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Torts: Fennell and Miles, Fall-Winter 08-09

TORTS: The Adventure Begins

General First, ID issue. THEN

1. Will A prevail against B?i. How is A injured? What is the invasion of the legally protected interest?

Intent?ii. Review your checklist (claims/defenses)

2. Deploy the doctrinei. Get the elements of the claim or defense rightii. “statute was designed to protect the P against the type of injury

suffered…” iii. Bridge to 3.

3. Apply facts4. Balance the counterarguments, argue policy

- Keep in mind that information will not always be provided address what facts would be necessary to make conclusions

- Stipulate what the defendant should have done differently

Coase Theorem: if two parties have an understanding, regardless of the rule, the resources will be reallocated. Negotiations will occur to allow people to gain the legal right to do something, assuming there are no transaction costs which would prevent negotiations from occurring.

- See example of tradable emissions limits.Contracting in Torts: how can you contract out of negligence? Would the two parties have had a meeting of minds? If so, what would have been decided?

INTENTIONAL TORTS:

1) Prima Facie case – Plaintiff must first assume burden, followed by Defendant.a. Plaintiff’s burden of establishing:

i. Act – what factually happened? ii. Intent – not necessarily to do harm; can be done in good faith.

iii. Causation – To tie together how act resulted in harm.iv. Injury – depends on tort (ie, assault = imminent apprehension of harmful

contact, trespass = boundary crossing, trespass to chattel = harm to that chattel, conversion = exercise of dominion and control)

b. Defendant’s burden:i. Consent:

1. Consent based on plaintiff’s behavior (FACT):


a. Actual Express Consent – When P communicates to the D a willingness to submit to D’s conduct.

b. Apparent/ Implied Consent – Implied by P’s conduct.i. O’Brien v. Cunard Steamship Co – Holding out arm in line for

vaccinations implies consent.2. Consent Implied by Law – Allowed if action is necessary to save

plaintiff’s life or some other cardinal interest in person or property.a. Plaintiff is unconscious or otherwise unable to consider the

matter; ORb. An immediate decision is necessary; ORc. There is no reason to believe that the plaintiff would withhold

consent if able to do so; ORd. ANDe. A reasonable person in the plaintiff’s position would consent.

3. WHEN NOT A DEFENSE:a. Acts in excess of consent given

i. Mohr v. Williams – Doctor operates on left ear instead of right.

b. Fraudi. Consent given ineffective if procured by fraud.

c. Incapacity – if P is minor, drunk, mentally incompetent.d. Criminal Acts:

i. Majority View:1. If criminal statute is designed to protect a

plaintiff’s well-being, then consent is not effective.

2. Hudson v. Craft – Anti-boxing statute, plaintiff is protected class of people consent not effective.

a. HOWEVER, minority rule holds that consent would be effective (Restatements).

ii. Self-defense/defense of others1. NONDEADLY FORCE – conditions

a. D must reasonably believe that P was about to inflict imminent contact.

i. Courvosier v. Raymond – Even though he shot someone not a rioter, it was still reasonable to believe that officer was going to assault P.

b. D must use only means that appeared reasonably necessary to avoid or prevent threatened contact.


i. D is liable for the any force used in EXCESS of what was reasonably necessary.

1. P has right to self-defend against any excessive force.

c. THIRD PARTIES:i. If D unintentionally injures a third party while

reasonably attempting to defend himself, only liable if he was negligent towards that third party.

d. RETREAT:i. Generally no duty to retreat.

ii. UNLESSiii. D recognizes that P is not intentionally creating the risk.iv. If D recognizes that P has mistaken D’s identiy.

2. DEADLY FORCE:a. D must reasonably believe that P was about to inflict imminent

DEATH OR SERIOUS BODILY HARM.b. Duty to retreat?

i. Majority no duty when threatened with deadly force.ii. Minority Duty to retreat except if in own home, or if

retreating would endanger third party.3. Only use when plaintiff is the offender!4. Still liable for negligence.5. Force used must be proportional to the force being inflicted.

a. Don’t bring a gun to a knife-fight.iii. Defense of Third Persons:

1. WHO – Anyone endangered, even if complete strange.2. MISTAKE IN INTERVENING?

a. Third person was privileged to defend himself.b. Amount of force was reasonable.c. D’s intervention was NECESSARY.

iv. Defense of property1. You are allowed to use as much force as you would if, in fact, you were

there.a. INTRUSTION MUST NOT BE PRIVILEGED – no police officer.b. D must reasonably believe force is necessary.c. D must demand, prior to use of force, that P desist.

2. Mechanical devise?a. ELEMENTS:

i. ONLY IF reasonable and necessary or customary.ii. Adequate warning is necessary.


1. Bird v. Holbrook – “he who sets spring guns, without giving notice, is guilty of an inhuman act.”

b. If deadly Only allowed if such act would have been allowed by you if you were there.

v. Recapture of chattels1. ELEMENTS:

a. D must have immediate right to possession.b. D must demand return of the chattel and have demand be

ignored.c. P must have:

i. Forcibly or fraudulently taken the chattel.1. Kirby v. Foster – D’s case fails because he

handed over the money willingly.ii. Have no claim of right to it.

1. Kirby – P had sincere belief in right to money, so D fails.

d. Fresh pursuit:i. D must be reasonably diligent in discovering loss.

ii. Following discovery, D must have been reasonably diligent in effort to retake chattel.

vi. Necessity1. Public :

a. Completely privileged to enter land or interfere with chattels if reasonably appears necessary to avert public disaster.

b. NOT LIABLE FOR ANY DAMAGE.c. Can use force if property owner resists.

2. Private:a. Privileged to enter land or interefere with chattels if entry is or

reasonably appears to be :i. necessary to protect

1. Often there must not be reasonable alternative courses of action.

ii. ANY PERSON from DEATH OR BODILY HARM; iii. or to PROTECT CHATTLES OR LAND from DESTRUCTION.

1. Reasonable means that harm that is intended to prevent should not be less than harm being done by intrusion.

b. Supercedes owner’s privilege to exclude trespassers.i. Ploof v. Putnam – force used to expel trespasser is

wrongful on part of landowner, and thus liable to entrant for harm in denying or impeding entry.


c. Entrant is liable for any damage that occurs as a result of their entry

i. Vincent v. Lake Erie Transportation Co. Boat moors to dock, storm waves knock the boat into the dock, damaging it.

d. WHY NECESSARY?i. Defense against REAL PROPERTY violations, where

damage done is not necessary for cause of action.ii. Coase Theorum NO TIME TO BARGAIN!

vii. [Insanity] – NOT usually a valid defense.1. McGuire v. Almy – Found that insanity did nothing to alter defendant’s

intent to strike.a. POLICY –Liability makes more watchful those in charge of

defendants.i. Wealthy insane should bear the burden for those

harmed.2. Can undermine an argument of intent.

SPECIFIC INTENTIONAL TORTS:1) BATTERY:

a. PRIMA FACIE CASE:i. Act by Defendant

1. Not unconscious.2. Nor reflex actions.

ii. Intent1. EITHER2. Desire to do the offensive touching (Vosburg v. Putney – he wanted to

make contact with his foot).3. Or believed offensive result was substantially certain from his act

(Garratt – where the kid pulled the seat out from grandma).iii. Harmful or Offensive Touching

1. If it injuries, disfigures, impairs or causes pain to party.2. “offensive” if it would offend a reasonable person’s sense of personal

dignity.iv. Causation

1. Offensive touching must be caused by D’s act or some force that act sets in motion.

a. Satisfied if D’s conduct “directly or indirectly” results in the injury.

2) TRESPASS TO LANDa. ACT – volitional movement by D causing intrusion on another’s land.b. INTENT – Intent to do act that results in intrusion.


i. Does not matter if he thinks he’s the owner.1. Dougherty v. Stepp – D thought he owned land he entered; found liable.

ii. Only intent to complete physical act, not the intent to cause injury.1. Cleveland Park Club v. Perry – boy puts ball in a suction thing in pool; it

damages the filtration system.c. RESULTS – intrusion upon person’s lands.d. INTANGIBLE TRESPASS Only liable if P able to prove physical damage to property

caused by INTENTIONAL intangible transmission. 3) TRESPASS TO CHATTELS:

a. ACT – Dispossession of or damage to chattels of another.i. D must be deprived of use of chattel for a significant amount of time.

1. Intel Corporation v. Hamidi – Sending mass e-mail through system did not impair its functioning enough for lawful users to be deprived of use.

ii. ORiii. Chattel must be damaged.

1. Intel Corporation v. Hamidi – trespass of computer system did not impair functioning of that system = no liability.

b. INTENT – Intended to deal with chattel as he did.4) CONVERSION:

a. ACT:i. D asserts control over chattel or land as if he were the owner.

1. Poggi v. Scott – D sells P’s wine kegs, even though in D’s possession; liable for “exercising an unjustifiable and unwarranted dominion and control over property.”

ii. Results in Lossb. INTENT:

i. Dealing with the goods in the role of an owner.c. RESULT:

i. Serious dispossession:1. Destruction.2. Sale of chattels.3. Refusing to surrender on demand.

d. NATURE OF GOODS:i. Plaintiff must have possession or is entitled to immediate possession.

1. Moore v. Regents of the University of California – Man’s removed spleen is used to develop serum; no right of possession no reasonable expectation to get spleen back.

5) ASSAULT:a. ACT:

i. Volitional act by D to create immediate apprehension of imminent harm in the P.

ii. NOT WORDS.


1. Tuberville v. Savage—“if it were not assize-time, I would not take such language from you”)

b. INTENT: i. To inflict harmful or offensive touching.

ii. To put plaintiff in apprehension of harmful or offensive touching.1. I de S. and Wife v. W. de S. Banging hatchet against door, then strikes

out at her, but DOES NOT TOUCH HER.2. Tuberville v. Savage – Man states specifically that he would NOT HURT

plaintiff, despite putting hand on sword NO INTENTION TO MAKE CONTACT OF ANY KIND.

6) MISREPRESENTATION:a. FRAUD:

i. PRIMA FACIE CASE:1. Misrepresentation by defendant.

a. AFFIRMATIVE REPRESENTATION: i. Any representation that would have influenced a

reasonable person in the plaintiff’s position in this type of business.

1. Pasley v. Freeman Telling P that third-party had good credit, when he didn’t is actionable when that results in an injury.

2. EXCEPTION Puffing up! When party tries to “talk up” their business, no reasonable man should take them at their word (especially if ability to examine information)

a. Vulcan Metals Co. v. Simmons Manufacturing Co. Puffing up not viewed as actionable fraud.

ii. Representation may be oral, written or by act of conduct (turning back mileage on car you are selling)

b. FRAUDULENT CONCEALMENT:i. Acceptable except where:

1. Bill of sale or transaction is marked “as is”2. Plaintiff is charged with some knowledge or

notice of the facts concealed.3. Swinton v. Whitinsville Savings Bank

Termites! No liability for failure to disclose this, but there might have been if they covered up the termite markings!

c. FAILURE TO DISCLOSE:i. GENERAL RULE Defendant not under any duty to

disclose facts.


1. Swinton v. Whittinsville Savings Bank Not required to disclose the fact that there were termites in the house (plaintiff’s right and failure to inspection?)

2. EXCEPTIONS:a. Fiduciary Relationship if P and D in

special fiduciary relationship with each-toher

b. Half-Truth If D makes a half-truth.c. New Info D must disclose when he

has made a statement he believed was true, but then learns it’s fault.

2. Scientera. Defendant must KNOW OF THE FALSITY OF HIS INFORMATION!

3. Intent to induce plaintiff’s reliance.a. D must intend to induce the plaintiff’s reliance.

4. Causation – actual reliancea. It must be shown that the misrpresenation played a

SUBSTANTIAL PART in inducing the plaintiff to act as he did (ACTUAL RELIANCE).

i. Laidlaw v. Organ Did misrepresentation IMPOSE ON THE SELLER? IF so, actionable, even though no duty to disclose!

b. PROXIMATE CAUSATION! Harm cannot be too far removed!i. Laborer’s Local 17 Health and Benefit Fund v. Phillip

Morris Injury was direct as to smokers, but not to health care fund, and injuries to health insurance fund are too indirect in that it was contingent on harm to third parties.

5. Justifiable reliancea. Plaintiff’s reliance must be reasonably foreseeable to the

defendant.i. Edgington v. Fitzmaurice A reasonable donor would

rely on representations by D as to where the money would be going, and that should have been reasonably foreseeable to anyone.

b. Type of representation?i. Representations of Fact

1. Unconditional reliance on material misrepresentations of fact are ALWAYS JUSTIFIED .


a. Edgington v. Fitzmaurice Representations of defendant’s state of mind and intentions are representations of fact.

b. EXCEPTION Where facts are OBVIOUSLY FALSE.

i. Puffing!2. No duty to investigate!

ii. Representations of Opinion1. Not justified in relying on misrepresentations of

opinion, value or quality UNLESS:a. D has superior knowledge not available

to plaintiffi. Puff versus misrepresentation?

b. D owes fiduciary duty to P.c. D and P are affiliated or specially

related.d. D offers P advice on some transaction P

wants to take with a third party.6. Damages

a. Proof of ECONOMIC DAMAGES MUST BE SHOWN!b. NEGLIGENT MISREPRESENTATION

i. Only exists where there is privity of contract or such a relationship that is essentially as if there were privity of contract (Ultramares v. Touche).

ii. Cause of action limited to “members of a limited group of persons for whose benefit and guifance the information is supplied, provided that there is reliance on that information in that transaction or in a substantially similar transaction.” (Restatement (Second) of Torts)

iii. PRIMA FACIE CASE:1. Misrepresentation by defendant

a. Must be in a business setting, and negligence by one in the business of supplying information for the guidance of others in a business transaction.

2. Negligence toward particular group.a. DEFENDANT MUST HAVE COMNTEMPLATED THE RELIANCE OF

A PARTICULAR PARTY:i. Either privity of contract between defendant and

plaintiff.ii. Relationship approaching privity (where you are

weighing beans on the same dock as the party buying the beans Glanzer v. SHepard).


iii. If they knew that their client would pass information onto a SPECIFIC individual or group Ultramares – Where they did not know who was going to get the information.

3. Cause in fact – actual reliance4. Justifiable reliance5. Proximate Cause6. Damages

NEGLIGENCE:1) WHAT PLAINTIFF MUST SHOW:

a. Duty – legally recognized relationship between the parties.b. Standard of Care – required level of expected conduct.c. Breach of duty – failure to meet standard of care.d. Cause-in-Fact – D’s breach of duty must have but-for caused plaintiff’s injury.e. Proximate Cause – No policy reasons to relieve D from liability.f. Damages – P suffered cognizable injury.

2) The Reasonable Person:a. Each person owes a duty to behave as a reasonable person would do under the same or

similar circumstances.i. Brown v. Kendall (1850) Guy walking backwards while hitting dogs with stick.

b. Does not depend on what defendant actually, believed but how a “reasonable person of ordinary prudence would have acted.” (quote from case below)

i. Vaughn v. Menlove Liable despite his claims that he was too stupid to know that building a haystack in such a way would result in inferno.

ii. Lyons v. Midnight Sun Emergency. Judged as an ordinary person would act under circumstances, so that means that if there is an emergency situation, how would a reasonable man deal with said situation?

c. Extraordinary circumstances: Reasonable person need not consider extraordinary circumstances in planning his conduct (Blythe v. Birmingham Water Works – freezing pipes)

d. Urgent circumstances: When a person voluntarily exposes himself to a serious injury when saving a life, unless the act is reckless it is not considered negligent (Eckert v. LIRR – deceased rescued a child)

e. Common carrier – owes highest duty of care to passengers (hotels, trains)i. Andrews v. United Airlines If hazard, arline must do all that technology

permits and prudence dictates to eliminate it.f. To whom does the standard apply:

i. Children :


1. Held to the standard of a reasonable child of that actually age, intelligence, and experience.

a. Roberts v. Ring – Child of seven runs out into road and is hit by car Not liable for contributory negligence.

b. Liable if the child caused injury to another cannot take advantage of age as defense.

2. EXCEPTION – No special allowance is made when child is performing dangerous activity normally undertaken only by adults treated up to standards of adults.

a. Daniels v. Evans – “Minor operating a motor vehicle, whether automobile or motorcycle, must be judged by same standard as adult.”

i. Policy consideration B/c dangerous, want to hold everyone doing such action to the same standard.

ii. Adults with Mental Issues:1. Judged by reasonable person standard with no allowance for such

deficiency. TREATED AS A PHYSICAL CAUSE (heart attack, seizure, stroke).

a. Breunig v. American Family Insurance Woman crashed car while under a delusion she was following a light from God. Since recurring, she should have known of her condition and acted appropriately therefore, held to reasonable person standard in operating vehicle.

iii. Adults With Physical Disabilities:1. Held to the standard of a reasonable person with their disability.

a. Fletcher v. City of Aberdeen Blind plaintiff held to the standard of a likewise blind person; city must provide protection for people of that class of reasonable blind person.

2. Intoxicationa. Robinson v. Pioche – “A drunken man is as much entitled to a

safe street, as a sober one, and much more in need of it.” Him being drunk does not negate city’s liability.

b. Restatement 283C Intoxication disregarded by the law.iv. Amateurs v. Professionals

1. Experienced means that “those possessing greater abilty than most are expected to use it.” Standard of reasonable person with their experience level.

3) PROVING NEGLIGENCE:a. Is conduct unreasonable?

i. Blyth v. Birmingham Water Works – “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something


which a prudent and reasonable man would not do.” Exceptional circumstances omitted.

ii. So how is this calculated?

Blythe Foreseeability – ordinary circumstances.Eckert 1) Value of thing being threatened

2)Probability of successful rescue3)Circumstances defining reasonable care includes the emergency

Osborne Specific to what a reasonable person of such a type would do in a like situation.

Hand formula B < PLiii. Balance of benefits and duties:

1. Cooley v. PublicService Co. Two methods, one of which would put people on street at risk versus phone-owners who would have less of a dire risk No liability! Risks v. utility!

iv. THE HAND FORMULA (as featured in United States v. Carroll Towing):1. B (burden) < P (probability) X L (injury) = LIABLE

a. If burden taken upon by defendant is less than the probability of the accident times the extent of the injury.

b. Probability is the CHANCE OF ACCIDENT W/O D TAKING CARE – CHANCE OF ACCIDENT THAT WOULD HAVE HAPPENED REGARDLESS.

2. Proving that D did not take the cost-justified precaution and was therefore unreasonable!

v. Judge and Jury: Two Opposing Views On Where Standard Should be Set1. Holmes – Baltimore and Ohio R.R. v. Goodman – Juries are bad, the

judge should set a clear standard of conduct; “fixed standard of reasonableness.”

2. Cardozo – Pokora v. Wabash Ry. – Standards of prudent conduct should be determined by the juries since they are taken over from the facts of life.

b. Custom:i. May be used as evidence of the standard of care exercised by the Defendants.

ii. P must show that custom is well established.iii. COMPLIANCE WITH CUSTOM:

1. Can be used as evidence of non-negligence.2. Titus v. Bradford Where practice was a “regular part of business;”

Safe according to the “usages, habits and ordinary risks of business.”3. Jury can find entire custom negligent, though, and impose liability!

iv. DEVIATION FROM CUSTOM:


1. Failure to abide by customary safety standards can be evidence of negligence (Mayhew v. Sullivan Mining Co. plaintiff falls through hole cut in his mining platform bc not notified that it was done.)

a. Even if an act is customary, if it is also far below average ordinary care, then it is still negligence.

2. Trimarco v. Klein – Liability when landlord did not put in safety glass in plaintiff’s shower door; evidence admissible because it “reflects the judgment and experience and conduct of many.”

v. T.J. Hooper: Even though there’s no law that tug boats should have radio receiving sets, that doesn’t mean they should wait to act just because acting a particular way is safe in law doesn’t mean it isn’t dangerous in fact.

vi. MEDICAL MALPRACTICE:1. Physicians must meet at least the standard of care existing in the “same

or similar” communities.2. ELEMENTS (according to Lama v. Borras):

a. 1 – basic norms and knowledge of medical care applicable in the case at hand.

i. Kalsbeck v. Westview – “a doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice in similar communities and under like circumstances.”

b. 2 – proof that medical personnel in question failed to follow these norms in treatment.

c. 3 – causal relationship between act or omission by physician and injury suffered.

3. Informed Consent: Doctor must disclose relevant information about benefits and risks inherent in proposed treatment to the patient.

a. EXCEPTIONS:b. Types of info:

i. Remote – What would not impinge a reasonable person’s decision not to undergo treatment or not.

ii. Obvious – What a plaintiff can view from his own standing naturally.

c. Emergency situations – no duty to disclose.d. Therapeutic privilege – If doctor reasonably concludes that full

disclosure would be detrimental to the patient’s well-being.i. Burden of proof on the doctor!

e. Inexperience – A doctor does not have to inform patient of his own inexperience in performing a procedure.

4) VIOLATION OF STATUTES (THREE APPROACHES):a. Negligence per se – If you violate the statute, then you are negligent!

i. Osborne v. McMasters Statute is evidence of a legal duty; “imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent.”

1. Plaintiff must be in a class statute meant to protect.


a. Martin v. Herzog – Buggy w/o lights (against statute) hit and driver killed. Lights statute meant to protect travelers on road.

2. Injury must be of a type statute meant to prevent.a. Martin v. Herzog – Statute meant to prevent accidents.b. Uhr V E. Greenbush – duty for school to examine for scoliosis

but not administer healthcare-- > statute does not create a cause of action

3. The Violation of the Statute Must have CAUSAL RELATIONSHIP with injury.

a. Martin v. Herzog – “to say that conduct is negligence is not to say that it is always contributory negligence.”

b. Brown v. Shyne - Breach of statute may be evidence of negligence ONLY WHEN there is a logical connection between proven neglect of duty and the alleged negligence.

i. Failure to obtain license not connected with the injury itself.

ii. Not lack of license that caused the injury, but defendant’s lack of medical knowledge/prowess.

ii. Adherence to Statute not Evidence of Non-negligence generally (T.J. Hooper adherence to safety statutes did not bar liability).

iii. CAUSE OF ACTION (As per Uhr):1. Whether P is one of the class for whose benefit statute was enacted.2. Would recognition of private right of action promote legislative

purpose?a. Basically; would this serve to eliminate the type of injury

intended by the statute?3. Would creation of right be consistent with legislative scheme?

a. Uhr Legislature intended to relieve schools of civil liability for the failure to screen for scoliosis.

b. MINORITY VIEWS – VIOLATION OF STATUTE = i. Evidence of Negligence Presumption, room for excuse, if person attempts

reasonable care in trying to follow statute but fails, etc.ii. Statute is irrelevant No evidence towards anything!

5) Res Ipsa Loquitur (“The Thing Speaks for Itself”)a. A type of circumstantial evidence that brings about either:

i. Permissive inference that a jury is entitled to make when considering evidence.ii. Rebuttable presumption of negligence D must then come forward with

evidence or else suffer judgment as a matter of law.b. ELEMENTS (From Byrne v. Boadle man walkint outside of D’s gets hit with a falling

barrel)i. Acccident must be of a type that does not normally occur in the absence of

negligence.


1. Colmenares Vivas v. Sun Alliance Insurance Co. – Usually escalator handrails do not stop unless there is negligence.

ii. Injury must be caused by an agency or instrumentality within the exclusive control of the defendant.

1. Colmenares Vivas v. Sun Alliance Insurance Co. – Ports authority effectively had control because they were in charge of a public area with nondelegable duty to maintain facilities in a safe condition.

a. COMPARE to Holzhauer v. Saks –Where escalot generally stopped movement; emergency stop things at bottom and top of it No liability since others were given control over functioning of escalator in this manner.

iii. Not caused by any voluntary actions or contributions on the part of plaintiff.1. Colmenares Vivas v. Sun Alliance Insurance Co. – No evidence that they

contributed.c. RESTATEMENT VIEW:

i. Not of a type that doesn’t occur w/o negligence.ii. Other responsible causes, conduct of plaintiff and third person, sufficiently

eliminated by evidence.iii. Negligence falls within defendant’s duty towards plaintiff.

DEFENSES TO NEGLIGENCE:1) CONTRIBUTORY NEGLIGENCE:

a. At common law, complete bar for recovery.b. Violation of duty of due care in reference to avoiding one’s own injury.c. BURDEN OF PROOF ON DEFENDANT.

i. Gyerman “burden of proving all aspects of the affirmative defense of CN including causation, rests on the defendant, unless the elements of the defense may be inferred from the plaintiff’s evidence.”

d. Restatement Definition:i. “Conduct on the part of the plaintiff which falls below the standard of conduct

to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.”

1. Butterfield v. Forrester D puts log in road, but P rides horse too fast, as if he were reasonably riding he would have seen the log and been able to stop in time.

2. Beems P’s actions in going between cars are reasonable, so D’s negligence is therefore the only one that matters.

e. ELEMENTS:i. Plaintiff actions fall below standard of reasonable conduct.

ii. Legally contributing cause (along with D’s negligence)


1. Gyerman v. United States Lanes Though plaintiff failed to use ordinary care, D must all show how negligence proximate cause of injury.

2. RESTATEMENT: a. Legally contributing cause if substantial factor in bringing about

harm and no rule restricting responsibility.b. Same rules of causation as negligence.

3. Seat-Belt Casesa. Plaintiff’s failure to take reasonable precautions to protect

himself IN THE EVENT of an accident should be distinguished from CN.

i. Derheim v. N. Fiorito CO. – D. takes the plaintiff “as he finds him.” no contributory negligence seat belt defense.

ii. B-b-b-b-but lowest cost avoider, wah! suck it, Friedman.

b. Same with helmets and motorcycles!iii. Of Injury

f. Breach of Statutory Duty:i. Contributory negligence per se Same rules as negligence per se.

ii. Violation must be contributing cause of accident (driving w/o a license NOT a cause).

g. Emergency Casesi. If plaintiff confronted with emergency not of her own making, conduct

compared to what a reasonable person would do in such an emergency. ii. So she might assume extraordinary risks or perform dangerous acts without

being held negligent (Eckert v. Long Island RR).1. Raimondo v. Harding “person faced with an emergency and who

acts, without opportunity for deliberation, to avoid an accident may not be charged with CN if he acts as a reasonably prudent person would act under the same emergency circumstances.”

h. Use of Propertyi. Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul You can use your land so that

you don’t injure others, as the flax keeper was doing, and the railroad operator used their property in a way that did injure their neighbor. The flax keeper was using their own property in a way that did not counter maxim, so the view was different.

i. EXCEPTION, Last Clear Chance Rule.i. Plaintiff’s contributory negligence would not bar or reduce recovery if the

defendant, immediately prior to the accident, had the “last clear chance” to avoid the accident but failed to do so.

ii. TWO CATEGORIES:


1. Helpless peril casesa. Where plaintiff has put himself in a situation where he is

powerless to extricate himself by exercise of reasonable care.b. Only remaining opportunity to avert peril rests with D.c. D LIABLE IF:

i. D had actual knowledge of P’s peril ii. OR

iii. Should have had knowledge of P’s periliv. ANDv. Was negligent thereafter.

1. Fuller v. Illinois R.R. Train hits man in cart…RR liable b/c engineer “could have seen that he was going to cross the track and could only with difficulty extricate himself.”

a. Any reasonable person on train could have seen the situation and should have known of P’s peril!

2. Inattentive Peril Cases:a. Plaintiff put himself in position of accident but could have

extricated herself by exercise of due care practically to the point of the actual injury.

b. D LIABLE IF:i. D had ACTUAL KNOWLEDGE of P’s presence in time to

have avoided accident.j. IMPUTED CONTRIBUTORY NEGLIGENCE:

i. Generally not allowed.1. Mills v. Armstrong Passengers on ship are not barred from recovery

for the accident with another ship, where their navigator was negligent and contributorily caused the crash.

2. Therefore, passengers not imputed contributory negligence of the driver.

ii. Parent-Child1. Accident to child not imputed to the negligent childcare on the part’s of

their parents! NOT YOURS!iii. Only available in three circumstances:

1. Master-Servant2. Joint Enterprises3. Suit based on injury to third person.

2) Assumption of Risk:a. NOT A DEFENSE FOR INTENTIONAL TORTS.a. HOW IT WORKS:


i. Primary: Was there a breach of a duty in the first place? Whether D was negligent in the first place! (can be read into the Steeplechase case).

ii. Secondary: Affirmative defense – After a prima facie case made for the D’s negligence, this effectively serves as a subset of contributory negligence. Did plaintiff act unreasonably in taking on a risk?

b. ELEMENTS:i. Plaintiff voluntarily

1. If by necessity, force or fraud no AOR.ii. Assumed

iii. The particular risk involved.1. Not merely a danger generally, but that particular issue!2. Murphy v. Steeplechase Amusement Co. “accepts the dangers that

inhere in it so far as they are obvious and necessary.” a. So the dangers must be open and obvious to the plaintiff!b. D liable if dangers were hidden and P had no knowledge of the

particular risk!c. Also, if so many injuries that the sport itself was dangerous and

must be changed!c. SUBJECTIVE TEST Not what a reasonable person would do, but what the plaintiff

actually did!i. Lamson v. American Axe & Tool Co. Plaintiff complains about negligent

hanging axes, yet persists to work under them = assumed risk. “P, on his own evidence, appreciated the danger more than anyone else. He perfectly understood what was likely to happen.”

d. LIMITATIONS:i. Plaintiff must fully appreciate risk If P through age or inexperience does not

comprehend the danger, then no AOR.ii. Extraordinary Risks One who participates in sporting events does not

impliedly assume the risk of an opponent’s flagrant violations of rules that result in injury.

1. Nabozny v. Barnhill Soccer goalie kicked in head.e. AOR BY AGREEMENT:

i. ELEMENTS:1. Provision must be part of the contract – prudent person would have

understanding of it.a. NO FINE PRINT!

2. Enforceability might depend on:a. If parties are on equal bargaining position, then exculpatory

provisions are usually upheld.b. However, if one party set all the terms of the contract and the

other had no opportunity to negotiate (ADHESION CONTRACTS) it may be held INVALID AS PER PUBLIC POLICY.


i. CAN BE INVALIDATED IF…ii. Concerns business of a type generally thought suitable

for public regulation.iii. Party seeking exculpation is engaged in performing a

service of great importance to the public, which is often a matter of public necessity.

iv. Party holds itself out as willing to perform this sercice for any member of public who seeks it.

v. As a result of the essential nature of this undertaking, party possesses a decicive advantage in bargaining strength.

vi. In exercising as such, no provision for buyer to pay for insurance.

vii. As a result, buyer is put under the control of the seller and at the whim of seller’s potential negligence.

1. Dalury v. S-K-I Ltd. Exculpatory agreement on skiing ticket invalidated b/c of public policy considerations.

COMPARATIVE NEGLIGENCE:1) A FEW DIFFERENT TYPES:

a. Pure Form:i. Based on pure proportionality.

ii. If Plaintiff is 90% negligent, can still recover 10% of damages.iii. Established in California through Li. V. Yellow Cab

b. Modified/Impure:i. Plaintiff is not barred from recovering as long as their negligence has not

reached a particular threshold.1. If above, then they are barred, and if below they are given that

proportion of damages.ii. Threshold is usually 50%.

1. “P recovers if fault is not greater than D.” – if 50-50, then P recovers.2. “P recovers if fault is less than D’s.” – if 50-50, P barred from recovery.

2) HOW DOES IT EFFECT EXISTING STANDARDS?a. How to apply standards?

i. Give plaintiff’s benefit of the doubt in CN system.1. Less so here!

ii. When there is heightened blameworthiness on the part of the D, then they might incorporate a contributory negligence system within the CPN regime.

b. Last Clear Chance:i. Ditched entirely. We already have the tools to apportion fault, which this might

be included in!


c. AOR!i. Primary v. Secondary

ii. Primary AOR – Goes back to prima facie case about whether a duty was ever breached!

1. Goes to the intial question of whether D was negligent in the first place.2. Was there a duty that was breached?3. Plaintiff participating in risk!

iii. Secondary AOR – Subset of CN and thus a subset of CPN! 1. If D breached duty?2. Plaintiff could obviously tell that something was bad!

a. P was acting unreasonably following D’s breach!d. Seat belts:

i. Mostly, evidence is inadmissible on the issue of comparative negligence.e. Strict Liability:

i. Idea of degree of fault with plaintiff to that of the defendant.ii. Strict liability operates independent of fault.

iii. We will not try to deviate from standard of care and will instead compare the causal contributive causes for the injury.

MULTIPLE DEFENDANTS: JOINT, SEVERAL AND VICARIOUS LIABILITY:1) JOINT AND SEVERAL LIABILITY

a. Joint tortfeasors are two or more individuals who:i. Act in concert to commit a tort.

ii. Act independently but cause a single indivisible tortious injury.b. Each individual is fully liable to the plaintiff for the entire damage award.c. Tortfeasor also responsible for ability to pay for other tortfeasors.

i. So if one tortfeasor has deep pockets, he might have to pay for insolvent tortfeasors.

d. BEFORE COMPARATIVE NEGLIGENCE:i. Joint-and-several liability (you can recover total amount from any of the Ds, but

you can only sue once) with no right to contribution. P sues D1.1. D1 is liable for the WHOLE AMOUNT OF RECOVERY.2. D2 gets off scott free (D1 can move for indemnity, but will not succeed

since he is far less substantial as cause of harm). NO CONTRIBUTION.a. Union Stock Yards v. Chicago, Burlington & Quincy RR D2

cannot get indemnity or contribution when both are equally at fault.

3. BUT, INDEMNITY:a. Prevents unjust enrichment of primary tortfeasor in escaping

liability!b. If P sues D2 (who is less responsible for injury than D1), D2 is

liable for the whole amount, but he can claim indemnity against


D1 as the principle wrongdoer to recover the entire amount from D1.

ii. STATUTORY REFORMS FOLLOW! One of the major changes is that contribution is now allowed in a straight factional share.

1. California Statute – Straight fractional share! 2. P sues D1 and gets the entire amount ($200,000).

a. Later, D1 and D2 fight amongst themselves to halve the amount. So D1 can then sue D2 for half of that and recover 100,000.00.

b. D2 can still sue D1 for indemnification as D1 is so much more at fault, and is likely to get the money again!

e. AFTER COMPARATIVE NEGLIGENCE:i. Each joint tortgfeasor remains individually liable for all damages caused, but

contribution allowed between them on a comparative fault basis.1. American Motorcycle Association v. Superior Court:

a. Comparative regime does not destroy joint and several liability.i. P = 30% responsible, D1 = 30% responsible, D2 = 40%

responsible.ii. P can sue D1 for the 70%.

b. Doctrine of partial equitable indemnity was adopted at common law to permit apportionment of loss among codefendents.

i. D1 can then bring an indemnity action against D2 to get the 40% of the amount that he contributed to injury.

c. Any defendant may maintain an action against any party (whether or not they are parties in the original suit) but judge may put off dealing with those until after original suit.

2) VICARIOUS LIABILITYa. Where a defendant can be jointly liable for the actions of another.b. Strict liability Does not require negligence on defendant’s part.c. Employer-Employee Relations:

i. Respondeat Superior – “ let the employer answer.”ii. If intentional tort - Employee must be working in scope of employment.

1. Ira s. Bushey & sons v. United States Status as government employee gave drunk sailor access to drydock where he caused mischief.

a. His actions were foreseeable to the gov’t.b. Gov’t not responsible if he got in a fight on the street his

relationship with gov’t got him access to drydock.iii. Liable even if they took all possible precautions SO if they tell an employee

not to do something, and he does anyway, still liable.d. Independent Contractors:

i. Generally not liable UNLESS:


1. They are performing non-delegable duties.2. They are performing inherently dangerous duties.3. If Defendant closely supervises independent contractor’s day-to-day

activities.a. Sanford v. Goodridge If superviser retains effective control

over day-to-day operations, I.C. is more like a regular employee and therefore VL!

b. Petrovich v. Share Health Plan of Illinois HMO held such control over doctors in the plan, that they were not independent contractors and HMO was liable.

4. Apparent Authority Doctrine: (In Petrovich v. Share Health Plan)a. Did defendant hold themselves out as controlling those they

claim are “independent contractors”?b. Did Plaintiff justifiably rely on the HMO to provide general

health care?e. POLICY REASONS:

i. Employees just cannot afford to pay as much!ii. Proper incentive sin controlling everything on the employers part!

iii. Might be hard to get at what’s happening within the workplace! 1. Want them to internalize the cost of an enterprise, which includes the

harm done to others by their own employees.f. EXCEPTIONS:

i. Frolic and Detour:1. If Detour, while still achieving things for employer’s benefit

VICARIOUS LIABILITY!2. If Frolic, where agent is on his own, NO VICARIOUS LIABILITY!

CAUSATION!

1) CAUSE IN FACTa. If plaintiff would not have been injured BUT FOR the defendant’s act, that act is a cause

in fact of the injury.i. New York Central RR v. Grimstad Defendant negligent in not providing life-

jackets, HOWEVER not liable for lack of life preservers since decedent would likely have died EVEN IF THE DEFENDANT HAD PROVIDED THE LIFE JACKETS Injury did result BUT FOR D’s actions!

b. Burden of proof on the PLAINTIFF: If negligent act more likely than not caused the harm, then plaintiff has met his burden of proof.

i. Haft v. Lone Palm Hotel D violated statute to have a lifeguard on duty. 1. It would have been impossible for plaintiff to show but-for since

decedent was dead, burden shifted to the defendant to show that no effort to save them could have been effective.


ii. Zuchowicz – over prescription of Danocrine was more probably than not the cause of injury / substantial factor in producing harm

1. Otherwise, it’s hard to show that the EXCESSIVE use of the Danocrine was the harm since you cannot state substantively that ordinary use would not have caused the harm.

iii. Expert Testimony:1. Frye – Expert testimony must show that the doctor’s research has been

“generally accepted” in the scientific community.2. Daubert – Federal Rules of evidence are broader than Frye, which

tended to filter out a lot of cutting edge scientific work, by allowing for more discretion on the part of the judge in allowing evidence.

a. THE BINDING RULE IN FEDERAL EVIDENCE (not in State courts!)b. General Electric Co. v. Joiner Judge allowed to disallow expert

testimony when there is a sufficient enough analytical gap between data and opinion proffered.

c. LOST CHANCE DOCTRINEi. Traditionally, P could not recover for a loss unless she could prove that she had

lost something that she was more likely than not to have acquired but for defendant’s conduct.

1. MEDICAL Courts have recently begun to allow suitds for loss of recovery chances that are less than 50%.

a. Herskovits v. Group Health Cooperative The reduction of survival chance from 39% to 26% is sufficient evidence to allow proximate cause issue to go to the jury.

2. Also, where defendant’s negligence has denied the plaintiff proof.d. CONCURRANT LIABILITY:

i. Where separate negligent acts of the defendant and a third party concur to cause a single injury, and it appears that the plaintiff would not have been injured but for the concurrence, then both defendant and third party liable.

1. Kingston v. Chicago N.W. RR joint-and-several liability when both fires are human based.

a. EXCEPTION where one fire is natural and the other human caused, no liability!

ii. Similarly, when tortfeasors are jointly engaged, each is liable even though only one of them inflicted injury Joint-and-several liability.

1. Summers v. Tice Two people fire on guy, and he is hit. The burden of going forward with the evidence shifts to each defendant to show that his negligence was not the actual cause.

iii. SUCCESSIVE TORTFEASORS:1. When successive acts of unrelated independent tortfeasors produce

harm difficult to apportion, they must try to disprove their responsibility for the injury.


a. Phennah v. Whalen Women injured and gets into accident a few weeks later that worsens her injured condition. Though each D responsible only for the portion aused, the burden of allocating that causation is placed on them.

iv. Market-Share Liability:1. For large industry cases…2. Exception to plaintiff’s burden of proof rule P need not identify which

particular manufacturer made the injurious thing.3. ONLY IN CERTAIN STATES!4. ELEMENTS:

a. All named D’s are potential tortfeasors1. SKipworth v. Lead Industries Association

Since 100 years ago, more defendants than were operable at the time will be held liable (even though they are not at fault)

b. Allegedly harmful products are identical and share the same defective qualities

c. The P is unable to identify which D caused the injury through no fault of his own (Summers v. Tice)

d. All manufacturers who developed offending product during time period are Ds (Sindell v. Abbott – Danocrine case)

1. Each manufacturer’s liability would approximate its responsibility for the injuries caused.

2. SKipworth v. Lead Industries Association Since 100 years ago, more defendants than were operable at the time will be held liable (even though they are not at fault)

2) PROXIMATE CAUSATIONa. More of a policy determination than anything else; under some circumstances, it is

deemed unfair to hold the defendant legally responsible for all consequences of his wrongful conduct How far does liability extend?

i. Ryan v. New York Central R.R. D not liable for damage of house that fire spread to It is deemed too remote b/c otherwise is to subject to a liability against which no prudence could guard; potential for infinite liability.

b. UNFORESEEABLE MANNERi. Foreseeable result occurs, but comes about in an unforeseeable manner.

c. UNFORESEEABLE RESULTi. Unexpexted extent or type of harm has occurred to a foreseeable plaintiff.

ii. Berry v. Sugar Notch Borough Plaintiff’s speeding was not contributorily negligent since the fact that it brought him to a location where a tree fell down upon him was TOO REMOTE and NOT FORESEEABLE!


1. Did not result in an increased risk of THAT PARTICULAR RESULT!iii. Brower v. New York Central Plaintiff has cider barrels stolen from his cart

after train accident RR should have foreseen the potential effect of the collision on plaintiff’s ability to protect his property, therefore not too remote.

iv. VIEWS ON LIABILITY:1. Polemis View Holds defendant liable for ALL DIRECT CONSEQUENCES

OF WRONGFUL CONDUCT!a. In Re Polemis Wood falls down and sparks fire that destroys

an entire ship, since direct cause Liability.2. Wagon Mound view No liability for unforeseeable consequences.

a. Wagon Mound No. 1 No liability!b. So then liability for foreseeable results of negligent act.

i. Marshall v. Nugent Defendant caused accident, and in trying to fix the mistake, plaintiff is hit by another care; liable b/c it is foreseeable that a plaintiff would attempt to help after an accident.

d. UNFORESEEABLE PLAINTIFFi. Defendant’s act exposed a certain group of potential victims to a foreseeable

risk, but plaintiff was not a member of that group.ii. Palsgraf v. Long Island Railroad RR not liable since their duty did not extend

to random people on the platform; the plaintiff was unforeseeable and the harm was a rare event.

1. Restatement of Torts (Second) If actor’s conduct creates arecognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the injured.

e. INTERVENING AGENTS?i. Was it reasonably foreseeable that result of intervening agents would in fact

occur?1. Brower v. New York Central Plaintiff has cider barrels stolen from his

cart after train accident RR should have foreseen the potential effect of the collision on plaintiff’s ability to protect his property and the thieves’ actions, therefore not too remote.

2. ELEMENTS – SUPERCEDING CAUSE UNLESS…a. Defendant should have realized that situation created would

afford opportunity for 3rd party to commit intention tort or crime.

b. Likely that 3rd party would TAKE that opportunity!ii. RESCUERS Belief that negligent injury INVITES RESCUE!

1. Wagner v. International Ry. Cousin falls out of train, and then other cousin who is looking for him falls to his injury. Cardozo imposes


liability noting that “we may assume…that peril and rescue must be in substance one transaction.”

f. PROXIMATE CAUSE AND EMOTIONAL DISTRESS…i. FOUNDATIONS:

1. Originally only allowed as a cause in action if there was some sort of physical contact (parasitic rule)

a. Mitchell v. Rochester Railway Where P was between two horses heads, no liability because her fright was a superceding cause and there was no physical touching.

ii. MODERN VIEW:1. ELEMENTS (from Dillon v. Legg):

a. Close relationship b/w plaintiff and victim.b. Plaintiff must be at scene of accident and must be aware that

victim is injured.i. In some states, this need not mean contemporaneous

Corso v. Merrill Father’s emotional distress valid after he was summoned to scene of accident by wife’s screams.

c. Plaintiff must suffer distress beyond that likely to be suffered by an unrelated bystander who witnesses accident.

AFFIRMATIVE DUTIES:1) DUTY TO RESCUE:

a. GENERAL – Defendant owes NO DUTY to go to the aid of a stranger in an emergency.i. Buch v. Amory Manufacturing Co. “the duty to do no wrong is a legal duty.

The duty to protect against wrong is…not recognized or enforced by the law.1. Defendant not liable when child trespasses and harms himself after

being told to leave.ii. Hurley v. Eggingfield Doctor not liable for refusing to come to the aid of a

patient.b. EXCEPTIONS:

i. Special Relationship to plaintiff.1. Parent/Child, Employer/employee, host/guest.

ii. Where defendant responsible for plaintiff’s peril.1. D has DUTY TO:

a. Aid person in peril.b. ANDc. Exercise due care in doing so.

2. EVEN IF D’S ACTIONS WERE NOT NEGLIGENT!a. Montgomery v. National Convoy & Trucking Co. Trucks

stalled on icy road, they were to exercise DUE CARE in warning plaintiff placed in perilous situation!


iii. Statutory Duty1. Good Samaritan laws make it criminal!

iv. Where Defendant has VOLUNTARILY UNDERTAKEN TO AID PLAINTIFF:1. If a defendant begins to aid someone who is helpless or in peril:

a. Must exercise reasonably care to secure the safety of the other.b. May not discontinue his aid or protection, if by so doing he

leaves the other in a worse position than when D took charge.2) DUTIES OF OWNERS AND OCCUPIERS:

a. AT COMMON LAW: i. Injury on your land:

ii. Invited by landowner1. Occupier has the duty of taking reasonable care that the premises are

safe.2. This includes all business places storeowner invites public to use the

land.iii. On land with leave and license by landowner

1. No duty to ensure that premises are safe, but bound not to create a trap or allow a concealed danger to exist that is not known to the visitor.

iv. As trespasser1. No duty whatsoever.2. Robert Addi & Sons v. Dumbreck Child trespassing on land is harmed

by a dangerous thing; therefore there should not be liability by the landlowner.

3. EXCEPTIONS:a. “Willful and wanton” Where landowner’s actions are willful

and wanton, liability.b. Attractive nuisance if landowner maintains something that

would draw children onto the land and subsequently they are injured.

b. ALTERNATE APPROACH:i. Now, duties of occupiers are based on traditional negligence principles.

ii. Has occupier acted as a reasonable person in the managemt of her property in view of the likelihood of injury to others.

1. Rowland v. Christian Man cuts his hand on a broken faucet; apartment owner is liable because she should have reasonably warned him.

iii. OFTEN THIS ONLY REFERS TO LICENSEES AND INVITEES, AND TRESPASSERS ARE GOVERNED BY COMMON LAW RULES!

3) GRATUITOUS UNDERTAKINGS:a. Defendant’s failure to perform a gratuitous promise does not give rise to a basis for tort

liability.i. EXCEPTION:


ii. WHEN DEFENDANT BEGINS ENTERING ON THE PROMISE, HE MUST EXERCISE REASONABLE CARE IN DOING SO!

1. Coggs v. Bernard Where D begins the work of the promise, he is liable!

2. Marsalis v. LaSalle Woman bitten by cat, and the owner agrees to watch it, but let it get out and the woman needs to get rabies vaccine. HELD, liable.

a. RATIONALE: It was done for the good of the woman.iii. FORESEEABLE RELIANCE:

1. Defendant liable for failing to perform when he should have known that plaintiff was RELYING ON THAT SERVICE.

a. Erie RR. V. Stewart Crossing guard missing – since employees rely on that service, the RR is liable to them. NOT LIABLE TO REGULAR PEOPLE WHO DO NOT RELY ON THE SERVICE.

2. HOWEVER, liability does not extend to reliance on third parties in some cases when duty is actually to the city. TOO REMOTE.

a. Moch co. v. Rensselaer Water Co. Because duty is TOO THE CITY and not the public at large!

4) SPECIAL RELATIONSHIPS:a. Restatement (second) of Torts:

i. No duty to control the conduct of a third person to prevent him from causing harm to another UNLESS:

1. Special relation exists between actor and third person which imposes a DUTY UPON THE ACTOR TO CONTROL THIRD PERSON’S CONDUCT.

2. A special relation exists between the actor and the other which gives the other a RIGHT OF PROTECTION.

b. VICARIOUS LIABILITY!c. LANDLORDS:

i. Landlord owes duty of reasonable care in maintaining common areas.ii. Must take reasonable precautions against FORESEEABLE CRIMINAL ACTS OF

THIRD PARTIES Kline v. 1500 Massachusetts Avenue Apartment Corp.1. POLICY JUSTIFICATION Landlord is the only one with the power to

affect changes in these common areas.2. AGAINST; Cross-subsidy argument this only raises the rents b/c

landlord will raise them to either pay for settlements or make changes; therefore against lessees who decided to value cheapness over more safety.

3. Liability extended to colleges and universities; common carriers and condominium owners.

d. PSYCHIATRISTS:


i. Tarasoff v. Regents University of California Established that a duty exists where psychiatrists must warn potential victim if it is FORESEEABLE That their patient will bring harm unto them.

1. DUTY OF CARE TO PUBLIC AT LARGE THROUGH REASONABLE FORESEEABILITY STANDARD!

STRICT LIABILITY:1) Animals:

a. Trespassing livestock Possessor of livestock trespassing on land or chattels is strictly liable for trespass itself and any damage resulting.

b. HOUSEHOLD PETS:i. WILD ANIMALS KEPT AS PETS Strictly liable NO MATTER WHAT.

ii. Animals with known dangerous propensities STRICTLY LIABLE1. Harm must stem from these known dangerous propensities!

iii. Animals with NO dangerous propensities 1. “One free bite” rule Owner not liable unless he knew or should have

known of that animals dangerous propensities which are exhibited by the animal having attacked before.

1. If no prior attack, then judged on negligence; did owner exercise reasonable care in relation to the animal.

2. Gehrts v. Batteen Dog had no dangerous propensity, therefore liability hinged on negligence, which was found not to be there.

2. However, if the animal has attacked before, then STRICT LIABILITY because owner should have notice that the dog has a dangerous propensity.

2) Ultrahazardous Activities:a. GENERAL RULE one who maintains an abnormally dangerous condition or activity on

his premises may be liable for the harm caused even if the defendant has exercised reasonable care to prevent the harm.

b. What is abnormally dangerous?i. Rylands v. Fletcher: When someone brings something on the land that involves a

NONNATURAL USE and is LIKELY TO CAUSE SUBSTANTIAL DAMAGE IF IT ESCAPES, is liable if it does escape.

ii. Spano v. Perini: BLASTING with dynamite Since substantial risk no matter what care exercised, then there is no reason that user should not be held liable when injury does occur.

1. Policy = Who should bear the compensation for unavoidable accidents? those who are using the material!

c. Restatement (Second) of Torts Elements: Factors to be balanced when determining whether an activity is ultrahazardous


i. Did activity involve a high degree of risk of harm?ii. What was the gravity of the risk?

iii. Can the risk be eliminated through the exercise of due care?iv. Is the activity one of common usage?

1. For example, driving a car, though dangerous, is not ultrahazardous since the overall social utility is so high through common usage.

v. Was the activity appropriate to the place where it is being carried on?vi. What is the value of the activity to the community?

1. Indiana Harbor Belt RR v. American Cyanamid Co. Argues that these standards are much like the questions being asked of negligence, and therefore determines that NEGLIGENCE IS THE BEST WAY TO EVALUATE THE SHIPPERS OF DANGEROUS GOODS!

1. NO STRICT LIABILITY FOR THE SHIPPER OF DANGEROUS GOODS!2. Res Ipsa Loquitur applies often, result of dangerous activity is

that the evidence is eliminated because of the nature of the activity (BOOM GOES THE GAS TRUCK Siegler v. Kuhlman)

d. Restatement (Third) of Torts abnormally dangerous if:i. Activity creates foreseeable and highly significant risk of harm when

reasonable care is exercised by all actors.ii. The activity is not one of common usage.

e. DEFENSES:i. Assumption of risk bars recovery for plaintiff.

ii. Contributory negligence is ordinarily NOT A DEFENSE HOWEVER< if the plaintiff’s CN is knowingly and unreasonably subjecting himself to risk of harm, then it can be used.

iii. NOT liable for the injuries that result from an abnormally sensitive character of the plaintiff:

1. Rogers v. Elliott Not liable for person who’s exacerbated health condition is aggravated by ringing of church-bell.

3) NUISANCE:a. ELEMENTS:

i. Act by defendant.:1. Intentional2. Nonintentional but negligent.3. Strict liability through ultrahazardous activity.

ii. Nontrespassory invasion of plaintiff’s interest1. Requires foreseeability on the part of the defendant.

iii. Substantial and unreasonable harm.1. SUBSTANTIAL: Something that a reasonable person would take offense

at.


2. UNREASONABLE: Conduct must be unreasonable in the sense that the harm done by interference outweighs the justifications. THINGS TO CONSIDER:

1. Suitability of the invading use to the neighborhood where it takes place.

2. Value of the respective properties.i. Fontainebleu “Where a structure serves a useful and

beneficial purpose, it does not give rise to a cause of action…” when no legal rights are being interfered with.

3. Cost to the defendants to eliminate the condition complained of.

4. Social benefits from allowing the condition to continue.i. Rogers v. Elliott Not liable for highly sensitive plaintiff

since social benefit of church bells in services outweighs the harm to the one person who will suffer from it.

5. UNREASONABLENES S MUST BE FORESEEABLE TO THE DEFENDANT Vogel v. Grand-Lafayette Intentional invasion claims fail because defendants tried to fix problem once they were made AWARE OF IT.

3. AESTHETIC CONSIDERATIONS Aesthetic considerations are not actionable nuisances unless the activity is run with unreasonable noise, odors, etc.

iv. Causation1. If intentional same as battery.2. Negligence or Strict Liability Rules of causation based on negligence

standards.b. REMEDIES:

i. Judicial Relief:1. Compensatory damages (liability rules)2. Injunctions (for invasion of property)

1. Either total2. Or Conditional

i. Boomer v. Atlantic Cement Co. Injunction not wanted because the value for the cement factory is important, so instead damages should be awarded BASICALLY, INJUNCTION UNLESS THEY BUY OUT THE PROPERTY-OWNERS!

ii. “Self-Help” 1. Abatement Allowance to enter land to fix problem.2. Michalson v. Nutting Though no legal remedy, plaintiff can cut any

roots that come onto his own land.c. DEFENSES:


i. Contributory negligence.1. Not a defense for INTENTIONAL NUISANCE.2. Comparative negligence when there is an ultrahazardous activity being

done!ii. Assumption of risk:

1. Consent P cannot recover when he has consented to the building of structures by the defendant.

2. “Coming to the Nuisance”1. NOT A DEFENSE ORDINARILY (established in Ensign v. Wells)2. If Plaintiff did not foresee damage complained of, not barred

from recovery.3. Even if the plaintiff knew of the nuisance the majority holds that

the knowledge is no defense.4. Ensign v. Wells People move to Detroit where a kennel

business is being run, and decides that liability was held even when the people were moving to the neighborhood.l

i. Social value of urban development is viewed as more favorable than the actions of the defendant.

d. PRIVATE NUISANCE:i. DEFINED Nontrespassory interference with the plaintiff’s interest in the use

or enjoyment of property.ii. Michalson v. Nutting Not liable for tree on own property that has roots that

grow into the other land.1. BUT PLAINTIFF HAS RIGHT TO CUT THOSE ROOTS THAT COME ONTO HIS

PROPERTY!iii. Not responsible for highly sensitive plaintiffs Rogers v. Elliottiv. MUST BE AN INTERFERENCE WITH A LEGAL RIGHT

1. Fontainebleu not liable when right being interfered with is not a legal right.

1. Social utility of new hotel is greater than maintaining the beachfront property of its neighbor!

2. HOWEVER, spite fences are NOT ALLOWED AND UNLAWFUL!e. PUBLIC NUISANCE:

i. DEFINED An act by a defendant that obstructs or causes inconvenience or damage to the public in the exercise of rights common to all, or in the enjoyment of common property.

1. Generally, only the state can redress public nuisance.2. Private individual can maintain an action ONLY if she suffers an injury

apart from that common to the public (Anonymous dissent)1. 532 Madison Avenue Gourmet Foods v. Finlandia Center

Since public nuisance affected all people WITHIN THE CLASS OF


PEOPLE WHO LIVED IN THE AREA CORDONED OFF, there was no special harm suffered.

2. Leo v. General Electric Since contamination of fish affected commercial fisherman in an economic sense while recreational fisherman in another (BOTH CLASS OF FISHERMAN), liability was allowed.

3. Camden County Board of Chosen Freeholders v. Beretta Too remote! Gun manufacturer six steps removed from criminal end-users. ORIGINAL ACTION MUST BE WITHIN THE SCOPE OF CONTROL OF THE DEFENDANT!

PRODUCTS LIABILITY:1) FOUNDATIONS:

a. Once only allowed when there was privity of contract between the end-user of the product and the manufacturer (Winterbottom v. Wright).

b. PRivity requirement rejected in Macpherson v. Buick, wherein Cardozo insists that the manufacturer has DUTY OF CARE towards FORESEEABLE END-USERS from FORESEEABLE DANGERS.

c. Later, in Escola v. Coca Cola, California Supreme Court institutes a strict liability regime for products liability because of:

i. Deterrent effect.ii. Manufacturers better situated to front the cost for injuries.

2) LIABILITY BASED ON NEGLIGENCEa. Macpherson DUTY TO PROTECT AGAINST FORESEEABLE DANGERS IN REGARDS TO

FORESEEABLE USERS!i. Liability extended by later courts to all persons foreseeably within the scope of

use (bystanders and pedestrians hit by car).3) STRICT LIABILITY IN PRODCUT DEFECTS:

a. Most courts have held manufacturers and suppliers of defective products strictly liable in tort to consumers and users for injuries (Greenman v. Yuba Power Products).

b. RATIONALE:i. Defendant better able to bear risk (Greenman v. Yuba)

ii. Negligence action may not be adequate remedy.iii. Incentive for safer products.

c. ELEMENTS:i. Defect in the product.

ii. Defect attributable to the manufacturer or supplier.iii. Defect caused the injury.

d. PROPER DEFENDANTS:i. Manufacturers

ii. Retailers and distributers1. DOES NOT APPLY to one-time seller; i.e. if I sell my car to you, I am not

liable for design defect.


a. Only goes towards people who hold themselves out as retailers and thus have public “trust.”

iii. NOT sellers of used and reconditioned products.1. Partly assumption of risk on the part of the buyer, since theyu can

negotiate for a uised or worn good NEGOTIATING AND THE POWER OF THE MARKET.

iv. NOT service providers1. Cafazzo v. Central Medical Health Services Even though doctor used a

defective product, he was providing a SERVICE to the plaintiff and was not either a seller or manufacturer.

2. Same applies to pharmacists. if strictly liable, they would stop carrying new and potentially life-saving medications.

e. THE RESTATEMENTS:i. Restatement (Second) of Torts: Strict liability/Consumer Expectation Test

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to strict liability for physical harm if…

a. Seller engaged in business of selling such product.i. NOT ONE-TIME OR SPORADIC SELLERS!

b. Expected to and does reach consumer with no substantial change in condition.

c. NO PRIVITY REQUIREMENT!d. Does not matter how much care seller has exercised!

2. Unreasonably dangerous “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.”

ii. Restatement (Third) of Torts1. One engaged in business of selling or otherwise distributing products

who sells or distributes a defective product is subject to liability for hamr to persons or property caused by defect.

a. Manufacturing defect when product departs from its intended design even though all possible care was exercised in preparation and marketing of product.

b. Defective in design foreseeable risks of harm posed by product could have been reduced or avoided by adoption of reasonable alternative design…

c. Defective b/c of inadequate instructions or warning foreseeable risks of harm could have been reduced by warning or instructions, and the omission of instructions renders product not safe.

f. TYPES OF DEFECTS:i. Manufacturing Defects:


1. Product is NOT IN THE CONDITION THAT MANUFACTURER INTENDED at the time it left his control.

2. Not liable when no injury to property or person is suffered (Casa Clare Condominiums v. Toppino Where houses were damaged; since the only damage suffered was economic and no person or property was injured).

3. PROOF -- >There can be CIRCUMSTANTIAL EVIDENCE!a. It may be inferred that the harm sustained was a result of

product defect if:i. IT WAS OF A KIND THAT ORDINARILY OCCURS FROM

PRODUCT DEFECT.ii. IT WAS NOT SOLELY THE RESULT OF CAUSES OTHER

THAN PRODUCT DEFECT EXISTING AT THE TIME OF SALE OR DISTRIBUTION.

1. Speller v. Sears Roebuck If a jury can conclude that a plaintiff excluded all other causes of the fire, they can impose liability.

ii. Design Defects:1. Product was in the condition intended by the manufacturer or supplier

but was designed in such a way that it presented an undue risk.2. STANDARDS FOR JUDGING LIABILITY OF DESIGN DEFECTS:

a. “Open and obvious” – Camp v. Scofieldi. When danger is known and obvious to the user, the

manufacturer is not liable.ii. Only liable for “ hidden dangers.”

iii. Young v. Volkswagon “There can be no recovery if the danger inherent in the particular design was obvious or patent to the user of the vehicle.”

iv. LInegar v. Armour of America Because cop knew of the deficiencies in the particular vest AND THERE WERE OTHER OPTIONS, he in fact made a consumer decision to use a less-protective vest which would give more mobility and therefore, NO LIABILITY>

1. Product worked as it was supposed to!b. Consumer Expectations Test

i. Did the product function as an ordinary consumer would have expected?

1. If not, liability!ii. Young v. Volkswagon Accidents are inevitable and

expected and foreseeable on the part of both user and manufacturer DUTY TO CREATE CARS THAT WOULD BE REASONABLY SAFE IN AN ACCIDENT.


1. Liability affirmed for car manufacturer for a hidden danger that results in aggravated injury upon collision.

iii. Halliday v. Sturn, Ruger and Co. A product, such as a handgun, that functions as intended and is dangerous in its ordinary use, has no defect and cannot give rise to liability based on defect. Gun worked exactly, tragically, as it was supposed to.

c. Risk-Utility Standard Wade, On the Nature of Strict Tort Liability for Products

i. Does the product’s utility outweigh the risk of harm?ii. FACTORS TO CONSIDER:

1. Usefulness and desirability of product.2. Likelihood that product will cause injury and

probable seriousness of injury.3. Availability of substitute products which would

meet the same need and not be as unsafe.4. Manufacturer’s ability to eliminate the unsafe

character of product without:a. Impairing its usefulness.b. Making it to expensive to maintain

utility.5. User’s ability to avoid danger by the exercise of

care in the use of the product.6. User’s anticipated awareness of the dangers

inherent in the product (either general public knowledge or warnings).

7. Feasibility of spreading the loss by setting the price of the product or carrying liability insurance.

iii. Combined Approach (Consumer Expectation & Risk-Utility) Barker v. Lull DOMINANT NORM TODAY!

1. Recovery is permitted if plaintiff establishes either:

a. The product failed to perform as safely as an ordinary consumer would expect when it was used in an intended or reasonably foreseeable manner.

b. BUT, even so, if the product’s design was defective under the risk-utility standard, consumer expectation would not bar recovery.


i. Barker v. Lull “A product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that… the risk of danger inherent in the challenged design outweighs the benefits of such a design.”

4) THE DUTY TO WARN:a. GENERAL RULE Defects might arise from packaging and inadequate instructions,

warnings, labels, etc.b. UNEXPECTED DANGERS:

i. Danger must be something that a reasonable user would have no reason to expect or anticipate in the product.

1. Davis v. Wyeth Labs One in a million chance of polio from vaccine; liability for failure to warn.

2. If something the defendant might not have anticipated, will be analyzed as a NEGLIGENCE QUESTION Would a reasonable manufacturer have known about this issue?

a. Vasallo v. Baxter Healthcare Group Breast implants! Manufacturers held to the standard of knowledge of an expert in the appropriate field. Duty to warn purchaser sof risks discovered following the sale of the product at issue.

c. UNAVOIDABLY UNSAFE PRODUCTS:i. This does not render them defective, per se.

ii. A warning may suffice to avoid liability when a product’s design is NOT DEFECTIVE ACCORDING TO RISK-UTILITY TEST.

d. ADEQUACY OF WARNINGS:i. A warning to an unreasonably dangerous product may be inadequate if it does

not :1. Specify risk product presents.

a. MacDonald v. Ortho Pharmaceutical Corp. Liable because warning on bottle does not specifically mention the risk of stroke.

i. Duty to plaintiff because the plaintiff is so involved in making the decision as to which birth control product to use.

b. Hood v. Ryobi Warning does not specifically detail what could happen if saw used without protective covering.

i. A WARNING NEED ONLY BE REASONABLE UNDER THE CIRCUMSTANCES


1. The problem is, over-warning can render warnings not useful.

2. Inconsistent with how product is to be used.3. Does not give reason for the warning.

e. WHO MUST BE WARNED?i. The warning must reach the person at risk from the danger.

1. Davis v. Wyeth Pharmaceuticals Liability on failure to warn that there was a 1 in a million chance that polio vaccine would result in polio.

2. PHARMACEUTICALS LEARNED INTERMEDIARY:a. Adequate warning need reach only the prescribing physician.b. EXCEPTION FDA rules must meet patient.

i. Where patient is the chooser of a type of prescription, they should receive the warning. MacDonald v. Ortho Pharmaceutical Corp.

5) DEFENSES TO PRODUCT LIABILITY:a. CONTRIBUTORY NEGLIGENCE:

i. If user FAILED TO EXERCISE REASONABLE CARE TO DISCOVER DANGER OR GUARD AGAINST IT NOT A DEFENSE!

ii. If user UNREASONABLY MISUSES a product A manner or for a purpose for which no reasonable person would use it A DEFENSE!

b. COMPARATIVE FAULT:i. Reduce plaintiff’s recovery in strict liability by some amount to reflect the fact

that the injury was caused in part by plaintiff’s own carelessness.1. Not comparative negligence STRICT LIABILITY, recovery only reduced

by amount that plaintiff was contributorily negligent.2. Daly v. General Motors Corp. Creates comparative fault regime

within strict liability context of product’s liability.3. ELEMENTS:

a. Conduct of the plaintiff combines with product defect to cause the harm.

b. ANDc. Plaintiff’s conduct fails to conform to generally applicable rules

establishing appropriate standards of care.c. Assumption of risk

i. If P KNOWS of the danfer or risk and UNREASONABLY CONTINUES TO USE IT!1. Even if danger was not obvious, if P had LEARNED of it, then liability!

d. Disclaimers:i. Generally not a defense as AGAINST PUBLIC POLICY in consumer transactions

Vandermark v. Ford Motor Co.1. EXCEPTION Disclaimers between contracting parties of relatively

equal bargaining power (Ie, corporations).e. FEDERAL PREEMPTION


i. Federal legislation has impliedly preempted state legislation.ii. Geier v. American Honda Lays out the elements as such:

1. Does not pre-empt ANY tort claims.2. Only those claims that conflict with the goals, intents and purposes of

the federal legislation.3. FACTS National Transportation and Motor Vehicle Safety act and

administrative regulations issued under it preempt state tort action claiming that a car marketed without airbags was defectively designed.

a. These national acts intend for car manufacturers to experiment with various types of passive restraints NO ABSOLUTE NEED FOR AIRBAGS, thus airbag provisions in state legislation conflict with federal guidelines.

b. DISSENT State’s should be able to answer the question about whether larger public policy requirements for airbags should be enacted because of its value as a safety device.

ECONOMIC HARMS:1) INDUCEMENT OF BREACH OF CONTRACT

a. PRIMA FACIE CASE:b. Defendant’s interference with existing contract

i. Not limited to servants/mastersii. Lumley v. Gye Expanded the role from only master/servant to ANY TYPE OF

VALID CONTRACT!1. Opera singer was induced to sing at another opera house instead of the

one she contracted to sing atiii. EVEN TERMINABLE AT-WILL CONTRACTS!

1. It is the interference with THE RELATIONSHIP that is the bad thing, and not the contract itself!

iv. Exception, illegal contracts.c. Intent – Defendant’s knowledge of existing contract.

i. Defendant must have been aware of the existing contract and that she intended to cause the interference.

d. Causationi. Actual and proximate.

e. Special Damagesi. Actual damages

ii. Consequential damagesiii. Mental sufferingiv. Damage to reputation.v. Punitive.

2) INTERFERENCE WITH PROSPECTIVE ADVANTAGE


a. PRIMA FACIE CASE SAME AS WITH INTERFERENCE WITH CONTRACT SANS EXISTING CONTRACTUAL RELATIONSHIP.

i. Defendant’s interference with potential contract.1. Tarleton v. McGawley Defendant shot cannon at the native’s ship.

ii. INTENT - Defendan’t knowledge of that potential relationship.1. Tarleton v. McGawley “Had this been an accidental thing, no action

could have been maintained, but it is proved that the defendant had an expressed intention not to permit any to trade…”

a. No right to take law into own hands!2. Keeble v. Hickeringill Unlawful act and intent to drive away ducks

from business!iii. Causation

1. People’s Express Airlines v. Consolidated Rail Group “A defendant who has breached his duty of care to avoid the risk of economic injury to particularly foreseeable plaintiffs may be held liable for actual economic losses that are proximately caused by breach of duty.”

a. To whom is a duty owed?i. Foreseeable in terms of type of person or entities

comprising the class.ii. Certainty or predictability of their presence.

iii. Approximate numbers of those in the class.iv. Type of economic expectations disrupted.

iv. Special damages.

DAMAGES:1) PAIN AND SUFFERING:2) ECONOMIC LOSSES3) COLLATERAL BENEFITS4) WRONGFUL DEATH5) PUNITIVE DAMAGES:

a. REASONS FOR HAVING THEM (Kemezy v. Peters)i.

b. How measured?i. Degree of Reprehensibility of the defendant’s misconduct.

1. State Farm v. Campbell Must be limited only to the conduct between defendant and plaintiff.

ii. Disparity between actual or potential harm suffered by plaintiff and punitive damages award

1. State Farm v. Campbell Supreme Court states that there should only be a SINGLE DIGIT MULTIPLIER!

iii. Difference between the punitive damages awarded by the jury and the vicil penalties authorized or imposed in comparable cases.


1. State Farm v. Campbell Can be calculated against criminal fines and punishments!

DAMAGES:1) Pain and Suffering:

a. CONSTITUTED OF:i. Mental distress over an injury.

ii. Disfigurementiii. Loss of enjoyment of life.

1. McDougald v. Garber Holds that loss of enjoyment is part of pain and suffering since it is basically speculative, and policy consideration that the jury should not have to speculate twice for the fear of over-compensation.

a. DISSENT States that pain and suffering and loss of enjoyment objectively different, and should be considered as such.

2. Patient must have some sort of COGNITIVE AWARENESS for remedies for loss of enjoyment of life.

a. Can be slight Only “some level of awareness”b. Lots of discretion on the jury in awarding this since these are non-pecuniary damages!

i. “Per diem rule” Jury asked to tabulate a per diem for each day according to the plaintiff’s condition, and then multiply that by the expected life expectancy.

1. Prohibited in Botta v. Brunner2. Some jurisdictions allow it nowadays!

ii. This discretion is such that an appellate court should rarely disturb an award of general damages unless by ABUSE OF DISCRETION STANDARD OF REVIEW.

1. Duncan v. Kansas City Southern Railroad (church bus hit by train) General damages should be based on a review of cases involving similar injuries.

a. Any amount higher than the highest amount reasonably awarded in those cases should be considered abuse of discretion

b. Amount should be reduced to the highest award reasonable in light of comparison to case law.

c. WHY?i. Not to compensate would be ignoring a very real loss.

ii. If no damages were avoided, potential tortfeasor lacks appropriate deterrence to avoid imposing such intangible harm on victims.

2) Economic Loss (Pecuniary damage)a. Compensated for past and future lost wages. b. Value time by prevailing workmen compensation rates.c. Estimates of lost wages must take into account life expectancy of the victim prior to the

injury caused by the tortfeasor and when she would have been expected to retire or reduce work b/c of advanced age or illness.


i. O’Shea v. Riverway Towing Posner states that defendant should have objected over the estimate of her retirement age.

1. Additionally, estimates should have taken into account her potential to die or be incapacitated from working earlier than expected.

ii. Duncan Life expectancy should be limited only to people of the victim’s like state. Injured girl not compared to normal girls her own age, but girls her age subject to similar injuries and disabilities.

d. Must be reduced to “present value”i. Since award in lump sum, must be reduced to present value.

ii. The reduction must reflect the interest that plaintiff can earn on the advance transfer of money for future losses in income.

1. Predicting what future interest rates or other investment value of the money will be over the future period to be compensated.

iii. O’Shea Inflation should be taken into account both in calculating what future wages will be and also in the discount rate.

1. Problem is undercompensation Two potential solutions!a. Take inflation out of both the wages and the discount rate

basically asserting that there would be zero inflation.b. Incorporate inflation into both the calculations for discount rate

(subtract risk-free percentage of discount from risk-free + inflation percentage) and future wages.

3) Mitigation Doctrine:a. Victims have responsibility to act reasonably to limit losses incurred.

i. Seek medical care to avoid more serious consequences from injury.ii. Get another type of employment.

1. Difficulty what should be valued as substantially similar employment? Does any old job count?

2. O’Shea Since plaintiff is crippled, she will probably not have been able to get another job.

a. STANDARD: Judge can decide that there is less than a 50% probability that plaintiff would be able to get another job if she reasonably attempted to.

4) DAMAGE CAPS Should we have these? Statutorily defined limits…1. Will change the activity levels –> the average will go down!2. Don’t take nearly enough care b/c you won’t have to pay much in the

truly horrific cases such as Duncan.3. Eggshell Skull Rule To create a justifiable result…we should include

the high end as well as the low end of damages!CONTINGENCY FEES

1) Where plaintiff’s lawyers are only paid out of the funds that the plaintiff recovers from defendants.

a. Often limited in medical malpractice contexts.


2) Beneficial, in that they are often the only way that a plaintiff can afford to hire a good lawyer.

3) Often looked on favorably (freedom of contract argument).4) Fixed fee creates incentive to shirk; and a lawyer paid on a lump sum may not put in

as much work as case warrants.5) Hourly wage Often, incentive created to run up the hours.6) Contingency Though imperfect, better than a conflict of interests@7) AT THE SAME TIME – Non-legal issues, such as reputation and desire to obtain future

business through word of mouth advertising often keep lawyers hard at work.8) OFTEN, Defendant’s counsel is paid on an hourly wage basis

a. Requires more supervision of attorneys.b. Repeat business is what keeps the clients coming back.c. Sometimes they have tried contingency and it’s weird, since how do you

accurately calculate the amount saved through lawyer’s actions? Plaintiffs have a baseline of zero, while defendant’s don’t, necessarily.

FEE SHIFTING:1) Often, sides have to handle expert witness and attorneys fees.2) Sides can only be awarded attorney’s fees when the prevailing party can clearly

demonstrate that the other side advanced a claim or defense that was frivolous or malicious.

3) English and continental systems use fee-shifting…a. Fee-shifting promotes settlements since loss for both sides would be greater!b. Therefore, risk-adverse plaintiffs in a fee-shifting system will not bring suit.

Sales of tort’s claims:1) Currently prohibited.

a. But contingent fee system IS A partial sale of a tort claim.2) BENEFITS:

a. Gets the victim immediate and certain com pensation at market value, closer to what they would expect from a court judgment.

b. But couldn’t this result in a predatory market? More advanced buyers taking advantage of the plaintiffs!

c. Incentive plaintiff has no incentive to appear sympathetic once he is compensated.

i. They would need to factor in contractual agreements for cooperation!3) What about unmatured? If prospective patient sells rights to recover for pain and

suffering, they can be resold to health care provider and thereby eliminate pain and suffering as an element in malpractice!

5) Attorney’s Fees!a. Can be paid hourly

i. Incentive to run up hours by doing too much work in relation to stakes of the case.

ii. May be appropriate where it is hard to define output.b. Fixed Fee


i. Creates incentive to shirk lawyer might not work as hard.c. Contingent fees contingent on winning the suit (only available to P)

i. May range from 20-50%.ii. Incentive for the lawyer to look out for plaintiff’s best interests.

d. Fee Shifting:i. Might inspire more settlements since additional expenditures on litigation might

dis-incentivize a potentially losing party.e. Sale of Tort Claims

i. Prohibited.ii. Stupid idea Overall compensation will go down. Unsympathetic juries

lower awards lower value to the claims lower selling price for your claim.6) Collateral Benefits

a. Collateral Source Rule:i. Plaintiff’s recovery against defendant is not affected by compensation P

received from the sources from other sources.ii. Harding v. Town of Townshend Insurance!

iii. Some statutory reforms have rejected the rule and allow jury to consider insurance payouts and deduct them from defendant’s liability.

b. Subrogation Insurance company can essentially take charge of a suit (occurs in State Farm Mutual Automobile Insurance Co. v. Campbell)

c. Reimbursement Allows injured party to control litigation, but insurer can recover its expenses from the proceeds of recovery.

i. Settlements Plaintiff can structure the settlement to cut off the claims of the plaintiff’s first-party insurer.

7) Wrongful Death:a. Cause of action in the states.b. No dollar cap on recovery.c. Two standards

i. Loss-to-survivors: D must pay damages only if some beneficiary depends on decedent for support.

ii. Loss-to-estate: Damages awarded even if the decedent had no dependents at time of death.

d. Calculating damages:i. Value of social company “the value of mutual society and protection, in a word,

companionship” Wycko v. Gnodtke.8) Loss of Consortium

a. Basically, you can sue for the loss of “services” by spouse.

PUNITIVE DAMAGES1) BENEFITS (According to Kemezy v. Peters)

a. Compensatory damages are not always enough to truly compensate.


i. Often, hard to valuate injuries are under-compensated for and punitive damages help make the difference.

b. If compensatory damages fall short of actual compensation, then punitive damages serve as a better deterrent SINCE DEFENDANT WILL NOW HAVE NO COST JUSTIFICATION FOR ACTION IN LIGHT OF TRIAL.

c. Where actions are not cost-justified, wrongs will now be VALUELESS TO THE WRONGDOER!

d. Likewise, if a tortfeasor commits multiple torts but only gets caught half the time, compensating TWICE THE AMOUNT THROUGH PUNITIVE DAMAGES serves to make none of those times cost-justified!

e. Not economically: punitive damages expresses abhorrence at defendant’’s act...beyond that of mere negligent tortfeasing.

f. CRIMINAL JUSTICE SYTEM SERVES MANY OF THESE FUNCTIONS, BUT…i. Tort system allows for people to settle potentially criminal offenses without

burdening the state thus leading to a more optimal administrative efficiency!ii. If system is overburdened, then the people will take the law into their own

hands!2) DE NOVO REVIEW ON APPEAL!3) ELEMENTS (as per State Farm Mutual Automobile Insurance Co. v. Campbell)

a. Degree of reprehensibility of the defendant’s misconduct.i. State Farm Should only be limited to the defendant’s conduct TOWARDS the

plaintiff. Outside conduct should not be factored into deliberations.b. The disparity between the actual or potential harm suffered by the plaintiff and the

punitive damage award.i. State Farm Should only be a single-digit multiplier; anything other than that

is excessive.c. Difference between the punitive damages awarded by the jury and the civil penalties

authorized or imposed in comparable cases.i. State Farm Can be judged against criminal fines.

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