P loses possession of his chattel at any time, recovery is still allowed even if
the chattel is returned unharmed. The interference with the possession doesn’t have to be evil or good
but intended.
2. Main difference between trespass to land and trespass to chattel is that under trespass to land you must
show actual damage.
CONVERSION
i. An intentional interference with P’s possession or ownership of property that is so substantial that D should be
required to pay the property’s full value (unlike trespass to chattels where you pay for damages only).
Traditional rule – does NOT apply to intangibles
1.
Mistake: Taking by mistake may be considered a conversion. All that is required in INTENT to take
possession
2. Forced Sale Damages: Damages are FORCED SALE DAMAGES where D is required to pay the fair
market value of the converted goods and not just the amount of use or damage incurred. For innocent
converters some jurisdictions relax the forced sale requirement and they only pay for damages. The
converter gets to keep the goods after payment of forced sale damages – they essentially but it!
ii. Difference Between Conversion and Trespass to Chattel: Several factors used including (1) duration of D’s
dominion over the property (2) D’s good or bad faith (3) the harm done to the property (4) the inconvenience
caused to P.
iii. Intentional destruction or other damage to its physical condition is liable for conversion. Defendant used the
plaintiff’s object in a way that interfered with the plaintiff’s right to the use of his goods.
iv. In a suit for replevin, the plaintiff DOES WANT the property returned. Replevin and conversion basically ask
for two different results from the same conduct
Armory v. Delamirie (1722)
Plaintiff found a jewel stashed in a chimney. He gave to his superiors and then wanted it back…they wouldn’t give it to him.
He sued for its recovery. The court found he was not the true owner and had no absolute right to it, but had more of a
right to it than the others.
Moore v. Regents of the University of California: P went to UCLA medical ctr. after diagnosed with hairy-cell leukemia.
His physician, D, removed his spleen to save his life. Ds knew of the value of P’s cells and devised a plan to acquire them
but didn’t tell P. Ds later established a cell line using P’s cells and Regents applied for a patent on the line. With the
assistance of Regents, D negotiated agreements for the line’s commercial use. Crt. held for Ds and found no conversion but
for P on the breach of fiduciary duty, disclosure, and lack of informed consent. Human biological materials don’t =
personal property. They exist in a class of their own (sui generis). Also detriment to the medical research industry would be
great if conversion held against Ds.
III. EMOTIONAL HARMS
a. FALSE IMPRISONMENT
i. The intentional infliction of a confinement. Designed to protect freedom. There must be (1) causation and (2)
An intent to confine (evil or malicious intent is not required). P must show that D either intended to confine
him or at least knew with substantial certainty that P would be confined by D’s actions. False imprisonment
cannot be committed by reckless or negligent acts!
1. Confinement: P is within certain limits, not that she is prevented from entering certain places. P must
also be aware of the confinement or must suffer some actual harm.
2. Means Used: FI may be carried out by direct physical means but also by threats or by the assertion of
legal authority.
a. Physical Force; The confinement can occur by threat of physical force no matter the strength
of D (i.e. a 70 year old man v. a 20 something year old man with muscles).
b. Legal Authority: Does not have to be real as long as P reasonably believes that D has legal
authority over him
Petersen v. Sorlein: plaintiff was a college student at Moorhead College and joined a religious group called The Way.
Family hired a guy to pick up the plaintiff and to bring her home for “deprogramming” but after two weeks she had a police
car take her back to the group. Minnesota SC affirmed the decision on appeal. When someone acts under the conviction
that the judgmental capacity of another party (here an adult child) is impaired, then any limitations placed on the child’s
mobility does no constitute deprivations of personal liberty.
CITIZEN’S ARREST
- actions that are in excess of the authority granted to private citizens can amount to false imprisonment
- the ability to make a citizen’s arrest is covered by statutes in most states (must be a felony), but in some states this
power is governed by common law.
Shoplifters
- shoplifting is usually a misdemeanor
- most states have passed statutes giving shop owners privilege to detain suspected shoplifters without liability even if
their suspicions are found to be untrue
- the shop owner can only detain a person for a reasonable amount of time and must hold him in a reasonable
manner
if there is more than one person in the store when a necklace was stolen, within reason, you can keep them all because
there is equal suspicion of theft.
Melton v. LaCalamito – the U-haul case
A guy returns the leased U-Haul truck to a dealer. The dealer sees pads that look like the ones used by U-Haul and
demands that the plaintiff return them. the defendant calls the police and makes statements that (the jury later decides)
influence the officer’s decision to arrest the plaintiff. He is held for several hours – until they believe his story and his
evidence for private ownership of the pads
Baggett v. National Bank and Trust Co. – the human shield case
A man walked into a bank (the defendants) and filled out a deposit slip. He handed it to the bank teller, not noticing the
back had “this is a stek up” written on the back of the slip. The police arrested him and brought him back to the bank
where the teller identified him as the man who gave her the slip. He sued for false imprisonment but summary judgment
was given to the defendants. Ruling: the bank employees acted in good faith and gave requested information to the
police, and the bank made no request for the police to hold him. So, the bank cannot be held liable for any false
imprisonment charges.
b.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) - OUTRAGE
i. Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress,
even in the absence of physical harm.
1. Requirements: A plaintiff claiming intentional infliction of emotional distress must allege that (1) the
defendant's conduct was intentional and reckless; (2) the conduct was outrageous and intolerable; (3)
the conduct caused the plaintiff emotional distress; and (4) the plaintiff's distress was severe.
2. There can be IIED even when there is no threat of bodily threat or contact. But unlike assault that
requires an imminent apprehension, IIED can constitute a delayed threat.
3. Bystannder Rule / Third Persons: Distinction between immediate family and others:
a. A family member, who is present at the time, can use IIED whether or not bodily harm was
caused
b. Any other person, who is present at the time, can use IIED but must ALSO have bodily
harm.
Muratore v. M/s Scotia Prince – the cruise ship gorilla case: P said she did not want her picture taken and the crew took a
picture of her rear end. The picture was displayed in a public area, with a gorilla head placed over her head. Crew taunted her
and P spent much of her trip in her cabin to avoid the crew. She sued for intentional infliction of emotional distress. LIABLE.
Ruling: conduct was outrageous because P had shown discomfort in having her picture taken there is a connection between
their behavior and the plaintiff’s emotional distress.
Roberts v. Saylor – the 1st screaming doctor case
P had surgery twice – the first time by another doctor, the second time by the defendant. D got angry and yelled at P. Later P
had another surgery at the same place, and was confronted by D (after the patient had taken pre-op medication) saying “I don’t
like you”. P sued for outrageous behavior that caused her emotional harm. NO LIABILITY. Ruling: D’s insults and actions
did not violate the bounds of decency.
Greer v. Medders – the 2nd screaming doctor case
P was upset when his doctor, Medders, did not check on him after surgery and called his office to complain. Medders got very
angry and yelled at the plaintiff and his wife, causing the wife to cry and the plaintiff to get upset. P sued. Remanded for retrial with jury. Ruling: we can’t by law dismiss the notion that D’s insults and hostility toward P were sufficiently distressing
enough to hold him liable.
IV. DEFENSES TO INTENTIONAL TORTS - Contributory negligence is not a defense to intentional torts!
a. CONSENT (willingness to consent to tort)
i. Express Consent: if P expressly consents to an intentional interference with his person or property, D will not
be liable for that interference.
ii. Implied Consent: Existence of consent may also be implied form P’s conduct, from custom, or from the
circumstances.
1. Objective Manifestations: if it reasonably seemed to one in D’s position that P consented, consent
exists regardless of P’s subjective state of mind (i.e. D offers to vaccinate all and P puts out her arm).
iii. Lack of Capacity: consent will be invalidated if P is incapable of givening that consent, b/c he is (1) a child
(2) intoxicated (3) unconscious, etc.
1. Consent as a matter of law (substitute consent): even if P truly is unable to give consent, consent
will be implied “as a matter of law” if (1) P is unable to give consent (2) immediate action is
necessary to save P’s life (3) there is no indication that P would not consent if able (4) a reasonable
person would consent in this circumstance,
2. Exceeding Scope: Even if P does consent, D will not be privileged if he goes substantially beyond the
scope of that consent.
a. Emergency: in surgery, emergency may justify going beyond P’s consent.
Grabowski v. Quigley: D, a surgeon, operated on P’s back after fall. After the surgery P’s left foot did not work properly. D
recommended more surgery but P got a second opinion and copies of his medical records. The records showed his operation
was done by another surgeon, Bailes. A scheduling error had occurred and P was already under anesthesia so Bailes did the
surgery. P sued for battery – ghost surgery. LIABLE. Ct. said operation without patient’s consent (to Quigley) is a technical
assault.
Brzoska v. Olson: Dentist had AIDS and didn’t tell patients. No patients tested positive but sued D’s estate for battery
(offensive touch). He boxed and suffered injuries as a result. NO LIABILITY. The court was unwilling to exchange
objective standard overseeing medical care with the subjective fears and prejudices of offensive acts.
Werth v. Taylor: Jehovah’s Witness lost a lot of blood after childbirth but had earlier refused blood transfusion. Doctor
ordered life saving procedure. P sued for battery – claiming did not consent to treatment. NO LIABILITY. Ruling: consent
implied in fact (assume consent for lifesaving actions when unconscious). Refusal for blood transfusion applied only to the
childbirth itself and not post-labor complications.
Role of Fraud
- if plaintiff consented but was mistaken about the heart of the matter, this can negate the consent and can recover for
battery
- mistaken about collateral matter, this cannot negate the consent and cannot recover for battery
Fraud in the factum - If the problem is fraud, it has to be fraud in the nature of the touching. Think A wants to have sex
with B so A says I love you to get B to consent. No fraud in this case.
apparent consent = does not in fact agree to conduct but words and actions (or his inaction) can show consent that justifies
the other’s acting upon them.
Rains v. Superior Court: Sluggo Therapy! Patients in psychiatric hosp. given strange treatments and claim they were
deceived into consenting through fraud. LIABILITY. Ruling: consent is legally ineffective if deceived. Purpose of
treatment “goes to the essential character of the act itself” and makes consent invalid.
If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of
members of that class to the conduct is not effective to bar a tort action. Consent can be actual or apparent. They can simply
be implied in law (ie. Blood transfusion case). Consent cannot be given under duress.
Examples:
1. A and B agree to fight with guns. A fires at B and his bullet breaks B’s arm. A is not liable to B.
2. A statute makes sex with an underage girl rape even with her consent. At the solicitation of A (age 14), B has sex
with her. A’s consent does not bar her action for battery.
b.
INSANITY
i. If an insane person by his act does intentional damage to the person or property of another, he is liable for that
damage in the same way in which a normal person would be liable. However, if they don’t think they are
touching someone, then it could be a defense (thought they were hitting a golf ball). There is no relaxation of
the standard for insane people but there is not a tougher standard either. As long as they know it is a person, it
is a battery!
c.
SELF-DEFENSE
i. A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and
any threatened confinement or imprisonment. Self Defense may be used not only where there is a real threat of
harm but also where D reasonably believes there is one!
1. Degree of Force and Retaliation: D may only use the degree of force needed to protect himself
against harm (D will be liable for any excess harm) and may not use any degree of force in retaliation
for a tort already committed.
a. Deadly Force: D may not use deadly force unless he is (1) in danger of death or GBH AND
(2) has no other alternative (i.e. retreat!)
2. Imminence Requirement: D may not use force to avoid harm that is not imminent unless it
reasonably appears that there will be no later chance to prevent the danger.
3. Duty to Retreat: The courts are split on this duty. The RST holds that (1) D may use non-deadly
force rather than retreating (2) D may not use deadly force in lieu of retreating, except if attacked in
his dwelling (by someone who doesn’t live there) even if he has other alternatives –DWELLING
EXCEPTION.
Defense of Others (3rd Party): You can defend a 3rd party if you have a reasonable belief that that
person would have had the privilege to use force in his own defense. Same rules apply as in normal
SD for degree of force used (reasonable force for non-deadly attack).
a. Mistake: Common law suggests that the SD privilege extends to 3rd parties but the RST
takes the opposite view for mistaken defense – You’re liable even if your mistake was
reasonable b/c you are volunteering – you’re under less stress thus you should be able to
assess the circumstance with a clearer view.
Self-Defense by Force Not Threatening Death or Serious Injury
Actor’s duty to avoid force – the actor cannot reasonably believe that the use of force is necessary until he has exhausted all other
reasonably safe means of preventing the other from inflicting bodily harm upon him.
** the actor may stand his ground and repel the attack by reasonable force, even if he could safely avoid the threatened bodily harm or
offensive contact by retreating.
4.
Self-Defense by Force Threatening Death or Serious Injury
One attacked in his dwelling place may await his assailant and use deadly force to repel him though he could prevent the assailant from
attacking him by closing the door.
**BUT** he is not justified in use deadly force if he can avoid the necessity of so doing by any alternative other than
flight or standing a siege.
Courvoisier v. Raymond: D was sleeping in his house/jewelry store. He was awakened by thieves who wanted into his store.
When D refused, they broke in. D got his gun and led them out of the store. D shot in the air to scare them off but they just
threw stones at D. The shots attracted P and two other officers who all proceeded to D. The two officers arrested the thieves
but P continued toward D and D fired upon him. The crt. reverses for D b/c trial did not give SD consideration to jury.
d.
DEFENSE OF PROPERTY
i. As a general rule, a person may use reasonable force to defend their property, both land and chattels. There are
two classes of property defense (1) Where you are not there (defending your property remotely) (2) When you
are there.
ii. Not Present – Use of Mechanical Devices:
1. Owner may use a mechanical device to protect her property only if she would be privileged to use a
similar degree of force if she were present and acting herself.
a. D may use devices that will deter and not to injure (posting of notice –even if done, can still
be liable if someone is injured, but not for intentional tort – for negligence- notice shows
intent not to harm).
b. When can certain deterrents can be used (i.e. glass, barbed wire) vs. ones that cannot (i.e.
spring guns) – In the RST devices “intended or likely” to cause serious harm or death cannot
be use unless there is a threat to human life. NO SPRING GUNS. Devices not intended to
cause harm or death can be used as long as it is reasonable.
2. Mistake: an owner’s right to use a dangerous device in a particular case will be measured by whether
deadly force could have been used against that particular intruder. (D’s spring gun hits a burglar – D
not liable for gun use but if D’s gun hits a neighbor, mailman, etc. D does not have a reasonable
defense mistake!
iii. Present: When an intruder is not doing harm to your property, you must first make a verbal demand to cease
before using force. If someone is doing damage, no need to ask first.
1. Mistake: If D’s mistake is about whether force is necessary, D is protected by a reasonable mistake
defense (using reasonably force against an unarmed robber). But if D’s mistake is about whether the
intruder has a right to be there, D’s use of force will not be privileged (D by accident, uses force
against a neighbor trying to retrieve her purse).
2. ** Once you are on a property the right to defend property and the right to defend yourself becomes
blurred**
** To determine if defense of property gives right to use of force:
ask whether the situation meets subjective (what he feels in the situation) and objective (what a reasonable
person would do or feel) tests.
** there is no obligation to leave one’s own residence to avoid a conflict. Can use force if the other conditions
apply (afraid, imminent danger, what others would see as danger). If you are outside (even if it is on your own
property), you will have to retreat into your home for this to apply.
** if the conflict is serious enough, then a firearm can be used to protect property (matter of degree). For
minor theft, force would not be OK. For a felony, force can be used for protection.
Katko v. Briney: after several break-ins, Ds rigged a shotgun to fire if someone broke into the house and covered the
windows so no one could see the trap set with the shotgun. the plaintiff broke into the house and was shot – severe injury to
his leg. P sued for battery. LIABILE. There is no right to intentionally or willfully use a deadly weapon to protect his
premises or property unless the trespasser is committing a felony or endangering human lives. DISTINCTION
BETWEEN FELONIUS ACTIVITY OR NON-FELONIOUS!
Kershaw v. McKown – the goat and dog case
A dog was attacking a neighbor’s goat. D killed the dog, and the dog owner sued for the value of his animal. there must be
an apparent necessity for the defense and then the acts of defense must be in themselves reasonable.
** the relative value of the animals may be a proper circumstance for the jury to consider in arriving at a conclusion whether
the defense was a reasonable one.
Woodbridge v. Marks – the watchdog case
P went to D’s house in search of someone working on the property. P walked on the grass instead of on the walkways and
was attacked by D’s guard dogs. P sued to recover for his injuries. LIABLE. Ruling: The trespasser is liable for his own
injuries if he puts himself in the position to be attacked by the guard dogs. Issues like this have to be treated on a case by
case basis.
e.
RECAPTURE OF CHATTELS
i. Generally, a property owner has the right to use reasonable force to regain possession of chattels taken from
him by someone else.
1. Fresh Pursuit: the privilege exists only if the owner is in fresh pursuit to recover the property – the
owner must act w/o unreasonably delay! (can ‘t go after D a week later).
2. Degree of Force: The force must be reasonable and deadly force may NEVER be used!
3. Wrongful Taking: The privilege only exists if the property has been wrongfully taken – if owner
parts willingly and an event occurs which gives him the right to repossess, he generally cannot use
force to regain it. (i.e. A rents a car from B for a week and does not return it after such).
Kirby v. Foster: P is an employee of D. $50 was missing and P was held responsible so it was deducted from his pay. On
January 20, D handed P money to pay the help and on lawyer’s advice, P took $ owed to him (including the $50), returned
the remaining $$ to D and said he was leaving. D then seized P - P claims injury. Crt. ruled for P b/c his possession of
money was not wrongful since the money was entrusted to him and not fraudulently taken. Even if P’s council was wrong
(i.e. take the money) $$ not taken wrongfully thus D not under privilege to use force.
f.
NECESSITY
i. D has a privilege to harm the property interest of P where this is necessary I order to prevent great harm to
third persons or to the D himself. Two types if necessity:
ii. Private Necessity (incomplete): Necessity arises when there is an action taken to preserve life or property
against a force of nature of some third party other then P (if it was against the P – it would be self-defense not
necessity). As long as necessity arises (i.e. no other realistic alternatives exist), even if the party invoking it
is negligent, the privilege still exists.
1. Actual Damage: Where private necessity exists, it will be a complete defense to a tort claim where P
has suffered no actual substantial harm. But, if actual damage occurs, P must pay for the damages he
caused!
2. Owner Resistance: Necessity is not to encourage P to save himself, it is to discourage D (the owner
who is getting trespassed) from helping of others. If D uses force to prevent the trespass, it is
actionable! Why not let the P bargain with the owner – P is not in a good bargaining position thus
owner (D) will take advantage – windfall to D.
Ploof v. Puntnam: D owned an island, which also had a dock, attached. The island and dock were under the charge of D’s
servant when P was sailing on the lake with his wife and children. A tempest arrived which put their boat in great danger.
To save themselves, P attached the boat to D’s dock. D’s servant unmoored the boat thus it was driven to shore and
destroyed and P his family, and boat contents were cast into the lake and injured. LIABLE. Crt. holds for P b/c the doctrine
of private necessity.
Vincent v. Lake Erie Transportation Co: D owned a steamship, which he moored to P’s dock to unload cargo. While
unloading, a storm developed and at the completion of unloading had grown so vicious that moving the boat was not
feasible. D signaled for a tug to come move her but none could be obtained b/c of the storm. Due to the storm, the boat
damaged the dock and P seeks relief from D. LIABLE. Crt. hold for P b/c D exercised proper care in keeping their boat
moored to the dock but in doing so persevered the boat in preference of the dock. P is entitled to the injury done in such a
case. Private necessity.
** A win-win rule: Bi-lateral monopoly – I have something that you need and I want something for the transaction.
Without compensation the dock will not be rebuilt after damage from the boat.
Rossi v. Delduca: P (child) was walking home from school when a large dog chased her. escaped onto the D’s land on the
defendant’s land, D’s dogs chased the girl and one dog attacked and bit her. P sued – claims SL for vicious animal bites. D
claims he owes nothing since she trespassed onto his land. LIABLE. An entry upon the land of another may be justified by
necessity. And this necessity does not remove any liability from the defendant for resisting the intrusion.
Borough of Southwark v. Williams
“squatters rights” – those who take over private property claiming it was legal because of private necessity do not have the
privilege for this private use. Only in case of great and imminent danger does the law permit an encroachment on private
land.
iii. Public Necessity (complete): If the interference with the land or chattels of another is necessary to prevent a
disaster to the community or to many people, the privilege of public necessity exists.
1. Actual Damage: Under public necessity, no compensation has to be paid by the person doing the
damage (i.e. firefighter, mayor bulldozing one house to save community from fire. Why? Firefighter
not getting benefit of the necessity. Also, may hesitate to save community for fear of having to pay)
iv. In the Restatement there is no necessity defense for harm to a person. There is necessity to trespass but not to
hurt someone…. should there be? (i.e. swerve car to not hit kid but hit another car?)
** To invoke public necessity, the following are required:
- an immediate and imperitive act and not just one that is expedient or utilitarian
- an act that is in good faith, for the public good
Mouse’s case (1609)
D was sued for taking and carrying away the P's casket and its contents. It was resolved that in case of necessity, to save the
lives of the passengers, it was lawful for the defendant, being a passenger, to cast the P’s stuff out of the barge. ** One may
sacrifice the personal property of another to save his life or the lives of his fellows. Mouse got nothing for the loss. Case of
public necessity.
Surocco v. Geary – the fire damage case
The mayor of San Francisco ordered the P’s house destroyed to prevent spreading of a large fire. The house was blown up
before the P could remove all of his property. P sued for his loss. NO LIABILITY. Case of public necessity - It is of the
highest necessity to destroy personal property to prevent the spread of fire. The common law places the justification of an
act otherwise tortious precisely on the same ground of necessity.
Doctrine of reasonable mistake does not carry over from private necessity to public necessity.
* mistake about emergency – not excused in case of public necessity
* mistake about which property needs to be taken/torn down - not excused in case of public necessity this is a departure
from private necessity and self-defense
Struve v. Droge
Landlord thought he saw smoke outside the plaintiff’s window. He knocked on the door and broke into the apartment. P
sued for his loss. LIABLE. Ruling: it’s good to take over property when public necessity demands but if a mistake is made,
the person who commits the act is responsible!
NEGLIGENCE
V. NEGLIGENCE
a. Occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other. The
tortfeasor’s mental state is irrelevant.
i. Prima Facie Case: The components of negligence are:
1. Duty: must show a duty owed to you by D (duty of reasonable care)
2. Breach of Duty: D failed to conform to this standard of care.
3. Proximate Cause: a sufficiently close causal link between D’s act of negligence and harm suffered
by P. This is “proximate cause”.
4. Actual Damages: you have to show the harm in order to prevail.
b. Why do we hold people liable for negligent acts?
i. Deterrence!! This is the key thing
1. Will the bad actor be otherwise deterred if we do not hold him liable for this harm?
2. change in activity levels
a. will see no change in AL for the wrong-doer between SL and Negligence regimes
b. we will see difference in AL for the plaintiff (with neg. rules, P may have more incentive to
take care of himself b/c he will not recover if the court thinks D used due care to avoid his
harm…but with SL, P will recovery damages every time)
ii. Problems we run into with over- or under-recovery
1.
Under-deterrence: if A does not pay, he will not be deterred from careless behavior in the future and
others will not be deterred from doing the same negligent act
2. Over-deterrence: A will have an incentive to behave inefficiently to avoid any chance of repeating his
negligent conduct – he may undertake extreme safety precautions
3. Moral Hazard: if B can collect more than what damage A actually did, B will have little incentive to
do all he can to prevent the damage resulting from A’s actions – a sort of mitigated damages idea
a. Start to encourage harm-seeking behavior to collect more than actual damages
iii. Taking precautions – If either party (A or B) or both (A+B) can take cheap precautions (cheaper than total
damages that result), we have to encourage that.
1. If the harm occurs: A and B can be held liable ex ante for failing to take precautions. Alternatively,
we can find A fully liable for failing to take the small precaution ($3) when B took the ($20)
measure….or vice versa (where B will collect nothing).
2. Undercare: Another problem is that the parties will not bargain and each one will assume the other
will take the steps to avoid the harm…and in the end, no one takes any steps and harm results. This is
inefficient waste – why pay high costs for an accident that the parties could avoid?!
3. Overcare: Another problem is that both will take the full steps to avoid the harm and each party will
pay $30 in precautions. This is also inefficient – can lead to ridiculous levels of care that interfere
with normal behavior and drive up costs unnecessarily!!
4. Last clear chance: do we hold one party liable (more liable?) when he was the last one who failed to
take available steps to avoid the harm? (will flesh out more in comparative negligence section)
5. Least cost avoider: or do we hold liable the party who had the smaller amount to pay/do to avoid the
harm? Is it more reprehensible for someone to fail to pay $3 to avoid the harm, even if B failed to
pay his $20 to avoid the harm?
a. In SL world, if P has special proclivities that make him especially susceptible to harm, he is
the least cost avoider and we expect him to announce his sensitivities (think baby minks!)
BREACH OF DUTY – THE REASONABLE PERSON STANDARD
i. A failure to do what a reasonable person would do under certain circumstances to reduce the risk of harm.
There is an OBJECTIVE STANDARD for the reasonable person. To keep people on their own standards there
is no incentive to keep up your standards or even learn about the societal standards. (If D is more stupid then
an ordinary person, this will NOT be a defense).
1. Physical Disability: If D has a physical disability, the standard for negligence is what a reasonable
person with that physical disability would have done.
2. Intoxication: This is NO defense! Held to standard of reasonable sober person
3. Children: child is held to level of conduct of a reasonable person of that age and experience, not that
of an adult
a. EXCEPTION: when a child engages in potentially dangerous activity normally pursued only
by adults – held to adult standard.
Vaughn v. Menlove: D was P’s neighbor who placed a haystack on his property very close to the border of P’s. D advised
to take down the haystack for the probability of fire D said “he would chance it”. Hay caught fire and caused P damage.
Although D acted “bona fide to the best of his knowledge” it is an objective standard thus he is liable (stupidity is no
defense)
c.
Roberts v. Ring: D, 70 years old w/ bad eye sight, was driving south on a road about 4-5 miles an hour. P ran across the
street in front of the D’s car and was struck and injured. Crt. held for P b/c D’s infirmities cannot be an excuse for his
hitting the boy. D held to adult standard but boy held to reasonable person of his age.
Daniels v. Evans: P’s descendent, a 19 year old, was killed when his motorcycle collided with D’s car. The court held that
in order to protect everyone’s best interest on the road, minors engaged in adult activities must exercise an adult standard of
care and be judge against that. If we lower standard of care for minors – we increase it for everyone else.
Breunig v. American Family Insurance, Co.: P brought an action for personal injuries against D when their insured
customer, Mrs. Veith, had some sort of mental episode or delusion which resulted in her veering onto the wrong side of the
road and crashing into P, thereby causing her injury. Mrs. Veith saw a white light on the back of a car ahead and thought
god was taking a hold of her steering wheel. She stepped on the gas as she veered over to the wrong side of the road b/c she
thought she would be airborne but she crashed w/ P. Crt. held for P b/c D was aware of her condition before – there was
forewarning this negligence (Crt says if no warning of your craziness then insanity is a defense, but RST says that insanity is
not a defense in an intentional tort action AND in an negligence case.
Fletcher v. City of Aberdeen: D placed wires underground thus had to dig a ditch. D erected barricades at the site but one
day, one of the workers removed the barricade and negligently forgot to put it back. P, blind, was walking with his cane and
guiding his way. P fell and filed suit. Crt. held for P – held to standard of blind man and D knows blind people use the
sidewalk so should have taken precautions.
Robinson v. Pioche, Bayerque & Co.: The drunk P was walking down the street and fell into an uncovered hole made by D
on the sidewalk. D’s action = gross negligence thus no contributory negligence defense! The purpose of it is for both actors
to be careful to eliminate the accident but if one if so gross – no CN defense. Holding for P (but held to sober person
standard).
Denver & Rio Grande R.R. v. Peterson: Whether the care owed by a warehouseman is contingent upon the wealth or
poverty of the warehousemen? Crt. held that wealth is not a consideration when discussing the amount of care owed by the
defendant (Donald trump would not be careful b/c he could just pay off the lawsuits but a poor person would have to spend
time being careful).
d.
Negligent Infliction of Emotional Distress
i. Near Miss Cases: P is direct victim of negligence as in a “near miss”, or where D commits a negligent act that
involves no physical contact
ii. Bystander Cases: When P is not the direct victim of the negligent act but is a bystander, such as witness to a
horrible injury
1. plaintiff put in reasonable fear of harm for close family (familial/relational proximity) **parents,
children, siblings
2. plaintiff is outside the zone of danger but witnessing a victim being injured (spatial proximity)
3. temporal proximity
4. best cases are those where P was on scene at the time of the accident, or shortly afterward, and either
witnessed accident or aftermath or was aware their family member was involved in the accident
iii. Exposure Cases: When D’s negligence has exposed P to something awful and then P has to wait to see
negative result
1. usually involves harmful contact (like a needle-stick or splash with infected fluid)
2. can recover regardless of getting disease (see HIV case)
3. issue with probability – has exposure increased the likelihood of illness more than
50%?
4. key case: Potter v. Firestone (NO LIABILITY for exposure to water contaminated by Firestone’s
negligent waste disposal. 2 reasons for barring recovery: 1) proximate cause of distress was not
dumping of waste but fear of getting cancer and 2) Court said there was no increase in incremental
harm from her exposure – the world is full of potential carcinogens.
** Over-arching idea: where do we draw the line out from the pebble hitting the pond? How far do we extend liability for a
negligent act? Line-drawing requires us to look at foreseeability, loss-spreading, and slippery slope arguments about
tidal waves of litigation if a certain class of victims can recover for harms remote from initial bad conduct.
** ask if negligent act increased risk of incremental harm!!
** Why do we impose extra liability on the tort-feasor when he is already paying for bad act?
- worry about under-deterrence for tort-feasor and under-compensation to victim
- moved away from rigid rules for recovering for distress from cases like this (expand circles in which you
can recover)
Physical requirements:
Christy Bros. Circus v. Turnage
(1928) Georgia Appellate Court
** recovery for emotional distress (horse pooping in lap of front row audience member) but only because it involved a
physical injury as well.
** able to attach claim for distress to another claim with physical injury (parasitic to contact harm)
Richardson v. J.C. Penney
(1982) Oklahoma
** near-accident when brakes on 24-foot trailer broke. Husband was able to recover for distress because he claimed it
manifest in an ulcer, while wife was unable to recover because she had no physical ailments resulting from the distress.
Zone of physical risk:
Mitchell v. Rochester
** recovery for emotional distress when a team of horses nearly ran down a pedestrian. The horses stopped with their heads
on either side of her. She was able to recover because of the proximity of the “near-miss”.
Robb v. Pennsylvania Railroad Co.: P’s car was stuck in train track rut…rut formed due to negligence. Train was coming
down the tracks…P jumped out of car just before it was hit. P sued for NIED claiming she suffered nervous shock that
physically hindered her from engaging in certain activities. LIABLE. Ruling: Reasons to reject the rule that required
physical impact to find emotional distress outweigh the reasons to advance it. Court puts forth zone of danger idea: “limited
zone of physical danger”: no contact required, but you have to be the injured party within that limited area where
you could have been contacted.
Lubner v. City of Los Angeles: plaintiff’s had a house full of their artwork from past decades. A city garbage truck was
negligently parked and rolled into P’s house, destroying most of their art. P sued city for emotional harm resulting from loss
of art after the accident. NO LIABLITY. Ruling: no way to foresee negligent parking of a city vehicle would result in loss
of a lifetime of artwork, so cannot impose liability on the city
** Bigger issue: (loss spreading) consequences of liability would be increased taxes for the city’s residents
Key distinction between Robb and Lubner: reasonable to imagine/foresee person suffering emotional distress after becoming
stuck in tracks (much more likely than in situation where truck rolled into house and destroyed personal art collection).
Larger increase in incremental risk. Also, consequences of holding railroad liable for distress is borne by single private
company and not entire body of city taxpayers
Bystander:
Marzolf v. Stone: P did not witness the impact, but came across the scene minutes later and found son severely injured
and barely alive. The son later died. Dismissal Reversed. Ruling: no question of trauma suffered as a result of seeing
aftermath of accident. It would be irrational to allow recover only if the father was on the scene at the moment of impact if
the emotional toll was the same.
(Courts refuse to extend this result to witnessing son in accident on television – proximity issue in Gain v. Carroll Mill)
e.
CALCULUS OF RISK
i. What exactly do we mean by reasonable care?
ii. Assumption of risk = defense of assumption of risk can arise when plaintiff voluntarily encounters a known
danger and by his conduct expressly or impliedly consents to take the risk of that danger
1. plaintiff does not need to be negligent
2. plaintiff’s action MAY be unreasonable (constitutes contributory negligence) by assuming the risks
3. plaintiff may be contributorily negligent for failing to discover danger that a reasonable person would
be aware of
4. plaintiff’s assumption of risk must be voluntary. If defendant’s actions leave him with no other
alternative, there is no assumption of risk
iii. Defendant often uses these 3 defenses to negligence:
1. assumption of risks
2. contributory negligence
3. fellow servant rule
iv. Unreasonable risk = defendant is bound to use care that is commensurate with the hazard involved. The risk
reasonably perceived defines the duty owed.
Blythe v. Birmingham Water Works: D’s in charge of laying water mains underground and during one winter, water from a
main forced its way into P’s house and P brings a suit. The main, installed (properly) 25 years earlier burst b/c a severe frost
that caused the stopper to be covered in ice. D, provided against frost but this frost was so severe as it caused the main to
burst. Crt. held for D b/c D took all proper precautions to protect against the damage done to the pipe. According to the
average temperatures from past winters, D protected the pipe from what would normally be expected.
Eckert v. LIRR: P saw a LIRR train heading down the tracks going about 20 mph. P also noticed a small child standing on
the tracks. P successfully rescued the child from the negligently operated train but sustained injuries which caused his death.
Rt. holds for P – no contributory negligence defense for D b/c P not negligent in attempting to save a human life. Also, no
assumption of risk b/c that defense is only used when we feel you have behaved unreasonably.
** D would not be liable if P’s act was rash and reckless. Unreasonable person does not impose reasonable risk!!
** opportunity to think if P and child’s parents would negotiate for the rescue
United States v. Carroll Towing Co: D’s tug was moving barges in the NYC Harbor including D’s. P’s barge broke away
from its moorings and was carried away by the tide and wind. The barge ended up crashing into a tanker. P brings suit for
damages to its barge but crt. affirms for D b/c B (the burden of adequate precautions) must be less then L (the gravity of the
resulting injury) multiplied by P (the probability that the barge would break away). NOT LIABLE. If [B < LP] then the
barge owner is negligent. P’s bargee should have been board during working hours when the harbor was crowded thus the
probability that the barge would break away was high and the cost effective precaution (bargee being at work) was low =
negligence.
The Hand Formula (formula to determine liability based on the facts of a case)
Elements:
1. Burden = the cost of untaken steps to prevent injury (i.e. building fence, hiring a guard)
2. Probability = likelihood that plaintiff’s action would prevent the harm (remoteness of the injury)
3. Loss = the harm/injury that resulted
** if the burden is less than the loss incurred and the probability that the accident would occur, then the defendant is
liable and must pay damages to the plaintiff.
** if the burden is more, then it would be unreasonable for the defendant to have taken extra steps to prevent the
plaintiff’s injuries and D is not liable
The Margharita: P falls off a boat and attacked by shark. Captain saves him but refuses to turn the boat to get medical help.
His leg is untreated until they reach destination…most of leg amputated. P sues ship for pain and injury. Trial court finds for
P and gives damages for pain and suffering. But appellate court finds D NOT LIABLE. Ruling: ** Burden was too great
(loss of time/money/resources) and the risk of loss of cargo and risk of injury to the rest of the crew would be higher if they
detoured to save P.
Coasian argument: Imagine if parties had bargained before ship left. Would P have bargained with the captain to get
medical help right away if something happened to him? Captain would say we can go to port but you pay for it. Sailors
would probably say YES, go to port and I will pay if the injury is serious. Otherwise, stay the course and don’t charge me.
* Coase would say the rule doesn’t matter…parties will bargain around the result if transaction costs are low.
* if the captain does not want to stop, but the sailors want to stop, they will bargain up front to know what will happen
and what it will cost them
Penalty default rule: (pick something to default to when the parties have not bargained in advance) and penalize them for
not making the bargain in the first place. The goal is to make them bargain for future arrangements.
Compliance errors = failure to take some precaution everyone agrees is required by reasonable prudence (failure to comply
with agreed-upon standard of care)
- usually momentary failure to heed agreed-upon standard (like failing to look in rear view mirror)
- Courts are unsympathetic to these sorts of errors, despite the impossibility of always showing perfect compliance to
these standards.
Adams v. Bullock: 14-yr old boy swung long metal wire and hit a trolley line. Injured by electric shock. P sued for
negligence for failing to cover trolley cable. NOT LIABLE. Ruling: Trolley Co. showed due diligence. P’s actions were
unforeseeable and it is unreasonable to foresee every possible scenario despite high level of vigilance.
Bolton v. Stone: P lived near D’s cricket court. P was standing far outside court but hit with ball that flew over D’s 7-foot
fence. P sued for injuries. NOT LIABLE. Ruling: the harm may be great, but the risk is so very low that the burden to
protect the sort of accident in this case would be much higher. Therefore, D has to be found not liable.
Bi-lateral precautions: D can build fence, P can stay further from cricket club
Negligence rule: you just bear addition cost of fence, but if fence is too low (not showing due care), you pay for everything.
**Apply incentive to do a little more rather than too little. You can seek benefit (get to play cricket) in the world and as long
as you take due care -> someone else has to pay for residual costs.
** With Neg. P will take all precautions necessary to avoid the accident. Takes two to tort.
Strict liability rule: even if you take care and build your fence, if you seek your benefit (play the game) and someone is
injured, you have to pay for residuals. ** Incentive to make sure balls don’t go over fence often since you will pay.
** P has no incentive to avoid the injury since D will always pay
Activity levels: no  in activity levels for defendant between neg. world and SL world.
** but there is a difference in activity levels for P between neg. world and SL world.
f.
CUSTOM
i. Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable
care. However, this evidence is generally non conclusive! Custom can be used as a shield (defensive stance;
industry custom to perform X) or as a sword (offensive stance; deviation from custom caused X).
ii. Custom is a standard behavior, a commonly used practice (procedure or precaution) accepted by others in the
industry.
1. Old View: The unbending test of negligence in methods, machinery and appliances is the ordinary
usage of the business. They are not obligated to a higher standard than the custom. Conclusive!
2.
New/Modern View: Regardless of the custom of an industry or trade, a defendant will be held liable
if his actions fall beneath the standard of the average prudent man. Evidentiary but not Conclusive!
3.
Evolving Standards of Care and Custom - The standard of care in a negligence action changes with
advances, knowledge, and new devices of demonstrated worth, regardless of custom. Remember
Learned hand test.
a. If custom was a perfect shield, there is little incentive to take on new technology or custom
because as long as you adhere to the shield, you are protected from being held liable for
damages, not considered negligent.
iii. Coase and customs: Where transaction costs are high, we give little weight to custom. Where transaction costs
are low, we will give more weight to custom (the market will take care of the issue).
1. the role of custom is really big issue because it is the reason why many companies are sued
Davis v. Consolidated Railroad Corp. : P failed to put the blue flag up when he checked under a train car (the standard
practice). Train engineers failed to blow horn when they started the train (the standard practice). P’s leg and hand were
severed. P sued for negligence.
The T.J. Hooper The TJ Hooper and the Montrose were making a trip up the coast from VA to NY carrying barges of coal
under a towing contract. The tugs were not equipped with reliable radios such that they did not hear warnings for an
approaching storm and as a result sank. Ps (the coal owners) are suing the barge owner who is in turn suing the defendant,
the tug owner. (1) Crt. held for P b/c the tugs were unseaworthy b/c they didn’t have effective radios which were proven the
custom of coastwise ships. (2) HAND RULING: Affirm for P - Although not all tugs were using radios, use of them was
beneficial. If D been using them, they would have received the weather and avoided the accident. Just b/c custom of
industry may be not to use radios this doesn’t excuse them from negligence – a whole industry may lack in their adoption
(maybe to keep standards low!). According to Hand, the courts in the end must determine what is required – not custom!
Ellis v. Louisville & Nashville – the sand mask case; P breathed in a lot of sand and dust for 25 years doing his job with
RR. P sued RR for damages related to illness from the dust inhalation, claiming he should have been given a mask for
protection. D’s defense: it is customary to not use masks when doing this sort of work. NO LIABILITY. Ruling: not
considered negligent if conforming to common practice that has been in practice for years. No acknowledgment that injury
had ever happened that would make that sort of precaution necessary!!
Rodi Yachts v. National Marine: Defendant (NM) sent a barge to TDI’s dock. NM’s people tied the barge to the dock and
TDI’s people were supposed to check on the barge. Barge broke free from the cables and damaged P’s boat. LIABLE.
Ruling: Ds had a duty to eachother via informal contracts – they were to work together for their customer. Holding them
liable creates incentive to create/enforce safety measures to reduce liability.
g.
MEDICAL MALPRACTICE
i. Professionals including doctors, lawyers, accountants, engineers, etc. must act with the level of skill and
learning commonly possessed by members of the profession in good standing. CUSTOM IS CONCLUSIVE
IN MALPRACTICE! Adherence to custom is perfect shield! (info asymmetry in medicine makes
adherence to custom necessary – D’s have incentive to disclose all information to Ps to meet national
standard).
ii. National Custom is the standard of care used in malpractice. If P cannot show that D, on any negligence
claim, fell below the national standard of care, P loses. In order for P to win, must show a deviation from this
custom.
1. Community Standards: traditionally, doctors and professionals were held to the standards prevailing
in the community in which they practice and NOT by the national standard. This is no longer the case
(i.e. finding experts in each community to speak on the standard)
iii. Differing Schools: If there are conflicting schools of thought within the profession, D must be judged by
reference to the belief of the school he follows. To escape liability, the doctor in a different school must
inform the patient that he recommends the minority view–when given full disclosure, the patient cannot claim
negligence if he entrusted the doctor in the minority view.
iv. Informed Consent: a doctor must disclose to the patient all risks inherent in the proposed treatment which are
sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the
treatment. Failure to get patient’s adequate consent is deemed a form of malpractice and thus negligence.
CUSTOM IS NOT CONCLUSIVE HERE – it is evidence of what is reasonable but not conclusive. (like
the TJ Hooper, a whole custom or lack there of can be negligent). (here D’s may have an incentive not to give
all info to P’s b/c it would prevent Ps from having procedures done – perhaps why adherence to custom in this
sense in not conclusive).
1. Exceptions to Informed Consent:
a. Common Knowledge: If it is common knowledge then no the doctor doesn’t have to say
anything.
b. Effect on Choice: You only have to disclose things that are going to plausibly effect choice.
(i.e. you’re dying on the side of the road and need a blood transfusion -Are you really
2.
concerned with getting hepatitis from the transfusion if it will save your life – there is no real
choice here).
c. Emergency: In emergency or if patient unconscious.
IC Causation: You have to show that (1) you would not have chosen the therapy in question if you
were informed PLUS (2) you must show that choosing the therapy was the cause of the injury.
a. Objective Standard! The credibility of the plaintiff doesn’t come into play. We look to the
question, “Do we think that a reasonable person would have behaved differently?”
i. Consequence of Objective standard: Very hard for P to prevail if P chooses a
procedure that most patients would choose. As long as P’s choice is a mainstream
choice, winning is hard. Only way to maybe win is to show P is somehow different
than most patients and thus the mainstream treatment may not work for P.
Brune v. Belinkoff: The national custom for obstetrics was different from the New Bedford custom thus the D gave more
drugs to a P to prevent pain which complied with the NB custom but deviated from national. Why was D (the
anesthesiologist) negligent? AC reverses for P b/c the trial crt says that the local custom doctors need to conform to the
standard of specialist in other major metro cities – which in essence is the national standard! Shed locality rule!
Gambill v. Stroud: P recv’d. medical care from D – needed surgery. P reacted badly to anesthesia and suffered brain
damage. P sued D for medical malpractice. Trial court judgment for D. P appealed, saying jury instructions to consider
standard in similar communities were improper. NOT LIABLE. Ruling: the strict locality rule does not apply, but we still
have to consider differences in medical practice between doctors in small towns and doctors in big cities – resources!!
h.
REF. TO CRIMINAL STAUTES AND REGULATIONS: PROOF OF NEGLIGENCE
i. Negligence per se Doctrine: When a safety statute has a sufficiently close application to the facts of the case
at hand, an unexcused violation of that statute by D is negligence per se, and thus conclusively establishes that
D was negligent. In CA this is a rebuttable presumption of negligence. Three requirement to invoke the
doctrine:
1. Is it a public safety statute?
2. Is P a member of the class that the statute was designed to protect? (type of victim?)
3. Is the injury the sort of injury that the law was meant to prevent? (type of harm?)
ii. Exception: Compliance Greater Risk: if you break a statute or ordinance, D not automatically contributory
negligent if compliance would have involved a greater risk of harm.
iii. Causation must be shown - Unexcused violation of a statute: Unexcused omission to perform a statutory
duty is negligence per se. However, a causal relationship between negligence and injury must be shown.
Also, it may not be negligent if under all circumstances violation was most reasonable thing to do.
iv. Licensing Statutes: A licensing statute intended to protect the public against incompetent practitioners creates
no liability against an unlicensed practitioner unless he is shown to be incompetent.
1. Ex: D has a suspended license and P and D have a collision. Even if D’s license is suspended, courts
will not rule negligence on the part of D (the suspended licensing wasn’t the cause of the accident). P
must show D’s are careless independently of the license.
v. Safety Regulations – If, by creating the hazard that an ordinance was intended to prevent, the violation of that
ordinance brings about the harm that the ordinance was intended to avoid, it is a legal cause of harm.
vi. Dramshop acts and Causation: An actor may be liable if his negligence is a substantial factor in causing an
injury. A person who sells alcohol to a person already intoxicated will be responsible for any injury that may
occur to third persons.
vii. Compliance not Dispositive: The fact that D has fully complied with all applicable safety statutes does not by
itself establish he was not negligent.
Legislative intent: Must assess intent to determine if a provision of a criminal code creates civil liability.
a. failure to exercise due care if:
1. violate statute
2. violation proximate cause of injury
3. injury resulted from action statute was designed to prevent
4. injured person was of class of people protected by the statute
b. presumption of negligence may be rebutted by proof:
1. actor did was would be reasonably expected of another under the same circumstances
2. actor was a child and the child acted as another child of similar age, experience, and maturity would be expected
to do under similar circumstances
** Be able to state the rule, apply it to the problem, and know which cases demonstrate the rule
2nd restatement of torts for negligence per se:
2 elements to consider:
1. accident is of type the statute was intended to protect against (prevent the harm)
2. person injured is of the class the statute was designed to protect (prevent the victim)
Tingle v. Chicago B&O RR: D’s train ran over P’s cow that had wandered onto RR tracks. Operation of train on Sunday a
violation of statute. NO LIABILITY. Ruling: proximate cause of harm to cow was non-negligent accident, not the
operation of the train on a Sunday.
Gorris v. Scott: statute requires that when animals are transported, each breed must be kept in a separate pen. D, a ship
operator, violates the statute by herding P’s sheep together w/ other animals. B/c there are no pens, P’s sheep are washed
overboard and die. Crt. finds that P cannot sue under negligence per se b/c statute was a public safety statute and the sheep
were the class of animals the statute spoke of but the last prong of the test fails. The statute was intended to protect against
spread of disease, not washing overboard.
Tedla v. Ellman: Pedestrian plaintiffs were hit while violating statute to walk facing oncoming traffic. But Ps introduced
evidence showing that it was customary for people to walked with the traffic if the traffic on that side was lighter. Crt. held
not contributory negligent b/c custom was safer route. The legislature wouldn’t have found crt. to hold a violation of the
law when the custom to violate creates less danger.
Martin v. Herzog: P was driving a buggy w/ no lights after dark, in violation of a statute. He died when his buggy collided
w/ D’s auto. D requested the jury be instructed that absence of lights was a prima facie case for contributory negligence but
the judge said no and the jury was instructed that it may consider the absence of lights as some negligence, but no conclusive
negligence. Crt. holds for D b/c the omission of a statute prescribed to safeguard others is to fall short of the duty of
diligence – contributory negligence.
Brown v. Shyne: P employed D to give her treatment for a physical condition. D did not have a chiropractor license and yet
held himself out to P as being able to diagnose and treat disease. Under the provisions of the Public Health Laws, D is
guilty of misdemeanor. P brings suit b/c after undergoing nine treatments by D she became paralyzed. Crt. holds for D b/c
breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection
between the proven neglect of statutory duty and the alleged negligence.
Segler v. Stevens Bros. Inc: D saw dog poop on sidewalk in front of his store but decided to clean it up later. P slipped in
poop and was injured. P sued for negligence per se: violation of ordinance requiring business owners to keep sidewalks
clear. NO LIABILITY. Ruling: ordinances regarding condition of sidewalks created a duty to the city, not to the plaintiff
passing by his store. So D cannot be held liable for negligence per se for the plaintiff’s injuries.
Ross v. Hartman: D left car unattended and unlocked with key in ignition in violation of a city statute. Car was supposed to
be put into garage by an attendant, but it was stolen and thief negligently ran over π. D had violated statute-requiring cars to
be locked. The trial court finds for the defendant in a directed verdict but that is reversed as a matter of law for P. The trial
court finds this ordinance to be a safety statute (is it really?) Crt. held D guilty.
Vesely v. Sager: The tavern owner (D) is brought into litigation when a drunk driver hits P. D served him alcohol so P goes
after him. The trial court grants a directed verdict b/c of proximate cause was not found (the drunk was the intervening
cause) for D. The SC objects to the proximate cause reasoning – the reason we have the safety statute is to protect public
safety. The California Statute states, “every person who sells, furnishes, gives or causes to be sold, furnished or given away
any alcohol”. Therefore D is found guilty.
i.
RES IPSA LOQUITUR
i. Res Ipsa Loquitur allows P to point to the fact of the accident, and to create an inference that, even without a
precise showing of how D behaved, D was probably negligent. “the thing speaks for itself”. Thus, RIL allows
a particular kind of circumstantial evidence – when it is used, P has met his burden of production and is entitled
to go to the jury. Prosser specifically sets out four tests to determine RIL:
1. No direct evidence of D’s conduct
2. The accident wouldn’t occur normally without someone’s negligence
3. It must be caused by an agency or instrumentality w/in the exclusive control of the defendant
4. It must not have been due to any voluntary action or contribution on the part of the π or 3 rd party.
a. The RST and RTT have now moved away from the Prosser test.
ii. Burden of Proof: Since evidence of the accident is most likely more available to D then P, D has the burden
of DISPROVING negligence once the 4 factors have been met.
1. Rebuttal Evidence: If D’s rebuttal evidence is merely showing that he was in fact careful, this will
almost never be enough to give D a directed verdict – the case will go to jury.
a. But if D’s evidence directly disproves one of the requirements for the doctrine’s application,
then D will get a directed verdict (assuming there is no prima facie case apart from res ipsa).
iii. Conditional Res Ipsa: RIL applies IF the jury finds certain facts to be true. (i.e. We can only find a bottle
manufacturer liable for an exploding bottle if we find that the restaurants and distributor didn’t shake it up or
do anything to it)
iv. If probability of harm resulting from non-negligent behavior is high, then RIL does not apply (weak RIL case)
1. compliance error = level of precaution goes way up with extremely dangerous things, like nuclear
reactors, and there are many safety measures. So, that means the chance for error goes way up. If # of
safety measures goes up, the better a case for res ipsa becomes.
2. chronic harm (like in hotel/chair case but if the convention happened every year and was crazy every
time) = better res ipsa case (lower rate of unavoidable harm)
3. acute danger – weaker res ipsa, higher rate of unavoidable harm
v. Three views of the effect of RIL:
1. Permissible inference: under majority view, a permissible inference arises, the strength of which
varies with the circumstances of the case. The jury can accept or reject the inference.
2. Presumption of negligence: a presumption of negligence is raised and unless defendant shows
evidence to rebut, the court must find negligence as a matter of law.
3. Shifting of burden of proof: the burden of proof shifts to defendant, making defendant introduce
evidence to support his defense. If the defendant’s evidence is sufficient to support a finding of fact in
his favor, the burden shifts back to P
Byrne v. Boadle: P was driving on the highway and passed in by D’s premises and was struck by a barrel of flour and
subsequently, badly hurt. The barrel was apparently being lowered from a window in D’s place of business – he is a flour
dealer. Crt. held for P b/c P was not bound to show that the barrel of flour fell with negligence; instead the mere fact that the
accident happened is a prima facie case. D would have to show any facts that may be inconsistent with P’s case for
negligence.
Larson v. St. Francis Hotel: (1948 CA) π hurt by a chair thrown out of the D’s hotel by a guest celebrating V-J Day. Held:
Chair wasn’t in the exclusive control of the D, but instead it is inferred that a guest threw it out. D had no means to
prevent this either. D Not liable. (Contrast w/ Connelly v. Nicollet Hotel where D knew of party and D found liable for
injury b/c knowledge of party = D has control over guest actions).
Combustion Engineering v. Hunsberger: a wedge fell from the top of a shaft where another worker was working and P was
injured. P sued for injury. TC instructed the jury that if they should find that D’s employees above on the shaft negligently
dropped the tool, and P without negligence on his own part was injured by it, the verdict should be for P. Verdict for P.
Appellate court: NO LIABILITY. Ruling: RIL does not apply b/c cannot assume that a falling tool is the result of some
negligence. Tools will fall at every construction site despite all precautions.
Ybarra v. Spangard: P consulted a doctor who referred him to D for surgery. Prior to his operation, P’s shoulder was fine
but after the operation he woke w/ sharp pains in his arm. After surgery, P found out his arm was wasting away, attributed
to trauma. He brought an action under RIL for negligence against D and his staff. Crt. held for P. The pure # of Ds doesn’t
preclude a finding of RIL – every one of Ds expected to exercise ordinary care so all can be named. P was unconscious thus
he is not in the best position to determine the precise instrumentality of his injury: this is one of the main purposes of the
RIL doctrine (when D has the info to determine negligence, not P). This is an outlier case also Anderson v. Somberg (RIL
going too far!)
*** Strong case for information-forcing rules: res ipsa offers an additional incentive to tell the truth (“smoke them
out”). If we didn’t have res ipsa, you could encounter the conspiracy of silence – assumes people are all liars and sneaks.
*** Doctors and nurses had exclusive control of the patient during surgery (if he had been injured outside of operating
room, it would be more difficult to show exclusive control and case for res ipsa would be weaker)
Ybarra-like Hypo: elevator pickpocket. 5 people are in elevator – when reach 1st floor, the plaintiff’s wallet is gone. Can he
sue all of the people for conversion (intentional tort case)? We are unsure about the identity of the thief.
** If we follow Ybarra, defendants have the burden of showing they did not take the wallet. In Ybarra case the plaintiff
puts his trust in the doctors to care for him while he was unconscious, but in the elevator he would be aware of his
surroundings and his belongings. Less likely that the other 4 people are in conspiracy to harm him!
** ** Over-extraction. Not take full value but extra $10 from everyone in the elevator. Doesn’t really happen in
practice, but any less unfair than making 4 innocent people pay when only 1 person did the theft?
Guthrie v. Powell : P was at pavilion at county fair…while sitting on the first floor, a 600 lb steer fell through the ceiling
and onto her. Defendants claim not negligent b/c other things could explain the accident. TC: P entitled to trial. Appellate
court affirmed. P entitled to jury trial under doctrine of RIL.
Judson v. Giant Powder Co. : P’s building damaged when neighboring nitroglycerin plant exploded. P sued for damaged. D
claimed P assumed the risk by operating next to plant. LIABILTY. Ruling: RIL make prima facie case of negligence. The
explosion would not occur if proper care is exercised, so the fact that the explosion DID occur makes it likely there was a
lack of proper care. ** High probability of unavoidable harm due to negligent behavior.
Haasman v. Pacific Alaska Air Express: Decedents were passengers on a plane that disappeared without a trace somewhere
between Seattle and Yakutat, Alaska. Families sued for negligence. D claimed no knowledge of how accident occurred.
LIABILITY. Ruling: Equality of ignorance does not preclude applicability of the RIL doctrine. Ps entitled to cause of
action under RIL.
Walton v. Lambersten : Decedent worked on crabbing boat when it sank and killed him. P sued for negligence, claiming
boat was not seaworthy. NO LIABILITY. Ruling: there was no evidence boat was not seaworthy. Because the boat was
more rudimentary (unlike an airplane), expect lower risk compliance error (fewer safety precautions) and weaker case for
RIL.
Bond v. Otis Elevator : P passenger in hotel elevator when it malfunctioned. P sued for injuries. LIABILITY. Ruling: the
elevator company is in better position to explain what caused the malfunction! Shifting burden of proof to company by RIL
is appropriate. Hotel and Otis joint and severably liable for injury.
VI. AFFIRMATIVE DEFENSES TO NEGLIGENCE
a. CONTIRBUTORY NEGLIGENCE
i. A plaintiff who is negligent, and whose negligence contributes proximately to his injuries, is totally barred
from recovery. The defense only applies where P’s negligence contributes proximately to his injury –CAUSAL
CONNECTION NECESSARY (P must be careless AND must cause the harm for Contributory Negligence to
be found) P is held to the same standard of care as D – the reasonable person.
ii. Defense Not Allowed: Since this defense is based on negligence principles, it cannot be used as a defense to
intentional torts or where P’s conduct is found to be “willful, wanton, or reckless” (i.e. P taking a conscious
and unjustifiable risk). CN disregards conscious risk (negligence = unaware).
iii. Burden of Proof of Contributory Negligence and Proximate cause - the burden of proving all aspects of the
affirmative defense of contributory negligence, including proximate cause, rests on the defendant, unless the
elements of the defense may be inferred from the π’s evidence.
iv. P’s negligence must contribute to cause of accident; simply being negligent isn’t enough
v. Contributory Negligence and seat belts – most courts reject seat belt defense since it isn’t a contributing
cause to the accident. Failure to wear a seat belt is conduct which occurs b/f the Δ’s negligence, as opposed to
contributory negligence which customarily is thought of in terms of conduct that contributes to the accident
itself.
1. Avoidable Consequences: failure to wear seatbelt in a state that requires one (and where the statute
doesn’t bar the use of seatbelt evidence) may be used to establish avoidable consequences such that
P’s unreasonable failure to mitigate damages caused by D’s negligence will serve to decrease P’s
damages rather than bar recovery.
Butterfield v. Forrester: P was riding his horse down the street while it was getting dark but it was light enough for him to
discern an obstruction in the road. D had placed a pole in the road to make repairs to his house. If the P had not been riding
so fast he might have avoided the pole but he rode against it and fell w/ his horse and was injured. P brings an action against
D. Crt. holds for D b/c one person’s negligence will not dispense with another’s duty to use ordinary care. P not using
ordinary care, P cannot recover.
Beems v. Chicago, Rock Island & Peoria R.R: P was a brakeman for D and in an effort to uncouple the cars, was killed.
When he went to uncouple them, the cars were moving at an improper speed. After 1 st attempt, he came from between the
cars and signaled directions to check their speed. He was authorized not to wait to see if his instruction was obeyed and thus
made his 2nd attempt and was killed. Crt. holds that P is not CN if signaled for the car speed to be checked and was
authorized to proceed w/o waiting for his instruction to be followed. Whatever P’s condition (foot stuck), it doesn’t excuse
D’s negligence.
Gyerman v. US Lines Co. π was a long shore man breaking down sacks of fishmeal into stacks. π warned D’s clerk, but not
his supervisor or union (as is custom), that the bags were not properly arranged and were dangerous. D said nothing could
be done, and the π went back to work. P was later injured when a sack fell on him. Crt. held for P b/c no evidence shows
that anything different would have happened had the π told his supervisor and union. The Δ does not offer evidence
showing that the failure to report was the substantial cause in bringing about the fall of sacks (D has burden of proving Cn
b/c it is an affirmative defense)
LeRoy Fibre v. Chicago, Milwaukee & St. Paul RR: P stored approx. straw in 230 stacks on his own land approx. 70’ from
the RR and 2nd row approx. 85’. A high wind carried sparks from RR to the stacks which ignited and burned everything. Crt.
held for P who was not CN. Although the property adjoining D’s right of way is subject to some risks, it is not subject to
risks created by the wrongful use of D’s property or its negligent operation of trains. For P to be CN, must impose on P a
duty to use his land in a manner that it couldn’t be harmed by the wrongs of another – this is dumb!
Derheim v. N. Fiorito Co: P injured when hit by D making an illegal left turn. D attempted to raise CN defense on grounds
that P was not wearing his seat belt. Trial judge refused to allow D to amend his answer and raise CN and also refused to
allow D to bring in experts on the subject. Crt. holds for P b/c “buckling up” occurs before D’s negligence, as opposed to
CN which is considered conduct contributing to the accident. Also, CN would bar P from any recover in WA so it would be
unjust to find CN in a seat belt case. Crt. also holds that if seat belts are used in determining CN, court would have to look at
all safety precautions installed on P’s car.
b. LAST CLEAR CHANCE
i. LCC asks as a limit on the contributory negligence defense. If just before the accident, D had an opportunity
to prevent the harm, and P did not have such an opportunity, the existence of this opportunity (LCC) wipes out
the effect of P’s contributory negligence.
1. Inattentive Defendants: In Fuller, it is most likely that D didn’t see P until the accident was not
preventable (20 seconds left) – in this situation, D would probably not have the LCC b/c both he and
P had no “chance” b/c both unaware of danger. But if b/c of D’s inattentiveness D failed to discover
P and thus never had a chance to deal with it (conductor looking at a pretty jogger) – most courts will
apply the LCC!
2. The doctrine is now fading b/c it doesn’t really fit to situations (like in Fuller).
Fuller v. Illinois Central RR: P was riding his wagon over a RR crossing. He had his head down and did not stop, look, or
listen to Ds oncoming train. A saw P at 660’ and could’ve stopped w/in 200’ but didn’t. D blew train’s whistle w/ approx.
20 sec. but P didn’t move thus P was hit and died. In response to a CN defense by D, P alleges that D had last clear chance
to avoid the accident. Crt. holds for P b/c the party who has the last clear opportunity of avoiding the accident,
notwithstanding the negligence of his opponent, is considered solely responsible for it. P may be guilty of CN but since D
has last clear chance, CN defense is null.
c.
IMPUTED CONTRIBUTORY NEGLIGENCE
i. The assignment of negligence liability vicariously from one person or legal entity to another based on the
relationship between the two.
1. Current Rule: The contributory negligence of a driver of a bus, ship, car, etc. will not be imputed to
his passenger and bar the passenger from recovery. Mills v. Arnstrong
a. Exceptions:
i. Joint Enterprises and Both Ways Test – When the Δ can establish that the
passenger and the driver have entered into some relationship that makes the
passenger vicarious liable for the driver’s torts then negligence will be imputed
(some form of pecuniary relationship – master/servant and joint enterprise are only
two places where this doctrine still exists)
ii. Requires (1) a mutual right to control the management or operation of the
enterprise, and (2) a common business purpose in which all persons involved have a
mutual interest. (i.e. cannot be just two friends driving)
2. Old Rule: A driver’s negligence is imputed on the passenger b/c the passenger has chosen the
particular conveyance and has identified himself with driver thus he bares any CN of the driver that
caused the injury. Thorogood v. Bryan
a. Children and Lunatics – If their caregiver was negligent in their actions regarding child or
lunatic, then the negligence would be imputed onto their child and they would not be able to
recover b/c of the CN. (This has been repudiated by common law and statutes).
d.
ASSUMPTION OF RISK
i. A person cannot recover for negligently inflicted injury when it results from a danger of which plaintiff is
subjectively aware and that he voluntarily encountered when there was a reasonable alternative. P is said to
have assumed the risk of certain harm is he has voluntarily consented to take her chances that harm will occur.
Where such assumption is shown, P is at common law, completely barred from recovery.
1. Knowledge Element: Strictly construed - P must know the risk (subjective) is present and understand
the nature of it. It can’t be something that π ought to know!
2. Voluntary Element: π’s assumption of risk must be voluntary, and if the Δ’s acts leave the π with no
reasonable alternative to encountering the danger, then no assumption of risk.
ii. Express Assumption: If P explicitly agrees with D, in advance of any harm, that P will not hold D liable for
certain harm, P is said to have “expressly” assumed the risk of the harm. But even P’s express assumption will
not bar P from recovery if there is a public policy against the assumption of risk.
1. Bargaining Power: If D’s position as a unique provider of a certain service gives him greater
bargaining power then P, and D uses this power to force P into a waiver of liability, the court will
find public policy prohibits assumption of risk (i.e. P must be a customer of a monopolistic utility
company)
2. Intentional or Willful Misconduct: Public policy usually prohibits a waiver of liability when D’s
conduct is willful and wanton or “gross” negligence and for D’s intentionally tortuous conduct.
3.
iii.
iv.
v.
vi.
Health Care: crts. almost never allow P to expressly assume the risk with respect to medical services
(i.e. a contract with P not suing for D’s malpractice pre-operation).
Implied Assumption: Even if P never makes an actual agreement with D whereby P assumes the risk, P may
be held to have assumed certain risks by her conduct.
1. To establish implied assumption of risk, D must establish that P knew and voluntarily consented.
Primary and Secondary Assumption of Risk:
1. Primary Assumption: Under primary A/R, D is never under any duty to P at all. (ex: foul balls at a
baseball game)
2. Secondary Assumption: Under 2ndary, D would ordinarily have a duty to P but P’s assumption of
risk causes the duty to dissipate. (ex: injured P asks D for a ride to the hospital knowing D’s car has
bad brakes).
Assumption of Risk v. Contributory Negligence: Often, ’s assumption of risk is also CN (i.e.  voluntarily,
but unreasonably, decides to take her chances as to a certain risk) But this is not always true – sometimes
conduct which constitutes A/R is not CN
1. Subjective v. Objective Standard: CN is an objective standard (reasonable person) and A/R is a
subjective standard (P must know not should have known).
2. Reckless Conduct: CN is not a defense to reckless conduct but A/R generally is.
3. Strict Liability: CN defense not available in SL but A/r is.
4. Reasonable Assumption of Risk: A/R can be reasonable and not considered CN. (i.e. injured P asks
D for a ride to the hospital knowing D’s car has bad brakes b/c has no other alternatives).
Application to Cases and Rules
1. Fellow Servant Rule – No action against an employer when a servant hurts another servant. If you
get hurt, an employer is ordinarily liable for an employee’s torts – but the doctrine says you assume
the risk of injury by a fellow worker but this has no faded b/c of the worker’s compensation laws.
2. Sport or Recreation Injuries: Most courts hold that each participant A/R of hazards that are inherent
in the sport including ordinary carelessness. This assumption is primary and thus remains a complete
defense under comparative negligence. But P doesn’t A/R for D’s intent to cause injury or
recklessness.
3. Fireman’s Rule – Fireman, police officers and other maintainers of public order cannot recover for
injuries b/c t “one who has knowingly and voluntarily confronted a hazard cannot recover for injuries
sustained thereby.”
Murphy v. Steeplechase Amusement Co: P was attendant at amusement park where the Flopper was a main attraction. The
ride had a conveyer belt on an incline on which people would sit/stand and fall off. P got on the Flopper, fell off and broke
his kneecap. P brings an action for negligence. Crt. reverses for D b/c P knew dangers of the ride and saw people falling off
before he boarded. No additional warnings were necessary since P could observe all risks; the point of ride is to “flop” off.
The ride never malfunctioned and the amount of injuries caused by the ride historically is negligible. P assumed risk.
Meistrich v. Casino Arena Attractions: Skating Rink ice maintained too hard which made it bad to skate on b/c of
defendant’s negligence. But plaintiff keeps skating on the ice knowing it was not safe to skate on. This case makes a
difference between primary and secondary Assumption of Risk:(1) Primary: There is no negligence on the part of the
defendant. Ex. The Flopper – as long as the ride is maintained well, the defendant is not negligent. (2) Secondary: The
defendant needs an affirmative defense b/c there is some negligence on the defendant’s part. ex: The ice rink.
Hennesey v. Pyne: condo owner bends over in her garden and is hit by and errant ball from adjacent golf course. She knows
golf balls fly into her yard and hit her house often but probably assumes getting hit herself is unlikely. Secondary
Assumption of Risk: defendant needs an affirmative defense b/c there is some negligence on the defendant’s part.
e.
CONTRACTUAL RISK
i. Adhesion Contracts – a standardized contract form offered to consumers of goods and services essentially on
a take it or leave it basis, w/o affording consumer a chance to bargain. Weaker parties usually have no choice.
Will be thrown out if unduly oppressive and not in the reasonable expectations of the weaker party and
assumption of risks will not bar recovery.
Obstetrics & Gynecologists v. Pepper: P was seeking contraception from D’s clinic. Before P could see D, D required P to
sign an ADR agreement, which waived P’s right to a jury. P has no recollection of signing the document. After taking
contraceptive, P suffered a “cerebral incident” which P claims was caused by D’s negligence in prescribing meds against her
medical history. P brings suit for negligence and D brings up ADR agreement. Crt. holds for P b/c they find an adhesion
contract in the ADR agreement. An adhesion contract need not be unenforceable if it falls w/n the reasonable expectations
of the weaker or “adhering” party and is not unduly oppressive. Courts will not enforce against an adhering party a
provision limiting the duties of liabilities of the stronger party absent plain and clear notification of the terms and
understanding consent.
f.
COMPARATIVE NEGLIGENCE
i. A comparative (cmN) system rejects the all or nothing approach of contributory negligence. It instead attempts
to divide liability between P and D in proportion to their relative degrees of fault. P is not barred from
recovery by his contributory negligence, but his recovery is reduced by a proportion equal to the ratio between
his own negligence and the total negligence contributing to the accident. A few different regimes exist: (46
states have adopted some form of cmN)
1. Pure Comparative Negligence:
a. The jury will decide on the fault percentages of each party that will sum to 100 and
apportion damages accordingly.
2. Modified Comparative Negligence:
a. Damages are apportioned just as in pure comparative negligence, until the P reaches a certain
level of culpability for his own conduct; once he reaches this level (If P’s fault percentage is
too high) P will get no recovery.
i. Greater fault system: If fault over 50%, P gets nothing
ii. Equal fault system: if = to 50% or more, P gets nothing. This is the most popular
approach (TX, IL, etc.) if you just take a head counts of states.
3. Slight /Gross Negligence: If D’s negligence is gross and P’s negligence is slight P gets recovery
based on jury’s weighing of fault.
ii. Multiple Parties: Where there are multiple defendants, cmN is harder to apply:
1. All Parties Before Crt: If all D’s before court, then it’s simple! Only the negligence due directly to P
is deducted from his recovery.
2. Not All Parties Before Crt: Hard questions arise concerning joint and several liability! The issue is
whether the Ds before the court who is/are found to be only partly responsible for P’s loss, must pay
for the whole loss aside from hat caused by P’s own fault. Under traditional joint and several liability
rules, P would be able to collect full damage award.
iii. Effect of Comparative Negligence on Other Doctrines:
1. Last Clear Chance: LCC designed to decrease the harshness of the all-or-nothing contributory
negligence rule, therefore most courts hold it doesn’t apply in cmN jurisdictions. If D has the LCC,
his fault percentage will be greater.
a. LCC may still be used to affect jury impression/damage calculation under cmN.
2. Assumption of Risk: CmN prevents automatically placing all of the loss on P if they chose to
encounter the risk of injury do to D’s negligence. Wouldn’t A/R be factored into the fault percentage
of P and D?
a. Primary: D is never under a duty to P thus cmN would not have any effect on primary A/R.
There is no prima facie case against D.
b. Secondary: (i.e. D has breached duty of care to P but P, knowing this, goes ahead anyway –
ice rink), there can be cmN, so no need for an A/R defense that shifts whole burden to P.
c. But what about “reasonable A/R” (fireman, police, hurt P who needs ride to hospital w/ no
alternatives) – Even if reasonable, they cannot recover. Creates an anomaly that if you’re
careless, you get to recover a % but if reasonable, barred!
3. Contractual Risk: If we honor the contract, then it ought to be a complete bar to recover still as it was
before.
4. Willful Misconduct: courts disagree over the proper treatment of willful and wanton misconduct of
both π’s and D’s under comparative negligence.
a. If D is willful or wanton, P’s negligence is compared to D’s behavior and fault % determined
b. If P is willful or wanton, recovery reduced by % of fault due to conduct.
5. Avoidable Consequences (seat belt): CmN applies to avoidable consequences or mitigation of
damages of π’s conduct. Finder of fact has discretion to allocate what is perceived as a fair portion
of the damage attributable to a failure of anticipatory mitigation to the plaintiff.
a. seatbelts and statutes – cmN doesn’t apply to failure to wear seat belt, however, courts may
allow evidence to show that they should have avoided damages.
6. Intentional Tort: If D’s tort is intentional, cmN will not apply.
7. Strict Liability: jurisdictions throw strict liability into the CmN realm and now CmN becomes a new
affirmative defense (esp. in product’s liability)!
Li v. Yellow Cab Co. of California: P attempted to make a left turn to cross three lanes of oncoming traffic in order to enter
a service station. D’s driver was speeding when he ran a yellow light just before striking P’s car. P sues for personal
injuries, alleging negligence. Crt. reverses trial court’s finding of CN and eliminates the CN defense in CA (complete bar to
recovery). Crt. holds that liability for damage should be borne by those whose negligence caused it in direct proportion to
their respective fault thus CN defense judicially eliminated.
VII. JOINT AND SEVERAL LAIBILITY
a. Joint Torfeasors: persons who have either (1) Act in concert (all of those who in pursuance of a common plan or
design to commit a tortuous activity take part, further, aid, encourage or ratify or adopt for their benefit are jointly
liable). (2) Acted entirely independently but whose acts have caused a single indivisible injury to π. (e.g., two motorist
collide causing a single injury to a pedestrian). Doesn’t apply to divisible harms b/c they are able to be apportioned
between defendant’s and each are only responsible for directly attributable harms.
b. Joint and Several Liability: If more then one person is a proximate case of P’s harm and that harm is indivisible, under
the traditional approach each defendant is liable for the entire harm. This means P can sue any one or more joint
tortfeasors and recover full damages from the tortfeasor sued.
i. Release of Joint Tortfeasors:
1. Old Rule: If you release one tortfeasor, P lost suit against all others. Also, with multiple Ds, there
was no contribution. A D had no rights to go agts. other Ds. But if D ends up paying P, more for D’s
status then D’s carelessness, then D can bring a claim for Indemnity against another D.
2. Recent Trend: to reject automatic release at least where tortfeasors are independent of one another,
e.g. driver who causes injury and doctor who treats victim and commits malpractice.
c. Contribution:
i. If two Ds are jointly and severally liable, and one D pays more then his pro rata share, he may usually obtain
partial reimbursement from the other D. Generally each joint and several D was required to pay an equal share
(California). Virtually all states permit contribution among negligent (not intentional) joint tortfeasors. Ps can
still recover from either tortfeasor, and tortfeasor who pays can recover. Two approaches for contribution:
1. Pro Rata: California and some other states have adopted a pro-rata (equal) liability, which allows
partial recovery to a D from other concurrent tortfeasors for the difference of what D paid over his
pro-rata share regardless of his respective degrees of fault. (if D paid 50% +x but is only responsible
for 20% of harm, D only allowed to recover x, not 30%+ x).
a. Common law indemnity can still be used if one party is primarily responsible.
b. P can still chose which D he want to collect money from.
c. Release from tortfeasors not allowed.
d. Didn’t arise in cases of intentional harms
2. Proportion of Responsibility: In comparative negligence states, the duty of contribution is
proportionally exacted according to the fault percentages of D (not in equal shares). American Motor
Cycle
a. While cmN theory requires the assessment of fault attributable to each D, joint and several
liability is not completely wiped away by the development. A π can still be able to obtain
full recovery from any one D who was responsible.
d. Settlement By Contribution of D: Where D1 settles, and D2 – against whom π later get judgment – sues D1 for
contribution, courts are split among the three approaches:
i. Traditional Rule: D1 can still be sued for contribution (why would D1 ever settle?). Majority follow this rule.
ii. Reduction of P’s Claim: Some courts reject contribution, but reduce plaintiff’s claim against D2 to his
percentage of fault, or pro rata share (D2 comes out the same as if contribution had been allowed, but π looses
out if receives less in D’s settlement).
iii. No Contribution: Some courts now discharge D1, the settling defendant, from contribution liability
completely. This approach is becoming popular, b/c it gives Ds incentive to settle.
iv. California: Under the CA Civil Procedure Code (pg. 357)
1. Originally: With two or more Ds, there is a right to contribution when a D has paid more then his pro
rata share (more then 50% of the judgment). If D1 pay more then 50%, he can go after the other Ds.
a. Using Union Stock v. RR as an example – if Union settles before trial for $5k with P and
total damage relief prayed by P is $25K, P can recover $20K from RR – regardless of his pro
rata share. Further, when RR realizes it has paid more then pro rata share, it has no right to
contribution against Union b/c settlement extinguishes contribution right. (Section 877).
2. After American Motorcycle: Joint and Several Liability still exists but advent of cmN brings about a
new right in CA – Partial Equitable Indemnity: rather then pro rata (50/50), the jury is now going to
decide which portion of the loss is allocable to each D. The statute creates an indemnity act and thus
eliminates a contribution action between Ds.
a. On the books; the law in CA was pro rata but the AMA court gets around this by concluding
that contribution doctrine on the books should be modified.
i. 875(f) on page 358 – “this title shall not impair any right of indemnity under
existing law, and where one tortfeasor judgment debtor is entitled to indemnity from
another there shall be no right of contribution between them.”
b. Now, if a D settles with P after AMA he is not subject to an action of partial equitable
indemnity by another D. So like the original system, if a D settles it can’t be sued for Partial
Indemnity or Contribution by other Ds (section 877 – settlement extinguishes contribution
right). So P can only collect whatever damages he prays for minus whatever D pays P in
e.
settlement. (i.e. If P settles with Union for $5k and total damages prayed for are $25K, can
only collect max $20k from RR).
i. Under new cmN system, wouldn’t most liable D rush to settlement (for lower
liability) and have the other Ds bear his burden at trial? But a P would probably not
settle w/ a highly culpable D. In a bidding game between D’s to settle out, D’s in
essence are pay pro rata shares!
v. New York: What if a D can’t sue after settlement but instead of subtracting settlement payment from P’s total
damages (like CA), law subtracts settling D’s the total fault %– i.e. P settles w/ 1st D for $10,000 but jury
comes back and says 1st D has 60% fault percentage. If P’s total damages are $100,000 can only collect
$40,000 total now from other Ds and only got 10K from 1 st D – 1st D gets out of paying 50k!
1. This puts pressure on P not to settle AND we’re letting a jury address fault % for D’s that aren’t even
there!
Indemnity: a D who is only secondarily liable for π’s injury, but who is sued and forced to pay a judgment is entitled
to indemnification against the party who was primarily responsible for causing the injury. They will get 100% from
other party. Usually used for vicarious liability/master servant cases. Also in product liability cases between retailer
and manufacturer.
i. Distinguish b/w contribution – contribution involves wrongdoers who are jointly and severally liable; it
requires that each pay his proportionate share – get less than 100%. Indemnity involves one who is primarily
responsible for an injury; it shifts the entire loss to his shoulders from another who has been compelled to pay.
American Motorcycle Association v. Superior Court: 1978– CA- Glen Gregos was injured during a cycle meet and brought
an action against AMA, π, for damages. AMA found liable damages awarded. AMA then cross-complained for partial
indemnity agts. Gregos’ parents for their negligent supervision of Gregos. The cross-complaint was dismissed, and AMA
appealed. Crt. holds for D b/c a cmN standard doesn’t abolish JSL! If P and parents are both liable under JSL, then P can
choose to recover from AMA if he wants (he won’t collect against his parents!).
Safeway v. Nes-Kart: (pg. 365) Lets jury decided fault % but one D is held strictly liable. Comparative fault system now
allows strict liability of D’s in some states.
Dole v. Dow Chemical Co: Interaction of contribution action and Worker’s Comp: If you P sue someone else (warehouse,
saw maker, manufacturer of machine, etc. b/c you can’t get the employer), that D will turn around and sue your employer for
contribution. In some sates, this contribution action has been blocked.
VIII. VICARIOUS LIABILITY
a. Liability one person has for the acts of another. Once negligence found, then party strictly liable.
b. Employer/Employee – Master Servant Relationship
i. Respondeat Superior Doctrine: if an employee commits a tort during the scope of employment, his employer
will be liable (jointly with the employee). This doctrine applies to ALL torts including intentional and those
where strict liability exists, provided that the tort occurred during the scope of employee’s employment.
1. Who is an Employee: Respondeat Superior only applies to employees and NOT independent
contractors (IC). The main distinction between the two is the amount of CONTROL the employer has
over the worker. The < control = IC and > control = employee. List of factors to consider in making
a determination:
a. Skill level: highly skilled = IC
b. Who supplies tools?
c. Duration of employment relationship: > the employment period = employee)
d. Compensation Scheme: salary (employee) v. lump sum (IC)
e. Is worker engaged in principle business: specialties = IC
2. Scope of Employment: Respondeat Superior only applies when an employee is acting w/n the scope
of employment when the tort occurs. The tort is w/n the scope if it is committed w/ intent to further
his employer’s business purpose even if means he chose were forbidden, unwise or indirect!
a. Forseeability matters when determining if employer is liable for employees actions. Ira S.
Bushey & Sons, Inc. v. U.S.
b. Trips from home: most courts hold that when an accident occurs where the employee is
traveling from her home to work, she’s not acting w/n the scope but courts are divided over
the employee returning home after business.
c. Frolic and Detour: Employer is liable if the deviation from work isn’t too extreme or is
reasonably foreseeable.
i. Lunch breaks are forseeable– employer would be liable.
ii. If the employees’ frolics off from what he is supposed to be doing then the
employer is generally not liable. Two questions usually used to determine if
employer will be liable:
1. Was the frolic foreseeable by the employer?
2. How long is the detour?
Sexual Harassment:
i. Quid Pro Quo: This is a tort of the business: It is considered a negligence case if the
employees are on same level (employee/employee harassment) but it is strictly
liable in a hierarchy quid pro quo relationship (supervisor/employee harassment)!
ii. Hostile Environment: Considered w/n scope so employment and employers would
be vicariously liable but employer has affirmative defenses.
1. Employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior;
2. Employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer to avoid harm
otherwise.
e. Forbidden Acts: Liability extends even when act was forbidden if done in furtherance of
employment.
f. Intentional Torts: Employer can be held liable for intentional torts if occurs within scope of
employment.
i. Personal and Intentional - Employer not liable for employee’s intentional
personal torts. However:
ii. Direct negligence – Employer can be negligent for not preventing personal
intentional tort not in furtherance of employment if they should have known of the
employee’s propensities.
Independent Contractors: One who hires an independent contractor is not generally liable for the torts of that person –
with a few exceptions. (When there is uncertainty as to whether somebody is an IC or a servant, he will be treated as a
servant.)
i. Inherently Dangerous Activities: one who employees an IC will be liable where the work is such that, unless
special precautions are taken, there will be a high degree of danger to others.
ii. Non-Delegable Duty: Some duties of care deemed so important that the person doing them will not be allowed
to delegate them to anyone. (Remember – Res Ipsa case: Colmanares!)
1. Employer’s Own Liability: If the employer himself is negligent in his dealings with the IC, this can
give rise to employer liability. (i.e. D hires X to drive a truck long distance and he doesn’t have a
commercial license – D can be liable for his own negligence.)
iii. More Exceptions: Apparent Authority and Implied Agency:
1. Apparent Authority (Ostensible Agency): principal must be “holding out” that there was an agency
relationship, and P must “justifiably rely” on this representation.
a. Holding Out: look for representations and notable omissions (giving off the impression)
b. Justifiable Reliance: did P act in reliance on the conduct of principal, consistent w/ ordinary
care/prudence
2. Implied Agency: D can become liable for he’s telling his IC what to do (does principal retain the
right to control the manner of doing the work? If so, then vicarious liability). If it walks like an IC,
but quacks like a servant, then it’s a servant!
Posner’s economic theory: Holding employers liable by respondeat superior has an economic impact and provides
incentive to consider changes in the nature or level of their activities
i. induce changes that will reduce the likelihood that the employee will commit a tort for which the company will
pay
ii. it makes sense to limit the scope of resp. sup. to things directly related to employment, because no change in
activity (inspired by economic goals) will affect the odds of a tort occurring in other places, like the
employee’s home.
iii. Ability to prevent accidents is far greater on the job than off the job
iv. Employers should be aware of what possible harm can come to others from the work
d.
c.
d.
Ira S. Bushey & Sons, Inc. v. U.S.: Intoxicated seaman returned at night to his US Coast Guard ship in dry dock. Before
going aboard, he opened a valve that controlled the flooding of the dry dock tanks. As a result, the ship and the π’s dry dock
was damaged. D sought damages based on Government’s vicarious liability of its employee’s actions. Crt. held that the
employer (gov’t) is responsible because it was foreseeable that a sailor would be drunk and could injure the boat. Risk of
cause damage to the drydock when seamen go back and forth is sufficient for liability under Respondeat Superior.
Konradi v. US: (Posner) Mailman was driving to work when he hit and killed the plaintiff’s decedent. Mailman had to use
his own car to get to work in a rural area. P sued the government, relying on respondeat superior. Judgment for P. Ruling: If
Postal Service requires employees to take the most direct route to work, even if it is not the safest, then the company should
be liable for accidents that occur when employees adhere to these rules (see Posner’s economic incentives above).
Miller v. Reiman-Wuerth: Employee got into accident with P while leaving work to go to bank. P sued under RS. NO
LIABILITY. Ruling: trip to the bank cannot be considered, by any reasonable person, within the “scope of employment.”
Employer gained no benefit from employee’s personal business.
Miami Herald Publishing v. Kendall: Mole delivered papers on his motorcycle…he ran over the plaintiff while making his
deliveries. P sued Mole’s employer, the Herald, for his injuries. The Herald said Mole was an independent contractor so
RS does not apply. NO LIABILITY. Ruling: Mole was able to choose how and when he made his deliveries, and was able
to choose how to collect money from subscribers and fold the papers. M did not meet test for “servant.”
IX. CAUSATION
a. CAUSE IN FACT
b. Generally, P must show that D’s conduct was the “cause in fact” of P’s injury. Cause in Fact is used in situations where
there is causal uncertainty!! (i.e. Is A responsible for B’s injuries). Not limited to one person.
i. “But for” Test: In order to show cause in fact, P must show that D’s conduct (act or omission) was a but for
cause of his injuries – had D not acted negligently, P’s injuries would not have resulted. We assess negligence
ex ante (was action reasonable?)
1. Examples: No Cause in Fact
a. New York Central RR v. Grimstad: D’s barge was in the pier when a tug bumped it. P felt
the bump and checked the side of the barge where she found her husband in the water and
drowning. She ran to grab a line but found none and when she returned he drowned. P
charges negligence for failure to equip barge w/ proper life preservers. NO LIABILITY.
Ruling: proximate cause of P’s death was his falling into the water and no evidence suggests
P’s accident would been prevented “but for” D’s actions. Also, no evidence suggests the lack
of safety devices caused or contributed to P’s death even if D was found negligent for not
having those items on board.
b. Stacy v. Knickerbocker Ice Co P, horse owner, sued D (who rented horses) for negligence
when the horses spooked on some ice and fell through an unmarked hole in the ice. NO
LIABILITY. Ruling: failure to indicate the hole was not the proximate cause of the deaths.
Putting a sign up would not have prevented the horses from spooking and meeting some
other fate.
2. Examples: Cause in Fact Found
a. Gardner v. National Bulk Carriers: Decedent was not seen for 6 hours prior to discovering
he was missing – never seen again and presumed drowned. the court assumed he drowned.
Captain took no steps to find him in the water. LIABLE. Ruling: Failing to act made
eliminated chance of survival. Rescue attempt would have taken time, but there was no other
risk to the ship for rescue attempt.
ii. Issues with proximate cause
1. Underdeterrence: if we have to meet POE (greater than 50% fault), cases where it is never or almost
never possible to show fault greater than 50% will never find liability and therefore D will not be
deterred from future acti
a. Strategies to deal with under-deterrence problems:
i. Legislative action – use sanctions as “sticks” to modify behavior; create statutes that
force defendants to act in some precautionary way and impose fines for
noncompliance
ii. Enforce expected value rule for recurring misses: 51% “connection” would lead to
51% liability
1. confined to recurring misses and corrected for very low probabilities
2. have issue of subjectivity? Too discretionary?
iii. Proximate cause rule: permit fact finder to assess liability for some but not all of
injuries…just those most proximately caused by the negligence
iv. Switch burden of proof to defendant: require D to show there is no causal
connection between statutory violation and injury
1. plaintiff will escape directed verdicts to get to fact finder
2. will not work in all cases but may work in enough to catch some of the
recurring misses
2. Recurring Misses: Background statistics ensure the preponderance-of-evidence rule will
systematically “miss” anti-social behavior and fail to deter such action
a. Failure to warn cases and informed consent cases are example of recurring misses: tend to
have situations where the defendant is more than 0% but less than 50% culpable for injury or
death.
b. failure to hold the doctor liable will lead to no change in behavior – there will be no
incentive to treat patient with most diligent care as flagrant negligence will go unpunished
c.
Movement to Probablistic rule when POE fails: pay according to
the proportion of
the injury/harm to the plaintiff
iii. Exceptions to the But For Rule:
1. Loss of Chance Doctrine – A reduction in the chance of survival can be considered the actual cause
of death in a tort action.
a. If chance of death is already over 50%, POE will never give you full recovery so we have to
move away from the POE rule to provide damages for injured plaintiff and to deter recurring
bad acts/negligent treatment of patients.
i. Tax the doctor or hospital for bad, negligent treatment
ii. Weight amount of recovery based on the increased chance of death (i.e., if negligent
treatment increased chance of death by 14%, get 14% recovery)
b. Herskovits v. Group Health Cooperative: P brings an action against D for negligence as a
result of failure to timely diagnose cancer even when Ps decedent had < 50% chance of
survival. Crt. finds that even if P’s survival is < 50%, D’s failure to diagnosis his condition is
enough evidence to show proximate cause.
i. Damages should be awarded to the injured party or his family based only on
damages caused directly by premature death, such as lost earnings and additional
medical expenses, etc.
ii. When looking at failed diagnosis, have to consider the background risk of death.
(i.e., defendant increased risk of death from 25% to 61%)
c. Dumas v. Cooney: P brings action for failure to diagnose lung cancer at treatable stage.
Chances of survival reduced by failed diagnosis. Verdict for defendant.
i. Court DID NOT apply Lost Chance Diagnosis
ii. Court said: “without some degree of causation, we cannot force a defendant to bear
P’s damages”
d. Dillon v. Twin State Gas & Electric: boy fell over the side of a bridge and grabbed an
electric wire to catch his fall. He was electrocuted and thrown back against the bridge. His
family sued D company that maintained the electric wires. PUNTS TO JURY to determine
if the boy could have survived his fall but for the electric wire being within his reach. It
depends on how likely death would result from the fall.
2. Concurrent Causes: Where two events concur to cause harm, and either one would have been
sufficient to cause substantially the same harm w/o the other, each of these concurring events is
deemed a cause in fact of the injury.
a. Kingston v. Chicago & N.W. Ry: D’s train caused a NE fire, which was the proximate cause
of P’s harm. A NW fire of unknown origin was also found to be a proximate cause. The 2
fires merged and in absence of one the other would have caused the damage. Since both
were the proximate cause, D doesn’t escape liability just b/c NW fire is unknown –D’s fire is
the sin qua non thus D is wholly responsible for the damages to P.
i. Apportionate Losses- Where you can determine which tortfeasor is responsible for
which part of the damage. But if Ds acting in concert – (indivisible harm) jointly
liable.
3. Alternative Liability (multiple fault): If P can show that each of two or more Ds were at fault, but
only one could have caused the injury, the burden shifts to each D to show that the other caused the
harm. Ds will be held jointly and severally liable (but they must both be negligent for rule to apply).
a. Summers v. Tice: P and 2 Ds were hunting quail. Both Ds shot at a quail and one shot struck
P in the eye, the other in his lip. Crt. holds where either A or B can be liable but it’s
impossible to say which, both are treated as joint tortfeasors and held jointly liable. Burden
is on Ds to prove that he is not liable. P shouldn’t left to guess which D caused the harm b/c
they may point to each other and leave P remediless. Joint & Several Liability.
b. Haft v. Lone Palm Hotel: P sues based on statute, which says if D has a pool, must have (1)
a lifeguard (2) a sign saying: no LG on duty. P argues that D’s negligence = per se. P can’t
prove cause in fact b/c LG wasn’t there to witness. Crt. holds that if the violation is the
failure to have the sign, purpose of the statute is lost. There is a burden shift here; where D’s
negligence is why we don’t have information about cause in fact then maybe D should have
the burden of denying the cause in fact. (Similar burden shift but no two or more Ds)
4. Market Share Liability: Theory applies to suppliers of defective products where the π cannot prove
which brand of the product she used, but can show that all produced a defective product. If a D
manufacturer is unable to disprove causation, then liable for its % of the product’s market at the time
of the π’s exposure to the product. MSL can be applied when four conditions are met: Sindell v.
Abbott Laboratories (DES caused cancer in mother years down the road). SINDELL TEST:
a. (1) All named Ds are potential tortfeasors
b. (2) The harmful products are identical and share same defective qualities - “fungible”
(ubiquitous, interchangeable)
c.
d.
e.
f.
g.
h.
(3) P through no fault of her own, can’t ID which D caused the injury
(4) Substantially all manufacturers of the defective product during the relevant time are
named.
Avoid issues associated with shifting burden of showing no liability from P to defendants by
assigning liability (and share of damage award) based on share of the DES market at the
time P’s mother took the drug.
Rejects of MSL: Skipworth v. Lead Industries Association: P was continually hospitalized
for lead poisoning. Her home, built circav1870, tested positive for the lead paint. P filed suit
against several “pigment” manufact. of lead paint. Since P couldn’t ID liable manufact, P
joined approx. all manufact. of paint between 1870–1977 in suit under MSL, alternative
liability, conspiracy, and concert action. Crt. found no MSL b/c period of time too long v.
DES case and lead paint is not fungible. Also, not all paint manufact. named over the 100
year period.
National Market Share: In determining market share, courts use a national rather then a
local market concept (but states vary – also what market? Commercial, residential? )
Exculpation: Some courts, unlike in Sindell, don’t allow Δ to prove that they could not have
supplied the drug to a particular P (i.e. paint only used in commercial dealers, no market
share in a region, etc,) Crt. are split on this.
c.
PREPONDERANCE OF EVIDENCE:
i. POE rule: all or nothing if POE cannot be established (greater or less than 50%; 100% or 0% liability
respectively. If we link more than 50% of fault with defendant, plaintiff collects 100% of damages (full
recovery).
ii. If court finds no liability, naked statistical evidence is not enough -> information forcing, collect more
evidence
1. Kominsky v. Hertz: Yellow truck hits P and P sues Hertz for negligence since Hertz owns 82% of
yellow trucks in the city. Will be difficult for P to present any more evidence of who hit him above
the statistical evidence. POE is satisfied if we can show it is very likely a Hertz truck hit him.
2. In Summers, the court said there was joint liability – each defendant shared 50% of P’s injury if there
was no way to establish liability on one or the other defendant. If there are 5 defendants, each pays
20% (based on joint liability standard)
iii. Market share liability provides an exception to the general rule that a plaintiff must prove that the defendant's
conduct was a cause-in-fact of the injury.
1. Market share should be an accurate reflection of the risk they pose/defendant’s conduct
2. appropriate when product is fungible and it is impossible to link one particular manufacturer with the
product that harmed plaintiff
3. Sanderson v. International Flavors and Fragrances: P sued 7 fragrance companies for product
liability – she claimed she was injured by breathing in toxic or harmful components of perfumes and
colognes on over 16,000 occasions. NO LIABILITY. P was not injured by a fungible product made
by many manufacturers. Also, the 7 defendants did not represent a substantial portion of the fragrance
industry.
4. Smith v. Cutter Biological: P received contaminated blood products (HIV+) while in a hospital. He
sued 4 possible sources of the blood, claiming market-share liability. Expect outcome similar to
Sindell (reason to suspect contaminated blood came from one of those sources, so probably a fair
representation of the industry, at least for that hospital)
d.
PROXIMATE CAUSE:
i. The Proximate cause requirement is a policy determination (issue of law) that a D, even one who has behaved
negligently, should not automatically be liable for all consequences, no matter how improbable or far-reaching,
of his act. PC usually means that D will not be liable for consequences that are very unforeseeable! Several
tests for determining PC:
1. Directness Test – this is the generally accepted test in INTENTIONAL TORT CASES. Ex: Vosburg
case: Putney argues I shouldn’t be liable for an unforeseeable harm but court says no! It follows the
directness test! Consider remoteness in time, space, and intervening actions.
2. Foreseeability Test: This is the defense’s argument in Vosburg v. Putney: Putney should only be
liable for the foreseeable harm of Vosburg (shouldn’t be liable for the loss of his leg).
a. Is plaintiff foreseeable? Is type of harm foreseeable?
3. Harm with in the Risk: hybrid of the first two tests. Liable for all unforeseeable and foreseeable
consequences that come from a foreseeable harm.
4. The Hindsight Test – if really bizarre, then not a proximate cause.
ii. Intervening Causes: An intervening cause is a force which takes effect after D’s negligence which contributes
to that negligence in producing P’s injury.
1.
2.
3.
4.
Simultaneous / Concurrent Harm - You must have a intervening cause in a temporal sense (after D’s
negligence).
chain of causation:
a. causal connection between the defender’s original conduct and the injury suffered as a
consequence thereof
b. causal connection between the caused harm and the losses arising out of it.
If the very risk to be guarded against is the thing that actually occurs (theft) then D can’t point to the
thing that actually occurred as a superceding cause.
Superseding cause: Some, BUT NOT ALL, intervening causes are sufficient to prevent D’s
negligence from being held to be the proximate cause of the injury.
a. To determine whether a cause is superceding courts use the Foreseeability Test: If D should
have foreseen or if the kind of harm suffered by P was foreseeable (even if the intervening
cause was not itself foreseeable) D’s conduct will still be the proximate cause!
Pridham v. Cash and Carry: D’s employee negligently tied down some stuff…the stuff fell on decedent, causing
him to need ambulance. Ambulance driver had a heart attack en route to hospital. Decedent was killed in 2nd
accident. LIABLE. Ruling: D’s negligence put decedent in position to be killed in the ambulance.
iii. Third Party Intervening Causes – A party is liable for the consequences of damages caused by an
intervening third party if that damage is foreseeable (applies to 3rd party negligence, mostly, not intentional).
1. Brower v. New York Central & H.R.R. – D’s train negligently collided into π’s wagon and caused his
cider barrels/kegs to scatter in the busy street. Consequently the goods were stolen. Train had two
guardsmen on board to protect agts. theft from train cars. Ct. held D liable because it was foreseeable
that the goods would be stolen, especially since they had guardsmen and knew that stealing things was
a problem. There was a duty b/c of negligence and there was a breach in duty.
2. Scott v. Shepherd: D threw a firecracker into a crowd. Several people saw the firecracker and threw it
away from themselves. Firecracker eventually exploded in P’s face. LIABLE. Intervening parties did
not change fact that injury flowed from the original action – D throwing the thing into the crowd.
iv. Maliciousness from intentional torts or criminal conduct usually breaks the causal chain b/c it is one that isn’t
one usually anticipated. But if anticipated, then liable.
1. Watson v. KY & ID Bridge and RR: Liability only goes to D when the intervening cause (Duerr
throwing a match on a gas spill) was negligent. If it was malicious, then D is not liable and entitled to
a direct verdict (Duerr was the proximate cause, not D).
a. There is a difference in the foresee-ability in the dropping of the match: Foreseeing it done
by accident is not too hard but foreseeing someone doing it maliciously is pretty hard.
v. Limits on Proximate Cause/ Coincidence Cases:
1. If action was a Coincidence, then you are not liable even if your action was a but for cause.
vi. PROXIMATE CAUSE -MAIN REGIMES AND TESTS:
1. Traditional Approach – Directness Test: Δ is liable for any harm that may be said to have directly
resulted from his negligent act without a break in the causal chain. (even freakish), regardless of
foreseeablity unless there is an unforeseeable intervening that becomes a superceding cause. They
are responsible for all direct causes.
a. In re Polemis & Furness, Withy & Co: P charted a vessel to D to carry cargo. Cargo
contained benzine/petrol and while discharging, a heavy plank fell in cargo hold and caused
an explosion. At arbitration, it was found that D’s negligent servants caused the fall of the
plank but the explosion was not reasonably foreseeable from a falling plank though some
damage to the ship might be anticipated. In debating between a foreseeability and a
directness test, the crt. holds that if a negligent act is likely to cause damage, the fact that the
damage actually is different from that anticipated is immaterial as long as the actual damage
is a direct result of the negligent act. D liable under directness test.
2. Harm within the Risk Test – D is liable for the full consequences that stem from a foreseeable risk
that made the D’s conduct negligent– even those that are unforeseeable. Negligent tortfeasor may
remain liable until the situation has returned to normal and stabilized. (ask what was the foreseeable
risk, and did the injury stem from that risk).
a. Kinsman (see below)
3. Foreseeability Test: Majority View/Rejection of Polemis. D is not liable for damages that are not
reasonably foreseeable from a negligent act.
a. Wagon Mound One (Overseas Tankship v. Mort’s Dock)– D negligently discharged
furnace oil into the bay and under a welder’s dock. D stopped welding and was assured that
it was safe to weld with the oil. A spark from the welding, debris in the water and the oil
ignited and caused the dock to burn. D sued D. Ct. held for D b/c only damage to π’s dock
4.
from muck and oil could have been foreseen; fire was NOT a foresseable risk created by the
negligence. (if it was deemed foreseeable – D would have a CN defense against P!)
Unforeseeable Plaintiff: Δ has a duty of care to all persons to whom the average reasonable person
would foresee as receiving a risk of harm under the circumstances. (used under all paradigms).
You’re liable for unforeseeable harm to a foreseeable plaintiff or victim but you are NOT liable at all
to victims/plaintiffs you do not foresee.
a. Palsgraff v. LIRR: D’s, agents were negligent when they helped a passenger board a moving
train. The agents left the door open to the train and helped push P on board; consequently,
causing P’s unmarked package to drop and explode and the π was subsequently injured
standing on the train platform not even near accident. D sued RR for negligence. Ct. held that
the D did not owe π a duty of care to P and thus couldn’t breach it b/c it was unforeseen that
their negligence would cause injury to the π, therefore they weren’t the proximate cause.
b. Thin Skull Plaintiff Rule: Take your P as you find them – If injury is foreseeable, then D is
liable for the full extent of π’s injuries even if more serious than anticipated. The fact that π
is more susceptible to injury is no defense. The line between a thin skull P and not a thin
skull P is a fuzzy one: Usually a thin skull P has a medical condition that is beyond his
control as opposed to someone who choose his activities.
i. Ex: Vosburg is a thin skull P! Wagon Mound P is not a thin skull P b/c its welding
business is a choice, not something not within its control.
c. Emotional Distress Foreseeability: Under Dillion standard, “zone of danger” thrown out
and P can recover on NEID claims when:
i. (1) Distance from scene of accident (must be close)
ii. (2) Whether you witnesses the accident or just heard about it (must witness)
iii. (3) Close relationship to the deceased (must have close relationship)
iv. 2 typical fact patterns:
1. P is direct victim of negligence as in a “near miss”, or where D commits a
negligent act that involves no physical contact
2. When P is not the direct victim of the negligent act but is a bystander, such
as witness to a horrible injury.
Kinsman transit Co: Judge Friendly does NOT follow Wagon Mound – he says that NY law does not follow it. Boat owner
negligently moors his boat – it gets loose, hits a drawbridge which should have been up (operator not working) and floods the
city. Under directness test, boat owner not liable b/c superceding cause (bridge worker). Under Palsgraf, P is unforeseeable –
would a boat owner really expect to flood city and cause P damage. Under Harm w/n risk, negligently mooring a boat would
bring foreseeable damage like damaging waterfront and docks – not city floods.
** when there is a SMALL risk of GREAT damage from the same set of circumstances, the actor must be held liable for
negligence resulting in that great harm
Dillion v. Legg: D, while negligently driving his car struck and killed Erin Dillon. Her mother and sister bring three claims for
(1) wrongful death (2) NEID to mom (3) NEID for sister. Crt. dismissed (2) b/c to recover for NEID P must be w/n the zone of
danger ((3) not dismissed b/c sister was in the zone). Crt. holds that that there is no reason to deny mother recovery on the
grounds that she was outside the zone. D could foresee injury to P in that she had a close relationship to the child, she was at
the scene and witnessed the killing. To not allow mother to recover but allow her daughter to recovery who was a few feet away
is dumb. Reason the zone of danger rule exists is that the P must be in fear of impact. But if the impact rule is abolished, what is
the point of the zone of danger?
The Hines/Price Distinction
Central of GA RR v. Price: D’s agent negligently prevented P from getting off the train at her stop. D put her up in hotel. The
hotel room had a defective kerosene lamp that exploded in the night, causing injuries. P sued the RR company (not the hotel) for
exposing her to this harm by not letting her off the train. NO LIABILITY. Ruling: D’s negligent act, failing to let her off at her
stop, was not the proximate cause of her injury. Holding D liable would not deter the sort of negligence that actually caused
P’s injury.
** very small increase in incremental harm
Hines – compare this result to Price
L for RR for victim’s assault walking back to town…RR negligently failed to let P off at her stop
- almost always more likely to result in harm to plaintiff than chance of her home burning down if she had gotten off at the right
stop.
- liability definitely helps deter RR from failing to drop people off and letting them walk somewhere at 2 in the morning (as
compared to Price case)
- dramatically increased risk of something going wrong!!!
- forced victim to go to the hospital – terribly dangerous places (while there is some risk of being harmed at home, the risk is
much less than at hospital).
We care about the incremental harm caused by negligent actions.
X. DUTY OF CARE
a. Generally, person owes everyone else with whom he come in contact a general “duty of care”. But there are several
situations where courts hold D owes P les then this regular duty.
** a duty and breach of that duty is required to find negligence and establish liability…but what if there is no duty of
care? Doing nothing: absent a special relationship, the person does not have a duty to take any particular action.
b. RESCUE
i. The Good Samaritan Rule: There is no duty to rescue under common law where the actor has not put the
endangered party in the position of peril AND there is no special relationship.
1. No Duty to warn a Trespasser: A landowner does not have a legal duty to come to the rescue of a
trespasser regardless of trespasser’s age. In fact, if the trespasser causes damage, they are liable. By
coming on his land, the trespasser does not make the property owner his guardian.
a. Misfeasance v. Nonfeasance: There is a distinction between misfeasance and nonfeasance.
If you’re engaged in an misfeasance, you would have a duty even if the person is a
trespasser!
i. Misfeasance – A lawful act performed in a negligent way.
ii. Nonfeasance – The failure to act when a duty to act existed
2. Hurley v. Eddingfield P’s decedent was very ill and D was her family physician. When decedent
became ill, her messenger sent for D, tendered him fees for his services and told him no other
physician was available. For no reason, D did not show up and P dies. Crt. holds that the only
wrongful act committed by D was refusal to enter into a contract of employment. He owed no duty to
render care to P – can’t force D to perform.
ii. EXCEPTIONS to The Good Samaritan Rule:
1. Duty to Warn When Δ creates Non-negligent Situation – D must warn in such a way that those
who might be injured are adequately and reasonably warned. D is least cost avoider in this situation.
a. Montgomery v. National Convoy & Trucking: D’s trucks s at the foot of an icy hill and
curve of the highway thus blocking the road. Ds, unable to move the trucks placed warnings
to let drivers know of their trucks but didn’t put them at the crest of the hill to prevent drivers
from coming down and not being able to stop b/c of ice roads. P’s car came down the road
and crashed into D’s trucks b/c he couldn’t stop. Crt. holds for P b/c D had a duty to take
precautions as were reasonably calculated to prevent injury resulting. It is not enough to
warn of impending danger, the warning must be such that those who would be injured are
adequately warned. (this case extends §322 b/c P not injured yet and D still has duty to warn)
2. Duty to rescue Those You Have Harmed: Restatement §322 – If the actor knows or has reason to
know that by his conduct, whether tortuous or innocent, he has caused such bodily harm to another as
to make him helpless and in danger of further harm the actor is under a duty to exercise reasonable
care to prevent such further harm.
a. Think about proximate cause case, Brower v. New York Central & H.R.R (RR hit P’s
wagon and he lost his barrels to thieves)
3. Assumption of Duty (once aid has begun for helpless P): Restatement §324 –If D voluntarily
undertakes aid to π, they will be liable if:
a. (1) They don’t exercise reasonable care; or
b. (2) If discontinues help and leaves π in worse position then when he found her.
c. Also under §324 – The actor cannot discontinue aid if so doing leaves P in a worse position
then when you took charge of him. (This only applies to injured P’s – not a hitch hiker who I
pick off on the road and drop in S. Bronx)
c.
OWNERS AND OCCUPIERS (really a duty of the possessor, NOT necessarily the owner)
i. Natural Hazards: If a hazardous condition exists naturally, the owner generally has no duty to remove it,
guard against it, etc.
ii. Artificial Hazards: If a hazardous condition is artificially created, the owner has a general duty to inspect
them and protect against dangers to others.
Yania v. Bigan – the trench case; P’s decedent (Yania) and another man went to D’s land. Y jumped into the cut and
drowned. The widow sued D for wrongful death – claimed D did nothing to rescue Y, he failed to warn him of the risk
of harm, and he urged Y to jump into the water. NO LIABILITY. Ruling: the rule: “no moral or legal duty to plaintiff
unless defendant was legally responsible, in whole or in part, for placing plaintiff in a perilous position.”
d.
TRESPASSERS: a person who goes on the land without invitation and whose presence is either unknown to the
proprietor or if known is practically objected to (or not privileged). ** An example of a trespasser w/ license: A
situation where you would have a privilege is under the doctrine of necessity!**
quare clausum fregit = trespass to land, “broke the close”, the writ called upon the defendant to explain his entering the
property
trespass de bonis asportatis = “of good carried away”, writ for interference with or damage to property
i. Traditional Rule Against Trespassers: as a general rule, landowners owe no duty to a trespasser to make his
land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it or to protect trespassers in
anyway.
ii. EXCEPTIONS:
1. Discovered Trespassers: Once the owner has knowledge that a particular person is trespassing, the
owner is then under a duty to exercise reasonable care for the trespasser’s safety (NOT TO RESCUE)
2. Technical Trespassers: technically trespassing b/c someone is straying very slightly from where
they have a right to be and while there, encountered a hazard. You do have a duty to them.
3. Frequent Trespasser Exception: You don’t know if someone is trespassing but if you have
knowledge that trespassers are reasonably expected to be there – you have a duty to warn. Not a
strict liability exception if someone gets hurt.
4. Children: A possessor of land is subject to liability for physical harm to children (approx. age 12-14)
trespassing thereon caused by an artificial condition upon the land if all are met: ATTRACTIVE
NUSIANCE DOCTRINE: RST § 339
a. (1)Foreseeability of children trespassing - the owner knows or has reason to know that the
area is one where children are likely to trespass.
b. (2) Foreseeability of harm - the condition is one of which the possessor knows or has reason
to know and which he realizes or should realize will involve an unreasonable risk of death or
serious bodily harm to such children,
c. (3) Children unaware of danger - the children because of their youth do not discover the
condition or realize the risk involved in intermeddling with it or in coming within the area
made dangerous by it, and (question of fact for jury or judge).
d. (4) Risk outweighs utility of condition - the utility to the possessor of maintaining the
condition and the burden of eliminating the danger are slight as compared w/ the risk to
children involved, and
e. (5) Lack of reasonable care - the possessor fails to exercise reasonable care to eliminate the
danger or otherwise to protect the children.
Haskins v. Grybko: D shot at moving object low to the ground, thinking it was a woodchuck. He actually shot decedent.
NO LIABILITY. Ruling: D did not think it was a trespasser and there was no reason to think there would be a
trespasser…intestate was a trespasser on the privately held land and D’s only duty was to prevent intentional harm (no
evidence D intended to shoot person).
e.
f.
LICENSEES:
i. A licensee is a person who has the owner’s consent to be on the property but who does not have a business
purpose or anything else entitling him to be on the land apart from the owner’s consent. If someone is not
trespasser, and not a invitee, then he is a licensee (i.e. dinner or social guest).
1. Traditional Rule for Licensees: Occupier doesn’t have a duty to inspect for unknown dangers, but
the occupier owes a duty to exercise reasonable care to warn licensees of, natural or artificial
conditions that impose any risk of harm that are not obvious to a reasonable person coming onto land
but known to him. (Includes threats of harm by third persons already on land).
INVITEES:
i. The class of invitees today includes: (1) persons who are invited onto the land to conduct business (i.e.
customer at mall) (2) those who are invited members of the public for purposes of which the land is open to the
public. (i.e. church mass open to all)
ii. Traditional Rule for Invitees: The owner does owe an invitee a duty of reasonable inspection to find hidden
dangers! Also, the possessor must use reasonable care to take affirmative action to remedy a dangerous
condition. The three duties owed specifically to invitees”
a. (1) Duty to Inspect: duty to inspect for hidden danger – even if danger existed before
possessor moves in.
b. (2) Warning: the giving of a warning will often suffice but if the possers realizes it won’t,
the condition must be remedied.
c. (3) Control over 3rd Parties: reasonable care by O may require she exercise control over 3 rd
parities on her premises.
2. Scope of Invitation: If invitee goes beyond the business purpose or beyond the part of premises held
open to the public, P will change from an invitee to a licensee.
Rowland v. Christian: P was an invited houseguest of D. P was injured when he went to the bathroom and the porcelain faucet
handle broke, severing nerves in his hand. D knew of the crack weeks before and told her landlord to fix it. D did not warn P of
the crack. Crt. reverses for P b/c they find the current classifications of trespasser, licensee, and invitee too complex. A person’s
life or limb is not less worthy of protection b/c he has come upon land of another without a business purpose or w/o permission.
Dissent argues the social guest should take the premises as they find it.
Soldano v. O’Daniels: P’s decedent entered D’s business and said someone was trying to harm him…wanted to use the phone to
call for help. The front desk attendant would not let him use the phone. Decedent was shot and killed. Judgment for P
REVERSED. Ruling: no special relationship between D and P, but it is bad public policy to keep citizens from using a phone in
a public portion of a building when there is legitimate need. Duty would exist if decedent was in imminent danger.
XI. GRATITUOUS UNDERTAKING
a. Contracts Without Consideration: One who undertakes to do something for another is liable for damages caused by
his negligence.
i. Thorn v. Deas: P set sail on the promise that D would insure his boat while he was at sea. D didn’t do it and
P’s boat was destroyed. This is a nonfeasance case. There was no tort committed when D didn’t insure the
ship. Although P brings up issue of Promissory Estoppel - §90 RST (If you make a promise, and someone
makes an effort or forbearance on such a promise then the court can deem it a binding contract), D wins b/c no
proof P actually relied on D’s promise. Would he have still gone sailing?
b. Custom: If the company has established for itself a custom of due care and the traveler has relied on this custom, the
company will be held liable for the injury of it negligently performs or withdraws the service without proper notice.
This is a reasonable standard, so if he was sick or something, OK.
i. Erie R.R. v. Stewart: RR has a flagman at a grade crossing voluntarily. Law didn’t require the flagman, but π
was aware of him and relied on him to cross. P was hit when attempting to cross b/c no flag man there. D
argues no duty because they weren’t required to have flagman. Crt. reasons that by putting a flagman there, D
induces reliance on the watchman. They had no duty but since they put one there, people were counting on it
and if D wanted to take it away, D had to let people first. Court held for π b/c w/o notice to π that the flagman
wasn’t around, D were required to continue warning of on coming train – this is a misfeasance by D.
c. Misfeasance: (wrongful act) – If a D who initially owed no duty, promises to do something voluntarily, then they are
bound to use reasonable care and prudence in doing so.
i. Marsalis v. LaSalle – π was bitten by the D’s cat and the D agreed to lock the cat up so it can be tested for
rabies. Before cat could be tested , D let him escape. Since P couldn’t test the cat, D had to endure Pasteur
treatment which caused her to become ill . Crt. held that D in is not liable for his nonfeasance of his promise
but for his misfeasance in starting to carry through by putting the cat in the basement and then not taking
reasonable care to maintain such a promise.
1. Reconcile w/ Thorne: Look back to Montgomery. Even if the truck drivers weren’t negligent in
breaking down, their trucks created the peril, thus they had a duty to prevent harm to occur. Your
instrumentality creates the peril thus it creates a duty on you to prevent that peril. In Thorne, P’s
failure to insure did not cause the peril.
2. RST §323 Negligent performance of undertaking to render service – If section (A) read to broadly
could impose liability on every broken promise as “increasing the risk”. (what is considered an
“undertaking”…is the promise itself an undertaking? RST §324A: Liability to Third Person for
Negligent Performance of Undertaking:
3. Comment: the old rule was that a mere gratuitous promise to render service created no duty. Many
cases find duty b/c D has undertaken promise through some insignificant act and must follow through,
some cases hold liability just upon mere breach.
d. Duty to Third Party Under Voluntary Acts: A third party beneficiary is not able to recover from a promisor’s failure
to perform b/c contractual liability doesn’t extend to third parties unless contract was created so a 3 rd party beneficiary
could enforce.
i. Moch Co. v. Rensselaer Water Co: D contracted with city to provide water for fire hydrants. A fire broke out
and D failed to provide enough H2O pressure and π’s warehouse burned down. D sued for damages claiming
breach of contract, common tort law and breach of statutory duty. Lost on all. Held: 1) no contractual duty b/c
not a contracted party; 2) no tort b/c result of inaction wasn’t normal/foreseeable; 3) no stat. liability because
the city was the only protected class from the statute.
1. Legal Test for 3rd Party Beneficiary Contracts: Is the contract one in which the parties at the time
of contract intended to vest legal right in the 3 rd party!
2. Osborne Principles come into play in terms of the statutory duty claim
3. Cardozo’s Argument: difference between Instrumentality of harm (broken faucet) v. failure to launch
an instrumentality of good (hydrant)
a. Chain of causation was broken by the lack of privity
b. According to Cardozo, in example where A’s fire spread to B, C, and D – only B can recover
because that is where the chain ends.
ii. With “privity” doctrine in effect (therefore you have no privity w/utility) - no liability assigned to D
1.
2.
home owner’s insurance will pay for the house (pay more for insurance).
Customer cannot sue utility because her contract is with the city…she will have to collect from her
insurance company to cover the damage to her house.
iii. With no privity doctrine in effect:
1. liability is not limited by contractual relationship regardless of contract
2. P can recover for the damage - the utility will pay for damage (water prices will rise)
e.
SPECIAL RELATIONSHIPS
i. Rule: A duty to a 3rd person does not exist outside a special relationship! (Usually no duty for party A to
protect party B from party C) Two types of special relationships: (1) The actor and a 3rd party and (2) The
actor and the person who gets hurt.
1. Temptation into a Dangerous Situation: the distinction is that at some point you have crossed the
line and induce a great risk. An average sale at a store doesn’t do so. When you have created a risk
or competitive aspect that leads to risk, then liable for danger to public.
a. Weirum v. RKO General Inc: Radio station holds a promotion for people to race to location
X for $$. The teenagers and the radio station are joint tortfeasors!! If the teenagers have
more money then there may be an indemnity action against them by the radio. The radio
station is held liable.
ii. Restatement §315: Defines Special Relationships and Duty:
1. There is no duty to control the conduct of a third person as to prevent him from causing physical harm
to another unless:
a. A special relation exists between D and the 3rd party which imposes a duty upon the him to
control the third person’s conduct, or
b. A special relation exist btwn D and P which gives P a right to protection.
iii. Where do Special Relationships Exists:
1. Market failures (Kline)
2. Custodial Relationships (Tarasoff)
3. Special Relationships are not too defined thus if you want to get to party B, you must “dream” up a
special relationship to impute a duty on them. Some characteristics may be b/c special control,
collective action, etc.
iv. EXAMPLES:
1. Landlord: a landlord that has the exclusive ability to provide protection for tenants is liable if they do
not take reasonable precaution to protect against reasonably foreseeable harm by a 3rd party. They are
not an insurer of safety, but must minimize risks. Landlord is lowest cost provider and his actions can
prevent a collective action /free-rider problem among tenants (for security in this case).
a. Kline v. 1500 Massachusetts Ave. Apartments : π, a lessee in D’s building was assaulted in
the halloutside of her apt. There had been an increase in violence in the common areas of the
building b/c security guards, monitoring and locks taken away. D was aware of previous
crimes. Crt. held D liable b/c he was the only one who could take the necessary precautions
to minimize potential risks of burglary and battery in common areas. He was also aware of
previous instances and thus, it was foreseeable that something in the future would occur
(Foreseeability thus not intervening cause).
2. Common carriers & Innkeepers: Common carriers and Innkeepers have a special relationship that
requires them to take utmost care and diligence to protect s. Like landlords, they are the only ones
who can take precautions to minimize harm – lowest cost provide.
** Common carriers have special duty of care (airplanes, ferries, buses); usually duty is limited to
safe transport from point A to point B. The duty ends when the person safely arrives at
destination (does not cover passenger within the terminal – Boyette v. TWA)
Brosnahan v. Western Air Lines: P was a passenger on a flight. Another passenger dropped bag on P. P sued claiming
that her injury was foreseeable and the airline should have done something to prevent it. LIABLE. D is a common
carrier and thus owes a duty of utmost care and vigilance of a very cautious person.
3.
4.
5.
Business relationships: Anyone who maintains a business premises, must furnish reasonable warning
and assistance to a business visitor, regardless of the source of danger or harm.
Employer: An employer must give reasonable warning and assistance to an employee
endangered/injured during the course of employment. An employer DOES have a duty to control an
employee acting outside the scope of employment when:
a. The employee is on the premises, and
b. He knows about it. (not SL – just creates a duty)
University-Student Relationship: Cts. have recognized some such situations imposing a duty of
special care on the university.
Private affairs – Cts. less willing to impose an obligation on the university to regulate the
private affairs of its students.
Teacher and student: A teacher is in a position of authority over a student, therefore they have a
special duty.
S&L and Homeowners: S&L gives $$ to shoddy developer who makes shoddy homes. The
developer runs away. Homeowners sue bank. Generally there’s no special relationship, b/c the loan
officer doesn’t have the expertise to inspect houses.
Condo Boards: tenant requests light be put outside her condo for security but the board decline and
she is assaulted. The condo tenants actually own the area and thus a majority rules situation take
effect – the board is elected and reflect the views of owners thus they are usually not liable (no special
relationship) In the actual case, a duty or special relationship was found.
Psychologists/Therapists: there is a duty to 3rd parties where the public interest is greater then the
private interest of the patient. The protective privilege ends where public peril begins.
a. Doctor/Patient Relationship: A doctor’s relationship w/ his patient is sufficient to support
the duty to exercise reasonable care to protect others/warn against dangers emanating from
the patient’s illness. Doctor only has to exercise reasonable care, and not predict everything.
i. Only applies to 3rd parties known at the time of diagnosis (Hawkins v. Pizarro; NL
for HepC misdiagnosis)
b. Public policy > Privacy: Therapists obligations to his patient requires that he not disclose a
confidence unless such disclosure is necessary to avert danger to others, even then that he do
so discretely, and in a way to preserve privacy of patient as best as possible.
a.
6.
7.
8.
9.
Tarasoff v. Regents of University of California: Poddar was a patient of D’s and he told him that he was going to kill P. D
diagnosed him with paranoid schizophrenic, and recommended his confinement for the safety of others. D made no effort to
warn P about this threat and Poddar later killed her. P predicates liability on D for failure to warn P of impending danger and
D’s failure to confine Poddar. Crt. holds that D in fact did owe a duty to P of reasonable care b/c of the SR that existed between
Poddar and D. In CA, it’s not necessary for D’s SR to be with the 3 rd party to have a duty owed. As such, D is liable for their
failure to warn P. Although doctors and patients have a special relationship predicated on confidentiality, public policy favoring
protection of that confidential communication must yield to the extent to which disclosure is essential to avert danger to others.
The protective privilege ends where public peril begins.
Bradshaw v. Daniel: D diagnosed P’s husband as being in late stages of rocky mountain fever (not contagious but spread by
ticks). Husband died and P got sick. P sued D for no disclosing husband’s illness if transmittable to her. LIABILITY. Ruling:
there was foreseeable risk of harm to a third party, so doctor had a duty to disclose the patient’s status as a carrier of a
transmittable disease.
STRICT LIABILITY
XII. TRADITIONAL STRICT LIABILITY
a. Strict Liability holds D liable for harms that D causes, regardless of whether or not D was careful. As compared to a
negligence regime that only holds D liable for harms done for lack of D’s reasonable care.
b. ANIMALS
i. Trespassing Animals: In most states, the owner of livestock or other animals is liable for property damage
caused by them if they trespass on another’s land. The liability is strict even if the owner exercises the utmost
care.
ii. Non-trespass Liability: A person is also strictly liable for non-trespass damage done by any “dangerous
animal” he keeps.
1. Wild Animals: a person who keeps a wild animal is strictly liable for all damage done by it, as long
as the damage results from a dangerous propensity that is typical of the species in question.
2. Domestic Animals: Injuries by a domestic animal such as a cat, dog, cow, pig, etc. do NOT give rise
to SL unless the owner knows or has reason to know of the animal’s dangerous propensities:
a. One Bite Rule: Old rule use to be each owner gets “one free bite” before they can be
classified as knowing their animal has dangerous propensities.
** bees = domestic; ants = wild animals; camels = domestic; circus elephant = domestic
c.
ABNORMALLY DANGEROUS ACTIVITIES
i. A person is strictly liable for any damage, which proximately occurs while he is conducting an abnormally
dangerous activity!
ii. Abnormal Activities on Land: Traditional Approach:
1. Fletcher v. Ryland (1st Trial): D hired engineers and contractors to erect a reservoir. D’s land had a
defect from previous mining unknown to D when D gave direction for the reservoir. Contractors
continued to erect the reservoir in ignorance of the defect and as they put water into Ds reservoir, it
broke and flooded P’s land. Crt holds that P’s injury was not a trespass (SL) but instead a case
(indirect harm) thus a negligence standard must be used. fThey find that although Ds act was lawful,
the consequence was wrong but P has an action b/c D caused the water to flow onto Ps land and w/o
Ds acts, no damage would have occurred.
a. J. Martin: SL for fires, common carriers, sort of a SL for nuisance (interferences with
enjoyment of property–doesn’t think building a reservoir on a mine shaft is a nuisance).
b. BRAMWELL OPINION: P has a right to be free from “foreign water” (H2O artificially
brought or sent to him directly)
2. (Crt. of Exchequer Chamber)Second Trial: Crt. holds that D’s negligence, as suggested in the lower
court dissent (SL) argument), is not a necessary condition for D’s liability – if the owner chooses to
bring or keep a lawful item on his land that if released could injury others he chooses to do so
knowing there is an inevitable risk to those in property adjacent etc.
a. BLACKBURN OPINION: If a person brings onto his land anything likely to do mischief if it
escapes, he is SL. He can excuse himself if he can show that the escape was the result of the
(1) default of plaintiff, (2) force le jure (human action not that of plaintiff – i.e. a bomb
dropping) and (3) act of God.
i. This is a commentary on the level of harm (i.e. pitbull v. poodle – which is likely to
do mischief if it escape?).
ii. Also makes an assumption of risk argument for accidents along the public way.
b. (House of Lords) Third Trial: Crt. affirms for P and states D is SL no matter what care he
took in preventing water from entering P’s close. He brought on his land something that was
not of natural use and as such, he brought it in at his own peril. If upon the natural use of the
land water accumulates and falls onto P’s land, D would not be liable.
i. CARINS OPINION: When D uses land for something other then its natural
purpose, then he does so at his peril if consequences occur.
1. So not things likely to cause mischief (like Blackburn) but things that are
unnatural or uncommon to the land usage.
1. Rickards v. Lothian: Trespasser broke in and clogged toilet – everyone has
toilets and sometimes, they overflow? Having an overflowing toilet is
hardly “uncommon”. Indoor plumbing not an uncommon use!
iii. Rejection of Rylands in the Name of Economic Growth: Do things that are uncommon (or new) have
negative impacts economically on society (Carins)? Does it discourage innovation? Under Blackburn, it
doesn’t seem to penalizing newer things. It penalizes things that are more hazardous.
iv. Acceptance of Rylands – Extension of Rule Off D’s Property:
1. Powell v. Fall: P’s land adjoined a public way where D’s train, run w/ no negligence and according to
all laws set fire to hay on P’s land. Crt. affirms for P b/c although D says no negligence b/c complied
w/ statute, the legislature never intended for D to be protected from all liability if it simply complied
with the act.
a. Blackburn – no SL. Negligence b/c on public way
b. Carins – Could find SL if RR was an “uncommon usage”
c. Bramwell: Would find SL – you have a right to be free from fire! SL b/c if D is willing to
use a RR that causes damage, D should be able to pay for it if his business is making a profit.
(But shouldn’t we look to least cost avoider?)
v. paradigm of reciprocity: specific standard of risk proposed by Fletcher v. Rylands
1. look at the activity of the victim and of the risk-taker and determine who is entitled to recover for
those injured by non-reciprocal risks.
2. an uncommon activity – those actions with few participants which are likely to be activities
generating non-reciprocal risks (one party subjected to a disproportionate level of risk)
vi. RESTATEMENT VIEWS ON ABNORMALLY DANGEROUS ACTIVITIES:
1. RST § 519: One who carries on an abnormally dangerous activity is subject to liability for harm to
the person, land, or chattel of another resulting from the activity, even if he exercises the utmost care
to prevent harm.
a. Causation Requirement: This SL is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous (i.e. while transporting toxic waste, a pedestrian hit
by the driver of the truck, cannot claim strict liability).
2. RST § 520: In determining whether an activity is abnormally dangerous, the following factors are to
be considered:
a. Existence of a high degree of risk of some harm to the person, land, or chattels of others
b. Likelihood that the harm that results from it will be great
c. Inability to eliminate the risk by the exercise of reasonable care
d. Extent to which the activity is not a matter of common usage
e. Inappropriateness of the activity to the place where it is carried on
f. Extent to which its value to the community is outweighed by its dangerous attributes
3.
RTT § 20: A defendant who carries on abnormally dangerous activity is subject to SL for physical
harm resulting from that activity.
a. (b) An Activity is abnormally dangerous if:
i. (1) The activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors, and
ii. (2) The activity is not a matter of common usage.
b. **This is like Ryland’s rules (1) Blackburn (2) Carins** Must prove both.
vii. Activities Normally Held Under a Strict Liability Standard:
1. Blasting, storing explosives or anything to do with explosives (gunfire - NOT abnormally dangerous!)
2. Crop Dusting, Fumigation, pesticides, etc.
3. Airplanes (SL for stuff falling off – negligence for passengers b/c contractual relationship)
4. Reservoir Building (except in TX!) – Turner v. Big Lake Oil (community context, not unusual use of
land in that place)
5. Noxious fumes or pollution
viii. Limitations on Strict liability
1. Scope of risk – there will be strict liability only for damage, which results from the kind of risk that
made the activity abnormally dangerous. (i.e. while transporting toxic waste, a pedestrian hit by the
driver of the truck, cannot claim strict liability).
2. Abnormally Sensitive Activity by Plaintiff – No strict liability for harm caused by an abnormally
dangerous activity if the harm would not have resulted by for the abnormally sensitive conduct of the
plaintiffs activity. §524(a) Madsen v. East Jordan Irrigation Co. – baby minks case!
3. Contributing Actions One carrying on an abnormally dangerous activity is liable for the harm within
the risk although the harm is:
a. Innocent, negligence or reckless conduct of third party
b. Action of an animal
c. Operation of a force of nature. Rest. § 522
4. Contributory Negligence – not a defense, but assumption of risk is.
Balfour v. Barty-King – the blow-torch case: D tried to unfreeze his pipes with a torch and accidentally set fire to the
building. P’s residence was burned when the fire spread (no real moral hazard from victims). D STRICTLY LIABLE for
the damages. The blow-torch was especially dangerous (like the water reservoir) because it was likely to cause damage if
used in a non-natural purpose.
Indiana Harbor Belt RR v. American Cyanamid Co.: When an injurers has a decision as to where they take on or operate
their dangerous activity, will this be examined under a negligence or SL standard (not really an issue in the Spano case b/c
the city decided it wanted to put the Battery tunnel where it is – no real decision as to location). Posner says Sl works better
– but what about a moral hazard of people moving to the plant?
Madsen v. East Jordan Irrigation Co.: No strict liability for harm caused by an abnormally dangerous activity if the harm
would not have resulted by for the abnormally sensitive conduct of the plaintiffs activity. §524(a) – P running a mink farm
and loud noise caused mothers to eat their young.
Losee v. Buchanan.: No strict liability for harm caused by exploding steam boiler when harm could have been caused by
negligence maintenance. Cannot be strictly liable for the sort of accident likely to result from negligent care.
Lubin v. Iowa City.: Strict liability for harm caused by city leaving pipes to rust and burst in the ground despite knowing
they needed replacement. Pipes had become inherently dangerous. The use of the pipes here was considered an unnatural
use (leaving them in a poor state intentionally) and damage considered a natural consequence of “letting abnormally
dangerous thing escape.”
Walker Shoe Store v. Howard’s Hobby.: No strict liability for harm caused by leaking oil tank when harm could have been
caused by negligence maintenance. D maintained the tank well so leak was neither expected nor inevitable.
XIII. NUSIANCE
a. Difference Between Nuisance and Trespass:
i. Nuisance can be intentional or not intentional – trespass is ALWAYS intentional
ii. Things that are no tangible are considered nuisances and not items that can trespass. They are not considered
tangible entries upon the land.
b. Two Categories of Nuisance:
i. Nuisance per se- a nuisance that constitutes a nuisance WHEREVER it is located (i.e. something that is
illegal. A brothel)
c.
d.
ii. Nuisance per Accidence: only a nuisance given the surroundings (i.e. factory in a residential development)
Private v. Public:
i. Private: only bothers a few people
ii. Public: bothers a bunch of people and there may not be standing to bring an action b/c such widespread
nuisance.
PRIVATE NUSIANCE:
i. A private nuisance is an unreasonable interference with P’s use and enjoyment of his land. P can sue based on
private nuisance only if he has an interest in the land affected. To recover for nuisance P must demonstrate:(1)
That his use and enjoyment was interfered with in a substantial way, and (2) D’s conduct was either:
1. Negligent: (CN is a defense, Assumption of Risk, and Coming to Nuisance)
2. Abnormally Dangerous (CN is not a defense, but have A/R and Coming to N)
3. Intentional: Only actionable if it’s unreasonable (even if D doesn’t desire to interfere w/ P use of
land, as long as D knew with substantially certainty that and interference would occur – no CN
defense, but have A/R and Coming to Nuisance)
 Restatement § 826: An intentional invasion is unreasonable when:
 (a) The harm to P outweighs the utility of D’s conduct
 (b) The harm caused P is greater then P should be required to bear w/o compensation.
i. This limits things only to serious harm, therefore it is different from (a). Some
things are not always calculated.
ii. Serious harm should be that harm in which an ordinary person would be bothered
by it.
iii. Live and let live – some things are part of life and have to be tolerated and are
therefore not serious.
ii. Excessive Stray Voltage: is actionable as a private nuisance if the trier of fact determines that such voltage
unreasonably interferes with a person’s interest in the private use and enjoyment of land – even if requested.
iii. Air and Light: Where the structure serves a useful purpose, there is no cause of action for cutting off light and
air even if the structure was erected in part from malice. (weigh utility of structure v. harm to D).
1. Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc: D building an addition to its hotel,
which would cast a shadow on P’s pool area. P brings an action for damages and injunctive relief b/c
(1) the construction interferes with their air and light (2) construction done w/ malice Crt. holds P has
no legal right to the free flow of air and light from the adjoining land thus if D puts up a structure that
is useful and beneficial it does not give P a cause of action.
iv. Spite Fences– If no useful purposes and only for malice, then not allowed (again – weight utilty v. harm)
v. Water:
1. Bradford Corporation v Pickles [1895] AC 587. The P deliberately diverted water flowing through
his land, away from his neighbor's property. The P intended to force them to buy his land at an
inflated price. It was held that he was committing no legal wrong because no one has a right to
uninterrupted supplies of water which percolates through from adjoining property
vi. Aesthetics – Bright Line Rule: Purely aesthetic complaints are not actionable nuisances
1. By itself, abandoned property wouldn’t be actionable but when it starts to go beyond that (a haven for
other things) an action may lie.
vii. Extra Sensitive Plaintiff’s Rule: The same applies as in the SL sense. If you’re extra sensitive and peculiar
you cannot take advantage of the intentional nuisance standard which imposes a sort of quasi-strict liability on
D.
1. Rogers v. Elliot: D operated a church bell. P was recovering from case of sunstroke brought near the
church. P suffered severe convulsions at the ringing of the bell. P’s physician informed D of P’s
condition and told him to stop ringing the bell. D refused to stop and P brought this action. Crt. held
D’s ringing of the bell is reasonable if the people in town consider it reasonable. P’s claims are based
upon his sensitivities and not upon any nuisance caused by the bell ringing.
2. When framed as nuisance, there is an extra sensitive plaintiff rule (no recovery for extra sensitive P)
BUT if framed as negligence we have the eggshell skull rule (essentially the opposite)!!!
 But what is extra sensitive under nuisance? (EXTREMELY subjective line!)
i. Drive in movie theater – extra sensitive activity thus can’t recover. Belmar DriveIn Theater Co. v. Illinois State Toll Highway Commission
i. TV Store w/warped TV screens – not extra sensitive so they can recover.
ii. Coming to the Nuisance Defense – How much does it matter who was there first and if the π moved there
second. This is a relevant factor, but isn’t conclusive. The court must take it case by case.
1. Spurr v. Del Webb: D owns property cattle feedlot. Ps (real estate developers) bring a nuisance
action for injunctive relief against D although they expanded develop near D. Crt. holds for Ps
although Ps moved in after D, consideration is given to that fact but it is not controlling. Court gives
property right to P but requires P to indemnify D for costs of moving. The elusive Rule 4 result!
2. Concerns about making coming to nuisance conclusive
The concern though is that you’ll have opportunistic behavior by later developers: They
will buy cheap land next to a nuisance, then enjoin the nuisance, and get windfall in increase
in land value. This concern, though, isn’t convincing. The price of the land will reflect the
possibility of getting a damage award for nuisance.
b. Moreover, a coming to the nuisance rule would create a race to develop, b/c the first-intime rule would allow someone who develops first to determine the use of all the
surrounding land. The owner of undeveloped land next door cannot realistically bring a suit
at that time, b/c harder to calculate damages (you won’t know what land is really suited for).
c. Also, usages of land change over time. Maybe at one time it made sense to have feedlot
where it is, but it no longer does.
viii. Zoning Laws: The fact that you complied with the zoning law is not conclusive – you can still get sued for
private nuisance. But if you are violating the zoning law, the plaintiff probably has an airtight case against
you.
1. spot zoning: if the government singles out a certain person or area and takes land by eminent domain
(depends on how harmed a person is by the taking or spot zoning)
2. Zoning approval does not give free license if there are other issues at play -> does not mean tort
damages are inconsistent with the zoning approval!
REMEDIES:
i. Property v. Liability Rules (Calabresi and Melamed):
1. Rule 1 – a property rule; right to injunction to plaintiff
a. Generally in P’s best interest to seek injunctive relief
b. parties may engage in post-judgment negotiation – allowing P to “sell” injunction to D
(Coase - if they can bargain, the rule doesn’t matter)
c. hypothetical Rule 1P - mix the injunction with damages by setting some kind of limit to the
acceptable harm (kind of fanciful Levmore notion – a couple of cases have tried it)
i. you pay us damages for the harm already caused and if you pollute over X amount,
I will enforce the injunction
d. hypothetical Rules 1E and 1F – injunction meant to address past&future harm or just future
harm, respectively
2. Rule 2 - liability rule; P collects damages for harm suffered
2S: Strict liability – ultrahazardous so must pay for P’s harm
2E: pay amount of own enrichment (pays its unjust enrichment)
2F*: A will pay future damages (vs. 2B)
2X*: A pays what B might have extracted if Rule 1 won and B could sell
3. Rule 3 - property rule; no damages or remedy (essentially a victory for nuisance-maker)
a. hypothetical Rule 3G - perhaps P is fighting the government and will be unsuccessful and
told to take it up with the legislature (but spot zoning)
4. Rule 4 – hybrid rule; P granted injunction to cease nuisance-making activity but required to
indemnify D for the privilege
a. this would be a modest payment to avoid double-recovery/overcompensation
b. Avoiding the pecuniary externality: damage award reduced if D will actually make $$ from
ceasing operations and moving (i.e., if land values in the area have greatly increased)
c. like in Spur v. Del Webb – because of the new residential development in the area, Spur may
be able to sell the land they currently occupy for a pile of money and buy up new land for
less somewhere else
5. Hypothetical Rule 5 – Nuisance-maker D chooses to stop and collect P’s gain from the cessation
a. the court could say you can follow rule #3 (no pay) but then decide on your own to shut
down if P will pay you what benefits he gains from your shutting down and getting rid of the
nuisance
b. this could be important if the court is worried B is exaggerating the extent of his harm
c. this could also prevent moral hazard – really don’t want B to have any incentive to come to
more nuisances!!
6. Offer-Asking differential – if we follow rule 5, P’s wealth (or lack of wealth) affects her ability to
buy or sell right to be free from the nuisance
a. When D is in position to offer $$ to keep operating, P may have been willing to take a certain
amount of $$ to be indifferent to the nuisance (she owns the right!!)
b. BUT if D doesn’t have to shut down and P has no property right, P may not be able to pay
what would have been her $$ price in order to stop the nuisance.
c. Wealth matters!
ii. Permanent damages - may be awarded in lieu of an injunction if the value of the activities sought to be
enjoined is disproportionate to the relatively small damage caused thereby. Future owners then cannot sue
once paid to original owner.
a.
b.
Boomer v. Atlantic Cement co: Ps suffered damages from dirt, smoke, etc. emanating from D’s
cement plant. Although trial crt. found D as a nuisance who did damage to Ps’ properties, the court
failed to issue an injunction to stop D from operating and only awarded P temporary damages. That
crt. reasoned that the damage suffered by Ps was much lower then the value of D’s operations.
Although under NY law contends that is no good reason for refusing injunctions, following this rule
would shut down D. This court holds that permanent damages (an injunction stopping the nuisance or
pay for the value of damage caused by D) is fair b/c Ps are fully recompensed for damaged property
while providing an incentive to D to abate the nuisance.
a. Problems w/ Permanent Damages: Although less litigation costs, it is much harder to
calculate damages for future harms! Also, once permanent damages are paid and future
woners barred from recovery – would D have an incentive to innovate and come up w/ less
harmful processes?
b. Problems With Temporary Damages: Although more litigation would arise, it would be
much easier to calculate damages for every period and also for new owners. Ds would also
have incentives to abate harms w/ new technology etc. if they must pay each period. But
wouldn’t injunctive relief eliminate the need for future payments?
iii. Injunctions: Old View: As long as the harm is serious, then issue the injunction. Modern View: courts are
hesitant to issue an injunction if they think the value of Ds activities is high.
1. (1) Injunction protects other, innocent parties not involved in suit;
2. (2) Injunctions good if D not solvent for perm damages award;
3. (3) Injunction keeps court out of placing $ value on cost of the nuisance.
c. PUBLIC NUSIANCE: NOT FOR THE COURTS -> GO TO THE LEGISLATURE!!
i. A public nuisance is an interference with a right common to the general public. Elements necessary to prove
public nuisance: (1) Interference with a right common to general public. (2) Must injure the public at-large. (3)
Substantial harm required.
1. Individual Rights: Public nuisance claims usually brought through the political process due to the
widespread harm (contact governor mayor etc.). But a private citizen may bring a claim for public
nuisance ONLY if he suffers harm different in kind or significantly greater in degree then the average
plaintiff.
a. Anonymous: D had blocked the King’s highway so P could not get by. P sues for injuries.
Ordinarily a public representative should bring public nuisance claim. But if a private person
suffers an injury different in kind, then the private person may bring an action for those
special losses. The private action is maintainable only for “special”, “peculiar”, or
“disproportionate” harm to the individual plaintiff.
2. Control Over Nuisance Source: A public nuisance is an unreasonable interference with a right
common to the general public. For the interference to be actionable, the defendant must exert a
certain degree of control over its source.
d. PURE ECONOMIC LOSS:
i. Recovery is generally barred when injury/harm from D’s negligence is purely economic, but some exceptions
exist:
1. if D knew or should have known particular consequence to particularly foreseeable plaintiff (i.e. if
there a special relationship between P and D, or particularly foreseeable group like in Carbone)
2. Foreseeable plaintiffs (sets standard, not per se prohibitory rule)
a. You have to know ex ante who is in the identifiable class of plaintiffs is before allowed to
recover
b. Can we limit liability easily or do we fear no end to list of possible plaintiffs?
c. Also P cannot really mitigate their damages as a result of D’s negligence.
3. Community Property/Common Pool Exception - where the econ loss that D causes is to P b/c D
destroys a common resource then courts will allow plaintiffs to enforce the nuisance and seek
damages. We make and exception to the economic loss rule when there are UNOWNED resources.
Berkovitz v. United States FDA officially certifies a drug for sale w/o having seen or used the data that a regulation requires
before certification. As a result P’s infant ingested the polio vaccine, contracted polio and became paralyzed. If government
are required to do something and don’t do it then they are liable but if there is a discretionary function then you’re not liable.
There is no discretion here.
1.
People Express Airlines, Inc. v. Consolidated Rail Corp: D’s freight yard sets on fire and b/c of a chance of explosion,
authorities evacuated the area P’s terminal was w/n the area at EWR and thus their operations were shut down and they suffered
loss of cancelled flights and loss of possible reservations. Crt. holds for P despite the per se rule barring recovery for economic
loss unless physical harm results. Crt states it is a limit on D’s liability, not a complete denial of liability. There are exceptions
for allowing recovery for pure economic loss and they all impose a duty of care on D for the economic losses they proximately
cause to foreseeable plaintiffs or a foreseeable class of plaintiffs.
Robins Dry Dock & Repair v. Flint: P charters a boat that is damaged and needs repair. Someone drops the cracked propeller so
it needs to be replaced. The boat was out of commission for 2 weeks. P sued for lost profits. NO LIABILITY. Loss arose from a
contractual relationship and the dock cannot bear total loss when they don’t own the boat.
** Robins extends the rule to situations in which the negligent act occurs outside of any contractual relationship.
Carbone v. Ursich: Plaintiffs are fishermen on another owner’s boat. Another boat’s negligence damaged their nets so P could
not fish. P sued to recovery money for lost money (unable to fish for 4 days). LIABILITY. Ruling: Ps here are fishermen – they
are special and entitled to the most legal protection possible. The defendants have to be liable for the economic losses of the
fishermen as well as the physical damage to the owner’s equipment.
** rule not extended to crew on a boat -> Henderson v. Arundel Corp. (ship disabled by another’s negligence and out of
commission for 6 weeks)
XIV. DAMAGES
a. Three Forms of Damages:
i. Nominal: damages are a small sum of money awarded to the π for technical invasion of their right, in order to
make judgment a matter of record so that prescriptive rights can be avoided and to cover at least part of the
costs of bringing action.
ii. Compensatory: The sum of money deemed the equivalent of the full loss or harm suffered by the π.
iii. Punitive: The sum of money over and above what will compensate the π fully for the loss suffered. Purpose is
to punish the defendant and make an example of him to others in instances when his conduct is of an
aggravated nature.
b. COMPENSATORY DAMAGES: (π has burden of proof)
i. Personal Injury Overview: π entitled to recover a sum that will fairly and adequately compensate for all
injures that is the result of a defendant’s conduct. Compensatory damages can be divided into two categories
(1) Live victims and (2) dead victims.
1. LIVE VICTIMS: Recoverable Elements
a. Medical Expenses
b. Lost Earnings
c. Pain and Suffering / Lost Enjoyment of Life
d. Property Damage
e. Other economic damages that you can prove in a non-speculative way
ii. General Rule Of Compensatory Damages:
1. P has the burden of proof for compensatory damages.
2. If you have NOT suffered any physical harm – traditional doctrine will kick you out of court but look
at Peoples Express case – chipping away at this.
3. Legal fees NOT recoverable unless there are statutes which interfere with the bright line rule
iii. Pain and Suffering and Loss of Enjoyment of Life
1. Damages for loss of enjoyment of life require that a π be conscious that the enjoyment was lost.
2. Damages for pain and suffering and loss of enjoyment of life should be combined into one
nonpecuniary award. The damages shouldn’t be separated (This is the majority view). Traditional
justiciation for keeping them together is to lower damages.
a. McDougald v. Garber: π had a caesarean section and during surgery suffered oxygen
deprivation which left her severely brain damaged and in coma. D awarded money for loss of
enjoyment of life. D sued saying that π was so severely injured she was incapable of
experiencing loss of enjoyment also that P&S and loss of enjoyment were the same loss. (if
victim is unconscious, aren’t we just punishing D and not compensating P?) Crt. held that,
like pain and suffering damages, one must be aware of loss of enjoyment of life to receive
damages. Also held one damage award for both P&S and loss of life okay.
3. But if we’re focused on deterrence – should the victim get more money when she is conscious rather
then unconscious? Now a P with a less severe injury gets more damages then one who the most harm
is committed against.
4. Ways to calculate Pain and suffering
a. Caps: some courts have put caps on damage awards or states by statute and allow the jury to
decide it. Otherwise, the jury is allowed to come up with a number.
i. Illinois: P&S = 3 x what the economic loss was.
ii. ii. Tort/personal injury claims are inalienable (cannot sell it). This is unlike contract
claims (they are alienable). Inalienability of tort claims (high contingency fees are
also considered buying a tort claim) - one caveat: contingency fees
b. Factors in calculations:
i. Pre-judgment interest: common law says NO, statutes sometimes say YES, you
can get prejudgment interest. Post-judgment interest is common (it doesn’t pay to
stall paying me the damages you owe
ii. taxes: no taxes on compensatory damages (§104). Yes, taxes on punitive damages.
This info is now admissible in court…has an effect on how juries calculate damages
once they know the amount will not be taxed.
iii. inflation and discount rates: Damages are offset to consider how much interest I
would have accrued between injury and trial. Same goes for inflation. But then
discounted to consider that I will invest it and collect interest on the money
iv. different kinds of employment: maternity leave, housewives and the value of
housework
c. Should the amount we award for P&S be capped by how much it would cost to kill
someone? Shouldn’t the value of human life be a cap on the amount of pain and suffering
damages?
i. It is cheaper to kill then to maim
d. “complete offset rule” – set amount for all cases (approximate to negate changes in inflation
rates and interest rates)…stop worrying so much about interest and inflation (it’s all a wash
in the end). States like Alaska have this. See 7th circuit case in textbook for another
example.
iv. Economic Loss: Loss of Earnings and Future Earnings.
1. Procedure: Jury determines the present and future loss of income, including calculating potential
promotions, etc. They also include inflation to future earnings and then subtract the interest they
would receive for that dollar. (Experts are important)
a. Tort awards are not taxable (but this court deducts federal taxes from award b/c there is no
deduction in the tort award). SS is not deducted b/c SS is a “social savings” – if she’s not
putting in by working, she won’t take out later.
2. Duty to mitigate: We require the π to reasonable mitigate and this gives the jury a factor to
determine. The jury may include that factor when calculating damages. However, they consider
dignitary issues.
a. Note: If they can receive medical attention that is reasonable, they should mitigate. But if
against religion, then maybe eggshell skull (thins skull) rule comes in and it is left for the
jury to decide.
3. Collateral Source Rule: At common law, P is entitled to recover out of pocket expenses, even if P
was reimbursed for those losses by a 3rd party (i.e. π has first party insurance health, auto, etc.).
4. Contractual Right to Subrogation: Some courts follow that Δ should pay the full amount to P and
the insurance company should get reimbursed for what it paid out on π’s behalf. That is the way that
they can lower insurance premiums, prevents over-compensation and the Δ pays the full amount to be
deterred.
v. DEAD VICTIMS: Compensation
1. Survival Statues: At CL all your COAs died with you. Legislature stepped in and instituted Survival
Statutes. Now Damages suffered by the deceased before the death are recoverable by the estate. Can
recover for his pain and suffering before he died, medical expenses, loss earnings before he died.
(Instantaneous death may be a bar to recovery)
2. Wrongful Death Statutes: Allow a defined group to recover for the loss they have sustained by
virtue of the decedent’s death. Typically decedent’s spouse and kids are covered. (no loss of
enjoyment recovery b/c P is dead!)
a. Loss of Survivor Statute: allows those who are dependant on decedent for support to recover
for the contribution they would have gotten to their support from Smith (not the whole
stream of wages – subtract D’s consumption expenses))
b. Loss to Estate Statute: people w/ standing to sue would have gotten if Smith was alive – but
here, you don’t have to be a dependant. I.e. you can be an adult child who would have gotten
an inheritance. What decedent would have given these people if he was alive = loss steam of
earnings – what Smith would have spent on himself (personal consumption)
3. Loss of Consortium: survivors can sue for - including sex, moral guidance, and companionship. You
don’t need the WD statute for this to recover. It started out as an action for a spouse when a spouse is
killed or disabled (coma, paralyzed, etc.). Modern litigation is extending to others – children (tending
to be answered yes), unmarried cohabitant, gay partner, etc. The loss of consortium helps step in as a
far as under-deterrence in death cases.
c.
PUNITIVE DAMAGES: (punishment to D)
i. Generally available in intentional tort cases where D intends to do harm. But it doesn’t have to be intentional!
Also available for gross negligence, conscious disregard for harm. Wanton or reckless – something that we see
as egregious! (products liability cases as well when D knew of defect and recklessly disregarded)
ii. Rationale for Punitive Damages
1. Modern View: is that the function is to fill the gap when compensatory damages are too low – why
are they too low?
a. P has a hard time proving the intentional action
b. Wrongful Death
c.
d.
When D gets away!
Some behavior we don’t worry about over-deterring! We’re not too worried that we’re going
to deter axe murders!
e. Maybe we want PD to encourage people to go through a market mechanism when they want
something.
iii. Defendant’s Income and Wealth:
1. Individual: Information about D’s wealth is normally used to formulate punitive damages. Is this
right? Yes, in order for damages to be punitive, must know how much $$ will punish D.
2. Corporations: Do their earnings, market cap, etc. a good determination of what should be punished?
Should juries be instructed to ignore wealth of company? Perhaps! The amount of deterrence you
want is not dependant on the amount of money they have – they will act cost effectively if they are a
profit maximizing organization. No diminishing marginal returns for companies like with individuals.
iv. Reasonableness of Punitive Damages: Who and Why are we Punishing:
1. Checker cab case. (pg. 827) Checker cab driver freaks out and beats up passenger. Company is
liable for damages via vicarious liability. Ct. says punitive damages are not appropriate against the
company for employee’s bad act.
2. Grimshaw v. Ford Motor Co: D made Ford Pinto with a faulty gas tank that would explode upon a
crash. They realized the default in the car but their cost benefit calculation revealed that it was
cheaper for them to just pay damages to dead people. This analysis is given to the jury under the
instruction: Punitive damages are appropriate when D has shown a conscious disregard of human life.
Are we punishing D for using the Hand test? Maybe punish for the low value they put on human life?
3. State Farm Mutual Insurance Co. v. Campbell: Company rolling the dice at the expensive of hurting
its customers, here Campbell. They take the case to trial, assuring P they wouldn’t be liable for any of
their personal assets but they lost and P was liable for their personal assets for all excess Court says
this is a case for PD – Is this true?
ix. Constitutional Review of Punitive Damages: Due Process review of punitive damages to decide whether the
damage judgment are excessive. This case give 3 factors to look at to determine whether the damages are
excessive:
1. (1) Reprehensibility of the conduct (most important factor according to case)
2. (2) Ratio for compensible damages to punitive damages, and
 Under 4:1 is okay but above that makes court uncomfortable.
3. (3) Look at punitive damages imposed in similar civil and criminal cases.
a. BMW of North America v. Gore - π bought new BMW that had been repainted before he
bought it. BMW had a policy of fixing new cars that had less than 3% of total costs in
damages and not informing dealers. Total depreciation was $4000 and there were 1000 other
similar cars. Trial judge reduced jury award of 4,000 compensory and 4 million punitive to 2
million. D appealed. Held: (1) there wasn’t severe harm. The repainting didn’t affect the
safety, performance or appearance of the care. The D wasn’t reckless in his conduct. (2)
Damages are excessive in comparison to the harm the π suffered from the car being
repainted.
XV. SOVERIGN IMMUNITY
a. The Federal Tort Claims Act
i. The federal government can be held liable in tort to the same extent as a private individual for a negligent or
other wrongful act or omission by governmental employees. However, if remedy under this act, then you can
only sue government, not individual actor.
ii. 28 U.S.C. § 2680 Exceptions: However, the FTCA does not allow suit for
1. Assaults, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights (doesn’t include conversion);
a. Excludes acts by law enforcement agents who do searches, seizures and arrests.
Investigative arms.
2. Discretionary acts by government agents (statutes or regulations);
a. Discretion is anything that affects a lot of people and not liable. Anything that doesn’t affect
a lot of people, then they are liable. This gives the government the immunity to make
decisions where they have taken public policy considerations into account
3. Miscarriage or negligent transmission of letters or postal matters;
a. This is to prevent delay in mail delivery. We only want lawsuits for a minority of cases, but
not many.
4. Damages caused by fiscal operations of the treasury or by the regulation of the monetary system;
5. No strict liability for abnormally dangerous activities - FEDERAL GOV’T IS NEVER LIABLE
STRICTLY!
6. Combatant activities of the military or naval forces during time of war. (Can only file against
government, not employees).
a. Doesn’t have to be a declared war.
7.
Claims arising out of a foreign country.
XVI. PRODUCTS LIABILITY
a. Three ways that the law gets involved with product related accidents:
i. (1) Regulation: a lot of federal and state safety regulation. (FDA, Consumer Product Safety Commission)
Regulate various products and their safety.
1. Sometime regulation may preempt common law causes of action.
a. Ex: warnings on Cigarette boxes were inadequate. So the Common Law COA was barred
by the warning.
2. Sometimes they create new COA – any product that doesn’t comply with a regulatory scheme will
amount to a new COA
a. Ex: negligence per se rules! An almost slam dunk for plaintiffs
ii. (2) Tort: The usual choices – do we have only a negligence based system, do we move to a SL standard –
what does that mean?
iii. (3) Contract Law: Often times the contract don’t want to provide much of a remedy to consumers. But even
today, it is an important part of PL.
b.
PRIVITY OF CONTRACT AND PRODUCTS LIABILITY
i. We originally had the privity rule – you could only recover for a defective product if you were the buyer/owner
of the item (transaction costs were high!!)
1. you could sue the store, and the store could sue the manufac.
2. or you could sue the farmer/manufacturer directly if you were directly harmed (you bought the stuff
that made you sick)
MacPherson v. Buick Motor Co.: P rode in one of D’s automobiles and was injured when a defective wheel collapsed
(P did not own the car). The evidence showed the defect could have been discovered with reasonable inspection before
or after assembly of the car. LIABLE. Ruling: The manufacturer has a duty to be vigilant in creating safe products.
Failure to be vigilant will mean liability for harm that results to any/all user (even if not the owner/buyer).
** Cardozo dropped the privity requirement (i.e., have a contractual relationship with D) to bring a cause of action for
injury from defective products
ii. After MacPherson, we started to move away from privity: Cardozo considered whether or not it makes sense
for the injured party to sue the manufacturer directly
1. manufacturer Best Problem Solver – in best position to identify source of problem
2. sue the party most likely to have the most information about the possible source of error and access to
ways to detect the error somewhere along the line.
3. lower transaction costs and increase efficiency but still hold someone liable for P’s harm
c.
CONTRACT INTERVENTION:
i. Used when hard to prove negligence (tort action), π’s sued under warranty theories of contract. It is a kind of
SL (cover’s damage for product and injury).
ii. If a person is hurt by a defective product, then sue under tort law. If the only damage is to product, then sue
only under warranty…except
1. The Other Property Doctrine – other property harmed in the destruction of some other property: if it is
really valuable, you can add a tort claim!
iii. There are two types of warranty:
1. Express Warranty: a seller may expressly warrant that his goods have certain qualities and if they do
not have those qualities, the purchaser (or possibly the affected person) may sue for this breach of
warranty.
2. Implied Warranties of Merchantability (Sale): A merchant of a particular good is held to
automatically warrant that they wee merchantable or fir for the purpose for which such goods are
used.
a. MacCabe v. L.K. Liggett Drug Co: π bought a coffee maker from the Δ, drug store. When
using according to the directions, the coffee maker exploded and burned π. P sued D
(retailer) alleging breach of implied warranty or sale. The π doesn’t sue manufacturer b/c
there wasn’t privity of contract btwn consumer and manufacturer. (Mac Pherson v. Buick
eliminated privity requirement in TORT action but no in CONTRACT action)
b. The law has since dispense with the privity of contract rule and is now codified in the UCC
(pg. 671)
iv. UCC 2-318 - Current Approaches to the Rule of Third Party Beneficiaries of Warranties Express or
Implied: Privity no longer needed. States have incorporated one of two options:
1. Alternative B - seller’s warranty extends to any natural person who may reasonably be expected to
use the goods , consume or be affected by the goods and who is injured in person by breach of the
warranty.
Alternative C (even broader): seller’s warranty whether expressed or implied extends to any person
(i.e. corporations) who may reasonably be expected to use, consume or be affected by the goods and
who is injured by the breach of warranty.
v. Disclaimer Of Warranty: A seller may disclaim a warranty (implied or express) as long as the disclaimer is
conspicuous! BUT a seller may NOT LIMIT the warranties under Alternative B or C! You cannot “limit the
operation of this section”.
1. Why? Suppose seller issues a warranty but limits it to parties in privity in contract with him - the
buyer then resells the product to a 3rd party w/o the warranty. Can’t keep the warranty for yourself but
sell the product to others who don’t know they have no recourse.
2. Personal Injury Disclaimer: You are allowed to disclaim warranties but not when personal injuries
are involved. The UCC is developed from this: it is prima facie unconscionable to disclaim for
personal injury.
vi. Liability Under Implied Warranties: In order for P to prevail, P only must prove…
1. There was an implied warranty that was not effectively disclaimed
2. They are within the SOL
a. Notice requirement eliminated – now hiring a lawyer satisfies requirement.
b. B/c these contract laws for implied warranty are very consumer Ps routinely plead this along
with tort actions! The only time you don’t see it if the accident is outside the SOL.
vii. “Affirmative Defenses” for Warranty Claims:
1. Since affirmative defense do not exist in contract, D’s must recharcterize the standard affirmative
defenses to apply to these actions when a consumer misuses a product:
a. Contributory Negligence = Did D’s breach “proximately” cause their loss? Also was P
outside the scope of implied warranty (by using product stupidly)
b. Assumption of Risk = Mitigation of Harm/Damage
PROBLEMS WITH NEGLIGENCE: The move to Strict Product’s Liability.
i. Leading Case Rule/Traynor - A manufacturer should be absolutely liable when an article that he places on
the market knowing that it has not been inspected is defective and causes injury. Even when no negligence,
public policy demands responsibility be fixed where it will most effectively reduce the hazards to life and
health inherent in defective products that reach market. Traynor argues for SL in these cases – move away
from the negligence world with Res Ipsa overlay!
1. Escola v. Coca Cols Bottling Co. of Fresno: waitress P was placing into the restaurant’s fridge
bottles of Coke. As she put a bottle in the fridge, it exploded causing severe injuries. P alleges that D
is negligent in selling “bottles containing said beverage which on account of excessive pressure of gas
or by reason of some defect in the bottle was dangerous and likely to explode”. Crt. holds it’s in the
public interest to discourage marketing of products having defects that are a menace to the public. If
such products find their way to market it is to the public interest to place responsibility for injury upon
the manufacturer who, even if not negligent in the manufacture of the product, is responsible for its
reaching the market.
a. Rule: injured party not in a position to identify the cause of the defect – this is why strict
liability is appropriate!!!
ii. Traynor’s Arguments for Strict Liability Over Res Ipsa Negligence:
1. SL would be better for purposes of Loss Reduction: Better at inducing care in manufacture of
products.
a. Counter: But wouldn’t we get care under either standard! Cost effective measure under
negligence will happen!
2. Loss Spreading: Manufacturers are better able to spread costs so we should make them pay all the
time.
a. Counter: It proves too much. If this works for products it works for all injuries to business
invitees. It really says, business always looses.
b. Do we need the businesses to bear this loss for these accidents?
c. First party insurance can cover the cost! This would be a much cheaper system!
3. Evidentiary Problem Confronting Plaintiffs: Even when there is negligence, hard for P to prove b/c
they can’t get inside the manufacturing process to know if there was a lack of due care.
a. Do we need SL in this situation? No! Under a RIL standard, simple evidence that the
accident happens may bring liability even when P has no direct proof of negligence. This is
the purpose of RIL! Why isn’t RIL enough?
4. Administrative Costs: Putting aside whether P is cable of proving negligence – there are a lot of
resources expended in proving negligence etc.
a. Counter: Does SL reduce administrative costs? No – there may be more cases (even
meritless ones) b/c if Ps think they’ll win they’ll sue more often.
5. Information Argument: We need SL b/c Consumers are ill informed about the safety risks of
products. Ps are not highly sophisticated and thus are ignorant or not importantly informed. As such,
2.
d.
there is no market penalty for the less safe product – A Lemons Equilibrium - the less safe products
are driving out the safer ones b/c there is no market penalty for risk!
a. Does this justify SL? Is there a counter argument?
b. Even if consumers are ill informed when they buy, there is a market penalty after the fact b/c
after an accident through W.O.M. they will tell how bad the product is.
c. There are outside sources of information on products – consumer reports, seals of approval,
internet reviews, customer testimonials
d. Also, the safer products use their safety reputation as a point of differentiation! I.e. –
Volvos!
Greenman v.Yuba Power Products: Wife buys husband a power saw that can be used as a wood lathe. While using it as
such, a pieces of wood clamped to the machine, flew out and hit him in the face cauing injuries. LIABLE. Crt. held for P
b/c manufacturer SL when article he places on the market, knowing it won’t be inspected for defects causes injury. Law of
warranties NOT a good way to protect people – thus SL comes along but it limited to (1) Product must be used for its
intended use (2) Must be due to a defect, which the P was unaware.
Dawson v. Chrysler Corp: Officer crushed in police cruiser in car accident. P sued for wrongful death –claiming car frame
was poorly designed and led to 2nd impact.
e.
TORT INTERVENTION: STRICT PRODUCT’S LIABILITY
i. Under Restatement § 402A, A Seller of a product is liable strictly liable for injuries caused by the product if
the product is sold in a defective condition that is unreasonably dangerous to the user or customer.
ii. Three different defects:
1. Manufacturer – deviates from standard and consumer expectations – strict
2. Design – three tests: 402(a) consumer expectation (strict), risk-utility (negligence), hybrid (both)
3. Warning (more negligence standard b/c reasonable)
a. Must show causation still.
iii. 2nd Restatement §402a: Special liability of seller of prod for physical harm to user or consumer – Strict
Liability approach
1. 402a(1): seller of defective prod that is unreasonably dangerous to user/consumer or to user’s
property (property separate from defective product) is subject to liability for physical harm to
user/consumer or prop if
a. (a) seller is engaged in the business of selling this product; and
b. (b) product expected to and does reach consumer/user w/out substantial change in condition.
2. 402a(2) this rule applies even though
a. (a) seller exercised all care and wasn’t negligent in sale/prep of prod; (b) user/consumer isn’t
in privity of K w/S.
3. Caveats: 402(a) may not apply to…
a. (1) A product substantially changed before it reaches the consumer
b. (2) Seller of component parts of an assembled product.
iv. Comments of Restatement
1. “Unreasonably dangerous”: prod must be dangerous to extent beyond what contemplated by
ordinary purchaser w/ordinary knowledge about product’s characteristics.
a. Product is defective from the time it leaves the seller’s hands
b. An item may be defective but not unreasonably dangerous – thus it does not apply to this
section (i.e. a backpack that malfunctions)
2. Unavoidably unsafe products: some products which, in the present state of human knowledge are
quite incapable of being made safe for their intended and ordinary use. Especially common in the
field of drugs. If unavoidably unsafe, then not strictly liable.
a. The test is – is this something that is worth having on the market – if there are side effects,
all you have to do is warn them about them.
3. No liability from abnormal handling/consumption; liability if there are abnormal objects in prod, it
is decayed, or container defective.
4. Economic loss rule: tort recovery limited to physical harm (person/property separate from defective
product) not econ loss from defective product that can’t be used but causes no harm.
a. The mainstream view is the idea that when a product only damages itself, we do not call that
property damage in the sense of tort defect. This is economic loss that should be considered
under a warranty consideration. The only danger is to the property itself but not to other
persons or property.
b. If damage only to product, then contract.
c. If damage to other things, then tort.
i. Reasoning: b/c when you buy something, you don’t contract with the idea of
outside damages.
5.
f.
g.
Bystander Recovery: The case for allowing them to recover is at least as strong as for the buyer.
There is no market penalty for injuries to bystanders thus retailers may not have an incentive to
protect them. *** This makes an even stronger case for tort liability.
CHOOSING RIGHT DEFENDANTS
i. “Business of selling”: applies to manufacturer, retailer, wholesaler, restaurateur who sell regularly (not
occasional sellers).
1. Seller - To be a seller, it isn’t necessary that seller be engaged solely in the business of selling such
products. However, rule doesn’t apply to an occasional seller of a product, who is not engaged in that
activity as a part of his business.
2. Used product sellers: no liability for used product sellers. Used dealer doesn’t have the same
channels of communication as the new dealer has with the manufacturer.
a. Rationale: don’t get extra precautions from them b/c they don’t make goods; buyers know
when buying used products not as good as new so pay less; used product market flex and
serves needs of buyers and sellers.
b. Exception: if used prod seller reconditions product or is franchisee of manufacturer, may be
held liable for product defects
ii. Service provider: 402a doesn’t cover service providers (like pharmacist, doctors, contractor, repairer,
installer, etc).
iii. Retailers, wholesalers, and Distributors – Like manufacturers, retailers are held liable for product defects b/c
they are in the business of distributing and selling goods to the public. They are an integral part of the overall
producing and marketing enterprise and should bear costs of injuries from defects. In addition, there may be
no incentive to take the product off of the market if we didn’t hold them liable. They can sue the manuf. for
indemnity.
iv. Coroporate Successor liability: if sale/liquidation of assets, no successor liability over seller’s torts, but if
merger and takeover of business, (also name change) successor is liable.
1. Fraudulent conveyance: if sell company or change name to escape liability then liability follows to
successor.
2. Policy: if liability exceeds assets no one will buy companies out and assets will be wasted.
a. Example: comp X has huge liability so wants to liquidate and sell assets. No one will buy
those assets if they come w/tort liability in excess of their value.
PRODUCT DEFECTS AND APPORACHES
i. Manufacturing Defects – Elements of Strict liability
1. In general, a manufacturing defect is a defective product that doesn’t meet its design specifications.
Proving Manufacturing defect is a PRIMA FACIE CASE FOR NEGLIGENCE!
2. Proof of Manufacturing Defects: π must prove
a. Product was defective
b. At the time it left the defendant’s hands, and
c. Product caused harm. **Causation ALWAYS**
3. Sampling – testing a certain portion of products for defects in the manufacturing process
a. even if the manufacturer is very diligent in testing a percentage of products, they will miss
some defective products.
b. So, by no negligence, the manufacturer will have to pay for some injuries.
ii. Res Ipsa Loquitur and Defective Products: If  has proven that the product hasn’t performed as intended
and excluded all causes not attributable to   fact-finder may, even if particular defect hasn’t been proven,
infer that the accident could only have come from product or packaging.
1. Example: D liable for peanut jar inexplicably crushed in Ps hand even though P can’t eliminate every
single possible other cause of the defect. Welge v Planters Lifesavers
iii. Design Defects: Problem w/ product design from inception, all products of same design share defect. D must
show defect and causation. Manufacturers potential exposure to liability is WAY bigger. The whole product
line is now in question and not just one item. Three Ways of Courts Look at Design Defects:
1. Consumer Expectation/Strict Liability test: Defective if considering its reasonably foreseeable use,
it left the seller’s hands, in an unreasonably dangerous condition not contemplated by the ultimate
consumer.
a. Problems: consumers do not always have adequate info to assess products safety and we
shouldn’t bar recovery in these cases.
2. Risk/Utility Negligence Standard: Design is defective if it was possible to remove the danger
without serious adverse impact on utility and price
a. Can argue contributory negligence and apportionment
3. Hybrid: a product is defective in design if: (1) P proves that the product failed to perform as safely as
an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or
(2) P proves that the product’s design proximately caused injury and the D fails to prove, in light of
the relevant factors, that the benefits of the challenged design outweigh the risk of danger inherent in
h.
such a design. (D has the burden of proof after π proves defect)
a. Jury can consider: gravity of danger posed, likelihood that such danger would occur, the
feasibility of a safer alternative design, the financial costs of an improved design, and
adverse consequences of the new design.
4. Barker v. Lull Engineering: (California): P was injured while using a high-lift loader manufactured
by D. P was a substitute driver using the loader which is designed to be used on a sloped surface.
When he attempted to adjust the fork, he lost control of the loader and jumped out of it whereby he
was hit with falling timber from the fork. P claims the loader was defective b/c no seat belts, no auto
locking device, no separate park gear etc. Crt. holds for P b/c jury instruction given requiring the P to
prove that the loader was ultra hazardous or more dangerous than the average consumer contemplated,
and that the defectiveness of the product must be evaluated in light of the product’s “intended use”
and not “reasonably foreseeable use” were in error.
a. CA pretty much allows P to use any test that you want – CCT, negligence or consumer utility
test. CA courts weigh in favor of allowing recovery for reasonably foreseeable use. This is
along the lines of the mainstream view, which will not limit recovery b/c they believe
consumers will deviate slightly from the intended use of products.
iv. Second Collisions: Auto mobile manufacturer is liable for a defect in design that could have been reasonably
foreseen as causing or enhancing injuries in a collision, that is not patent or obvious to the user and that in fact
leads to or enhances such injuries.
1. Volkswagen of America v. Young P was at a light in his Beetle when hit from behind by a
negligently driven car. In the ensuing “second collision” P was hurled into the rear of the car and
died. P’s estate now sues on a theory of defective design and product not fit for its intended purpose.
Crt. holds for P b/c traditional rules of negligence lead to the conclusion that an auto manufact. is
liable for a defect in design that the manufact. could have reasonably foreseen would cause or enhance
injuries on impact, which is not patent or obvious to the user, and which in fact leads to or enhances
the injuries in an auto collision. Crt. rejects SL b/c no other meaning in the notion of the defect
product design other then to say the manufacturer was negligent. Thus they reject 402A for design
cases.
a. Rationale: holding Man. to negligence standard for defective design doesn’t make
manufacturer insurer of all Ps safety, just means must take care in designing car.
b. Note: accident w/third party not intervening cause b/c it is foreseeable.
c. **Special Relationship** btwn manufacturer and passenger.
v. State of art Defense: manufacturer liable if alternative safer design when product entered stream of
commerce. If no safer design, then it is a factor in considering liability. Hold D liable for information that was
foreseeable or that they should have known at the time but not for stuff where they could not know about.
1. Minority rule: some few states (but not the RTT) would use the level of knowledge at the time that
the suit was brought, even if that’s a level of knowledge manufacturers didn’t have at the time. The
argument is that this gives an impetus to improvement; but this doesn’t seem so—just provides
incentive not to research.
DUTY TO WARN: NEGLIGENCE
i. General Duty to Warn Rule: Manufacturer must provide reasonable warnings to all person’s who foreseeably
will come in contact with and consequently be endangered by the product.
a. When to Warn? RST: Anytime you have a product that is dangerous to a degree not of
ordinary knowledge to the consumer. Anything about the product outside the consumer
expectation.
2. Prescription Drug Manufacturers: Ordinarily a drug manufacturer is only required to warn the
doctor (“learned intermediary”) rather than the patient (π would only be able to sue doctor)
Exceptions - However, when manufacturer knows that doctor is not capable of satisfying the duty to
warn, they must do so.
a. “learned intermediaries” – example: doctor is intermediary between the medical device
company and the patient.
b. Shift toward info being directed at the customer directly, the over-disclosure is even more
important (drugs marketed directly to the customer)
3. Pharmacist: no duty to warn but liable for negligent packaging and prep of drugs.
4.
5.
Obvious Hazards: If a danger is obvious, will reduce ’s duty to warn b/c people will be less
endangered by the product. (jury question); but if a warning could easily be given, there may still be a
duty according to some courts.
Adequacy of warning: A reasonable warning must convey a fair indication of the nature of the
dangers involved, and warns with the degree of intensity demanded by the nature of the risk. (e.g.
6.
stroke instead of blood clot) A warning may be found to be inadequate if it was unduly delayed,
reluctant in tone, or lacking in sense of urgency. This is a jury question.
a. Location or display - warning should be conspicuous and not in fine print.
Causation requirement: π must show that if a proper warning had been given, the injury would
have been avoided.
Failure to warn:
SBPS + net loss (Seller is uniquely situated; innovation): when the seller knows about the termites, he is the SBPS and
has the power to prevent further loss to the buyer when he purchases the house.
(UNI – uniquely situated, net loss, innovation). Can go against moral intuition.
** Levmore is not focusing on the costs involved (don’t want duplicate costs, but the costs for these examples are all the
same. Anyone can get a termite inspector).
For Torts product liability: have to show the product was defective or negligently designed or did not have warnings.
* failure to disclose warning: reduce overall cost of product when both parties (buyer and seller) are both
aware of the risks
* peanut allergy example: who provides the information? Is it cheaper to let the buyer (guest in your home) say
what could hurt them? Is it cheaper for the seller (host) to try out feeding someone the food and see if they die?
- much more efficient for allergic guest to announce his allergies than let the host figure out from a list
of potential allergens or trying out foods and seeing what happens (inefficient and potentially
harmful)
* common knowledge: seller not uniquely situated if risk is common knowledge.
Is overwarning is good strategy when it comes to food allergies?
Perhaps, to avoid liability when unsure of what is in the food, especially if we punish nondisclosure and misdisclosure!
- worry about overdisclosure leading to people eventually thinking it’s all crap and ignore the information
(warning become meaningless if too abundant – people just stop paying attention)
As more and more people are allergic to peanuts, the market will eventually shift to making more
peanut free items!