Torts Master Outline

Tort Definition o Any act or omission that breaches a publicly created duty and causes significant private harm to another person or group, and is privately redressed by the Victim. Policies o Moral/Corrective Justice Punishment Compensation Goal: to restore equality o Economic Efficiency Deterrence Loss Spreading Administrative Efficiency To guarantee relatively speedy and fair justice to the people who deserve it; theres a limit though; we cant take on every case that comes along Goal: to reduce the social cost of accidents o Political/Critical Legal Studies Goal: Expose Bias, Oppression

I.

INTENTIONAL TORTS

A voluntary act committed with a wrongful intent that causes another person to suffer some legally forbidden harm Elements Voluntary Act: an act initiated by s chosen body movements Wrongful Intent o Desire to cause harm (subjective desire) o KSC that substantial harm will result Causation Forbidden harm: defined by each specific IT Standard of Proof Preponderance of evidence, more likely than not each element is true

Policy Exceptions for Wrongful Intent (use these to prove there was intent) Proactive Mistake Doctrine o Where does not intend to commit a harmful act towards , will be treated as having that intent if his act is based on a proactive mistake of law or fact (its still your fault, even if its a mistake) o Policy: to discourage dangerous rash acts and encourage investigation Transferred Intent Doctrine o If intends to harm one person, but harms a different person, s intent is transferred from intended person to actual victim o The five torts that can be transferrable Assault Battery Trespass to land Trespass to chattels False imprisonment Problem People Children and Mentally Incapacitated Adults They are treated the same and not excluded from IT liability, but generally a red flag. However, their limited abilities may inhibit their formation of wrongful intent. We can hold them liable, but it might be difficult to find their intent based on the facts of the case. Defenses Consent Necessity Self-Defense Defense of Personal/Real Property

INTENT IS THE COMMON ELEMENT OF MANY TORTS

A. Intentional Torts - Generally Intent is measured by a subjective standard The defendants state of mind Determine whether the actor subjectively knew or believed that his conduct was substantially certain to cause an invasion of a legally protected interest. Case: Villa v. Deuroen Blow torch Blow Back General Case for Intent Established both Desire or Purpose and Substantial Certainty of Consequences Desire or Purpose The person has the purpose of producing that consequence Desires result Tests: o Restatement 2d (Dual Intent) Contact, and Offense Elements o Intent to contact o Contact invades protective interest (offensive in some way) 2

Res 2 Torts Intent to bring about a result which will invade the interests of another in a way that the law forbades. o White v. Muniz Conventional View, Dual Intent Tortfeasor intend a contact with another that results in a harmful offensive contact. Restatement definition. o White v. University of Idaho Contact Only (Minority) Tortfeasor intend a contact with another that results in a harmful or offensive touching Contact is only needed to be proven in court Irrespective of intent. o Villa v. DeRouen More Ambigous Didnt intend to harm but did intend offensive contact knew it was substantially certain to occur o Infancy or Incapacity Infancy Just need to know that the result would occur I.E. Pulling the chair out from the adult if the kid knows that th adult will fall he intends to commit the tort. o Firefighters Rule Firefighters cannot maintain a claim against the person who created the risks Rejected by some courts in light of the abolition of implied assumption of risk as a result of comparative fault legislation. Substantial Certainty of Consequences The person knows to a substantial certainty that the consequence will ensue from the persons conduct. Knows when it will occur (as a result) (More than recklessness) Case: Ailiff v. Mar-Bal Employees exposed to methylene chloride significance evidence at trial record showed the employer knew the injuries sustained by the employees in the case were substantially certain to result from procedures inherent in the manufacturing plant. o Van Frossen Test Intent for purposes of proving existence of intentional tort committed by an employer against his employee Knowledge by the employer of the existence of a dangerous process, procedure, instrumentality, or condition within its business operation. Knowledge by employer if the employee is subjected by his employment to such dangerous process then harm will be substantially certain versus high risk Employer under such circumstances did act to require the employee to continue to engage in performance of the risk. Employee has the burden of proof to demonstrate o Harasyn Court Two different levels of intent Direct intent - where the actor does something which brings about the exact result desired Inferred intent - when the actor does something by which he believes is substantially certain to cause a particular result even if the actor does not desire that result. Burden of Proof Circumstantial Evidence Employment Context 3

Personal or Social Measure for Offensiveness o Case: Leichtman v. WLW Communications Smoke in the NonSmokers face Love v. Port Clinton Contact which is offensive to a reasonable sense of personal dignity is offensive contact. Transferred Intent Type of liability rule making the actor liable for invasions of interest beyond her express intent. Case: Hall v. McBride Shoot at a car and hit a neighbor o Restatement 2nd Torts If an act is done with the intention of affecting a third person in the matter stated but causes harm to another the actor is liable to such other as fully though he intended to inflict the harm. Across Torts Across Ps Mistake D intents to do the act that makes out the tort no mistake if they strike the wrong person. B. Battery A voluntary and intentional act that causes a harmful or offensive contact with another person Case: Dickens v. Puryear (USE FOR ASSAULT/BATTERY/IIED) Older man shared sex with younger woman and got his ass kicked. CL Principles: o Hayes v. Lancaster - Battery Carrying of the threat into effect by the infliction of a blow o McCracken v. Sloan Interests Protected Freedom from intentional and unpermitted contact with ones person. Elements Voluntary affirmative act Intent to batter (or intent to assault) o Ds purpose or desire was to cause the harmful or offensive contact or the apprehension of such contact o D knew that such contact was substantially certain to occur o Transferred intent Causation o But for Ds affirmative voluntary act P would have not been harmed Harmful or offensive contact (to s person or anything connected to ) o Contact Touching ones body or things closely connected, invading zone of privacy o touching someones clothing, purse, or in some extreme circumstances, a car the is sitting in Not necessarily physical application of force on body Can be direct or indirect contact (trap or poison) It is not necessary that have actual awareness of the contact at the time of occurrence o i.e. harmful/offensive contact while is asleep or under anesthesia is sufficient one cannot batter an animal o Harmful Any contact that has a painful or destructive effect on the body 4

blowing vuvuzela in ear and damaging eardrum is harmful contact eggshell take your victim as you find him (if he has a preexisting condition o Factors of offensiveness (objective standard) Nature of Act (inherently offensive) Context (time, place, relationship of parties) s sensitivities Offensive to a reasonable person in the s position ***if is hypersensitive and finds s contact offensive, whereas a reasonable person would not find it offensive, no battery. Always use the objective reasonable person test. Policy: to deter personal body invasions and retaliate in a civilized way in court

C. Assault (the prelude to battery) A voluntary and intentional act that causes another to be placed in reasonable apprehension of a battery or false imprisonment (FI) Case: Dickens v. Puryear (USE FOR ASSAULT/BATTERY/IIED) Older man shared sex with younger woman and got his ass kicked. State v. Ingram Assault must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence to do some immediate physical injury to the person of another Dahlin v. Fraser The display of force or menace of violence must be such to cause the reasonable apprehension of immediate bodily harm Vetter v. Morgan (P in her van when D comes to window and acts like hes going to hurt her) It is enough that P believes D is capable of immediately inflicting the contact unless prevented by self-defense flight or intervention o Words alone do not cause assault. o Circumstantial from plaintiffs perspective reasonable apprehension Elements Voluntary affirmative act o Words alone insufficient o Ingram Overt act or attempt Intent to assault (or intent to batter) o Ds purpose or desire was to cause the harmful or offensive contact or the apprehension of such contact o D knew that such contact was substantially certain to occur o Transferred intent Causation o But for causation Reasonable apprehension (of battery or FI) o Vetter v. Morgan o Apprehension An awareness of an impending contact, not necessarily fear created by acts or gestures that would cause a reasonable person to believe contact or restraint is imminent o Apparent ability to carry out threat Typically, we want to see words with a gesture that shows the is becoming proactive toward the 5

o Immediacy must be apprehensive that she is about to become the victim of an immediate battery Tomorrow is too far o must be aware of the assault o Fear not necessary To a person o With a persons body or something attached or closely associated

****the intent for battery and assault are interchangeable D. IIED Discrimination Cases (BELOW) Extreme and outrageous conduct which intentionally or recklessly causes severe emotional distress (ED); plugs the gap left by assault Case: Dickens v. Puryear (USE FOR ASSAULT/BATTERY/IIED) Older man shared sex with younger woman and got his ass kicked. Stanback v. Stanback Liability arise under this tort when a defendants conduct exceeds all bounds usually tolerated by decent society and the conduct causes mental distress of a very serious kind. o Defendants conduct in breaching was willful, malicious, calculate, deliberate, and purposeful SPLIT o Physical harm not necessary o Wilson v. Silkins rejected theory that P must show physical injury before being allowed to recover. THIS IS NOT NECESSARY. No foreseeability Wrong-doer is responsible for injuries that may result regardless if he could have foreseen them or not. Elements Brandon v. County of Richardson Boys Dont Cry (ELEMENTS) Extreme and outrageous (voluntary) act Outrageous conduct ONLY where the conduct has been so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. o Objective Measure Brandon Based on facts and circumstances of the particular case Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to this level. However when Defendant knows that the plaintiff is particularly susceptible to emotional distress it is possible. o Based on Circumstances Aggravated Factors: o Authority Position POWER differential Abuses of positions of authority or influence Defendant knows P is particular susceptible to emotional distress Logan v. Sears QUEER over phone. No power differential 6

No course of conduct this was a one-time incident No knowledge of susceptibility or vulnerability o Concrete Acts of Discrimination o Special Vulnerability as Individual Drejza v. Vaccaro Conduct that is rude or abuse is outrageous when the defendant knows that the plaintiff is susceptible. Brandon was particularly vulnerable state at the time the interview was conducted because of the beating and raping earlier that day. Case: Swenson Female secretary who was emotionally deteriorating. Knowledge of susceptibility of particular individual. Recovering Alcoholic and susceptible to stress. o Special Vulnerability as Member of Target Group Case: Alcorn v. Anbro Engineering Employer yelled racial slurs and fired P. As a result of the name-calling the plaintiff suffered physical illness, shock, nausea, and insomnia as a result. This met the requirements for IIED. Defendant was in a position of authority over P, was aware of his particular susceptibility to emotional distress for purposes of casing P to suffer distress. o E&O conduct transcends all bounds of decency tolerated by civilized society; causes onlooker to exclaim outrageous! o Conduct not normally E&O may become so if: Continuous/repetitive in nature Directed toward member of a fragile class o kids, elderly, pregnant women, racial minorities o hypersensitive if knew of s hypersensitivity committed by certain type of Intent or recklessness o Desire or Purpose o Substantial Certainty o Reckless o Must Show Animus Toward particular P o Intent to cause severe ED OR o KSC that your conduct will cause severe ED (recklessness) o NO transferred intent to prevent floodgate of cases Causation o POWER GRADIENT circumstantial evidence of causation o Whether severe ED can be found is a question of law, whether it existed in a case is a question of fact o Bystander cases: one who witnesses a harm to another but is not herself placed at risk of physical harm (direct victim can be victim to any tort, not just IIED) Rule for Relations 7

o Bystander related to s direct victim must prove that she (the bystander) was present at the scene of the victims harm Rule for Strangers o Bystander NOT related to s direct victim must prove that she (the bystander) was present at the scene AND suffered physical harm from the experience Severe ED ED is corroborated by resulting physical problems some courts required physical illness, others do not. o Outrageous Circumstantial Evidence of Harm Some courts require ED to be a diagnosable illness must suffer emotional distress in order to recover P must prove up during trial Policy Concerns Injury is subjective and difficult to prove Risk of fraud Opens floodgate of litigation Financial liability may far exceed fault

E. False Imprisonment A voluntary and intentional act that causes an actual or reasonably apparent confinement or restraint. The wrongful confinement, restraint, or detention of an individual to a limited area. (Generally, plaintiff must be aware of the confinement) Case: Wal-Mart v. Cockrell (Bandage over a stolen pair of sunglasses) False Imprisonment 1. Elements: o 1) willful detention Intent Actual or Apparent Barriers No reasonable means of escape Only brief time required o 2) without consent o 3) without authority of law P must prove Defense: Shopkeepers Privilege: when a person reasonably believes that another has stolen or is attempting to steal property, that person has legal justification to detain the other in a reasonable manner and for a reasonable time to investigate ownership of the property Wal-Mart v. Resendez If the alleged detention was performed within the authority of the law then no false imprisonment occurred 2. Customer is called into back for search security guard makes him remove a bandage covering a surgical wound court says first two elements are fulfilled, 3rd is fulfilled because checking under the bandage was unreasonable search was ok Causation o But for causation o Affirmative voluntary conduct o Words alone may be sufficient 8

o Operating on a persons will In Wal-Mart J.C. Penny v. Duran A person may falsely imprison another by acts alone or by words aloe or by both operating on the persons will. Ps actual or reasonably apparent confinement or restraint (no reasonable means of escape) o These are all means of confinement/restraint Physical boundaries Physical restraint Imminent physical threats (to both body and property) Invalid use of authority Immobilization Isolation Failure to release Loss of liberty (fainting or losing consciousness) o When is escape reasonable/expected? No/little risk of bodily harm No/little risk to another person No/little risk of humiliation No/little risk to valued property When escape is possible; restricted access is NOT confinement Notes on FI Duration is irrelevant Most jurisdictions say must be aware of false imprisonment A person can commit FI by an omission (failure to act) if theres a duty owed Damages: Nominal Injury Enough Tangible Losses Mental Distress: Same as Other IT (Parkway v. Woodruff evidence) o Direct Evidence o High degree of mental distress o More than mere worry o Disruption to daily routine o Courts will scrutinize o Wal-Mart v. Cockrell Worry that Plaintiff was never the same. Concern that they didnt get ice cream together.

F. Trespass to Land A voluntary and intentional act that causes a tangible entry onto the real property of another Elements Voluntary Intentional o need not be aware of trespass o need only to intent to enter the land Tangible Entry o Entry must be without consent o Generally, trespass requires entry of a tangible thing = person, animal, property; physical harm not required 9

o Intentional and unpermitted entry alone is sufficient to recover nominal damages o Exception: Environmental Trespass (i.e. pollution cases where even though the trespass isnt tangible, there will be recovery if the following are satisfied) Rule: may recover if (need all) o intentionally spreads pollution onto Ps land and o the pollution tangibly accumulates on the land and o causes foreseeable and o substantial damage to the land o Tangible intrusion can occur as act of omission i.e. initially having permission to be on property but failing to remove after owners request Real Property (immovable property) o Real property includes Surface area Airspace within the immediate reaches(approx. 1000 ft.) of the ground used and occupied by owner Subterranean ground space used and occupied by owner Of Another o A trespass claim may be asserted by Owners of real property Lawful possessors of real property o Renters or lessees

Policy Protect ownership and possessory rights against adverse possession Protect values of real estate Prevents breaches of peace TPL Hypos Boat Owner (BO) receives permission to store his boat on Homeowners (H) property for the winter. Come spring, H asks BO to remove the boat and H fails to do so. Has BO committed TPL? If so, how? o Yes, by omission and lapse/revocation of consent In Creel v. Crim, Lovelady orders Creel to cut trees on property that actually belongs to Crim. Creel obeys. Is Creels entry voluntary? o Yes. No physical compulsion, economic threat doesnt negate choice. In Creel v. Crim, Lovelady represented to Creel that she owned the property where Creel cut the trees. That property actually belonged to Crim. Can Crim satisfy the intent element against Creel? Lovelady? o Yes, both made proactive mistakes about the propertys true legal title In Creel v. Crim, Lovelady orders Creel to cut trees on property that actually belongs to Crim, but Lovelady never enters Crims property herself. Is she liable for TPL? o Yes, her order was designed to cause the entry by Creel, and Creel would not have entered without it. In Creel v. Crim, if Creel had simply walked across Crims property without cutting any trees, would he still be liable for TPL? o Yes, any unconsented entry threatens title or possessory rights to the property. Thus, no actual harm required; nominal damages recoverable. 10

G. Trespass to Chattel Intentionally dispossessing temporarily or using or intermeddling with the chattel of another. D liable for damage or harm done to the chattel Case: United States v. Arora (Trespass to Chattel/Conversion) 1. D tampers with Ps cell cultures trespass to chattels or conversion? ~ Restatement Factors: o - Extent and duration of the actors exercise of dominion or control, o - actors intent to assert a right in fact inconsistent with others right of control, o - the actors good faith, o - extent and duration of the resulting interference with others right of control, o - harm done to the chattel, the inconvenience and expense caused to the other 2. Cell culture was destroyed, seriously inconveniencing an important project Moore v. Regents of Univ. of California Plaintiff has no property interest in bodily materials once they were removed from his body. o Dissent If another medical center or drug company had stolen all of the cells in question the question of conversion comes into play o Diamond v. Chkrabarty US Supreme Court decision granting a cell line is a living thing capable of protection. Intangible Property Depends on the type of harm that occurs Hinges on whether or not there was enough dispossession of chattel. Computers o Distinguished whether or not harm to computer or data occurs o If it poses a real risk of such harm Cell Lines Internet Electronic transmission generated and sent by computer sufficiently physically tangible to support a trespass cause of action. o Courts find spam clogs computer networks and causes the (temporary) dispossession of anothers chattel. Elements Voluntary act Intentional Interference Intent Merely intend to do an act which turns out to constitute an interference Causation Requires either an intermeddling or dispossession o Intermeddling Directly damaging the chattel, impairment of condition, quality or value of property that causes actual harm Or deprivation of use of property for some period of time Relatively insignificant Requires actual damage; compensation can be difference between full value and diminished value of chattel o Dispossession More serious interference than intermeddling, but its still not THAT serious 11

An exercise of dominion and control over property that deprives of his lawful right of possession to the chattel Actual damage not required, but may recover at least nominal damages o Between intermeddling and dispossession, the remedy often indicates which theory is best or most just fit for the invasion. o If the dispossession were done with a malicious mental state or caused serious interference with the property conversion Damages Temporary loss of use/repair costs o Conversion of property occurs when the deprivation of the property is for a lengthy period of time, or the property is lost or destroyed. Policy behind having a tort-based stealing and a criminal-based stealing Different parties protect different interests Criminal Law protects the public interest in preserving the rule of law and punishing people who break it Tort Law preserves the private individuals rights by permitting her to receive compensation when those rights are violated by another. Allows one to recover damages.

H. Conversion Intentionally exercising dominion or control over a chattel that seriously interferes with the owners rights D is liable for the full value of the chattel Elements Voluntary act Intent Causation Serious interference with personal property (below are the factors focusing on s act/mental state and factors focused on that conducts effect on ) o Extent and duration of s dominion o s intent to assert inconsistent right o s good faith o Extent and duration of s interference o Harm to the chattel o Inconvenience and expense to Policy: Deterrence. Compensation: Full value of property is awarded in winning cases to deter future incidents.

I. Privileges (Defenses to Intentional Torts) Privileges completely justify s conduct. Justified conduct is not wrongful. Effect: since s conduct is not wrongful, may not recover for harm caused by that conduct Consent Choice made by to engage in the specific behavior; The actual knowing and voluntary choice or reasonably apparent willingness to submit to the conduct of another Consent is a defense to liability for an intentional tort 12

It creates a privilege to do the tort (thus, not unlawful touching) Consent operates in particular situations only. Case: Hogan v. Tavzel Consensual Sex = STD o Sexual intercourse One partys consent to sexual intercourse is vitiated by the partners fraudulent concealment of the risk of infection with venereal disease. Kathleen K v. Robert B Second Restatement of Torts Consent to sexual intercourse is not equivalent to consent of a venereal disease. No consent without knowledge of sexual disease = equivalent of no consent and would not be a defense to a battery charge Case: Hellriegel v. Tholl - Lake Throw is a No Go o Words can become an invitation for the battery. Sons words were an invitation to the teenagers to try to throw him into the water. His statement constituted consent, and he assumed the risk that he might be accidently injured. Boxing Match Who take the risk of injury which may accidently result from such play? Contact that occurred (called Horseplay) was not offensive and was accidental or part of the rough and tumble play. P consented to the horseplay therefore there was no issue. Case: Revis v. Slominski Sexual Attacking Dentist o Consent is ineffective if the person lacks capacity to consent to the conduct. o Restatement 892A(2)(a) - One who has reached the age of majority can give an effective consent to all kinds of conduct unless the D knows or has reason to know of some kind of abnormality, temporary or permanent in the consenting person. Defendant must have knowledge of the abnormality at the time of the act. o Two Aspects of Effectiveness of Consent: Abnormality on the part of the alleged victim Knowledge on the part of the alleged attacker o Lack of consent is not an element of the crime when the victim is incapable or resisting or of appraising the nature of his or her conduct. o Restatement 892B(3) Consent is not effective if given under duress Subjective Consent = actual knowing and voluntary choice Degree of knowledge: KSC of the conduct and its consequences Volition: must choose using her own free will, and must not be due to incapacity, coercion, or deceit Objective Standard = reasonable apparent willingness Factors creating reasonable appearance o Silence or inaction may create a reasonable appearance of consent o Acts in context may create a reasonable appearance of consent o Consent may be implied by community norms of customs Express actual manifestation Implied overt acts and manifestation of feelings (Apparent from the facts) 13

o Consent Implied by Law Consent to emergency medical treatment, alcohol testing etc. o Consent Negated by Law Children cannot consent to sex. Scope of consent: the following factors limit consent o Time: conduct committed after consent lapses is not privileged o Place: conduct committed in an unauthorized place is not privileged o Person: conduct committed by a person other than an authorized actor is not privileged o Purpose: conduct committed for a purpose other than an authorized purpose is not privileged Nullification of Consent (Vitiating Manifest Consent) (Consent Defense Ineffective) o Even if gives actual or apparent consent, the consent can be nullified, and the privilege lost, if the consent arose from any of the following: Incapacity at law/in fact Exceeding Consent Action beyond scope of consent Fraud/Duress/Mistake Workplace Sexual Harassment Civil rights (TITLE VII)

The following defenses are the reasonableness defenses Self Defense A person may use reasonable force to defend herself against an act that she reasonably believes will cause her imminent bodily harm, offensive contact, or restraint Assert the Privilege: o Subjective Apprehension o Apprehension must be reasonable o Response must be reasonable o Totality of the circumstances o Land Occupier Privilege (Castle Doctrine) Negate the Privilege: o Clean Hands o Withdrawal Clear and Ambiguous o Retreat Requirement NO duty to retreat in many states o Restatement 2 65 Retreat before injury o Castle Doctrine In your own home o Stand Your Ground Laws Case: Bradley v. Hunder Drunken Louisiana Bar fight o Where a person reasonably believes he is threatened with bodily harm, he may use whatever force appears to be reasonably necessary to protect against the threatened injury Roberts v. American Emloyers o Each case depends on the facts size, age, and strength of the parties. o Good faith reasonable belief of action Brasseaux v. Girousard (FenceTruck Battle) Case: Juarez-Marinex v. Deans Farmworker Beer Brawl o State v. Marsh Right of self-defense available to a person who is without fault, if a person voluntarily enters into a fight he cannot invoke 14

unless he abandons the fight, withdraws from it, and gives notice to his adversary that he did so. o Jumping backward is not enough for withdraw. o If assault party cannot recover if the other is asserting self-defense Evans v. Hughes Elements o Reasonable belief usually must be some imminent threat, words accompanied by overt gesture if someone withdraws an attack, the threat has clearly ended and the right of self-defense is gone a protective right, NOT for retaliation o Reasonable force Reasonable Force Proportionality Test o Force is reasonable if it is proportional to the force it seeks to stop o Proportionality depends on the parties respective sizes, ages, strengths, reputations for violence, special skills, weapons Defense of Others o A person may use reasonable force to defend others against an act that she reasonably believes will cause others imminent bodily harm, offensive contact, or restraint Restatement 2d 76 One can use force if you believe the party you are defending cannot exercise self-defense Degree of force The intervenor is subject to the same rules of reasonable force as the person being attacked would be. Intervenor may not use a greater degree of force than is reasonably necessary to repeal the attack. Reasonable Mistake What about mistake? SPLIT o Modern view is that a person makes a reasonable mistake about the need for force (including the degree of danger to the third person), the defense-of-others is not forfeited. Unreasonable mistake All courts agree that Ds belief in the need to use force in defense must at least be reasonable. Negligent mistake will not allow this defense.

Defense of Real and Personal Property A person may use reasonable force to defend his real or personal property against intrusion or interference if she reasonably believes such an intrusion or interference is imminent or ongoing Case: Katko v. Briney Spring Loaded Shotgun (SERIOUS BODILY HARM ALLOWED) o Restatement Torts 85 Value of human life and limb, not only to the individual concerned but also to society outweighs the interest of a possessor of land. No privilege to use force intended or likely to cause death or serious harm against another 15

whom the possessor sees about to enter his premises or meddle with his chattel unless the intrusion threatens death or serious bodily harm. o Allison v. Fiscus DYNAMITE EXPLOSION Reasonable belief Reasonable force o Request/Inquiry If it is reasonable to do so, request noninterference with Inquiring with depends on risks/circumstances involved o Non-deadly force Most jdx allow limited amount of physical force so long as its enough to get the person off your property Non-deadly force is reasonable if proportionate under the circumstances o Deadly force Generally unreasonable unless intrusion/interference breaches an inhabited dwelling or exposes a person to serious bodily harm o Automatic Devices/Traps Generally NOT permissible because they are indiscriminate and uncontrollable Should be used purely for defense, not a vindictive motive Exceptions may arise where a warning is given and the force is moderate/controllable Habitations: Restatement 85 Deadly Force: Majority Rule - Generally unreasonable unless intrusion/interference breaches an inhabited dwelling or exposes a person to serious bodily harm Hint of Minority (Ancient Rule): Reasonableness? The property owner may use only as much force as appears necessary to protect the property.

Necessity (a catch-all privilege) A person is privileged to act out of necessity if she reasonably believes she or others face an imminent risk of serious harm and she uses reasonable force to prevent that harm Case: Rossi v. Delduca Girl running away from the dog through the field finds more dogs o Restatement 2d Torts 197 One is privileged to enter land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to the actor or his property. o The privilege not only relieves the intruder form liability for technical trespass but it also destroys the possessors immunity from liability in resisting the intrusion. Case: Eilers v. Coy The Jesus Take-away for deprogram o The defense of necessity: Defendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others. 16

The right to confine a person in order to prevent harm to that person last only as long as it is necessary to get the person to the proper lawful authorities The actor must use the least restrictive means of preventing the apprehended harm.

Elements o Reasonable apprehension of the immediate harm o Least restrictive means to prevent harm o Pay damage for harm done to property (PRIVATE) Types of Necessity o Public Public necessity exists wherever interference with the land or chattels of another is necessary or reasonably appears necessary to prevent a disaster to the community or to a substantial number of people. Effect: receives complete immunity, barred Hypo: fireman explodes house to save neighborhood is immune Persons: Public or private so long as they are acting on behalf of the community the immunity may be claimed. Reasons: Public rather than private interests are involved Reasonable in believing that action was needed Action took reasonable response to need. THINK Public Agency Compensation Person who successfully advocates a defense of public necessity is not be required to reimburse the plaintiff for the damage suffered. o Private Person is privileged to prevent injury to himself or his property or to the person or property of a third person, by injuring private property, if there is no less-damaging way of preventing the harm. Vincent v. Lake Erie Transport Company Boat owner ties to dock in storm = damages dock Where the defendant prudently and advisedly availed itself of the plaintiffs property for the purpose of preserving its own more valuable property the plaintiffs are entitled to compensation. A private necessity exists when the privilege holder is exposed to an imminent danger of SBH or property damage Effect: receives partial immunity; may recover Hypo: boatowner has a right by power of necessity to defend his property but has to pay dockowner for damages caused by boat in storm This is an incomplete privilege Compensation: The person must pay damages for the property of private necessity. 17

 NEGLIGENCE
Negligence is unreasonable conduct that causes another person actual harm Elements Duty: legal conclusion that is obligated to exercise care to ; a debt owed to Breach: factual finding that behaved unreasonably by failing to exercise care required by the applicable social standard o Shows that fell below standard of care of societys expectation Causation: s negligent conduct caused harm Damages: s harm created actual injuries

Duty Analysis First, look at Specific Rules for Special Situations o i.e. landowners/occupiers, professionals, public agencies special actors o emotional distress, economic loss special harms If NONE of the Special Rules apply, then conduct a General Duty Analysis o Act creating risks (generally duty applies) o Omissions (generally no duty, except if special relationship or undertaking + reliance) Regardless of CL duties, check for duty based on Statutes and Regulations

ELEMENT 1: DUTY
There is no general duty to act for the benefit of another (omission), and those who choose to act owe a duty to others to use due care in such conduct (act). o General Duty Rules and Exceptions Acts (when acts create risk, generally duty applies) Rule: One who acts has a duty to exercise reasonable care for the foreseeable risks of her conduct; even if you didnt foresee it, if a reasonable person could foresee it, then theres a duty to exercise reasonable care Case Heaven v. Pender General duty of due care Germinal Case Duty arises to use ordinary care and skill to avoid such danger MacPherson v. Buick Company (Judge Cardozo) Germinal Duty Doctrine Case Automobile wheel collapse Ignore the lack of privity when the danger is immediately foreseen. o Relevant Law: Winterbottom v. Wright NO Privity of contract, No duty of care Article is not liable to third parties who have no contractual relations with him. Thomas v. Winchester Falsely Labeled Poison Imminently Dangerous Things Manufacturers are subject to liability irrespective of contract. o Court holds that Thomas applies to normal operation of products that are implements of destruction. The manufacturer was 18

responsible for the finished product The More Probable the Danger, the Greater the need of Caution Case A.W. v. Lancaster Sexual assault of a student Exception: Public policy may limit or eliminate this general duty in extraordinary cases Factors that determine whether a legal duty was owed o Foreseeability of harm to o Closeness of connection between s conduct and s injury o Extent of burden (Learned Hand Formula) Policy o Case: Rowland v. Christian Bathroom fixtures were cracked Some exceptions are possible no such exception should be made unless supported by PP (public policy). Rowland DUTY FACTORS: Certainty of s injury Closeness of connection between the Ds conduct and the injury suffered. Moral Blame attached to the Ds conduct Policy of Preventing Future Harm Extent of the Burden to the D and consequences to the community of imposing such duty. Foreseeability of harm to P o A.W. v. Lancaster Foreseeable risk depends on the specific facts of the case deciding what is foreseen involves common sense, and experience and application of the standards of the community. Availability, cost, and prevalence of insurance for the risk involved.

Duty to RESCUE Limited occasions where the law requires that a person come to the aid of other in peril even when the person did not do anything to create those risks. Rule: Duty of reasonable care is imposed by the law if the defendant has engages in affirmative conduct that created the risks of harm that resulted in the accident. (MISFEASANCE) o However there is no duty where the defendant did not create the harm (NONFEASANCE) Case: o Yania v. Bigan (Drowning in coal mine) D saw P in position of peril but this imposed no legal duty because he did not place Yania in the position. Policy: once we say were obligated to help people out of imminent harm, it creates a slippery, limitless slope 19

o Try to voluntarily help people would put us in the way of other officials trying to help o Floodgate of lawsuits Exceptions to general no-duty rule o Special relationship between and Characterized by control and reliance One party relies on the other party who is knowledgeable of risk I.e. parent/child, teacher/student; contractual relationships where a party has agreed to provide aid; situations where the party has voluntarily begun to aid; where a statute imposes a duty to assist. o When there is some undertaking If you undertake someone to help them from a position where they can get some help to a position where they cant get any help, there is a legal duty. Farwell v. Keaton where left , his friend, in a car overnight following a brutal altercation, which caused s death. s undertaking worsened s condition. RULE: There is a legal duty of every person to avoid any affirmative acts which may make a situation worse. RULE: Co-Companions on a social venture Because he could have rendered assistance without endangering himself he sould have come to the aid of his friend. o POLICY Epstein Piece YOYO Rule Libertarianism You are on your own WITI We are all in this together o Law should affect and shape the morals of society o Everyone ends up better off anyway.

o Duties Based on Statutes Negligence Per Se Negligence per Se = Negligence in itself a statutory violation is negligence in itself requiring no further proof of s fault if three conditions are satisfied (see below) Three conditions for applying statutes to determine duty public policy generally favors adoption of the statute as tort duty (policy) that statute is relevant to s conduct and s injuries in the case (relevance) s violation provides strong evidence of negligence (effect) Rules for Adopting Statutory Duties Discretionary Nature of Statutory Duties 20

Policies Affecting Adoption o Legislative Intent (most important) Courts adopt statutory duty when legislature has expressed a clear intent that the statute broadly addresses the social problem raised in the negligence action o Consistency with Tort Law & Policy o Clarity Courts adopt statutory duty when the statute is more specific and easier to apply than the general standard of reasonable care and the statute violation is clearly related to s harm o Fairness Relevance (must establish relevance of statute to the case in order to adopt it) To be relevant, the following must apply: o must fall within the class of people that statute sought to protect AND o must suffer the type of harm the statute sought to prevent Briefly, the Class and the Harm of must be relevant to statute Effect of Noncompliance of statute there are two options Prima facie/presumption of negligence o If the legislative intent is clear, the statute creates a duty and replaces the CL standard of general reasonable care; violation creates a rebuttable presumption of negligence has the burden of proving an excuse for the statutory violation Some/mere evidence of negligence o If the legislative intent is unclear, the statute creates a duty but the CL standard remains intact

The following are special limited duty rules courts have developed for policy reasons in order to limit the duties for certain parties and certain harms. In cases involving these parties and harms, courts usually apply only the relevant special rule and refrain from applying general rules and exceptions. o Premise Liability Case Duty limitations for Visitors and Trespassers on Real Property Premises-Defect Theory To recover a person must have been injured by a condition on the property rather than an activity or instrumentality. Adults: An O/OOs duty for conditions on his property is determined by one of three approaches, depending on the jurisdiction CASE Ruvalcaba young child injured in the stairs Status Trichotomy IN practice states have merged the invittee and licensee categories together. o Trespasser (uninvited) Definition: a person who enters or remains on property w/o consent or privilege or invitation. O/Os Duty: not to willfully harm 21

Modern trend: warn of known or foreseeable trespassers against serious risks of physical injury TRAPES or KNOWN FREQUENT TRESPASS considerations. o Licensee (social visitor) Definition: have right to be on the property but not for economic advantage of O/O (social guests, visitors) One who enters and remains on land with the owners consent and for his own convenience or on business with someone other than the owner. O/Os Duty: Not to willfully harm, warn of known dangers; must subjectively know of the harm (i.e. O/O not knowing of broken faucet is not enough; O/O has to KNOW) no obligation to inspect the premises for dangers; Must warn or make safe dangerous conditions that O knew about. Only difference between trespasser and licensee is consent o Invitee (business invitees) Definition: One who enters on anothers land with the owners knowledge and for the mutual benefit of both. Test: Economic Benefit or Advantage Test Did P have present business with the owner that would make the presence of mutual benefit to both parties (P and O) Public Invitation Test Whether the premises are held open to the public in such a way that there is a legally implied assurance that the premises are reasonably safe for entry. Think RES 360 Is the location a public place? Office building? General public use? What was the party involved? A Tenant? Or a worker? O/Os duty: owes a full duty of reasonable care (no limit) o Note: the consent to be on the property must come from the lawful occupier of the building! o i.e. going into a commercial enterprise to engage in business 2-tiered Entrant Classification System (ECS) o Trespasser (No consent) o Invitee (consent) Case-by-Case Multifactor Analysis o Eliminates ECS, no predetermined duties or duty limitations o O/Os duty is determined on a case by case basis and depends on various policy considerations Policy (Rowland v. Christian) o Modern considerations Closeness of connection between injury and Ds conduct Moral blame attached to Ds conduct 22

Policy of preventing future harm Prevalence and available of insurance bear little if any relationship to classification of trespasser, licensee, or invitee. o A mans life or limb does not become less worthy of protection by the law because he has come upon the land or another without permission or with permission but without business purpose. Children: Attractive Nuisance Doctrine Rule: O/O owes duty of reasonable care toward a child on his property if the child was injured by an artificial condition that lured her onto the property O/O owes NO duty of care to a child if the child is injured by an obvious or common danger that a reasonable child of similar age, intelligence, experience, and maturity would have recognized and avoided The condition that hurts the kid has to also be the thing that lures the kid. Children: Restatement 2d 339 DEF: The attractive nuisance exception to the trespasser limited duty rule required that some human developed condition on the land attract or lure children to play in the area. o NO standard or caveat for natural Rule: O/O owes duty of reasonable care toward a trespassing child on her property if the trespass was foreseeable and the child was injured by an artificial condition that exposed her to a foreseeable risk of death or SBH This uses the foreseeable standard I.E. Courts have no difficulty applying to common hazards such as fire, water, heights, and moving vehicles Criminal Activity (these are the circumstances where an O/O will have a duty to protect against criminal acts that take place on his property) CL Imposes a duty on one party to take reasonable affirmative measures, such as security precautions to protect the other party from foreseeable criminal activity. Instramentality of harm is 3rd party criminal (no licensee or invitee) o Duty issue arises from foreseeability Case: Delta Tau Delta v. Johnson Fraternity lock-in and sexually assault. o Specific Harm Test Landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or about to occur. Most courts are unwilling to hold that a criminal act is foreseeable only in these situations. o Prior Similar Incidents (PSI): High Foreseeability 23

O/O owes duty to invitees to protect against criminal activity only if prior similar acts had been committed on or near the property show that the crime was foreseeable Number of prior incidents Proximity in Time Location to the Present Crime Similarity of the Crimes Many have rejected for public policy reasons: o First victim is not entitled to recover (because first victim not covered) o Landowners have no incentive to implement security measures o Incorrectly focuses on specific crime and not the general risk of foreseeable harm o Lack of PSI relieves of liability when criminal act was foreseeable o Totality of Circumstances: Ordinary Foreseeability O/O owes duty to invitees to protect against criminal activity if that activity was foreseeable in light of all the surrounding circumstances, including prior similar incidents and the landowners and societys burden of preventing such activity to determine foreseeability. Limitations Tends to make the foreseeability question too broad and unpredictable effectively requiring that landowners anticipate crime. o Balancing Test (CA) The Degree of foreseeability of harm against the burden of the duty to respond. The higher the burden, the higher the degree of foreseeability necessary to trigger the landowners duty Limitations Seems to require that the court ask whether the precautions which P assert should have been taken were unreasonably withheld given the foreseeability of the attack. o Limited Duty for Third-Party Harm Duty owed by Professionals to Clients Professionals owe a standard of reasonable care to patients Duty owed by Professionals to Non Clients/3rd Parties: the duty to nonclients may be full, limited, or eliminated Doctors o Rule: Duty owed to non-clients when Drs professional conduct exposes non-clients to a foreseeable risk of physical harm

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o i.e. Dr. prescribes meds to patient that cause drowsiness. Dr. does not warn patient. Patient drives, becomes drowsy, car accident, hits pedestrian. Dr. owed a duty of care to Pedestrian. Accountants o Rule: No duty owed to non-client unless accountants service was specifically intended to affect the non-client or a specific group to which he belongs Psychotherapists o Rule: Duty owed to protect non-client if patient makes serious threat of physical violence, and the non-client is either a named or readily identifiable (highly foreseeable) victim of that threat Once a therapist does in fact determine or under applicable professional standards reasonably should have determined that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable danger to the victim. Uses reasonable care under the circumstances test. o In California, Therapists duty is ONLY to warn victim and police o Tarasoff v. UC Regents student expressed to school psychologist his intent to kill fellow Cal student. Victim was never warned and was killed. Psychologist patient confidentiality is not a privilege here because the threat was very serious. This is the first case that extended special duties of care to people outside of the traditional doctor-patient relationship. Court used Rowland factors considered foreseeability the most important element D owes a duty of care to all persons who are foreseeability endangered by his conduct with respect to all risks which make the conduct dangerous. Must be reasonable identifiable victim. (Thompson v. Coutny of Alameda Threat to a young child deemed not enough o Dunkle v. Food Services East Patient of doctors was irregular, entered grocery store, and killed her. Psychologist owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on the individual. Policy Would hinder doctor/client relationship otherwise. Rights of Action Implied by Statute Statutory Negligence Negligence per se specific statutory standards substitute for reasonableness standard. Statutory Action Private right of action established by legislature sets both duty and standard of care 25

Mandated Standards of Care Statute is read as the standard of care in particular negligence actions o Tarasoff decision Implied Right of Action Private right of action and a remedy from a statute statute is deemed relevant on the facts and where such implied right of action is consistent with the overall purpose of statute. Court v. Ash Four factors for determining whether a private right of action should be implied under statute: o Plaintiff a member of the class whose purpose of statute was enacted o Is there any legislative intent (implicit, explicit) to create or deny a private remedy o Consistent with the underlying purpose of the legislative scheme to imply a remedy? o Is Ps claim one that would be regulated to state law so that it would be inappropriate to imply claim based on federal law. There must be clear intent to create a private right of action (narrowed view) o Public Duty Doctrine Public agencies and agents generally have a duty to subjects, but there are exceptions that limit their liability in tort claims Cases: Cuffy v. City of New York The police promise to help a family Sorichetti v. City of New York Right to recover from a municipality where a promise of protection was made to a particular citizen and as a consequence a special duty to the citizen arouse. Police Protection is generally owed to the public at large and not particular individuals. Exceptions that Limit Liability Sovereign Immunity o Discretionary Functions: we use discretionary functions to determine if the agency is immune from being sued on negligent actions. If the act was a discretionary function, then the agency is immune because we dont want to question the policy and decision-making expertise of the people in that profession. Definition: discretionary functions are policy or planning decisions the agency is legally entitled to make Discretionary Functions determined by Degree of deliberation Breadth of decision (# of ppl affected) Social utility of decision Violation of internal policy Burden of precaution Public agencies are immune from liability for acts that follow the agencys discretionary functions. Converse is true: if public agency does not follow discretionary functions, then no immunity Police Protection 26

An actor has no discretion (no immunity) if the course of action was prescribed by a statute, regulation, or established agency practice Public agency is liable for acts that deviate from the agencys policy or planning decisions i.e. if high speed chases are only allowed in pursuit of felon but officer engages in high speed chase with misdemeanor, no immunity b/c it violates discretion Stoller v. City of Lowell owner of buildings burned in fire dept for failing to use sprinkler systems o No immunity because use of hoses v. sprinklers was individualized and violated firefighting practices, posed danger to public Rule of thumb: if theyre following policy, nobodys liable. If theyre deviating from policy, red flag. Exceptions Special Relationship Established o Elements: An assumption by the municipality through promise or actions of an affirmative duty to act on behalf of the party who was injured. Knowledge on the part of the municipalitys agents that inaction could lead to harm Some form of direct contact between the muni agents and the injured party The partys justifiable reliance on the muni affirmative undertaking. Injured party reliance is critical (Yearwood)

*We apply discretionary functions to cases to determine if the agency is immune from being sued on negligent actions. If s act was a discretionary function, then hes immune because we dont want to question the policy and decision-making expertise of the people in that profession. o Limited Duty for Emotional Distress: Direct Risk, Bystanders Pure Emotional Distress Duty owed o Physical injury causes ED o Death: Mishandling of bodies, miscommunication Duty Questionable or Limited o Direct Victims s who are directly exposed to s negligence and (generally) fear for their own safety Case: Mitchell v. Rochester Horse drawn miscarriage 27

The plaintiff cannot recover for injuries from fright because there was no immediate personal injury. Open up the floodgates of litigation because the damages cannot rest on conjecture or speculation. Possible tests for duty Physical impact: owes a duty of care to if s negligence causes a physical impact to s body Physical zone of Danger: owes a duty of care to if s negligence exposes to a foreseeable risk of physical harm Physical Manifestation: owes a duty of care to if s negligence causes to suffer ED that in turn causes physical effects to s body or behavior *****most jurisdictions combine zone of danger and physical manifestation tests o Bystanders Courts have expanded the scope of recovery through requiring: o is present at the scene (actually observe the injury) o then aware of the incident o and victim are closely related o Victims injury is SBH or death o suffers serious ED (Severe emotional distress) o Initially P suffered manifest physical consequences from ED s who witness the direct victim be exposed to s negligence and fear for the safety of direct victim Majority View: Must be in physical zone of danger to recover simple location is not enough to warrant consideration you must be close! CASE - Clohessy v. Bachelor Seven year old struck by car o Court relied on Strazza Zone of Danger Court concluded that P was in the zone of danger and could recover for damages for the ED because she was put in fear for own safety o Restatement view On concept of unreasonably endangering the plaintiffs physical safety the D has breached a duty owed to him for which he should recover damages o Critics find this narrow 28

owes a duty to as a bystander if s negligence exposes to a foreseeable risk of physical harm doesnt have to actually be touched i.e. mom walking with child whose hit by negligent driver would recover for ED to witnessing injury to child because she may have been hit herself. BUT, father at home watching child get hit by car a block away may no recover because he was not in zone of danger, a there was no possibility of him being physically injured. Rationale: owes bystander duty of care because bystander is an area of the risk created by s conduct and injury is likely Substantial Minority View: Foreseeability Test (Dillon) Duty rests on foreseeability McPherson v. Buick Amodio Foreseeability Test ED from medical malpractice of having baby Circumstances to consider in determining whether Emotional Injury was foreseeable owes a duty to if s negligence exposes to a foreseeable risk of emotional harm. o Foreseeability of distress depends on: o Dillon Guided Foreseeability P located near scene - s location at the scene of accident Contemporaneous Sensory Observance - Whether suffers a direct emotional impact from contemporaneous observance of the incident (Sensory can be heard versus seen Braverman gun powder case) SPLIT: Most states: Emotional Harm must lead to manifest physical consequences. FEW COURTS Eliminated requirement and rely on the totality of factors MENTAL INJURY MUST BE SERIOUS P and V closely Related SPLIT: NY Immediate Family NJ Significance and stability of Ps relationship 29

MASS include recovery where parent arrives at scene/hospital after the accident Hawaii P need not witness accident if they go to hospital and learn about victim o Thing Limited Foreseeability (CA APPLICABLE) P closely related to V P percipient witness to accident Serious ED Serious injury to V (Cloessy) LIMIT SCOPE! They were designed for this. Physical Impact Rule Three states hold that a bystander cannot recover unless the bystander experienced a physical impact or injury Pure Economic Loss Majority o Rule owes no duty for s economic losses unless s negligence also causes physical damage to s person or property o Exceptions owes a duty for economic losses sustained by fishermen owes a duty for economic losses suffered by intended beneficiaries of their conduct you can recover against the professional if you are an intended beneficiary of that professionals practice Minority o Rule owes a duty for s economic losses if is a readily identifiable victim and s loss is particularly foreseeable. Factors affecting identifiability and foreseeability include: type of persons/entitites comprising the class certainty & predictability of their presence approximate numbers of people in class type of economic expectations disrupted

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Duty Summary: Four Rs of Duty These are ways to determine whether owed duty to . Creation of Risk (did act and create risk?) ACT Special Relationship (did and have special relationship prior to incident?) o Exception to Omission Undertaking + Reliance (worse condition than before) o Exception to Omission Statutes & Regulations o Make sure to prove relevance by class of people and type of harm

ELEMENT 2: BREACH OF DUTY

Always ask What is s standard of care? Did breach the standard? A. Determining Breach Hand Formula (B<(PxL)) Definition: A breaches the standard of care if the s and societys burden of taking additional precautions is less than the burden of expected accident costs imposed upon the and society by the actors chosen conduct Use this formula to determine whether the burden was less than the product of the seriousness of the harm and the probability of the risk that occurred If the Burden is less, then precaution should be/should have been taken IF S BURDEN OF PRECAUTIONS < PROBABILITY OF ACCIDENT X MAGNITUDE OF ACCIDENT LOSS TO , = NEGLIGENCE This is how you use the Learned Hand Formula o Examine s chosen conduct Assess the size of the accident-cost burden s conduct imposes upon and society o Examine s requested change to s conduct (alternative precaution) Assess the size of the economic, practical, and safety burden s change imposes upon and society o The party forced to bear the bigger burden WINS

B. Determining Breach Custom Definition: a custom is a consistent practice or behavior by many people over a substantial period of time Relevance: customs reveal social behavioral norms applicable to the standard of reasonableness. o Customs may suggest breach or compliance with the standard Customs appear feasible, suggesting a modest burden Customs may demonstrate knowledge/level of risk Exception: if the jury finds the custom unreasonable, it is not relevant to the standard or breach Effect/Weight: If a custom applies, it provides some evidence of breach or compliance, but that proof is not necessarily conclusive 31

Custom and Medical Malpractice o In medical malpractice, negligence CANNOT be established without medical testimony that failed to use ordinary skill and care aka follow custom

C. Determining Breach Proof (Circumstantial Evidence) Definition: Facts that create common sense inference of causality and/or responsibility without direct observation Facts + Common Sense = Conclusion Examples: skid marks on road, smoking gun, lipstick on collar Clark v. Kmart: Circumstantial evidence supported an inference of KMARTs negligence after slipped on grapes and fell. The grapes on the floor were already smashed, there were footprints leading away from the smashed grapes, the checkout lane had closed by 2:30am and this was one hour before s fall. Kmart, thus, had sufficient time to clean up. Special Rule: Res Ipsa Loquitur (the thing speaks for itself) USE SPARINGLY Definition: Circumstantial evidence that permits a strong inference that s negligence caused s harm Usage: Res Ipsa is an extraordinary doctrine available ONLY where is incapable of providing proof of negligence; its used to get over the evidentiary hurdle that cannot get over alone; its kind of like a whodunit case Elements o exercised exclusive control of the instrumentality causing the event (prove more likely than not that had exclusive control) o did not contribute to the event o injury-producing event does not happen without negligence Effects/Weight How much weight does a court give res ipsa loquitur? In both cases, has the initial burden of proving the breach o Rebuttable Presumption Once proves Res Ipsa, jury must infer s breach unless rebuts may rebut by suggesting (not proving) other causes for s harm If raises enough doubt, may fail to meet her burden of proof o Shift in Burden of Proof to (a slam dunk for ) Once proves Res Ipsa, jury must infer breach unless convinces them otherwise must prove that he did not breach by preponderance of evidence has to affirmatively produce so much evidence that the jury is now convinced he did not do it; its a greater evidentiary burden placed on ; this makes it almost impossible for to escape liability

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Professional Negligence aka Malpractice

Duty is relatively simple to assess because most malpractice cases involve professionals owing a certain duty to a patient or client o Special relationship o Undertaking + reliance Breach o Standard of care Special complexities o Determining Breach Special role of custom (this is more important in medical cases) generally in Medical Malpractice, the custom is the standard. If you violate the custom, then its a breach. Special role for expert testimony Experts are the proof. If you dont have experts, youre done. Who is a professional? Someone who o Obtains extraordinary knowledge and skill from higher education o Must prove proficiency through standardized testing o Must obtain a license to practice o And is subject to internal ethical requirements Medical Malpractice types of medical negligence **In medical malpractice, negligence CANNOT be established without medical testimony that failed to use ordinary skill and care (follow custom) the following are standards of care that medical practitioners use o Med Mal Judgment Call (good faith, best judgment) Standard of Care Rule: Where there is no single, clear course of action, a physician may use his best good faith judgment to select among the accepted alternatives Policy: This is a subjective test. Medicine is not an exact science and when there are multiple approaches to treat a patient, we expect the Dr. to use his judgment and choose the best one. Application: Velazquez v. Portadin Dr. and nurses sued for continuing to administer Pitocin after babys vital sign readings became ambiguous and baby was born with cerebral palsy. If the monitoring strip were unreadable, Dr. may either discontinue Pitocin until reassuring readings resume OR apply internal scalp monitor to babys head. Determining Breach Dr. breaches ONLY IF o His chosen alternative is NOT accepted by a substantial and reputable minority, OR o The Dr. acts and chooses an acceptable alternative against his/her best judgment or in bad faith

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o Med Mal Performance Error Standard of Care Rule: A physician must exercise the degree of knowledge, diligence, and skill customarily possessed and exercised by an average physician practicing in the same field (in ____ location) o Average physician = minimum competent level doctor o Same field (specialized fields subject to heightened standard) o Location possible geographic scope based on same locality or similar locality (its fairer to hold doctors to locality standard bc some small towns dont have the same medical resources as big cities) national standard Basically, a single, clear course of action exists and Dr. fails to exercise the knowledge, care, or skill required for that course of action Types of Performance Errors in Velazquez v. Portadin o Failure to monitor mother/baby o Failure to correctly read the monitoring strips o If strips readable, and fetal distress evident, failure to stop Pitocin o If strips NOT readable and no alternative monitoring possible, failure to stop Pitocin Determining Breach Medical custom is determinative and the standard. o Failure to follow custom is conclusive evidence of breach o Compliance with custom is conclusive evidence of no breach o Since custom defines the standard in Medical Malpractice, we dont need to use Learned Hand Proving Breach Generally, an expert testimony is required Exception to this general rule is if Dr. is obviously negligent o Example of obvious negligence is leaving sponges behind, or the guy who had testicular cancer in one testicle but hospital erred and removed the healthy testicle o Med Mal Informed Consent Standard of Care In order to have a medical malpractice suit based on informed consent, information must be withheld and as a result of that, there must be a resulting physical harm. CANNOT sue for not receiving information if there is no accompanying harm. Rule: Dr. fails to inform patient of risks and benefits of, and alternatives to, a recommended course of action Every patient has a right to make an informed judgment so patient is entitled to disclosure if risks and benefits associated with procedure Types of information to be disclosed o Diagnosis o Nature and purpose of the recommended treatment 34

o Risks, benefits, and prognosis of the recommended treatment o Alternative treatments/actions their risks, benefits, and prognosis Determining Breach (there are two standards) Professional Standard requires expert testimony o Rule: A physician must disclose information ordinarily disclosed by average members of the same field (this is doctor based), OR Patient Standard expert testimony not required o Courts are using this more often now; Califorias standard o Rule: A physician must disclose information that a reasonable patient would consider material (this is the idea that its your body, you should have all info available to make right decision) o Materiality influenced by probability and magnitude of risk (patient would want to know of 1% chance of cancer related to procedure more so than 1% chance of tinted fingers as result of procedure) o Exceptions (where disclosure of info is NOT required) There are still some circumstances where the Dr. wont be obligated to disclose information to a patient under this standard Emergency o Emergency circumstances where consent or disclosure of info is impossible (i.e. when emergency comes up during procedure where patient is knocked out under anesthesia Best interests of the patient o If the doctor believe its in your best interest to not receive the information, the doctor will not be obligated to provide the information, even if a reasonable patient would want to hear it o Basically, doctor knows whats good for patient and hes not going to share the info. This exception is for instances where disclosing the info might have an adverse effect on patient (i.e. patient unable to make a sound decision about procedure because he is especially vulnerable and emotional) Causation Objective (majority) o Whether a reasonable patient would have chosen differently if adequately informed Subjective (minority) o Whether this particular would have chosen differently if adequately informed

ELEMENT 3: CAUSATION
There are two concepts in causation factual cause and proximate cause. Factual cause must be satisfied before proximate cause is considered. 35

A. Factual cause (look for connection b/w s negligence and s harm) Both tests require that the negligent conduct or omission of the defendant must be connected to the plaintiffs harm Use Traditional But For Test for Factual Cause o Case: Moore Horse-sled snow opening The plaintiff cannot recover if the defendant could not have by the exercise of due care have prevented the accident from happening. Grimstad Barge bump sailor overboard Conjure and speculation are not allowable must be based on factual elements sufficiency of the evidence to get the causation question to the jury. o But for s negligence, would not have been harmed o Reformulation of but for test: Make a difference s negligence made a difference in s fate (harm) o Reformulation of but for test: edit the video If you edit out s negligence from the video of the accident, and replace it with reasonable conduct, would escape harm Use Substantial Factor Test if two or more causes cause single injury o Usage: Where two or more causes combine to produce a single, indivisible injury to and each cause alone and independently would have caused s harm o Under the substantial factor test, s negligence is a factual cause if it was a substantial factor in producing s harm o Determine substantial based on # of other possible causes s negligence active or passive lapse of time o Test has been widely adopted because the language communicates to the jury more clearly their function in weighing and evaluating the evidence o Test fits better with the burden of proof requirement also in multiple cases the test allows for a more equitable and appropriate result. o Corey v. Havener P was riding a horse. Two motor tricycles came behind him and passed him at a high rate of speed, scaring the horse. (duplicate causation case) Each contributed to the injury enough to bind both o Smith v. J.C. Penny Fake Fur coat gas leak (successive causation case) Cause-factor is a question for the jury as long as the evidence supports it jury would have to find that actions of gas station contributed in some way o Examples: (Pre-emptive causation) Piqua negligently maintained a dam rain was excessive and was enough to destroy the dam and flood the property if properly maintained no causation (Merging causation) Anderson Fire merged with another of non-negligent origin, either fire capable of burning Court held causation. 36

Proof of Causation o MORE PROBABLE THAN NOT - Standard o Evidence Morris on Torts Checklist o Eyewitness o Expert Testimony o Circumstantial Evidence Case: Ingersoll Decedent leased an apartment by landlord basement step cracked landlord notified stair collapsed injury and death o Reasonable inference of evidence and facts o Ruback v. McCleary - Where the facts show that there are several possible causes and its just as probable that one was the result or the other P cannot recover because it was not proven Ds negligence caused the injury o Stubbs Plaintiff drank contaminated water supplied by D Court found it was not essential that P eliminate all possible other causes only that he show facts and conditions in which the defendant (through evidence) causation can be inferred. o Circumstantial Proof Preponderance of the evidence the defendants negligence was responsible for the injury MORE PROBABLE THAN NOT Cardozo / Traynor lead the way Negligent act was deemed wrongful because the act increased the chances a particular type of accident would occur Case: Zuchowicz v. US Danocrine prescription of Death by Navy o Holding: The finder of fact could find that PPH was caused by Danocrine. o Inferred Timing of the illness in relation to the overdose supported a finding of PPH to a reasonable certainty Martin v. Herzog Nighttime collision between vehicles o Cardozo Where a party has been negligent per se, in order for that party to be liable there also must be causation and damages. Negligence alone is not enough. o Jury should have been told they can infer causation from evidence. Williams v. Utica College Attacker entered the dorms and sexually assaulted P. o Causation issue Security measures adopted were sufficient as a matter of law so that a breach of duty could/could not be demonstrated? o Burgos NYC walk-up with no locks and wrong-doors Blanket rule of liability of attackers would be unduly burdensome on landlords o Zuchowicz ruling (ABOVE) 37

o Rule: Causal link between negligence and harm occurs is strong jury can decide that more probably than not the injury occurred because of the negligence and not some other way: Three factors of common occurrence Circumstantial evidence (A is present then B likely to have occurred) Greater capacity of the D than the P to explain what happened and who was responsible An erroneous finding of no liability is in the particular circumstance more harmful than an erroneous finding of liability. Alternative Liability - Multiple Parties o MULTIPLE PARTIES o Case: Fugere v. Pierce BMW three-car, two-stage collision from hell CHAIN COLLISION factors This does not apply for joint tortfeasors (like J.C. Penny case or Corey case above) JOINT and SEVERAL Liability Three Categories o True Joint Torts Parties deliberately engage in a tort activity even though the harm was caused by only one party. I.E. Drag Racers, Criminal Graffiti Artists o Vicarious Liability Agency relationship creates liability Employer-Employee o Independent actions concurring to cause harm Tortfeasors acted independently but their actions concurred to create the harm Act of a single tortfeasor was insufficient to cause harm but the concurrence of action by both causes harm to P then JSL is imposed on each tortfeasor Act of a single tortfeasor was sufficient to cause some but not all of the harm to P and another tortfeasors conduct contributed other harm, courts require divisibility of the harm and separate individual judgments against D if possible P required to prove both parties are negligent and that negligence of each was cause of injury If each liability is established court imposes JSL against each for entire harm. Comparative fault Percentages of fault are attributed to each of the parties in Ps lawsuit. POLICY: Best to allow for full compensation to victim. State breakdown: o 15 states have JSL (FUGERE) o 16 states have abolished JSL in most cases reasoning that D should never pay more than pro rata share and moved liability to proportionate judgments 38

o Rest have hybrid JSL systems all parties cover insolvent party shares o 9 have JSL for economic damages abolished for Pain and suffering (Non-economic) o ALTERNATIVE LIABILITY Usage: When there are 2 or more negligent actors, but ONLY 1 actual cause Rule: Burden of proof shifts to s and if s fail to explain, then all s are jointly liable Conditions/Requirements: All s must be in court s must both be negligent small # of s s evidentiary disability s superior access to proof Summers v. Tice: was shot in eye and upper lip by a bullet while hunting with 1 and 2. It is unclear who fired the shot, causing the injury, and since both s disagreed as to who was at fault, court held that both s are liable for the whole damage whether they were acting together or independently. Narrow Conditions: o Both Ds breach o Only one caused harm o Similar risk from each o Identification impossible o All Ds in court o Informational Aysmetry Nothing scientific about it o Relationship? The farther you get away from the facts of Summers the less likely you find alt. liability Barron v. Martin-Marietta Corp.: became dizzy in the presence of canisters containing fumes manufactured by and other companies. Burden does not shift to because couldnt establish that s canisters caused her injuries. Also, all potential s were not brought up. Alternative Liability does not apply to this case; judgment in favor of P comes forward with no adequate evidence that MMC acted tortuously with respect to them. B. Proximate Cause (look for strength of causal link and if it breaks the factual cause connection) If FC is found, PC evaluates the strength of that connection between s negligence and s harm and determines whether it is broken by other causes ALMOST ALL SCOPE QUESTIONS ARE JURY Qs. Standard: Is this a case of an arguably unforeseeable plaintiff? Is this a case with an arguably unforeseeable consequences? Is this a case of an arguably intervening force human or otherwise between the time of Ds carelessness and the time of the accident? If yes then you proceed with scope of liability analysis 39

If NO then likely that the scope issue will be considered by the foresight analysis under breach and there is no need to repeat the analysis. Direct Consequences Test Prominent Test (but not used) for Scope issues o Case: Polemis Wooden planks into cargo ship that sparked fire D is liable because the fire was caused by negligence (and no intervening forces). Foreseeable consequence of damage. Unused Too expansive of liability Use Traditional Forseeability Test (Majority) o Unforeseeable Plaintiffs o Case: Palsgraf Cardozo Not about prox. cause it was about duty Unforeseeable P are beyond the scope of liability Unforseeable consequences are beyond the scope of liability. Andrews Dissent Different color rivers flowing together ROUGH JUSTICE o Most Scope Questions are Jury Qs - Tortious behavior is wrongful to society at large and not P o Sometimes too wacky and judge must step in to cut off Problem is at some point liability must be cut up. o No real law common sense; practical politics; rough justice Common sense and practical politics, guide for liability o Unforeseeable Consequences o Case: Juisti Improper kitchen cleaning starts fire alarm P walks down the stairs and suffered a collapsed lung Foreseeable Would such negligence be reasonably expected to cause plaintiff injury? FIELD OF DANGER Maryland foreseeability done through whether the actual harm the plaintiff fell within a general field of danger that should have been anticipated. RISK STANDARD o Restatement Test o Excludes liability for harms that were sufficiently unforeseeable at the time the conduct they were not among the risks potential harms that made the actor negligent. o Greater clarity and facilitates analysis because it focuses attention on the circumstances of the conduct and the risk that was posed. o Rule: is responsible for all reasonably foreseeable risks o Foreseeability is not a dispositive factor; must balance it with other factors (i.e. magnitude of risk) o Rationale: the more foreseeable the risk of harm, the greater s opportunity to control it; the greater s control over the risk, the stronger his connection to the harm it bring about; the stronger s connection to the harm, the harder that connection is to break by other causes 40

Framing the Foreseeability Issue o Theres no right way to frame foreseeability and it usually depends on policy; remember: recklessness foreseeable o Three kinds of Foreseeability Issues Foreseeability of (narrow use for class of person protected) Foreseeability of s harm (broad) Foreseeability of intervening causes that bring about s harm (narrow) o Framing based on parties arguments Broad () frame the forseeability of risk broadly when arguing for plaintiff (i.e. foreseeable that any bodily harm would result) Foreseeability of s harm Narrow () frame the foreseeability of risk narrowly by focusing on foreseeability of and the intervening causes that contributed to the harm (i.e. foreseeable that would have a collapsed lung) Foreseeability of Foreseeability of intervening causes Example of framing foreseeability based on parties Moran v. Faberge : was negligent in putting label that bodily harm can result from placing perfume bottle near heat source : it is not foreseeable that perfume would be dripped on candle. Perfume dripping on candle is intervening cause and also outside scope of foreseeability of endangered class because perfume users were young teens. o Foreseeability of Intervening Causes Intervening cause: a cause that develops after s negligence and contributes to s harm Paradigm Cases: o Out of the Blue Zacchini Jilted-Ex Cigarette Car Accident Explosion (Helping strangers at car accident to blame?) o Hospital Negligence Ramona Ambulance struck by negligent driver on way to hospital (First car accident cause to blame?) o Lightning Strikes Johnson v. Kosmos D failed to clean explosive gas out of a hold on an oil barge lightning struck exploding the gas. (Lightning makes D held liable?) Superseding cause: an intervening cause that is unforeseeable Only superseding causes break the chain of causation between s negligence and s harm Where a superseding cause exists, s negligence is NOT a proximate cause o Relation of Foreseeability to Types of Criminal/Intentional Intervening Causes Rule: Generally, intentional or criminal causes are NOT foreseeable, thus superseding; reckless conduct is also not foreseeable (generally) However, there can be Exceptions Intervening Criminal Acts - McClenahan (thief steals car after cop leaves keys in ignition) o Three Tests 41

Traditional Intervening Act Owners owe no duty to the general public to guard against the risk of a thiefs negligent operation of a vehicle where the owner left his keys Theft and subsequent negligence of thief could not be reasonably foreseen by owner Emerging Rule Reasonable person could foresee a theft of an automobile left unattended with the keys in ignition and reasonably foresee the increase risk to the public McClenahan Suggested Three-Prong test The tortfeasors conduct must have been a substantial factor There is no rule or policy that should relieve the wrongdoer from liability because the manner in which the negligence has resulted in the harm The harm giving rise to the action could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. Solomon v. Hall - An intervening act which is the normal response created by negligence is not a superseding, intervening cause Intervening Intentional Tort - Price (casino patron pushes entertainer wearing large Bush mask) o Is it foreseeable that someone wearing a large Bush head could fall? o s negligence creates/enhances the risk of an intentional/criminal IC o BKA should have foreseen the possibility of some sort of violent reaction such as pushing because of job. Hypo: Bank Guard falls asleep, customer gets shot by robber o Can customer sue the bank guard? o With the bank guard asleep, it is foreseeable that someone would be robbed. Hypo: Despite prior assaults on its property. Landlord fails to provide security cameras; tenant assaulted in lobby. o Satisfies PSI rule that creates duty on landlord to take precautions. How is landlord proximate cause? o Foreseeability becomes very high o PSI rule makes intentional/criminal ICs highly foreseeable Intentional Intervening Negligence Shifting Responsibility Issue DEF: Sometimes third-party intervening conduct even though foreseeable is so egregious a court is motivated to conclude the third party alone is responsible for the damages and his conduct supersedes the negligent conduct of the actor. Case: Bigbee v. Pacific Telephone Caller couldnt get out of phone booth and was hit by negligent driver o Standard for Foreseeability Question of Fact for the Jury RKO General Case 42

o It can be decided as a question of law only if under the disputed facts there is no room for reasonable difference of opinion. o Foreseeability is not to be measured by what is more probable than not but includes: General character of the event or the harm o Dissent Turns it into a duty issue Proximate Cause Special Rules Eggshell and Rescuers o Medical Malpractice Case Associations for Retarded Citizens v. Fletcher Son suffered a seizure while at camp Wrongful mistreatment of ambulance team that didnt take boy to the closest hospital. Rules: Original D is the Proximate Cause of All Injury Common Law Rule o Emory v. Florida Law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing form the subsequent negligent or unskilled treatment of the victim. Original D is Liable for Whole of Damage Original D can pursue other Ds Later (Fugheri v. Pierce) Rationales: Foreseeability Additional harm of malpractice is a foreseeable risk of the conduct that caused the harm in the first place. Procedural Courts allow the injured plaintiff to sue the initial negligent party for all of the damages including those related to the malpractice because the ease of bringing one lawsuit instead of two. Fairness Policy Such a practice of individual liability would confuse and obfuscate the issue of the original tortfeasors liability by turning a simple personal injury action into a complex medical malpractice action. Lead to the institution of medical malpractice actions that would not have been filed. Require more judicial resources and slow procecessing Original tortfeasor would feel empowered not only to decide whether a victim must sue his or her doctor but when the suit is filed. Acts of negligence in medically treating an injury are distinct and separate from the acts of negligence that caused the injury. o Eggshell (take your as you find him) Case: Pace Passenger with diabetes loses finger because of collision with snowplow. General Rule: So long as s conduct created a foreseeable risk of some physical harm, is liable for all injuries that actually result from his conduct, even if those injuries are enhanced by s unforeseeable preexisting condition i.e. if a has a pre-existing condition they are entitled to recover for all the injuries that flow from the conduct 43

The defendant takes the plaintiff as he finds him Restatement 2d Torts 502 Mental Distress and the Rule: The thin-skulled rule applies to preexisting mental conditions if the defendants negligence physically injured the plaintiff and the mental condition is aggravated. o Rescuers Case: Sears v. Morrison Swamp cooler fell on me Danger invites rescue Rule: Cardozo Wagner International - Rescuers should always be considered within the foreseeable class of persons who could be injured by the defendants negligence. Rule: Cardozo Wagner International Ry. Co. When an actor puts himself or others in danger, it is foreseeable a person will attempt to rescue those placed in danger. One does not have a legal duty to avoid harming himself however one has a duty to prudently manage his person so as to not endanger others Property Allows recoveries when individuals are injured trying to prevent harm to property when the defendants negligence places property in peril of destruction. o Oscar Klein Plumbing Carpel tunnel as a result of cleaning costume jewelry. Jewelry was not in imminent peril. No recovery. Animals Plaintiff can recover for rescue of and preventing harm to an animal. Proceeds under the theory of property Emotional Harm Ps involvement in the rescue Recovery possible Bystanders cannot recover Eyrich v. Dam Husband and Wife took small boy to circus boy was mauled. P rescued but no emotional harm to Ps wife (no recovery) Suicide Courts are reluctant to find defendants liable for victims conscious decision to commit suicide after an accident causing physical or emotional distress. o Exception: Defendants negligence caused the victim to become insane and the mental disorder created the impulse to commit suicide Stafford v. Neurological Medicine Plaintiff mistakenly told she had a brain tumor she committed suicide Exception: Reckless rescues

ELEMENT 4: DAMAGES Purpose To make plaintiff whole

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General Principles: o Compensatory Damages Make P Whole Special/General Special Economic Damages o Lost Income o Medical Treatment General Non-Economic Damages o Pain and Suffering o Punitive Damages Typically Business Behavior (Does not happen often) Make an Example of D Deter Others Vindicate P and Society o Both are Findings of Fact (FOR THE JURY) Objective standard Substantive Evidence Additur/Remittitur Passion/Prejudice Review o Plaintiff has a duty to mitigate damages P cannot recover from harm which by the exercise of reasonable care, he could have avoided (failing to seek medical assistance) Burden of proof is on the defendant to show that plaintiff could have taken reasonable steps to prevent the harm. Seat Belt Defense Most states apply the duty to mitigate rule only to conduct by the plaintiff after the accident. But a few apply it also to some safety precautions which the plaintiff could have taken before. Duty to mitigate changes the comparative fault in percentage of possible recovery. Compensatory Damages Personal Injury Damages o Def: Pain and suffering, past medical expenses, future lost wages, and future medical and related expenses. o Case: Calva-Cerquieria v. United States 18-year old, Smithsonian Institution Bus accident o Legal Standard Compensatory damage awards are based on substantial evidence and not speculation. Future consequences standard Plaintiff proves by a reasonable certainty that the future consequence would have occurred or will occur. o Three areas: Past earnings losses and future earning capacity losses Past Earning losses after the accident until the finished court case Future Determination based on demonstrated earning capacity (current or past job, field) o Youth Potential job Considerations: o Past use of drugs, alcohol o Medical condition o Activities in public (Soccer team) 45

o Well-Educated Exception - Because of family academics he would be projected to get a degree Past and future medical treatment, and hospital and pharmaceutical expenses Past medical care expenses as well as the cost of reasonable diagnostic design. Rule: Collateral Source Rule P is entitled to recover her out-of-pocket expenses, even if she was reimbursed for those losses by some third party (e.g. Insurance company, employment benefits, social security/welfare, free services) o Applies when: Source of the benefit is independent of the tortfeasor Plaintiff contracted for the possibility of double recovery o Explicitly permits compensatory damages to include written-off amounts. Applies in Calva because the plaintiffs medical care providers alleged writing-off costs are independent of the tortfeasor. Rule: Discounting to Present Value Award for Future Damages TimeValue of Money (Money can be invested to earn a return), and Inflation (should be based on interest that can be earned with safe investing. Past and future pain and mental suffering. Presented through evidence of severe and permanent injury, physical and mental disabilities, pain, emotional distress, disfigurement, deformity, and inconvenience as a result of the defendants negligence Woods Conscious pain and suffering Consider prior to the accident with the result of the accident Definitions: o Physical pain Anatomical site and origin of the pain o Mental suffering Anxiety is the feeling of uneasiness, often distress derived from the anticipation of danger. o Emotional Distress Concept falls within the definition of mental suffering and courts do not emphasize any distinctions. PTSD Post traumatic stress disorder o Technical: Plaintiffs Duty to Mitigate Where a plaintiff unreasonably fails or refuses to undergo medical treatment that would alleviate the medical difficulties, the defendant may be relieved of the responsibility for damages. Collateral Source Rule Two rules in one: A substantive rule of damage law A rule of evidence that precludes proof of collateral payments Rule: Plaintiff is still entitled to a full recovery regardless of whether an independent source provides funding to pay for treatment Rationales: o Defendant deserves to pay and should not get a windfall o Plaintiff paid for the collateral benefit o Gift of money and services, the plaintiff was the intended donor and not the tortfeasor o Personal injury compensation does not fully compensate 46

o Collateral benefit deductions may be difficult to compute and futher complicate litigation. Subrogation Allows the (insurance) provider to step into the shoes of the injured party to sue the negligent defendant directly for benefits paid out. Generally been rejected in personal injury because the action is considred personal and non-assignable. Life Expectancy When permanent injuries are involved, the plaintiff will have to establish life expectancy Done through mortality tables the tables are not conclusive of life expectancy individual characteristics of the plaintiff are taken into account Life Exp. May be relevant to future medical expenses and pain and suffering, but worklife expectancy is the appropriate consideration for future earning losses. Discounting, Fees, Etc Tables for discounting to present value at varying interests rates are available to assist in discounting calculations. o Consortium Deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Considered separately from compensatory damages Derivative of Ps Claim Formerly Property, Now Personal Interest Spousal Equivalents Couples in spousal relationships have sought consortium losses SPLIT: o NJ Supreme Court There should not be a bright-line distinction between married and unmarried persons courts should analyze the significance and stability of Ps relationship to determine o CA Supreme Court Marriage is the requisite (Eldon) - (2005) Domestic Partnerships Count Children/Parents o Loss of Enjoyment of Life HEDONIC DAMAGES Case: Eyoma v. Falco Gallbladder Surgery Breathing Coma (then Death) Recoverable in a survival action and the fact the victim may be in a comatose state should not preclude damages. In Eyoma Court finds that the fact the victim may be in a comatose state should not preclude an award of damages for the total disability and impairment inflicted by the tortious injury. SPLIT: o McDouglald v. Garber - Some courts hold that cognitive awareness is a prerequisite to recovery for los of enjoyment of life. o West Virginia took the view the consciousness of the loss is immaterial to recovery. Loss of enjoyment of life is placed within the category of permanent injury which includes the WHOLE MAN test lack of knowledge of injury does not preclude damage claims. Treatment of hedonic damages is summarized (Separate measure of damages?) State approaches 47

Minority Refuse to Recognize Positions on decisions rendered at the turn of the century that are now largely ignored Most Recognize as a part of Pain and Suffering damages Characterize damages as a factor in the award of pain and suffering Some Courts count as Separate Measure separate and distinct from pain and suffering and compensation should be awarded. California Unitary Theory Part of Pain and Suffering Glides over contradiction by unitary theory Majority o Wrongful Death/Survival Actions Case: Krouse v. Graham Parked car strike and kill Survival Actions US Two components: o They provide for the survival of a tort claim against a deceased tortfeasor by allowing the claim to be maintained against the estate of a tortfeasor o They provide for the survival of a personal injury claim of a deceased victim in the name of the victims estate for the damages accrued from the date of the accident up tot the date of the victims death. Wrongful Death Actions Statutes covering loss to the beneficiaries become known as wrongful death statutes Statutes Construed Strictly o Strict interpretation of the class of allowable beneficiaries. Measure of Damages o CA courts have allowed wrongful death recovery for loss of society etc despite the courts instance that only pecuniary losses are compensable o Status Relationships Step children, cohabitants, civil unions Defenses o Think if the decedent was still alive what defenses could the D bring? Contributory negligence (assuming that defense is applicable in the jrx in question Assumption of risk Consent o Defense against the beneficiary bringing the claim. Perhaps the person is not covered under the statute. Punitive Damages o Available where a defendants conduct is found to demonstrate the requisite higher degree of culpability above negligence o Can be awarded to penalize a defendant whose conduct is peculiarly outrageous. Or in negligence it requires reckless or willful or wanton o Purpose of Punitive: Punish, Deter, Social compensation (vindicate social interests and individuals), historically acceptable

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o o

POLICY Posner (Mathias) Relive the pressures of an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes. Conceptual Tests: Intent/Reckless - Aggravated circumstances of intentional misconduct, recklessness, fraud, malice or outrage may be enough to permit California Civ. Code Oppression, Fraud, and Malice Malice Conduct that is intended by D to cause injury to P or despicable conduct Oppression Despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of the persons rights Fraud Intentional misrepresentation, deceit or concealment of a material fact known to D with the intention on the party of the D of depriving person of rights (property, etc) Standard of Proof Clear and Convincing Finding of Fact: Jury Factors: Likelihood at the time that serious harm would arise from misconduct Degree of the defendants awareness of that likelihood Profitability of the defendants misconduct Duration of misconduct concealment of it Attitude and conduct of the defendant upon discovery of the misconduct Financial condition of the defendant Total deterrent effect of other punishment imposed on the defendant as a result of the misconduct. Constitutional Considerations Case: - State Farm v. Campbell Leading case for Punitive Damages Due process considerations arbitrary deprivation of property wide discretion in choosing amounts and the Ds net worth creates the potential that juries will use their verdict to express bias. o BMW v. Gore Single-digit ration between punitive and compensatory damages that will satisfy due process Cited a 4-1 ratio Grossly Excessive awards violate the due process clause of the Fourteenth Amendment Punitive damages do not substitute for the criminal process Policy Furtherance of business concerns Economic concerns Gore Tests for Due Process o BMW v. Gore Degree of reprehensibility for the defendants misconduct Disparity between the actual or potential harm suffered by P and the award Difference between punitive damage award by jury and the civil penalties imposed in comparable cases

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CONDUCT a DE NOVO relive of a trial courts application of them to a jury award (required for grossly excessive awards) Campbell Guidelines on Scope for Award o Cant punish conduct lawful where it occurred o Cant punish for conduct in a different state o Punish only for conduct harmful to P Multiple claims: Scope of Review o Technical Questions Case: Mathias v. Accor. Econ. Lodging Posner, J Function of Punitive damage awards are to relieve the pressures on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes. o Punitive Damages should be proportional to the wrongfulness of the defendants action. o They serve the additional purpose of limiting the defendants ability to profit from its fraud by escaping detection and private prosecution. Ds Wealth Typically admissible on the issue of punitive damages SPLIT: Some courts allow for proof only after liability is determined Comparative Maj view: Doesnt reduce damages splits up award Insurability Generally NO Push to Making it Just View that it is simply the cost of doing business Taxes Punitive Awards are taxable compensatory NO in federal courts Transfers of Liability Vicarious Liability o Ordinary Vicarious Liability Principles may extend the liability for such damages to the employer. SPLIT on whether allowed. CA narrow window of punitives. o Tort Reform: Empirical Data on Damages Reform Devices Socialize Awards Share awards with the state (Georgia up to 75% shared) Caps Award too frequently and hinders competitiveness o Medical malpractice caps doctors and hospitals against large pain-and-suffering awards. o CA Caps on pain-and-suffering award against health-care provider. o However no cap on punitive damages. Constitutional Limits Caps on pain-and-suffering awards/punitive damages Punitive damages behaves in an ordinary way 50

Punitive damages are for larger more common in financial or business law Settlement negotiations o P wont pursue punatives in exchange for not contesting liability o Rare in NY, Common in Texas

DEFENSES to Negligence
Contributory Negligence 19th Century Judicial Invention o Def: Plaintiff is barred from recovery if her conduct contributes in any substantial way to her injury. o Case: Butterfield v. Forrester Fast riding horse obstruction o Jury Control Courts were nervous to extend liability that far o Harsh, but cheap o Subsidize Fledgling Industries, especially Rail Efforts to Save Classic Contributory Negligence o No Defense to Aggravated Behavior Courts only allowed the defense where conduct was negligent reckless actions could recover strict liability for some situations (tiniest little bit of negligence would bar recovery) o Last Clear Chance Plaintiff could still recovery fully against a negligent defendant upon proof that he was more culpable because he had the last opportunity to prevent the harm. o No Defense to Statutory Violations Comparative Fault Sweeps Nation 1970s o Alabama, Maryland, North Carolina, Virginia Contributory Negligence upheld Comparative Fault General Characteristics of Comparative Fault o Nature Unlike IT privileges, negligence defenses do not justify s conduct Negligence defenses redirect some or all responsibility to o Effect Some defenses bar s recovery Some defenses reduce s recovery Some bar OR reduce s recovery o Burden of Proof Each defense has elements of proof The has the burden of proving each element by a preponderance of the evidence o History Traditionally, there was contributory negligence if contributes to the harm, no recovery whatsoever, regardless of the size of the harm This doctrine was first softened to the Last Clear Chance doctrine A negligent is not barred if the had the last clear chance to avoid s harm o SPLIT:

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o California - Li v. Yellow Cab CA Supreme Court abolished the doctrine. When true comparative negligence is adopted, the need for last clear chance disappears o Other jurisdictions have continued to apply the doctrine on the theory that where the D has had a last clear chance to avoid the accident the plaintiffs conduct is not the proximate cause of the accident. o Restatement (3d) rejects the last-clear-chance rule in comparative negligence cases. This later developed into comparative fault doctrine

Elements of Comparative Fault o Breach: breached the relevant standard of care o Causation: s breach was a factual and proximate cause of her injuries Two approaches of Comparative Fault o Case: Hoffman v. Jones Should the court replace contributory negligence with comparative negligence? o ISSUES: Set-off One accident Both parties arguably at fault counter-claims are filed and heard together two-judgments set off against one another Joint and Several Liability Most states allow with single individual cause cases Res Ipsa Loquitur P is not contributory negligent Now not worry about it too much Remains useful for determining breach Avoidable consequences P has a duty to mitigate Doctrine o D does not need to pay for additional harm that P could have avoided through reasonable care SEAT BELT Negligence Should failure to take precautions be a part of comparative fault o Ps harm is aggravated by the accident o Pure Comparative Fault (CALIFORNIA Lee v. Yellow Cab, Florida, Illinois) General Rule: a negligent s recovery is reduced by her assigned percentage of fault; is barred ONLY if she is 100% at fault No standard to determine percentages of fault; its arbitrary o Modified Comparative Fault (majority) TYPES: Modified 50 Not Greater Than (Oregon) Modified 49 Not As Great As (Colorado) General Rule: a negligent s recovery is reduced by her assigned percentage of fault up to a specified threshold; once s fault reaches the threshold, s recovery is barred This rule applies to a predetermined threshold of up to 50%. If s negligence is more than s negligence (51% or more), then may not recover. 52

In some jurisdictions, if is just as negligent as (50/50), is completely barred from recovery Policy: Bar is set at 50% or 51% because it would be inefficient for a to sue when the was equally or more at fault. Modified Comparative Fault Special Issue Individual or collective comparison of s o Where there are multiple s, most jurisdictions compare s fault to s fault for purposes of applying the threshold o i.e. if 1 is 30% at fault, 2 is 30% at fault and is 40% at fault. Under modified comparative fault, would not get any recover because s negligence is greater than the individual faults. o However, most jurisdictions aggregate the s faults. So combine the faults of the s. 60% is less than s fault at 40% and can recover. Effect of Comparative Fault on Multiple s o Option 1 (minority): Joint Liability Two more more parties who act together according to a common plan to cause s injury Two or more parties whose independent actions combine to cause a single, indivisible injury Effect: each is potentially liable for 100% of s damages o Factors in Assigning Percentage of Fault CASE Wassell Posner Rape at the hotel = 97% fault Bottom line: Formless, Unguided inquiry BPL? Different Kinds of Negligence Contributions of Non-parties Negligence and intentional Negligence and strict liability Failure to Protect

Illustration of Pure and Modified Comparative Fault award allocations based on and s faults Assume the amount is 100k. How much can recover according to each approach? % Fault Pure Modified 50% Bar Modified 51% Bar -90 10k 0 0
-10 -49 -51 -50 -50 -51 -49

51k 50k 49k

51k 0 0

51k 50k 0

Assumption of Risk Generally: actually or constructively chooses to encounter risks created by Most courts use assumption of risk as a consideration to be taken into account in making an apportionment of harm. There is a split as to whether or not this is a separate doctrine distinct from contributory negligence. 53

o Express Assumption of Risk P explicitly agrees with D in advance of any harm that P will not hold D liable for certain harm P is said to have expressly assumed the risk of that harm. Generally enforceable in which case it will completely bar P from recovery. Usually in the form of Waivers Must be clear and ambiguous Bargain must be clean: Restatement 2d 496B - If an assumption of risk is characterized as

express, it can be invalidated if it is found contrary to public policy. Conversely, courts are likely to uphold express assumption of risk when the plaintiff's participation is clearly voluntary, such as the decision to engage in risky recreational pursuits.
Tunkl v. Regents: o Public Policy - Criteria in evaluation whether an exculpatory clause in a contract was invalid as contrary to public policy: Concerns a business of a type generally thought suitable for public regulation The party seeking exculpation is engaged in performing a service of great importance to the public; some necessity for some members of public. Party holds himself out as willing to perform this service for any member of the public who seeks it or at least any member coming within standards As a result of the essential nature of the service, in the economic setting of the transaction, the party making the exculpation possesses a decisive advantage of bargaining strength against any member of the public. In exercising a superior bargaining power the party confronts the public with a standard adhesion contract of exculpation and makes no provision where a purchaser may pay additional fees and obtain negligence protection. As a result of the transaction, the person or property is placed under control of the seller, subject to the risks of carelessness by the seller or his agents. o Negligence Only o Nowadays Mostly in Commercial Recereation. Used often by charitable research hospitals, school districts for athletics etc. Recreational activities do not constitute a public interest and that therefore, preinjury releases for activities cannot be invalidated under the public interest exception. Scenario expressly agrees to accept risks created by Typically by K Three-Step Analysis Did clearly express consent to be bound? o Acceptance of admission tickets (lakers tickets) may not express consent to be bound Did s injury fall within the scope of the accepted risks? 54

o What kinds of harms is agreeing to accept? o Where can the harms be sustained? (locations) o Arising out of what type of conduct and/or activity? (conduct/activities) o Committed by whom? (parties) Are there any policy reasons for overlooking s apparent consent and holding liable? o s reckless or intentional conduct o s activity has high social utility o adhesion contract contacts dont allow room for negotiation; its take it or leave it contract and you cant bargain the terms Whenever there is a high value service being provided (such as medical services), courts may throw out the waiver of consent to harm because it is in the interest of public policy to make sure doctors arent being negligent with other patients. Were not going to bar a patients recovery if he seeks some kind of medical care just because he signed the waiver and the doctors were negligent. This isnt exactly a voluntary assumption of risk because its not voluntary in the sense of partaking in a leisure activity. Youre going to the doctor because you have to. o Exceptions: First when a party is protected by the clause either intentionally causes the harm or brings harm about through reckless or grossly negligent ways Second when the bargaining power of the parties is greatly disproportional. Third where the court concludes that there is some overriding public interest which demands the court refuse to enforce the clause (unconscionability) o Implied Assumption of Risk Plaintiff never makes an actual agreement with the defendant whereby risk is assumed by the former, she may be held to have assumed certain risks with her conduct. Case: Bowen v. Cochran Guy lit his grill improperly even though he had been expressly instructed not to do it that way Grill explodes Court finds contributory negligence and implied assumption of risk To show AOR Defendant must present evidence that the plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to the risk. Murray v. Ramada Inns, Inc Man dives into pool headfirst dies from injuries no lifeguard Court uses: Implied secondary assumption of risk a form of contributory negligence/comparative fault P knew of Ds negligence and assumed risk and was also negligent himself. Requirements: Plaintiffs actions demonstrate that she knew of the risk in question and voluntarily consented to bear that risk herself. Actual Knowledge of the Risk - The plaintiff must have knowledge of the risks involve. This is construed strictly. 55

Subjective Appreciation of the Risk Voluntary Exposure to the Risk - The plaintiff must have consented to the risk voluntarily Rush v. Commercial Realty One must voluntarily expose himself to the risk without knowing the risk P fell into the outhouse floorboards.

After Comparative Fault o Implied assumption of risk makes no sense o Actually describes 3 different behaviors Waiver Implied secondary = contributory negligence Implied primary AR = No duty/No Breach o Most Implied AR situations are CN One party enters into a relationship with another knowing and expecting that the other person will not offer protection against certain risks arising out of the relationship. E.G. Baseball game stand injury. Case: Cheong v. Antablin USE Knight v. Jewett or Ford v. Gouin Depending on whether primary or secondary AR applies turns on: o Nature of the activity that the parties are engaged o Defendants conduct breached a legal duty of care to P Objective test: Depends on the nature of the sport and the parties general relationship to the activity rather than the particular plaintiffs subjective knowledge and awareness. Legal duty of D No legal duty to eliminate (or protect against) risks inherent to the sport itself, however Ds have a duty of care not to increase the risks to the participant over those of the sport. o Implied Primary: SPORTS o Firefighter Professional Rescuer Rule Firefighters have been barred from bringing third party actions against parties who negligence caused a firefighter to be injured. Part of professional duty. STUDY NOTES: Effect: s recovery is barred Rationale: She who consents is not wronged Although does not expressly agree to accept s risks, s conduct under the circumstances actually or constructively indicates her willingness to do so Types o Subjective s conduct actually reflects her choice to accept s risks Elements Actual knowledge and appreciation of risk o must understand both the probability and magnitude of the risk o Probability: i.e. knowing of the probability death or sbh will occur by skydiving 56

o Magnitude: i.e. McDonalds hot coffee incident knowing that a 3rd degree burn could result, not just a minor burn Voluntary Exposure to Risk o If can avoid s risks by exercising reasonable alternative courses of action, her decision to encounter s risks is voluntary o Rush (p.714 n.4): rushes to s only outhouse and falls through hole in outhouse floor

Effect If has both elements, s recovery is barred o Objective The state for policy reasons constructively treats conduct as eliminated s duty to control the risks of her behavior, even if does not actually choose to accept those risks Elements engages in activity/occupation with inherent risks, including risks of negligent conduct o Inherent risks are determined on (objective) policy grounds as a matter of law is injured by an inherent risk, and not a risk intentionally or recklessly created or enhanced by o need not actually know or consent to the inherent injury causing risk o If recklessly or intentionally increases the risk, she may held liable despite s participation in the activity/occupation Effect s recovery is barred Courts often say owed no duty of care Application o With comparative negligence the voluntary assumption of risk either implied or express will go into the contributory negligence and reduce the possibility of a recovery. It will not eliminate it. IMMUNITIES

An immunity protects a defendant from tort liability. Unlike a defense, it is not dependent on the plaintiff's behavior, but on the defendant's status or relationship to the plaintiff.
Statutes of Limitation o Accrual All of the facts essential to Ps right of recovery have occurred or are accrued. o Expiry/Run Period of limitations has expired o Tolling Suspend the limitations clock temporarily (party is underage etc.) o Discovery Rule Limitation period starts to run when accident occurs and injury is manifested. Postpone limitations period until P actually knows or should know that he has a claim. 57

o Equitable Estoppel Judge will estopp P from invoking a statute o Ultimate Repose Statutes Lets D relax about their problems After 10 years no one can make a claim. Charitable Immunity o McDonald v. Mass. General Hospital o Not applicable in modern use. o Historically, charitable organizations were immune from tort liability. Increasingly,

this immunity has been abrogated. [See Restatement 895E.] o Today: Because of the availability of liability insurance, existence of large, well-funded charitable organizations, ability of charities to control employees and reduce injury this has been greatly restricted. Any negligence and misconduct by volunteers falls outside the scope of chartable duties bad faith conduct.
Spousal Immunity o Historically, spouses could not sue each other. The majority of states have eliminated

spousal immunity. [See, e.g., Klein v. Klein, 376 P.2d 70 (Ca. 1962); Restatement 895F.] Courts considered this rationale: Preservation of marital harmony Prevention of fraud and collusion against liability insurance companies Discouragement of frivolous claims Today: Courts believe that fraud can be controlled Property and contract claims are handled under Married Womens Acts, and there is little justification for refusing to compensate for actual injury. 1993 37 states have abolished spousal immunity altogether 10 states modified.
Parental Immunity o Parent-child immunity precludes tort actions between parents and their non-adult

children. [See Small v. Morrison, 118 S.E. 12, 16 (N.C. 1923).] Unlike spousal immunity, which has been eliminated in most states, parent-child immunity still exists in some form in many jurisdictions. [See, e.g., Gibson v. Gibson, 479 P.2d 648 (Cal. 1971).] Court still uses this immunity for: it is necessary to assure effective discipline and control by the parent (parental authority)
o Majority (GOLLER, Wisconsin) Abolished Parental immunity and made parents liable for torts to their children except Where the alleged negligent act involves the exercise of parental authority over the child Where the act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services and other care. o Due care Under the circumstances (Gibson, CA)

58

Parents conduct should be measured by whether the parent failed to maintain that degree of care that an ordinary and careful parent would have maintained in similar circumstances Critics: This is a reasonable person standard o Traditional Immunity with Exceptions (Holodook, NY) Parental supervision is uniquely a matter of exercise of judgment, the court reasoned the parents involved had a right to determine, free of second guessing how much independence supervision and control their kids should have. Arizona did not follow reasoning that parents should not possess unfettered discretion in raising their child Reasonable parent standard o Conduct Inherent to Relationship (Cates, IL) Narrowed the immunity rule through exceptions: (NOT TO APPLY) Where the parent was charged with willful, wanton, reckless conduct Where the allegedly negligent parent is deceased In third-party contribution actions against the parents Where the parent owed a duty to the general public and only incidentally to the members of the family living in the house. Ex. Automobile operation did not establish a parent decision making in discipline supervising or caring for his child. o Texas Importance of harmonious family relationships depend on filial and parental love and the family is a vital unit in our society. We recognize that peace, tranquility, and discipline in the home are endowed and inspired by higher authority than statutory enactments and court decisions HIGHER AUTHORITY? Governmental Immunity o Governmental immunity protects the government from tort liability. Under the

common law, the immunities were complete and prevented any tort suits against the government.
o Review Public Duty Doctrine (CL RULE) (Cuffy Factors) Officers owe a duty to the public at large unless specified individuals Particular undertaking to a specific individual o Tort Claim acts Provided guidance in decision-making Reserves immunity for government but not proprietary functions o Case: Harry Stoller v. City of Lowell - FAILURE to LAUNCH the sprinkler systems in the buildings because they had to hook it up to the hose. Negligence of city firefighters in fighting fires in the owners buildings. RULE: Standard: Berkovitz v. United States Governmental/Proprietary Functions - Execution of policy Discretionary/Ministerial Functions IMMUNITY from policymaking functions o Whitney v. Worcester Dividing line rests on the exercise of judgment and discretion and represent planning and policymaking. Test to determine difference: o If the injury-producing conduct was an integral part of governmental policymaking or planning o If the imposition of liability might jeopardize the quality of governmental process 59

o If the case could not be decided without usurping the power and responsibility of either the legislative or executive branch of government.

III. STRICT LIABILITY

Emerged with Fault Liability: o Scholars believe that liability without fault or strict liability was the theory of liability applied by the earliest common law. o Liability was based on a direct causal relationship between the defendants act and the plaintiffs harm. o CL started to reject writ and move toward proof of fault as a basis for recovery o CASE: Brown v. Kendall Hit in the nose from breaking up a fight with dogs o Justice Shaw Brown could only prevail on proof of fault by Kendall. The plaintiff had to show that the defendant either intentionally or unreasonably caused the injury. Traditional Areas: o Animals (Discussed Below) o Dangerous Activities (Discussed Below) o On the job-injuries workers compensation o Environmental Harms (RYLANDS) New Area: Products Liability Statutory Provisions Characteristics of Strict Liability (broken down into categories) Theoretical o Strict liability imposes liability without s fault and regardless of s exercise of reasonable care o Instead of fault, strict liability is based on public policy Practical o Strict liabilitys procedural scheme is stricter than negligence in two ways: It eases s burden of proof by eliminating the fault requirement (breach of a standard of care) It reduced s defensive arguments ( cant argue reasonable care; fewer superseding causes) Vicarious Liability Definition o Vicarious liability holds one person, the principal, responsible for harm caused by the wrongful acts of another, the agent, even in the absence of the principals negligence Common Types o Parent-child o Employer Employee (respondeat superior) Strict Liability Theories Nature: Categorical, generally not circumstantial o Strict liability applies to entire categories of suspect human activities regardless of how well they are performed 60

o Contrasted with Negligence: is strictly liable for storing tons of gasoline on her property is negligent for storing a five gallon gas can in a garage without adequate ventilation and next to the pilot light of a hot water heater Two Types of Strict Liability o Owning or Possessing Wild or Dangerous Animals o Abnormally Dangerous Activities the trick here is to determine what kinds of activities, besides wild animals, are suspect to being abnormally dangerous Definition o A party who engages in a strict liability activity that causes physical harm to another is strictly liable for the resulting damages Elements of Strict Liability o Activity participated in a strict liability activity o Liability (Duty) Limit s harm falls within the scope of that activity o Causation Factual o Actual Damages

Strict Liability Animals Activity o Categories: Owning, Keeping Wild Animals (Lions, Bears, Snakes, etc.) Strict liability for ALL injuries Exception?: Public Exhibit (Isaacs v. Powell child grabbed by chimp at monkey farm exhibit) o Negligence Only for exhibitors Barnyard Animals (Cattle, Pigs) Strict liability applies when there is property damage The animal must trespass on property and cause damage. No Strict Liability for Physical Injuries; Only Negligence Dangerous Domestic Animals (Dogs, Cats) Strict Liability if has actual or constructive knowledge of animals dangerous disposition; otherwise, negligence only Many jurisdictions have altered the common law rules by statute and impose strict liability on the dog owner even if there is no notice of danger. o This goes against the one free bite philosophy that says an animal is not inherently dangerous until it is known through a bite or occurrence. Liability (Duty) Limit o s harm must result from the animals inherent and abnormally dangerous characteristic (chimp grabs childs arm) o Hypo s vicious pitbull playfully chases ball into street. P-driver swerves her car into a tree to avoid the dog. P is physically injured. 61

o Injury not within scope of animals d dangerous characteristics (attacking, biting) Causation o Factual (But-for analysis) o Proximate Application of Foreseeability test Isaacs: Foreseeability of harm? ICs? Courts generally take a broad interpretation of foreseeability, holding the S.L. actor responsible for negligent and even reckless ICs Intentional/Criminal ICs may be superseding Defenses o Isaacs: Does/Should childs and Dads behavior bar or diminish their recovery? o Contributory negligence is not going to cut it just because the was somewhat at fault. o Majority Assumption of Risk applies; CF does not o Minority/Trend Assumption of Risk and Comparative Fault apply

Strict Liability Abnormally Dangerous Activities (ADAs) Activity o Categories of ADAs History: Rylands v. Fletcher s cotton mill reservoir breaks and floods s mine SPLIT!!! o Judge Blackburn: Keep dangerous things on land If (the mischief) escapes it must keep it at peril if he does not then he is prima facie answerable for damages o Judge Cairns: Abnormal Danger (not normal use of the land) Non-natural use of property which he defined as introducing the close that which the nature condition was not in or upon it. o Long Disfavored in the US because it imposed costs on developers o Most courts recognize this context for RYLANDS principle o Restatement I Recognized in 1930s. o This is used in strict liability for environmental harm context Klein v. Pyrodine Corp Fireworks shell discharge Majority Test: Rest 2d 520: Strict Liability for Abnormally Dangerous Activities o Factors of ADAs (Generally, more than one factor must apply to the activity in order for it to sufficiently be an ADA) (first three hazardous, next three abnormal) High probability of harm? (person, land, or chattels?) High magnitude of harm? (Will the harm be great?) Risk inherent and unavoidable? (POSNER) Activity not common usage? An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community 62

Few people engage in fireworks displays every year Activity inappropriate for location? Activitys social utility < Risk? Holding: Essential question is whether the risk created is so unusual either because of its magnitude or because of the circumstances surrounding it as to justify the imposition of strict liability for the harm that results from it even though it is carried on with all reasonable care. Policy: Who should bear the loss when an innocent person suffers injury through the non-culpable but abnormally dangerous activity of another. Proof Problems: The person harmed would encounter a difficult problem if some other standard were applied. o Negligence (res ipsa loquitur thought) o Siegler v. Kuhlaman Certainly this is true with explosions of dynamite or large quantities of other gas or explosives. (Deterrence) - Posner Incentives To experiment with methods of preventing accidents that involve not greater exertions of care but instead reduce activity giving rise to the accident. Fletch Non-Reciprocal Risk Defendants conduct exposed the plaintiff to risks without reciprocation or intent of plaintiff to be exposed to risks. Vetri Fairness, Information Holds to Cairns, J view of Non-natural use of land exposed plaintiff to inherent risks. It is fairer for the person engaging in a particularly risky activity that exposes the community to significant dangers to pay for the harm caused. Scope ISSUES Pyrodyne claims that the shell detonated without leaving the motor box because if negligence in manufactur. o Case: Siegler v. Kulman young woman killed in explosion when the car she was driving encountered a pool of thousands of gallons of gas spilled from a gas truck. Court held: Transporting gas in great quantities is a dangerous activity that calls for strict liability. Justice Rosellini Owner of the vehicle would be held liable only for damages caused when flammable or explosive substance is allowed to escape without the apparent intervention of any outside force Intervention would be allowed. o Case: New Meadows Holding Company P injured while lighting an oil stove when he accidently lit a gas line several blocks away TIME/DISTANCE considerations Role of strict liability should not apply where there is the intervention of an outside force beyond the defendants control, and the gas leak was caused by an outside force. RESTATEMENT 2d Torts One carrying on an abnormally dangerous activity is subject to SL for the resulting harm although it is caused by the unexpectable innocent, negligent or reckless conduct of a third person. Court in KLEIN holds opposite of this theory third persons intervening acts of negligence will sometimes provide a defense. 63

Liability (Duty) Limits o Scope of Abnormal Danger Limit Foster v. Preston Mill: Mother Mink eating young NOT within scope of blastings abnormal dangers (explosion, debris) o Premises Limit (for injuries on strict liability operators property) Hypo: enters s nitroglycerin storage facility to steal nitroglycerin. drops the nitroglycerin, causing it to explode. is severely injured in the explosion. Causation o Factual but-for analysis o Proximate: Klein Did fireworks manufacturers negligence supersede the casual effects of s strict liability activity? Rest. 2d 522 A strict liability activity is a proximate cause of s harm even if s harm is also caused, in part, by the unforeseeable innocent, negligent, or reckless conduct of another. o These intervening causes are NOT superseding Intentional ICs handled case by case; may be superseding Defenses o Contributory negligence o Assumption of risk o Comparative Fault o Causation issues (Intervening causes may be allowable under case law; discussed above)

Products Liability Policy considerations: Accident reduction (incentives to produce safe product) Safety Representation (assuring compliance with implicit and explicit representations as to the safety to meet purchaser safety expectations) Compensation (assuring financial resources to product accident victims by spreading the losses through insurance and cost of products) Administration Efficiency (creating workable legal rules that are not too costly to implement and reduce the burden on plaintiff to prove carelessness) For a plaintiff to recover under the strict liability in tort: (Valk Manufacturing) (Prima Facie Case) The item was made or sold by the defendant The product was defective The defect caused the plaintiffs injuries; and The defect existed when the product left the defendants hands Tort Purposes Negligence Liability for Products McPherson v. Buick (1916) Cardozo Privity of contract was not required to assert an implied warranty of merchantability claim against a manufacturer Warranty for Defective Products Henningsen (1963) STEERING WHEEEL 64

Privity of contract was not required to assert an implied warranty of merchantability claim against a manufacturer Implied warranty of merchantability applies to purchaser, members of the family and persons occupying or using the car with owners consent The disclaimer of any warranties in small print in the contract with the care dealer, except the agreement to replace defective parts at the factory were unenforceable (unconscionable) Res Ipsa Loquitur - 10 days after the purchase the car was defective

Reach of Products Duty Rule Systems 1. The Traynor Cases a. Escola Absolute Liablity - GERMINAL CASE i. Majority Res Ipsa Loquitur ii. Traynor Concurrence: Make it SL TOO HARD to prove for Res Ipsa Loquitur Cases: 1. WHY? a. Manufacturers can anticipate hazards in a way that the public cant (Complicated products entering the market) b. Victims are unprepared to meet consequences and cost c. Risk can be meant by manufacturers better than everyone else d. Deterrence discourage manufacturing of poor products 2. This principle should not extend to injuries that cannot be traced to the product if/when it reached the market 3. Policy demands that responsibility be fixed wherever it will most effectively reduce the hazards of life and health. 4. D was responsible for allowing the product to reach the market, and it is in the public interest to discourage the marketing of products that have defects 5. Social change things are different Mass marketing and name recognition is key and reliance on products is more important. b. Greenman (1962) (there is not absolute liability you must prove a defect) (you could use Res Ipsa Loquitur) POWER TOOL WOOD LATHE OF DEATH i. Liability is not governed by the law of contract warranties but by the law of strict liability in tort ii. Establishing the injury 1. Using the product as intended and as a result of defect of design and manufacture (which P was not aware) the Shopsmith was unsafe 2. Elements a. P injured b. Using Product as Intended c. Defect in Design and Manufacture d. Of Which P Not Aware e. Made Product Safe for Intended Use 2. Restatement 2d (402A) (NOT APPLICABLE IN MICHIGAN) Def: Consumer Expectations Test: Must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the knowledge common to the community as to its characteristics

65

Extended strict liability to products that were a defective condition unreasonably dangerous to the user or consumer COVERS everyone in distribution chain. As Written: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Comments: (Leichtamer) a. Duty extends to all sellers (Comment F) b. Defective Condition (Comment G) i. Sets up a fact as to the nature of the product itself ii. Defect = consumer expectations c. Unreasonably Dangerous (Comment I) i. Direct inquiry toward behavior of manufacturer as seller d. Gaps to be Filled in Later i. Nothing about harm to bystanders ii. This was court developed 3. Restatement 3d Products Liability (1998) a. Separated Defect Issues: i. Manufacturing Defect Product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product (Must show there is no reason to think than manufacturer defect happened between the manufacture and accident) ii. Design Defect foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the chain of distribution or omission of a design altogether. iii. Warning/Instruction Defect Inadequate instructions or warnings when the foreseeable risks could have been reduced or avoided by the provision of reasonable measures of instructions or warnings. Kinds of Defect 1. Manufacturing Defect Imperfection, shortcoming, or abnormality in a product that departs from its design specifications and prevents the product from safely performing a. Test 66

i. Deviation from Design Specifications the product in question is typically compared to the manufacturers own standards or specifications to determine if there is a difference that makes the product less safe. 2. Design Defect Design defects in a product is present in all of the production units a. Tests i. Consumer Expectation Test Whether the product is more dangerous than the ordinary consumer would expect ii. Risk-Utility Test Whether there is a safer, feasible, cost-effective alternative design that does not impair the usefulness of the product 3. Warning/Instruction Defect Manufacturer fails to warn consumers of a material risk of danger in the use of the product. Also a warning defect may exist when the warning given is inadequate. a. Tests i. Negligence principles under 402A ii. Plaintiff must prove the manufacturer failed to exercise reasonable care in providing a warning 1. Considerations: a. Explicitness of the dangers presented b. Clarity of the statements c. The manner of presentation d. Persons to whom the warning is addressed. Manufacturing Defect Two ways to Prove: 1) Proof of a Deviation from design specifications and 2) Circumstantial Evidence allowing an inference of such a defect Proof of Manufacturing Defect Defective Design and Construction (Greenman) o Greenman (1962) (there is not absolute liability you must prove a defect) (you could use Res Ipsa Loquitur) POWER TOOL WOOD LATHE OF DEATH Liability is not governed by the law of contract warranties but by the law of strict liability in tort Establishing the injury Using the product as intended and as a result of defect of design and manufacture (which P was not aware) the Shopsmith was unsafe Elements o P injured o Using Product as Intended o Defect in Design and Manufacture o Of Which P Not Aware o Made Product Safe for Intended Use Deviation from Design Specifications Q of fact for the jury o (McKenzie) Ratchet wrench broke and P injured himself o To prevail P must prove his injuries resulted from an unreasonably dangerous or defective condition of the product and the condition existed at the time the product left the manufacturers control 67

Unreasonably dangerous when it fails to perform in the manner reasonably expected in light of its nature and function. May be found unreasonably dangerous by virtue of a design or manufacture defect. o To Prove Use evidence of design deviation Use expert witnesses Malfunction Proof - (Circumstantial Proof) o (Ducko) Locked steering wheel crash o To Prevail In certain cases the plaintiff need not present direct evidence of the defect when proceeding on a malfunction theory P may present case-inchief evidencing the occurrence of a malfunction and eliminating abnormal use or reasonable secondary causes for the malfunction. Circumstantial Evidence a jury may be permitted to infer that the product was defective at the time of the sale. Malfunction must come shortly after the sale the longer the time the harder the inference and a proximate cause issue arises. o Brill v. Systems Chair collapse Reversed judgment Jury could have inferred a defect from the plaintiffs testimony, the court held that a jury instruction on malfunction was required. Design Defect Proof of Design Defect o Conceptual Tests o Germinal Cases: Greenman POWER TOOL LATHE Cronin COKE BOTTLE o Consumer Expectations Proof (402A) Campbell BUS Defective in design because the seat lacked handrails or guardrails within reasonable proximity Plaintiff must produce evidence that the product failed to satisfy ordinary consumer expectations as to safety. o Proof: Testify about the accident (her use of the product) Introduced photographic evidence of the design features of the bus Does the jurors have a sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. o Jury considers the hypothetical expectations of a reasonable consumer rather than those of the particular plaintiff o Sufficient to prove (EVIDENCE) His or her use of the product The circumstances surrounding the injury The objective features of the product which are relevant to an evaluation of its safety o Design Malfunction Leichtamer NEW JEEP ROLL BAR FLIPS DRIVERS! 68

Section 402A analysis should apply to design defects involving a second collision Manufacturer is under no obligation to design a crash proof vehicle instruction can be given on SL in tort if plaintiff adduces specific evidence that an unreasonably dangerous product design proximately caused or enhanced the plaintiffs injuries in the course of foreseeable use. o A roll bar should be more than ornamentation. Unreasonable Danger Product is defective if it is more dangerous in use than the ordinary consumer would expect while in use in an intended or reasonably foreseeable manner. Consumer Expectations Proof can be the commercials which are the guiding force of the expectations of consumers with regard to the safety of a product and is relevant to a formulation of what those expectations may be. Proof of adequate testing of product is also considered They did not test the roll bar and therefore were not able to determine that their design was defective before sending it to the market. Elements: Defendant or manufacturer sold the product Product was unchanged from the date of sale or that any changes were reasonably foreseeable The product was used in a reasonably foreseeable manner The product did not perform as safely as the ordinary consumer would have expected The plaintiff was harmed The products design was a substantial factor in causing the harm. Design Defect: Crashworthiness Aggravated Injury Consumer Expectations Proof Malfunction Proof o Cases where Consumer Expectation Not Possible Open and Obvious Danger Case: Floyd v. Bic Corp. LIGHTER FLAME OF DEATH o If a product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril Coast Catamaran Corp. v. Mann o RULE: Manufacturers are not liable for failure to make adult products child proof. o This is an example of pre-Greenman law. NO DUTY RULE. Foreseeable Misuse/Misusers Courts require the plaintiff to prove the foreseeable use, but allow the defendant to argue the foreseeable misuse is plaintiff misconduct that should be evaluated under comparative fault principles. Design Involves Complex Safety Balancing CE test provides no standard for cases in which complex safety and utility trade-offs must be resolved and are no actual ordinary user expectation on which to rely. Gas tank on a car must be subject to careful balancing of a number of considerations. 69

Proof of Defect Design Defects When you are trying to prove up a defect: LOOK OF EVIDENCE of Defect in Probable Order of Power SCALE HIGH to LOW 1. Deviation from design defect 2. Proof of Malfunction (3d Restatement) Use malfunction evidence as res ipsa loquitor of Product Liability a. Greenman case b. Lightower 3. Reasonable Alternative Design If you got one or can afford an expert witness 4. Customer Expectations (Supplemental to (3d)) a. Campbell case b. Porter v. Lowell case 5. Risk-Utility Analysis (LAST) a. Most like negligence b. Policy Empowers the idea between producers v. consumers Proof Design Defect II Focus on the design feature, not the entire product. Focus on the product and not the manufacturer. Risk-Utility Analysis o Case: Valk Manufacturing Dump truck with a snow plow o Test: Product is defective as designed if the risk of danger (magnitude) of the product outweighs the utility of the product. Reasonable person would conclude the danger-in-fact whether foreseeable or not outweighs the utility of the product. o Wade Factors - On the Nature of Strict Tort Liability for Products The usefulness and desireability of the product its utility to the user and to the public as a whole The safety aspects of the product the likelihood that it will cause injury and the probable seriousness of the injury The availability of a substitute product which would meet the same need and not be as unsafe The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility The users ability to avoid danger by the exercise of care in the use of the product The users anticipate awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product or of the existence of suitable warnings or instructions The feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or carrying liability insurance. o Wade Factors: Understanding them 70

Risk-Utility Factors One through Five are most parallel to risk-utility analysis in negligence law Factors Regarding User Knowledge and Ability to Avoid Risks Factors five and six reflect user ability to avoid danger. Loss Spreading Factor How is the loss spreading factor to be weighed against the other considerations? o Issue to consider is whether the manufacturer knowing the risks inherent to the product acted reasonably in putting it on the market. More Strictly (Hand approach in balancing) California The gravity of the potential harm resulting form the use of the [product] The likelihood that such harm would occur The feasibility of an alternative design The cost of an alternative design The disadvantage of an alternative design Other relevant Factors o Problems with Risk-Utility Costs - Almost always require the use of experts to prove a defective design. This adds considerably to the cost of litigation and undoubtedly prices moderate and minor injury cases out of the system even if they are meritorious Undervaluing Human Concerns Overemphasizes economic consideration over moral and human value concerns Balancing Incomparable Factors MORAL V. ECONOMIC CALCULUS - The balancing of risk-utility factors works appropriately only if both sides of the equation can be quantified in the same or equivalent units of measurement. All should be done on monetary terms but this is rarely done. In practice juries can only make a rough estimate. o Analysis Using the Third Restatement of Torts 3d (2b) Case: Vautour v. Body Masters Leg Press Injury Def: Product is defective when foreseeable risks of harm posed could have been reduced or avoided by the adaptation of a reasonable alternative design by the seller. What is reasonable alternative design o Assessment of a product design in most instances requires a comparison between an alternative design and the produce design that caused the injury, undertaken from the viewpoint of a reasonable person. o Qualified expert testimony of the issue suffices even though the expert has provided no prototype. Nature of Proof: Qualified Expert Testimony as RAD Exceptions: Reasonable alternative design requirement does not apply when the product design is manifestly unreasonable (comment e) Not required to produce expert testimony in cases which the feasibility of a reasonable alternative design is obvious and understandable to laypersons (comment f) Problems with Theory: 71

For suits against manufacturers who produce highly complex products reasonable alternative design requirement will deter the complaintant from filing suit because of high costs of finding an expert to testify. Defenses: State of the art Representing the design as state of the art at the time of sale and that there was no feasible safer alternative design available at this time. State-of-the-art at the time of sale controls and that evidence of the changes in the art after the sale are not admissible. Ancillary Issues: o Emphasize the product, not the conduct o Contributory negligence o Whole Distribution Chain (SL) o Hindsight/Foresight Issues Hindsight test reasonable for foresight approach Evolution of with all that I know now does the inherent danger outweigh the usefulness. Foresight ISSUES Green v. Smith LATEX GLOVE Doesnt matter of when/how they know of the defect o Put the market, receive profit, discourage liability to store profits to pay for defects. o Manifestly Unreasonable Design Under Restatement 3d Exceptions: Proof is not required where the product design is manifestly unreasonable. I.E. Toys with low utility where RAD would not be required, such as exploding cigars are toy guns that shoot rubber pellets.

Design DEFECT III Barker v. Lull California Hybrid Test Barker v. Lull High-Lift loader construction accident o Alternative Tests Consumer Expectations Risk-Utility Ultimate issue calls for the careful assessment of feasibility, practicality, risk and benefit, not on the basis of CE Jury to consider: o The gravity of the danger posed by the design o Likelihood such danger would occur o Mechanical feasibility of a safer alternative design o Financial costs of an improved design o Adverse consequences to the product and to the consumer that would result from an alternative design o Burden Shifting under RU Analysis Because of the feasibility, cost of alternative design to plaintiff One plaintiff establishes a prima facie case. o Hindsight Perspective

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The jury determines that the products design embodies excessive preventable danger or the jury finds that the risk of danger outweighs the benefits of such design. Akers v. Kelley Co. (Spring loader for trucks) Whatever the user expected from that contraption, it certainly was not that. Consumer expectations can be expanded beyond common experience accidents The use of expert testimony will supplement. West v. Johnson and Johnson (Tampon) Toxic Shock Bacteria Technical yes, but within consumer expectations that you wont die from the use of a tampon. Product, not manufacturer focused. Choosing the Appropriate Test SOULE CAMERO TIRE SMASH o Choice between RU and Alternative Proof When is the consumer expectations test applicable and when is the riskutility test required o CA: Choice between the two is a LAW (COURT) choice o All states have to draw lines o Evidentiary problems similar McCathern: RU under 402A VERY TALL SUV falls over on dirt road o Proof: Put on Engineering Evidence Consumer Expectation Evidence o Heaton v. Ford Motor Consumer expectation of how a product should perform will be within the realm of jurors common experience. However when they are not so common the court can allow for additional evidence that the magnitude of the products risks outweighs its utility which is often demonstrated by proving a safe design alternative that is practicable and feasible. Restatement 3d (2b) o Safer Alternative Design o Prototype not necessary o Manifestly Unreasonable Design o State of the Art Defense (ABOVE)

Warning and Product Information Defects Focus on the product this helps find the defect Manufacturers have a duty to warn users of latent risks and also risks that the users may not fully appreciate. They also have a duty to provide instructions on how to safely use the product. Warnings call attention to danger; instructions describe procedures for proper and safe use. Instructions are part of the design. Warnings defect a question of fact Jury Question Method of attack: (using Hairspray case) 73

o Start with design defect (Valve malfunction) Use malfunction proof (if any) No evidence? Present and proceed on a malfunction theory I dont know what this thing is suppose to do but I know its not suppose to blow up Misuse? Was the use of the product foreseeable I.E. Did the manufacturers warn against it? (Proximate cause issue) Foreseeable (Warning against it?) o Warning Adequacy Analysis Was the Warning Adequate? Warnings: o General Warnings Functions of Warnings: Reduce accidents by influencing users to act more carefully then they would if they did not know the risks Provide risk information to users so they can make an informed choice on the use of the exposure to the product. Warnings must be adequate to deal with the dangers presented. Criteria (ELEMENTS) Explicitness Comprehensibility Clarity Conspicuousness Means used to warn Defect Considerations Defective product Case: Nowak v. Faberage Hairspray puncture lights fire o Plaintiff may prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable secondary causes for the malfunction Rogers v. Johnson and Johnson o The misuse must be extraordinary and whether the act is reasonably foreseeable is to be determined by following the sequence of events and looking back from the harm to the negligent act rather than by considering whether the D should prospectively have envisioned the events which unfolded and caused the accident Baker v. Outboard Marine Corp. Adequacy of Warning Factors: o Explicitness of the warning o Whether the warning language is comprehensible to the typical users o The clarity of the warning o The conspicuousness of the warning o The means used to convey the warning A manufacturer may be liable for the failure to adequately warn where its warning is not prominent and calculated to attract the users attention to 74

the true nature of the danger to its position, size, or coloring of lettering Spruill v. Boyle-Midway A warning may be found to be inadequate if its size or print is too small or inappropriately located on the product Holmes v. Sahara Coal Warning must be sufficient to catch the attention of the persons who could be expected to use the product, to apprise them of its dangers and to advise them of the measures to take to avoid these dangers Dambacher by Dambacher v. Mallis Adequacy of warning is a question of fact for the jury. Doughtery v. Hooker Expert testimony is admissible on the issue of adequacy. Causation Rule: Liability for failure to warn exists when there is sufficient evidence that a warning may have made a difference. Two step process involved in establishing: o Prove the product caused the injury o Prove a warning would have altered the users behavior as such to avoid the accident. State Presumption Rule: Half the states have adopted the presumption an adequate warning would have been read and heeded. The presumption can be overcome by contrary evidence which is on the defendant. Even when a warning is provided a failure to read it does not necessarily bar recovery where the plaintiff is challenging the adequacy of the efforts of the manufacturer to communicate the dangers of the product White v. E.G.M. Safety Corp. An ineffective warning is no warning at all and a manufacturer cannot rely upon a warning that was insufficient to prevent the injury. Spruill v. Boyle-Midway Incorporated. Extremely Hazardous Materials Case: Macrie v. SDS Biotech Downstream squash toxic material Highly Dangerous Product When adequate warnings are necessary to prevent a product from causing a high risk of grave physical harm, the failure to provide warnings with the product may cause it to be defective even when doing so may be difficult and expensive Foreseeability Standard If a manufacturer knows or should have reason to know that downstream distributors are not giving/given adequate warnings to the end user of a product the bulk manufacturer may be liable for failing to take action This is the Restatement 3d standard Negligence approach to warning defect claims and requires foresight of the risk to be established by the plaintiff. Statutory Considerations (DEFENSE???) Case: Ramirex v. Plough, Inc. Reyes syndrome from aspirin child. SPLIT: o Courts have generally not looked with favor upon the use of statutory compliance as a defense to tort liability This is supported by the Second Restatement Standard defined is a minimal standard, applicable to ordinary situations contemplated by the legislation. The minimum 75

does not prevent a finding that a reasonable person would have taken additional precautions where needed. o BUT there is some room in tort law for defense of statutory compliance Where the evidence shows no unusual circumstances but only the ordinary situation contemplated by the statute or administrative rule then the minimum standard prescribed by legislation may be accepted by the triers of fact or by the court as a matter of law. EX: FDA regulations do not require any language other than English. Duty: Duty is basically Negligence o No theoretically Necessary o California Risk must be reasonably knowable Theoretically: It is the hindsight standard Practice: Uses foresight. Reasonably knowable at the time of marketing the product o Pharmaceuticals Restatement 402A, Comment K Exempted unavoidably-unsafe products from the general rule of strict liability. So long as a product could not be made safe without changing its fundamental characteristics, sale of the product would not lead to liability if the sellers supplied adequate warning of dangers. Exceptions: The item must be properly prepared The item must come with adequate warnings This is an affirmative defense against defect claims. Applied case-by-case Minority Jurisdictions use it as a blanket exception Bryant v. Hoffmann Case. Nature of Liability o California: Strict Liability o Restatement (3d) 2(c) Negligence- Liability for failure to warn should be a risk-utility analysis. Product will be deemed defective on the account of inadequate instruction or warning when foreseeable risks of harm imposed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product not reasonably safe. Subsidiary Issues o Learned Intermediary Rule Manufacturers duty in such cases (prescription drugs) is generally limited to warning the prescribing physician rather than the patient. The physician is viewed as a learned intermediary between the manufacturer and the user. Restatement (3d) 6(d)(1) Exceptions: Mass inoculations Pharmaceutical contraception o Language/Illiteracy Difficulty in communicating warnings and instructions. Many people who are unable to read hide their illiteracy. 76

Court considers that because the illiterate person cannot read there is no causal connection if a better warning was reasonably required. How about POISON STICKERS? Risk-utility analysis should be applied Thomas v. American Home Products Post-Sale Warnings o Case: Lovick v. Wil-Rich Wing of a farm cultivator. Existence of a Duty Restatement (Third) Products Liability 10 o Uses a reasonable person test to determine liability for failure to warn following the sale, and articulates four factors to guide the determination of the reasonableness of the sellers conduct: o A reasonable person in the sellers position would provide a warning after sale if: The sellers knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and Those to whom a warning might be provided and can be identified and can reasonably be assumed to be unaware of the risk of harm; and A warning can be effectively communicated to and acted on by those to whom a warning might be provided; and The risk of harm is sufficiently great to justify the burden of providing a warning. o Standard: Court agrees negligence is the appropriate theory to resolve post-sale failure to warn product liability claims. o Recognizes the analytical merger of strict liability and negligence in determining liability for failure to warn. o Jury Standard: Should focus directly on the post-sale duty warn versus a general foreseeability duty. Jury should use the factors in the 3rd restatement. o OPEN and Obvious Even when something is open and obvious and does not require a warning, a duty of care still exists when the harm can be anticipated. o Recalls: Section 11 of Restatement (3d) Liability for failure to act reasonably in undertaking two circumstances: When a government directive requires the seller or distributor to recall the product. When a seller or distributor voluntarily undertakes to recall or retrofit a product. Punitive Damages - may be raised if defendant is indifferent to the risk of serious injury.

Causation (BUT FOR CAUSATION) Plaintiff must present sufficient evidence that the allegedly defective condition of the product was a but-for cause or a substantial factor in contributing to the injuries Two Steps: 1. Prove the product caused the injury 2. Prove a warning would have altered the users behavior as such to avoid the accident. 77

Basically the same as negligence Circumstantial Evidence: Malfunction Proof Warnings: Heeding Presumption o 402A Comment J Where a warning is given a seller can assume it will be heeded o Important if the consumer exposed to the danger dies o Heeding presumption can be rebutted If the plaintiff smokes, does drugs, drives occasionally without a seatbelt General unconcern with the risks/warnings in society. Market-Share Liability o Plaintiff cannot identify which manufacturer among several produced the product that caused the injury. Several courts have developed a theory of market share liability to deal with this problem. Successor Corporation Liability o Basic Rule: Duty follows the entity, not the assets o Shareholders of a dissolved company are generally immune, absent fraud, from the liabilities of the dissolved company. Three ways: A sale of assets the longstanding law is that the sale does not result in the purchaser assuming the predecessors companys existing debts and potential liabilities Statutory Merger typically provide that a merger does not result in the successors assumption of debts and liabilities of the predecessor Purchase of a controlling number of shares of stock The controlled company still remains, and the liabilities continue against the assets of the controlled company. Exceptions: The purchaser can voluntarily agree by contract to assume the debts and liabilities If the sale of the assets is less than market value and purpose is to defraud creditors or avoid liabilities, successor liability can be imposed. De facto mergers may occur outside provisions even when the transaction is described as a sale of assets if: o There is a continuation of management, employees, etc o Shareholders of the controlled corporation are brought out with shares of controlling corp. o The asset-selling corp. ceases its business operations and the assetbuying corporation assumes those liabilities necessary for uninterrupted business operations. o Continuation exception Continuation of ownership/management under a different company name. o Minority product line Minority rule a successor company assumes liability for predecessor products when it continues to manufacture a predecessors product line.

Scope-of-Liability Foreseeable standard for users of the product Manufacturers are strictly liable only if the plaintiff was engaged in a foreseeable use of the product at the time of the accident. Foreseeable use falls into foreseeable risk in many cases. o Trynor Cases 78

o Chair case Bystanders This is a scope of liability question that many courts have treated as a policy or duty question for sound reasons. o Physical Harms 402A No position (date of writing) (1960s) Post Greenman Foreseeable Bystanders (car runs over a pedestrian) o Emotional Harms Pasquale Clutch killed wife Emotional Harm to Husband Court denied ED instruction Husband not a direct result of defect

Damages Leading Case Seely v. White Motor Company Leading Case held that preserving a proper role for the law of warranty precludes imposing tort liability if a defective product causes purely monetary harm. Recovery of Economic Losses Fundamental damages doctrine for physical and emotional harm are the same in strict liability as they are in negligence. Bystander emotional harm recovery has been an issue of concern in strict liability. RULE: A party may not recover for pure economic loss based on strict tort liability principles. o Restatement (3d) 21 Excludes recovery in tort for damage to the product itself o However distinction lies when the component part produced by a different manufacturer damages the larger whole. What is the distinction of the whole? (Restatement 3d 21 Questions) RULE: Plaintiff may recover from lost earnings and lost earning capacity arising out of physical injuries from a product defect. East River Steamship Corp. Transamerica Delaval Turbine Steamship RULE: Manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself. RULE: The tort concern with safety is reduced when an injury is only to the product itself. When a person is injured, the cost of an injury and the loss of time or health may be an overwhelming misfortune and one the person is not prepared to meet Escola RULE: When a product injures itself, the commercial user stands to lost the value of the product, risks the displeasure of its customers who find that the product does not meet their needs, or experiences increased costs in performing a service. o Contract law, and the law of warranty in particular are well-suited to commercial controversies of the sort because parties set their own agreements. Punitive Damages Wanton or reckless conduct by defendant concerning an applicable issue to the product Available in failure to warn Fraud, misconduct, violation of safety standards etc. Owen May be assessed if injury is attributable to conduct and flagrant indifference to public safety. Defenses to Strict Liability 79

Based on Plaintiffs Conduct Restatement (3d) 18 Death - Product sellers may not disclaim liability or limit remedies for personal injury and death. Case: Whitehead v. Toyota (Enhanced injury/comparative fault liability seat belt)

Modified Comparative Fault o McIntyre v. Balentine Adopted a system of modified comparative fault. Majority - Rule: So long as a plaintiffs negligence remains less than a Ds negligence the plaintiff may recover; in such a case, plaintiffs damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff. A plaintiff to recover so long as the plaintiffs responsibility is not greater than that of the defendant. Policy o Two principle reasons for adoption of the doctrine: To encourage greater care in the manufacture of products that are distributed to the public To relieve injured customers from the burden of proving negligence on the manufacturers part. Restatement (3d) 17 Recommends that all plaintiff misconduct be the subject of comparative fault. Minority Decline to apply CF to SL actions. Smith v. Smith Strict liability is an abandonment of the fault concept in product liability cases. The question of whether the manufacturer or seller is negligent is meaningless under such a concept; liability is imposed irrespective of his negligence or freedom from it. Modified Comparative Fault in Enhanced Injuries Majority View Fault of the defendant and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is cause in fact and proximate cause. Conclusion Comparative fault in strict products liability actions as in other actions constitutes affirmative defense. Pharmaceuticals Restatement 402A, Comment K Exempted unavoidably-unsafe products from the general rule of strict liability. So long as a product could not be made safe without changing its fundamental characteristics, sale of the product would not lead to liability if the sellers supplied adequate warning of dangers. Exceptions: o The item must be properly prepared o The item must come with adequate warnings This is an affirmative defense against defect claims. Applied case-by-case Minority Jurisdictions use it as a blanket exception o Bryant v. Hoffmann Case Types of Defenses: 80

P Ordinary Negligence Failure to Discover of Guard against defect Assumption of risk o Express assumption of risk Waivers are prohibited o Manufacturers cannot waive product liability Misuse Fact issue (affirmative defense invented by courts) o WORKPLACE context: Distinguish use/misuse Impending safety device (seller liable for choosing such a devise) Designs the machine to cut corners.

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