I. The Role of the Courtsa. MADISONIAN Democratic Values and Political Questions

i. Viewed government as its own scienceii. Governments failed when they fail to understand the role of Factions

1. If you don’t acknowledge factions, they’ll explode and take over2. Wanted to IMPLODE factions and direct them to a central source

a. Congress / Federal Governmentiii. Tripartite government

1. Encouraging factions to occur w/in the system2. Mixing constituencies and tenures gave different branches different

interests, encouraging “fighting” for their constituents’ interestsiv. Judicial deference

1. Greatest danger to Madisonian system – a. when judges want to be “both president and congress”

B. FORMALISM i. Fierce notion of judicial neutrality and deference

1. Courts should not engage in determining what law should be rather than what it is or says

ii. Common Law’s accommodation of the civil code1. A series of canons2. Meant to avoid bias in a judge

a. Actually promoted bias because judge just chose which canon to apply

C. LEGAL REALISM i. Karl Llewellyn, Felix S. Cohen, Arthur Linton Corbin, Jerome Frank, etc.

ii. Rejection of formalism1. Acceptance of the indeterminacy of the law2. Spawned all other lines of thought3. Allowed judges to explain why they chose that line of case4. Allowed for an appeals process

d. Legisprudence and the Public Choice Schooli. Hart and Sachs :

1. Adherence to legal procedures to achieve “institutional settlement” through “regularized and peaceable methods of discussion”

2. Make sure branches of government do nothing more than they’re supposed to

ii. A.C. Pigou – The economics of Welfare1. Market failures2. Not achieving the social result that we want / not fast enough

a. Doesn’t value some things well enoughiii. Public Choice School – opposed to Hart and Sachs

1. Mancur Olson, Jr. – The Logic of Collective Action: Public Goods and the Theory of Groups

a. Small groups have more power than large groups in our govt.i. E.g. lobbyists

b. More concentrated interest than large groupsc. Large groups have “free riders”d. Small groups have fewer free riders and more money

2. Frank Easterbrook and Dealisma. No way to know there’s particular gaps in legislation

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b. Should treat legislation like a marketi. People go to congress to buy and sell legislation

3. Jonathan Macey and Public Regarding Purposea. Against Easterbrookb. When faced w/ a gap in legislation, follow the public regarding the

purpose of the lawi. Take congress at its word

II. Schools of ThoughtA. LOCKEAN / NEO-LOCKEAN

i. John Locke and the labor theory1. “Every man has a property in his own person” and is entitled to whatever he

“removes out of the state of nature” and “mixes his labor with” – 2nd Treatise of Govt.

a. Importance of property as a right derived from God state of nature as a pre-law society where everything was in common

2. Huge impact on the framersii. Locke’s Proviso

1. “Enough and as good left in common for others John Rawls2. Principle of spoilage3. Violates god’s design

B. UTILITARIANISM i. John Stewart Mills – “Utilitarianism” 1861

ii. At this time, it was a market-driven system1. Contractarian period2. Bentham questioned the social injustice caused by contractarian nature of

lawa. “The greatest good for the greatest number” – “Principles of Morals

and Legislation”b. amounted to an introduction of social welfare programs / institutions

C. CRITICAL LEGAL STUDIES i. Relies on the Frankfurt school and engages in deconstruction of legal principles

1. Found that most tort law came out of ecclesiastic lawa. Church created its own courts when King John started taxing themb. Started dealing w/ secular issues that touched the courts

2. Discovered by Duncan Kennedya. Questioning why property had such exclusivity / absolute aspect to

itii. Class-based critique

1. Wealth distribution and class justice2. Argued to recognize unequal bargaining power and to gravitate towards

those results that bring greater economic justice to societyiii. Critique: judges and courts should not engage actively in redistribution of wealth

D. FEMINISM i. Gender based critique

1. Challenging false neutrality of the lawa. Susan Estridge – “Real Rape”

ii. Patriarchal Bias1. What “silent bias” was written into the laws by middle-aged white guys?

iii. Jurispathic v. Jurisgenerative (borrowed from Robert Cover’s “Nomos and Narrative”)

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1. Adversarial process:a. Trial by combat knights acted as surrogates for the accusedb. Jurispathic trial results in “legal death” where the loser “dies” in

court2. Should develop Jurisgenerative System

a. Allow judges to achieve a compromisei. Seen in nuisance claims…

iv. Leslie Bender: No Duty to Rescue RuleE. HEGEL

i. Hegel’s Philosophy of Rightii. Property as an extension of personality (“property becomes an expression of the

will, a part of personality…”1. Turley doesn’t talk about master-slave dialectic, but maybe throw that in if

there’s timeiii. Can never really define property in isolation

1. Personality theory of understanding objects / property to individuals2. Place value of object not on the value of the thing itself, but in the pain and

suffering caused or the emotional distress caused by depriving the π of that property / object

F. SOCIO-BIOLOGICAL i. John Beckstrom (“Sociobiology and the Law”)

g. LAW AND ECONOMICS : Judge Richard Posneri. Focuses on wealth maximization

ii. Efficiency Definitions1. Pareto – change in law or policy that benefits at least 1 w/o making any

worsea. Efficiency: Pareto Superior / Superiority

i. Produces at least one winner and no losersii. E.g. creation of traffic laws

b. Optimalityi. When you can’t make another adjustment w/o producing at

least one ‘loser’ii. What you aim for, but probably won’t get there

c. Cite pareto efficiency when trying to strike down something like environmental legislation

2. Kaldor-Hicks Efficiencya. Just produce more winners than losersb. utilitarian

iii. Cost Externalization / Internalization1. Externalities: your impact on others

a. Creates an asymmetrical spike in the RISK associated w/ the activityi. Often where torts comes in

iv. Coase Theorem – Unsocial Costs1. Coase 1

a. Most legal disputes concern conflicting uses of common resourcesb. Decision is driven by the market, not the lawc. Law simply forces a distribution of wealth to one party rather than

the otherd. Party w/ advantage has Legal Entitlement support of the law

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e. Can sell the entitlement if NOT using it is worth more than the entitlement itself

f. Only exists in a perfect market w/o Transactional Cost2. Coase 2

a. Transactional Costs i. costs incurred in making economic exchanges or deals

b. Transactional costs can flip the result of Coase 1c. Result in inefficient industries continuing their activities / taking

advantage of the market3. Transactional Costs

a. Often hard to quantify4. Informational Costs

a. Does a person fully understand the risk involved and is there enough information available to inform people of the risk?

III. Ch. 1 – Intentional TortsA. PHYSICAL HARMS

I. TRESPASS TO PERSON, LAND, AND CHATTELS1. Intent

a. Classic Intent Definedi. Meaning to cause offense

ii. With substantial certainty that a particular effect will occur1. Garratt v. Dailey – kid pulls out lady’s chair

b. Unlawful / rule break – intended to break rule that prohibited conduct

i. Vosburg v. Putney (Wis. 1891) – kid kicks kid under desk

ii. Hackbart case – football player’s career-ending injuryc. Transferred intent

i. Necessary intent w/ respect to cause offense to person A will apply to action against any other person who happens to be injured

1. Talmage v. Smith - ∆ threw stick and hit wrong person

2. Trespass to Real Propertya. Intentionally enter π’s land w/o permissionb. Remains on π’s land w/o right to be there even if entered lawfullyc. ∆ puts an object on π’s land w/o permissiond. Intent merely to be where you were, not to “trespass”

i. Dougherty v. Stepp (N.C. 1835) – trespass by surveyors3. Trespass to Chattels

a. Intentional interference w/ a person’s use or possession of a chatteli. Intel Corp. v. Hamidi (Cal. 2003) – [not] Trespass to

serverb. Loss of possession must be recovered even if possession is

returned unharmed - JoyridingII. CONVERSION

1. Intentional interference w/ π’s possession or ownership of property that is so substantial that ∆ shold be required to pay the property’s full value

2. Intent: intention to take the property

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a. Mistaken ownership does not excuse conversioni. Poggi v. Scott (Cal. 1914) – Wine Barrels

3. Moore v. Regents of U. Cal. (Cal. 1990) – genetic material 4. Ways to commit:

a. Acquiring possession – bona fide purchaser still a converterb. Transfer to 3rd person – e.g. deliver a package to the wrong pesonc. Withholding good – refusing to return property to ownerd. Destruction – or fundamentally alter goods

B. EMOTIONAL AND DIGNITARY HARMS – THE INTENTIONAL TORTS I. ASSAULT §21

1. Apprehension of imminent harmful or offensive touching (battery)a. Intent

i. Intent to put π in apprehension of a batteryii. Actually putting π in apprehension of the battery

2. Mere words do not constitute assault3. Need to be aware of the threatened contact4. No recovery for threat to 3rd persons5. Recovery possible for conditional threats

II. OFFENSIVE BATTERY §181. Intentional infliction of a harmful or offensive bodily contact

a. Intent to touch (subjective)b. Intended touch is harmful or offensive (objective)c. Actual touch (direct or indirect)d. Actual touch was harmful or offensive (objective and subjective)

2. π need not be aware of the contact at the time it occursa. Alcorn v. Mitchell (Ill. 1872) – spitting in court

III. FALSE IMPRISONMENT1. Intentional infliction of a confinement

a. Intent to confineb. ∆ knew w/ substantial certainty that π would be confined

2. Future threat is not false imprisonment – if you leave, I’ll kill you later3. Imminent threat IS false imprisonment – if you leave, I’ll kill your sister

(now)4. “Three walls do not a prison make”

a. Confinement – held w/in certain limits, not prevention from entering certain places

b. Bird v. Jones (K.B. 1845) – trying to cross a highway5. Basis for determining false imprisonment:

a. Time – how long person was heldb. Place – where person was heldc. Manner – how person was held

i. Coblyn v. Kennedy’s, Inc (Mass. 1971) – Old man’s ascot

IV. IIED – EXTREME AND OUTRAGEOUS CONDUCT §461. Intentional or reckless infliction, by extreme and outrageous conduct, of

severe emotional or mental distress, even in the absence of physical harma. Intent:

i. Desire to cause emotional distressii. Substantial certainty

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iii. Reckless disregard of high probability b. e.g. mishandling of corpses

2. Wilkinson v. Downton (Q.B. 1897) – joke of husband’s injuriesC. DEFENSES

I. CONSENSUAL DEFENSES1. Scope of Defense

a. Implied in fact – objective standardi. Lack of Capacity – infant, unconscious, intoxicated

ii. Exceeding scope of consent: 1. Mohr v. Williams – Ear surgery on wrong ear –

not implied consent – “personal autonomy…”2. Sports injury cases – Hackbart case – where injury

is caused outside scope of rules of sportb. Implied as a matter of law:

i. π is unable to give consentii. immediate action is necessary to save π’s life or health

iii. no indication the π would not consent if ableiv. reasonable person would consent in the circumstances

c. Express Consent – “go ahead, hit me”d. Emergency Rulee. Substituted judgment

i. Hudson v. Craft (Cal. 1949) – Illegal Prize fighting of minor – cannot consent

f. Athletic injuries in formal / informal settingsII. INSANITY

1. McGuire v. Almy (Mass. 1937) – patient hits nurse – intent to cause harm

III. SELF-DEFENSE1. Reasonable force to prevent any threatened harmful or offensive bodily

contact and any threatened confinement or imprisonmenta. Reasonably believes there’s a real threatb. Cannot retaliate

i. “Defense cloaked in a privilege” – only wearable at time of offense

c. Cannot escalate the threat – must be the same degree of forced. No duty to retreat unless it’s to use deadly force (w/ exceptions)

i. “Make my day”ii. Castle doctrine – allowing lethal force when someone

invades your domicile – 1. as opposed to common law – “lay gentle hands upon”

2. Mistaken self-defense a. Courvoisier v. Raymond (Colo. 1896) – accidentally shoots

cop3. Defense of 3rd parties

IV. DEFENSE OF PROPERTY1. May use reasonable force to defend property, both land and chattels2. Deadly force can never be used

a. Bird v. Holbrook (C.P. 1825) – spring gunsV. RECAPTURE OF CHATTELS

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1. Must be exercised promptly, in “hot pursuit”2. “Not w/ a strong hand, but w/ a peaceable and easy fashion” – no deadly

force3. privilege exists only if property was wrongfully taken4. Kirby v. Foster (R.I. 1891) – pocketed $ for “help”

VI. NECESSITY1. Public Necessity

a. Necessary to prevent great harm to the community or to many poeple

b. General Average Contribution – during time of emergency, all treated as joint owners of property in question

c. Govt. may use or destroy property of another for public necessityi. Not required to compensate, but US Govt. does (generally)

2. Private Necessity – a. Owner may not resist where there is actual necessity

i. Ploof v. Putnam (Vt. 1908) – Docking of a sloopb. π must pay for damages caused (in contrast to self defense or public

necessity) i. Vincent v. Lake Erie Trans. Co. (Minn. 1910) –

steamship damages dock during stormIV. Ch. 2 – Strict Liability and Negligence

A. FORMATIVE CASES i. Basis for liability in tort

1. The Thorns Case (1466) – chops down tree that lands on neighbor’s bush

ii. Weaver v. Ward (K.B. 1616) – soldier accidentally shoots anotheriii. Inevitable Accident

1. Smith v. Stone (K.B. 1647) – carried onto property by anotherB. THE FORMS OF ACTION

I. TRESPASS AND CASE1. Scott v. Shepherd (K.B. 1773) – throwing of lighted Squib

II. BREAKDOWN OF THE FORMSC. STRICT LIABILITY AND NEGLIGENCE IN LAST HALF OF 19 TH C.

i. Development of Negligence in USA1. Brown v. Kendall (Mass. 1850) – dog owner accidentally hits other

ownerii. Non-Natural Use of land in England

1. Fletcher v. Rylands (Ex. 1866) – Blackburn, J. – strict liability for water leakage

iii. Brown v. Collins (N.H. 1873) – horse knocks lamp – no strict liabilityiv. Powell v. Fall (Q.B. 1880) – train spark ignites rick

D. STRICT LIABILITY AND NEGLIGENCE IN MODERN TIMES i. Bolton v. Stone (A.C. 1951) – cricket ball (overturning previous strict liability)

1. Crit view: “strong class accent” establishing favorable standard for cricketii. Hammontree v. Jenner (Cal. App. 1971) – epileptic seizure causes crash into

bike shopV. Ch. 3 – The Negligence Issue – “The Ultimate Jury Area”

A. 4 ELEMENTS OF NEGLIGENCE

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i. Duty – requiring ∆ to conduct himself according to certain standard to avoid risk to others

ii. Breach – failure of ∆ to conform his conduct to this standardiii. Causation – sufficiently close causal link between ∆’s act of negligence and harm

suffered by π1. Cause in fact2. Proximate causation (legal causation)

iv. Damages – actual damage suffered, unlike some intentional torts (trespass)B. REASONABLE PERSON

i. Objective standard of “a reasonable person of ordinary prudence”1. Vaughan v. Menlove (C.P. 1837) – “stupid farmer’s” spontaneous

combustion destroys neighbor’s propertyII. VARIABLE STANDARDS: BEGINNERS AND EXPERTS / ADULT AND CHILD ACTIVITIES

1. Robert v. Ring (Minn. 1919) – old guy hits kid when he’s going 5 m.p.h.2. Daniels v. Evans (N.H. 1966) – kid on motorcycle – standard of care

iii. Breunig v. American Family Insurance Co. – (Wis. 1970) – woman is not Batman

iv. Physical Characteristics: what a reasonable blind man should be able to do1. Fletcher v. City of Aberdeen (Wash. 1959) – Blind man falls in hole

in streetC. CALCULUS OF RISK

i. “Snapshot of the scene right before the accident” 1. what should the person have done/not done in this case2. helpful w/ considerations of Calibresi, Cheapest Cost Avoider

ii. Blyth v. Birmingham Water Works (Ex. 1856) – fire plugs un-plug - ∆s not liable

III. REASONABLENESS OF A GIVEN RISK1. Magnitude of risk2. Value of importance of Principal Object3. The collateral object4. Utility of the risk5. Necessity of the risk

a. Eckert v. Long Island R.R. (N.Y. 1871) – saving kid on tracksiv. Osborne v. Montgomery (Wis. 1931) – opening door hits kid on bikeV. ACTIVITY LEVEL V. CARE LEVEL

1. Cooley v. Public Service Co (N.H. 1940) – noise in phone causes phobia ≠ liability

VI. HAND FORMULA – Burden < L (injury/liability) x Probability (assuming risk neutrality rather than risk averse / risk taker)

1. United States v. Carroll Towing Co. (2d Cir. 1947) – bargee should have been there

VII. EMERGENCY RULE – whether standard of reasonableness rises1. Lyons v. Midnight Sun Transportation Services, Inc (Ak. 1996)

– van hit truck pulling out of parking lotVIII. COMMON CARRIERS

1. Andrews v. United Airlines (9th Cir. 1994) – common carrier needs more than an announcement

D. CUSTOM

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I. RELATIONSHIP BETWEEN CUSTOM AND NEGLIGENCE – local custom will not justify negligence

1. Mayhew v. Sullivan Mining Co. (Me. 1884) – guy falls down new hole in mine w/o guardrail

2. The T.J. Hooper (2d Cir. 1932) – needed radios to hear about storm warning

II. MEDICAL MALPRACTICE / INFORMED CONSENT1. Must act w/ level of skill and learning “commonly possessed by members

of the profession in good standing”2. Duty of Disclosure informed Consent

a. Requiring adequate disclosure of risksb. Lama v. Borras (1st Cir. 1994) – malpractice in failure to use

conservative treatment for complex laminectomyc. Canterbury v. Spence (D.C. Cir. 1972) – shouldn’t have voided

unattended…III. LOCALITY RULE

1. Not as strong w/ modern medical standards (national standards)2. Might have greater significance in an area w/o highest technology available

E. STATUTES AND REGULATIONS I. NEGLIGENCE PER SE

1. When a safety statute has a sufficiently close application to the facts at hand, an unexcused violation of that statute conclusively establishes that ∆ was negligent

a. Martin v. Herzog (N.Y. 1920) – driving w/o headlights = negligence per se

2. Protection against Particular Harma. Gorris v. Scott – suicidal sheep – protected harm was for injuries

(contagion) to employees, not safety of the sheep3. Class of Protected Persons

a. Brown v. Shyne (N.Y. 1926) – unlicensed chiropractor = not per se negligent

ii. Dram Shop Statutesiii. Uhr v. East Greenbush Cent. Sch. Dist. (N.Y. 1999) – scoliosis test – no

liabilityF. JUDGE AND JURY

i. Judge decides Lawii. Jury decides Facts

G. PROOF OF NEGLIGENCE I. PROBLEMS OF PROOF

1. Burden of production – π must show:a. what ∆ didb. how dangerous it wasc. ∆’s opportunity to discern dangerd. availability of safer alternativese. ∆’s opportunity to know about safer alternatives

2. Burden of Persuasion – prove to jury that negligence was “More probable than not” - NOT “beyond a reasonable doubt” as is the case w/ crimes

II. RES IPSA LOQUITUR §328D.1. Requirements :

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a. No direct evidence of ∆’s conductb. Harm seldom occurs w/o negligencec. Under exclusive control of ∆d. Not due to π’s conducte. Evidence more available to ∆ (e.g. Ybarra)

2. Allows an inference that ∆ was probably negligent w/o precise showing of how ∆ behaved

3. Only used when there is a “paucity of evidence” – woman killed by flying horse that was struck by a nearby train

4. Can be rebutted by ∆ - reversal of burden of proof5. Res Ipsa is NOT cause-in-fact

a. Proves negligence, not causationi. Need separate causation analysis

ii. In most res ipsa, there will be causation, but it’s not automatic

6. Within the Exclusive control of the ∆a. Byrne v. Boadle (Ex. 1863) – barrel rolls out of factory

7. Non-Delagable Dutiesa. Colmenares Vivas v. Sun Alliance Insurance Co. (1st Cir.

1986) – escalator malfunction at airport – non-delagable duty8. Exclusive Control

a. McGonigal v. Gearhart Industries Inc (5th Cir. 1986) – premature grenade

9. Conditional Res Ipsa Loquitur in malpracticea. Cases of mixed law and factb. Acknowledge res ipsa only if they find X preliminary factc. Caused by ∆’s conduct or natural events?d. If former, was ∆ negligent?

i. Ybarra v. Spangard (Cal. 1944) – combating conspiracy of silence…

VI. Ch. 4 – Plaintiff’s ConductA. CONTRIBUTORY NEGLIGENCE

I. BASIC DOCTRINE1. A π who is negligent and whose negligence contributes proximately to his

injuries is totally barred from recovery2. Held to same reasonable person standard as the ∆3. Not applicable to intentional torts

II. LAST CLEAR CHANCE1. Limits contributory negligence

a. If ∆ had an opportunity to prevent the harm and the π did not have such an opportunity, the existence of this opportunity wipes out the effect of π’s contributory negligence

B. HELPLESS PERILi. ∆ must have actual knowledge or should have known of π’s

helpless state at time of the accient1. clearly sees an unconscious person in the middle of

the road while drivingC. INATTENTIVE PLAINTIFFS

i. Must show that ∆s actually knew that the πs were inattentive1. E.g. seeing someone wandering drunk down the road

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B. COMPARATIVE NEGLIGENCE – 46 STATESi. Modified / Partial Comparative Negligence – 50% Rule

1. Any πs that were more than 50% at fault would be barred from recovery as though contributory negligence applied

2. Otherwise, if less than 50%, damages reduced by a proportion equal to the ratio by his contributory negligence

ii. Pure Comparative Negligence – about 13 states1. Only 13 states2. Asks only a jury to assign relative liability or responsibility between ∆ and

πC. ASSUMPTION OF RISK

i. When π voluntarily consents to take her chances that harm will occur1. Complete bar from recovery at common law

ii. Implied1. Inferred by π’s conduct when no explicit agreement takes place

a. Requirements:i. Knowledge of the risk in question

1. Must be actually knownii. Voluntarily consented to bear risk

iii. Primary Assumption1. When ∆ is never under any duty to π in the circumstnace

a. e.g. foul balls at a baseball gameiv. Secondary Assumption

1. ∆ would ordinarily have a duty to π, but π’s assumption of risk causes duty to dissipate

a. when π asks ∆ for a ride to the hospital when π knows ∆’s car has bad brakes

2. Eliminated in most states that adopt comparative negligence doctrinev. Express

1. E.g. signing a release to go bungee jumpingD. VICARIOUS LIABILITY

I. RESPONDEAT SUPERIOR1. If an employee commits a tort during the scope of his employment, his

employer will be liable (jointly with the employee)2. Does not apply to independent contractors3. SCOPE OF EMPLOYMENT:

a. Trips from home to work are NOT w/in the scopeb. Courts are split on trips from work to homec. Frolic and detour

i. If the deviation was reasonably foreseeable, employer could be liable

ii. Not liable if it is a significant departure from employee’s duties

d. Forbidden actsi. Liable if it is within scope of employment

1. Gun store clerk loads gun even though prohibited from doing so, it goes off and injures customer employer still liable

ii. Intentional Torts employer liable

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1. UNLESS it’s committed through personal motives with no intent to further ∆’s business

VII. Ch. 5 – Joint, Several, Liabilitya. Generally

i. If more than one person is a proximate cause of π’s harm, and the harm is indivisible, under the traditional approach each ∆ is liable for the entire harm joint and several

ii. Modern trend cuts back on this in jurisdictions w/ comparative negligenceb. Hybrids:

i. Hybrid J&S w/ Reallocation1. If one ∆ turns out to be “judgment proof” the court will reallocate the

damages to the other parties (including the π) in proportion to their comparative fault

ii. Hybrid J&S based on threshold percentage1. Tortfeasors who bear more than a certain threshold e.g. 50%, remains

jointly-and-severally liable2. Those less than that threshold are merely severally liable

iii. Hybrid based on type of damages1. Remains J&S for economic damages, but not for non-economic damages

c. Pure Several Liability – 16 statesi. A ∆, regardless of the nature of the case, is liable only for her share of total

responsibilityd. Indivisible v. Divisible harms

i. Only applies to where π’s harm is indivisible1. Not capable of being apportioned between or among the ∆s

ii. Rules on Apportionment1. Concert of Action

a. If two ∆s acted in concert, each will be liable for injuries caused by the other

b. No apportionment 2. Successive Injuries

a. Able to apportion harm when there are successive injuries separated by substantial periods of time

b. There may be overlappingi. ∆1 can be liable for both his and ∆2’s actions, but ∆2 might

be only liable for his own actions1. e.g. pollution – private nuisance cases

3. Indivisible Harmsa. When harms are indivisible, each co-∆ is each jointly and severally

liable for the entire harm in a jurisdiction following tradition approach to J&S liability

i. Deathii. fire

VIII. Ch. 6 – CausationA. CAUSE IN FACT § 26 (RS3RD) – “BUT FOR CAUSATION”

i. Generally: π must show that ∆’s conduct was the “cause in fact” of π’s injuryii. “But For” test: had ∆ not acted negligently, π’s injuries would not have resulted

1. New York Central R.R. v. Grimstad (2d Cir. 1920) – decedent overboard; no life ring – no certainty that he would have been saved otherwise…

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2. Zuchowicz v. United States (2d Cir. 1998) – erroneous prescription caused death

III. EXPERT WITNESSES – Daubter, Frye, and the “Gatekeeper” Function of the Judge1. General Electric Co. v. Joiner (US 1997) – expert testimony denied

IV. LOST CHANCE DOCTRINE1. Herskovits v. Group Health Cooperative (Wash. 1983) – reducing

chance of survival (lost chance)V. JOINT CAUSATION / CONCURRENT CAUSE

1. When two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm w/o the other each is deemed to be the cause in fact

a. Kingston v. Chicago & N.W. Ry. (Wis. 1927) – knowledge of start of only one fire is enough for liability

VI. ALTERNATIVE LIABILITY / MULTIPLE FAULT1. That each of two or more ∆s was at fault, but only one could have caused

the injury2. Burden shifts to each ∆ to show that the other caused the harm

a. Summers v. Tice (Cal. 1948) – can’t tell who shot πVII. MARKET SHARE LIABILITY – FUNGIBLE PRODUCTS

1. If π cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, court will require each of the ∆s to pay that %age of π’s injuries which that ∆’s sales bore to the total market sales of that type of product

a. Skipworth v. Lead Industries Assoc. (Pa. 1997) – no market share liability

b. Sindell v. Abbott Laboratories (Cal. 1980) –DES as fungible product – market share liability imposed

B. PROXIMATE CAUSE (HEREIN OF DUTY) I. GENERALLY

1. Policy determination that a ∆ should not automatically be liable for all the consequences, no matter how improbable or far-reaching, of his act

2. Whether there should be liability even though the ∆ did cause the injurya. Addressed AFTER a finding that ∆ was unreasonable and act of

unreasonableness caused the injuryII. DETERMINING LIABILITY

1. Reasonable Person defined2. Calculus of Risk determined3. Factual causality4. Proximate causality – question of foreseeability / is society prepared to hold

∆ liable for the injury?a. Unforeseeable Harm

i. Polemis – liberal ruleii. Wagon Mound – narrow rule

b. Unforseeable Plaintiffsi. Cardozo – narrow

ii. Adrews – liberal III. THE JURISDICTIONS – POLEMIS, PALSGRAFF, AND WAGON MOUND:

1. In Re Polemis Jurisdictions:a. Liberal in terms of proximate causation – snapshot doesn’t apply

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b. Test: i. act of negligence COULD cause damage

ii. ∆’s negligcen caused that damageiii. negligence was DIRECT CAUSE of the injury or accident

(as opposed to foreseeable cause)2. Wagon Mound Jurisdictions

a. Rejected Polemisi. Direct result/cause is too vague

b. Foreseeability of ∆ in consequences of his actionsc. When you can see a “change in harm”, the question is whether the

change in harm was the actual foreseeable danger by the initial act of the ∆

d. Juries can still find that it was in fact foreseeable3. Palsgraff Jurisdictions

a. Cardozo, J.i. Zone of Danger unforeseeable πs

1. Can’t be responsible for something that remote2. Need to cut off liability at end of the line of the zone

of danger3.

b. Andrews, J.i. More like Polemis

ii. Duty is imposed to protect society from unnecessary danger, not to protect A, B, or C alone.

IV. PHYSICAL INJURY1. ORDINARY AND NATURAL RESULT OF ∆’S NEGLIGENCE

a. Liable for ordinary and natural result of ∆’s negligenceb. Liable for proximate consequences, but not “remote” consequences

i. Ryan v. New York Central R.R. (N.Y. 1866) – spread of fire from train spark – only 1st house beyond epicenter is recoverable

ii. Different rule when talking about Forest Fires unlimited chain of causation where State tries to recover…

2. COINCIDENCE AND CAUSATIONa. No such things as “but for” legal causation – can’t foresee a

coincidencei. Berry v. Sugar Notch Borough (Pa. 1899) – tree falls

on car in storm3. DELIBERATE INTERVENTION BY 3RD PARTIES - §448, 449 RST

A. GENERAL RULE:i. Criminal act or intentional tortious act cuts off liability by

third partiesii. Superseding intervening cause

b. If those tortious acts are foreseeable, it’s up to the juryi. Brower v. New York Central & H.R.R. (N.J. 1918) –

recover of stolen barrels after crash4. RESCUE DOCTRINE – “DANGER INVITES RESCUE”

a. Peril and rescue count as one “substance”, so continuity is not broken in chain of causation

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b. Foreseeability: whether or not society thinks it’s foreseeable enough for someone to want to try to rescue

c. “Polaroid Approach” – snapshot of the scene and see whether or not it looks like negligence if it’s a rescue, you have to assume that there is someone to be rescued who might not be in the picture

i. Wagner v. International Ry. (N.Y. 1921) – conductor invited π to look for his cousin

5. FORESEEABILITY OF HARM / HARM W/IN RISK / RISK TO CLASS §29 RS3a. ∆ is liable for only those consequences which were reasonably

foreseeable at the time of the actb. also applies to “unforeseeable π”

i. In re Polemis & Furness, Withy & Co. (K.B. 1921) – dropped plank ignites ship

c. Unforeseeable π’s not coveredi. Palsgraf v. Long Island R.R. (N.Y. 1928) – trying to

board moving train w/ fireworksd. Marshall v. Nugent (1st Cir. 1955) – I’m confused by this casee. Wagon Mound No. 1 (A.C. 1961) – oil from Sydney harbor to

π’s wharff. Virden v. Betts and Beer Construction Co (Iowa 2003) –

tripped off ladder, not hit by angle irong. Hebert v. Enos (Mass. App. 2004) – electrified toilet water = too

remote V. EMOTIONAL DISTRESS

1. IMPACT RULEa. Mitchell v. Rochester Railway (N.Y. 1896) – no impact when

horses stop in front of π2. ZONE OF DANGER RULE / FORESEEABILITY OF EMOTIONAL DISTRESS

a. Dulieu v. White & Sons (K.B. 1901) – accompany of physical injury unnecessary when child born premature from near-miss of horses

b. Dillon v. Legg (Cal. 1968) – bystanders / zone of dangerVI. RESPONSES TO ∆’S ACTIONS – (∆ LIABLE FOR ALL OF THESE)

1. Escape2. Rescue3. Aggravation of injury by medical treatment

IX. Ch. 7 – Affirmative DutiesA. DUTY TO RESCUE

i. Affirmative Duty to Rescue – Good Samaritan Laws1. Buch v. Amory Manufacturing Co (N.H. 1897) – kid w/o English in

mill – loses hand2. Hurley v. Eddingfield (Ind. 1901) – physician didn’t want to come to

helpii. Misfeasance v. Nonfeasnace – Duty to Warn

1. Montgomery v. National Convoy & Trucking Co. (S.C.) – trucks on ice should have put a warning

B. DUTIES OF OWNERS AND OCCUPIERS i. Classes of Visitors – Invitees; w/ leave and license of occupier; trespassers

ii. No duty to a trespasser

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1. Exceptions:a. Constant trespass on a limited area

i. Must use reasonable care to make that area safe or at least warn of dnagers

b. Discovered Trespassers i. knowledge that particular person is trespassing, owner is

under duty of reasonable care for trespasser’s safetyc. Children

i. Children are likely trespassersii. Owner knows conditions are dangerous to children

iii. Injured child didn’t know of dangeriv. Owner’s benefit slight compared to risk to childrenv. Owner fails to use reasonable care to eliminate danger

iii. Licensees 1. Person who has the owner’s consent to be on the property, but who does not

have a business purpose for being therea. Mainly “Social guests”

2. No duty to inspect for unknown dangers3. Duty to Warn if knowledge of danger exists

iv. Invitees 1. Persons invited to conduct business; members of public for purposes of

which the land is held open to the publica. If use of premises goes beyond business or public purposes, person

changes from invitee to licensee2. Duties to invitees:

a. Duty of reasonable careb. Duty of reasonable inspection to find hidden dangersc. Must take affirmative action to remedy a dangerous condition

v. Attractive Nuisance1. Robert Addie & Sons (Collieries), Ltd. v. Dumbreck (A.C. 358)

– kid loses hand in endless wire haulage systemvi. Rejection of Categories

1. Apply general single “reasonable person” standard of liability (Cal., N.Y., and others)

a. Rowland v. Christian (Cal. 1968) – broken bathroom fixture – balancing of negligence factors

i. Tenant – treated as ownerii. Lessor: generally NOT liable

C. GRATUITOUS UNDERTAKINGS D. SPECIAL RELATIONSHIPS

1. Common carrier – passengers2. Innkeeper – guests3. Business – invitees4. Employer – employees5. School – students6. Landlord – Tenants7. Custodian – those in its custody (jail and hospital)

ii. Weirum v. RKO General Inc. (Cal. 1975) – DJ contest caused car accidentiii. Contract v. Special Relationship – Landlord / Tenant

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1. Kline v. 1500 Mass. Ave. Apt. Corp (D.C. Cir. 1970) – assault in the hallway

iv. Doctor-Patient Privilege 1. Tarasoff v. Regents of U. of Cal (Cal. 1976) – psychiatrist’s duty to

warn victime. No general duty to actf. Duty of Assistance:

i. if π’s injury is due to ∆’s conduct or an instrument under ∆’s controlg. Duty to Warn:

i. if ∆’s conduct caused unsafe conditionsh. Assumption of Duty:

i. once ∆ voluntarily begins rendering assistance to π, ∆ must proceed w/ reasonable care

X. Ch. 8 – Traditional Strict LiabilityA. ANIMALS

I. TRESPASSING ANIMALS1. Owners of livestock are strictly liable for property damage caused by them

if they trespass on another’s landII. NON-TRESPASS LIABILITY: ANIMALS FERAE NATURAE & ANIMUS REVERTENDI /

NOTICE OF VICIOUS TENDENCIES1. Domesticated Animals:

a. No strict liability unless owner knows or has reason to know of the animal’s dangerous characteristics

i. Gehrts v. Batteen (S.D. 2001) – didn’t think dog in back of truck was a biter

2. Wild Animalsa. Strict liability for keeping wild animals as long as dangerous

propensity is typical of the species in questionB. ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES §519, 520

i. Determining “abnormally dangerousness”1. High degree of risk of some harm to others2. Harm likely to be serious3. Risk cannot be eliminated by exercise of reasonable care – most important4. Activity is not common5. Activity is not appropriate for the place where it’s carried out6. Danger outweighs activity’s value to the community

ii. Limitations:1. Scope of Risk

a. Only liable for damages from the kind of risk that made activity dangerous

i. Abnormally sensitive πs – not recoverable2. Contributory negligence – NOT A DEFENSE3. Assumption of Risk – IS a defense

a. If π knowingly and voluntarily subjects herself to the dangeriii. Common Usage

1. Spano v. Perini Corp. (N.Y. 1969) – garage destroyed by tunnel blasting in brooklyn

iv. Strict Liability in the Alternative

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1. Indiana Harbor Belt R.R. v. American Cyanamid Co. (7th Cir. 1990) – leak could have been because of negligence

2. Siegler v. Kuhlman (Wash. 1972) – strict liability for gasoline tankers on highway

C. NUISANCE I. GENERALLY:

1. Type of injury which π has sustained2. Injury: interference w/ π’s use or enjoyment of his land3. May be (1) intentional; (2) negligent; (3) abnormally dangerous activity or

other conduct giving rise to strict liabilityII. PRIVATE NUISANCE

1. NUISANCE GENERALLYa. Unreasonable interference w/ π’s use and enjoyment of his land

i. Must have interest in landii. Interference w/ use

iii. No general strict liabilityiv. Defenses:

1. Contributory negligence2. Assumption of the risk

a. “Coming to the nuisance” – no longer absolute defense

b. Vogel v. Grant-Lafayette Electric Cooperative (Wis. 1996) – stray voltage cause crazy cows

2. LIVE AND LET LIVE RULE / RECIPROCAL HARMS a. Michalson v. Nutting (Mass. 1931) – neighbor’s roots mess up

π’s sewer pipes3. EASEMENT OF LIGHT

a. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five Inc (Fla. App. 1959) – no legal right to the free flow of light; can’t sue for casting a shadow

4. EXTRA-SENSITIVE πS / THIN SKULL RULE (N/A TO NUISANCE) a. Rogers v. Elliot (Mass. 1888) – church bell causes seizures

5. COMING TO THE NUISANCEa. Ensign v. Walls (Mich. 1848) – breeding St. Bernards for a long

time does not mean they can forever6. PERMANENT V. TEMPORARY DAMAGES

a. Boomer v. Atlantic Cement Co (N.Y. 1970) – particulate contamination enjoined until permanent damages paid

III. PUBLIC NUISANCE1. DEFINITION:

a. Interference w/ right common to the general publici. Health hazards, improper businesses (unlicensed bars),

obstruction of public streets2. Factors:

a. Type of neighborhoodb. Frequency / durationc. Degree of damaged. Social value of the activity

i. Substantial harm required

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ii. Must injure public at largee. Need not be a crime

3. DISPROPORTIONATE HARMS TO Π / REQUIREMENT OF A PARTICULAR DAMAGE

a. A private citizen may recover for his own damages stemming from public nuisance ONLY if he has sustained damage that is different in kind, not just degree, from that suffered by the public generally.

i. Magnitude of financial harm is usually irrelevantii. Not necessarily imposed when seeking an injunction (rather

than damages)b. Anonymous (1536) – stopping of the King’s highway bothers πc. 532 Madison Ave Gourmet Foods, Inc v. Finlandia

Center, Inc (NY 2001) – no duty to protect entire neighborhood against purely economic loss

4. CAUSAL LINKS IN PUBLIC NUISANCEa. Camden County Bd. of Chosen Freeholders v. Beretta,

USA Corp (3d Cir. 2001) – handgun manufacturers and local crimeXI. CH. 9 – PRODUCTS LIABILITY

a. Liability of a seller of a tangible item which, b/c of a defect, causes injury to its purchaser, user, or sometimes bystanders

i. Negligence, warranty, or strict liabilityii. MacPherson v. Buick Motor Co. (NY 1916) – wheel made of defective wood

Cardozo, J.1. If the nature of a thing is such that it is reasonably certain to place life and

limb in peril when negligently made, it is then a thing of dangera. May sometimes be a question for the jury

2. Its nature gives warning of the consequences to be expected3. Manufacturer is under a duty to make it carefully to both purchaser and

3rd partiesa. Fail in duty of inspection

4. Injury to 3rd parties other than the purchaser is to be foreseen not merely as a possibility but as an almost inevitable result

5. ∆ not absolved from duty of inspection just because it bought the wheels from a reputable manufacturer

iii. Escola v. Coca Cola Bottling Co. of Fresno (Cal. 1944)Traynor, J.

1. “it should now be recognized that a manufacturer incurs an absolute [strict] liability when an article that he has placed on the market, knowing that it is to be used w/o inspection, proves to have a defect that causes injury to human beings”

2. Public policy requires that the buyer be insured at the sellers expense3. Follows w/o proof of negligence from the implied warranty of safety

attending the salea. Implied Warranty of Merchantability

i. Henningsen v. Bloomfield Motors Inc4. Liability should be limited in terms of the safety of the product in normal

and proper use b. Negligence

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i. Ordinary negligence principles apply where personal injury from carelessly manufactured product

1. One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence

a. Strict Liability for negligent manufacturingii. Manufacturers, Retailers, Bailors

c. Warrantyi. Breach of warranty for goods which are not as they are contracted to be

ii. Express Warranties1. Expressly represent that goods have certain qualities

a. If not, sure for breach2. Strict liability

iii. Implied Warranty1. Existence of warranty as to the quality of goods2. Implied from the fact that seller has offered goods for sale3. Merchantability

a. Goods must be fit for ordinary purposes for which such goods are used

b. Seller must be a merchanti. Does not apply to “casual sellers”

4. Manufacturer’s warranty extends to remote puchasesa. Any member of household of purchases, any foreseeable user or

bystanderd. Strict Liability

i. Best claim to bring unless1. Pure economic loss better to sue for breach of warranty2. Statute of limitations runs sooner on S/L than warranty claim

ii. Proving:1. Manufacture or sale by ∆2. Existence of defect

a. Evidence that the product was redesigned to make it safer doesn’t count

b. Toxic Torts: epidemiological evidence of defectiveness Agent Orange cases

3. Causationa. π must show that the product and its defective aspects were the

cause in fact AND the proximate cause of the injuriesi. Toxic Tort: epidemiological causation

ii. General Causation:1. Court may infer specific causation if proof of general

causation is strong when coupled w/ evidence of exposure

4. Defect existed in the hands of the ∆a. Res Ipsa test:

i. Once π shows that the product didn’t behave in usual way and manufacturere doesn’t show that 3rd party tampered w/ it, satisfies “defect in hands of the ∆”

ii.e. Strict Product Liability

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i. Seller of a product is liable w/o fault for personal injuries caused by product if product sold in defective condition

1. Liable even if ∆ seller used all possible reasonable acer2. Regardless of privity

a. Applies to any person w/in distributive chain who is in the business of selling products

ii. Economic Loss Rule:1. Casa Clara Condo Ass’n Inc. v. Charley Toppino & Sons Inc

(Fla 1993)a. Economic Loss rule prohibits tort recovery when a product damages

itself, causing economic loss, but does not cause personal injury or damage to any property other than itself

b. “Disappointed economic expectations”i. Protected by contract law, not torts

f. Proper ∆si. §420(a)

ii. Cafazzo v. Central Medical Health Services, Inc (Pa. 1995)1. Provision of medical services is regarded as qualitatively different from the

sale of products g. Types of Defects:

i. Manufacturing1. One product that deviated from intended design2. Winterbottom v. Wright3. Speller v. Sears4. MacPherson v. Buick5. Escola v. Coca Cola

ii. Design1. All products suffer from the same defective design, making them

unreasonably dangerous2. Negligence Predominates

a. Even though the claim is for strict liabilityb. When foreseeable risk of harm posed by product could have been

avoided by reasonable alternative design and omission of alternative design liable

3. Π must show:a. Reasonable alternative design

i. Cost and utility of alt. design, compared to cost and utility of design

4. Types of claimsa. Structural defects

i. Choice of materialsii. E.g. Titanic

b. Lack of Safety Featuresi. Could have been installed w/ little expense makes it

defective not to have it1. State of the Art defense:

a. ∆ can argue other products also lack the safety feature

b. BUT, this is not dispositive automaticallyc. Foreseeable / Unforeseeable misuse

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i. Need to design to guard against foreseeable misuse1. .e.g. the saw blade case

d. Regulatory Compliance does not block liability automaticallyi. Unless it’s there’s a preemptive statute

5. Campo v. Scofield6. Volkswagen v. Young7. Linegar v. Armour8. Halliday v. Sturn

iii. Warning1. Manufacturer neglected to give warning of dangers in product2. Unknowable Dangers:

a. If danger from product design was unknowable at time of manufacture it’s an unforeseeable risk

3. Can’t warn away a design defect4. ∆ must still give warning of non-obvious risk of personal injury5. Learned Intermediary

a. Drug manufacturers need to instruct physicians how to warn patients6. Risk-Utility Basis:

a. Foreseeable risk of harm imposed by product could have been reduced or avoided by reasonable instruction or warnings

i. Omission renders product unsafe7. Post-Sale duty to warn / duty to monitor

a. When manufacturer learns of risk, must give warning to public / consumers

b. Some cts. have ruled that there’s an affirmative duty to “keep abreast of the field by monitoring performance and safety of products after sale”

8. MacDonald v. Ortho9. Vassallo v. Baxter10. Hood v. Ryobi America

iv. Open and Obvious1. Manufacture defect: Can still recover if it is obvious2. Design Defect:: obviousness is a factor, but doesn’t automatically bar

recoverya. Whether design’s benefits outweigh its dangers considering

alternative designsi. If not, π can recover even though danger is obvious

3. Warning: if obvious, failure to warn failsh. Plaintiff’s Conduct

i. Daly v. General Motorsii. Failure to discover risk NO comparative / contributory negligence

iii. Knowing assumption of risk form of comparative negligence1. If π decidd to use the product knowing the risk, to the extent that it was

unreasonable, that could constitute contrib./compar negligencei. Restatements

i. 2nd: 402(a) - looked at problem from the eyes of the consumer1. Seller is engaged in selling the product;2. Expected to and does reach the use or consumer w/o substantial change

a. Exception: foreseeable misusei. E.g. removing safety devices

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3. Applies to everyone w/in the stream of commerce4. NOT applicable to a service

a. Product:i. Physical item

b. Service: i. Paying for somebody’s skills

ii. 3rd: PL1. switched to look at rule form manufacturer’s standpoint

j. Federal Preemptioni. Constitution Article VI, § 2

ii. Geier v American Honda

XII. DEFAMATIONa. To establish prima facie case, π must show:

i. Defamatory statement false and defamatory statementii. Publication communicating of the statement to person other than the π

iii. Fault at least negligence (sometimes more)iv. Special Harm money or actionability of statement despite non-existence of

special harmb. Communication

i. Harm to reputation1. If the statement had been believed, it would injure the π’s rep.

ii. Defamatory if any one of interpretations which reasonable person might make would tend to injure π’s rep and π shows that at least one of recipients did in fact make that interpretation

iii. Statement was reasonably interpreted by at least one recipient iv. Intent is irrelevant

1. Even if ∆ behaved non-negligently and intended to refer to someone else, π can still sue

v. Groups:1. Can only recover if the group is relatively small2. Neiman Marcus case

vi. Reference need not be by name if reasonably understood to be referring to πc. Truth as a defense

i. ∆ has burden of proving truthii. Matters of public interest

1. Π must bear burden of proving falsity if ∆ isa. Media organizationb. Statement involves matter of public interest

d. Opinioni. Pure opinion can never be defamatory

ii. Implied facts1. If opinion implies truth of undisclosed facts, statement treated as

defamatory2. Dominick Dunn case

e. Slanderi. Oral statements

ii. Must show π suffered pecuniary harmf. Slander / Defamation Per se

i. No requirement for proving special harm23

1. Crime2. Loathsome venereal disease3. Moral Turpitude promiscuity, adultery4. Impugning someone’s business or profession

g. Libeli. All printed matter

ii. Embodied in physical formiii. Broadcast on TV or radio

1. Usually treated as libel rather than slandera. Written scriptb. Can be transcribed

iv. No proof of special harm requiredv. Matters of Public Concern / Public figures / Public Officials

1. NYT v. Sullivana. Requirement of actual malice

2. newsworthinessvi. Private concern:

1. Presumed damages may be allowed w/o showing actual maliceXIII. PRIVACY

a. Invasion of privacy – 4 distinct tortsi. Misappropriation of Identity

1. If name or picture used by ∆ for his own financial benefit w/o permissionii. Intrusion on π’s solitude

1. Solitude intruded upon and this intrusion would be highly offensive to a reasonable person

2. Must be a private placeiii. Publicity of Private Life

1. If ∆ h as publicized the details of π’s private life and effect is highly offensive to reasonable person

a. Not of legitimate public concernb. Not newsworthy

i. Public Officials / Figures1. Most of their private life is going to be newsworthy

iv. False Light1. If π is placed in a false light and false light would be highly offensive to a

reasonable persona. Actual malice

i. Only can recover for false light when π can show that the ∆ knew the portrayal was false or acted w/ reckless disregard for the truth of it

As π – frontload duty analysis more questions of law than factsAs ∆ - load up factual questions

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