TOPICAL OUTLINE OF TORTS. CHECKLIST; WHAT TO SHOW!!!!

1. Overview of Topicsa. Negligence

i. Duty-p says, d saysii. Breach-p says, d saysiii. Cause-but for (p, d), proximate (p, d) remember Andrews Factorsiv. Damages-what kind? Compensatory, Punitive, Nominal? See sheetDefenses-comp n, assumption of risk

b. Strict Liabilityi. Abnormally dangerous activities-restatementii. Products Liability-Manufacture, Design, Warrantyiii. (Cause) i.e heeding presumption, but for, prox cause, etc (same as n)..iv. (Damages)Defenses-comp n

c. Intentional Tortsi. Assault/Batteryii. False Imprisonmentiii. Intentional Infliction Emotional Distressiv. (Cause)v. (Damages)Defenses-consent, self defense, protection of property

2. Negligence-based on fault, whereas SL is based on causationVicarious Liability

A. Christensen v. Swensen pg. –P works for D, does not get scheduled lunch breaks, but employees allowed to take 15 minutes to get food. P drives to get food, has a car accident, gets sued by 3rd party, impleads D, says that they are vicariously liable for her actions. D says she was not working at the time. Was P w/in the scope of her employment at the time of the crash?

a. Holding: Court uses Birkner test to determine whether p was in the scope of her employment, finds that b/c there is no clear answer, it is best for a jury to determine if she was using the test

b. Birkner TestWas someone w/in the scope of employment?i. Doing conduct hired for

ii. Conduct occurs primarily during working hours or space (hours/spatial boundary)

iii. Motivated by the purpose of serving the employer1. Court not clear on issue of whether all three are necessary

or not to have scope of employment.c. Policy behind Vicarious Liability

i. Incentives to train and supervise responsible, good peopleii. Creating risks by the activity

iii. Employer controls and benefits from your jobiv. Incentives for people to workv. Employer can bear the burden

vi. Prevention of harm

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vii. Better chance of getting compensationd. Spatial Boundaries: Frolic and Detour rule---a mere frolic and detour,

your own time. A small deviation to do things related to work, debatable, but could be part of work.

e. What if you call someone for work on a phone while driving and they crash? VL or no? Not yet decided.

f. VL is hard to determine, hard to define what is the scope of employment even w/the test

B. Baptist Memorial Hospital v. Sampson pg. 24- P and D agree that Dr was not an agent or employee of hospital, so Sampson has burden of raising fact issue on each element of her ostensible agency theory Was D (hospital) vicariously liable under the theory of ostensible agency for an emergency room physician’s N (fault + cxL).

a. Holding: Court finds no acts on the part of the d that would make the p reasonably believe that the dr. was an employee of the d under the ostensible agency theory.

b. Policy: Why should an employer not be liable for the work of an ic?a. Controlb. Don’t do the hiring of each person involved necessarily, or

don’t have the requisite expertise to do soc. Benefits received are differentd. Can bear burden as well or better (IC company)

c. Employee v. independent contractora. Level of control

i. Employers have more control over employee than independent contractor

ii. Payment1. Regularity of payments from employer (ic

company might get one lump sum, whereas employee could get paid every week.

iii. Different businesses/level of expertise in field iv. Duration of relationship

d. Legal issue before court- Do facts satisfy rule of law to show OA?a. Principal’s conductb. Caused reliable beliefc. Justifiable reliance

e. OA is the way you can get to the Employer/Principal of an IC. Have to prove N on the party who acted, and a connection to the other party you are suing. Same for Respondeat Superior. Can sue both the Employee/IC and the Employer, not an either or.

a. Breachi. Historical Development of Fault:

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A. Brown v Kendall pg. 27-Guy tries to separate two fighting dogs by hitting them with sticks. P walks into his stick while he is separating them, hurts his eye, and sues the d for action of trespass of assault and battery. Was D liable for the damages?

I. Holding: If you are exercising ordinary care, and an unintentional harm happens, you are not liable.

II. Jury instructions were that if you didn’t exercise extraordinary care you would be liable, which is only a bit better than strict liability.

III. D trying to change the law here to include fault, and it works.

IV. By creating negligence instead of strict liability, move towards a policy that encourages business and innovation, due to the high level of accidental injury during the industrial revolution. Judge chose a dog fighting case to make a new policy; sneaky.

ii. Factors and equations to assess reasonableness:A. Adams v. Bullock pg 38 Boy swinging a wire that goes around

a bridge and ends up electrocuting himself on a trolley car line. Should the trolley owner be liable for injuries suffered by the boy even though it seems that he was exercising reasonable care in protecting the exposed wires?

a. Holding: In exercising reasonable care, even in a dangerous field, a business should not be held liable for extraordinary incidents that stem from lacking outrageous care.

b. No N b/c the only way that a trolley can work is w/overhead wires and the value of the activity for a modernizing society far outweighs the damages that can happen from having an attractive nuisance.

c. Cost of curtailing the activity is too high: Cardozo finds that the d exercised reasonable care for the industry that he was in-other methods of protecting the wire would not be very feasible and might make having the trolley not worthwhile

d. Braun v. Buffalo-n 2, 40-case where exposed wires that injury someone 25 years later becomes a case for a jury, here Cardozo takes decision away from the jury

e. Greene v. Sibley-n 3, 40-Lady trips over a mechanic who crouches behind her. Jury verdict for her, affirmed on appeal, overturned by Cardozo. D in this case says foreseeability is small, value of activity, not very dangerous. P would argue that worker should have foreseen that lady might trip over him, prevention is very easy (just say watch out). D would say that it

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would be expensive to warn people about everything, costly, a waste of time.

B. US v. Carroll Towing pg 41-Workers negligently tie ships together, causing valuable cargo to fall into the water. Had the bargee of the d been in the boat, then he would have been able to mitigate the ensuing damages. Was it N for the bargee not to be on the boat, and as such, should the d be held vicariously liable?

a. Holding: Learned Hand comes up w/ B<PL theory. If the burden (cost of accident prevention) is less than the probability (foreseeability of the accident) times the liability (cost of injury) then it is N for one not to assume the burden of accident prevention. If B>PL then it is not N not to assume the cost of accident prevention, b.c it is not reasonable to pay more than you should.

b. Here, the cost of having the bargee on board, or hiring another one, is much less than the cost of damages and the FOS of boats bumping each other in crowded waters. Thus the d is liable for the damages.

c. In Greene the b is too high compared to the PL, so no N. In Adams, it also appears that B>Pl so there is no N (burden of not separating fighting dogs might be high in relation to social value).

d. Bolton v. Stone someone is hit by a cricket ball far away from the field, hasn’t happened before. Since B is so low, the court only looks at PL. Uses the Foreseeable Danger Rule-d should be liable if there is substantial risk created by the activity.

e. Hand equation is simple and says to treat others as you would expect to be treated, but there is the morality aspect of placing cost on life.

iii. Concept of Reasonable person:A. Bethel v. NYCTA pg 47- P was hurt on city bus when a wheelchair accessible seat collapsed under him. Couldn’t prove that d knew of the defect, but a uses theory of constructive notice (construe that someone had knowledge based on the facts-should have known) to show repair record from 11 days prior to the accident shows that repairs were made to “lift wheelchair” which P claims refer to the defective seat. P says a proper inspection of seats would have revealed the defect. What is the duty of common carriers?

a. Holding: A common carrier is subject to the same duty of care as any other potential tortfeasor-reasonable care under all the circumstance of that casecommon carriers are no longer held to a higher standard in NY

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b/c the reasonable standard of care can accommodate the fact that they are a common carrier. .

b. Kelly case from 1889- Common carriers have the duty to “exercise the utmost care, so far as human skill and foresight can go” for the safety of their passengers in transit.

c. Community has an external and objective standard, that of reasonable care, while the prior standard was less objective because it asked for utmost care as far as human foresight can go, which is hard to imagine. To deal with this, courts make up the fictional “reasonable person”

d. Single reasonable person standard is sufficiently flexible by itself to permit courts and juries fully to take into account the ultrahazardous nature of a tortfeasors activity. If there is a high risk, the reasonable person standard just asks that the d spend more on B (Hand equation).

e. There was a special relationship b/w the common carriers and passengers.

f. Difference b/w reasonable standard (BPL) and highest standard of care, which adds an x to the equation, making it look like B>PL+X. If B is 100, and PL is 90, then under N you wouldn’t be liable. If x is 20 though, then you would be liable under Higher standard b/c PL+X=110 so B<PL

g. Reasonable standard of care says you are liable if you should, higher standard says you are reasonable if you can, which is a huge difference.

iv. Role of Judge and Jury in assessing N: LOOK AT REASONABLE PERSO POWER POINT

A. B & O RR v. Goodman pg. 58-P (names reversed on appeal) killed crossing the tracks of d train, couldn’t see when he was 12 feet away and going relatively slowly. Was p driving n, and if so, should d still be liable for his death?

a. Holding: Even though due care questions are generally left for the jury to decide, when the standard of conduct is clear, it should be laid down by the court. When a person driving is near a train track, they are responsible for checking to make sure that a train is not coming. P was n not to stop and not to get out and look.

b. Case doesn’t need to go the jury, as a matter of law the p was n.

c. Easier for the p to stop and look than for the d to stopd. Here, the contributory n of the p got the case dismissed,

would be different now.

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e. Here, low B (daylight), P had knowledge of the are (FOS high) L is high too, thus the B<PL so p was n.

B. Pokora v. Wabash RR pg. 60-Case that is just like Goodman but gets to US SC 7 years later, and now Cardozo is there, not Holmes.

a. Holding: Question was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight.

b. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of the jury

c. Tries hard not to overturn Goodman but essentially doesthis case was at night, so getting out and looking wouldn’t have helped, but in general getting out to look means that you have to get back in your car eventually, train could come then. Definitely limits Goodman.

d. Policy question: Courts need to careful in establishing societal standards of care, since those standards change, better to leave those decisions to the jury, but the argument against this is that then you have to d othe evaluation on a case-by-case basis

C. Andrews v. United Airlines pg. 64-P has luggage fall on her head from overhead storage bins on a plane. Experts for both sides say either that it is cost effective to stop the bags from falling or that it is not. What is the standard of care? If it is for people to be careful, then p loses on summary judgment, if it is for the airline to protect her even more than they did, then the case should go to trial

a. Holding: Case should go to trial b/c Even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated ‘consistent w/the character and mode of [airline travel] and the practical operation of [that] business’

b. This doesn’t mean that p will win, only that the case should go to court

c. Jurors, who have flown, will be well equipped to establish what the reasonable standard of care should be.

d. P says that P in BPL is high, D says that PL is low, judge says that no one has talked about B yet.

e. Difference b/w Andrews and Adams, why did one go to the juryplaintiff in Andrews was a passenger, in Adams, the plaintiff was a passerby. Common carrier relationship in this case, in Adams there was no such relationship, and here P is arguing for utmost standard

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of care, which the judge might agree withgives language applying the higher standard of care and also talks about practical operation of the business.

f. Is reasonableness a factual (jury) or legal (judge) question?

g. Judge-bright line rules, consistency, predictability, notice. Jury- more people, flexible, peer community, flexible in light of changing technology

v. Role of custom: A. Trimarco v. Klein pg. 67- P falls through glass shower door.

Looked like the glass was stronger than it was. P presented evidence that since the 1950’s, the practice of using shatterproof glass had come into effect. The accident happened in 1976. D’s managing agent said that it had been a custom to install new, safer glass for shower enclosures, either to replace broken ones or to comply w/a requestthe d says that they had to be put on notice, not denying that there was a custom though. What is the role of custom in establishing the standard of care?

a. Holding: Jury should decide the custom issue by looking at:

Feasibility-Cost-Effectiveness?-Purpose of the custom as related to the effectiveness of the custom.-Social value-not going to drive anyone out of business in this case (unlike the Adams case)

Foreseeability (P)-How serious is the injury

b. Policy behind custom:1) If an industry adheres to a way of doing things, then

the court can be wary of a plaintiffs allegation that there is a safer way, and can insist that the plaintiff demonstrate the feasaility of this safer way.

2) If the p can show a feasible alternative, the fact that this alternative was not in use anywhere can show that it was not unreasonable for the d to be unaware of the possibility.

3) If a custom involves a high level of fixed costs, it can warn the court that the social impact of doing away with that custom would be great.

b. What if d says that over twenty years, glass has never shattered? D saying that it is not a foreseeable risk, thus not reasonable. P would say that just b/c it hasn’t

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happened for a while doesn’t mean that it wont; the fact that other people are doing it means that some people foresaw the injury-why the purpose matters.

c. What if the d says he has never heard of the custom? Helpful to the p if he can show that the d should have known

d. What if d says that he will go out of business by putting in shatterproof glass? Standard of care is measured by everyone, not just one person. What one can do is not how we set the standard of reasonable care; it is what one should do. It is an objective inquiry; d would be trying to make it subjective.

e. Can custom help a d? Note case where the d motel operator didn’t have to install lights in the hallway b/c no other motel had them.

f. If you had a choice b/w a house w/tempered glass or a house w/o tempered glass that was cheaper, which would you choose? (Landlord will charge more now that he has to put in better glass). Problem w/tort law and BPL standard is that it thinks everyone should act the same but doesn’t leave any room for an individual’s choice.

vi. Role of statutes: A. Martin v. Herzog pg. 73- P driving and struck by D who was also driving. Husband was killed of p killed. D came around a corner, at night. Charged w/negligence for not keeping his car in his lane on the turn, which is against a driving statute. P trying to get damages for injuries resulting in death. P husband is also charged with negligence b/c he was driving w/o his lights on, which is against a driving statute too. No evidence that d was going too fast, only a question on his guilt in crossing lane on turn.

a. Holding: It is negligence per se when a statute that is meant to preserve life and limb is violated

b. Juries don’t have the power to decide when they can relax the duties that one highway traveler owes to another, and they should not be given that power by a judge who lets them determine the culpability of one who violates a statute in a contributory negligence case. The fact that he was not using his lights means he was negligent; this is not a question for a jury to decide on, it is a fact of this case.

c. To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform.

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d. Issue arises b/c what happens when the legislature doesn’t address tort law in the statute?

e. Prima facie-2 definitions1. Has p offered enough of a claim to send the

question to the jury2. Rebuttable presumption-presuming that there is

negligence unless rebutted by the plaintiff in this case. If there is a rebuttal, then the question is up to the discretion of the jury. If there is no rebuttal, then negligence has to be found b/c there has been no rebuttalno rebuttal=less discretion

f. What can a defendant do to avoid negligence per se? In this case, look to see that the statute is just about protecting other people, maybe the statute you violate isn’t about that (like an emission requirement or something).

g. Question of whether we use n.p.s is one related to judge v jurynps is a bright line rule, nice, tidy, but case may arise where it is unjust, less flexible. Some say that n.p.s. reflects legislative intent. Legislature told you that they want people to have lights on, but there might be other reasons for the statute that are not tort related.

h. Negligence means that you had a duty that you breached which caused damages

i. Negligence per se means that as a matter of law you have proved breach, and thus a duty.

B. Tedla v. Ellman pg. 76-P were walking in the road, in violation of a statute, b/c it was safer for them than walking in the meridian. Get hit by d, sue him, d tries to use Martin ruling as protection, saying that the p were violating a statute as well, so he cannot be liable.

a. Holding: If it is safer to violate a statute for the preservation of ones life and limb, then one is not negligent per se, even though one violated a statute willfully.

b. Statute provides that the rules of the road be observed by pedestrians and by vehicles, so that everyone knows what is going on.

c. Not observing the standards of care set forth in a statute is negligent. If a statute does not impose a standard of care, but simply codifies a common law rule that has always been subject to limitations and exceptions, then the statute should not be construed as intended to wipe out limitations and exceptions that judicial decisions have attached to the common-law duty.

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d. Calls the statute in Martin a standard of care statute. Statute in Tedla is more of a guideline than a standard. When you violate a guideline, you are not negligent per se.

e. Court in Tedla suggests that in guideline statutes we apply a prima facie idea. Violating a guideline is negligence per se, unless you can rebut the presumption through evidence of an excuse

f. Court doesn’t offer us a good guideline for what is a guideline and a firm safety statute (what about speeding, rule of the road, or statute?).

g. Platz case in notes-people injured driving on a Sunday, which is against a statute; sue the city. Statute was meant to promote order, not safety, so the p was not negligent per se and can sue.

h. Excuses that are often allowedemergencies, cant for some reason, more dangerous to comply (allowed in some jurisdictions). Excuse can be interpreted narrowly (Martin) or narrowly (Tedla).

i. Look to legislative intent in the creation of the statute, can be interpreted many different ways a lot of the time

j. Compliance-Ds can try and use statutes and regulations to try and show that they behaved reasonably. Courts view this in much the same way that they look at custom. Most courts don’t just adopt statutes as a reasonable standard of carenot a slam-dunk.

k. What you interpret a statute as really affects the outcome of a case, and many times whether it is a safety standard or not is hard to discern.

l. Just b/c a statute doesn’t prove n in one case doesn’t mean the p in that case can’t try and prove n another way, like w/BPL

vii. Proving N1. Circumstantial evidence: A. Negri v. Stop and Shop pg. 86-P falls and hits her head after slipping on broken bottles of baby food that seem to have been broken and on the floor for a whileD may have had constructive notice of the spill.

a. Holding: Cannot be said that as a matter of law the circumstantial evidence was insufficient to permit the jury to draw the necessary inference that a slippery condition was created by jars of baby food …which had fallen long enough ago to allow the d’s employees to clean up the area and make it safe.

b. Proof of negligence: burden lies with the p to show that d conduct was below the standard of reasonable care.

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This means having to prove what the d did or did not do, and the unreasonableness of that behavior.

c. Could the accident have happened w/o negligence? Yes, if the jars fell right before the lady tripped, cant constantly clean everything. But no one heard the jars fall, so no one knows when they did, and the bottles were dirty, means they were on the floor a while

B. Gordon v. Museum of Natural History pg. 87-P says that he tripped and fell on the stairs of the museum after slipping on a pice of paper which he said had been lying around for a long timesays the d was n for not cleaning the steps.

a. Holding: No evidence that the d knew or should have known (no constructive notice) of the hazard so the question should not have gone to the jury on that theory

b. Citing Negri-constructive notice means a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.

c. Not even the plaintiff saw the paper before the accident, no record anyone else did either. Paper was neither dirty nor worn in its description, implying that it had not been there long.The paper being dirty is helpful, but is probably not enough. How do you know that the paper came from the defendant? Couldn’t it have been blown from somewhere else?

d. Business practice exception—some cases where self-service businesses have constructive notice waived in suits against them b/c they should anticipate dangerous circumstances stemming from all these people helping themselves.

e. If you wanted to focus on all the paper, then you would say that not keeping the area clean caused a higher risk of injury, but that is not what is being argued in this case.

(a) Res Ipsa Loquitur: A. Byrne v. Boadle pg. 91-P walking down the street, get s hit by a barrel that came from d factory, but no one knows why the barrel fell. D says that he is not n.

a. Holding: The defendant in a prima facie showing of negligence has the burden of proof of rebutting the assumption of negligence and proving that he is not negligent, or else the mere fact that an accident happened will prove his negligence.

b. First case we see of RIL. Falling barrels leads us to infer negligence. Infer that negligence caused harm—

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that’s a lot of inference-leave it to the d to show that these inferences are wrong.

c. Possibility in all of these cases that the action doesn’t show negligence. Can a barrel fall out of a warehouse w/o negligence? Most likely no, short of a natural act (like an earthquake), so we are ok w/the idea of having the d rebut the presumption that they were n.

d. We are inferring negligence w/o knowing what the d did or did not do, because of the nature of the act (getting an infection in a hospital, not good ril case, b/c that happens all the time for a variety of different reasons).

e. Note case 3, pg 93. Larson casehotel not negligent in a ril claim where a chair was thrown from the window. Hotel doesn’t have constructive control over its patrons. Boadle has constructive control over the people working for him and his barrels.

f. RIL is still a category of circumstantial evidence, still talking about how the p can make a case against the d when they don’t have a lot of good evidence.

g. When you are not focusing on a specific act of the d, but just the fact of the accident, is when you make a RIL claim. RIL claim you don’t suggest what the d did or did not do. But they can quickly turn into specific negligence claims based on responses from the d. RIL can’t point to specific things that the d did.

B. McDougald v. Perry pg. 94-P injured when a tire falls off of d’s truck. No one knows why the tire fell off b/c a chain that held it has been lost. P brings RIL claim.

f. Holding: Res ipsa loquitur should not be applied freely by a court, but when it is, a p has to show that it is most likely that the accident in question occurred through negligent behavior by a d who is in control of whatever injured him, showing the immediate cause of the accident and using community standards of reasonable behavior and common sense to affix negligence.

g. RIL provides an injured p w/a common sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent w/negligent behavior are present. P must prove that whatever injured him was under the direct control of d, and that had it not been for negligent behavior by d, accident would not have occurred.

h. Restatement (Second) of Torts (1965)-There are plenty of accidents that occur w/o negligence from anyone. A man who just falls down the stairs, or a popped tire.

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Those two accidents, viewed on their own, are not enough to infer negligence in making the stairs or in tire production. But there are, obviously, many accidents that occur as a direct result of negligence. Expert testimony that an event does not occur w/o negligence can trump common experience of the jury or judge.

i. P doesn’t have to prove every theory as to why the tire flew off, only has to show is evidence from which reasonable people can say that on the whole it is more likely that there was negligence associated with the cause of event (tire coming loose- i.e. p doesn’t have to prove that the chain was made negligently, only that d didn’t fix the tire to the truck properly, or didn’t reasonably maintain his tire securing system).

j. Elements of RIL:a. More likely than not due to negligence (the

accident itself w/o knowing anything else about the situation)

b. Instrumentality that caused the accident entirely in control of the defendant

k. If the chain had been 6 months old, instead of 20, then it wouldn’t be such a good RIL case b/c it would be hard to show who was in control of the chain/instrumentality

l. The question of it more likely to be due to negligence is answered w/o regard to who was negligent, that gets answered next. Someone is negligent for the axel coming off, the driver or the company.

m. The more bizarre the event is, the more likely the court will consider RIL.

n. In McDougald-p makes no mention of a standard of care or defendants, like aboveIs this strict liability? NO!!!!b/c we are still trying to prove fault w/causation being implicit but not relying on specific facts. See the later Traynor concurrence.

o. Lighter burden than proving n-W/any kind of circumstantial evidence, including RIL, p can make such a convincing case as to get a directed verdict (see note cases)

p. The d can also get a directed verdict by eliminating a criteria of RIL (note case where Dr. proves he was not in control of instrumentality.

C. Ybarra v. Spangard pg. 101- P gets surgery in hospital on his appendix, wakes up unale to use his arm. Doesn’t know why, but it happened during the surgery. Team of dr’s operating on him don’t know or won’t say what happened. P sues under

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theory of RIL. Can RIL apply if no one knows how the accident happened or who had exclusive control of the instrumentality when it did?

a. Holding: In cases where a p receives unusual injuries while unconscious and in the course of medical treatment, all those ds who had any control over p’s body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

b. Liberal RIL view that only makes sense if you view all the doctors and nurses as one entity. Most likely the court ruled this way to protect against a conspiracy of silence.

c. Res ipsa loquitur conditions:i. Accident must be of a kind which ordinarily

does not occur in the absence of someone’s negligence.

ii. Must be caused by an agency or instrumentality w/in the exclusive control of the defendant

iii. Must not have been due to any voluntary action or contribution on the part of plaintiff

d. Idea of RIL is that it should be used when the d has better access to info, here the guy was unconscious, so it applies there.

e. Economic rationale hereshould the p pay for the loss he suffered himself, or is it best to spread the loss around to the ds b/c there are more of them and they have malpractice insurance?

f. In McDougald, a chain breaks, you have the maker of the hcain, the dealer of the chain, and the driver. Why cant Ybarra apply? No team in McDougald. McDougald happened 20 years later, Ybarra happened at one time. Often we’ll have a whole group of d, but cant always say that they are part of a team, or that they all have better access to info.

g. 2 approaches to RIL (pg 103)i. Wigmore approach—RIL helps a p when the d

has better access to the information (policy). Looser approach to RIL, not the approach that is usually followed.

ii. Prosser approach—RIL used to infer negligenceh. Note case 6—as a p you would emphasize the Wigmore

approach, that the d’s have better access to the relevant info. Court didn’t apply Ybarra thoughD’s in this case weren’t a team, working towards a goal. There

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was no special relationship b/w the guest in a hotel and an insurer (there is a special relationship b/w a guest and a hotel).

i. Note case 8—No Ybarra under modern discoveryModern discovery makes Ybarra and Wigmore approach less likely to be applied.

viii. Special case of Medical malpractice(1) Standard of care: Sheeley v. Memorial Hospital pg. 109-P gets gynecological procedure done on her by a 2nd year family practice resident that goes bad. Sues for malpractice. D says that p expert cannot testify b/c he is an expert ob/gyn and thus in a different field than the d. D says that according to state statute-in a personal injury or wrongful death suit brought against a licensed physician, only persons “who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice” will be allowed to give expert testimony at trial. Can a doctor from a different field from the d doctor testify at trial?

a. Holding: A physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.

b. In medical malpractice you need an expert witness to prove the standard of care unless it is so obvious that a non-doctor would be able to ascertain it.

c. Buja v. Morningstar held that there is nothing in the statute that says that an expert has to be in the same field and that interpreting the statute this way contravenes the legislative intent.

d. D says that “similar locality” rule means that Leslie is not qualified to talk about the standard of care in RI b/c he is a Dr. and prof. in NY.

e. Court says that the strict locality (expert testimony must be from same community [it began this way, then moved to similar locality, that the communities must be similar, not the same]) rules have been criticized b/c they legitimize a lower standard of care in rural areas and encourage locals not to comment on the local standard of care, making local expert testimony impossible (conspiracy of silence).

f. Doctors are held to a national standard and take national boards, so no need for locality rules.

a. Problem w/national standardtoo many people testifying as to a standard of care, people make it a profession to testify, and testify accordingly.

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g. Sometimes it is difficult to find an expert in the exact same field as the d dr. b/c dr’s don’t want to testify against people in there own field, who might later go and testify against them later.

h. In medicine, the field actually defines the standard of care. But there are different fields. Doctors have to define what is reasonable under the circumstances for the jury. Not necessarily only one to way to do it in medicine. Thus custom is treated differently in medicine.

(2) Informed consent: Matthies v. Mastromonaco pg. 122 P breaks hip and dr. prescribes bed rest instead of surgery b/c the lady was old and had osteoporosis. P ends up losing the ability to walk and has to go into a nursing home b/c she can’t take care of herself any longer. P says that she never would have consented to bed rest if she knew what the outcome would have been. Does the doctrine of informed consent requires a physician to obtain the patient’s consent before implanting a nonsurgical course of treatment and should a physician also discuss courses of treatment which they do not recommend to a patient?

a. Holding: To obtain a patient’s informed consent (a subset of malpractice) to one of several alternative courses of treatment the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive.

b. Choosing a treatment is for both the dr and the patient to do together, patient telling dr what they want, dr providing the option, and then the patient saying which one they want.

c. Informed consent began w/surgeries, b/c dr’s could be charged w/battery for unwanted touching. Then idea moved towards wanting to give patients the right of self-determination.

d. In an informed consent analysis, the key issue is not whether the treatment was invasive or not (d’s contention) but whether enough information was given for adequate self-determination from the p (became a negligence action, not a battery action)p argues that she never got a chance to weigh the options she had. Most of the time, informed consent cases arise when people aren’t adequately informed of the risks involved in their options, which is not the case here, b/c here she didn’t get options at all.

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e. 2 situations: In something like a chest cold, a physician doesn’t have to tell the patient about all the pros and cons of every antibiotic out there. In something like cancer, a physician could be obligated to discuss a variety of treatment alternatives (like chemo, or surgery)

f. Reasonable patient standardobligates a physician to disclose only that information material to a reasonable patients informed decision.

g. If purpose of the doctrine is to protect autonomy, then invasive or non-invasive procedure should not matter, as the purpose of the doctrine is to help the patient make a choice.

h. Elements of Informed Consent:1. Scope of disclosure (duty and breach)2. Material to a reasonable person (1/2 of j’s).

Objective test, defined by what a jury decides. Maintain autonomy, bodily integrity.

3. Professional standard of care, dr decides (other half)-they have the expertise. Hard to figure out what a patient wants to know, takes time away from treating the patient.

a. Courts moving toward the first option, b/c the doctrine is about autonomy. Reflects a historical change.

i. Dr’s don’t have to do what the patient wants them to do if it is not reasonable according to the standard of care or if they are morally opposed (like perform an abortion).

j. Possibility of a subjective standard, but courts don’t use that, although it should matter what the individual wants, according to the autonomy interpretation, but the court tries to find a middle ground. Subjective standard is speculative, and also a possibility of fraud (patient changing mind after the surgery, and saying the were feeling that way the whole time)

k. What is the test for causation? What a reasonable patient would have decided if they knew the information”if you had told me about the surgery, a reasonable person would have chosen it, and avoided this harm”

l. If there is no alternative treatment, then causation is impossible to prove by the patient (w/appendicitis, surgery, or you die, so no real choice)

m. Kind of cases p can win in informed consent is when there are more choices that they weren’t told of, or

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when you undergo optional surgery, and a harm happens that you weren’t made aware of its possibility before hand (like scaring after plastic surgery). Also the harm suffered has to be reasonable, like if 1 in 1 million people die from a surgery, that shouldn’t be an issue.

b. Duty – cases where duty is problematici. Duty to aid/rescue:

A. Harper v. Herman pg. 131-P on ds boat, w/o telling anyone, jumps into really shallow water and gets paralyzed. Sues the d, says that he had a duty to warn him not to jump in

a. Holding: P had no reasonable expectation to look to the d for protection, thus the d owed him no duty

b. An affirmative duty to act only exists when there is a special relationship b/w the parties

a. Special relationship-dependence on someone else, unable to protect themselves, idea of a custodial relationship, and the idea that the d is profiting from the p (like an inn, or common carrier). Foreseeability not a part of this.

b. Now the modern approach is that we all owe each other the standard of reasonable care.

c. Restatement (Second) of torts §314(A)-Generally a special relationship giving rise to a duty to warn only exists w/common carriers, innkeepers, people who own land and open it to the public (invitee), and people who have custody over another person under circumstances where that other person is deprived of normal opportunities of self-protection.

a. The last scenario generally occurs when the p is vulnerable and dependant upon the d, and the d has a lot of power over the p’s welfare. Also usually involves some sort of existing or potential economic advantage to the d.

d. Facts do not show p to be very vulnerable or lacking in ability to protect himself. Nor did the d have considerable power over the p, or have any economic gain.

e. Elements:a. Knowledge of a dangerous condition (d knew

the water was shallow)b. Proof of an affirmative duty to protect someone

from that dangerous condition (no duty for the d, so no liability).

f. After a duty is shown to have existed, you still have to show the other 3 elements of n

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g. If the p said he was diving in, and the d said nothing, there was still no duty to warn. But if the d asked if it was safe to dive, and the d said yes, then there is an affirmative duty not to make a situation worse, if he says yes, then he is acting affirmatively to make a situation worse (misfeasance case). If he says nothing, like in this case, there was no action, a nonfeasance case.

h. Note cases show the difference b/w mis and nonfeasance. Also show that if you are aware that your misfeasance will cause harm then you have a duty to do something.

i. Note 4, 6-defendants have duty when they created risk, or when you voluntarily assume a duty. Misfeasance, nonfeasance. Courts more willing to find duty w/the feasances.

j. We have the freedom to do what we want unless it interferes w/someone else. Expect that people won’t interfere w/our activitieslibertarian idea, autonomy.

k. You can start from not being involved but that by not doing something that worsens the situation, you create a duty.

C. Farwel v. Keaton pg. 131-P and d get into a fight, p gets beat up badly, d gets away. D comes back, finds p badly beat up. Drive around for a few hours, the p passes out, d leaves p unconscious in car outside parents house, p dies. Did the d try to aid the victim? If yes, then a duty arose which required the d to act as a reasonable person. Was there a duty to aid Farwall even though he didn’t cause the harm (classic nonfeasance)?

a. Holding: When there is a special relationship b/w two parties, a party has an affirmative duty to care for the other party if they know or should have n=known that the other party is in peril and it poses no danger to them.

b. Duty is usually a question of law, but sometimes there are factual circumstances that require a jury to determine if duty exists (compare to judge v jury section above)

c. Where performance clearly has begun, there is no doubt that there is a duty of care.

d. Did a special relationship exist? Court says yes it did. P and d went on a social outing together, and implicit in those circumstances is that one party will aid another in they are in peril if they can do it w/o endangering themselves.

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1. Rationale for duty is the misfeasance, b/c Siegrit (the d) started to aid p. If he had just walked away there still would have been duty according to this court b/c a common endeavor creates a special relationship which brings w/it an affirmative duty to aid the other one.

e. Dissent: Plaintiff elevates moral obligation to the level of legal dutyreally questions the special relationship created from a common endeavor.

f. Restatement (Second) of Torts §324-one, who under no duty to do so, takes charge of another who is helpless is subject to liability caused by not exercising reasonable care to secure the safety of the other while they are in their care or stopping their help and leaving the person worse off than when they found them.

1. You cannot put the person back into harms way, like pulling someone out of a poisonous pit, then putting them back in, b/c they will then suffer more harm.

g. §326-liable if you intentionally prevent a 3rd party from giving aid.

h. H.R. Moch Co. v. Rensselaer Water Co. Opinion by Cardozo. Court holds that there is no common law tort action available to users of water supplied to the city. Shutting of water to a hydrant was at most denial of a benefit, not the commission of a wrong.

1. Cardozo says that this is a nonfeasance case, but what it really is is a policy decision b/c Cardozo doesn’t want everyone suing the city.

2. People had a huge reliance claim taken awayi. Not clear that Siegrist prevented help, b/c Farwall

might have never been found. By helping though, d became an officious intermeddler (check that though)

j. Rationale for voluntary assistancedeter rescuers who will do more harm than good. But what if people who can help don’t? A lot of states have Good Samaritan laws to protect trained people who help others and might mess up.

k. Some people believe that we should hold people to a duty if it is an easy rescue, beyond even having a special relationship. But from an autonomy viewpoint, the ease of rescue shouldn’t be relevant. From a utilitarian viewpoint, the ease of rescue shouldn’t matter either, as you should help others in need, no matter what the risk.

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l. Should we have a rule that has a distinction b/w starting to help someone, then stopping, but leaving them in no worse state, and pretend that in that time, no one else could have rescued, makes you have a duty to help?

i. Moral issuePerson not worse off then they started, but had something good for a second then lost it.

ii. Worse off rule is aided by autonomy-if you can decide to help, then you can decide to stop if you leave the person in the same condition

ii. Duty to 3d parties/to control conduct of others: A. Tarasoff v. California Regents pg. 158-D psychiatrist treating Poddar, knows that Poddar wants to kill the p. Dr. doesn’t warn the P that her life is in danger. She gets killed. Did he have a duty to warn the p about possible danger from a 3rd party?

a. Holding: P can bring suit that the d had a duty to warn b/c he knew or should have known that Poddar was a danger to the p. Court believes that once a therapist reasonably determines that that a patient poses a serious threat of violence to others he bears a duty to exercise reasonable care to protect against that danger, measured against the traditional negligence standard of reasonable care under the circumstances.

b. Generally, a d owes a duty of care to all persons who are foreseeably endangered by his conduct, w/respect to all risks which make the conduct unreasonably dangerous.

a. But when a d has to control the conduct of another, they should only have a duty if there is a special relationship. Therapist and patient have a special relationship.

c. Duty can come from:a. A special relation b/w the actor and a third

person which imposes a duty upon the actor to control the third person’s conduct or

b. A special relation b/w the actor and the other which gives to the other a right of protection.

d. Duty b/w dr. and patient may support affirmative action for a third partytelling someone they can’t drive anymore, b/c they are dangerous to others. Hospital exercising reasonable care to control a patient who will endanger another.

e. D says that therapists shouldn’t have to warn others about patients violent proclivities b/c it is impossible to know whether they will act on them or not. Most of the

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times the predictions are wrongCourt doesn’t argue w/that, says that a therapist can determine when they will warn. If they judge wrongly, which will only be known in hindsight, then that isn’t enough to prove negligence.

a. However in this case, the complaint doesn’t allege that the dr. failed to predict that Poddar would kill T, but that he failed to warn.

f. Dr. patient privilege does not cover when a therapist has reasonable cause to believe that a patient is of such a mental or emotional condition as to be of danger to themselves or to others and if the communication of this is necessary to prevent that danger from happening.

g. Duty to control [Restatement §315] (parent child, master servant, hospitals and patients w/homicidal maniacs or peoples w/infectious diseases.)

a. Best comparison is the hospital w/the homicidal maniac. But Poddar wasn’t in the dr.’s custody, there wasn’t that much controlscope of duty being broadened.

h. Policy of duty to 3 rd party: bold is what court talks about

a. Foreseeabilityb. Closeness of the connection b/w the plaintiffs

act and the defendants harm (at some point the connection isn’t strong enough or is to long to find a causal connection)

c. Prevent future harmd. Burden to the de. Consequences to the communityf. Moral blameg. Insurance , ability to mitigate costs on both

sides. i. How could a d therapist defend themselves? Say that

you never predicted that this would happen. The whole discussion in text about reasonableness goes to the amicus curaie brief, not to the facts of the case, case turns on the fact that he predicted harm would happen. This is a narrow vies of the holding of the case.

j. Result of this case is that patients might not trust doctors, or that doctors will be hesitant to treat any patients whose behavior they might be forced to predict.

k. Option of involuntary commitment. Would have protected Tatiana better than telling her that Poddar wanted to kill her. Harder to reach the threshold for

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involuntary commitment (beyond a reasonable doubt) than the reasonable standard of prediction. SO the next available option is actually harder than this one.

l. Is there a duty to warn the family? Dr. had a duty of reasonable care to the third party, but was a duty to warn included in this duty? Court leaves this up to a jury. The court says that the complaint can go forward b/c they find there is a duty, but doesn’t answer this question. It is possible that the dr. fulfilled his duty by telling police, but this is a question to be answered later.

m. Duty extends here to reasonably identifiable people. If the patient says he wants to kill all blonde women, not much a dr. can do in terms of prevention.

B. Reynolds v. Hicks pg. 185-Nephew of d gets drunk at wedding. Crashes into p and p sues d for providing alcohol to d. Says that the d had a duty to protect p (3rd party) from any injuries d would inflict from booze he drank at the party.

a. Holding: Court does not recognize a cause of action from an injured third party towards a social host. Does not impose a duty for various policy rationales.

b. Burden to the d would be large-are they going to card everyone? Should the host breathalyze people before they leave?

c. Statute Question: There is a statute that that forbids serving alcohol to a minor, except when a parent does it. Court says that the purpose of the statute was not to protect third parties but to protect minors from injuries.

d. Duty on commercial vendors to protect 3rd parties, but they are better equipped to shoulder the burden.

e. Dissent: Not persuaded by majorities reading of the statute. Doesn’t see why you can be criminally liable, but not civilly. (Commit a crime by serving booze to a minor). Moral blame issue.

f. P would say that this is a misfeasance type of case. Say that d is setting up a hazard by having the booze. Creating a risk, even if you are not actually pouring the drinks.

g. Legislatures have been quick to defend social hosts as well by limiting their duty to othersbalancing test.

iii. Duty Landowners to Occupiers: A. Carter v. Kinney pg. 190-P comes over to d’s house for bible study. Falls on ice outside, sues d. P can only sue depending on the type of relationship he had w/the d.

a. Holding: P was a licensee and d did owe a duty to care, but only to make the land safe from dangers of which d was aware.

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(There is a duty, but the scope is more limited than that owed to an invitee).

b. 3 types of plaintiffs for premise liabilitya. Trespassers, no duty. Until owner gives them

permission to enter, then they are.b. Licensees, Duty to make land safe to known dangers.

Until the owner has an interest in the visit (like making $) so that the visitor has reason to believe that the premises has been made to receive him, then they become.

c. Invitees, Duty to exercise reasonable care to make place safe for an invitee, include both known and unknown dangers that would become apparent after inspection. Land open to the public or business relationship.

c. In MO, social guests are a subclass of licensee for premise liability law b/c the invitation was not tendered for any material benefit and the invitation has not been made to the public

d. Could a reasonable juror have found that there was a breach of reasonable care if the p was characterized as an invitee? Yes, get ice from snow, so foreseeable that ice would form. It doesn’t seem hard to go check the driveway for ice, not a large burden, knew that people were coming over. Foreseeability is high, burden low, gravity high.

e. Open and obvious dangers-when the hazard is there, open and obvious, some j’s say that you have to protect yourself from these dangerous, your own fault (see the ice, know you will slip).

f. Dalai Lama comes to visit-he gives you wisdom, he knows he is giving you wisdom, you are getting something from him, you are the landowner, are you getting something that raises the d to the level of invitee? Looks like yes. But there is language in the opinion that says it has to be a tangible benefit. Court says intangibles generally aren’t enough. Note 2. What the court really means is a business relationship, but you could argue the other way.

g. Tupperware lady comes over, uninvited-comes over for business, tangible, but you didn’t know he was coming, so a licensee or a trespasser (only a trespasser if you explicitly tell them not to come, like a no trespasser sign, or no solicitors). But if you invited them, then it is more likely that they are an invitee.

a. Who benefits? Lady is doing the selling. But lets say the more people that come over, the lower your cost-then you benefit, so she is an invitee. But w/o this, courts are divided. Traditionally she wouldn’t have

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been an invitee b/c you aren’t getting any material benefit. Others say that she is an invitee, b/c it is not a social interaction and looks like business negotiation.

h. Why do we want it to only be an invitee only when the possessor receives a benefit? B/c of a quid pro quo idea, you get something, so in exchange you owe a higher duty.

i. Rationale behind rule is that courts believe that possessors owe licensees only what they would do for themselves, like not cleaning up before someone comes over. Lower duty for the licensee, it’s your private domain, why should the owner be expected to take extra efforts for people coming over, don’t impose on you how you should live in your house.

j. Social guests are not invitees just b/c they were invited over unless you are getting some tangible benefit from them or the land is open to the public.

B. Heins v. Webster County pg. 197-P goes to visit his daughter in the hospital where she works. P says that he also went over to coordinate plans to be the hospital Santa. D says it was just a social visit. P falls on ice outside main entrance, hurts hip, sue. What class of visitor is he, since the hospital is open to the public, but he was there in part for non hospital related purposes?

a. Holding: Court gets rid of the distinction b/w licensee and invitee. The common law status classifications should not be able to shield those who would otherwise be held to the standard of reasonable care but for the arbitrary classification of the visitor as a licensee. Thus a reasonable standard of care for landowners is applied for all lawful visitors. No standard of reasonable care for trespassers, b/c you should not owe a duty to those not lawfully on your property.

b. The classifications arose out of a rural society, where people had big tracts of land and there would be an undue burden if one had to use a reasonable standard of care over all the land. But this isn’t really the case now.

c. Policy for classifications: a. Value in the predictability of common law; doing away

w/it would lead to unpredictabilityb. Harshness has been ameliorated over time by new

classifications.c. Would make landowners less able to guard against risk.

Limit liabilityd. Policy against:

a. An entrant’s status should not determine a landowner’s duty to him. This is contrary to our social values. Reasonable people do not alter their behavior based on this.

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b. Special immunity that landowners get cannot be justified in an urban industrialized society.

c. Get rid of unpredictable harsh rules-the sub-classifications referred to above differ w/in j’s, which leads to confusion.

d. Argument that it shouldn’t be the status of the entrant that matters, rather the foreseeability of injury in determining liability of the landowner.

e. Recovery is a matter of chance sometimes based solely on the status of an entrant.

a. For example, if P was at the hospital to visit a patient or buy a soda, he would have been an invitee, but since he went to visit his daughter, he was denied recovery as a matter of law.

f. Here, no extra burden on the d since they had to shovel the walk for other invitees anyway.

g. Reasonable care issues to consider (thus the status is not irrelevant, but less determinative, lack of predictability issue):

a. Foreseeability of possible harmb. Purpose for which the entrant entered the premisesc. Time, manner, and circumstances of the visitd. Use of the premises, or expected usee. Reasonableness of the inspection, repair, or warningf. Burden on the landowner to provide the above

h. Dissent: A homeowner would owe all sorts of duty to uninvited and unwanted visitorshow often does an invitee come over to your house? Very rarely, now you are being forced to have a heightened duty. It used to be a nonfeasance (you don’t have to do anything). Now the court is making you do something, although with homeowners insurance, the burden is ameliorated a bit. This is the most persuasive argument for keeping the classifications.

a. Basketball player example, where guy at the Y sues the Y for an injury

i. Counterargument to this is that they have paying members to play, so the burden of keeping the area safe is not a big one, since they should be doing it anyway.

C. Posecai v. Wal-Mart pg. 206-P gets robbed of $20,000 worth of jewelry in the parking lot of a Sam’s club. Did the store owe her a duty of care to protect her against 3rd party crimes when she was in the parking lot? Experts testify as to the crime levels in the area, and the feasibility of protection.

a. Holding: Although business owners are not insurers of their patrons safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those

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acts are foreseeable. Duty to protect others from criminal acts of a 3rd party only arises under special circumstances, like when the act is reasonably foreseeable.

a. Here there was no duty, b/c there wasn’t enough foreseeability.

b. Most other state sc’s hold that businesses have a duty to take reasonable care in protecting invitees from foreseeable criminal attack.

c. 4 approaches to see if there is a duty:a. Specific Harm rule: Landowner owes no duty to

protect an invitee from criminal acts of a 3rd party unless he is aware of specific imminent harm about to befall the invitee. Courts find this to be too restrictive.

b. Prior similar incidents test: Foreseeability is established by prior or similar crimes on or near the premises. Past history serves as notice for the d. This is applied too arbitrarily b/c what constitutes enough previous crime and how similar do they have to be?

c. Totality of the circumstances test: Most common. Takes into account any relevant factor as to foreseeability, including the condition, location, nature of the land. Looks at crimes in the area, generally finding that petty crimes reasonably lead to more serious ones. Criticized as too broad for placing a greater duty on owners to foresee crime.Allows you to look more broadly at the circumstances.

d. Balancing test: Balance foreseeability of crime against the burden on the d of imposing a duty. Foreseeability and gravity of harm weighed against the burden on the d. Under this test, the burden of providing security will rarely, if ever, be proven in the absence of prior similar incidents on the property.Not clear from the courts analysis how similar the crimes have to be for there to be be prior similar incidents, like what if it was a rape? Is that similar enough?

d. Court thinks the balancing test is the best way. The foreseeability of the crime risk on the d’s property and the gravity of the risk determine the existence and extent of the defendants duty. If the first two are high, the last will be higher, etc…P’s like totality better, b/c they can bring more issues up. D likes the balancing method best. Looks just like the Hand test. Court looks at what it costs for the d, which is why they like it better. This compares B v. PL, whereas totality only looks at PL.

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e. Security guards need to have a high foreseeability and gravity, because they are so expensive. A lower level might lead to surveillance cameras.

a. Since there was only one similar crime that took place, and the store is only open in the daytime, and it is considered a safe place, Sam’s did not have the requisite degree of foreseeability for the imposition of a duty to provide guards.

f. Which method seems most concerned with creating safe environments? Balancing test seems the most realistic in keeping safe environments, leaves safety to the police. The Totality test might drive people away from dangerous areas, b/c there would be too much of a burden on the d to make their areas safe. Why open a store in a bad neighborhood if you will be held liable for everything. Need to encourage economic development in these areas, so the court wants to put less of a burden on the d.

g. Posecai was an inviteeDuty to invitee is to make land safe for all reasonably known or unknown dangers. So why is the court going through all this trouble? B/c there is a third party. Posecai isn’t alleging a problem with the land itself. Looks like a traditional nonfeasance problem.

h. Court is conflating duty and breach. Why is the case not sent back to the jury if the wrong test was used? B/c the court found that there was no duty at all. The court, however, is getting into the way of jury decisions. Has to look at precautionary measures. Can’t answer B v. PL w/o looking at precautionary measures.

i. Could the court have said that there was a duty under the totality test and then sent it to the jury to find a breach? Jury looks at the burden under the totality test, so yes. But under Balancing test, they wouldn’t have to send the breach question to the jury b/c the court would have already have looked at it under the B v. PL test.

a. Point is, burden is considered in both tests, the difference is who measures it under the different tests. When there is a large social question, when policy issues predominate, the court will take the duty and the breach question together and decide it as a matter of law at the duty stage.

iv. Duties among family members: Broadbent v. Broadbent pg. 214-P loses all motor skills from drowining b/c mom stopped paying attention. P sues d mom, mom agrees to it, so that insurance will cover the medical expenses. Does parental immunity bar a suit, and should there even be parental immunity?

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a. Holding: The doctrine of parental immunity no longer is a valid as parents will be held to have a duty to act in the way another reasonable and prudent parent would act under the same circumstances

b. Doctrine is unique to America, where children were viewed as evil and in need of discipline.

c. Policy for parental immunity:i. Suing a parent would disturb domestic tranquility

ii. Create the danger of fraud and collusioniii. Deplete family resources by giving money to kidiv. If the child dies before the parent and has been awarded

money, then the parent could benefitv. Interfere w/parental control, discipline, care.

d. Court doesn’t buy these criteria, says they provide weak support.

i. Injury to the child already disturbs tranquility. And usually the parents decide to sue themselves and are prepared to say that they were negligent.

ii. Danger of fraud and collusion is present in any lawsuit, so an entire class of litigants should not be ignored b/c of this

iii. Suits are usually brought when insurance cannot be accessed, so a suit will not deplete the family resources. If a child needs expensive medical care, then getting money from the insurance co. after successfully suing the parent would actually help the family situation.

iv. Parent getting money from the kid is a remote possibility. Concern for probate courts and intestate law, not tort law.

v. Justification for harming parental authority is a good one, except that if a parent disciplines a child so harshly that they are injured, then it could be child abuse anyway, or they could be hurt willfully or wantonly, and parents are generally not immune from this either/anyway.

e. Overturns the Sandoval standard that creates a “duty to the world at large v. a duty to the child alone” b/c it cannot be applied uniformlyMom drives drunk with kid, has a duty to the world to not drive drunk.

f. Dog bite examples show the conflict of this test. If a neighbor’s dog bites your kid, you have a duty to your child, then there is immunity. Your dog bites your kid, you have a duty to the world, so there is no immunity. Court feels that if there is negligence in one case, there should be negligence in both of them. Parent child relationship shouldn’t be the only

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factor weighed. Why should the child not be able to recover just b/c mom and dad’s negligence didn’t put others in danger?

g. Difference b/w reasonable parent and reasonable person. Looks like there is a more specific type of reasonableness for parentscourt trying to find a compromise for different types of parenting, but it does open the door for more liability.

h. NY has a negligent supervision exception-where if the parent was negligently watching the kid then the parent cannot be sued

i. 4 approaches to parental immunityi. Complete abrogation

ii. Duty to the world v. duty to the childiii. Negligent supervisioniv. Total parental immunity

1. Most js use ii or iii, some in iv, movement towards i

j. Broadbent court very explicit in its discussion of insurance-presence of insurance rids the court of some of its concerns, such as depleting family resources

k. -Problem w/insuranceparent has to battle child in court. Kid injured in a mall, sues 3rd party, 3rd party sues the parents for not watching the kid-leads to problems for the parents. If the child couldn’t sue mom and dad, then the 3rd party couldn’t either (there are exceptions to this thoughdad lets ½ blind kid drive a motorcycle, he crashes and dies, dad sues someone for negligent road construction, they sue him for negligently letting kid use the bike, even though there was parental immunity. Why did they do this? Maybe b/c of duty to the world, shouldn’t have let kid on the bike at all

v. Duties to avoid emotional harm(1) Direct victims: A. Falzone v. Busch pg. 261- P nearly gets sideswiped by the d (who hits husband), becomes ill from the fear. Can the p recover for bodily injury or sickness resulting from fear for her safety caused by a negligent d, where the p was placed in danger of such negligence, although there was no physical impact?

a. Holding: Where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright.

b. 3 reasons for denying recoveryw/o physical impact:a. Physical injury was not the natural and

proximate result of the negligent act

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i. Doctrine of non-liability says that a person is only responsible for the proximate result of their negligent act. For most people, physical suffering is not the result of fright. Thus, unless it is shown that a person is not of average mental and physical health, non-liability applies

b. Since Ward was the first case of its kind in NJ, this must mean that no liability exists w/o impact (this is dumb, would be no common law, law would never advance if this applied to every case)

c. Public policywould open the door to tremendous amounts of litigation, of which a lot could be fraudulent.

c. Public policy issue is a good one, but same risk in every tort case; not a unique dilemma to tort cases w/o personal impact. Also, as to the flood of litigation, other states that allow these suits don’t seem to have the problem. If the courts become too crowded, the proper answer is expanding judicial machinery, not decreasing justice.

d. Bias that emotional harms are different than physical harm. Courts are known to compensate differently. Courts don’t have a problem compensating for emotional harm that is in conjunction with physical harm.

e. You can think of these as causation problems as welltry and show that an act of another caused the emotional distress. Proximate cause. Or you can view it as a damages issue, deciding whether these are measurable damages that the d should be held liable for. WE LOOK AT IN DUTY TERMS

f. What if P was across the street, and the car didn’t come near her, and only saw the accident, and suffered emotional distress, under this ruling, would she be able to recover for just seeing her husband get hurt? No, court makes the ruling so that she had to be at risk in some way. Zone of danger rationale.

a. Cannot be a derivative claim from someone else, has to be a fear for HER safety.

g. Elements of the new rule: a. Zone of dangerb. Reasonable fear for their own safety-make it

almost like physical impact

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c. Objectively classifiedd. Proof issue; don’t want people making up lies.e. Notice for the d. D has to have some idea that

this might happenwhat if you almost are hit by a plane spiraling out of control, can you sue? Does the pilot have notice? He might not see you, but he can reasonably foresee that someone would be scared or hurt from this tailspin, so yes

f. Substantial injury because of the fearg. Immediate injury (not in every jurisdiction,

some extend liability a little farther)h. P is exposed to asbestos. Wants to sue the d for

emotional distress b/c they are scared of the future harm. Can they recover? Close proximity (Zone of danger). Reasonable fear, medical evidence that you might get sick. HOWEVER fear itself isn’t causing his possible injury, asbestos is. Also, the injury has to be immediate, which the Falzone court says is an element.

a. Why limit the recovery to immediate damages? Causation is difficult to prove. Extends in an unlimited way, want to give the d a chance to defend themselves, unlimited liability too.

i. Part of the reason you want notice is so that the d can have an incentive to stop their negligent behavior; give the d a reason for deterrence, notice doesn’t only exist to give a d adequate time to prepare a defense.

j. Notes 8,9-other ways people might have fear-People in a plane that doesn’t crash. People in cars that crash and die, but who suffered emotional distress along the way. How long does the fear need to last?

B. Gammon v. Osteopathic Hospital of Maine pg. 278-Guy thinks he is getting his deceased father’s personal effects, opens bag and finds a dismembered leg. Starts having nightmares, relationship w/family begins to suffer. Shows improvement after a few months, sues for negligent infliction of emotional distress.

a. Holding: P should be able to sue for negligent infliction of emotional distress even though there was no physical impact

b. Previously required that a claim for emotional distress w/o physical injury required: showing of physical impact, underlying or accompanying tort, objective manifestation, or special circumstances.

i. Courts have difficulty dealing w/just psychological impact.

c. No compensation for eggshell p

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c. D should have reasonably foreseen that emotional distress would result from their negligence, given the already fragile state that most people are in when someone dies.

d. Would Gammon have recovered under the Falzone court? No a fear for his safety, no fear either, distress, but not fear. No zone of danger either.

e. Gammon Elements elaborated by the court:a. Foreseeability of the harm based on a kind of

susceptibility (opens the door to a lot of liability, more than Falzone)

i. d would try and narrow this case, say that in Gammon there was more of a special relationship b/w Gammon, his dad, and the hospital. If you order a lamp from Pottery Barn, and you get a leg, d would say that. Less susceptible to harm.

b. Special relationship; how susceptible is the person?

i. P in pottery barn example would say that Gammon was already upset, here, guy was fine till he saw the leg, went from fine to bad, not bad to worse. Here it is a lot easier to prove why the guy gets scared, whereas Gammon, he might have relationship problems based on his dad dying, not on seeing the leg, which is the claim he makes.

c. Severe emotional distress above and beyond what you already started with. Severe is a malleable termwhat constitutes severe? Court suggests that the d is causing severe emotional distress with the leg

d. Reasonably foreseeable. f. Court struggles to limit liability-conservative courts

would want a physical showing by the plaintiff to show that they were distressed. Other courts might look at the long-term effects, like reoccurring nightmares and such, which is what Gammon has.

g. What if a p is told that they are HIV positive, turns out that they are not. They suffer emotional distress?

a. What would the Gammon court say? You would bring in a therapist and show that the person was suffering emotional distress, argue

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that someone would be severely distressed from getting a false diagnosis.

b. Baker v Norman case in the notes, found that you had to be negligently diagnosed, which is more of a breach question, not a duty question. Strategically, the d would want to try and cut off the claim before the breach stage, so as not to let the case get to the jury by showing that there was no duty

c. D would try and say that Gammon had a heightened susceptibility, in the negligence with respect to dead family members type of case, whereas the p in this hypothetical is different.

h. If the d creates the risk, that is a type of misfeasance that creates the dutylook like Falzone. Following the same line of thought that making a risk makes you have a duty

i. Gammon is better for p’streating emotional distress much like courts treat physical injury. Throws emotional distress into the physical injury mix, treated as the same type of harm, with the reasonable person standard. Court didn’t have to go as far as they did-could have gotten the same ruling under the negligent dead family member rule. Made a policy statement

(2) Indirect victims: Portee v. Jaffee pg. 282-Ladies son is trapped in an elevator, mom watches as police try and free the kid. Won’t let her get near him, he dies. Ordeal took over four hours. She suffers a lot of emotional distress, has to go to therapy and such, even tried to commit suicide. Bystander cases. Piggyback on a claim for physical injury that another party could bring. 3rd party brings a claim for physical injury. Can the bystander recover for the physical injury to the 3rd party?

a. Holding: Court expands liability to include the emotional well-being of relatives who witness a death or serious injury caused by negligence and suffer emotional harm.

b. Asserted interest here is parental lovepeople want to know that their kids are safe for their own personal well-being. Law should find more than pity for someone who watches a loved one die.

c. Elements in Porteea. Contemporaneous witnessb. Proximityc. Serious physical harm to the 3rd partyd. Family membere. Serious emotional distress of bystander

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d. Elements:a. Contemporaneous witness -has to see the event

at the time that it happens. Part of the reason for this goes to the foreseeability of being pained. Mom seeing child suffering adds to the suffering

i. Can the p make an argument that the mom would be just as pained not seeing the kid die. Can almost be worse to not have the mom near, kid would die without seeing the mom, seems equal to or worse the suffering of the mom by seeing or not seeing.

b. 2 elements to foreseeability-foreseeable that the mom will suffer, but also foreseeable for the mom to be there (mom’s presence is foreseeable to the d).

c. P’s physical proximity -Court says that to view something contemporaneously you have to be physically present, doesn’t take into account that you could see something but not be there.

e. The kid is the obvious class of plaintiff, court adds a new class of plaintiff with the mom, and the court tries to set some type of lines to limit liabilityresponse to unlimited liability is that if you build a good elevator, which you should do anyway to protect the first class of p, then you don’t have to worry about the new class of p. But in a practical sense this might add to more cost.

f. What if mom sees a fire at her kid’s school on TV? Watches the event. Can she recover? Court would say no, the physical proximity element is not met.

g. Mom sees her kid belly-flop into a pool can mom recover? Court has to say that it has to be death or serious injury. What if the girl breaks her collarbone from the belly flop, is that serious enough? We don’t know.

h. Court is making this a duty type of question-are you going to be the class of p that the d has a duty to too. Breach has already been addressed by the previous suit from the 3rd party.

i. Other j’s have different rulessome say that the person doesn’t have to be seriously harmed –note case 3 where the guy only thought for a little bit that his mom was actually harmed and sued for the distress at that time.

j. Mom thinks her kid is harmed and he sees it, but it turns out that it isn’t her kid-can she recover?

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a. P would say that the ed she suffered when she though it was her kid is as serious as what she would have suffered if it was hr kid and thus is reasonable

b. D would say that this creates bad policyopening up the door to a lot more lawsuits. She also had the relief of it not being her kid, which she wouldn’t have if it actually were. Is the P trying to recover for the harm she suffered for however long it lasted, or is it for suffering after the loss (which looks more like a loss of consortium)? Parties would argue over this

c. P would then say that they still suffered some sort of harm and conceivably still could have repeat attacks of fear, argue for a remedy for the harm that was momentarily suffered.

k. Note 3-Guy gets to recover, but mom’s don’t, even though one of the mom’s dies from the emotional distressDo men have a better shot at recovery?

l. NYZone of Danger approacha. P in the zone of dangerb. Member of the familyc. Serious verifiable injury

m. What is the rationale in NY for limiting compensation to the zone of danger? Looks like the Falzone test. One of the questions is is the person upset b/c they almost got hurt or b/c a loved one did.

a. Doesn’t create a new class of p like Portee and also puts the d on notice about ps/

n. Does the difference matter? Sometimes you will be in the zone of danger and be a contemporaneous witness, whereas you can be a witness and not in the zone of danger (i.e. Portee). Could also have a case where the danger spreads so far that you can be in the zone of danger and not be a witness (building on fire, 9/11)

o. Some courts limit liability by making the injured party have to be a relative, other courts go beyond that by saying that you must live with that relative too.

a. NJ lets unmarried cohabitants recover, CA doesn’t

p. Loss of Consortium: a. Recognized for a long time, particularly when

the husband brought the claim. Foundation in the idea that a master loses something when their servant is injured.

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b. Husbands lost earnings would be captured in any claim he brought, and the loss of sexual relations was never considered for women. Now things have equalized.

c. Parents can recover for this when their child is hurt b/c a parent has loss the companionship of a child but J’s are divided on cohabitants and children recovering

3. Intentional Tortsa. Explore Intent principle:

1) Garratt v. Daily pg. 865-Kid pulls chair out from under aunt before she can sit down. Is the liability for an infant in an alleged battery?

a. Holding: Case remanded to find out the nature of what the kid knew at the time that he pulled the chair

b. Analysis begins w/the premise that no matter how old Brian is, he must have committed some wrongful act before he could be held liable for the injuries.

c. Battery-intentional infliction of a harmful bodily contact upon another

d. Battery could also be proved if Brian could be shown to have known that Ruth would try and sit down where the chair had beenw/o such knowledge there would be no wrongful action in moving the chair and since there was no wrongful act that means that there would be no liability.

e. If he is found to have had knowledge, then the age issue will be addressed, as his experience, capacity, and understanding will become material issues.

f. Restatement (second) of Torts §8A-intent defined as the “actor desires to cause consequences of his act, or hat he believes that the consequences are substantially certain to result from it”

g. Continuum from negligence (conduct which falls below the standard as established by law for the protection of others against unreasonable risk of harm) to recklessness (requires a risk that is substantially greater than that which is necessary to make his conduct negligent) to intentdesire to bring about consequences, or belief that such consequensces are substantially certain.

h. Intentional, Negligence, Strict Liabilitycontinuum of fault from high to low.

i. I-Show intent through specific actsii. N-show duty and breach

iii. SL-show defective product or ultra hazardous activity.

j. Elements for battery in Garratt:

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a. Intentionalcan be actual or legal intent (substantial certainty)either way of answering the question is subjective

b. Infliction (contact)c. Bodily harm

k. Foreseeability doesn’t mattershoot a gun at someone, even though you know you are a bad shot, miss, still can be sued for battery b/c you intended to inflict bodily harm

l. Boy’s storyhis action of trying to put the chair back shows the possibility that he foresaw that she would fall.

m. P should always think about a negligence claim when bringing an intentional tort claim in case the intentional tort claim missesbut here, negligence would be a loser b/c the kid is five and so he can’t really be shown to have acted unreasonably, but he can still act intentionally.

b. Assault and Battery: A. Picard v. Buick pg. 872- P is mad about D’s brake inspection, wants to take pictures of it. Goes to do so and claims that she is spun around by the enraged d and hurts her back. D says he didn’t touch her or threaten her. Doctor testifies that she has suffered permanent back damage, although the testimony is “less than convincing”.

a. Holding: There was assault and batteryb. Assault: physical act of threatening nature or an offer of

corporal injury which puts an individual in reasonable fear of imminent bodily harm.

c. Battery: an act that is intended to cause and did cause an offensive contact w/or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault…an intent to injure p is unnecessary in a situation in which a d willfully sets in motion a force that in its ordinary course causes the injury.

d. P said she was frightened, and under the circumstances it was reasonable. Has a picture showing the guy pointing at her. Prima facie case of assault

e. D says no battery b/c he did not intend to touch or injure the p; rather, he intended to touch her camera. Court says that he hasn’t shown that his actions were accidental or involuntary, and that there can be a battery when offensive contact is w/an object attached to or identified w/p’s body, which is the case here.

f. In Garratt injury came from d’s acts that caused her to hit the floor. Here, is the p injured by the d’s acts? Maybe yes maybe no.

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g. Battery in Picard (p is not touched by d, but something of theirs is):

a. Harmful contact (physical) or offensive contact (dignity). D intended to intrude on the sphere of her bodynominal damages that allow people to recover for the mere act of the harm being done (can be viewed as compensatory or nominal to show the d that they did something wrong).

h. Chase someone down the street, they get hit by a car-is there battery? Probably no, just b/c you set along a chain of events doesn’t make you intend for any result.

i. Assault in Picard: a. Reasonable apprehension of imminent harmb. What the interests we are trying to protect? Mental

peace of mind, but also trying to protect the d from an eggshell plaintiff

c. Special knowledge of an eggshell plaintiff divides courts-some j’s make an exception if the d can be shown to really know.

j. What if a guy keeps getting phone calls from a person he knows, and he tells the person that he will use his blackbelt in karate on them if they call him again. Can the person sue for assault?

a. P would say that this conditional threat is grounds for an assault. It would cause an immediate fear. Would have apprehension that seems reasonable. Might act anyway without the condition being met. It doesn’t seem right to allow a p not to bring action when someone causes a reasonable apprehension regardless of whether it is a conditional threat

b. D would say that the conditional threat doesn’t cause a reasonable fearif you don’t meet the condition, you won’t have a problem. Policy precedent-doesn’t seem too imminent. When it is imminent, there is not a whole lot a p can do. When it is not imminent, there are things that the p can do to get rid of the problem. Assault is related to the emotional state of mind, courts want to narrow the class of p’s who sue. Many places require there to be imminence so as to limit threats.

k. Courts allow for there to be transferred intent. If you waive a gun around in a room full of people, and it goes of, but you didn’t intend for it to go off. Definitely assault. Is there battery? Why not just treat it like a negligence action? You didn’t intend to create a battery but you will still be sued for you. The battery here is so interconnected that you invaded

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someone’s mental tranquility—the fear has a basis in the assault that results.

l. What if someone punches you and you had no idea that they were going to? Is there assault? Most courts would say no, there was no apprehension.

m. Restatement definitiond must act w/intent to place the victim in apprehension of harmful or offensive contact and the victim must reasonably be placed in imminent apprehension of such a contact.

B. Wishnatsky v. Huey pg. 876- Sensitive evangelical Christian gets pushed out of a room, sues for battery

a. Holding: A battery occurs only when a reasonable person would find one occurs.

b. Historically, battery used to be defined as even the slightest unconsented to touching if it was done willfully or in anger.

c. Restatement of torts §§18, 19. Battery: Offensive Contact and What Constitutes an Offensive Contactsee pg. 877

d. P is unduly sensitive (eggshell plaintiff)an ordinary person viewing the facts in the light most favorable to the p would not find d’s actions to be offensive to a reasonable sense of personal dignity.

e. Battery: An intent to cause a harmful or offensive contact under the circumstances that is unconsented to which offends a reasonable sense of dignity

a. Harmful or offensive unconsented to contact (contact that is unwarranted by social usages prevalent at the time and place at which it is inflicted)

b. Reasonable sense of dignity offended. i. Courts are divided on this. Some say that it is

enough that it is unconsented to contact. Why do the courts differ? Some courts are more liberal when it comes to unconsented touching, try and protect people’s personal space. Some say that battery is a right to decide who can enter your space.

f. If p focuses on the unconsented to contact of the door slamming, d could say that the guy was entering a place where he was clearly not included (door close) almost a consent to be excluded.

g. Guy’s mom dies, another guy gives him a hug. Guy 1 is a homophobe. Does he have a claim for battery? Tough call. Some people would agree with him (social usage), others would not. Was there notice to the d so that he could deter his behavior?

i. If the contact is unconsented to, but the d doesn’t know that it is, can the p recover? More

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helpful if the d also knows about the sensitivities of the p.

h. The fact that the p says that he is sensitive in his complaint can make him look eggshell like, but it also makes it more likely that he will find certain conduct offensive. Trying to make the courts forget about the objective part of the battery test, trying to make the test more subjective.

i. Implied consent-even though people walking in a crowded hallway aren’t asking to be pushed, there is still a consent to be there. Policy rationale, there would be battery everywhere if people could recover for these contacts.

j. You need to have intent to show assault, w/o it can try and prove negligent infliction of emotional distress.

k. Most courts—If you intend to harm or cause offense, you have intent. Others say that you intend to act, and it leads to a harm, then you have intent to harm.

c. False Imprisonment: Lopez v. Donut House pg. 882- P says she was falsely accused of stealing from the store she worked at, and d and it’s employees wrongfully detained her against her will, causing her to be publicly disgraced and suffer mental anguish which she still suffers from. She also says that she wrongfully was fired from her job, and that she had to seek medical attention and all of these things have kept her from going about her daily life. Sues for false imprisonment.

a. Holding: There was no false imprisonment b/c p testified that she could leave at any time. If a person voluntarily consents to it, there can be no false imprisonment; it must be against their will.

b. False imprisonment: Unlawful restraint of an individual person’s liberty or freedom of locomotion.

c. Imprisonment: any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not want to go.

d. For there to be false imprisonment there must be actual or legal intent to restrain.

e. Elements of False Imprisonment:i. Unlawfully restrained.

1. Threatcan be explicit or implicit (for implicit, need to know the manner in which the threat was implicitly given). Has to be a present threat. Like in Assault (has to be a reasonable fear of imminent harm). When it is present, you have no way of dealing with it, if it isn’t present, you could call the cops or some other remedy.

2. Actual or apparent physical barrier (locked door in this case was to keep people out, not in, she could unlock it whenever she wanted)

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3. Overwhelming physical force4. DuressCourt here doesn’t look at this. P should

have made a case for this even though she didn’t fear for her safety. She is afraid that she will lose her job; court says she was never threatened with this, but should that matter? Her perception of something bad happening was duress. Can fear other types of harm (not physical) that might be enough for duress

5. Asserted legal authorityimprisoning someone by pretending to be a cop

ii. Intentiii. Awareness or harm

1. Is it the knowledge that you can’t leave, or the fact that you can’t leave that is important for false imprisonment. Most places say that there has to be awareness or harm that you cannot leave. Should the p have the burden to say that they want to leave? No, only have to show the intent of the d to keep someone there.

f. P said she voluntarily followed her boss into the room where they questioned her and stayed in an attempt to protect her reputation. Not enough for her to have felt compelled to stay in the room.

d. Intentional Infliction of Emotional Distress: Womack v. Eldridge pg. 889- D Lies to the p to take his picture for a child molestation trial. He doesn’t look anything like the guy that is accused of the molestation, and the boys tell her this. Court wants to see him anyway, so he has to go to trial and answer questions, has to repeat this process several times. Says that this caused him to suffer shock and distress and nervousness b/c of this ordeal; didn’t want people to think he was a pedophile, and caused him a lot of anxiety. Became very emotional while testifying. Is someone who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another subject to liability for the e.d. w/o bodily damage?

a. Holding: Cause of action for e.d w/o bodily harm test set out by this court:

i. Conduct of d was intentional or reckless (either had to have the purpose of inflicting e.d. or the d should have known that e.d. could come from this).

ii. Conduct was outrageous and intolerable and offends accepted standards of decency and moralityaimed at limiting liability

iii. Causal connection b/w conduct and e.div. Severe e.d.

1. 1 and 2 for the court to determine, but if reasonable men would differ to this, then it is for the jury to decide.

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b. You can found to be negligent for doing all sorts of things, intentional infliction of emotional distress is like that, much less narrowly defined than, say, assault.

c. How do you actually show intent?i. P attorneyemphasize the misleading way that d

approached p. But lying doesn’t fit directly into courts standard shown above.

ii. What was her purpose in getting this picture?iii. Lying helps us make the p’s case that she did have a

bad purpose in taking the picture of the guy w/o telling him the reason why.

iv. D would say that that doesn’t prove anythingd could say that she didn’t know that the picture would be used for the purpose of showing it to the boys.

d. What if d says that she knew the purpose but didn’t intend for that outcomeP could keep it in intent by saying that she intended for the picture to be used in trial and that it was substantially certain that the picture would cause ed. (Use of the legal definition if intent).

e. What if she says that it was likely that he would be upset, but not substantially certainthis would be reckless (intended a specific act and know or should have known the resultsounds a lot like negligence).

f. Substantial certainty is a proxy for the intent. If someone knows that something is substantially certain that something would happen, it is hard to say that they didn’t intend it.

g. Best way to think about it is did you intend the harm or offense? And then did you intend the risk.

h. Intent is a subjective state of mind that we try to get to with objective facts. Use the objective facts of how certain something is to get to the d’s subjective state of mind

i. Recklessness is tricky, more based on the dsometimes objectively one would know of the risk, but d might say the don’t, so we might infer the d knowledge of the risk b/c everyone knows about it

j. What if there was no lying in this case? She just takes his picture w/every intention of using his picture to compare to a pedophile. Is this IIED? Yesi. lying helps us see the wrong intent, but it is not so much the

lying that is the problem, it is the showing of him as a possible pedophile.

k. Policy:i. What is outrageous or intolerable conduct changes over

time. ii. What is outrageous have to reach a high level-harassment,

etc.

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1. Call someone and saying that you are going to kidnap his or her kids wouldn’t be assault, but it would be IIED.

e. Defenses and Privileges: A. (CONSENT) Hart v. Geysel pg. 911- P is the administrator of the estate of Cartwright, who dies in an illegal prizefight against the d. Brings a battery claim. Should a person be able to collect for damages sustained in a fight that they consented to?

a. Holding: When engaging in a prizefight, either legal or illegal, one should not be able to recover damages for injuries sustained b/c you consented to the fight. Do not want to encourage people to fight.

b. Prior case law in the majority says that when two people fight in anger, they can still be liable to each other for damages

c. Prior case law in the minority says that when two people fight in anger, they are breaking the law, and cannot be civilly liable towards one another unless the p can show excessive force or malicious intent to do serious injury to the p by the d.

a. Is either side helpful? You get into a fight, is it clear who will be the p or d? No, each policy argument protects one side, so it is just luck of the draw who gets hurt the most.

d. No man should profit from his own wrongdoinge. Policy-deter people from fighting, if they allow consent there is no

disincentive to fight.f. D would argue that consent is a defense b/c it is consistent w/the

general rule of consent, why should a fight be any different? Policy for the d-we don’t want people to start fights so that they can sue the person that they start a fight with.

g. You play touch football, but say you don’t want anyone to touch you. Someone does, can you sue them for battery b/c you didn’t consent? Don’t really believe that statement. Consent is about protecting your own space, but also about letting people invade your space and letting them know when they can. Can’t have consent that totally changes the rules.

h. PrizefightFollow the minority rule a little more. Say that consent is the rule whether the fight is legal or illegal. This is done to be consistent with the law and to protect personal autonomy.

B. (SELF DEFENSE) Courvoisier v. Raymond pg. 914-Guys get thrown out of bar, attack the owner, who fires shots in the air. Cops come, owner shoots a cop, question as to whether he knew the guy was a cop or not. Cop bring suit.

a. Holding: Where a d, in a civil action attempts to justify a plea of necessary self defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstance and also as to the reasonableness of the means he made use of.

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b. For self defense must have an honest reasonable fear under the circumstances of harm and must have used reasonable means of self defense in protection of yourself.

c. Evidence for p shows that the shooting wasn’t malicious, but was reckless.

d. Evidence for d shows that the situation was such that a reasonable person would fear for their safety.

e. P bringing a battery claim. He intended to shoot, and caused a harmful bodily contact. D not challenging the strength of the battery claim, he is saying that he has the affirmative defense of self-defense. He is not challenging an element of the battery, he is justifying it.

f. Was the p assaulting him? No. SO how can he bring this defense? General rationale for self defensepeople can protect themselves from having their space violated.

g. Elements of self-defense:a. Reasonable beliefgoes to notice on the part of the plaintiff

(not an honest belief b/c we want to limit the claims, even though it makes it hard for some d’s to protect themselves. Courts will consider special concerns that the d might have thoughif he knows something about the p that the reasonable person standard might account for.)(subjective)

b. Reasonable means (if someone is about to slap you, you can’t shoot them)(proportional)

c. Imminence of harmd. Limits: Cannot be retaliatione. Extension: 3rd party correct or reasonable belief of you being

harmedh. Someone hits you w/a snowball, not in a snowball fight, you throw one

back, they sue you for battery-do you have a claim? No, looks more like retaliation, not self-defense, and courts don’t want to allow this.

i. Restatement §76 3rd party helpA third party can use the same means as though defending himself if he correctly or reasonably believes that the circumstances are such as to give the third person a privilege of self defense and his intervention is necessary for the protection of the third person

C. (PROTECTION OF PROPERTY) Katko v. Briney pg. 917-D sets up an automatic shot gun in his abandoned looking farm house b/c it continually gets broken into. Guy breaks in, gets leg shot off. Can an owner protect personal property in an unoccupied boarded farm house against a trespasser and/or thieves by a spring gun capable of inflicting death or serious injury? P suing for battery

a. Holding: Trespass against property that doesn’t put anyone’s life in danger is not subject to the unreasonable force of death or serious bodily harm.

b. Law has always placed a higher value on human life as opposed to property rights

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c. Dissent: A person’s property is his life’s accumulations. Sees no reason why the devices alone create liability.

a. Suggests that it might not be unreasonable force when someone is taking your property

d. What if the d had been at home when the p came in? Can you use the spring gun? You still don’t have the ability to discriminate; the spring gun goes off the minute the door opens, so no.

e. D says that he did not intend to hurt anyone, wanted it to be a warningP has to prove intent, how? Intent is a subjective test, a subjective state of mind. Is it substantially certain that the gun will cause injury? Yes. There was no way that gun was a warning, aimed to hit a person. Guy intentionally created a situation where someone would get hurt.

f. D said that he was mad and tired of getting stuff stolenlooks like retaliation (look at the facts to infer the subjective state of mind)

g. What if you put up barbed wire around your property and someone gets hurt? Looks more like a warning to stay out. Visible warning in this case.

h. What if you have a watchdog? Dog does the same damage to the guy, but you had a beware of dog sign? No intentional harm, but what about excessive force? Hard to say, not like a gun though.

i. Damages issueDissent doesn’t feel it is right to award punitive damages to the party who is breaking the law

a. Counter to that is that the damage was so extreme kind of emphasizes the wanton disregard for human life and safety

j. Compensatory damagesmedical expenses, lost earnings, pain and suffering, emotional distress

k. Punitive damagesmalice/bad faith; malice/wanton/reckless disregardl. Nominal damages (only in intentional tortsnot measurable damages

4. Negligence continueda. Causation

i. Cause in fact – actual cause(1) Examine the basic doctrine: A. Stubbs v. Rochester pg. 341-Water systems in the city get crossed, P develops typhoid fever. Did it come from the crossing of the water systems or did he catch it some other way?

a. Holding: If a p can establish w/reasonable certainty that the cause of their injury was due to something that the d was responsible for, then the case should go to the jury to decide if the d was responsible based upon the facts p shows.

b. D argues that even assuming that the city can be held liable, the p:

i. Failed to disclose that he contracted typhoid from drinking contaminated water

ii. Was incumbent upon the p to establish that his illness was not due to any other cause of typhoid.

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1. (In a way, the d is saying that the p has not shown but for causation)(precurser to toxic tort cases).

c. Evidence shows that there are 9 or more ways to get typhoid, one of which is drinking contaminated water.

d. Typhoid statistics examined, huge preponderance in the months that the water was contaminated.

e. Dr’s estify that he likely got typhoid from the waterworked near contamination site.

f. D cites rule of law that when there are several possible causes for injury for which the d is not responsible, then p cannot recover w/o proving that the injury was sustained wholly or in part by a cause for which the d was responsible.

i. Court says that if there are two or more possible causes, one of which the d is responsible for, and the p establishes facts from which it can be said w/reasonable certainty that the cause of injury was the one which the d was responsible for, then the p has complied w/the spirit of the above rule.

g. Causation in fact is a jury questionbut for causation, substantial fact

h. Proximate cause is a policy question, how far do you want to extend liability when there is but for causation.

i. Hotel has not installed a fire escape. Fire, P in bed, suffocates b/c of smoke inhalation. Negligence proved, but is there cause in fact when p suffocates while asleep but there is no fire escape? No, no but for causationbut for the lack of causation she wouldn’t have died. Presence or absence of fire escape has nothing to do with her death. P death not caused by lack of fire escapesaying that the p would have died regardless of the fire escapes b/c she was asleep

j. Speeding in car, struck by lightning at destination. Is there but for causation? If you hadn’t been speeding, friend wouldn’t have been struck by lightning. Should there be liability though? Speeding is dangerous to you and others on the road, but speeding laws are not meant to protect against lightning strikes.

k. Cause in fact can be difficult to prove if you don’t know what happened, or if there are multiple d’s, or with the damages caused.

l. Test in Stubbs:i. Reasonable certainty-judge has to think that a juror

could so find reasonable certainty to prove the causation element. This means 51% chance, more likely than not, preponderance of the evidence.

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m. Why did the court send this question to the jury? In tough causation problems, you see courts more willing to give the p a break, especially when it is clear that the d was negligent. Fault/wrongdoing of d persuades courtsd wrongdoer

n. Traditional Tort View: 100 p’s w/typhoid.25 get typhoid every year. So 75 person increase due to d negligence. Is the p going to win?

i. 75% chance that each of the people got typhoid from the d negligence. How much are they going to recover? Full damages. In this case, 1 dollar. Each p gets 1 dollar each. 25% are getting over compensated, they should get zero. 75% are getting optimal compensation. D is not optimally deterred however. Proportionality test.

m. Alternative Approach: D pays $100, but only caused $75 of harm. D has to overcompensate.Better way would be to give each p 75 cents. 25% would be overcompensated, 75% undercompensated. D is optimally deterred however. Economists prefer this approach. See Handout

B. Alberts v. Schultz pg. 359-P gets bad diagnosis from dr, delayed too long in performing surgery. Loss of chance suit

a. Holding: NM should use the theory of loss of chance (even though the SC says that it is not a new doctrine at all) but it does not apply to the facts of this case b/c the P didn’t prove causation.

b. Expert presumption based on the fact that the leg could be saved, but medical records were not conclusive as to this fact. Expert could not say to what degree the examinations would help the p.

c. Claim for a loss of chance is predicated upon the negligent denial by a dr of the most effective therapy for a p presenting a medical problem.

d. Under the theory, a p w/a good chance of recover is denied this chance, and even a p w/very little chance is denied the opportunity to beat the odds. P does not allege that the d caused the entire injury, rather the claim is that the d reduced their chance of avoiding t he injury actually sustained.

e. Elements of Loss of Chance:i. Duty

ii. Breachiii. Losslost opportunity for a better result. Window of

time that existed before the malpractice took place that is now shut.

iv. Causationreasonable degree of medical probability1. Burden is on the p to prove each element.

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f. The doctrine allows for the lowering of chance as well, not just total loss.

g. Here, p’s claim cannot be that the negligence lost him his leg b/c his preexisting condition precludes proof to a reasonable degree of medical probability that the d’s negligence caused this. However, p can say that he had a chance to save his leg.

h. Damages should be awarded on a proportional basis consistent w/the chance for recovery. (50% chance of survival = 50% of the value of their life to begin with, if the loss of chance knocks it down to 20% survival, then the p can recover 30 % of their value).

i. No Malpractice Claim, Why? Can p show that amputation is due to dr’s negligence? No, has a hard time doing so, leg was already hurt when he got to the doctors. No but for causation. So he brings the loss of chance claim.

j. Harm here is the decreased chance of recovery:i. Value of leg

ii. Medical expensesiii. Lost earning b/c of the leg, can’t work, etc…iv. Pain and suffering (emotional distress associated

w/losing leg)v. Wife can sue for loss of consortium.

1. Lets say it was all worth $1,000k. What will he recover? Whatever proportion of $1000 the losss

of chance was. Say he had a 40% chance of saving leg, he would recover $400.

i. What if he had a 50% chance and it dropped to 49%, he would get $10. What would d say to this? Court refers to material losscan’t just be a tiny little amount. Policy behind this is to limit suits.

l. Limits:i. Material loss of chancecannot sue b/c your odds

dropped, have to actually lose somethingii. Has to shown that it is more likely than not that the

negligence reduced your chance at recovery (50% chance that the negligence reduced you chance at recovery.)

m. Why did court create the loss of chance doctrine? Create a higher standard of care for doctors. Doctors access to information that p has no way of getting. P under the control of doctors, deterrence argument. Like Ybarra.

n. Overdeterrence for malpracticeif there is a 51% chance that you lost leg due to dr. n, then you bring a malpractice suit and try to get 100% compensation. Under, 50%, bring loss of chance claim, and there is optimal detterence and optimal

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compensation, as both the dr. and the p get paid or pay what they should.

o. What if loss went from 50% to 10%, should p’s who haven’t lost leg be able to recover be able to recovery for the loss of chance even though you didn’t lose leg? Yes, b/c you lost chance according to the strict interpretation, but court says that there has to be actual injury, so no. If cause of action is loss of chance, then why do we care if you didn’t lose leg? If optimal deterrence is your goal, you have to let that 10% of people recover, but to keep consistent with tort law, you have to recover for actual harm.

(2) Problems of multiple defendants – Joint and Several Liability

A. Summers v. Tice pg. 374-Two d and p go hunting, p shot in the face, which d did it, no one knows. Court will not use RIL like in Ybarra for policy reasons, but still finds d liable

a. Holding: Case based upon the legal proposition that under the circumstances here presented each d is liable for the whole damage whether they were acting together or independently b/c it is up to them to sort out who is liable when the p is unable to determine based on the circumstances of the case. Alternative Liability

b. Shot in the eye could only have come from one gun, not bith, nevertheless the tc finds the d’s joint and severally liable for the damages. 50% chance of getting the right d, so burden of proof is placed on the d to show which one of them fired the shot that hit the p

c. Here, p is placed in the position of pointing which d caused the harm. Usually, d’s are in a better position to provide evidence as to who caused the injury (see the conspiracy of silence caseYbarra v. Spangard). Same thing here, p has no idea who caused his injury, but has shown who might be involved and the negligence that was involved too.

d. Judge Handthe single wrongdoer cannot be allowed to escape through the meshes of a logical net. He is a wrongdoer; let him unravel the casuistries resulting from his wrongdoing.

e. Rationale:i. Wants to compensate the p who is innocent

ii. Wrongdoers-negligent people as the d. Doesn’t seem unfair to put the burden on the d when they are negligent.

iii. Deterrenceiv. Idea that d’s have better knowledge.

f. Ybarra was about breach of duty; Summers about causation2 n d’s, who caused damages is the question here.

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g. Concert in actiondrag racing. Courts have no problem holding two drag racers liable for damages only one of them caused during a race, since they were both wrongdoers. Likewise, if you and a friend go try and beat someone up, and only friend does the beating, you can be held liable b/c of the concert in action idea that both of you are wrongdoers and were both in it together

h. Court doesn’t limit the amount of defendants to twodid they think that they would be opening the door to mass torts? Probably not. Hymowitz has 300 d’s. Instead of 50% chance of cause, there chance =.033%.

B. Hymowitz v. Eli Lilly pg. –DES case. Mass tort where causation is hard to prove b/c of the delayed onset of the damage, hard for the p to show which of the DES manufacturers caused the damage to their specific baby by providing them w/pills.

a. Holding: Court will use national market share approach to compensate plaintiffs. Controversial decision which only will work if entire country signs on for it; also affect idea of causation, since exculpation is not allowed

ii. Why not allow for exculpation? Idea that it will even out in the end if the national market share is used

iii. What if p points out the specific d (inculpation)? MS says he shouldn’t pay the full amount, but court says that he shouldthis is overdetterence. Mix b/w traditional rules and special rules when the innocent p can’t meet traditional rules of causation.

iv. What if one d is insolvent? This is several liability, not joint, so each d would still pay out their portion. Court is concerned w/making p get compensated, why does the court then put the insolvency of the d on the p? Balances out the extra loss of d in other cases, also keeps optimal deterrence for each d individually.

b. Alternative liability paradigmSummers v. Tice Burden upon two d’s to prove which one caused the injury. Forces d’s to speak. Used when the d’s have better access to information and are all before the court. When there is a small number of d’s the likelihood that one of the injured the p is high.

i. Here, a large number of d’s, and they don’t have any better access to information than the p, and there is no real way to get all the d’s into court. Thus alternative libility doesn’t work

ii. Cannot apply alternative liability when only one d in 300 caused the damage

b. Concert in action theory joint and several liability on d’s having an understanding to participate in a common plan to commit a tortious actseen in drag racing cases.

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1. Doesn’t work here b/c at the time the pills were made, the d didn’t know about the latent defects

c. Dissent: likes the market share approach but wants to allow exculpation b/c concerned w/damaging causation ideas

1. Dissent want to apply JSL. Why? More traditional. Also would motivate d’s to show that they are not responsible for the damage. Put more burden on the d, b/c if they show it wasn;t them, others have to cover the slack, and p still gets compensated.

2. Dissent is putting all the burden on the d, gives optimal compensation to the p. Majority tries to give optimal detterence for the d. In the context of the whole layout, d would rather have the majority approach.

d. True jointfeasors are rare, more common for two negligent independent actors to come together

e. Can the national market share and several liability be applied to other areas?

1. AsbestosLots of wrongdoing producers, harm dormant to innocent p’s. However, this approach is often limited to fungible goods (something that is completely interchangeable). D would say that not all asbestos is the same. P would say that that doesn’t change the fact that the product is still dangerous. Could incorporate the levels of asbestos in the products, and use that for whatever formula is used.

ii. Why find all d’s you can go after, why not go after one? In theory you could do this according to dissent, but in j’s that use jsl they require some amount of market share percentagelimitation to the p.

f. Rationale in Hympwitz for National Market Share:g. Wrongdoerh. Innocent Pi. Legislative approvalj. Optimal detterence

ii. Proximate Cause – legal cause(1) Unexpected Harm: A. Benn v. Thomas pg. 399-P has heart attack 6 days after a car crash; dies; had a preexisting heart condition, estate sues d.

i. Holding: Eggshell plaintiff rule doesn’t take into account what the d foresaw as an injury, what matters is that the d caused the injury and is theretofore liable for damages resulting from that cause.

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j. “Eggshell plaintiff rule” requires the d to take the p as he finds him, even if that means that the d must compensate for damages that an ordinary p would not have suffered.

k. Eggshell plaintiff rule deems the injury, not the dormant condition, the proximate cause of the p’s harm.

l. Rule rejects the limit of foreseeability ordinarily applied. Once p establishes that the d caused injury, the d is then liable for the full extent of those injuries.

m. Factors:i. FOS of what?

1. Harm 2. Type3. Extent4. Manner5. Plaintiff

ii. Directness of the action1. Time2. Space3. Intervening Causes-hit a biker, they fall off

bike, get hit again, are you liable for the 2nd car hitting the guy?

a. FOSb. Independent

n. Easiest proximate cause is when all of a and b are met, like me crashing a car into a biker, hurting him.

o. Proximate cause can be decided by a judge or the juryp. Proximate cause is purely policy, no matter how scientific

courts try to make it seem in their opinions. q. FOS comes into play in everything we look at except cause in

factr. What damages are you considered to have caused by your

actions can be a damages question, or a proximate cause question

s. For there to be proximate cause you must have cause in factt. Is there actual cause in this case? But for testBut for the d’s

negligence the death wouldn’t have happened to the p? Hard to tell in this casebut for the car crash did the p have a heart attack? He might have had it anyway. Cause in fact tricky in this case.

u. What was unforeseeable about this case? The fact that the p had a medical condition.

i. Was there anything foreseeable? That there would be injuries from the crash

ii. Was it foreseeable that this p would be injured? Yes, he was in the car that was crashed into

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1. SO FOS p and injuries, but extent of injuries unforeseeable.

v. If the extent of injuries is unforeseeable, too bad for the d if it is a FOS p and FOS that some injury would occur

w. Courts were worried about eggshell p in emotional harm. But when you are a physical eggshell it is not hard to prove thishe really had a heart condition, he really had a bone disease, etc… Way less chance of fraudulent claims

x. Part of how we compensate is based on lost earning, so breaking a musicians hand is worth more than my hand being broken, regardless of the foreseeability.

y. Secondary harmnote case with the ambulance that crashes.i. Why is the d liable for the harm of the crash?

1. Encourage the rescue of the p (although the ambulance may not be off the hook)

2. FOS (deter)know that if you drive negligently and hurt someone that they will be rushed to the hospital

3. D created a special risk to the p by injuring himii. D would say that he has no control over the p after the

ambulance takes controliii. Is it an intervening cause? Yes. How likely is it? That

depends on the case1. Independent intervening causelightning hits

the rushing ambulance-has nothing to do with the d, you could have been hit by lightning anyway

2. Dependent intervening causeambulance crashes b/c driving too fast, you get hurt more, d could have foreseen this

a. Heart attack to the driver falls somewhere in between.

B. In re Polemis pg. 405-Guy drops a wooden plank on a ship, causes a spark in some chemicals ship is carrying, ship blows up.

a. Holding: If d is guilty of negligence he is liable for all the consequences, whether they are foreseeable or not.

b. Eggshell shipc. Unforseeable that you would have the firetype and extent of

the harm is unforeseeable. d. Duty that is breached and you have direct cause is the

limitation in Polemis. Is the harm direct or not?e. D would say Direct if there is no intervening cause

a. P would say it means dependant direct independent cause.

b. Confusing, what to do with intervening causes. c. FOS is a duty/breach question

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C. Wagon Mound pg. 405-Ship spills oil in water, they think that the oil being spilled will not cause a fire. A few days later, p working on boat, drops a scalding piece of metal into the water, starts a fire. Was the spilling of the oil the proximate cause of the fire (certainly was the cause in fact)?

a. Holding: Not fair to make people liable (say that they are the proximate/legal cause) for the reasonably unforeseen consequences of their actions.

b. If we always make our standard the reasonable man, why does the Polemis case remove the reasonableness standardthis only creates huge causation issues.

c. Issue: unFOS type/extentd. Rule: FOS typeproximate cause e. The harm here doesn’t seem to be foreseeable or tied to the

wrongdoing (the fact that oil clogged slipways seems a lot more foreseeable.)

f. How would Polemis deal w/Wagon Mound factsWrongdoing, but the intervening cause and foreseeability of the fire starting seems small (2 days after oil spill is when the fire started, and the rag falling into the water is not so foreseeable). Might get same result

g. What would WM say about Polemis? No foreseeability = no proximate cause. Would get different result.

h. UnFOS extenta. Property-Polemis if direct + harm FOSb. Wagon??probably no prox. Causec. Most J’s unforeseeability of extent doesn’t cut off

liabilityd. Personal injury- Proximate cause

i. UnFOS typea. Property-Polemis if direct + harm FOSb. Wagon-no prox. Causec. Personal Injury- proximate cause

(2) Unexpected Manner: McLaughlin v. Mine Safety pg. 412-P removed from lake unconscious, gets heating blocks put on his body, fireman was trained in usage, didn’t tell nurse to cover the blocks, p gets burned. Should the company be found to be the proximate cause of the burns?

a. Holding: Possibility of unforeseen intervening acts make the d not liable for proximate cause in this case. Gross unforeseen n supersedes any possible n on the part of the d b/c of the relative wrongdoing of the unforeseeable egregious act.

b. TC should have told the jury that if the fireman had known and had acted w/o telling the nurse and not let her know of the danger and watched as she misused the blocks then his

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negligence is so gross that it supersedes the negligence of the d in not put warnings directly on the blocks.

c. Intervening act of the fireman not telling anyone of the dangers could not be reasonably foreseen by the d in that they wouldn’t believe that a firefighter would do such a thing

d. Dissent: The fact that the fireman himself was possibly negligent does not change the fact that there were risks that the d should have anticipated w/reasonable care. It also does not change the chain of causation.

a. Restatement §447-If intervening negligent cause is foreseeable then there is proximate cause. Here dissent thinks that the fireman’s negligence is foreseeable.

b. §449-If the intervening cause is greater than negligence (reckless, intentional, criminal) and it is reasonably likely (more than foreseeable) then there is still proximate cause.If dissent believes the story of the majority, it is unlikely that the second test would work, not likely that the fireman wanted to hurt the p. But dissent isn’t so convinced that the fireman knew.

e. Manner of the harm is at issue here, not the type of harm, like in Polemis

f. General descriptions of accidents make them look more foreseeable than specific descriptionscase where guy loses peg leg in a ditch hinges dramatically on how you describe what happened.

g. What is it about this case that would make the d say it is unFOS? D thinks that they have done what they are supposed to do to make the product safe by teaching people about it in seminarsNot how d expected (manner) the harm to happen

h. P would say that the d should have foreseen that the fireman would forget to insulate the block and that the instructions would be lost. SO why does court say that there isn’t proximate cause? Negligence of the fireman in the intervening cause supersedes the negligence of the d.

i. Ordinary v. gross negligenceIf the intervening action is gross negligence it does not lead to proximate cause for the secondary d.

j. Note case 4 P in a tight spot, does it seem reasonably likely that you will be raped by being dropped off in a bad neighborhood? Not so reasonable.

k. Does a p want intervening causes to be negligent or criminal? Negligent, b/c we expect a certain amount of negligence in the world and that can be more foreseeable.

l. 2nd Restatement §435If it is a substantial factor and the intervening cause is not highly extraordinary then you have shown proximate cause (this is a more liberal standard than

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reasonably likely)this would help the girl in note 4 who got raped.

(3) Unexpected Victims: Palsgraf v. LIRR pg. 419-Guy gets pushed onto train by d employees, drops fireworks, they go off, hit scales on ceiling, one falls and hits p on the head even though she is standing very far away. P sues.

a. Holding: There must be an act of negligence that would violate the bodily safety of the p; here the act in and of itself would not have done so, so there is no negligence on the part of the d.

b. One who jostles a neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer is the one who carries the bomb according to the people who are hurt.

c. Driving very fast on a street is wrong/negligent, but driving fast on a racetrack is not, which means that where the action takes place affects the determination of what the act is.

d. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right.

e. If the harm suffered was not willful, then a p has to show that the act had the possibility of danger so many and apparent as to entitle the p to be protected against the doing of the act even though the harm was unintentional.

f. Dissent: Andrews cites to PolemisA wrongful act by the doer makes him responsible for its proximate loss. Dissent agrees with this.

i. Driving down the street too fast is negligent no matter if you hit someone or not. The act itself is wrongful no matter who is in the zone of danger.

ii. Build a dam, bad foundation, it breaks, you are liable for damages if it breaks from the bad foundations, not for some other reason.

iii. Commingling of streams into a river example, p 425. iv. Says that there is a duty to the worldmore consistent

w/modern approach.g. Dissent sums up proximate cause better than anyone with

this test: Proximate cause must be something without which later events could not happen.

i. Was there a natural and continuous sequence b/w cause and effect?

ii. Was the one a substantial factor in producing the other?iii. Was there a direct connection b/w them, w/o too many

intervening causes?iv. Is the effect of cause on a result not too attenuated?v. Is the cause reasonably likely to produce the result?

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vi. Was the event FOSof what, type, extent, manner, etc.vii. Is the result too remote on a space and time continuum?

h. Here, Dissent applies test, finds there was a negligent act, if the package had broken, the guard would be liable for replacing the broken package. If the package had landed on a guys foot and broken it, then the guard would be liable. What about the xplosion 30 feet away? Distance not s huge, time elapsed is very little. 1 intervening cause (fireworks hitting ceiline to jar the loose). Except for the explosion, p would not be injured. Direct connection b/w explosion and injury. Given the big explosion, no great stretch to assume that the natural result of an explosion would injure someone, somehow

i. Why does the jury verdict get reversed by Cardozo? Looks more at duty than at proximat cause, and Cardozo finds no duty, and says that there is no such thing as negligence floating in the air.

j. Do we find duty?i. Common carrier

ii. Inviteeiii. SO yes. So is Cardozo focusing on duty? NO, he is

conflating jury and breach. Posecai approach. k. If you are a FOS p but the type of harm is UnFOS, what

happens? Cardozo cites to Polemis and in dicta says that once you are in the door, anything that follows is fair game. THUS Cardozo’s opinion here is a lot like the decision in Polemis.

l. Cardozo concerned w/the zone of dangerPalsgraff was too far away to be harmed, might be different if she was right next to the guy

m. In Palsgraf was there N in the first place? i. P says that the guard was negligent in pushing the guy

onto the trainUnder Hand, probability of harm seems lower than the burden or liability. Harm might have been worse for not pushing guy onto the train.

ii. Ways you could describe the fact pattern to be negligence on the part of the dmaybe the shingles in the station were negligently built

(4) Causation, Intentional Torts-pg. 868-9a. Idea that danger invites rescue, and rescuers can be foreseen to

be nb. Proximate cause usually comes into play when you are tying to

get to a d with more moneyc. Restatement § 162trespasser liable for any acts done or

activity on the land that harms the possessor, others, or property irrespective of whether his conduct would subject him to such liability were he not a trespasser.

b. Defenses to Negligence

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i. Plaintiff’s fault – contributory and comparative Nii. Assumption of Risk(1) Express agreements: Dalury v. SKI pg 461-P signs a waiver not to sue the d for injuries sustained while skiing. Hurts himself when he slides into a ski lift pole that is not padded, sue. Did the p assume the risk through his signed waiver?

a. Holding: P cannot assume all liability for policy reasons, which thus invalidates the form

b. Restatement § 496B cmt.ean exculpatory agreement should be upheld if it is:

a. Freely and fairly madeb. B/w parties who are in an equal bargaining positionc. There is no social interest w/which it interferes.

i. Here, social interest is affected. c. Agreement is invalid if it has some or all of these Tunkl

factors:a. Concerns a business thought suitable for public

regulation (Suitable for public regulation)ski resort potentially dangerous

b. Party seeking exculpation is involved in performing a service of great service to the public which is often a matter of practical necessity (service of great importance)not so important (in Tunkl case was about a hospital, which is of great importance, but in general, Tunkltest doesn’t require that all 6 factore be met)

c. Party holds itself out as willing to perform the service for anyone (available to all)anyone who wants to pay, open to the public, very important to the courtBusinesses open to the public have a higher standard of care to their invitees and the land that is in the control of the d is what causes harm to the p (idea that resort is saying give me money and don’t sue me).

d. Excessive bargaining power on the part of the party seeking exculpation (bargaining power)in theory p has power, could go somewhere else, but most resort will make the guy sign a waiver anyway,

e. Exculpation form is a k of adhesion and allows for no possibility of the p paying to be allowed to sue for n (K of adhesion)p could not ski at all

f. Person or property of the p is placed under the control of the d. (p under control of d)yes

d. Premise liabilityIn VT an owner has an active duty to make sure that its premises is safe and in suitable conditions for customers. Invitees have a right to assume this. Ski areas owe the same duty as any other business

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e. Policy is to keep area as safe as possible and keep accidents to a minimum. If d were allowed to waive liability, they would have no interest in keeping their slopes safe and the public would have to bear the brunt of this cost.

f. D says that the VT statute on acceptance of inherent risks which says that a person who takes part in sports accepts as a matter of law that are inherent w/the sport means that the legislature is willing to limit ski resort liability. HOWEVER SC VT says that the statute place liability on a person for inherent liability, whereas the form also place liability on the p for the resort own negligence, which is not covered by the statute.

g. Courts all agree that no matter what the language in a waiver, they never disclaim liability for recklessness or gross negligence

h. Dalury Testtotality of the circumstances, and Tunkl factors. i. Who is the better cost avoider here? D is, put poles in different

places.j. Dalury is a minority approach, most j’s would enforce this type

of waiverk. What if the k was enforceable, and someone from the resort

intentionally trips the skier, just to see him fall? Could p sue the resort under vicarious liability? Yes b/c it is an intentional tortintentional torts cannot be waived. Sometimes even gross negligence or recklessness cannot be waived.

(2) Implied assumption of risk: A. Murphy v. Steeplechase pg. 469-P hurts himself when he falls off the “flopper; sues even though he had seen people fall and the point of the ride was to fall. D says he assumed the risk.

a. Holding: The p here witnessed the risks involved and undertook the activity anyway, thus assuming the risk of injury, which ultimately occurred.

b. One who takes part in a sport accepts the obvious and necessary risks involved.

c. It would be different were the dangers of the sport obscured or unobserved or so serious as to justify the belief that some precautions should have been taken.

d. Also would be different if there were evidence that there were so many injuries that the ride needed to be changednurse says she had seen some injuries before, but this was the first broken bonenot enough says Cardozo250000 people/yr on the flopper, too small a percentage. People get hurt ice-skating too, should all the rinks be closed?

e. Most courts say that negligent injury in sports is just part of the game and don’t want to discourage people from vigorously

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participating in events or encourage a flood of litigation from people upset over getting hit by a pitch in little league.

f. Even if you know the risks, why can’t you sue for damages? You know, choose, and express your consent not to sue in with a waiver. Not only am I going to take the risk, but also I will not sue. Here, p didn’t sign a k, but he did know and choose about the risk, so that implies consent not to sue.

g. Sports Notes No duty to avoid negligence, but there is a duty to avoid behavior that is more that negligence

h. Policy:a. Consentb. Effect on the sports (encourage vigorous activity)c. Hard to define; what does it mean to tackle someone

negligently?i. Minority approach in Wisconsin where you can

sue for sport related injuries b/c there the court thinks that the jury can sort out was is negligent behavior based upon the context of the sport.

i. Spectators are generally barred from suingdon’t want to raise ticket pric or change the nature of the sport. Balance b/w the value of the activity to society and imposition of liability

B. Davenport v. Cotton Hope pg. 476-P told d rental agency that there was a light out in the stairwell, but he continually goes down those stairs, eventually falls. Did he assume the risk of falling and thus consent to the inherent risk of injury or should the d be liable?

a. Holding: P can recover if their assumption of risk is less than the negligence of the d. This case for a jury to decide if p was more negligent than d for using a stairway he knew to be mishandled or if the d was more n than the p for not maintaining a safe stairwell which they knew was broken.

b. South Carolina uses a modified comparative negligence system, so who was more n is important in allocating damages.

c. 4 Elements for the defense of assumption of risk: (knowledge of risk and voluntarily assume it)

a. P must have knowledge of the facts constituting a dangerous condition

b. P must know the condition is dangerousc. P must appreciate the nature and extent of the dangerd. P must voluntarily expose himself to the danger

d. Primary implied assumption of risk When the p impliedly assumes those risks that are inherent in a particular activity (like playing football). It is not a true affirmative defense but goes to the initial determination of whether the d’s legal duty encompasses the risk encountered by the d. Shows the duty of a d to the p, and if there is primary implied assumption of risk then that shows that the p has not established a prima facie case

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of negligence by failing to show that duty exists. Primaryinherent risks (sports). Not a true complete affirmative defense b/c it goes to whether the d had a duty to protect against a particular injury. P hasn’t made a prima facie case of n

e. Secondary implied assumption of risk P knowingly encounters a risk created by the d’s negligence. It is a true defense b.c it is asserted only after the p establishes a prima facie case of n. Very often when you encounter the d negligence the p behavior will look unreasonable, but sometimes it will not.

a. Can involve either reasonable or unreasonable behavior by the p. Reasonable implied secondary assumption of risk is when the p knows of a risk negligently created by the d but encounters the risk anyway; when weighed against the risk of injury, the p’s action is reasonable. Unreasonable secondary assumption of risk would be rushing into a fire to save a hat.

f. D says that assumption of risk is consistent with comparative negligenceCourt disagrees.

a. Doesn’t jive w/point of tort law to require a p who is less than 50% at fault for an injury to bear the entire burden of it. The whole point of comparative negligence is to adequately compare and allocate negligence liability for the purposes of recovery, and saying that a person reasonably did something, or was only slightly unreasonable, and then not allowing them to recover for the negligence of another isn’t right

g. Secondary implied assumption of risk is about the reasonableness of your actions, whereas primary and express assumption of risk are about having no duty at all (on the part of the d).

h. Some j’s retain AR as a complete defense. a. -Subjective v. objective standard. Idea that you have

assumed the risk, too bad for you. If you didn’t know, however, then your behavior doesn’t meet the objective standard and damages are reduce

i. Davenport approacha. The goal of comparative negligence is to apportion faultb. In SC they used modified comparitive negligence, so if

the risk assumed was more than 50%of the n, then there is no recovery.

c. Beyond that caveat, this standard only applies to secondary implied assumption of risk, but if it is primary assumption of risk then there is no recovery b/c there is no duty on from the d.

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j. What is the purpose of AR w/comparative n?a. Eliminate it altogether

i. Under primary or express there is no dutyii. Under secondary degree use comparative

negligenceb. Other j’s keep it but apportion risk in all instances of

AR even if you have waived dutyc. South Carolina approachprimary = no damages,

secondary = reduced damages. k. Prosser wants to know if there was consent. But if you are

crossing the street with a lot of traffic, you know that there is a lot of traffic, but you aren’t consenting to get hit, so what you are really asking is “is there consent”. IN primary implied AR then you are consenting to be hit in a football game, and when you expressly AR then you are consenting to waive damages, but under secondary, you might not be consenting.

5. Strict Liabilitya. Ultrahazardous activities (Doctrinal development)A. Fletcher v. Rylands pg. 498-P’s land flooded when d’s well ruptures. P says that the d owed him the absolute duty to protect p from harms emanating from d land.

a. Holding: Person who brings something onto his land something that is likely to do mischief if it escapes must do so at his own peril and is prima facie answerable for all the damages that are the natural consequences of the escape of the mischievous entity.

i. -If the act is an act of God, or if the p caused the escape, then the person is no longer liable.

b. D free from blame, but the people working for him are notvicarious liability.

c. SL-mischievous/not naturally thered. Rationale:

i. Not assuming risk of your neighbors activity (just hanging out, neighbors water floods your land)

ii. Plaintiff is innocentiii. Intent to bring on/affirmative act of the d bringing something

onto their land. e. SL v AbsoluteL

i. AL says did you cause damages w/o respect to any kind of limiting factors.

ii. SL says there is no liability for acts of God and limits it to things that aren’t there to begin with

f. Neighbors (SL) v. Highway (n)i. Assumption of risk ob the highway

ii. Idea of the importance of your land, it is your space

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iii. Idea of mutual risks and benefits (on a highway, you create risks for others too, sitting on land, you aren’t creating any risk to your neighbor

B. Rylands v. Fletcher pg. 503a. Holding: If a person accumulates something on their

land, they do so at their own risk, and are strictly liable for whatever harm may come from what they collect, no matter how careful they were in collecting it.

b. SL when non-natural use; slightly different test than the Fletcher test. Allows for liability (broader) when something was on your land to begin with, but it is narrower as well: you could have something that is not naturally there that you use in a natural way that does not lead to SL

i. Precursor to evaluating the activity, not the thing itself. Foreshadows the abnormally dangerous activities of the restatements.

ii. What is a natural use depends on the characteristics of the localeIn England, where it rains a lot, not natural to build reservoirs, in Nevada, it is

c. Notespolicy rationales for not having SL in US at the same times. Protect industrialization.

C. Sullivan v. Dunham pg. 506-D has two guys blow up a tree on his land, tree flies 400 feet and kills p walking by the land.

a. Holding: When two rights conflict (the right to use our own land and the right to not be trespassed on, here), the more important of the two trumps for reason of public policy. Land use is not an unqualified right.

b. Here p didn’t own the land she was on when she was hit, but she had a right to be there, and this right is more important than the right to use your land as you choose in a lawful manner/property improvement.

c. Caveatwhen the injury is not direct, but consequential, then there must be negligence.

i. Here, the blowing up of a tree was the direct cause of the lady being hit on the head.

d. Fletcher and Rylands are about land being hurt, but here the case is about a person being harmed, which used to be just a negligence claim, but here court extends SL.

e. Court trying to articulate a rule that explains how Lossy case said no SL (boiler explodes, damages house) but a dynamited tree is SLuses wit of trespass to do this. D intended to blow up the tree, and there was direct harm

f. 1st restatement on SL

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i. Ultra hazardous activityii. Risk serious harm

iii. Care doesn’t decrease riskiv. Not common

f. Abnormally Dangerous activity found in 2nd Restatement1) Existence of a high degree of risk of harm to land,

person, or property2) High likelihood of harm3) Inability to eliminate the risk by reasonable care4) Activity not common5) Inappropriate activity in regards to the place where

it is acted out6) Extent to which the value of the activity to the

community is outweighed by the dangerous aspects of it.

g. SL made it too costly to engage in startup businesses so courts wanted to focus on n, but as we have become more industrialize recently, people begin to live closer together, and courts get more willing to use SL.

D. Indiana RR v. Cyanamid pg. 511-P has to pay for the cleanup of toxic chemicals made by d and spilled on p property from a train that d leased. Should d manufacturer of a valuable chemical be SL for it?

a. Holding:b. Restatement second § 520 sets forth six factors to determine whether

an activity’s abnormally dangerous and thus subjecting the actor to SL for abnormally dangerous activity:

a. Existence of a high degree of risk of harm to land, person, or property

b. High likelihood of harmc. Inability to eliminate the risk by reasonable care (if you could

eliminate the risk, then the suit would be for negligence, not SL)

d. Activity not commone. Inappropriate activity in regards to the place where it is acted

out (doing the activity somewhere else could be safer)f. Extent to which the value of the activity to the community is

outweighed by the dangerous aspects of it.c. The greater the risk of an accident (a) and the costs of the accident (b)

the more we want the actor to consider changing their activity. d. If an activity is extremely common (d) it is unlikely that its hazards are

perceived as great or that there is no technology to avoid the harms, so the case for SL is weakened.

e. SL seen a lot in cases of dynamite, where you want the actor not to do it in a crowded area and dynamite is always a danger, plus you want the actor to explore other means of demolition, such as a wrecking ball, that are just as good.

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f. This chemical was the 53rd most hazardous shipped chemical in the US, so to make d Sl would mean that all other 52 makers would be SL as well

g. If a rr car is maintained properly, then the danger of a spill is minimal, so there is no need to move into the SL realmPosner thinks that this is a better n claim

h. Clause c seems to be the most important to Posner, and it looks a lot like the Hand equation. When B is greater then PL SL maybe should apply. When B is less than PL then negligence should apply b/c the d can avoid the harm in a socially useful way.

1) Existence of a high degree of risk of harm to land, person, or propertychemicals are very toxic

2) High likelihood of harmIf they actually used care, then there would be a low risk

3) Inability to eliminate the risk by reasonable care (if you could eliminate the risk, then the suit would be for negligence, not SL)possible here

4) Activity not commonHow common is it to ship the chemical? Very common. You could be using something that is dangerous, and as long as it is not used in a dangerous manner means that there is no SL. Here, the chemical is dangerous, but the activity of shipping it is the issue, and people ship the chemical all the time and do so in the area (Chicago) all the time too.

5) Inappropriate activity in regards to the place where it is acted out (doing the activity somewhere else could be safer)All the major switchyards are in metropolitan areas, and an additional risk would be created by sending the chemicals another way would have the chemicals on tracks longer, and the tracks are better maintained on the more traveled tracks,

6) Extent to which the value of the activity to the community is outweighed by the dangerous aspects of it (balancing test)Posner says that if SL is imposed, then d would either have to increase the cost of the chemical or stop making it at all, and there are no alternatives to this chemical. If B were greater than PL then the only way to avoid the risk is to stop the activity, which is when SL should apply. But here, appropriate care decreases the risk. For Posner: can you engage in this activity in a safer way or do you have to stop the activity all together. Here, they can engage by using care and don’t have to stop the activity.

-What is the value to the community of the transport of the toxic compound? Jobs in the area from people passing through the community. Posner thinks that the value to the community is greater than the danger, which disfavors SL thenpeople should move-social valuationi. 5th and 6th factor are very much related to the non-natural use found in

Ryland-if you are in an area that makes a lot of money from coal mining, hazards in other places might not be so hazardous in the coal mining town.

j. 517, Yukon case note 4Court here not concerned with location. Looks like the first restatement approach (risk serious hazard, can’t eliminate w/care, not common usage) which doesn’t take into value to

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the community and the locale like the list in the second restatement does.

b. Theoretical perspectivesLAW AND ECONOMICE THEORY LECTUREClass Notes, 11/19/03

Negligence is still the predominate approach, but courts carve out SL areas, like property trespass and for ultra hazardous activities.

Older Cases-Like Rylands and Sullivan-Corrective Justice -Rights based kind of approach-More traditional way of thinking of tort theory

Modern Approachmoves tort system to something like a compensation scheme, erases many of the fault principles that we have discussed this year-Spreading Risk-Collective Justice-Redistributive Justice-Enterprise Liabilityput the burden on the enterprise that can spread the risk

Chavez case, where d common carrier says they were required by the federal government to accept dangerous cargofairness argument.-Court says that the d is better situated to spread the risk. Collective justice

King Article1) Loss (and risk) spreading-a lot of situations where there is not a clear loss spreader when people have the same amount of money. But when dealing with an economic imbalance, the richer party will paymanufacturer held liable, who then raises rices of products, spreading their losses

Rationale:-Compensation-Bottom dollar/relative burden100000 is a huge cost for one person, not much for a corporation, loss in dollars for everyone ends up being spread out. -Collateral loses/secondary lossesindirect effects of having people out of commission. If you are uncompensated after being injured there are costs to society

Alternative ways to deal with loss and risk spreading:-Insurance -Relative efficiency of different approaches-want to figure out who the best loss spreaders are and what the administrative costs are

2) Loss Avoidance/Risk ReductionPrimary cost = sum cost of accidents (ability) and cost of prevention (efficiency)

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Abilitywho is better to hold liable for an accident where both people are equally good at preventing injury.Efficiencytry and figure out how we can most efficiently/most cheaply reduce the amount and severity of the injury. Goal is social utility, spend the least amount of money to help society

What if B >PL where due carfe doesn’t reduce the risk of harm? Maybe this isn’t an activity we don’t want to engage in. Try and reduce the activity down to zero by making the activity level not economically beneficial (it doesn’t matter how you drive, there is nothing you could do, so we want you to change your activity levels-drive less and shorter distance)

If B <PL talk about changing the quality (drive with more care)

If B > PL what do we do to decrease activities?-Specifically deter activity-criminalize the activity.-General deterrence-Tax the activity thereby increasing the cost of engaging in

said activity which might make people less likely to engage in the activity (smoking).

Tort law is more like general deterrence-like a tax, you don’t go to jail, you just pay for the harm that occurs. People do need to know what the costs are, and the tort system doesn’t let people know this well as they don’t know what is unreasonable a lot or what a jury will find them liable for. A tax is better for general detterence.

Specific law approach is more paternalistic, saying you cannot do these thingGeneral treat speople like rationale actors presuming that they will know the cost of an activity and choose whether or not to engage in it.

3) Loss Allocation/InternalizationWay of saying when the accident happens, being a party that feels the pain of the economic cost-Bearing some portion of loss-Risk maker we want to bear the loss

Is it different than #1? In one you are passing on the risk, here you are bearing the burden of the risk. Goal here is achieved in part by asking the risk creator to bear the loss. Often though, the risk spreader and maker are the same. But does spreading the cost Externalize the risk? Yes, in part, but there are competitive costs and part of the idea is that everyone who is part of using the product becomes a risk bearer on some level by having to pay higher prices, so that not only the person who suffered injury is hurt.Need to get the right balance, though, so as not to put people out of business.

4) Administrative Efficiency-SL easier to show than N, faster. But that involves an increase in cases that will go to trial. But is more people coming to court enough to tell us that it is inefficient? We also would need to know-the efficiency of their suits depends on what? The cost of people not bringing their suits forwardare the right kinds of SL suits coming forward that will

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help change society, or is it a bunch of suits on people who we want to continue their activities and are being careful but cannot helo their being accidents.

Posner (see handout)SL and N will not have any bearing on the quality of behavior if they are going to care about their relative values

Moral TheoryFletcherAirplanes example of two planes crashing. Both pose equal risks to e/o.-Reciprocal riskUse N, why? Make liability depend on level of fault b/c both people pose the same harm to e/oUse SL for people eon the ground when airplanes crash b/c they are not posing any risk on the planes, so fault isn’t relevantcorrective justice kind of idea.Not looking for fault looking for degrees of responsibility

EpsteinThought if you could show that the d caused harm, then they should be liable. Even extended it to third party’sa compels b to hit c, a should be liable.

Makes sense in theory, but causation involves many actors. Thinks that there should be no duty to rescue, which is what most courts hold if there is no special dutythinks there should only be a duty if you caused a harm (watch someone drown, not even morally culpable since you didn’t do anything wrong).

Not asking if there was fault, just asking if there was causation

c. Products Liabilityi. Emergence of DoctrineA. MacPherson v. Buick pg. 540- D manufactures cars, sells to dealer, dealer sells to p. P thrown from defective wood wheel from car. D did not know of the defect, although evidence shows that reasonable inspection would have uncovered the defect. P alleging that there was N in the inspection of the wheel. P suing the manufacturer of the car, not the maker of the wheel, since they say that the d should have inspected the wheel before selling it. Did the d owe a duty of care to anyone other than the dealer of the car, since the dealer was the first buyer of the product? Is there a duty w/o the privity of k?

a. Holding: 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 danger. If it is known at the time of manufacture that the thing will be used by someone not the original purchaser w/o new tests, then the manufacturer is under a duty to make this thing of danger carefully. Thus the d did owe a duty to the p, the ultimate consumer. There must be knowledge of probable danger (not possible though, must be probable).

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b. Thomas v. Winchester 1852. P recovers damages from a seller who affixes the wrong label on a poison. D’s negligence put anyone who came into contact w/the falsely labeled poison in danger, this danger is foreseeable, and there is a duty to avoid the injury.

c. Loop v. Litchfield 1870- D not liable for the damages that it made aware to the original buyer, who then leased the good to another person, who ultimately suffered the injury

d. Losee v. Clute 1873- Steam boiler case, no SL b/c risk of injury was too remote.

e. Devlin v. Smith 1882- Scaffold builder owes a duty of care to the workers he is building a scaffold for to make it safe, even if a company buys that scaffold and puts it together.

f. Statler v. George 1909- Coffee urn gets too hot and explodes; manufacturer is liable since the urn, when applied to the purposes for which it was designed, was liable to become a danger if not properly constructed.

g. Probable danger from useanything can be used dangerously if defective, thus the danger has to be probable.

h. Cardozo is hesitant to extend proximate cause to the manufacturer of components for the ultimate manufacturerhere there is no break in causal link, so will deal w/proximate cause later.

i. Manufacturer d responsible for the finished product even though they didn’t manufacture the faulty wheel themselves they did put it onto the car at some point

i. Here, Cardozo sees that there is a foreseeable p from the guy buying the car from a dealer who bought it from the manufacturer.

j. The way we think about tort law and duty makes us feel like there is no duty problem here. Why do we feel that way? Buick says that they have no contractual relationship w/the p. Cardozo thinks that they do have a duty to the p, even though there is no privity of k b/c the d knows that the one person who is going to use the product is someone other than the purchaser. P here is exactly the type of person you think would be injured by using a defective car

k. History of cases above show movement of no k basis to dutyintersection of tort law and k law, but k law is not at issue anymore for Cardozo for duty.

l. MacPherson opens the door for a wider class of p’s2nd buyer, passengers, bystanders.

m. What if there is a gash in the steering wheel when you buy a car, and you cut yourself on it later, can you sue?

i. D would say that there could have been inspection for the steering wheel b/c it is obvious and that the danger wasn’t probable b/c you assume the p would notice the gash and

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not use it/buy the car/get it fixedSuggestion by Cardozo that the defect has to be hidden, so there is no issue of contributory negligence.

n. Foreseeable that if you make a defective product like a car it might hurt a pedestrian, seems more possible than probable, tough call though. A passenger could certainly sue, since a car is designed w/more than one seat

o. What if someone buys a defective toy, and kid’s friend gets hurt from using it, can the kid’s friend get hurt by using it?

i. Expectation that people will play together, but cars are designed to have people in them, so not as good a case

ii. Can you sue the mom of the kid who got the toy? No risk spreading ability, also, if MacPherson didn’t sue the dealer, mom shouldn’t get sued either, also not making money off of the sale.

B. Escola v. Coca Cola pg. 546-P hurts her hand when moving a bottle filled by d from box into fridge and the bottle explodes from a pressure buildup that the bottles are tested for when produced, but not when recycled.

a. Holding: Majority finds that this case is well suited for a claim of RIL (RIL used b/c no problem w/bottles if there is due care, and the d had exclusive control of the bottles when they were being inspected and charged (with the carbonation)) by the P, but the important part of this case comes from the concurrence by Traynor:

b. Wants there to be SL when a manufacturer places an item on the market knowing that it will not be inspected before use and the product has a defect that causes injurycites to MacPherson

c. Wants a SL standard where the manufacturer can spread the burden to insurance costs and to consumers.

d. In modern society, where things are sealed and mass produced, people take the manufacturer at their word that items a fit for sale, not like a long time ago when everything was made by hand and the ultimate consumer would inspect it.

e. When can a p go after the manufacturer?:a. Product put on marketb. Used w/o inspectionc. Defective product

f. Pg. 547-8 Economic/policy rationale:a. Reduce Hazard by imposing liabilityb. Loss Allocation/internalization (Primary accident costs,

deterrence)c. Loss Spreading (manufacturer can spread the loss;

avoid collateral secondary loss)

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d. Administrative EfficiencyWhy doesn’t he think that RIL works here? What does he thinks happen if you do the N analysis? W/SL just determine if the product is defective, instead of going after the conduct of each actor along the production line, saves a lot of time.

g. What would Traynor say about someone driving w/their sunscreen in the window and the person sues under SL? In the hypothetical it doesn’t look like the screen is a defective product.

h. Traynor theory Limited to the products normal and proper use. i. What if a lawnmower is very cumbersome to turn, so you take

off some guard railssounds like a design defect, not a manufacturer defect. Traynor looks primarily at manufacturing defect.

a. Would this be normal and proper use? No clear answer. Difficult when you have a design that makes it hard to use the product for normal and proper use and someone tweaks it.

j. How does MacPherson help support Traynor? a. Inability to inspectb. MacPherson takes away the contractual barrier b/w p

and d (privity of k issue)k. How is MacPherson different?

a. Theory of liability in MacPherson is that the d places a product in the stream of commerce that is not inspected and has a duty to make sure that it isn’t defective b/c there is a high probability of harm coming from the defectSOUNDS LIKE NEGLIGENCE, NOT SL. Macpherson only gets rid of the privity requirement, but still has a negligence analysis. Traynor doesn’t look at n, looks at SL

b. The issue in MacPherson is was there a duty for the d? Yes there was, so the jury can determine if there was breach.

l. How is k important to Traynor? Implied warranty theory supports his SL approach b/c you don’t have to show n in an implied warranty claim if the product didn’t meet consumer expectation. Policy also argues for the manufacturer to be the insurer against harm. IW had always been used in food cases, but Traynor says that it should be expanded beyond that.

a. SO Traynor’s approach draws on a merger b/w IW and SL

b. Restatement 3rd merges the two in SL. What it takes from IW is the lack of fault requirement and from N a lack of privity, which merge into SL

m. IW and SL expand the class of p that can sue

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a. Note casesRyan (pin in bread)-wife can sue as the husband’s agent, to avoid the privity requirement.

n. Who can the d’s be? Note 5b pg. 551a. Vandermark caseexpress disclaimer in the k saying

the manufacturer cannot be sued, can they? B/c is not strictly a k theory, they can be sued under tort.

b. Retailer received a benefitc. Deter, retailer can inspect product, they can also stop

dealing w/the manufacturer to try and get the manufacturer to try and change behavior. If you don’t pressure the retailer, then some might not sue the manufacturer. Liability isn’t assumed by k, the law implies it. Court doesn’t care if there are express disclaimers or not

o. Restatement § 402Aa. Who?

i. Manufacturerii. Retailer

iii. Supplier might be able to be sued, but might not, b/c the section isn’t clear about what you do when the product isn’t completed, which is when proximate cause comes into play, b/c the supplier cannot control what the manufacturer is doing to their product.

1. P would say to this that they should be sued b/c all of the arguments made for the manufacturer being sued apply here, want the supplier to inspect the finished product too.

a. Many j’s include the supplier, but some do not.

p. Who are potential plaintiffs in the restatement?a. The consumer or the user-alwaysb. Passengers-included almost all the time

i. Could say that a passenger is a user, Foreseeable that the passenger will be in the car.

ii. Unable to inspectiii. Argument against the passengerlimiting

liability. c. Bystanders-often included

i. Argument againstone more step away than passenger. Lots of intervening causes.

ii. Bystander would say that they have no ability to inspect

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q. You have to show that the product is defective, which is why it is SL, not AL. 3 types of defectsdesign, manufacture, warning

a. Design defect is a harder claim to bring, b/c you are saying that the product isn’t as safe as you think it should be and you have to get into an analysis showing why you think this.

ii. Manufacturing defectsiii. Design defectsA. Cronin v. JBE Olson Corp pg. 558--P injured when he is driving a delivery truck and crashes, and the delivery trays un the back come forward and hit him in the head. Sues on SL theory. D says that the judge should have instructed the jury that any defect in the product needed to be “unreasonably dangerous” but the SC CA disagrees. Says that the unreasonably dangerous caveat sounds too much like N, although they are wary of making the d the insurer for all of their goods, but think that that protection is found from having to prove that there is a defect.

a. Design defects-most j’s follow the restatement in saying that the product must be unreasonably dangerous.

b. Cronin is a case where a j decides not to make this a requirement.

c. Problem in Cronin is that the defect might have actually been a manufacturing defect.

d. Barker case. P injured driving a lift on an incline, says that the lift wasn’t designed appropriately, d says that the product was being used incorrectly

i. Court uses a two prong test1. Consumer expectationsDirectly

follows from warranty theory (products are defective based on CE)

2. Risk utility test (benefits of the design v. the risk)can make every car a tank for safety purposes, but people want cars for other purposes as well.

a. Pg. 559 FOS of harm v. mechanical feasibility, looks like N, so again we see N and IW merging to make a SL claim, like in Escola.

e. Court says that people use products in ways that the products aren’t made for, but if it is a reasonably foreseeable use, then there is liability (people stand on chairs to change lights, chairs aren’t made to be stood on, but it is foreseeable, so the manufacturer should design w/this in mind).

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f. Courts say that they are not evaluating the conduct, just the choice of conduct. In CA they help the p by shifting the burden of proof to the manufacturer (not common approach).

B. Soule v. GM pg. 558- P hurts her ankles in a car crash, says that the reason for her injury was defective design of a GM carsays that when the accident happened, a tire turned inward and hurt her foot. GM says that the only reason she was hurt was due to the force of the crash, not any defect, experts debate both sides. P isn’t saying that the defect caused her injuries, says that the defect enhanced her injuries by making the car less crashworthy.

a. Holding: Court uses the Barker test listed above, finds that the Risk Utility test should have been used b/c the design defect here was one of a highly technical nature that the ordinary consumer expectations of a jury could not account for.

b. Ordinary consumer expectations:ii. D product failed to perform as safely as an

ordinary consumer would expectiii. Defect existed when the product left the

manufacturer’s possessioniv. Defect was a legal cause of p’s enhanced injuryv. Product was used in a reasonably foreseeable

mannerd. A complex product even when used as intended may often cause

injury in a way that doesn’t engage its ordinary consumers’ reasonable assumption about safe performancemost people have no idea how a car will perform in all foreseeable situations. If the injured party can prove excessive preventable danger then there is still a defect as long as the benefits of the design outweigh the risk of danger inherent in such design, so the jury considers the risk to benefit of the product in this test.

e. The important question to be asked is did the circumstances of the failure permit an inference that the product’s design fell below the legitimate commonly accepted minimum safety assumptions of its ordinary consumers.

f. The reason that there was no reversible error is that everyone argued this case on the highly technical grounds required by the second test, not the first, so that means that the jury considered the evidence under the requirements of the second prong anyway, and found for the p.

g. Pro Consumer Expectations testP favors it b/c they don’t need expert testimony; tied to the inability to inspect (people don’t bring experts to inspect cars before they get in). Used where consumer experience permits evidence.

h. Pro Risk Utility testD says no definition in CE test, ordinary consumers know nothing about safety; doesn’t look at the whole

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plan and design of the car, eliminates the balancing of the whole design process. Used where too technical for the consumer.

i. Court decides to keep CE and RU separately. If a consumer doesn’t expect their car to blow up while idling, that is obvious CE. But the RU test is used in cases where we don’t expect users to have any knowledge (like what will happen to a tire when you crash).

j. Airbag dilemma-at what speed should they go offjust an example of an instance where consumers aren’t really qualifed to use their expectation.

k. If there is a gash in the wheel, that is open and obvious, and the p hurts their hand on it, the CE test is of benefit to the d b/c they know of the danger.

C. Camacho v. Honda pg. 572-P on motorcycle gets hurt when he crashes. Sues the d on SL theory, says that the design was defective b.c there were no crash bars on the bike that would have protected his legs, and that crash bars were on the market at the time he bought his bike.

a. Holding: Court applies Risk Utility testb. Crashworthiness doctrinemanufacturer of a motor vehicle may

be liable in N or SL for injuries sustained in a motor vehicle accident where a manufacturing or design defect, though not the cause of the accident, enhanced or caused the injuries.

c. Here p wants the RU test, not CE, b/c since the defect was pen and obvious, the CE test would be bad for him, b/c no consumer would expect their legs to be protected w/o leg guards. In Soule, a hidden defect, so CE good for P; here obvious defect, CE bad

d. Policy rationales pro/con CE herei. P would say to avoid the CE test that all the d has to do is

make all of the risks of their product obviousno incentive to make safer products.

ii. D would say that the CE test is good b/c the p can evaluate the product. Only would leave the consumers w/heavier (b/c of leg guard) bikes that are less maneuverable, since everyone will likely put leg guards on their bikes after a ruling w/o the CE test since it would impose a minimum standard. Also makes bikes more expensive.

e. Ortho test:1) Usefulness and desirability of the product, its utility to the user

and to the public as a wholeUTILITY2) Safety aspects of the product-likelihood that it will cause injury

and the probable seriousness of the injury3) Availability of a substitute product which would meet the same

need and not be as unsafe4) Manufacturers ability to eliminate the unsafe character if the

product w/o impairing its usefulness or making it too expensive to maintain its utility

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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 and their avoidability b/c of general public knowledge of obvious condition of the product, or of the existence of warnings or instructionsLooks like CE test

7) Feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or getting insurance.

g. Are we in SL or in N? In SL, feels like N though. Court explains that we are still in SL b/c we are just looking at the product of the manufacturer, not at their conductbut looking at the product seems like we are looking at their judgment/conduct. Why does the difference matter? The defect follows the product through the chain of commerce and you can sue all the people on SL who came into contact w/the product in the stream of commercedealership has no choice in the reasonableness of the production or design of a product and they can be sued.

h. Irreducibly unsafe products: Chopper exampleHow important is it to have this product? Butter has some value, but the chopper is just dangerous, no utilityno matter how good the design or warning on the chopper, still will always be unsafe-so we have to decide if there is any utility in the product to counterbalance the risk

i. Note 12 pg. 570-1. Liability if minimal utility even if no reasonable alternative design. CE is helpful to a d if there is an open and obvious risk UNLESS the product has no utility

j. Battle b/w choice and minimum safety standards found in Camacho. Get to the Ortho factors either way we do the analysis. Comes to a point where you will change the product through regulationdesign as a while an issue, what kind of bike do you want to make?

k. Driesenstock note caseVW microbus, competing factors b/w having people sitting farther up and having extra spacecase by case evaluation of particular designs which can be a dilemma b/c what is a defect in one case might be fine in another case. Juries can come out differently. Dawson case note 10-car crushing too easily in this case was a defect, but in some cases you want a car to crumble more.

l. Causationsunscreen example, is there causation in that scenario? There is proximate cause if it is a foreseeable misuse, but not if it is unforeseeabledriving w/screen in is unforeseeable. Did misuse play a role in the harm?

iv. Warning defectsA. Hood v. Ryobi pg. –P buys d saw, says that the warnings on the saw didn’t convey that the blade would fly off and cut him if he removed

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safety features; didn’t convey the extent of possible injuries. Did the product have bad warning labels?

a. Holding: requiring a manufacturer to tell you every possible outcome of not heeding their warning is impractical. Some say that having too many warnings undermines the use of warnings all together, beyond the cost of having said new warnings.

b. Balance the benefits from a more detailed warning w/the costs of requiring the change.

c. Heeding presumptionsome j’s require the party responsible for the inadequate warning to show that the user would not have heeded an adequate warning had there been one.

i. Incentive to put warnings on productsii. Helps p brings claims

d. Strong interplay b/w warnings and design, as many products, when viewed in the abstract, are unsafe, but when viewed in conjunction w/adequate warnings, are very useful and safehousehold cleaner

e. Some manufacturers have to know that there products will be used for a wide range of activities, like chairs will be used to stand on, and screwdrivers used to open lids of canshow reasonably foreseeable do alternate unintended uses have to be?

f. 2 kinds of warning defects:i. Defect b/c of lack of adequate warning makes a product

unsafeii. Product intrinsically risky-no matter how carefully you use

them come w/risk: pharmaceutical productsm. Is the warning even necessary in the first place?

i. Note case w/pouring cologne on a candlenot necessaryii. Marshmallow bad for babynecessary

n. Is the warning adequate? Normally a jury question, but here it is decided by the judge, thinking that no reasonable jury would have decided otherwise.

a. Testa. Reasonablenessb. Risk/Benefit analysis of more warnings

i. Would another warning about the blade coming off have helped here? Yes, but when does the warning end?

b. Competing IssuesCost of the warnings-information overload

i. Restatement 3rd 556-test looks like the reasonableness in Hoodfeels a lot like N, but still in SL, like in Camacho, b/c retailer can get in trouble too.

o. Adequacy of Warning:i. Contentscope of the risk, magnitude, consequences of

failure to heed (like scope)ii. Comprehensibilitylanguage of the warning

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iii. Intensityphysical characteristics iv. Characteristics of the usersometimes products are

specialized to people who have experience, or a license or something-affects how describe the risks, children users, affects 1 2 and 3.

p. Intertwining of warning and design defectsi. Could describe a warning defect as a cheap design defect.

ii. Trade offtoo many warnings can prove to be ineffective

iii. Manufacturers will try to overcome dangers through warnings, when sometimes changing design can avoid the danger all togethercould have asprin w/easy to remove tops w/a warning not to allow kids to use, or make a cheap design alternative of using hard to open tops to bottles.

iv. Check if there is an alternative design that is better than warning

q. Intrinsic danger: Some products have inherent dangers in them that the manufacturer didn’t know aboutasbestos. However, if the manufacturer is found to could have known about the risk, then the manufacturer will be found liable.

d. DefensesA. GM v. Sanchez-Sanchez pinned into his car door in freak accident. Design defect in car where it shifts itself out of park sometimes into neutral. D says that p didn’t read the warnings on the car or put car in park, so he was n too. How does comparative n affect products liability cases?

a. Holding: Consumer has no duty to discover or guard against a product defect, but a consumer’s conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. But a consumer must act reasonably and take reasonable precautions regardless of known or unknown product defects.

b. Under comparative responsibility a court reduces a p’s damages by the percentage of responsibility attributed to him by the trier of fact.

c. P failed to follow instructions in the car manual in terms of how to put the car into park, so that the mis-shift would not occur, which is enough evidence to support the jury finding of n on his part, so his damages should be reduced based upon his own n in the accident

d. Rest. 2nd i. Unreasonable failure to discover defect in Contributory N

was no defenseii. P voluntary unreasonable Assumption of risk was a complete

defense

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e. Rest 3rd approachi. Unreasonable failure to discover defect in Con N means

reduced damagesii. P voluntary unreasonably assumption of risk means reduced

damagesf. Why compare p negligence to d sl? Comparative N v. SLcourts

are divided. Pro: -Not apples and oranges, we pretend to talk about two

different things, but we really talk about reasonableness in both.-Incentives to affect p behavior

Con: -Reason we don’t want to compare them is that we want the d to bear the loss b/c they are in the best position to prevent it (economic argument). -Also N and SL are 2 very different things, how do you compare the two? One focuses on conduct, the other on the product

g. Note 9 pg 613-divided courts when it comes to express assumption of risk it is a bar to liability if the d is n, but some say it is not a bar if the d is sl.

6. Damages (in more or less detail depending on timing)

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