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a. Trespass i. Vosburg v. Putney(Wis. 1891) 1. Liable/Not Liable General verdict 2. Questions Special verdict (defendant prefers this b/c it allows the defense to attack plaintiffs argument) a. Injury before coasting (sledding) in Jan 1889 b. Kick occurred/Exciting cause c. Not lame/injury healed/not diseased d. Did not intend to cause harm CORE ISSUE i. Intent to harm is the essence of an assault ii. Intent to kick (act). Plaintiff must show either: 1. Unlawful act (classroom) a. Defined by location - environment affects whether something is unlawful b. Implied license/consent (i.e. playground) 2. Defendant is in Fault unintentional and implies negligence tort (foreseeability)

Rule: If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Application: Hence, if the kicking of the plaintiff was unlawful (yes, b/c it took place in classroom, not on the playground), the intention of defendant was unlawful. Damages: Defendant takes the plaintiff as he finds him. Damages make the plaintiff whole. So Putney must compensate all damages for Vosburg: 1. Utilitarian argument for defendant: (2 policy reasons for deciding case in favor of Putney) a. Cheapest cost avoider b. Fault (Corrective Justice) Argument for plaintiff: a. Rights view shouldnt have to take further protections b/c he has right to bodily protection b. Strict liability ii. Garratt v. Dailey (Wash. 1956) 1. Intent to act with certainty of consequences 2. 5-year old boy pulled the chair out from an arthritic woman and knew with substantial certainty that she would attempt to sit in the place where the chair had been leading to fractured hip when she fell 3. Restatement of Torts: Intent A person intentionally causes harm if the person brings about that harm either purposefully or knowingly: a. Purpose acts with the desire to bring about that harm b. Knowledge - engaged in action knowing that the harm is substantially certain to occur. i. Vosburg didnt have knowledge. Garrett had knowledge. TRESPASS (intentional tort) Traditionally under common law, negligence has age limits. Since this case involved children, the court stretched intentional tort (no age limits). (1) Foreseeability of injury a. Harm (Generally) matter of causation b. Damages the degree of damages was not foreseeable (i.e. hit someone in the nose, but person turns out to be a nose model) i. egg shell skull rule wrongdoer pays all. Knowledge on part of Defendant - Defender takes plaintiff as he finds him


Downloaded From Rights of Mr. Eggshell fairness, consent. DEONTOLOGICAL, ABSOLUTE MORAL ARGUMENT Should he have a helmet/protection? cheapest cost avoider. CONSEQUENTIAL, UTILITARIAN, ECONOMIC ARGUMENT. Knowledge on part of Plaintiff does plaintiff know his condition?

1. 2.

Liability first Damages ( does not care about foreseeability) Foreseeability

Spectrum of Intent

Unintentional Act

Intent to Act - Dougherty

Intent to Unlawful Act Vosburg (S/L)

Intent to Act w/certainty of consequences - Garratt

Intent to Harm (purpose)

TRESPASS TO LAND Dougherty v. Stepp Dougherty falls under Intent to Act on the Spectrum (1) no damage needed (2) no intent to be unlawful just have to intend to step on the land You are awarded nominal damages NOMIINAL DAMAGES ($1) are needed so that you can impose an INJUNCTION! TRESPASS TO CHATTELS Difference between real property and chattel = chattel is MOVABLE! (1) Damage Lawsuit (2) No Damage SELF-HELP using reasonable force even against harmless interference a. For unauthorized use i. To be liable, must show harm to the possessors materially valuable interest in the physical condition, quality or value of the chattel or if possessor is deprived of the use Blondell v. Consolidated Gas Co. It was more useful to treat it as real property than chattel because the house is unmovable, resulting in an injunction Intel Corp. v. Hamidi Actual injury must be shown even for an injunction. Intels argument for an injunction was that you cant move their cyberspace. But Intel can filter its e-mail. Theory of self-help behind chattel still applies in the Intel case. Spectrum of trespass for Intel

Mandatory Open (mail) Lemley Lessig

Open Default, Telephone, Owner can close for specific (i.e. do not call) Epstein or compromise

Real property, Closed system, (need permission)

OVERVIEW: Trespass: (1) Physical, Land - intent to act alone is sufficient for liability (2) Intangible, Land physical damage caused by intangible intrusion needs to be shown (b/c trespass can be subjective and impose too much liability)

Downloaded From (3) Chattels requires some substantial level of damage. Involves concept of moveability and self-help. You can just move [it] away to prevent damage. DEFENSES TO INTENTIONAL TORTS I. CONSENT Mohr v. Williams (Minn. 1905) Consent right ear Disease left ear (no consent) assault (no threat so does not apply) and battery (unlawful touching with no consent) Jury needs to prove that doctor had an unauthorized intent to act unlawful because there was no consent Battery touching defense consent Battery unlawful touching Difference between a tort and criminal act: - TORT unlawful act - CRIM unlawful intent (intent to harm) Types of Consent (1) EXPRESS (2) IMPLICIT a. Vosburg playground (context/environment determines consent) b. Necessity i. Necessity - Life-threatening/health 1. Imminent or immediacy of danger ii. Transferred consent - Patient is unavailable iii. Broader implied consent (contract) - Would have consented had she been asked. Kennedy v. Parrott Law wants this rule 1. unknown ailments 2. efficiency not practical to wake up patient in surgery and ask for permission iv. Contract can push limits implied by broad consent (p. 23). Problems: 1. Breadth - blank check to doctor [sign away liability] a. why life/health/bodily integrity 2. Coercive element/unfair bargaining - your choices are limited but NOT duress (3) CONSENT of GUARDIAN Mohr v. Kennedy (1) Area/Scope of Injury exceeded in Mohr (looking in left ear when should have been operating on right) (2) Seriousness larger cost in Kennedy to open up patient again after appendectomy Mohr scope of injury was exceeded when doctor looked in another ear Kennedy can imply broader consent Washburn doctor clearly liable for operating on another part of the spine Medical Malpractice (1) battery (consent) operation is different (2) negligence Canterbury v. Spence (1) Autonomy argument patient has right to know whats happening to his own body (2) Cost-Benefit Analysis. Doctor knows best. [Doctrine: If patient is irrational] medically necessary to hide the risks because patient might be irrational and act against their own interests Standard in a. Scope of disclosure material risk to reasonable person (Risk = Probability * Harm) deserves Canterbury reasonable explanation and rejects caveat emptor

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Hudson v. Craft (1) 2 boxers a. Majority Rule can sue i. Breach of Peace (Criminal, State is a party) Promoter complicates matters ii. If you win the match, you get sued b. Minority Rule consent nullifies action i. Consent ii. Plaintiff purposely gets beat up iii. Volenti volunteer suffers no wrong iv. Pari Delicto equal in fault v. Illegal act broke the law I. Consent (1) Express (right ear) (2) Transferred (spouse, physician) (3) Necessity (imminence) (4) Implied broader consent a. In the Mohr (ear) case, they dont find broader consent but in the Kennedy (cyst) case they do. One historical argument is that Kennedy is a more recent case. The other is scope why was the doctor looking in Mohrs other ear versus Kennedys abdominal operation where the cyst found in the midst of the operation. (5) Contract can be broad. To guard against abuse: a. How broad the contract is (look at notes) II. Informed Consent (Canterbury): (1) Cost-benefit (2) Gives the patient autonomy (3) Given the costs and the autonomy interests, what about a two-tiered system? You can buy informed consent but if you dont, health care costs are cheaper. This has controversial aspects since only the wealthy would be able to be informed about their health. III. Consent to Illegal Acts (Boxing) (1) Majority rule loser can sue the winner (2) Minority rule no recovery a. Protected Class Statute is supposed to protect the fighters because the promoter is far more culpable. (3) From a deterrence rationale, the majority rule seems to work better, encouraging both parties not to harm the other person too severely. On the corrective justice rationale (consent, volenti, pari delicto), the minority rule works better. Why should we allow one wrong doer to suffer when both were wrong? (4) Rule for the promoter liable regardless. Under majority, promoter can be viewed as the principal of the defendant (winner) because he hired the winner who beats up the plaintiff. Winner has a quasiemployee/employer relationship with promoter. Employer is responsible for actions of employee. Under the minority, the protected class statute would put the two fighters in an equal position and provide for their protection promoter is at fault. II. Insanity Defense Treat the insane person as if they were not insane at all. McGuire v. Almy Are the insane liable: For intentional torts? Yes if they have intent to act. They are strictly liable for the damages they cause. For negligent torts? Its split. McGuire does not deal with negligence, only intentional torts. Why would we want strict liability? (1) you would want the caregiver to be careful of the estate and restrain/control insane person (2) administrative cost hard to prove insanity (intentional) (3) analogy to services

Downloaded From (4) fairness between two innocents, the cause of harm should pay (5) incentives for caregivers a. potential for abuse by patient credibility (alone with patient) Strict Liability Mc Guire


insanity defense

Intent to Act



Intent to Harm

Strict Liability for insanity defense: Pros: corrective justice argument; deterrence/incentives; administrability (courts find it hard to tell who is insane or not) Cons: moralistic view of justice III. Self-Defense Courvoisier v. Raymond If Courvoisier is trying to shoot Raymond and instead hits someone else, would it still be self-defense? Morris v. Platt if you reasonably believe you are in danger, you can shoot the assailant and accidentally shoot the bystander. Can you purposely shoot a bystander if you think its going to be helpful to you? No. Platt says no, cant intentionally try to shoot a bystander just because you think it will be helpful. Must honestly think that you are in danger. Subjective individual () thinks - no fault - hard to prove - fault issue (expects people to be reasonable) - moral culpability Objective Reasonable person thinks (he thinks) - Courvoisier standard - Societal interests Actual Danger (reality)

You could compare this spectrum to the types of torts: intentional (subj.) negligence (obj.) strict liability (reality). Necessity Ploof v. Putnam Necessity Defense: (1) Is a Defense to trespass if the Dockowner sues for trespass (they cant sue you) (2) Provides a Privilege to dock a. If thrown out, you can sue the dockowner (you can sue them) How is this case different from the cows or highway example in the Ploof opinion? (1) preservation of human life (more necessity) (2) takes longer (3) options (4) damage issue Vincent (5) dock owner specifically tells the ship owner to get off the land

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Why do we have a specific doctrine for self-defense when we have necessity? Self-Defense often involves people and some bodily integrity. When you hurt people, you can only attack the actor/assailant. You can hurt third parties only accidentally. Necessity is usually about property. In necessity third parties can actually suffer (i.e. in conflict between storm and Ploof, Putnam has to suffer damages even though he is a third party). Vincent v. Lake Erie Transportation Co. - forced contract. - Bilateral monopoly important contractual dimension. Price gouging can take place. - Boat owner has a necessity defense yet was found liable. Necessity (property) (1) Defense a. Complete b. Incomplete (if you cause damages, then you must pay) (2) Privilege Unjust enrichment (1) 1 rope/lash again intentional liable (incomplete defense must pay) (2) 100 rope /titanium not liable (dock pays)



Intent to Act

Intent w/ certainty of consequences

Intent to Harm

In Vincent, we can employ two rules: (1) Liability Rule (Boat Pays) boat insurance (2) No Liability (Dock Pays) a. Cost pass-through insurance b. Potential problem when the people that are paying the cost impose on people that wont benefit from the pay, you wouldnt want the no liability rule.

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HISTORICAL BACKGROUND: Strict Liability vs. Negligence - no liability without fault - vs. Strict Liability (pay for all harm you cause regardless of whether its your fault) - 17th/18th century strict liability - 19th century negligence - 20th century negligence with strict liability - Today sea of negligence with pockets of strict liability What caused the move from strict liability to negligence? Theories: (1) internal shifting within the doctrines of law. Practice of law needed to change (2) external negligence was used as a subsidy (Horwitz) a. if a factory damages the farm next to it, pay for all harms in strict liability or pay only for unreasonable harm in negligence. b. government wants to transfer some money from the factory to the farmer c. sharply criticized Scott v. Shepherd (1773) squib case Trespass harm was direct Case harm was consequential or indirect Issue: Whats a direct harm? Nares: it was an unlawful act, so its sufficient for a trespass (Vosburg precedent) Blackstone: injury is consequential because its caused by a third party, not the defendant. Third party actors with intent are in the picture. Uses an analogy with a rock but its different with a lighted squib that will imminently explode. It: 1) provokes reaction a. unlawfulness 2) damage is caused by the explosion not because the squib is a projectile Whats wrong with claiming self-defense: - unreasonable action - third party (assailant, victim relationship only). When theres a problem with the third party, where do we turn? NECESSITY. Whats wrong with necessity: - unreasonable in the way defendant behaved - Vincent v. Lake Erie you have to pay anyway so this doesnt work either. DeGrey: question is whether the act is a direct and immediate act of the defendant; it is. One who does an unlawful act is considered the doer of all that follows, if done with a deliberate intent. New direction and new force are not a new trespass. Willis and Ryal acted out of necessity, not free agents. Brown v. Kendall (1850) dogs case establishes negligence for the first time Watershed case because it establishes negligence as a rule for the first time. No intent to act unlawfully, no intent to harm inadvertent and unintentional What rule does Shaw employ for trespass? Greenleafs requirements: 1) intent to commit an unlawful act intentional tort 2) defendant was in fault negligence a. What would a reasonable person do in this situation? Plaintiff loses if: a) defendant was not using ordinary care (negligence) OR b) plaintiff was not (contributory negligence) OR c) both Rylands v. Fletcher In the midst of these negligence cases, we find that strict liability is not done just yet.

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Is this a trespass? Bramwell liable because the defendant had no right to send water to the plaintiffs property. Even if it was unintentional, defendant is liable (strict liability). Workers knew about the coal columns vicarious liability (Hudson v. Craft). Martin uses trespass/case forms. No liability because its case. Not liable in action for trespass because its case (and they filed for trespass). Conclusion in lower court: no trespass Blackburn he does NOT care about trespass or case. IMPORTANT OPINION. If defendant brings things onto land, then hes liable for any damage it may cause to others (Keep at your peril Strict Liability) Collision cases negligence standard. Reason why negligence is applied: because everyone on the highway imposes risk on everyone else. Accidents are bound to happen. As long as you act reasonably, obeying the rules of the road no liability because reciprocal risk. If the person drives like a maniac, he should pay because hes imposing more risk than others, unilateral supposition of risk. Rylands strict liability. Bringing things onto your land is imposing risks that other people are not imposing on you. Strict Liability to Negligence to sea of negligence with pockets of strict liability (escaping thing, product liability, keeping wild animal in your apartment) From Trespass and Case Case based on fault becomes Tort




Intent to Harm

Intentional Natural Law 18 and 19 century Common Law Trial & Error Realist 1900s, 1920s Justice Blackburns interpretation has a distinction between collision and land use. In automobile accidents, when using the strict liability, its hard to find who caused what and thats why we use negligence. Were all imposing risks b/c were all moving objects and run the risk of colliding into one another. With negligence, you look for the added risk, non-reciprocal risk. Land is static so you can use strict liability. You bring stuff here; you pay (all escaping things). Lord Cairns sharpens Blackburns standard with introducing unnatural and natural use of land (quasi-negligence standard). Unnatural is essentially unreasonable. Actual construction methods nonnegligent Building reservoir at all negligent In the United States, the courts were far more pro-industry and rejected Rylands. Degrees of Culpability:
th th

Absolute Liability Cause Harm You Pay (Involuntary)

Unintentional No Fault (SL) Defendant contributes (Neg)

Unintentional Fault (Neg)


Intent to Harm (intentional tort)

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3. 4.

Societal Progress a. Rylands Found to be primitive in Brown v. Collins b. Public good to boilers - Losee v. Buchanan Right to have boiler shared a. Rich/industrial ppl have boilers and poor people dont distributional unfairness i. Negligence incentives FAULT [= expected damages - $1] ii. Strict liability incentives Allocative efficiency Distributional Fairness unfair if the costs from benefiting the society if one or two of us had to bear the cost. AE (allocative efficiency) Powell have factory account for all costs Losee needs boiler (subsidy) DF (dist. fairness) Dont stick one person with the bill Powell make $$, pay for harm caused Losee plaintiff has benefit so you cant complain

Strict Liability


Powell v. Fall - benefits of cars were not well-established - Strict Liability - if the reward he gains from the use of the machine will not pay for the damage, it is mischievous to the public and ought to be depressed Externality - harms caused to other people. Internalizing costs from an externality if your boiler breaks down and damages neighboring land, you have internalize the costs of the damage. (1) Fairness cant make money without compensating others (2) Cheapest cost avoider argument lay the cost on those who are most likely to prevent the injury (3) Factory - $500; Explosions cause $1000 damage to neighbors property. If you dont impose those damages on the factory, the wealth of society decreases. Factory should be liable so that they can choose most efficient method. If damages are too much to compensate to society, its not worth it and theyll stop. If the damages are little enough (i.e. $100), then factory will keep on going. Vincent v. Lake Erie shows same reasoning. Why would we want boat owner to pay the dock owner? Boat is the factory and the landowner that suffers the explosion is the dock owner. Holmes excerpt: - administrative cost argument of why we should have negligence over strict liability - dont want to use court system as a form of insurance because the administrative costs of lawsuits are so high (1) expensive machinery a. Critique if its so expensive, why dont we let the parties decide? Court costs. (2) insurers are better or cheaper a. private industry is usually more efficient b. BUT you cant get insurance for everything so theres a lack of coverage (i.e. unpredictable things) c. Government economies of scale Stone v. Bolton Why doesnt Rylands cover this case? (1) Foreseeability maybe not as dangerous (2) Profitability (3) More public benefit (4) Land (passive easy to impose strict liability) vs. Person (active/collision negligence) (5) Cricket is a reasonable use whereas reservoir is an unreasonable use. Natural?

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Why are the grounds and not the player being sued? (1) Player theory of liability is the player committing an intentional tort? a. No intent to harm b. Not negligent c. Maybe you can get some sort of SL but it would be difficult to recover (2) Club has more money than the player Jenkins rules for plaintiff defendant is negligent: - foreseeable because they knew about the risk from past incidents. (vs. possible) (1) take precautions (2) dont play cricket there if you cant/dont want to pay damages (3) just pay damages Reid: - foreseeable and substantial Radcliffe - reasonable person Stone (1) probability 6-10 (2) harm could be killed (got hit)

Bolton/Club 1 in 30,000 0 hurt previously (1 hurt)

What is wrong with this test of negligence? Doesnt take into account all costs of spectators Rule of Negligence (1) foreseeable quasi-strict liability (2) foreseeable and substantial (3) BPL standard. Burden/cost of harm; probability of harm; loss/harm

AE (allocative efficiency) Strict Liability Cost internalization

DF (dist. fairness) Dont allow A to make profits when B is suffering harm Not fair for B (victim) to basically suffer for all of society Mutual Risk



Distinction between personal injury (Bolton involves mutual risk) Negligence AND property (Rylands, trespass) Strict Liability Personal Injury usually has to do with mutual risk because people are moving and moving things tend to collide. We usually care about peoples well-being more so why would we impose a lesser standard (negligence) for that than property? This is the general rule. Strict Liability Impose foreseeable risk know that a risk exists and if it materializes and you havent done anything to stop it, you are found negligent (P) Foreseeable and Substantial (P,L) BPL - cost Modern Negligence


Downloaded From Kaldor-Hicks allocative efficiency Pareto allocative efficiency and distributive fairness Given: A and B each own of the world thats worth $10. Total amount of wealth = $20. Scenario 1: A has a non-negligent factory operation. A now owns $20 and B has $7. Total amount of wealth = $27. This world is now K-H efficient. Pareto efficiency would mean that A has to transfer $3 to B so that he is no worse off than at the beginning. Scenario 2: A engages in a non-negligent factory operation. A ends up with $12 and B has $5 and total wealth is $17. A moves $5 to B to make him no worse off than before. States 1 scenario 1 under the rule of negligence is ONLY allocatively efficient because it comes at the cost of B 2 scenario 1 under the rule of strict liability is allocatively efficient and distributive fair 3 scenario 2 under the rule of negligence is not allocatively efficient or distributive fair 4 scenario 2 under the rule of strict liability is not distributive fair but allocatively efficient because he shuts down the factory. Strict liability rule is much better than negligence because State 2 and State 4 is allocatively efficient and distributive fair (2) and allocatively efficient (4) Negligence under state 1 and 3 not distributive fair in 1 and neither in state 3


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THE DUTY TO RESCUE Question: Whether there is a duty at all Situation: Baby face down in a puddle Common Law Rule: No duty to a stranger. If its your child, have to pick up the baby. If its not your child, you dont have a duty. Buch v. Amory Manufacturing Co. NO DUTY to a STRANGER 44 A. 809 (N.H. 1897) Facts: Boy gets hand caught in machine at factory while visiting his brother who works there. Factory warned him but boy could not understand English. 1) Warning warning given 2) Eject boy off premises a. Boy doesnt know (hidden danger of machine) b. Child doesnt understand danger c. Doesnt speak English Trespass owner has a right to eject the trespasser Holding: Court rules that theres a moral obligation but no legal duty. Rule: The rule is no duty to a trespasser. Case might have been identified improperly if the boy was there to learn as an apprentice, in that case he is not a trespasser. The following are the ONLY duties to the trespasser as decided by the court: 1) duty to not use unnecessary force a. right to prevent harm to equipment 2) duty not to engage in intentional acts of violence (no intentional torts) 3) duty not to entice kids the attractive nuisance law Did the plaintiff owe any duties to the factory? For destroying the machine? Hurley v. Eddingfield 59 N.E. 1058 (Ind. 1901) - Rule: Doctor has no duty to render services or practice medicine for every patient. - Argument that the doctor has a duty: longstanding relationship between doctor and patient. 1) detrimental reliance potential argument that doctor has a duty Yania v. Bigan (Pa. 1959) Facts: Decedent and defendant were operators of nearby strip mines. Yania jumped into the cut and drowned. Complaint charged Bigan with 3-fold negligence: 1) urging, enticing, taunting Yania to go into water no actionable negligence because it was a mental, not physical, impact 2) failing to warn of a dangerous condition on the land Yania was well aware of the obvious dangers of jumping into the water 3) failing to rescue moral but no legal obligation, unless Bigan was legally responsible for placing Yania in that situation. Yanias fault for acting dangerously/recklessly like WMAA case last clear chance was the defendants BUT since the plaintiff had a higher level of intent, o Yania, by intentionally jumping in, takes all of the blame Yania defendant nonfeasance, omission WMATA defendant misfeasance, act


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Should we have a good Samaritan law when you can assist at no danger to yourself? FOR AGAINST Act/omission is poor distinction Rugged individualism/liberty Cost-benefit (low cost/high benefit) Hard to regulate Utilitarian approach social/implied contract with Slippery slope society, comes back to help you Law does legislate morals Potential liability/dangers Create dependence Legal system not for legislating morals 1) Criminal liability 2) Tort liability (DUTY) 3) Tort Immunity - Dont necessarily need a duty to promote this behavior can use tort immunity 4) Restitution (Carrot)/implied contract Uptil this point: 1) Duty a. Duty not harm (active) b. Affirmative i. Buch no duty ii. Hurley no duty iii. Yania no duty 1. if theres risk creation yes 2) Breach 3) Causation 4) Damages Montgomery v. National Convoy & Trucking Co. OMISSION of a DUTY 195 S.E. 247 (S.C. 1937) Truck stalls on an icy highway without their fault, blocking the road completely. No negligence for breakdown. But they should have put a warning signal higher up on the hill because of the icy conditions. How does this differ from Buch? a) caused dangerous situation b) knew of obligation Who has a duty? Neighbor who has a house at the top of the hill (bystander) no duty - Zelenko v. Gimbels bystander impeded rescue efforts by sequestering sick person so he was liable - If a bystander put a flimsy warning sign at the top of the hill, preventing others from putting up warning sign, maybe it would apply in Montgomery Truck has a duty because of: a) Broad risk creation b) Implied contract (Posners argument) we all warn each other when we create risks on the road society is all better off because of that. c) Recognize duty so we hold you to it (to do a good job). reasonable. Critique: a. Gratuitous b. Depends on what defendant thinks c. Incentives discourages you from getting involved at all because you dont want tort liability i. Cross-reference: Vaughn v. Menlove liability despite low intelligence, standard doesnt differ depending on intelligence


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Duty problem is easy for acts, hard for omissions. How might we characterize this entire incident as an act, rather than an omission? Green = act

Driving faulty truck (nonnegligent)

Truck breaks down (no negligence)

Bad warning


Def. gets in car drives car toward plaintiff fails to apply brakes accident Note 5 on page 512: Soldano v. ODaniels liable because person interfering with someone trying to rescue another. Wouldnt let someone make a 911 call with his phone. Note 2 on page 509: Louisville & Nashville R.R. v. Scruggs no liability. Freight train refused to move when it was blocking a fire engine from getting to plaintiffs house. Why? The defendants use of its land was merely passive. Law imposes no duty on one man to aid another in the preservation of the latters property only duty to not injure anothers property in the use of his own. In Scruggs, there was more of an act element involved. With a train, youd have to start/move the train. Its a more affirmative duty. GRATUITOUS UNDERTAKINGS Erie R.R. v. Stewart (6th Cir. 1930) - Crossroads. Whether the absence of a watchman would constitute negligence. - If the presence of a watchman was required by statute, failure to observe the statute is negligence per se. When there is no statutory requirement, it is a jury question of whether it was necessary in the exercise of due care. Why might they be liable? If plaintiff had knowledge: 1) Reliance trap argument. Evidence establishes voluntary employment of a watchman, knowledge of this fact and reliance upon it by the plaintiff. The company established for itself a standard of due care and led the traveler into reliance upon such standard. It should not be permitted to say that no duty required, arose from or attached to these precautions. Practice may not be discontinued without exercising reasonable care (i.e. warning). If plaintiff had no knowledge: a) liability concurrence (knowledge doesnt matter) b) no liability majority holding 2) Custom argument a) You recognize duty we hold you to it. Distinction from Montgomery: 1) R.R. causes accident. Railroad has extra knowledge. 2) RR has economic interest (self-interest). What if the RR wants to get rid of the watchmen? There needs to be notice (sign) if the railroad wants to get rid of the watchman at the crossing. Then, theres no more trap. Warning sign: 1) Majority would think it eliminates duty from the defendants side no reliance 2) Concurrence would think the presence of the sign would create a contributory negligence issue on the plaintiffs side. What case might be helped by this reliance argument? Scoliosis case implied right of action. Now the school might have a problem, because the affirmative duty might look really good.


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Marsalis v. LaSalle (La. App. 1957) Facts: Cat scratches the plaintiff in defendants store. Plaintiff asked the defendant to lock up the cat until it is tested for rabies. Cat runs away and plaintiff undergoes rabies treatment and ends up being allergic to it. Holding: Court holds that the defendant is liable because he promised to provide. Why? Rule: One who voluntarily undertakes to care for or afford relief to a person in need is under a legal obligation to use reasonable care and prudence in what he does. 1) reliance (Stewart case) harm is suffered b/c of the others reliance upon the undertaking 2) risk creation even without the promise, they still have a duty to keep the cat around (Montgomery case) failure to exercise such care increases risk of harm If the Cat was found to be not rabid. Plaintiff recovers. Why? 1) unnecessary treatment. If the defendant had not voluntarily agreed to quarantine the cat, then she could have sought another way to keep the cat under observation. If the Cat was rabid: 1) Harder to recover here because it was a non-negligent scratch. Defendant is not guilty of negligence in allowing the cat to be around since it was well-behaved and had no history of vicious traits/tendencies. Focus of the court was that you failed to quarantine your cat and thats the impetus for the liability. Defendant had no duty to plaintiff until he agreed to restrain and keep the cat bound to use reasonable care and prudence in doing so. DUTIES of OWNERS and OCCUPIERS Robert Addie & Sons (Collieries), Ltd. v. Dumbreck (1929 A.C. 358) Facts: Defendant colliers operated a haulage system in their fields near a public road. The system involved a large, heavy horizontal wheel which was protected by boards with large spaces in between. The court found that the wheel was dangerous and attractive to children. Field was surrounded by a hedge with a number of gaps. Defendant knew that field was used as a shortcut and that children played there. Defendants servants warned children to stay out of the field but knew that their warnings had little or no effect. Plaintiffs four-year old son got caught in the wheel and died. Issue: Are children licensees? If so, defendant would have to give warning about the wheel. Holding: Plaintiffs son was a trespasser and the defendants owe no duty to him. Invitee joint interest, present by invitation a. highest duty b) Licensee permitted a. Warn of hidden dangers, cant create a trap c) Trespasser no permission a. No duty b. Exception is where the injury is due to some willful act involving something more than the absence of reasonable care a) Does it really matter that the children were designated as trespassers as opposed to licensees? - If the warning is good enough, then the licensee becomes a trespasser. - If the warning is not enough (i.e. for children), then the licensee becomes an invitee and you must either fence in the area or board up the turntable properly. Licensee status does not work very well for children. HYPO: What if the coal company thought they were doing a service and put plastic horses on the turntable? Definitely an attractive nuisance. Attractive Nuisance Doctrine 1) deals with children 2) artificial addition 3) harm/knowledge about children 4) BPL analysis Cheapest cost avoider for a four-year-old might be the parents rather than the operation of machinery.


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1) Trespasser. In Buch v. Amory no duty to trespasser but no willful/reckless conduct. a. Isnt attractive nuisance a subset of this rule? i. Not intent to harm but could be intent to act with certainty of consequences. This is the exception to the trespasser rule you cannot act willfully or deliberately. Review: General Rule No Duty to a Stranger (Buch) Exceptions You have a duty to a stranger when: 1) Creation of Risk if you created a risk (Montgomery) 2) Attractive Nuisance duty to remove children from something thats an attractive nuisance 3) Isolation (Zelenko) /Worse off crossing guard case 4) Interference 3rd party liability a. Soldano v. ODaniels (Cal. App. 1983) person tried to use phone at bar A for shooting going on at bar B but bartender at A wont allow the use of the phone. Bartender is liable even though he had no duty to help b/c he had a duty not to interfere with someone trying to help. 5) Reliance a. When people rely on your help, and you create the situation, there is a duty to keep doing it or warn them that it is not there. Erie R.R. (watchman) and Marsalis (rabid cat) cases. 6) Contract a. Express i.e. lifeguard at swimming pool contracted with 3rd party to provide this particular service b. Implied Montgomery is potentially an implied contract case 7) Property Owners 3 categories plus Rowland standard a. Invitee exception to the rule; must show reasonable care (business invitees?) b. Licensee no business interest, only duty to warn of hidden dangers c. Trespassers no duty ** Rowland v. Christian counter principle to this rule (no duty to a stranger)** 8) Special Relationships

Rowland v. Christian (Cal. 1968) Facts: Guest injures hand when a water faucet breaks off. Defendant knew of the crack in the faucet but did not warn plaintiff of the condition. Ca. S. Ct. Duty to Everyone and then uses factors to create exceptions Common Law No duty to a stranger with exceptions of when you DO have a duty Heaven v. Pender (1883) a duty arises whenever you recognize that a lack of care might cause someone injury duty to everyone. This case has been described as loose cannon in tort law. Holding: Rejects common law classifications and uses the single duty of reasonable care (negligence). The common law classifications are inapplicable in modern society. Common Law Classifications for Property Owners: 1) Class warfare judges owned land while juries usually did not. 2) Classification method is formal 3 rules a. Rowland method is much more flexible standard 3) Complicated Exceptions Under Common Law: Licensee social guests warn of hidden dangers plaintiff wins Under Rowland: Invitee Rowland says everyone is invitee plaintiff still wins Under Common Law Reasonable Care Warn None Rowland tries to increase the amount of care that people are owed

Invitee Licensee/social guest Trespasser


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Rules vs. Standards (Common Law vs. Rowland) - Rules are very easy to apply but there are many circumstances where the rule does not apply perfectly potential injustice - Standards allow you to tailor and individualize to every case Judge vs. Jury - Rule-based system judge can determine whether the defendant was a trespasser. Could throw out jury decision. - Standard system fact-bound jury question. Will have a hard time overturning the jury ***Rowland shifts things from rules to a standard and from judge to a jury. *** SPECIAL RELATIONSHIPS (1) Landlord-Tenant Relationship foreseeability. Kline case. a. Duty to protect. Why? i. Cheapest cost avoider centralization. Landlord can hire fewer guards and have more central access points. An individual tenant cant do all of that. ii. Free rider Problem with Tenants If the tenants band together, you have collective action and free-rider problems. Landlord can distribute evenly iii. Counter argument: you infringe on freedom of contract. Why freedom of contract should sometimes be impinged upon: 1. social and global efficiency 2. unequal bargaining power wealth distribution. Its very expensive/difficult to move. Other arguments you could use to hold Landlord responsible in Kline: 1) Weirum argument nonfeasance/misfeasance a. Problem: In the Kline case, the landlord is not promoting anything, like the DJ in the Weirum case. 2) Invitee/Licensee classifying the tenant as an invitee in the common areas of the building a. Problem: classic case is that tenant is insured by something physical in the building. But in Kline, the thug is the third party intervener. LL creates a dangerous environment (negligent act) and mugger took advantage of that (willful act). The chain of causation is broken. 3) Reliance a. Duty because when Kline moved in, she liked the security of the building, then it deteriorated. b. Counter-argument: she did have a clear notice/warning that the security was going down. Kline v. 1500 Massachusetts Avenue Apartment Corp. 439 F.2d 477 (D.C. Cir. 1970) Deterioration in safety of the apartment complex from when Kline first moved in. Kline was assaulted and robbed in the common hallway of the apartment house. Issue: Whether the landlord had a duty to Kline to prevent this crime. Holding: Landlord owes duty to tenant because of a special relationship Restatement says that theres no duty unless: a) special relationship with harm-cause (mugger) b) special relationship with victim (landlord) a. foreseeability b. control i. Landlord had exclusive power to control this situation. Crime took place in common area of the building so 1. tenants cant do anything 2. theres no police (i.e. on the street) ii. Tenants have control: 1. tenant could move 2. tenants band together (i.e. neighborhood watch) 3. self-help


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iii. BUT the landlord is the cheapest cost avoider 1. efficiency argument a. hiring one doorman for building b. central location for information 2. free rider problem would be avoided if only some tenants banded together for a guard, other tenants would free-ride on it. Cost-pass-through C.f. Assumption of Risk argument (bargaining power problem) 1) create higher prices/less affordable a. you would pay anyway if you got mugged 2) paternalistic Other arguments that could have been used to create duty: 1) reliance Duty because when Kline moved in, she liked the security of the building, then it deteriorated. a. Counter-argument: she did have a clear notice/warning that the security was going down. 2) invitee (Rowland) assumption of risk??? a. on landlords land hallway b. for business/mutual benefit c. ORDINARILY, an inanimate object injures the plaintiff. But in this case, the landlord fails to operate a secure location and as a result, the plaintiff gets injured by a criminal (3 rd Party). Should we hold the condo board liable like the landlord in Kline? Frances T. v. Village Green Owners Association (Cal. 1986) - Plaintiff was raped in her condo after the board refused to let her install lights by her unit for her own selfprotection. Kline upheld - liability imposed on landlords should be extended to condominium boards. Dissent: lack of special relationship. Differences in suing a condo board: 1) You would deter volunteers in condo board if you could sue each person on board. 2) In the condo board, they are the tenants themselves. Dont worry about bargaining power 3) No money in a condo board. a. If the board was sued, basically the tenants pay. b. If the landlord gets sued, he raises rent in which tenants pay again. Misfeasance v. Nonfeasance Weirum v. RKO General Inc. DJ goes around giving clues to a location where hell give away a prize. 2 teenagers drag race to get to location and ends up driving someone off the road, causing a death. Misfeasance cause harm (promotes behavior) In Weirum, you caused the harm by egging people to race to a certain spot, encouraging dangerous behavior. 3 rd party injured. Nonfeasance let harm happen. When the defendant failed to aid plaintiff limited to special relationship circumstances. Yania court holds that just because you egg someone on doesnt mean you have a duty to that person. Self, as opposed to 3rd party, injured. Kline recovers under misfeasance and nonfeasance: Misfeasance general inquiry goes strictly on negligence, no categorical relationshipsanyone could recover Nonfeasance with special relationship only a tenant (Kline) could recover, invitee/licensee Tarasoff v. Regents of University of California (Cal. 1976) Psychologist Poddar killer/untouchable Bengali who had no experience with women Tarasoff victim Issue: Whether the psychologist had a duty to warn Tarasoff. Usually A has a special relationship with B so theres a duty from A to B. In this case, A (psychologist) has a special relationship with B (Poddar) and a duty to C (Tarasoff) to either: 1) control defendant may have satisfied, supervisor says no


Downloaded From 2) warn the victim need specificity, cant be society in general Holding: Yes, the psychologist had a duty to warn for the public interest. There is no sufficient societal interest that would protect and justify concealment. General Rule: NO duty to control the conduct of another. Exception: special relationship to either the person who conduct needs to be controlled or in a relationship to the foreseeable victim of the conduct. What does the special relationship have to do with the duty here? To Warn????

A Doctor C Victim

B Patient

A Doctor

B Patient

i. Relationship to protect the victim? No. ii. Relationship to control assailant/patient The duty to warn in this case does not fit within the confines of the restatement (Doctor-patient special relationship: duty to either help the victim or to control the patient?) Duty to warn comes from knowledge. Why we should create special duties of the doctor to warn in this context: a) professional duty duties to society as a whole b) expertise uniquely qualified position to assess the dangerousness of the patient, unlike the average person or the bartender Why we would NOT want to create special duties of the doctor to warn: a) patient less likely to say what theyre really thinking a. doctor never finds out equipoise (no better off than before) b. no treatment of the patient now worse off than before i. argument: patient might not consider these consequences if theyre disturbed enough to commit the crime. b) deters doctors because theyre a. liable for the acts of patients if they dont disclose and something happens. b. liable for the breach of confidentiality if they do disclose and is wrong about it. How can you prevent this catch-22? i. Cost pass-through to the victims ii. Release form iii. Statutorily create a safe harbor similar to good Samaritan laws


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What are the four elements of negligence? (1) Duty you find a baby that is face down in a puddle in the street and just step over the baby and pass by. You are not negligent; your duty is not to actively harm someone. a. What exactly does it mean to be a reasonable person? b. Vaughan v. Menlove i. First case to establish a reasonable person standard. Other standards: 1. Subjective - Dissent: individualized (good faith/best judgment of defendant) i.e. Courvoisier truly believed that officer Raymond is actually shooting at him. Pros: a. Moral desert b. Symmetry we dont increase the standard for exceptional people 2. Ordinary Prudence (objective) reasonable person/belief. Pros: a. Administrability b. Eliminates fraud forces people to behave normal i. Incentives for research ii. Reasonable expectations 3. Reasonable person standard is an objective point of view, not subjective ii. Unlike the cases before, you start the fire and then it goes to the houses around you. But in this case, he didnt start the fire. (2) Breach - Standards for showing a breach of duty in Negligence: a. Reasonable Person Standard b. BPL c. Custom d. Statutes criminal or administrative penalty (3) Causation (4) Damages

The Reasonable Person Standard

Ordinary person gets the negligence standard, which should be objective. Judge will instruct jury to use objective standard, but the jury ultimately decides and may use subjective standard. Strict Liability Rule nonreciprocal risk (kept a tiger in your apartment) Breach objective Damages subjective Roberts v. Ring 7-year old child runs into the middle of the street and gets hit by 77-old driver. Negligence is pretty clear. But do we take into account that the driver was 77 years old and maybe he doesnt have the same reaction time? NO. Adults (1) Negligence standard no individualization for old age (2) Negligent for driving at all (like strict liability) Children (1) with regard to contributory negligence subcategory of children allowed Age objective measure. Child has other limitations. Transience. Others can react to the child. Rule (Under 18) Objective Standard (immature) Difficult to Admin

What if we turn this case around: a boy is riding a tricycle down the street and hits a 77-year old man in the back causing catastrophic injury to the mans knee? Would the Roberts court take into account the boys youth? Roberts creates an asymmetric rule between negligence (tortfeasor defendant) and contributory negligence (plaintiff,


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victim). Roberts v. Ring is anomalous because negligence and contributory negligence is under the same rule. Why would we want an asymmetric rule? Compensation!! Daniels v. Evans - When children engage in adult activities (i.e. driving a car, using a weapon), they are held to the adult standard. Driven by tit for tat. Exception: when activities are ambiguous. Are you excused from liability in negligence cases? Intelligence No Elderly/Infirmity No Infancy Yes* *unless they engage in adult activities Standards in determining liability: Objective no individualization; look at the average person - easy to administer - less fraud concerns - outsiders deserve some basic level Subjective look at the individuals circumstances - objective standard has no deterrence - moral desert how can we ask someone to do better than the best that they can? - Can never really have a subjective standard law has to make some arbitrary standards in the end. Breunig v. American Family Insurance Co. Batman case. In favor of plaintiff because defendant had knowledge/forewarning of her mental disability. The Reasonable Person Standard and the Breunig Case Can sudden mental delusion without warning preclude liability? Some possible defenses: 1. McGuire insane are liable for intentional torts. Problem might be the Gould case which cut back the Breunig decision and talked about an assumption of risk and foreseeability on the part of the caretaker. This exception is for: a. Institutionalized patients. Therefore Gould does not overrule McGuire explicitly. b. Trustees have done everything. The difference between Breunig and Insanity Defense cases: c. permanence vs. temporary insanity (behavior of others/if theres notice of insanity, you can find blame) possibility of fraud (McGuire versus Gould case) d. assumption of risk nurse vs. outsider (institutionalized vs. not) e. intentional tort (moral culpability) vs. negligence (compensatory scheme to deal with accidents) 2. Hammontree man has a seizure and drove his car through a bicycle shop a. Foreseeable/ notice i. How do we decide whether Breunig had notice that she would have this delusion? Previous delusion closer than the epileptic seizure in Hammontree (she had a delusion 2 days ago) ii. Delusion is of a different type. Probability of having a delusion while driving a car is very low, as opposed to epileptic seizures which are known to incapacitate. 1. Modern position is subjective standard for insanity. b. The direction of the law on insanity is still pretty much a No.????? i. Goes back to strict liability vs. negligence we want to compensate people for damages but dont want to hold the insane liable for actions that they cant control.


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Assess Behavior (Hammontree) Problem is NOTICE Negligence = ordinary person

Mc Guire

ACCIDENT Gets in Car 3. Batman Speeds up Contributory negligence do we hold a child to a different standard if its contributory negligence as opposed to negligence? Treatises hold that the same standard would be used in either case. a. Fletcher v. City of Aberdeen individualized reasonable person standard for blind i. What about a blind person who fell in a manhole? 1. Reasonable person standard subjectivized the blind person in this case the person under a physical disability must use the care which a reasonable person under the same/similar disability would exercise. The city must offer the degree of protection which would bring notice to the person. ii. City has a duty to all sorts of people could become strict liability because what about a blind, pencil-thin man who just made it through the barriers? 1. Cheapest cost avoider method can be used blind person should have a seeingeye dog or someone helping him 2. AE cost benefit analysis, more efficient to have protections than pay for damages 3. DF the one who created the harm should have to pay protective justice

The BPL Standard

20th century standard Amoral, economic Largely about cost-benefit analysis Looks at law as a method of social regulation rather than who is right or wrong Most courts dont expressly use this standard. Instead, they will say The reasonable person would or wouldnt do this.. but using a BPL standard to say that.

Eckert v. Long Island R.R. - crude precursor to the BPL standard - Man saves the baby from an oncoming train. Is a man contributorily negligent if he runs in front of a train? Yes! o BUT in this case, its different since hes saving a life. Reasonableness of a given risk depends on 5 factors: Benefits: (1) Collateral Object value of thing saved BENEFIT Collateral (2) Probability of Success BENEFIT Costs: (1) Value of Plaintiffs Life COST (2) Risk to His Life COST (*) Necessity of Risk (are there alternatives?)/Urgency of the Circumstance Cooley v. Public Service Co. - telephone line interferes with power line resulting in a screeching noise that caused the plaintiff to faint - Is the power company negligent because the power line fell during a storm? Power company is not negligent for the power line falling down because they have a duty to others as well. Under cost-benefit, risk of electrocution is more important than an individuals neurosis


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Complicating factor is that you can either protect against neurosis (loud screeching noise from telephone) or prevent the people walking below from the falling power line If you did a cost-benefit analysis, the benefit in protecting the neurosis would result in a person walking below getting electrocuted and die (cost).

United States v. Carroll Towing Co. BPL IS BORN. - Defendant towing company was moving a line of barges. One of the barges broke away and crashed into a tanker and caused it to leak oil - Should defendant have bargee on board to prevent this all the time? - HOLDING: Yes, there should be a bargee on board during all daylight hours using BPL. I. How do we decide whether a reasonable person would put the bargee on board? a. Learned Hand sets up a formula: i. B (cost of keeping bargee at night/day) < P(robability of needing bargee) L(oss) ii. CUSTOM WOULD TRUMP THIS ANALYSIS. II. How do we apply this to Bolton v. Stone? a. Refer to chart b. Marginal analysis. With regard to the bargee, question is whether this additional hour of bargee work worth it? Same thing with the fence, is the last 10 foot segment of the fence worth it. The 20 foot fence is the most efficient. c. Bi < P1L1 ( Kill) + P2L2 ( Eye) + P3L3 ( Breaks Windshield) Height 10 ft. 20 30 40 50 III. Cost of Segment 100 200 300 400 500 Total Cost 100 300 600 1000 1000 Prob. of ball hitting segment (P) 40% 30 20 10 0 Head = $1000 (P*L) 400 300 200 100 0 Total Loss Avoided 400 700 900 1000 1000

At the end of the day, is it true that strict liability and negligence are both allocatively efficient? a. Strict liability more you pay for your precautions, less liable b. What about risk neutrality?

Contributory Negligence And BPL

Related inverse P

1. 2.

3. 4.

Risk to child (benefit) a. High P, High L Risk to rescuer (potential cost) a. Med/High P, High L b. Burden on rescuer potential cost of death (of child) Probability that rescuer succeeds Alternative means

Building a Fence for Bolton v. Stone 1. Marginal calculation build fence to 20 feet 2. strict liability vs. negligence (both efficient) 3. Why would you choose one over the other? a. Distributional fairness i. Negligence = victim pays ii. Strict liability = club pays b. Discontinuity between the two i. Refer to graphs ii. Strict liability discourages risk aversion c. Administration costs i. Fuzzy vs. Clear


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e. Games played

ii. Number of cases - in a strict liability world, every case is litigated and money is exchanged. In negligence, only negligence cases are litigated. Problems with negligence i. Non-negligent car (follow rules) 1. drive for 2 hours a day, 1/10,000 chance of getting hurt 2. drive for 8 hours a day,1/2500 chance 3. probability increases but negligence doesnt account for that Activity costs Lights & vendors 100 200 300 Ticket sales 4000 5000 6000

Cost of fence Cost of liab. Bonked heads (bpl) (neg) (SL) 50 300 0 3000 100 300 0 6000 150 300 0 9000 Society wants 50 games ($$ bonked heads > $$ ticket sales) Strict liability wants 50 games Negligence games = 150; profit = 5400 (6000-300-300) SB/SC = social benefit/social cost (societal) PB/PB = private benefit/private cost SB > SC PB > PC This is good

SB < SC PB > PC Plant wont shut down b/c profitable but ppl get screwed this is what happens when you dont have cost internalization bad (1) Neg SL (2) either tax or criminalize SB > SC PB > SC Inefficient factory will shut down good

SB > SC PB < PC Bad need subsidy (1) SL Negligence (2) GIVE MONEY

Titus v. Bradford, B. & K. R. Co. Plaintiff is on top of moving train with blocks holding Nypano cars (slightly curved bottoms) HOLDING: No negligence because of 1) custom and 2) Plaintiff had been doing it for years - assumption of risk. Mayhew v. Sullivan Mining Co. Defendant does not warn/tell independent contractor (miner) about huge bucket-hole around him. Defendants argue that it is custom because the mine is a dangerous place. HOLDING: Custom is irrelevant and hold defendant to a reasonable standard of care regardless of custom. - can distinguish because here he is an independent contractor vs. employee/employer relationship o miner is an invitee The T.J. Hooper - district court says there was a custom since 90% of boats had radios failed custom and captain is negligent - Learned Hand says theres no custom - negligence is NOT just custom - Cost is low, P is medium, L is high - 1932 Hooper case BPL regardless of custom


Downloaded From - Carroll Towing Case 1947, BPL if custom, that might control TJ Hooper Mayhew Bimberg Titus

Custom is irrelevant (BPL)

BPL trumps custom

Custom is evidence reasonable care

Custom Controls

CUSTOM - more moralistic/no fault for following custom - allows ppl w/expertise decide what is reasonable - individualizes to industry - predictability - administrability

BPL - industry wont self-regulate - reasonable standard decided by laypersons - Should jury decide standard of reasonableness in an area they know nothing about?

Epsteins argument about when BPL is relevant: p. 195 citation consensual/people in industry (assumption of risk) CUSTOM Titus (Bargaining Power problem: people have to put food on the table and may take risky jobs) Stranger (no assumption of risk) Mayhew No custom Consensual, repeat actor activities (Titus) 1. assumption of risk 2. contract around it 3. bilateral risk (car collision = barges) Stranger has none of the above (Mayhew) No Custom Problem with custom is bargaining power. The railroad worker may be forced to work risky jobs. Where have we seen the bargaining power problem before, with the failure to contract around it? 1) Canterbury v. Spence spine case a. Contracts in adhesion doctors trying to contract out of the legal standard of care. Doctors have a lot of bargaining power and can dictate terms. 2) Necessity doctrine (Vincent) Lama v. Borras (1st. Cir. 1994) Dr. Pedro Borras and Hospital appealed from a jury verdict finding them liable for medical malpractice. He performed back surgery for Roberto Romero Lama. Symptoms returned after a few days and a second surgery was performed. A few days later, Lama experienced severe pain and discomfort, ultimately diagnosed with discitis which is painful and slow to cure. He remained hospitalized for several more months. Dr. Borras was negligent in failure to provide proper conservative medical treatment Discussion: A medical malpractice plaintiff must establish the relevant national standard of care. Expert testimony is crucial. Plaintiffs chief witness showed that Borras did not follow standard practice and failed to provide the customary conservative treatment. Causation is more problematic because it was 1) uncertain that premature surgery was the cause of Romeros infection only liable if foreseeable and in this case, it was; and 2) uncertain whether conservative treatment would have made surgery unnecessary jury could use most probable cause. Plaintiff had sufficient evidence Standard for medical malpractice: - Practice of general practitioners or specialists - Could we say that it was an individualized reasonable person standard? No. 1) Custom must have a school of thought; quantity of numbers = all the jury has to do is count heads and believe that the expert who testified has counted heads deferential standard Titus on the spectrum of custom


Downloaded From 2) Reasonable doctor = jury still has the authority to generate its own rules Bimberg on the spectrum of custom Custom is the standard for medical malpractice cases. Except for Helling v. Carey renegade tort case!! (refer below) - we dont trust juries, we trust doctors since they are the experts and professionals in the industry Notes: Standard of care in medical malpractice cases: - standards for medical malpractice actions - no single custom covers a given issue o two schools problem doctor has an absolute defense when there are two competing schools of thought available Doctrine is only applicable when there is more than one accepted treatment or procedure Must prove that there must be a sufficient number of recognized and respected physicians to create another school of thought - movement toward a national standard does not mean uniform standards for all physicians regardless of their level of training o lower standard of care for interns and residents. Rush v. Akron General Hospital, 171 N.E.2d 378, 381 (Ohio App. 1957) o subsequent cases are moving toward national standard of care. McBride v. United States: patient has right to expect quality of care usually found in medical community. Interns and residents should not be assigned to tasks that were beyond their ability. Error in Judgment: - doctors not held responsible for errors in judgment - Hirahara v. Tanaka: suit was dismissed with settlement and the defendant was granted an instruction saying he was not responsible for errors in judgment. Case was later reversed and remanded. Court ruled that there IS a breach of the duty of care if the physician made a wrong choice and should have known it was wrong. Rule that doctor is not liable for an error in judgment is confusing and should not be given to the jury. The locality rule: - Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968) doctor was negligent in administering a spinal anesthetic. Dosage given was customary in New Bedford. Defendant wanted jury to use the local standard (Small v. Howard as precedent). But it opted for a national standard. - Small v. Howard locality rule is overturned because it is not suited to present-day conditions. Historically, it was very hard to communicate and travel, but no longer. - A problem with overturning the locality rule: local clinics may have less equipment than urban facilities. Poor vs. Rich dynamic. Starting to look like quasi strict liability for the rural hospital (like Vaughn v. Menlove, imposing normal standard of care on disadvantaged person). - Followed in Buck v. St. Clair, 702 P.2d 781, 783 (Idaho 1985): local standard of care is the same as national for board-certified specialists. Board certified specialists can testify against each other when practicing the same area of medicine. - Sheely v. Memorial Hospital, 710 A.2d 161 (R.I. 1998) trial court excluded a local experts testimony but decision was reversed for an abuse of discretion. Rejection of the Customary Standard: - Helling v. Carey, 519 P.2d 981 (Wash. 1974) 32-year old defendant suffered permanent vision impairment when she had complained to doctor for 9 years about eye irritation. Court applied the logic of T.J. Hooper and said that this was a unique case. Even though the standard of care did not require tests of glaucoma for patients under 40, given that glaucoma is rare for patients in that group, court ruled that doctor still should have given the test. - What about this argument applied to the Hand formula? Once the costs of these false positives are taken into account, the test is not cost-justified even under the Hand formula, at least if the damage awards at the time of treatment accurately measured the plaintiffs loss. o B = low, easy to do, cheap o P = low o L = high/blindness


Downloaded From Statutory (Washington Revised Code basically overrules case, wont impose BPL analysis) and Judicial (Barton v. Owen limit the precedent to its facts) response followed: Customary care standard survived and the strict liability boomlet failed. Conflict with T. J. Hooper - dominant view that custom sets the standard of care carves out a significant exception to the general rule in T.J. Hooper - Why should we protect physicians? o Conformity test is probably the only workable test since the judges and juries are not competent to judge whether the doctor acted reasonably o Doctor who loses malpractice case not only loses the case, but his professional reputation and livelihood o This will still catch those doctors that are grossly incompetent Contract for cure: - Sullivan v. OConnor, 296 N.E.2d 183, 186 plaintiff had plastic surgery done and was not satisfied with results. Ruled that doctors can not be expected to promise specific results. If actions for breach of promise can be readily maintained, doctors will be frightened into practicing defensive medicine. Law has taken middle road by allowing actions based on alleged contract, but insisting on clear proof. - Clevenger v. Haling, 394 N.E.2d 1119 (Mass. 1979) majority of the court refused to allow plaintiff reach jury about unwanted child against a doctor who performed a tubal ligation and said that she would not have any more children after the procedure. -

Statutes and Regulations

- Use of criminal statutes, local ordinances or administrative regulations etc. supplies specific content to the reasonable care standard Standards for showing a breach of duty in Negligence: 1) Reasonable Person Standard 2) BPL 3) Custom 4) Statutes criminal or administrative penalty a. If you violate that statute, what is the effect of that statute on a negligence category? b. Requirements in violating statute i. Violate ii. Purpose of the statute is to prevent that type of harm cause to the class of people 1. Protected class iii. Causal connection violation was the cause of the injury (*) implied causes of action Excuses/exceptions that show up in the case law: necessity/emergency/etc. Martin v. Herzog, 126 N.E. 814 (N.Y. 1920) Facts: Automobile accident with buggy. Plaintiff didnt have any lights on, which violates a statute. Defendant says lack of light shows that the plaintiff was negligent. Trial court was given instruction: violation of statute is evidence. - Cardozo says it is negligence in itself, with the exception of unexcused omissions. Decision is NOT up to the jury. Legislature is attempting to set the standard of care. Court says that a reasonable person follows statutes. Violation of a statute: No excuses.acceptable excusesStatue is just evidence (negligence per se) (narrow exceptions like necessity) (one factor considered) SL (rule) ..Negligence (standard)


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Negligence Per Se and Excuses. Contrast with Martin v. Herzog: o Tedla v. Ellman Plaintiff pedestrians were hit by a car when violating a statute (dictating which side of the road to walk on). Statute establishes a rule but common law (custom) says there are exceptions. Court held that the legislative intent of statute is to prevent accidents. Therefore there was no contributory negligence on the part of the plaintiff who violated the statute. Why would you want the rule (statute)? o Strict liability rule is 99% good, easy to administer, clarity, defendant knows what to expect Going against the standard unless makes no sense o Negligence o Allocative efficiency efficient to tailor things to situation o Fairness argument doing your best and what makes sense

Gorris v. Scott, p. 230 - Sheep on the deck of a ship that are not penned. You should pen them because of disease. Storm came and washed them over. - HOLDING: no liability because the purpose of the statute is to prevent disease not to the prevent them from going overboard in a storm - purpose of the statute is necessary for negligence per se o in Martin v. Herzog, the intent of the statute was to prevent accidents, which happened. Purpose of the sheep statute was to prevent disease, not losing sheep overboard. Ross v. Hartman, p. 240 - Statute: you shall not leave keys in car. Defendant leaves keys in car, someone steals the car and hits a pedestrian. - Why not sue the thief? So you find the person with the money and use difficult legal theories. - Holding: Statute was passed to prevent car theft so that pedestrians will be protected (in the protected class of the statute), therefore defendant is liable. o Hudson v. Craft: Boxer (protected class) v. Promoter - Dramshop Laws o Vesley v. Sager Plaintiff is pedestrian or third party victim Defendant is bartender or bar to people who are visibly drunk drunk driver Plaintiff showed that Bartender was a proximate cause o Ewing v. Cloverleaf Plaintiff downs shots on 21st birthday An extension of Vesley Defendant is the bar and the bartenders misconduct overcame the contributory negligence of the 21 year old because he was in the protected class. Contributory negligence? Court holds that defendant is responsible. No third party, plaintiff was responsible for the accident but he is in the protected class, even though he consented. Brown v. Shyne - When is it that the chiropractor (unlicensed doctor) will be found negligent? - HOLDING: No negligence just because doctor had not license because the license itself did not cause the harm - The Court used reasonable standard (ordinary negligence) o Same standard as doctors negligence o No proximate cause - Elements: 1) treatment not up to standard of doctors 2) violation is evidence of negligence - Laymen says the first element is fine but reverses the second: o purpose is to prevent unskilled doctors o proximate cause mechanism violation of the statute doesnt cause the injury. Problem with this is that youll find negligence for practicing at all o Court protecting chiropractors o Problem: Where do you draw the line?


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Decision to practice ... level of practice .. injures victim w/out license (dissent) (majority) Once you dont follow held to reasonable Statute, you act standard for doctors At own peril (SL) (lisence doesnt matter) What if Laymen used Martin v. Herzog (Negligence Per Se) standard? - Licensed medical doctors would be governed by negligence/custom standard acts like a subsidy - Meanwhile, chiropractors and others (unlicensed group) get negligence per se strict liability would govern chiropractors acts like a tax.

Negligence Per Se
4 requirements for Negligence Per Se: Violate a statute cause harm then you pay 1) Violate the statute a. Martin v. Herzog, if you violate the statute, that is negligence in itself

Statute Factor Pure Negligence

Exceptions Necessity Ellmer, Necess

No Exceptions Strict Neg Per Se

2) Harm within the purpose of the statute (scope) a. Gorris v. Scott 3) Protected Class a. Ross case 4) Proximate Cause of the Harm that Results kind of an outlier because cause is always necessary for a tort. Cause depends on what the statute is. a. Brown v. Shyne is the violation of a statute (licensing) the proximate cause of the case? i. Go back to Timelines: How far back do you go to determine whether negligence is present? Chiropractor decides to practice (Hammontree: makes decision to drive at all) performs procedure (Breunig: driving under a disability) injury to patient Osborne v. McMasters 41 N.W. 543 (Minn. 1889) Pharmacist has a store with staff and store provides the plaintiff with poison without labeling it as such. Defendant dies. Statute says you shall label poisons appropriately. What are the 2 ways you can get recovery if you are the plaintiffs estate? 1) Negligence breach a. Reasonable person standard b. Negligence per se using the statute as the standard 2) Breaching the statute (Duty) a. Statute creates an independent cause of action that enables people to enforce it b. Problem with causing an independent cause of action: i. State or the prosecutor usually enforces it ii. No provision in the statute. So when can the court IMPLY a cause of action for private parties to sue? 1. when the plaintiff is one of the protected class 2. legislative purpose of the statute would be promoted 3. consistenct with the legislative scheme Uhr v. East Greenbush Central School District 720 N.E.2d 886 (N.Y. 1999)


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Scoliosis tests for Uhr o 1992-93 negative o 1993-93 skipped the test o 1994-95 positive Student was found with scoliosis a year after she failed to take the test HOLDING: No negligence per se and School is not liable for not checking the student for one year. Negligence Per Se view: Problem is that the school doesnt necessary have the obligation to test you for scoliosis. As a matter of negligence, theres a problem with duty. Negligence Per Se is under the common law and there is no affirmative duty under common law. Unless the statute creates a new duty, the school does not have a duty to check for scoliosis. Implied Cause of Action Analysis: Statute said that there was no liability for improper test. Plaintiff satisfied the first 2 parts of the test but not the third. Implied private right of action is not consistent with the legislative scheme. o KEY is WHO CAN SUE? The commissioner can come and sanction the school but not the individual student. o Public scheme thats for the good of everyone cost/benefit analysis Implied private right of action school districts will bear the costs/liability for a program that benefits a far wider population direct and obvious financial consequences to the public

Preemption: - Baseline: Common Law o Certain duties and a negligence standard (certain level of care) - Implied Causes of Action (expansive of liability) that messes with common law - Preemption (restrictive liability) - What statutes do to the common law standard: o Scenario 1: EPA (statute) sets smog level of 50 when the BPL standard (common law) is 100. Does the private party have a right to sue at EPA level when the common law says its 100? Does the statute give the party a right to sue? o Scenario 2: EPA sets smog level at 150 when BPL says 100. Does the private party have a right to sue at 100 when the EPA set the standard at 150? Does the common law give the party a right to sue?

Proof of Negligence
Res Ipsa Loquitur the thing speaks for itself - Frequently invoked when the plaintiff seeks to establish the defendants negligence by circumstantial evidence - In some cases, plaintiff seeks to reach and persuade a jury on the strength of the doctrine itself. Other times it is combined with lay and expert testimony. - Modern Res Ipsa 1) Ordinarily doesnt occur without negligence 2) Exclusive control 3) No contributory negligence Byrne v. Boadle the rolling barrel 159 Eng. Rep. 299 (Ex. 1863) Facts: Plaintiff was passing along a highway in front of defendants premises when he was struck and badly hurt by a barrel of flour being lowered from a window above, on the defendants premises. Trial court ruled in favor of defendant. Presumption was that the defendants servants were moving the flour. Plaintiff appealed. In the Court of Exchequer, Pollock said that it was res ipsa loquitur. Defendants (Flour company) argument: 1) no evidence of negligence 2) done by someone else Circumstantial Evidence Who Wins?


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Res Ipsa


20% DV for Pl

49% Pl wins

51% Def wins w/ jury

80% DV for Def


Colmenares Vivas v. Sun Alliance Insurance Co. 807 F.2d 1102 (1st Cir. 1986) Is this Res Ipsa? Look at three requirements of modern Res Ipsa: I. Contributory Negligence this case is like Eckert v. LIRR. It was not contributory negligence because: 1) cost-benefit analysis its a good thing because it makes sense to save the child 2) Danger invites rescue natural response. Facts: Man saves his wife from accident in escalator Ordinarily doesnt occur without negligence a little more disputed and leads to a dissent. Exclusive Control no problem because the airport is charged with non-delegable duty to maintain their system. Court did not allow them to shift the blame to any other party. a. Inspections show ownership b. Public place


Ybarra v. Spangard 154 P.2d 687 (Cal. 1844) 1) Ordinary wouldnt occur without negligence probably established because an appendix operation shoulder injury 2) Exclusive Control many people involved (surgeon, doctors, nurses). Why cant we do the Colmenares thing? a. Surgeon orders everyone around just like the port authority in Colmaneres b. Group itself 3) No Contributory Negligence patient was completely knocked out Why does the court opt for Res Ipsa in this case? If theres no res ipsa, no one would fess up to what happened. There would be no way for the plaintiff to recover. Res Ipsa has 2 functions: 1) one is to use circumstantial evidence 2) information forcing function throws the burden on the people who know, not the victim. Direct vs. Circumstantial evidence: 1) Direct witness sees something happen and can testify 2) Circumstantial claim is that you were probably negligent since you didnt see what happened. Blue Bus Hypothetical: Plaintiff is driving down a country road at night and its very dark. Bus barrels down the road driving on the median. Plaintiff driven off the road and blinded by headlights of bus so couldnt get any details about it. At trial, evidence shows that Blue Bus Co. operates 80% of the buses on that highway. 1) Can the plaintiff go to the jury? (avoiding DV for the plaintiff) 2) Can the plaintiff get a directed verdict?


Downloaded From Not Res Ipsa: there is no exclusive control b/c were not sure if it was the Blue Bus Co. Statutes Review: How do you enforce statutory duty 1) Administratively 2) Criminal sanctions/fine 3) Civil actions i. Implied private right of actions 1. Courts are getting at legislative intent of statute when theyre deciding this. 2. p. 243 3-part test Res Ipsa Requirements: 1) ordinarily does not occur without negligence a. most important b. occurs without defendants negligence 2) exclusive control 3) no contributory negligence Res Ipsa allows the plaintiff to get to the jury, doesnt necessarily put the burden of proof on the defendant. Without res ipsa, youre stuck on the left side. Res Ipsa takes you to the grey area in the middle, NOT the right side which would be a directed verdict for the plaintiff. Look at spectrum above and below: Exclusive control factor: 1) Byrne and employees vicarious liability 2) Colmaneres independent contractor so does not fall under vicarious liability a. Non-delegable duty to maintain the escalators b. Expansion on exclusive control idea 3) Ybarra hospital setting with many factors a. Either everyone has a non-delegable duty b. Or, head surgeon becomes the equivalent of the employer in Byrne or the Port Authority in Colmaneres Why would we want to expand res ipsa with exclusive control? - Acts as an evidentiary device o plaintiff has no idea what happened - Res Ipsa causes defendants to generate information and fill in the blanks o Because if you dont supply evidence, you run a significant risk of the jury going against you

Contributory Negligence
Butterfield v. Forrester origin case of contributory negligence 2 reasons why you would want to preclude liability under contributory negligence: a) causation a. under the common law contributory negligence no recovery at all for plaintiff, complete defense b) moralistic a. plaintiff is at fault b. pari delicto, like the boxer cases i. you cant recover for an intentional tort of another person because you voluntarily put yourself in the position. Youre both liable and no one should recover. Gyerman v. United States Lines Co. - sacks of fishmeal have to be stacked in a certain way DUTY: Plaintiff could have: 1) complained to supervisor a. grievance procedure 2) stopped working

Plaintiff has no duty to protect himself at work (Padula, Hudson)


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BREACH OF THAT DUTY: CA court asked was the plaintiff contributorily negligent for NOT doing the above things things? Does plaintiff breach his duty to protect himself in not doing these 2 things? They consider that: a) plaintiff may not know what to do/on-the-spot judgment Reasonable person would not say b) cant abandon your work just because its dangerous no given power dynamics c) Dont know who to talk to corollary to part a. Ultimately, they decide that they didnt meet his duty of ordinary care and that there was a breach! CAUSATION: Would it make a difference? NO! PROXIMATE CAUSE is the key. Breach of the duty/negligence must be a substantial factor in causing the harm. a) no other way. It would have happened anyway even if plaintiff did his duty to protect himself. b) where have we seen this before? Brown v. Shyne violating the statute was not the cause of the harm. c) Refer to Note 2 on page 298: a. Padula v. State Wouldnt make a difference In Gyerman, duty of the employer is to provide a safe environment, created by statute. Why do we have this? Its not clear whether you can complain to your supervisor or stop working. Using the Padula case, you cant have CN in this case (esp. with regard to workplace safety) because the duty is non-delegable or only attributed to the employer. In Hudson v. Craft, the statute is to protect the fighters. If the fighters sue the promoter, the consent given by the fighter does not override the liability of the promoter because the statute was set up to protect the fighters. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Is the defendant negligent for operating the train? Yes. What could he have done to eliminate some of these sparks? Put something over the chimney to prevent the sparks. He probably didnt get a spark prevention device because its cheaper not to. Hand Formula: B < PL ISSUE: Whether the plaintiff was contributorily negligent by putting the stacks near the train. What would happen if we hold the plaintiff contributorily negligent? McKenna: The Supreme Court adopts an absolute right of property rule because theyre concerned about the slippery slope argument. It would restrict people from using their own property. Juxtaposition between McKenna and Holmes: Relative contributory negligence. Negligence is based on degrees. You should leave this to the jury. Notes: Coasess scenario on page 303. Two neighbors, Doctor and Confectioner, live right next to each other. Confectioners noise from making candy poses an externality on the Doctor. How much quiet can the Doctor demand? How do we decide where the flax should be placed? Supreme difference between McKenna and Holmes: - McKenna rights based argument, I have an absolute right to my property o Problem: moral hazard dont have to take into account what other people are doing. Plaintiff never has to consider BPL in what the plaintiff does. - Holmes far less absolutist and much more functional o Efficiency and cheapest cost avoider o Problem: slippery slope Derheim v. N. Fiorito Co. Is not wearing your seatbelt contributory negligence in an accident? Main point of the opinion/analysis: not wearing your seatbelt didnt contribute to the accident, so there is no contributory negligence.


Downloaded From Durheims timeline of when plaintiffs conduct was involved: CN no recovery for plaintiff

Eggshell rule

Doctrine of avoidable consequences

Plaintiffs Conduct Before: Vosburg (seatbelt), Bessie Stone (helmet) Plaintiffs Conduct during accident *Law takes snapshot here* Plaintiffs Conduct after accident

What does the court hold about seatbelts? Court does not allow a seatbelt defense. Failure to wear a seatbelt does not preclude your ability to recover for the accident. When establishing a contributory negligence defense, you have to establish a duty, breach and causation for the plaintiff. Arguments for and against a seatbelt defense: No Seatbelt Defense Administrability Slippery slope can expand to other things like not adjusting your headrest, etc. Cheap car/motorcycles Seatbelt Defense BPL says efficient (cost-benefit)

Last Clear Chance Doctrine

Fuller v. Illinois Central R.R. Could the train have stopped in time to stop itself from hitting the plaintiff? Even though plaintiff is liable since he didnt see the train coming, the railroad is still liable because they had the last clear chance to avoid injury. Last Clear Chance doctrine comes from Davies v. Mann. You should take steps to prevent the harm from occurring. Just because defendant was contributorily negligent, it doesnt mean that plaintiff is Washington Metropolitan Area Authority v. Johnson p. 313 in Notes This case has to do with the plaintiffs intent. Woman wanted to throw herself on the train unlike Fuller who did not want to get hit by a train. Two elements of Last Clear Chance When thinking about last clear chance doctrine, one usually thinks of the temporal relationship, but there is a moralistic aspect as well: 1) Temporal relationship a) plaintiff is CN Defendant is Negligent accident


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Unintentional typical neg.

Quasi intentional

Donkey (negligent)

Wagon Negligent

2) Moralistic Idea a. WMAA contributorily negligent because the plaintiff jumped. Last clear chance wasnt applied. Plaintiff was intentional, while drunk train driver is either reckless or negligent b. Intentional is the highest fault. Then, recklessness (wagon driver, train conductor) is of a higher fault than negligent (donkey). c. Adding another level with moralism. Sometimes moralism can trump temporal.


Lamson v. American Axe & Tool Co. 58 N.E. 585 (Mass. 1900) Traditional AR Plaintiff knew risk and was told by manager he could leave. Yet, the plaintiff stayed so theres an argument that he assumed the risk. At the turn of the century, this was the assumption of risk doctrine. Argument against assumption of risk doctrine: 1) economic duress 2) hard to change in job hidden hazards Argument in return: 1) risk premium Weve seen assumption of risk before in the Gyerman and Titus cases. Why assumption of risk? - Judges were in the pocket of many industrial corporations. If you establish assumption of risk, its a subsidy to the industry. - People know how dangerous certain work environments are and choose their professions based on how much money they want to make. Evolution of Assumption of Risk: AR Workers Compensation (1920s administrative mechanism, not lawsuits) Today workers comp is viewed less as a progressive triumph but more like a subsidy to the industry. It prevents most work-related tort cases from getting to court, which may result in huge punitive damages (from a jury system) to the corporation. Murphy v. Steeplechase Amusement Co. 166 N.E. 173 (N.Y. 1929) The Flopper Whats the plaintiffs theory of negligence? Cardozos comments in blue. 1) Dangerous: He did not foresee the risk of falling and getting injured a. Jerky motion no evidence of malfunction b. Safety mechanisms railing/padding wood photographs contradict any theory that there was no railing of padding c. Too fast Problem: Cardozo has no business revisiting the facts because thats already been decided in trial court by the jury. Cardozo says: 1) there was assumption of risk: a. saw people on the ride b. name itself shows the type of risk involved


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c. volenti non fit injuria 2) no malfunction Cardozos ways that plaintiff could recover despite assumption of risk: 1) Hidden Danger a. Counter argument against hidden risk: Harm within the risk (falling) 2) If there were more accidents a. Inherent danger was too dangerous to continue b. Global Negligence Argument taking into account factors outside of the case.???? i. Cost-Benefit Analysis = Social Benefit (SB/entertainment/subjective) < Social Cost (SC/medical) Assumption of Risk vs. Contributory Negligence 1) Why doesnt Cardozo talk about contributory negligence? a. AR = voluntary acquiescence (subjective) b. CN = objective (reasonable or average person) c. The two concepts are NOT the same. Primary and Secondary Assumption of Risk: Meistrich v. Casino Arena Attractions, Inc. 155 A.2d 90 (N.J. 1959) 1) Primary No Duty (tort-like) a. Defendant has no duty because plaintiff agrees No b. Consent 2) Secondary Contributory Negligence Defense a. Defendant is negligent but the plaintiff is unreasonable (objective, reasonable standard) or acted so Before Meistrich:

neg. Con. Neg. (CN)

AR - obj

CN subj.

Scenario: Under Meistrich: 1) Is the defendant negligent? 2) Is the plaintiff contributorily negligent? The whole analysis changes after the Meistrich decision assumption of risk doctrine dies.

is CN is Neg.


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is NOT negligent is Neg.



is NOT negligent

is Neg.; not CN but AR lost after Meistrich

Boar Case - Before Assumption of Risk defendant wins - Plaintiff recovers under Meistrich doctrine

Intentional Recklessness Negligence

Comparative Negligence
very unique in the tort system o usually its like the timelines below many levels of fault in comparative negligence

is Neg.

is Neg.


is CN

is Neg.


Li v. Yellow Cab Co. of California Problem with Contributory Negligence: 1) unfair because if Plaintiff is even slightly negligent no recovery 2) juries do comparative negligence (CMN) anyway CA Supreme Courts treatment of the statute 1) organizational 2) expect judicial evolution 3) only advisory Why would we want legislature to have control over statute: 1) democratic should be up to elected officials, not judges a. separation of powers 2) set in stone/fair notice issue REVIEW


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ASSUMPTION OF RISK 1) Pro arguments a. Blame you assume the risk by hanging around b. Freedom of contract/risk premium argument 2) Con arguments a. Coercive bargaining power problem can workers really decide where they want to work? b. Parternalistic statutory intent Sports Entertainment Context Flopper Case 1) Cardozos opinion - volenti non fit injuria doctrine plaintiff voluntarily signed up to ride the Flopper so defendant is not liable - 2 exceptions o Hidden dangers does not apply when you cant see dangers o Global standard social costs > social benefits (SB<SC) Primary vs. Secondary Assumption of Risk 1) Primary defendant is not negligent, either he has no duty or has not breached a duty 2) Secondary plaintiff is contributorily negligent (reasonable person) Assumption of Risk was very subjective, looking at plaintiffs intention. Meistrich abolishes assumption of risk. Rather than have this subjective flavor depending on the will of the plaintiff, he makes it objective depending on the reasonable person. Problems of having judicial change as opposed to legislative change: 1) antidemocratic judiciary is rather insulated from the rest of the populations 2) lack of notice spring new rules on people without any sort of notice Reasons against Contributory Negligence (CN): 1) unfair sometimes one person is more negligent than the other 2) sometimes juries do comparative negligence (CMN) anyway Problems with CMN: 1) Jury already does it 2) Multiple parties how do you apportion damages between the different parties? Li v. Yellowcab did not deal with this since there were no multiple parties 3) Administrability Under CN, its simple no recovery if defendant is contributorily negligent. Under CMN, have to determine the percentage of liability. 4) Lack of deterrence a. Some jurisdictions just use CMN b. Others use CMN if theyre in the same category of negligence but if theyre at a higher level, they use CN (negligence recklessness intentional) Pure Rule all proportional 50% Rule plaintiff needs to be less than 50% Problem with the Pure Rule: - Defendant gets more just because he drives a more expensive car. See example below. - 50% rule is more fair Defendant $200,000 90% fault Plaintiff - $10,000 10% a) contributory negligence - $0 for both b) Pure CMN plaintiff gets $9,000; defendant gets ($200K)*(10%) = 20 K a. Net payment is from plaintiff to defendant for $11,000 c) 50% CMN Plaintiff gets $9K, defendant gets $0


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Net = defendant gives plaintiff $9K

Why you would want to move from CN to CMN: DUTY?


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JOINT AND SEVERAL LIABILITY 2 sets of issues with regards to multiple defendants: 1) right of the plaintiff with regard to each defendant a. joint defendant is responsible for all of the damages b. several defendants only responsible for their share c. joint & several whatever defendants are remaining in the picture are responsible for paying up what the other defendants could not provide 2) rights between the defendants a. contribution loss divided between multiple tortfeasors b. indemnity loss shifted from one tortfeasor to another c. partial indemnity Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R. common law (1905) Plaintiff: Terminal Company (paid employees) Defendant: Railroad company Both were negligent in failing to carry out inspections and finding a defective nut. Court held that 1) No contribution (pari delicto equal fault) Hudson v. Craft a. Wrongdoer cant complain b. Contributory negligence if the plaintiff is even the slightest bit negligent, plaintiff cant recover anything 2) Indemnification (exception) Principal (more blame/responsible, some kind of intervening actor. This is like WMATA last clear chance.) vs. secondary wrongdoer Plaintiffs fault: Plaintiff vs. Defendant 1) Contributory negligence 0% 1. no recovery if at fault (=) 2) Last Clear Chance/WMATA 100% 2. exception. Diff. of kind in fault Multiple defendants 1) no contrib. 0%. 2) Indemnity 100% American Motorcycle Association vs. Superior Court 578 P.2d 899 (Cal. 1978) Novice motorcycle accident involving minor. Plaintiff sues AMA and Viking. AMA does a cross-complaint against defendants parents. 2 defendants organizers Cross-complaint defendant parents Writ of mandamus where you nominally sue the court. It allows you to appeal issues up to the appellate court in the middle of trial because you want to resolve a question. What does AMA argue that Li does to joint and several liability? 1) abolished indemnity 2) abolished joint and several liability a. compensation (if plaintiff is not at fault) b. hard to separate causes 3) Defendant harms others; Plaintiff harms self Defendant comes up with 3 liability rules. Who eats the cost of an insolvent defendant under these rules? Plaintiff = 30% Defendant1 = 60% insolvent Defendant2 = 10%

CMN (Li)


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1) pure joint and several (Defendants liable for insolvencies) a. P responsible for 30% b. D2 responsible for D1+D2 = 70% 2) Several (plaintiff liable for insolvencies) a. P responsible for 30% + D1s 60% = 90% b. D2 = 10% 3) joint and several with reapportionment a. the way they absorb the cost is their relative/comparative fault to each other: Plaintiff = 30% 75% (3/4 of damages); D2 = 10% 25% (1/4 of damages) AMA relationships 1) what plaintiffs can sue defendants for joint and several 2) what defendants can sue each other for contribution and indemnity a. No contribution old rule under Union Stockyards b. Contribution with pro rata share i. 2 defendants 50/50 CRUDE ii. * indemnification c. Partial indemnity REVIEW: 1) Right of plaintiff against each defendant Defendant comes up with 3 liability rules. Who eats the cost of an insolvent defendant under these rules? Plaintiff = 30% Defendant1 = 60% insolvent Defendant2 = 10% a. pure joint and several (Defendants liable for insolvencies) i. P responsible for 30% ii. D2 responsible for D1+D2 = 70% b. Several (plaintiff liable for insolvencies) iii. P responsible for 30% + D1s 60% = 90% iv. D2 = 10% c. joint and several with reapportionment v. the way they absorb the cost is their relative/comparative fault to each other: Plaintiff = 30% 75% (3/4 of damages); D2 = 10% 25% (1/4 of damages) 2) Right of defendants among themselves a. Example: $100K, defendants = 60%, 30%, 10% i. Historical rule 1. contribution no (0%) 2. indemnification (100%) ii. intermediate position rule in CA before AMA 1. contribution pro rata (33%/33%/33%) 2. indemnification iii. Partial indemnification (AMA) 60/30/10 3) Settlement a. Plaintiff settles: 0 settles = [Scenario 1: $100K; Scenario 2: $1M], Damages = $2.1 M b. Plaintiff sues AMCLYDE (32%) and River Don (38%). i. Pro Tanto 1. remaining defendants responsible for remainder = $1.1M = 32/70 ($1.1M) + 38/70 ($1.1M) Party Scenario 1 Scenario 2 $100K $1M 0 32/70 (2.1M - 100K) 32/70 (2.1M 1M) 1 38/70 (2.1M - 100K) 38/70 (2.1M 1M) 2 $2.1M $2.1M Total


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ii. proportionate 1. Damages = $2.1 M 2. 0 settles for 30% [Scenario 1: $100K; Scenario 2: $1M] 3. 1 = 32% (2.1M) 4. 2 = 38% (2.1M) Party 0 1 2 Total Scenario 1 $100K 32% (2.1M) = $672 K 38% (2.1M) = $798K ~$1.5 M Scenario 2 $1M 32% (2.1M) = $672 K 38% (2.1M) = $798K ~$2.5M

Pro Tanto with Contribution: 1 and 2 can sue 0 to equalize the amount. Proportionate share approach used in the McDermott case Summers v. Tice indeterminate defendant 199 P.2d 1 (Cal. 1948) Man gets shot in the eye but not sure which of the 2 defendants were the cause of the injury. Whos negligent? Trial court said the defendants were each negligently responsible. The cause of the main damage was the shot that went to the eye and they cant determine who shot the person. Policy Reasons in favor of the holding: 1) moralistic a. with respect to plaintiff, defendants are more culpable 2) evidentiary (Ybarra case) a. the presumption is that its evidence producing, provokes defendants to talk. 3) Incentive/deterrence want to discourage conduct that defendants engaged in. Theories: 1) alternative liability imposing liability on 2 negligent defendants, each of whom is equally likely to have harmed the plaintiff. a. Usually used with 2 defendants more probably than not the cause of the harm b. Ybarra res ipsa, conspiracy of silence problem. i. Similarities with res ipsa plaintiff has absence of evidence ii. Differences 1. no one knows what happened in this case 2. res ipsa when plaintiff cant prove breach 3. alternate liability when plaintiff cant prove causation 4. how is this like the blue bus problem? Ask for notes. FACTUAL CAUSATION 2 main issues in causation: 1) factual scientific or but for causation. Does the defendants activity have any link to the harm that was caused to the plaintiff? 2) Proximate where do we draw the line? How close do you have to be to the actual accident or damages for you to be fairly held responsible? Zuchowicz v. United States (2d Cir. 1998) 2 causal linkages: 1) Was drug factual cause? (800 mg) more likely than not a. Can the plaintiff establish this? Expert testimony times, rules out other causes. Differential etiology diagnosis. The problem with differential diagnosis is that it does nothing but correlates things, not statistically based at all. Correlation does not equal causation. i. A doctor sees only one patient. How do we really know if its because of this one case.


Downloaded From ii. If an epidemiologist studied a population and found 1 in a million causes doubt. But very expensive. iii. Usually, the study will trump the differential diagnosis. 2) Was overdose the but-for cause? (1600 mg) Probably. The test: a. If negligence increases risk of x b. and the x occurs Then, Presumption that negligent behavior caused the harm What does the court not deal with in this case? Theres a complicating factor: 1) plaintiff is pregnant so she cant get surgery a. no harm is caused b. yes i. last clear chance 1. plaintiff is CN, defendant is N afterwards, or 2. Defendant is N, plaintiff is CN afterwards Dertheim (seat belt case) doctrine of unavoidable consequences. Before AT After

Eggshell (seatbelt)

CN/ last clear chance

Doctrine of unavoidable consequences

Herskovits v. Group Health Cooperative Loss of a chance to survive 664 P.2d 474 (Wash. 1983) Catching the cancer early: 39% survival rate, late: 25% survival rate Doctors argument since the plaintiff would have died anyway, he claims that hes not responsible for the death. Problem with defendants position? Blanket release. Plaintiff can never recover and there are no incentives because doctors would never get sued (wont be held liable for anyone with a less than 51% chance survival rate). When can plaintiff recover because of harm? Holding in the case: 1) significant reduction in survival rate when failing to catch disease early rather than late 2) could not be said that but-for the defendants malpractice, plaintiff would have survived, but Defendant was but-for cause of the reduction, not entitled to a full recovery What happens if the court doesnt allow a reduction in damages? 1) toxic chemical company a. 25% increase in cancer rate b. Problem is overdeterrence, liable for any increase and responsible for the cancer to begin with. Background: 80 cancer victims, 20 additional rather than being responsible for the 20 additional, company has to cover a 100 cancer victims 3 schemes: 1) Traditional a. Risk that is caused > 51% 100% recovery (ALL); Risk < 49% 0% recovery (NOTHING) Scenario A 80 Background 20 Chemical 0 Recovery Underdeterrence Scenario B 80 Chemical 20 Background 100 recovery Overdeterrence


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Hybrid (Herskovitz) a. Risk < 50 % recovers reduced damages (proportion of risk); Risk > 51% recover 100% b. A = 100 recover 20% of the damages. c. B = 100 recover 100% of the damages d. Overdeterrence problem 3) Pure risk-based regime a. Always get the risk b. Proportion to risk c. Scenario A everyone gets 20% d. Scenario B everyone gets 80% When is it that you switch from one regime to another? Toxic torts tend to use the Herskovitz (Hybrid) theme. Example Population: 100 60% will get cancer due to a chemical 10% of the population gets cancer but we know that they would have gotten cancer based on their background 30% get no cancer How do we determine damages in this case? Who can sue? 1) Traditional a. People who have cancer will sue = 70% b. They will recover 100% damages in all the cases. Why? Given that you have cancer already, whats the probability that the cancer was caused by the chemical? 60/70 = 6/7 = higher than a preponderance of the evidence. c. No good because theres overdeterrence. The chemical company is only responsible for 60 of the deaths, not 70. d. Total liability = 70 2) Probabilistic a. 70% will sue. b. How do we fix the overdeterrence in the traditional scenario? If you allow each of these people to recover 6/7 of the damages. c. Total liability = 60 3) Radical Risk Regime (Damage = 60% increase in cancer risk) a. 100 people can sue and they receive 60% in damages. b. Total liability = 60 c. We cant have this regime because theres a slippery slope argument. Administrative nightmare because everyone imposes risk all the time. d. Also, the compensatory purpose of tort law is lost. Under this regime, 30% of the people who dont need the additional amount of money are benefiting. In the other 2 regimes, you are only paying those who are suffering from cancer. Kingston v. Chicago & Northwestern Railway 211 N.W. 913 (Wis. 1927) Problem: Multiple sufficient causes. 2 fires (one from railroad and one unknown source that was independent and sufficient) contributed to the plaintiffs house burning down. Problem: 2 sufficient causes 1) Negligent defendants: If the fires were due to 2 negligent defendants = joint and several rule (one or both of them are going to pay) someone is to blame 2) Natural Cause or nonnegligent defendant: 1 negligent defendant + 1 forest fire = no recovery


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Apportionment Problems: Smith v. JC Penney (Or. 1974) - Plaintiff purchases a flammable coat. Coat was set ablaze by a fire started by the negligence of the defendant service station employees. Court held that the defendant was liable. JC Penney definitely liable since the coat very likely contributed to her injuries. - Was gas station or JC Penney more liable for the injuries? No way to tell who is more to blame. Because there are apportionment problems, perhaps you should take a plaintiff as you find them??? Skipworth v. Lead Industries Association 690 A.2d 169 (Pa. 1997) Plaintiff suffered from lead poisoning but could not identify the manufacturer of the lead paint in her home and therefore joined substantially all manufacturers of lead pigment used in residential house paint from 1870 until 1977, under various theories of collective liability. Court held that defendant was not liable since they are unable to identify the manufacturer of any lead pigment in the house. Sindell 1) DES anti-miscarriage drug with long latency period. Drugs were identical. 2) Market share liability would approximate their responsibility for injuries. a. Manufacturer A 30% of market, B 50%, C 20% 3) Sindell held that plaintiff need not identify which particular manufacturer made the drug and that identical manufacturers could are liable in shares proportional to their share of the market at the time the drug was ingested, REGARDLESS of actual causation!! There is a sense of rough fairness/justice at the end of the day. How does Sindell apply to Skipworth? 1) Fungible a. Lead paint is not fungible because theres: i. Differing bioavailability. ii. Amounts you dont necessarily use the lead compounds in the exact same amounts. b. If theres no fungibility, does Skipworth start looking like Blue Bus (80/20)? Yes. i. In Blue Bus, we have no idea which bus caused the accident, we only know the probabilities. Its not fair to impose market share here b/c the share of the market is not linked to the likelihood of culpability. ii. In Sindell, since all of the chemicals were exactly the same, the market share had a 1:1 relationship with the culpability. iii. Skipworth rejects Sindell because Skipworth looks more like Blue Bus. 2) Entry/Exit a. In Sindell, we know exactly when plaintiff took the drug. But in Skipworth, the time period is unclear ~ 100 year period would hold some manufacturers that could not potentially have been a tortfeasor liable. Market Share Liability: 1) Fungible - 40/30/30 2) Non-fungible (Skipworth) a. Blue Bus Problem 3) Proximate Cause a. Moral culpability b. Foreseeability c. Intervening causes i. General Rule of Thumb: If the intervening/intentional/reckless actor (I.A.) > culpability than original/negligent actor (O.A.) IA = superceding cause 1. Exception: Kline case. Landlord is negligent for not providing security at the apartment building and the thief was the intentional tort. Kline extended liability to landlord.


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Mugger is SO foreseeable that the court was willing to hold the landlord liable. ii. I.A. has lesser culpability 1. Example: City of Lincoln. Captain was nonnegligent and the original actor was negligent. Intervening cause requires some differential in culpability and foreseeability, not just any willful act. iii. Same culpability 1. foreseeability Intervening Cause Examples: Person A negligently starts fire and it catches fire to the house of B. 1) Firefighter is non-negligent. a. No intervening cause 2) Firefighter negligently fails to put out fire. a. Jury question. Very unclear 3) Firefighter intentionally fails a. Intervening cause Bus is speeding: 1) Person in the path of bus trip on their own feet and gets hit by the bus. a. Non-negligent. No intervening cause. 2) Person negligently leaves umbrella on the ground, plaintiff trips on umbrella, gets in the way of bus. a. Unclear. Probably an intervening cause b/c maybe the bus driver couldnt foresee this. 3) person pushes another in front of the bus a. Intervening cause. Lack of foreseeability and moral culpability. City of Lincoln Modified: Captain is negligent, ship is lost ship would have been lost regardless of what captain did. It is not a but-for cause So if IA is not a but-for cause, you cant break the chain of causation. Two arguments: 1) no escape lets just make sure that all the manufacturers are subject to market share. (Hymowitz position) It all balances out at the end of the day. 2) Escape if evidence says No/Counter-argument to No Escape. If the plaintiff knows which pill/manufacturer he took, why should the other manufacturers be liable? (Sindell position) It is similar to what happens in Summers v. Tice (alternate liability?). Example 1= 18% (insolvent) 2= 18% 3= 30% 4= 30% 5= 2% (not joined) 6= 2% (not joined) 1) Pure Market Share w/Several liability you only pay your share despite other defendants. a. Defendant 2 = 18/100 b. Plaintiff eats cost of bankrupt defendant/lack of joinder 2) Market share of joined w/Several liability defendants responsible for joining others (joinder) a. Plaintiff eats insolvency b. Defendant 2 = 18/96 3) Joint and Several Market Share defendants eat insolvency/lack of joinder a. Defendant 2 = 18/78



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Whats the difference between the rules? - whos responsible that everyone is in court when this thing is litigated - whos responsible for the cost of bankruptcy PROXIMATE CAUSE 1) Factual Cause 2) Proximate Cause a. Direct b. Foreseeability I. Physical Injury Ryan v. New York Central R.R. 35 N.Y. 210 (1866) Issue: Is the owner of the first building liable to the owner of an adjacent building for the damage caused by a fire in the first building? [Defendant set fire to their woodshed by accident.] Rule: Every person is liable for the consequences of his own acts and liable in damages for the proximate results of his own acts, BUT not for remote damages. Holding: Defendant is not liable because damages incurred are the remote results of the defendants negligence. Why is the court concerned about extending liability here? 1) Crushing liability/destruction of society. Nearly all fires are caused by negligence. Man can insure his own house but cannot insure his neighbors building as well would create a liability that would lead to the destruction of society. 2) Hazard of neighbor each man runs the risk of neighbors conduct and protected by insurance. a. Losee v. Buchanon Boiler. No strict liability because we impose bilateral risk on each other. Counter-arguments to the courts reasoning: 1) Negligence Proximate Cause: 1) moral culpability if it was not a negligent act, but intentional we might extend the liability 2) anticipate/foreseeability 3) accidental (Kingston) natural other causes 4) intervening cause chain of events that lead to accident. Another person/cause introduces itself into the picture. Is it an intervening cause such that it breaks the chain of causation? a. City of Lincoln case: Defendant collides with ship captain tries to bring the ship to port but cant ship is lost. Is the chain broken by the defendant or the captain? Captain was acting reasonably so its not intervening. i. What if captain is negligent but the ship would have gone down anyway? Wagner v. International Ry. Danger Invites Rescue 133 N.E. 437 (N.Y. 1921) Danger invites Rescue. Similar to a Tarasoff-type duty. Who caused the plaintiffs injury? - The railroad? Actively encouraged plaintiff to go out hunting for his cousin - Does the plaintiff break the chain of causation by choosing to go off on his own to go looking for his cousin? Court says no. It is a natural reaction. Its not an intervening cause if the action is reasonable. Stagecoach case: jumping off the stagecoach because you know its out of control. - What if the plaintiff starts climbing all over dangerous equipment looking for the cousin? - Action of another person may be some sort of intervening cause if theres some sort of unreasonableness or intentionality. WMATA case: Train driver is drunk and victim intentionally tries to commit suicide. Court doesnt apply the last clear chance doctrine because the victim had greater moral culpability then the train conductor.


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In re Polemis & Furness, Withy & Co. [1921] 3 K.B. 560 Was it foreseeable that the plank would cause the explosion? No. But was the dropping of the plank itself negligent? Yes, because the dropping of the plank was due to the negligence of the servants. Duty Breach risk that the plank could hit someone Causation damage is the explosion The damages claimed are not too remote, Problem: Harm is not within the risk. Harm was the explosion but the risk was that someone could get hit by the plank. Is it like Vosburg? Vosburg was intentional (we like to extend liability) and this case is negligence. Vosburg plaintiff was foreseeable but not in this case. Difference of degree and difference in kind. Court reasoning: Once theres negligence, the defendant is responsible for all direct harm that results from that negligence. Court does not care about harm not within the risk. If it is remote, then youre not liable. Problem: What is DIRECT HARM? How does this compare to Wagon Mound? Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (Wagon Mound (No. 1)) [1961] A.C. 388 (P.C. Aust.) Polemis Type Analysis: They would be held liable because the fire was a direct result of the defendants negligent act of letting oil leak into the harbor. We dont care about quality of damages, liable for everything that happens as a result. Wagon Mound Analysis: Foreseeability. Is it probable? Harm of fire was not within the risk. Beyond purely overruling Polemis, why might the 2 cases be distinguishable? In Wagon Mound, the plaintiff sends the sparks and caused the fire. The plaintiffs conduct was in between the negligent act and the resulting harm. In Polemis, no human act intervened. However if the plaintiffs act amount to assumption of risk or contributory negligence it would come out to same outcome as Wagon Mound defendants are not liable. Think about the chiropractor case. Palsgraf v. Long Island R.R. 162 N.E. 99 (N.Y. 1928) Appellate Division found that the defendant was negligent for helping man on to the train led to suitcase with fireworks causing an explosion on the tracks debris hit Mrs. Palsgraf. Cardozo develops a relational model: Negligent with respect to guy Duty Argument Not negligent with respect to Palsgraf no violation of her right. The negligence was to the man with the suitcase, not Palsgraf. She cant rely on a breach of duty to another to support her case. How else could Cardozo have reached the same conclusion? Proximate Cause Argument if its foreseeable, whether its direct. Prox. Cause Arg.

Cardozo says that you evaluate duty first before you deal with the causation. You can only sue if theres a duty. You can only win if theres a proximate cause. But Cardozo says that the 2 are inextricably linked and theyre the same thing. For example: In Kline, landlord has duty to tenant to protect and therefore is the proximate cause of injury. OR Landlord has no duty to protect against acts of third parties, therefore, landlord is not proximate cause of injury in this case.


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The more expansive the duty, the more expansive the proximate cause becomes. Who rules on whether person A has a duty to person B? The judge, not the jury. Who decides whether something is a proximate cause? The jury, not the judge. Cardozo took what everyone thought as proximate cause and pushed it up to duty so that he can rule on it. Dissent by Andrews: Duty is general. Heaven v. Pender. Proximate Cause (policy influenced) But For, inextricable link (natural chain), and foreseeability. Causation is both factual (analytic) and proximate (policy). Where you draw the line with causation depends on what you want tort law to do. Palsgraf has 2 takeaway points: 1) relationship between duty (determined by judge) and proximate causation (determined by jury) substantial link between the two. You could limit liability by limiting duty or proximate cause. a. Example: Tarasoff case. A (doctor) has relationship with B (assailant) but has duty to C (victim). The doctor is the proximate cause because he was part of causal chain in failing to warn the victim. 2) Andrews view much of whether you hold that someone has a duty or was a proximate cause has to do with POLICY. Trying to do something with tort law. Not purely analytic. Polemis v. Wagon Mound Polemis: only liable for direct harm, foreseeability is irrelevant. Corrective justice element you shouldnt be negligent in the first place No deterrence (unable to get) they cant see it, they wont take the care to prevent it Compensation argument

Wagon Mound: - foreseeability for liability - unfair to hold people accountable for unforeseeable things - deterrence - better to have self-insurance because it spreads the losses


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Strict Liability - Traditional

Sea of Negligence with pockets of strict liability: - trespass to land - McGuire case insanity - escaping things under Rylands v. Fletcher - vicarious liability doctrine (employer/employee) 1) 2) 3) 4) I. Animals Ultrahazardous activities (blasting) Nuisance Product Liability Animals:

Gehrts v. Batteen 620 N.W.2d 775 (S.D. 2001) 1) Wild Animals/Dangerous and Domestic strict liability a. Global Negligence the act is dangerous in and of itself. 2) Domestic Animals knowledge that your animal was violent or failure to exercise reasonable care. a. Knowledge (at least one attack) strict liability i. Negligence because duty of care (in failing to act) is breached if plaintiff can establish owners knowledge of animals dangerous propensities ii. Assumption of risk and contributory negligence are available to temper this liability b. No knowledge ordinary negligence standards of reasonable person and foreseeability Court classifies knowledge as some sort of special negligence rule: no knowledge Defendant just has to exercise reasonable care in the circumstances Assumption of Risk 1) No Duty 2) Contributory Negligence Scenario 1: Defendant knows Strict liability. Plaintiff doesnt no assumption of risk. Defendant is liable. Scenario 2: Defendant doesnt know negligence. Plaintiff doesnt know assumption of risk. Defendant not liable. II. Ultrahazardous or Abnormally Dangerous Activities

Spano v. Perini Corp. 250 N.E.2d 31 (N.Y. 1969) Plaintiffs garage and car was damaged by blasting at a construction site 125 yards away. Original Rule: a) physical invasion (historically trespass) strictly liable b) non-physical (historically case) negligence Defendants argument: there was no negligence and therefore they are not liable. Court gets rid of this old rule and institutes new one. One who engages in blasting must assume responsibility and be liable without fault, for any injury he causes to neighboring property. Every individual is entitled to the undisturbed possession and lawful enjoyment of his own property. FOR PUBLIC POLICY, it is better than one man surrender a particular use of his land than that another should be deprived of the beneficial use of his property altogether. Cost Internalization.


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Indiana Harbor Belt R.R. v. American Cyanamid Co. 916 F.2d 1174 (7th Cir. 1990) Why is the activity not ultrahazardous? The activity itself is not ultrahazardous. Restatement uses these factors to determine whether an activity is abnormally dangerous: 1) risk cant be eliminated with reasonable care posner says no 2) high risk/likely harm 3) extent to which the activity is not a matter of common usage 4) inappropriateness of activity to location posner says no 5) extent to which value to society is outweighed (global negligence) by risk Each factor is a different facet of a common goal for the law to govern accidents that negligence liability cannot control. There are some accidents that cannot be avoided even when you take reasonable care. Strict liability is confined to these kind of ultrahazardous cases. Why would we want to have this rule generally as opposed to negligence? 1) new technology (high danger) a. research incentives to find cost-effective methods of reducing or eliminating injuries 2) Incentives beyond BPL a. Activity level incentives for potential defendants to engage in safer activities b. Location c. Innovation PL

B 3) Evidentiary evidence of negligence a. When you cant tell who was negligent, S/L will lead to greater accuracy b. counter argument: impose res ipsa 4) nonreciprocal risk (distributive fairness argument) a. more loss distribution because injurers are more likely to be large institutions that can spread the cost of liability directly in their prices or services or to purchase liability insurance. 5) SB<SC acts like a quasi-tax 6) Quasi-Intentional Tort a. Intent to act with due certainty of consequences b. Intentional tort has an intent to harm Strict Liability Madsen v. East Jordan Irrigation Co. 125 P.2d 794, 795 (Utah 1942) This case starts off as a strict liability case because it involves ultrahazardous activities. But [minks eating their young] is harm not within the risk, so we need to look at Polemis and Wagon Mound. Restatement on p. 593 states that the rule is harm within the risk. This would ordinarily be under strict liability - Problem: Harm not within the risk no liability? o Governed by the negligence rule. Under the restatement on page 593, this case falls out of strict liability category and fall into the negligence rule. If there was negligence (i.e. misplaced dynamite), assumption of risk and contributory negligence are possible defenses. Wagon Mound and Polemis deal with harm not within the risk. The question there is: 1) direct harm liability (Polemis) 2) Foreseeable liability (Wagon Mound)


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NUISANCE a. A doctrine in decline i. EPA and local ordinances take care of these issues. b. Trespass physical invasions c. Nuisance non-trespassory, nonphysical (i.e. pollution, smells, light, noise) invasions detracting from the use of your land. i. intentional, unreasonable (specifically defined) 1. intent/continue despite knowledge a. Looks a lot like intentional tort - Garrett case. Why not make this an intentional tort? If you prove i. unreasonableness has a threshold requirement if you a and b SL continue despite knowledge 2. (substantial damage)/unreasonable interference a. Needs to constitute unreasonable interference with property ii. unintentional (negligence) 1. Unreasonable aspect here as well. If unintentional, then determine unreasonable using the typical negligence standard. a. Under the restatement, unreasonable means either: i. harm outweighs value of the activity 1. SB> SC, pure cost-benefit, global negligence ii. harm is serious but compensation (liability) does not make infeasible 1. radical concept

Private Nuisance Vogel v. Grant-Lafayette Electric Cooperative unintentional vs. intentional nuisance 548 N.W.2d 829 (Wis. 1996) Facts: Stray voltage case that resulted in the plaintiffs cows being harmed. Plaintiffs alleged that defendant created a nuisance. Holding: Stray voltage can be a nuisance if it hinders a persons private use and enjoyment of his own land. However, the invasion was unintentional and thus actionable under negligence. It would be intentional if the plaintiffs continued to impose excessive levels of stray voltage after it had knowledge of the problem. 4 ways of getting liability for Nuisance: 1) Traditional Nuisance a. Intentional/continue with knowledge that harm is occurring b. SB<SC = total harm outweighs the societal benefit. (Global Negligence) 2) Modern Nuisance Truly a a. Intentionality requirement in traditional PLUS: strict i. Substantial harm to person/property liability std. 1. Footnote: Doesnt make activity infeasible 3) Unintentional Nuisance a. Essentially negligence (Vogel v. GLEC) b. Fails to meet BPL/reasonable person standard 4) Ultrahazardous a. Strict liability for these activities. i. Among the reasons for holding ultrahazardous activities to be strict liability are 1) that it imposes a nonreciprocal risk (which is what happens when you are "negligent"), and 2) that it sometimes applied when the benefits of the activity are outweighed by the costs. Both of these are very negligence-like in the nature. Which among these is really a strict liability standard and which is a negligence standard in disguise? Traditional, Unintentional and Ultrahazardous negligence standards in disguise Modern Nuisance is truly a strict liability standard.


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Rogers v. Elliott 15 N.E. 768 (Mass.1888) Facts: Plaintiff was recovering from sunstroke when church bells started ringing and caused him to go into convulsions. Doctor informed defendant of this and asked him to stop ringing the bells. Defendant stated that he would ring the bells anyway since he had no love for the plaintiff and would ring them even if his mother were ill. The next day the bells rang again and the plaintiff suffered further damage, bringing the action. [This would normally go under unintentional nuisance since the defendant had no knowledge that the bells would cause someone to suffer convulsions.] Issue: By what standard, as against the interests of a neighbor, is ones right to use his real estate to be measured. Rule: When the nature of the act extends its influences to those in the vicinity and its legal quality depends upon the effect of its influence, look at the effects upon ordinary/ reasonable persons in general, not those who are abnormally strong or super-sensitive. Legal rights to the use of property cannot be so uncertain Why is the court reluctant to impose nuisance liability? - Whether or not the church can ring the bell would depend on who lives there in general, not a particular person. - The church was always there. If the plaintiff is ill, the plaintiff could go somewhere else. The plaintiff put himself in the place of exposure. Would this be coming to the nuisance? Refer to Ensign case Why doesnt the eggshell skull rule apply here? Duty Breach Causation Liability Damages This is not a repudiation of the egg skull rule because liability has not been established yet - threshold of liability to damages is being determined. Once you pass the line from liability to damages then apply the Eggshell skull rule for damages. Spite Fence Doctrine - Can you build a fence just to spite your neighbor? - In this case, defendant showed malice by continuing to ring the bell even after he knew of plaintiffs condition - Usual requirement is that the defendant show a useful purpose, which is satisfied in this case Ensign v. Walls coming to the nuisance 34 N.W.2d 549 (Mich. 1948) Facts: Plaintiff moves right next to breeding facility for St. Bernard dogs. Nuisance claim based on odors, noise and escaping dogs. Kennel had been there for 20 years. Coming to the Nuisance Doctrine: - Majority View: o It is no defense to show that the plaintiff came to the nuisance. Plaintiff has a right to the exclusive use and control of his own land and holds that the defendant is not entitled to acquire by her unilateral conduct an easement to cause damage to the plaintiffs property. o property rights issue kennel didnt buy the adjoining land and if theyre allowed to carry on their business at the expense of the neighbors, then they effectively have rights to their neighbors land as well. o reliance/fairness issue related to property rights issue - Minority View: o assumption of risk argument the plaintiff knew what they were getting into when they built the house right next to the dog kennel. Usual types of remedies: 1) Pure injunction 2) Delayed injunction 3) Permanent damages 4) No remedy Whats the usual rule for nuisance? Injunction (nothing but a legal right)


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Boomer v. Atlantic Cement Co. when private controversies affect public issues 257 N.E.2d 870 (N.Y. 1970) Facts and Issue: Court found that the cement company was committing a tort, which is a nuisance, and that plaintiffs suffered substantial damages but was reluctant to grant injunction for Boomer, because: a) General public welfare we need cement b) Socially inefficient to shut down the factory - $2M, compared to the actual damages $200K a. Large disparity in economic consequences of the nuisance and the injunction General Rule: When a nuisance results in substantial continuing damage, an injunction shall be granted. Exception to the Rule: Payment of permanent damages can be substituted for an injunction. Holding: Court decides to grant the injunction unless the defendant pays personal damages to plaintiffs which would compensate them for the total economic loss to their property present and future by defendants operations. Court does not grant injunction, but permanent damages: a) Damages fail to account for everything. b) No incentive for innovation a. Although the court argues that the risk of being required to pay permanent damages might encourage research for improved techniques to minimize nuisance. Dissent: Judgment is wrong for public policy reasons the courts are allowing the cement company to continue a harm (air pollution) for its own private interest with no public benefit. Reasons why this transaction does not actually occur: 1) Townspeople have non-economic reasons 2) Transaction costs a. Administrative b. Mad ppl refuse to bargain 3) factory feels blackmailed into large sums 4) collective action problems among townspeople I.

Link: Ploof and Vincent (boat cases)

Complications to Nuisance a. Extrasensitive use an objective standard. Standard of a normal person. Rogers v. Elliott i. Counterargument Vosburg/Eggshell skull rule. But that is a question of damages. b. Malicious acts/Spite Fences i. No good reason for the fence, other than spite. 1. Requirement is that you need to show a useful purpose. You cant just build a fence because you dislike someone. c. Coming to the nuisance i. Courts are split: 1. Majority: no rule here. No defense that plaintiffs came to the nuisance. 2. Minority: Yes there is a coming to the nuisance defense and it sounds like assumption of risk. ii. purchased injunction 1. Spur Industries, Inc. v. Del E. Webb Development Co. (Ariz. 1972) court will not enjoin the defendant until the plaintiff compensates the defendant for the costs it would take to move them away. [It would have accepted a coming to the nuisance defense if the plaintiff had not already sold units to individual purchasers.] a. This relief is limited to cases where a developer, with foreseeability, brought a population into a previously agricultural/industrial area which made an injunction necessary against a lawful business and for which the business has no relief.


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Boomer a. Debate about the appropriate remedy for a nuisance. b. Ex-ante aspect: damages can be paid before the tort occurs. i. Injunction 1. Doesnt necessarily mean that the plant is going to close. The defendant can buy the plaintiff out. Essential asset of the Coase Thm parties can still bargain around the injunction. Problems: a. You never know if the collective action of the townspeople will stop this problem b. Transaction costs ii. Permanent damages 1. forced transaction


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Strict Liability Products Liability

I. Privity of Contract Limitation traditionally, a contractual relationship was required. This prevented injured party from suing the remote supplier of the product. a. Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842) b. Plaintiff who was injured by a defective stagecoach that had been supplied to his employer. In his suit against the maker of the stagecoach, he was denied recovery b/c of the absence of privity. You can only sue one step back (party in possession of the product just before the injury occurred). Otherwise slippery slope argument and anyone involved in the accident could sue. c. A (Manufacturer) B (Postal Service) C (Coach) i. No duty from A C Rejection of the Privity Limitation Negligence standard a. MacPherson v. Buick Motor Co. (N.Y. 1916) b. Plaintiff is driving his car when his wheel disintegrates. He sues the car dealership. c. If the nature of a product is such that it is reasonably certain to cause danger when negligently made, then it is dangerous. d. A(Buick) B(dealer) C(Plaintiff) i. Contract between A B and B C but none from AC. Looks like Tarasoff or Kline case. e. Cardozos opinion: i. Historically no rule (inherently dangerous exception). ii. Thomas v. Winchester (1852 - mislabeled poison) 1. Seller who affixed the label was held liable because his negligence put human life in imminent, foreseeable danger. iii. Loop v. Litchfield (1870 - circular saw) limiting case 1. Even though circular saw was inherently (but not imminently) dangerous, manufacturer pointed out defect to buyer who assumed the risk. Also, seller was not liable b/c of terms of lease. iv. Losee v. Clute ( 1873 exploding steam boiler) 1. Doctrine is not applied to the case of the boiler. Buyer not only accepts the boiler but tests it. He could be seen as an intervening cause, inserting himself into the boilers operation. v. Devlin v. Smith (1882 expansion - scaffolding case with the painters) 1. Do you need privity of contract? No. Contractor had duty to the workers to build scaffolding with care, irrespective of his contract with the workers master. 2. Extension because scaffolding is not inherently dangerous. It is dangerous if its badly built (conditional). vi. Statler v. Ray Mfg. Co. (1909 - another extension) 1. Exploding coffee urn. Manufacturer liable if its negligently made. If the product is inherently dangerous, then youre negligent. Privity of contract doesnt matter. vii. Why eliminate privity of contract? 1. Societal change a. Consumer Manufacturer viii. Cardozos New Rule: 1. Consumer can sue the manufacturer under 2 conditions a. Duty standpoint i. Knowledge of third party (other than the buyer) use Link between ii. Knowledge of no added testing duty and b. From a causation standpoint: causation i. Knowledge of third party who will use looks like foreseeability ii. Knowledge of no added testing looks like no intervening cause



Downloaded From Cardozos rationale: a. This is to prevent immunization of companies by clever structuring. b. Administrative reason inefficient that the consumer has to sue the dealer who in turn has to sue the manufacturer. III. Negligence to Strict Liability a. Escola v. Coca Cola Bottling Co. of Fresno (Cal. 1944) i. Coca Cola bottle shatters in waitress hand. 1. Majority uses negligence rule and res ipsa loquitur (3-part test): a. Ordinarily doesnt happen without negligence b. Instrumentality was within the defendants exclusive control c. No contributory negligence 2. Traynors Concurrence: a. Rather than using negligence, we should deal with this case under strict liability. 3. Reasons for Strict Liability: a. Loss minimization Best position to prevent damages (cheapest cost avoider) activity level b. Manufacturer has access to evidence c. Loss spreading argument manufacturer is in the best position to spread the losses. Manufacturer engages in insurance regime which would spread losses among people or over time (the temporality aspect). d. Counterarguments: i. Manufacturer can just charge more. ii. First-party insurance health-insurance iii. Complaint is that it minimizes choice. iv. Losee says negligence is the rule because we all impose risks on each other. IV. Rise of Warranty Rules: a. Implied Warranty (promise or guarantee) i. First form of implied warranty liability: Uniform Sales Act courts held that food manufacturers were directly liable to the consumer for defective foodstuffs on the theory of breach of implied warranty: 1. Contract: Consumer Expectation (like Strict Liability), Privity (Henningsen case) 2. Tort: Privity (exception: inherently dangerous), Privity (MacPherson), Negligence Strict Liability (suggested in Escola) b. Warranties of merchantability (products quality) i. Tied into privity of contract proposed abolishment because of MacPherson ii. Expectations test, whereas torts use reasonableness, BPL, and cost-benefit tests c. Res ipsa loquitur is fraud Greenman 1st case of Rise of Strict Liability: Strict Product Liability Torts 1) Privity problem MacPherson 2) Negligence Strict Liability Issue Escola concurrence (1944); Greenman (1963) 3) Implied warranties consumer expectation a. Privity is abolished in Henningsen (NJ, 1960). Court held that i. Implied warranty of merchantability ran not only from the immediate seller but also from the manufacturer, even if the product was not food ii. Invalidated the disclaimer on the product, on grounds that it could not be disclaimed if in connection with personal injury THE RESTATEMENTS Restatement (Third) Products Liability Section 1 One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. 2.


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Section 2 Categories of Product Defects: 1) Manufacturing a. Departs from the intended design even though all possible care was exercised. b. Strict liability rule 2) Design Defect a. Foreseeable risks could have been reduced/avoided by a reasonable alternative design i. Looks a lot like negligence b. Unreasonably dangerous because you didnt impose this alternative c. How else might you define design defect as opposed to reasonable alternative that would have reduced the harm? i. (*) Could be defined under some consumer expectation standpoint. Its not about costbenefit, but what the consumer thinks the consumer is buying. 3) Warnings a species of design defect. Defective because of inadequate instructions/warnings when the foreseeable risks of harm posed by the product could have been reduced/avoided by reasonable warnings. Harm Casa Clara Condominium Association, Inc. v. Charley Toppino & Sons, Inc. (Fla. 1993) Facts: D supplied concrete for construction projects, one being for the condos & homes that P owned. Some of the concrete contained a high content of salt that caused the reinforcing steel inserted in the concrete to rust, which caused the concrete to crack & break off. In this case, manufacturer of the concrete cant be sued because theres no privity of contract. Economic Loss Rule: Tort recovery is prohibited when a product damages itself, causing economic loss, but does not cause personal injury or damage to any other property. No tort liability when product does not meet consumer expectation. Holding: The economic loss rule was applicable and precludes recovery for purely economic losses under a negligence claim. Contract principles were more appropriate than tort principles for recovering economic loss without accompanying physical injury or property damage. For recovery in tort there has to be a showing of harm above and beyond disappointed expectations, and a buyer's desire to enjoy the benefit of his bargain was not an interest that tort law traditionally protected. The concrete did not damage other property, because petitioners purchased homes as a finished product, not as individual components & concrete became an integral part of the finished product and thus other property was not injured. Economic justification: The public should not have to bear the economic loss sustained as there are protections for homebuyers & they have the power to bargain over price. Bargaining power = assumption of risk. The builder made the choice to use the concrete & therefore you should sue the builder rather than the manufacturer. Torts vs. Contracts: - Torts deal with injuries (personal) - Contracts consumer expectations - CAN recover: Personal Injury, other property - CANT recover: Economic losses (performance) Seller or Distributor - Rule: Cant sue the casual seller (i.e. bake sale) o negligence rule applies - Why would we want this rule? o Societal benefit (continue casual selling) subsidy argument o No loss spreading o Not the (industrial) manufacturer wont research alternatives o Res ipsa works better with casual Cafazzo v. Central Medical Health Services, Inc. (Pa. 1995) Facts: Patient sues physician and the hospital for a defective prosthetic jaw. The doctor takes on the role of the retailer. Issue: Whether the physician and hospital are sellers under 402A. (2 nd Restatement) Negligence? Doctor + Jaw determine patient/consumers need for the jaw.


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Negligence rule acts as a subsidy to the medical profession because it provides a social good. Holding: The provision of medical services is very different from the sale of products, is unaffected by 402A and not an exception to the rule. To determine whether something is a sale, look at what is being done, not what is being charged: Strict Liability Hypo/Spectrum: Circuit City installs car radio for you Strict Product Liability Car Mechanic sells you a battery and installs it for you Car Mechanic sells you a transmission and uses some kind of gear In this case, doctor putting in prosthetic jaw through surgery Negligence A. Casual Seller B. Service v. Seller a. Factors influencing Strict Liability vs. Negligence: i. Do-It-Yourself/Expertise service itself ii. Select Part marketing of selection iii. Necessity of Service/Part iv. Learned intermediary doctrine (related to warnings) if your doctor is a learned intermediary, theres an assumption that the doctor will inform you of the risks/benefits. No information pamphlet needed. Murphy v. E.R. Squibb & Sons, Inc. (Cal. 1985) I. Does a pharmacist selling medications fall under this scheme? Pharmacist provides service not sale of a product. II. Incentives i. Pharmacist will not carry or refuse to dispense drugs (care, want this (exercise influence)) or raise prices (more loss spreading) III. Doctor prescribes i. Pharmacist providing service to doctor. DESIGN DEFECTS What are the tests for a design defect? 1) Open and obvious a. Traditional 2) Consumer Expectation (warranty) a. 2nd Restatement b. 1 and 2 are under the same category 3) Risk-Benefit Test: If it can be made safer cheaply(B)/effectively(PL) a. Wade b. Burden can go either way c. You can impose liability without reasonable alternatives (Global Negligence) 4) Reasonable alternative consumer choice a. 3rd Restatement b. Burden is placed on the plaintiff, must show the reasonable alternative c. Youre only strictly liable if there was another way of doing this

Intended, foreseeable use

Volkswagen of America, Inc. v. Young (Md. 1974) Facts: Plaintiff drives a Beetle and gets rear-ended. The seat breaks away but no manufacturing defect. Plaintiff argued that the seat assembly was unreasonably vulnerable to separation from the floor upon collision. Issue: Is this clearly a design defect? Rule: Maryland law says that the product must be used and not fit for the use intended. Is getting into an accident an intended use of the car? 1) Intended Use: Traveling/Transportation vs. Accident a. Defendant uses Evans v. General Motors as their precedent. Manufacturer has no duty because getting into an accident is not an intended use of the car.


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How might you get around this argument? Intended use is to SAFELY transport your passenger from point A to point B. Frequent collisions are foreseeable and the intended purpose includes providing a reasonable measure of safety when they do occur. 2) Reasonably Foreseeable Standard that the court applies a. Plaintiff uses Larsen v. General Motors as their precedent. GM is responsible for the injury. It was reasonably foreseeable for the steering wheel to cause injury in Larsen. b. Rule: a car manufacturer is liable for a design defect that the manufacturer could have reasonably foreseen would cause/enhance injuries on impact, which is not obvious/patent to the user, and which in fact leads to or enhances the injuries in a collision. Problems with design defect standards: 1) Consumer Choice (Expectations) 2) Both Sides a. Damned if you do, damned if you dont b. Cooley case 3) Expertise problem a. Legislature/agency 4) Inconsistent state standards What if Young sued the other driver? 1) eggshell skull rule would apply 2) intervening cause if the manufacturer is grossly negligent for having this design in their car, then it can qualify as an intervening cause. Barker v. Lull Engineering Co. (Cal. 1978) Plaintiff claimed that his injuries were proximately caused, inter alia, by the alleged defective design of the high-lift loader: 1) no seatbelt/rollbar a. counter argument: custom/but for cause; also having the seatbelt might make things worse since he would be trapped when the logs fell. 2) Outriggers needed a. counter argument: no custom, not an intended use i. Problem: TJ Hooper says who cares? Tobriner Reasoning: 1) Consumer expectation a. When a product fails to satisfy such ordinary consumer expectations as to safety in its intended or reasonably foreseeable use manufacturer is strictly liable b. Recovery? No. Reasonable consumer standard. i. Problems: circular reasoning, sidesteps the cause-in-fact requirement 2) Risk-utility a. Risk of danger inherent in the design outweighs the benefits of the design like negligence i. SB<SC Tax ii. Courts usually require foreseeability or lack of foreseeability of the risks as a defense b. 3 Kinds of Risk-Utility: i. Barker: pure risk utility with no alternative needed. Pro-plaintiff ii. alternative design is a factor iii. alternative design is required c. Quasi-paternalistic i. Problems: 1. jurors do not have relevant expertise in cases involving technical design 2. complex products are a combination of many design choices and should be evaluated as a whole but jurors are not equipped to do that. Thats why juries are sometimes asked if there was a reasonable alternative: 3) Reasonable Alternative a. up to the defendant



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Look at notes of the case: If you install outriggers in later models and the Barker precedent holds the defendants liable, it would discourage improvements because there would be subsequent remedies for future plaintiffs on the old model. Plaintiffs could submit the improved design as proof that the old design was defective. Federal Rule of Evidence 407 evidence of a subsequent design cannot be submitted to the court for subsequent remedial remedies California in International Harvester allows plaintiffs to introduce subsequent improved design as evidence for recovery on an injury Linegar v. Armour of America (8th Cir. 1990) Bullet proof vest case. a) Consumer Expectation test? Court holds that it passed the test very clearly and was not unreasonably dangerous. b) Risk-utility test? Pros of the vest are mobility, comfort, less expensive vs. complete coverage. If Armour was liable, they may decide to get out of the business altogether or continue to market the style with the best coverage, which might discourage law enforcement from wearing it (at the risk to their mobility). c) CORE CONCERN IN TORT STRICT LIABILITY IS SAFETY. A verdict for plaintiff would run counter to the laws purpose of promoting the development of safe/useful products. Potter v. Chicago Pneumatic Tool Co. (Conn. 1997) Reasonable alternative a) plaintiff must prove existence of a reasonable alternative good for defendant a. court holds that this places an undue burden on plaintiffs b. product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available b) defendant must show no act good for plaintiff Halliday v. Sturm, Ruger & Co. (Md. 2002) Child shot himself with his fathers gun. Mother petitions that the manufacturer is responsible. Under the consumer expectations test, the court finds that the manufacturer is not liable. How do you define intended use? a) Expectation about children. Do not allow children to operate. ambitious b) shoot people Should a gun have 2 purposes? 1) shoot/easily normal 2) prevent children signature version If you design the gun for safety reasons, it would take away the effectiveness: 1) Hard trigger pull/safety lock/signature hand gun Review Spectrum: 1) car radio circuit city is definitely a seller 2) battery a seller as well 3) silicone implant more consumer choice 4) transmission part sort of like the implant but could be a do-it-yourself, where as the implant cant 5) prosthetic jaw When defining a seller, we look at: a) consumer choice b) purpose of service c) necessity of service as opposed to do-it-yourself


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Policy reasons for classifying a service and a sale: 1) ability to control the manufacturer (sale) 2) ability to loss spread (sale) 3) subsidy 4) universal stocking pharmacy context. There are some instances when you want a seller to be forced to carry all types of products. Design Defects 3 major tests that govern design defects: 1) consumer expectation/open and obvious test a. is the product as safe as a consumer would expect it to be when it is used for its intended purpose? 2) Risk-utility (BPL/Negligence) a. are the risks associated with the product higher than the utility of the product? Could it have been made safer? Cost-benefit on design 3) reasonable alternative - related to #2 a. prefers consumer choice (better to have a dangerous product that the consumers can choose to buy or not buy) 1) Manufacturer strict liability 2) Design defect pseudo strict liability, negligence 3) Duty to warn DUTY TO WARN Mc Donald v. Ortho Pharmaceutical Corp. (Mass. 1985) What is the extent of a drug manufacturers duty to warn consumers of dangers inherent in the use of oral contraceptive? Does the manufacturer breach its duty when it warns about: a) abnormal blood clots hard to understand b) as opposed to a stroke easy to understand Causation way of describing this: Manufacturer has a duty to warn the consumer. But if you have a doctor, doctor becomes the intervening cause. Is the doctors failure to provide the warning sufficient to break this chain? Holding: Manufacturer has a duty to warn the ultimate user. It cannot rely on doctors b/c the consumer plays much more of a role in buying contraceptives should supply information directly. General Rule: Duty to Warn for the Manufacturer must warn all persons who it is foreseeable will be harmed by product. Exceptions: - learned intermediary o pharmaceutical company (must tell doctor about various risks, no direct duty to the patient) doctor patient doctor is the learned intermediary, taking liability away from pharm. company o exception: contraceptives patients heightened involvement in decisions relating to using the pill direct marketing with the consumer to what extent will you have duty to warn claims and the company fails to warn the consumer directly limited participation of the physicians (annual prescriptions) less contact with physicians in general (no time to talk about all the risks or suggest alternatives) Duty and Causation are linked! - why is contraceptives an exception? o Duty view learned intermediary


Downloaded From Causation view doctor is the intervening cause and the pharmaceutical company as the proximate cause. The foreseeability is that the doctor will do his job. The company assumes that the doctor will tell patient of the risks. Public Policy Foreseeability Causation (doctor)

Vasallo v. Baxter Healthcare Corp. (Mass. 1998) Plaintiff suffered from a ruptured silicone breast implant. Should the law be reformed to a state of the art standard that conditions a manufacturers liability on actual or constructive knowledge of the risks? Should defendant be liable to plaintiff for failure to warn of unknown risks? State of the Art Issue What kinds of risks a defendant (manufacturer) could warn about: 1) known risks has an element of intentionality (obvious duty) 2) discoverable risks with reasonable investigation element of negligence (fault) 3) unknown risks no fault Previous Rule: Liable for everything (even failure to warn about unknown risks) true strict liability Majority/Vasallo Rule: Only liable for 1 and 2 (duty to warn about foreseeable/ discoverable risks )negligence Hood v. Ryobi America Corp. (4th 1999) Plainitff lost his part of his thumb and lacerated his leg on a miter saw when he removed the blade guards. Product had warnings that instructed consumers not to remove the guards. Court held that the warnings were adequate. Duty to Warn Harm not within Risk (usually its about liability, but here its about contributory negligence) - Scenario 1: man takes off guards and exposed blades cut his arm by accident harm within the risk o Plaintiff is contributorily negligent (took off guards) plaintiff cant recover o Defendant satisfied his duty (warnings, guards) - Scenario 2: blades fly off o Difficult b/c you think the warnings are about obvious risks. o Harm not within the risk dont expect the blades to come off when you remove the guards o Solution to this question is whether you like Polemis or Wagonmound Polemis liable for all direct harms Hood is CN b/c he takes guards off. A reasonable person would not do that. Does his injury occur as a direct result of his CN act? o YES the Hood v. Ryobi court holding. POLEMIS Kick board Hit someone Explosion RYOBI Taking boards off Cut arm Blades fly off

Negligence Foreseeable Unforeseeable

Wagonmound big shift from Polemis. If you are N, you are only liable for those things that are foreseeable. Not foreseeable that taking the guards off would result in blades flying off. Hood is not CN in the sense that Ryobi is liable.

If you cant recover under a duty to warn theory, whats another theory of liability? Design Defect o Alternative Design: where the guard is not part of stabilizing mechanism - Tension between warnings and design defects o Duty to warn (Be Careful) is a species of Design (Guard) - Restatement says we should look at duty to warn only if there is no alternative design o Problem: This would make the manufacturer liable for anything but their top-end products


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Advocating consumer expectation theory in bullet proof vest case. It lets the consumer choose between alternatives. risk/utility model wouldnt let the consumer buy the lower-end model at all In Barker, Tobriner says you could pick between consumer expectation and risk/utility

McDonald Case Duty to Warn for the Manufacturer Exceptions: - learned intermediary o pharmaceutical company (must tell doctor about various risks, no direct duty to the patient) doctor patient doctor is the learned intermediary, taking liability away from pharm. company o exception: contraceptives patients heightened involvement in decisions relating to using the pill direct marketing with the consumer to what extent will you have duty to warn claims and the company fails to warn the consumer directly limited participation of the physicians (annual prescriptions) less contact with physicians in general (no time to talk about all the risks or suggest alternatives) Duty and Causation are linked! - Why are contraceptives an exception? o Duty view learned intermediary o Causation view doctor is the intervening cause and the pharmaceutical company as the proximate cause. The foreseeability is that the doctor will do his job. The company assumes that the doctor will tell patient of the risks. Vasallo case State of the Art Issue What kinds of risks a defendant (manufacturer) could warn about: 4) known risks has an element of intentionality 5) discoverable risks with reasonable investigation element of negligence (fault) 6) unknown risks no fault Previous Rule: Liable for everything true strict liability Majority/Vasallo Rule: Only liable for 1 and 2 negligence Hood v. Ryobi Case plaintiff cannot recover b/c CN. Even though its harm not within the risk follows Polemis rule. Duty to Warn Harm not within Risk (usually its about liability, but here its about contributory negligence) - Scenario 1: man takes off guards and exposed blades cut his arm by accident harm within the risk o Plaintiff is contributorily negligent (took off guards) plaintiff cant recover o Defendant satisfied his duty (warnings, guards) - Scenario 2: blades fly off o Difficult b/c you think the warnings are about obvious risks. o Harm not within the risk dont expect the blades to come off when you remove the guards o Solution to this question is whether you like Polemis or Wagonmound Polemis liable for all direct harms Hood is CN b/c he takes guards off. A reasonable person would not do that. Does his injury occur as a direct result of his CN act? o YES the Hood v. Ryobi court holding. Wagonmound big shift from Polemis. If you are N, you are only liable for those things that are foreseeable. Not foreseeable that taking the guards off would result in blades flying off. Hood is not CN in the sense that Ryobi is liable.


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If you cant recover under a duty to warn theory, whats another theory of liability? Design Defect o Alternative Design: where the guard is not part of stabilizing mechanism - Tension between warnings and design defects o Duty to warn (Be Careful) is a species of Design (Guard) - Restatement says we should look at duty to warn only if there is no alternative design o Problem: This would make the manufacturer liable for anything but their top-end products Advocating consumer expectation theory in bullet proof vest case. It lets the consumer choose between alternatives. - risk/utility model wouldnt let the consumer buy the lower-end model at all - In Barker, Tobriner says you could pick between consumer expectation and risk/utility Ayers v. Johnson & Johnson (Wash. 1991) plaintiff wins b/c it follows Wagonmound (foreseeability). Plaintiff was CN but harm not within the risk. - Facts: child inhales baby oil coated air sacs retardation, seizures, lost ability to speak. Mother sues manufacturer of baby oil for inadequate warnings - Plaintiff argues harm not within the risk. - Possible argument for defendant: mother was CN and the intervening cause between the manufacturer and the victim. As a responsible parent, you assume that everything is harmful to the child. - Court holding: J&J was liable based on WagonMound (evidence of causation was sufficient; not foreseeable that inhalation would cause such severe damage.) - How does this differ from Hood v. Ryobi? Hood Ayers Warning Dont take off Only for external use Expectation Cut yourself Upset stomach Actual result Saw blades fly off Oxygen deprivation o Forgets factual causation! If defendant had argued Polemis, inadequate warning was not a but-forcause. The test is whether the defendants negligent act is the but-for cause of the injury. Plaintiff would have been injured even if the defendant had NOT been negligent. Its not clear that the warning in this case was ineffective. o Not a problem in Ryobi b/c Hood would not have taken off the guards if the warning was on the saw Ryobi's holding can be explained using Polemis. My critique of Ryobi is that you can use Wagon Mound to reach the opposite result. Ayers's holding can be explained using Wagon Mound. My critique of Ayers is that there is a factual causation problem. Ryobi -a) (Actual Case) Under a "Polemis" type theory -Plaintiff is contributorily negligent for his injuries It was negligent for him to take off the guards, and the harm was a direct result of his negligence. b) (Critique) Under a "Wagon Mound" type theory Plaintiff is not contributorily negligent for his injuries. Therefore, Ryobi's failure to warn sticks. While it was negligent for Hood to take off the guards, the harm was not a foreseeable result of Hood's negligence. Incidentally, the harm that resulted was, however, a foreseeable result of Ryobi's failure to warn, since itcould definitely envision someone taking the guards off under the impression that the blade would not fly off, and then getting injured from the flying blade. Ayers -a) (Actual Case) Under a "Wagon Mound" type theory The Mother is not contributorily negligent for her son's injuries (lumping them together) / the mother is not an intervening cause It was negligent for the mother to leave the baby with the baby oil, BUT the harm was not a foreseeable result of the mother's negligence. As a result, J&J remains liable for a breach of the duty to warn.


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b) (Critique) Factual causation has not been established well in Ayers. In order to establish factual causation, the mother must show that if the warnings had been better, the accident would not have happened. (But-for cause) My argument, however, is that the mother was already trying her best to prevent her baby from ingesting the baby oil. I find it doubtful that an added "do not inhale" warning would have made her more vigilant or caused her to not buy baby oil at all. Daly v. General Motors Corp. (Cal. 1978) - considerable debate about whether CN was a defense to strict liability o Daly says CN is a defense - if you have CMN, then thats also a defense to strict liability - Reasons for CMN/CN in SL o Loss spreading Grand insurance theory. Everyone pays a little and the one in a million products that cause injury would be covered by the fund generated by the insurance. This would work for normal behavior. What about the guy who engages in risky/dangerous behavior? Thats where CMN/CN is helpful b/c you shouldnt have to pay for those who bring the harm upon themselves. DAMAGES I. Pecuniary/Econ (P/E) a. Lost wages, medical expenses II. Non Pecuniary (NP) a. Pain and suffering i. McDougal v. Garber (NY 1989) - $9.6 million 1. $1M Pain and suffering (past) NP 2. $3.5M loss of pleasures in life (future) NP a. $4.5M $2M 3. $5.15M medical/lost earnings P/E 4. No retribution, less damage less liability b. Duncan v. Kansas City Southern Railway (La. 2000) i. $8M General Nonpecuniary 1. abuse of discretion 2. compare ii. reform efforts for determining damages 1. mandatory schedule of damages 2. guidelines 3. precedent BOTH I AND II ARE COMPENSATORY DAMAGES. Generally about the plaintiff. III. Punitive Damages (P) focus on defendant and defendants behavior a. Kemezy v. Peters (7th Cir. 1996) i. Constitutional Tort 42 USC 1983 b. Jacques v. Steamburg Holmes intangible nature of the harm. i. Doesnt really suffer any injury per se. ii. Account for law enforcement iii. $1 in nominal damages iv. $100K punitive damages plaintiff made it clear that he didnt want defendants on their land. Defendants ignored their wishes and intentionally trespassed on their property. 1. outrage element a. property rights protection b. expressive 2. crim supplement a. concern about self-help (Jacque has a shotgun next time) 3. punch-and-pay do what you want and pay for it later. You want to prevent ppl from engaging in the behavior in the first place. In this case, there arent any damages. 4. deterrence a. cover attorneys fees and account for cases that are not litigated


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counter: there is a social benefit a. LeRoy Fibre McKenna saying absolute property and holmes saying negligence. b. Looks just like the Boomer cement case!! Nuisance injunction. Court says no injunction for you, you just get money. c. Ploof case. Owner must allow you to dock your boat, but you have to pay for the damage to dock. Distinction is that there is more necessity here than there is in this case.

Punitive Damages 1. intangible harm no injury per se 2. account for low enforcement 3. punch-and-pay 4. expressive rationale protecting property rights 5. substitutes for the criminal justice system a. private attorney general (AG) i. allows plaintiff to be AG, enforcing the law and property rights b. prevents self-help State Farm Mutual Automobile Insurance Co v. Campbell (S.Ct. 2003) Plaintiff offers $50K to settle. State Farm either: - wins at trial < $50K - lose at trial (>$50K), pays $50K State Farmll cover your back $185K Campbells reach an agreement with the plaintiffs. Campbells are off the hook. Campbell then sues State Farm for bad faith using the old plaintiffs lawyers and wins: $1M compensatory $145M in punitive Does the state farm verdict violate due process? 1. punitive damages for nationwide harms, not just the one in the claim 2. Also if the ratio is too high. Doesnt really apply to nominal:punitive ratio. Doctrinal test for punitive damages: 1. reprehensibility of defendants conduct 2. ratio of comps/punitives 3. punitives vs. civil penalties Emotional Harms and Damages Ordinary case involves physical damages. Once you have physical harm, you can receive for physical damages and emotional (Pain and suffering). These cases involve only emotional harm. Physical harm comes from emotional 1. Intentional Infliction of Emotional Distress (IIED) a. Requirements: i. Extreme & outrageous conduct 1. Not good enough tort, criminal, intended distress ii. intentional (reckless) iii. cause severe emotional distress/physical harm 1. reduce number of cases 2. reduce fraud b. Wilkinson v. Downton i. Practical joke: called wife and told her that husband was in car accident. It produced a violent reaction. ii. Does the defendant intend to cause the plaintiff serious physical injury? iii. Court: intend to cause emotional distress which is unlawful.


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Negligent Infliction of Emotional Distress (NIED) a. Negligent act b. Law does not permit recovery unless i. Proximity requirement 1. suffer physical harm 2. any impact used as a marker Expansion 3. zone of danger a. Dillon v. legre i. Doesnt care that if youre in the zone of danger multi
Zof D


factor test The Torts Top 12 Rylands v. Fletcher 1st Strict Liability case McPherson ends privity of contract and extends liability/duty to manufacturers Palsgraf Cardozo and Andrews show duty = causation Carroll BPL standard TJ Hooper BPL not custom; custom is up to the courts to decide Escola traynors concurrence that products liability should be strict liability as opposed to negligence Vincent tie your ship to dock but you have to pay for it. Necessity need to repay dock owner Li establishes CMN Rowland abolishing land owner liability for rule of reasonableness Boomer punch & pay; injunctions vs. damages Tarasoff a b c special relationship ac Le Roy are property rights absolute? Law is a seamless web. Intentional tort is linked to strict liability move down the spectrum. Duty is very closely linked to causation. Negligence is linked to strict liability. Res Ipsa: If you apply a reasonable person standard strict liability if youre the person who doesnt know what the S/L standard is. S/L for wild animals is really global negligence rule (expand timeline, shouldnt have kept your animals in the first place). S/L for product liability is really negligence (risk-utitlity rule). Last clear chance is really intervening/superceding cause.