TORTS OUTLINEFall, 2003Don Herzog, ProfessorCase book: Tort Law and Alternatives, Franklin and Rabin, Seventh Edition

I. INTRODUCTION TO TORT LIABILITY—WHAT IS TORT LAW UP TO ?

1. Tort, definition -- French and Latin, definition points to wrong-doing and twistedness. A civil wrong, other than breach of contract. For an act to be a tort, there must be: a legal duty owed by one person to another, a breach (breaking) of that duty, and harm done as a result of that action. Examples of torts are negligence, battery, and libel.

2. Classifications for locating torts in body of lawPrivate Law v. Public Law. Public law, what does Congress do, what do government agencies do. Private law--torts is part of this body, addresses wrongs done to private groups/individuals.Substance vs. procedural law-- Torts is a course in substantive law. Not a course in how to do it, but what to do.Civil v. Criminal law -- Criminal law conceives of a crime as an injury against society at large. First party will often be "State" or "The people". Civil law actions are between two private parties. Note: There is the possibility of suing government in its capacity as a private actor. D.A. is not involved in a civil suit.Private, civil substantive law has three components: contracts, property, torts.

3. Tort actions concern your rights and duties in situation where you have no contractual arrangement with anyone. Classic example: you claim to have suffered wrong from someone you have never met.--Tort actions come in many varieties. Large majority are made up by judges over centuries, i.e. common law origin. Judges have to make decisions about particular situations, regarding a cause of action. Murder is a criminal law, wrongful death is a tort action. Judges will not generally allow new torts, as over the 20th century legislatures have taken more of a roll in codifying law.

4. Tort law protects your person and possessions, but also intangible interests like your reputation or privacy, and even emotional tranquility (with some restrictions). Also concerns actions that will protect your expectations and commercial dealings. Note: There is a tort called "wrongful interference in contracts," borderlines contract law = A is going to sell B widgets and has a contract. C comes up and says "My widgets are better" and tries to get B to go with C rather than A. May be a tort action. Intentional torts are those situations where someone meant to hurt you.

5. Tortfeasor -- person who commits the injury. An intentional tortfeasor has malice. Otherwise, torts are concerned with negligence rather than malice.

6. 3 typologies regarding separation of tort lawa) Intentional torts = battery, assaultb) Negligence = unintended, carelessness, you are still responsible

c) Strict liability = You weren't careless, you didn't intend it, but the fact that what you did harmed another person. Example: people who had dangerous pets, like a pit bull. Products liability is current area that is most concerned with this.

7. In reality, very few injuries allow action under the law.

8. Miscellaneous torts we discussed briefly or not at alla) Invasion of Privacyb) Misuse of Legal Proceduresc) Interference with Advantageous Relationshipsd) Familial and Political Relations, Alienation of Affectione) Loss of Consortiumf) Fraud, Misrepresentation, Negligent Misrepresentation

9. Pattern important in lawStep One: legal rule is statedStep Two: case-periphery principle, does core principle control or not?

Step Three: Identify the justification for the rule, does it still properly apply in the case at hand.

10. Law is uncomfortable with the straight-on liability calculation (e.g. 70% probability)See Larson v. St. Francis Hotel and Connolly v. Nicollet Hotel

11. Two opposite structured argumentsa) the slippery-slope argument--don't take the first step down this road, or terrible things will happen

b) Genius of the common law, defensible distinctions argumentHerzog likes #2, hates slippery slope arguments.

A. VERY FEW INJURIES ARE ACTIONABLE1. Injury (not just misfortune – someone is to blame)

-- sense of insecurity-- others think less of you – dignitary harm, nothing to do with whether or not victim actual feels bad-- violation of person, emotional distress

2. Cardozo in Palsgraf: "But bodily security is protected, not against all forms of interference or aggression, but only against some."

B. “NOBODY’S PERFECT” – NICE TRY BUT NO DEFENSE1. You will get nowhere in a tort defense by claiming that you are:

a. normally a very careful personb. just slipped up this once

2. For instance, even if you are an extremely careful driver with a perfect record, your carelessness on one occasion may make you liable.

C. FAIRNESS & JUSTICE THROUGH TORT LAW (PUBLIC POLICY CONCERNS)

1. Prosser – there is no doctrine, courts do what they want. Duty is the sum total of considerations of policy. However, Herzog wants to leave us with this: There are better and worse arguments. Too easy to say you can do what you want. There's always room to say one side is better than the other. a) Two types of laws: Rules vs. Standards

i. Rule = Clear and precise, not a lot of room for debate. Speed limit is 65 mph

ii. Standards = Nothing crisp about the line here and always debate. "Drive safely" would be a legal standard.

Skeptic says there is no real law, just mush. Law can be pushed and pulled in any direction. It arises because your case books are filled with very hard cases. You will get the optical illusion that all cases are hard. This is not true. Many cases are very easy and settled out of court or dismissed out of hand by lawyer. They don't get published in case books. When there is no place for appeal, the lawyer stops. There aren't a lot of published opinions. As a practicing lawyer, you have to take the precedent seriously and trying to make best arguments you can. You can't just say "the law is mush" and decide for us because you like us better. Law is not like an intricate computer program. How to make arguments about rules and standards and the gray area in between, that is important.

2. Two perspectives on tort lawa) Private law, backward looking. What happened in past and what arises from that?b) Tort law is really public law and it is forward-looking (The "Economic" perspective)

It puts people in the future at large on notice of what the rules are.What incentives does tort law give you? Public policy concerns figure here.Existence of tort law can change people's incentives and change what people do.Is this an effect?Can we justify tort law doctrines based upon their public policy implications?Courts can change the current of social practice and opinion if they so choose.

D. TORT LAW AND ECONOMICS

1. The Doctrine of the "Cheapest Cost Avoider"--Determine who can "right the wrong" at the least cost. Give the duty to whomever can implement it most cheaply.A. Terrible result: Mother in Buel case would be cheapest cost avoider.

2. Economic Theory = Richard Posner, Univ. of Chicago.Economists think purpose of law should be the following:

WORLD ONE WORLD TWOJim 100 150Jane 80 70Tom 110 50Dorothy 90 170TOTAL 380 440

So second state of the world, Jim and Dorothy have enough that they could compensate Jim and Tom for being worse off while Jim and Dorothy are still better off. Winners could compensate the losers. Even if they don't compensate, economists will still say world 2 is more efficient. So Kaldor-Hicks efficiency is controversial.

a) efficiency -- getting the most output for the least input, most output for given level of input, or least input for certain level of outputb) [Kaldor-Hicks] efficiency--way of judging social utility; application of utilitarianism; completely insensitive to distribution concerns.c) Pareto optimality--If you move from world one to world two, each individual must be at least as well off as they used to be.

Example above is not pareto-optimal. However we do not sell and buy everything (like babies), even though it would be pareto-optimal .d) Deadweight loss--If you stay in world one, there is a Kaldor-Hicks inefficiency of 60. But it is not indefensible to stay in world one, even though "society as a whole" is better off.e) Descriptive claim = Economic theorists say that tort law actually does promote KHEf) Normative claim = And they also say that's what it should be doing. Tort law shouldn't be promoting a lot of deadweight loss. Some pressure in theory toward egalitarian distribution, depending on whether you calculate in utility units. Why markets are efficient means of distribution as opposed to central command/socialism is a source of a long history of economic theory.

3. Big economic theory question: What is Torts law up to? Can argue it has theoretical underpinnings. Despite Don's misgivings, law and

economics is currently the leading explanatory theory.Can argue that Torts is just a weird laundry list of actions that grew up over

centuries of common law – it has no conscious design or function4. Pareto Optimality:

Descriptive/Positive Criterion: A situation is Pareto optimal if it is impossible to change it to make one person better off w/out making another person worse off.

Normative Criterion: A change is Pareto optimal if and only if the change leaves everyone else at least as well off as they were before the change; if someone is left worse off, then those who gained must compensate the losers – thus, total gains must exceed total losses if compensation requirement can be fulfilled

5. Kaldor-Hicks Efficiency: Descriptive/Positive Criterion: A distribution is efficient if and only if maximizes

wealth across the population – the distribution of wealth is irrelevant Normative Criterion: Total gains must exceed total losses for Kaldor-Hicks

efficiency to obtain, but those who gain are not required to compensate the losers Deadweight Loss: difference between a distribution that is not Kaldor-Hicks efficient

and a distribution that is Kaldor-Hicks efficientSee Hand Formula (infra at Standard of Care; Risk; Hand Formula)

6. Coase Theorem: When transaction costs are zero, an efficient use of resources results from private

bargaining, regardless of the legal assignment of duties; when transaction costs are high enough to prevent bargaining, the efficient use of resources will depend upon a proper assignment of duties

In the real world, transactions do have costs, so properly assigning duties is necessary for promoting Kaldor-Hicks efficiency

7. Normative component of Law and Economics Adherents to law and economics (e.g., Richard Posner) argue that legal duties should

be assigned in such a manner as to produce Kaldor-Hicks efficiency (failure of Coase Theorem indicates that efficiency depends upon assignment of duties rather than bargaining). We learned two answers as to how assignments of duty may maximize Kaldor-Hicks efficiency – the subsidy thesis and the cheapest cost avoider thesis:a) Subsidy Thesis: The court should examine the importance of each party (and

similarly situated parties) to macroeconomic health; duty should be assigned in such a way as to subsidize those operations that promote growth or are vital to

macroeconomic health – i.e., liability should be shifted away from vital sectors of the economy

b) Cheapest Cost Avoider (officially preferred): The court should examine the costs each party would incur to prevent injury; duty should be assigned to the party that would incur the lowest cost (i.e., the "cheapest cost" to "avoid" the injury). If duty were assigned to the party with higher prevention cost, then deadweight loss would occur

8. Application to Negligence: Fero and Kansas Pacific Both cases involve railroads causing fires to property along the railroad. In Fero, duty

was assigned to railroad because In Kansas Pacific, duty was assigned to property owner because Law and Econ says that courts should determine which party is the cheapest cost avoider and assign duty accordingly

9. Application to Nuisance: Carpenter10. General application: factors to consider in law and economics analysis

Costs of prevention to both parties (Trains would have to stop running to end fires) Costs of not preventing to both parties (haystacks would burn up if no prevent) Litigation costs (allowing landowners to sue railroads lead to flood of lawsuits) Incentive effects of assigning duties (duty on trains haystacks doused w/ gas)

11. Objections to Law and Economics Too "forward-looking" – Law and Econ decides cases based upon the expected

outcome that a duty assignment will cause – i.e., how will this decision impact the actions of others, e.g., railroads and property owners. According to critics, judges should, on the other hand, decide cases based upon the individual case rather than subsuming the just outcome for the parties at hand to the wealth-maximizing consequences preferred by Law and Econ. In other words, it is improper to use the courts as an instrument of social policy rather than as a forum for resolving disputes.a) Related criticism: Law and Econ can give a good reason for making Ds pay when

they breach a duty assigned by Kaldor-Hicks efficiency considerations – this gives D the incentive to comply with such a wealth-maximizing duty. However, Law and Econ cannot provide a satisfactory reason for why the P is paid for this breach (i.e., the incentive would be just as effective if damages were paid, e.g., to the government) – those who have been wronged hold a very precarious position under a Law and Econ theory unconcerned with distributive questions.

b) Related criticism: Law and Econ. Presumes judges can make maximally beneficial social policy. But judges are not trained in economics, and only have the facts from the case at hand to work with. Moreover, courts only have limited power to affect social policy.

E. FORESEEABILITY IS NOT EVERYTHING1. See Waube v. Warrington. The answer to the question of whether court should expand duty of user of highway to third parties who view a loved one being killed or injured "cannot be reached solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the D ought reasonably to have anticipated as a consequence of his wrong."

2. Situations where there is a foreseeable risk but no duty. A. Boat owner who was not liable for the 19-year-old's death when he dove in water from D's boat.B. C.

D.

3. Situations where there is a duty but no foreseeeable risk.A.B.C.D.

3. However, the risk reasonably to be perceived defines the duty to be obeyed, per Palsgraff.

II. INTENTIONAL HARM

A. BASIC DOCTRINE

Punitive damages may be assigned for intentional torts. Insurance considerations: Parents are not generally liable for the harms inflicted by their children. But there are exceptions, such as when parents are on notice of the child's tendencies and know or should know that an occasion has arisen calling for their exercise of control. Victim compensation studies: Vast majority of valid intentional tort cases founder on the insolvency of the perpetrator. What is the fairness of this?

1. Intenta) Restatement (Second) of Torts: Intent requires "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." b) Continuum = negligence through recklessness to intent.c) Subjective/Specific: Actor intends the contact

i) Vosburg: boy intends kick (a harmful or offensive contact) but not the specific harm that occurred liable for battery and subsequent severe physical consequences even though the specific consequences were not intended

d) Subjective/Substantial Certainty: Actor is substantially certain that her volitional act will result in contact. But high likelihood (recklessness) is not enough.

i) Garratt: Child moving a chair a woman later attempts to sit in could constitute battery (even though child did not have the specific intent to cause harm) if the child was substantially certain that harm would result

ii) Don's bottle-cap scratching: Don not substantially certain harm will resulte) Transferred: intent to commit battery against one person, but accidentally contact third party while committing act battery against third partyf) Capacity – Children and insane persons can have the intent required to establish a claim for an intentional tort (See Garratt for discussion of child's liability, Williams v. Kearby, p. 871, for a discussion of insane person's liability)

2. Assault and Batterya) Assault -- an intentional threat, show of force, or movement that could reasonably make a person feel in danger of physical attack or harmful/offensive physical contact. Assault is the intentional causing of an apprehension of harmful or offensive contact.

i. Intention to cause apprehension of imminent harmful or offensive contact and apprehension results.ii. Would a reasonable person fear the harm or apprehend the action as potentially harmful or offensive? iii. If you know that potential victim of assault has some idiosyncratic sensibility, this is a tort action. You have some legal room, but everyone does not have to kow-tow to all your bizarre sensibilities. iv. Apprehension is belief that the harmful action is to come, even if you don't really fear the person threatening. v. People should induce belief that they are going to try to hurt you. vi. Offensive means "related to reasonable sense of personal dignity."vii. Conditional threats, even if unjustifiable, were not traditionally considered assaults.viii. Cf. Alcorn v. Mitchell's spitting incident for a precedent where actual physical harm does not occur.ix. Words alone not enough without surrounding circumstances or past behavior to go toward apprehension of imminent contact.x. Threat to 3rd parties not enough, must be to own person.

b) R2T Definition:"An actor is subject to liability to another for assault if

"a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and,

"b) the other is thereby put in such imminent apprehension”c). Elements: Apprehension: perception or comprehension (of imminent contact)

i. Judged from the perspective of the plaintiff/assaultedSubjective: plaintiff must feel apprehensionObjective: such apprehension must be a reasonable response to the actionii. Apprehension is not equated with fear – a weightlifter can be assaulted by a

midgetiii. Examples of apprehension

a) Allen: P's apprehension pursuant to having an unloaded gun pointed at her was reasonable given that she did not know that the gun was not loaded

b) Doe: priest approaches P during the sign-of-peace portion after earlier battery/sexual assault of P by priest. Ct. not dismiss case because P's apprehension of offensive contact might be reasonable

iv. Not examples of apprehensiona) Grabbed from behind w/o prior warning – this is probably a battery (see

Doe)b) Fake punch from behind

Imminence: Apprehension must be of imminent contact for assault to have occurred i) Threats of future action are not imminent

Doe: proposed meeting with D. not sufficiently imminentThreatening to drive across town to get a gun not sufficiently imminent.

ii) Conditional Threats are generally not assault.iii) Threatening words alone are usually insufficient to establish assault.

"I would kill you if it wasn't harvest" is not imminent

Cannot say, "I'll kill you if you make a move" imminence Harmful/offensive (see below)Contact - What constitutes it? Weird questions of social contact must be

considered. Your shirt that you are wearing is contact. Your wheelchair is contact. Your horse that you are riding may qualify. A subway that you are riding is not

considered contact. Intent (see topic above)

d) Battery -- "The intentional infliction of a harmful or offensive bodily contact."i) If the act is done without intent, the actor is not liable even if he has been reckless.In these cases, the insult is to be weighed more than the injury to because that is the real harm that would induce fighting. ii) Knowledge of the unpermitted conduct is not required.Thus, "A kisses B while asleep but does not waken or harm her. A is subject to

liability to B. iii)The protection goes beyond direct contact with the person. It also covers "anything so closely attached [to the plaintiff's person] that it is ustomarily regarded as a part thereof and which is offensive to a reasonable sense of personal dignity." For example: striking a person's walking cane, striking the horse that the person is riding, grabbing at a person's dinner plate. iv) Transferred intent applies to offense of battery. v) Some states have statutes that make a person liable for insults, which in their

common use tend to incite violence and a breach of the peace. These statutes are probably to be construed narrowly, applying to only those

words which might make the particular individual retaliate because they might be unconstitutional under the First Amendment otherwise.

e) R2T Definition:An actor is subject to liability to another for battery if

(a) he acts intending to cause a harmful or offensive contact with the person of another (or imminent apprehension), and

(b) a harmful contact with the person of the other directly or indirectly results [;or]

(c) an offensive contact with the person of the other directly or indirectly results

f) Elements: Contact: contact with the person of another

i. Formalism: Formalistic rendering of "contact" (i.e., physical touching) works fine in clear cases of (e.g., kick in Vosburg, spit in Alcorn)a) May justify a questionable battery such as Leichtman (smoke was able to

make "physical" contact as it was particulate matter)b) Seems counterintuitive in some cases (secondhand smoke)c) Needs to be stretched in others (dig a hole for person to fall into)…

ii. Penumbral Cases:a) Temporally/Physically-Displaced Contact: Garratt: court moving a chair a

woman later attempts to sit in constitutes contact, even though no touch woman (part of the woman's person? Removal of an impediment to contact?)

b) Secondary Contact (stretching meaning of person): Objects in a person's possession (e.g., cane, wheelchair, clothing) are a part of the person. Picard: touching a camera held by P constitutes battery – the camera partook of the inviolability of the P's person

c) Anti-formalist: contact requirement should be relaxed to accommodate obvious cases of battery that do not fall within formalist conception of contact (e.g., poison gas)

What is offensive contact?i. Definition: Contact which is offensive to a reasonable (see #2, infra.) sense of

personal dignity (Leichtman) a) Offensive: disagreeable or nauseating or painful because of outrage to taste

and sensibilities or affronting insultingness (Leichtman)b) Reasonable normative and factual/empirical inquiry

Normative (Miss Manners inquiry): What ought to offend personal dignity? Or, what ought to be permissible?

Factual/Empirical (anthropological inquiry): What generally (or on average) does offend personal dignity? What is permissible in the community?

Potential undesirable consequences – e.g., what if majority believe that groping women (w/out consent) is not offensive contact?

Precludes unduly sensitive people from recoveringii. Examples:

a) Leichtman: deliberately blow smoke into another's face constitutes batteryb) Alcorn, spitting into another's face constitutes batteryc) Wishnatsky: Pushing a door closed on P. is not offensive even though P.

offended because P. "unduly sensitive." Contact would not offend the "ordinary person”"ordinary" probably signals a normative inquiry

iii. Special Knowledge exception: tortfeasor not absolved of liability if had special knowledge that the recipient of the contact would find the contact offensive.

g) Policy Concerns Purpose of tort of battery – protection of physical integrity/autonomy of person Provides nonviolent outlet for recourse when harmed/offended (more relevant in the

past?), thus protecting social order Egg-shell skull rule may lead to a considerable disparity between a tortfeasor's

moral blameworthiness and legal responsibility Purpose of the tort of assault – Persons "have a right to live in society without being

put in fear of personal harm" (See Allen)

3. Intentional Infliction of Emotional Distressa) I.I.E.D. = a tort of outrage. There is a parallel negligence tort, which is extremely hard to win. Normally the law wants intention to be an aspect.This tort is the intentional or reckless infliction, by extreme and outrageous conduct, severe emotional/mental distress.

i. Some courts have permitted IIED claims to lie in cases of racial insults and harassment.ii. Title VII.

-racial claims-sexual harassment claims by women

-sexual harassment claims by men-VAWA-harassment in schools, Title IX

iii. credit collection practices

b)R2T Definition: "[O]ne who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

c) Elements: Intent:

i. Subjective/Specific: Actor intends to cause the emotional distressii. Subjective/Substantial Certainty: Actor is substantially certain that her volitional

act will result in emotional distress iii. Objective/Reckless: a reasonable person would have or should have known that

the action would likely cause "serious" emotional distress (Womack)iv. Lower threshold than in assault/battery – includes reckless behaviorv. Examples: Womack: Taking a man's photo for use in a child molestation case in

which he has no connection counts as intent because a reasonable person would have or should have known serious emotional distress is likely to result

vi. Transferred intent does not apply here. Extreme/Outrageous Conduct:

i. Definitions (atrocious, intolerable, and outside all bounds of decency)a) R2T: "The case is one in which the recitation of the facts to an average

member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!’”

b) Actions that "go beyond all possible bounds of decency" (Russell)c) Conduct that is "atrocious and utterly intolerable in a civilized community"

(Hamaker, Jones)d) Actions that "[offend] against…generally accepted standards of decency and

morality" (see Womack)ii. Factors (some)

a) Time: time over which conduct/suffering took placeb) Relation: if D in position of authority over P, conduct may be more

outrageous i. Hamaker citing Hess: City Director's influence over city employees

more outrageousii. Jones: no finding that Clinton's authority made conduct more outrageous

(?)c) Special Knowledge: D knows that P is particularly susceptible/sensitive to

emotional distressi. Nickerson: D knows P was in insane asylum conduct more

outrageousii. Hamaker: Knowledge that P is low IQ is not special knowledge that P is

particularly emotionally sensitived) Not conclusive – Russell : D's harassment of P about P's weight was not

extreme/outrageous even though harassment occurred over two-year period and D, in position of authority over P, had special knowledge about P's sensitivity to her weight and desire to become a nurse

iii. Mere insult, everyday indignity do not qualify as extreme and outrageous conduct Causation: Requires that emotional distress be caused by tortfeasor's

extreme/outrageous conduct – question of fact for jury to determine (Russell) Severe Emotional Distress:

i. High bar1a) Unendurable/Intolerable: "the distress caused was so severe that no reasonable

person could be expected to endure it" (Hamaker, Jones)b) Law often requires physical manifestation (Russell)

ii. Rewards weepy types, punishes stoicsa) Nickerson: P had a cause of action for IIED when elaborate prank caused her

"unbearable" mental sufferingb) Jones: P failed to state a claim for IIED in part because of failure to allege

severe emotional distress (P never missed work, continued to go to D's office, never consulted psychiatrist/psychologist)

d) Damages: See below for further discussion

e) Policy: Critics of IIED think awarding damages for emotional distress is ridiculous – the law

should look for clear physical harm; counter-argument – the law awards (and has awarded for hundreds of years) damages for mental harm of assault (i.e., apprehension)

Courts tend to establish high threshold for an action to qualify as IIED, as purpose of IIED is not to "open the doors of the courts to every slight insult or indignity one must endure in life" (see Hamaker, quoting Hess)

Is it fair to provide relief to the wimp but not to the stoic? Does this provide an incentive to be a wimp? Is this a personality we ought to

promote/reinforce? Does the extreme/outrage threshold temper the promotion of "wimpiness"?

4. Defenses and PrivilegesTwo categories of defense: Privileges--Because of something about our relationship or in the situation, what would normally be a tort is not in this case. (ex/Self-defense of yourself or another person. Disciplining an inferior. Private and public necessity

--conditional privileges--may owe restitution and you better have the right reason/motive.--absolute privileges--Not going to ask about motive, no compensation necessary (ex/D.A. when questioning someone on the stand, for what Congressmen say in Congress while Congress is in session, verbal communications between spouses)--personal--cannot be delegated to another person, you alone have the privilege A person enjoys a privilege if she is not liable for otherwise tortious conduct because

of relationship with the "plaintiff”– a privilege excuses tortious conduct, exempts tortfeasor from liability

Privilege must typically be raised by D as an affirmative defense, although the privilege is sometimes included as an element of the tort, shifting burden of proof to P (e.g., in some jurisdictions, "unconsented to contact" is an element of battery rather than a defense to battery)

Conditional v. Absolute Privileges:

a) Conditional: If a bad motive underlies tortious, but otherwise privileged, conduct, then the privilege is lost; e.g., parents spanking kids for disciplinary purposes is privileged, but spanking kids for sadomasochistic purposes is not privileged

b) Absolute: Privilege remains regardless of underlying motive; e.g., while in court, lawyers have absolute privilege to defame; conversations solely between spouses are privileged, may not be defamatory

Personal Privilege: Cannot be transferred to a third party; e.g., privilege of spouses to defame others in their conversations cannot not be transferred to an intermediary between husband and wife

Immunities--has nothing to do with situation, you cannot sue me because of who I am. (ex/Aristocrat in early modern England immune from trespass actions during fox hunting, charitable trust and organizations immunity is now eliminated, today only the government enjoys immunities. 1946 Congress passed Federal Tort Claims Act, gov't selectively waived some rights of immunity--2 common rationales are that government will just dip into tax revenues and that government has better things to do than defend itself against lawsuits)

Entity that enjoys an immunity cannot be sued; focus is on the entity's status, not on the entity's conduct

Examples:a) Outdated immunities: between husband and wife, parent and child

(husband/father used to be the immune sovereign of the household), charitable organizations (engaging in charitable activities)

b) Sovereign immunity – very common – government still retains many immunities

a) CONSENTNOTE ON PROVING CONSENT:Usually, if someone invades your physical person, plaintiff has burden of showing that he never consented. If the tort is trespass, then the defendant has to show there was consent. Burden of proof, normally you have to show a preponderance of evidence.

If P consented to tort, then no action will lie. Houdini challenge = "Hit me in the stomach"

Voluntary: consent must be voluntary i. Consent under duress/coercion is not legitimate consent; e.g., if thief says

"Your money or your life," and you give him the money, you did not consent to the exchange

ii. Consent cannot be gained under false/fraudulent pretenses – e.g., P did not consent to having his photo used in a child molestation case when he was told by D that it would appear in a local newspaper (Womack)

iii. Consent obtained through abuse of power/position of authority is not legitimate consent; e.g., quid pro quo sexual harassment

Capacity: P must have the capacity to consent; minors, insane, intoxicated cannot consent i. Exception: If D reasonably believes P has capacity and reasonable believes

consent was given, then consent obtains. ii. Consent is implied as a matter of law if Pis unable to consent, an immediate

action is necessary to save P's life or health, there is no indication P would not consent, and a reasonable person would consent under circumstances.

Absent Express Language: often difficult to prove consent if no express language of consent – in such cases, if D reasonably believes consent was given, then

consent obtains – must look to the social context and to P's conduct to determine if D could reasonably believe that consent was given i. Hart: reasonable to believe boxer stepping into ring had consented to contact

that customarily occurs within context of boxing matchii. Hackbart: not reasonable to believe that football player had consented to a

punch to the back of the head, as such contact was not customary in a sport otherwise full of consented to contacts

iii. O'Brien: By holding up her arm when in line to receive a vaccination, P indicated consent to receive the vaccination (i.e., reasonable to believe that this conduct indicated consent) even if P did not subjectively consent

iv. Vosburg: if kick occurs on playground there may be license for such contact (i.e. such contact is common on the playground, so one has notice of the potential of being kickedimplied consent obtains by entering the playground with such notification). Possible counterargument – you don't consent to mugging by going into inner city, even though mugging is foreseeable

Majority Rule: P’s consent is ineffective if act consented to is a crime

b) Self-DefenseObjective inquiry = a reasonable person would believe that he was in dangerSubjective inquiry = D did believe that he was in dangerSelf Defense: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement. Use of force privileged if used to protect oneself from assault/battery; criteria:

i. Fears were reasonable under the circumstances (objective inquiry)ii. Defendant acted honestly in using force (subjective inquiry)iii. May not use for retaliation or to avoid a harm which is not imminentiv. Force used in defense must be proportional/reasonable to the threatened force –

e.g., deadly force may only be used to defend against a deadly threata) Courvoisier: D's shooting of police officer P during an altercation with a mob

could be privileged if D reasonably thought that P was a member of the mob and mob was threatening serious harm

Injuries to Third Parties: privilege extends to third-parties injured through legitimate exercise of self defense

i. Morris v. Platt, in which D was not liable to P (non-threatening third party) for an errant shot fired in legitimate self defense.

Defense of third parties: extension of privilege of self defense i. May use reasonable force to protect third parties if have reasonable, good-faith

belief that assault or battery is occurringii. Example: A and B are pantomiming a fight. C has reasonable, good-faith belief that B is harming A. A's right to self defense extends to C; i.e., C's

use of proportional force against B to protect A is privileged.Duty to retreat: Courts are split

i. Restatement says: D may use non-deadly force instead of retreating but may only use deadly force if attacked in his dwelling.

c) Protection of Proerty

“One may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or cause great bodily injury." (Katko)

Life > Property: under no circumstances may deadly force be used solely to protect propertyi. Deadly force may only be used in legitimate self defense (See V(C), supra., for a

discussion of standards of self defense) ii. Katko: D was held liable for battery for injuries caused by a spring-gun that

discharged when a P/thief entered an unoccupied dwelling – D's use of deadly force to protect property was not privileged – spring guns may only be used to "prevent the commission of felonies of violence and where human life is in danger”

iii. "There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also a threat to the defendant's personal safety as to justify self defense" (Katko, citing Prosser on Tort

iv. Law places a higher value on human life than on any amount of property ( law is not a capitalist conspiracy)

v. Reasonable mistake as to danger does protect D unless it is mistake about whether intruder has a right to be there.

d) NecessityNecessity: a privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another's property in an effort to protect life or health. D has privilege to harm property interest of P where this is necessary in order to prevent great harm to 3rd parties or D herself.

Public necessity--Interference with person's land/chattels allowed to prevent community disaster, for "public necessity"Example: Fire raging down the block from a Children's Hospital, they destroy your house in the way to create a fire block.

i. Do they have a right to do it? Yes.ii. Do they owe compensation? Probably not.

Standard legal rule in public necessity cases is that there is no compensation.Why? Not driven by sovereign immunity.Act of God, wind would have spread the fire anyway?Is there a good justification for why the state will not reimburse?

Example: destroying liquor in advance of troops (Harris), blowing up house to prevent fire's spread (Surocco), and U.S. taking property before enemy can in war (Caltex) are all privileged

Private necessity: a necessity that involves only the defendant's personal interest and thus provides only a limited privilege

i. Cannot be denied right to use someone's property in time of necessitya) Ploof: D liable for cutting loose P's from D's private dock during storm

ii. Must compensate others for damages sustained while protecting your propertya) Vincent: "Having thus preserved the ship at the expense of the dock, it

seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted”

e) Disciplining an Inferior Children: If parents have a reasonable belief that conduct is necessary for "proper

control, training, or education, then the conduct is privileged (R2T, §147)Students: School employees may engage in conduct that falls within parents'

privilege (see above bullet) if and only if the parents delegate the privilege to the school (R2T, §153)

Military: Conduct against an inferior is privileged if the conduct is necessary for the execution of a command; for this privilege to obtain, however, the command must be lawful or reasonably believed to be lawful (R2T, §)

III. THE NEGLIGENCE PRINCIPLE—BREACH, DUTY, CAUSE, INJURY

A. HISTORICAL DEVELOPMENT OF FAULT LIABILITY

Fault Principle: 1. Brown rejects strict liability/extraordinary care standard in an "action for trespass"

(historically, the standard enforced at common law before negligence was established as a separate tort); court instead holds that the ordinary care standard (see II, infra.), which conditions liability on D's fault, should be applied

2. Fault principle is a general standard applied to all cases of unintentional harm; supercedes the former common law distinction between "writ of trespass" and "action on a case"

Shift of Burden of Proof:1. Fault is an essential element of P's prima facie case (as compared to strict liability, where

only injury and causation are part of P's prima facie case), P has the burden of proving fault/failure to exercise ordinary care

Historical Purpose of the Fault Principle: 1. Fault principle as subsidy for industry during Industrial Revolution: Removes some of entrepreneurs' financial risk involved in dangerous enterprises (See

Gregory, note 4, p. 37) – tort doctrine evolves to support the industrial revolution (subsidy thesis)

General Purpose of the Fault Principle: Incentive not to be couch potato as strict liability/extraordinary care encouraged– don't want law to discourage beneficial activities

B. THE CENTRAL CONCEPT

1. The Standard of Care "[T]hat kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger" (Brown) – i.e., duty to do what a reasonable person would do in similar circumstances Ordinary care "will vary with the circumstances of cases" (Brown) context based Normative and objective standard – focused on conduct, not intent

a) Risk and Foreseeability. Cardozo & Indeterminate Standards:

i. Ordinary care requires greater diligence when a potential injury is more severe: "Reasonable care in the use of a destructive agency imports a high degree of vigilance" (Adams); i.e., (compare to “L," infra.)

ii. Ordinary care requires taking precautionary measures against injuries within prudent foresight: Failure to prevent an injury is not negligent if the injury was not reasonably foreseeable (Adams); i.e., (compare to “P," infra.)a) Examples:

i. Adams: D (trolley operator) not liable for injuries suffered by P (young boy) when an eight feet long wire held by P touched a trolley wire running below a bridge accident was not reasonably foreseeable

ii. Braun: D erected wires in an empty city lot and let the insulation wear out; D was liable for P's injuries suffered when, 15 years later, P was electrocuted by the wires while working on construction in the lot accident was reasonable foreseeable

b) Hand Formula: Judge Learned Hand's formula used to determine if a risk is reasonably acceptable – more determinate than the standard espoused by Justice Cardozo. See United States v. Carroll Towing

i. In a negligence case, take into account following 3 factors:a B: Burden of precautionary measuresb L: Cost of potential injury c P: Probability that injury (L) will occur if precautionary measures (B)

are not taken (P functions as a discount of the cost of uncertain injury) ii. If B<LP, then negligent if failure to take precautionary measuresiii. Discussion of Hand Formula:

d Never given as a jury instruction; rather, makes explicit/precise the intuitive/fuzzier process of weighing risks against their cost of prevention to determine the standard of care – this process, however, is not as rigorous or precise as the use of the Hand Formula

e Critiques: i Reasonable man is not this formulaic; he may round small chance of

harm to zero, or be careful when there is a barely negligible chance of catastrophe.

ii Unlikely social science good enough to assign hard numbers to variables.

Hypothetical Example: Children are likely (P) to be seriously hurt (L) on railroad turntables unless railroads install a cheap (B) lock. B<PL liable (Krayenbuhl)

2. The Reasonable Persona) Objective standard: Would a "reasonable person of ordinary prudence" in D's position, do as D did?b) Flexibility & Degrees of Care: Special standards of care unnecessary for unique situations; reasonable person standard flexible enough to take differing circumstances into account

i. Example: Bethel: Unnecessary to apply "duty of highest care" to common carriers, as a "single, reasonable person standard is sufficiently flexible by itself to permit courts and juries fully to take into account the ultrahazardous nature"--a common carriers activity

c) Special Cases – reveal asymmetries in standards of care and raise questions about balancing interests of incompetent defendants against innocent victims

i. Children Standard: must take reasonable care for someone the child's age, intelligence, experience, and capacity Example: Ellis: 4-year-old not liable for injuries suffered by babysitter when 4-year-old shoved babysitter to the floor; court held that 4-year-old children are unable to foresee the consequences of such conduct When engaged in adult activity standard of care same as adults engaging in that activity. Examples:

Dellwo: 12-year-old driving a motor boat held to adult standard of care Goss: 17-year-old skier not held to an adult standard of care skiing an activity for all agesStevens: 14-year-old student driver held to adult standard of care when accident occurred during a public school driving lesson; even though education class was minor-oriented activity, adult standard of care applied to the adult activity of driving

ii. Elderly No special standard for the elderly Why? Elderly have mental ability to identify their limited capacities and thus, can decide to refrain from dangerous activities

Examples: See Ramsbottom, infra. – old/infirm drivers held to the reasonable man standard

iii. Mental Disability No special standard for the mentally disabled Why: proof issues and biases against mental illnesses (see R2T; 55)

Examples:Menlove: D of limited mental faculties held to the reasonable man standard when D created a fire hazard that led to P's injury, even though D "had acted to the best of his judgment" Bashi: D held to the reasonable person standard when she caused an automobile accident that injured P even though the accident was preceded by D's "sudden unanticipated onset of mental illness"; "insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances"

iv. Physical Disability Disability: Standard of care is "that of a reasonable man under like disability" (R2T, §283(c))

Example: Blind man not liable for harm he causes while walking down the sidewalk; blind man is liable, however, for harm caused if he is driving because the reasonable blind man would not drive

v. Sudden Illness: Actor not liable for injuries caused by actor's sudden illness if and only if the illness left his actions "wholly beyond his control" (e.g., unconsciousness)

Examples: Ramsbottom: Elderly D liable for injuries he caused while driving impaired by a stroke even though stroke, D "retained some control" and is thus liable if driving fell below the general standard of care

vi. Some control (see physical disability above)

An actor who unforeseeably loses much, but not all, of her ability to control her actions is still liable (eg. stroke makes you groggy and you crash while pulling off the road; you're liable)vii. Superior Attributes (compare to mental disabilities above) An actor with superior attributes must exercise her superior attributes in addition to exercising the care of the reasonable man; i.e., superior attributes (relevant to the circumstances) entail a higher standard of care (R2T; 56)

C. THE ROLES OF JUDGE AND JURY

1. In Generala) General Rule:

i. Mixed question – both a question of fact and law. If a reasonable jury could find that D acted reasonably or unreasonably jury is charged with determining the standard of care; if no reasonable jury could decide either way judge determines standard of care

ii. Above rule favors an amorphous negligence standard that is allowed to vary with the circumstances of particular cases (highly fact-dependant inquiry properly submitted to jury as the trier of fact) to bright-line negligence rules promulgated by judges

iii. Underlying worries about sending cases to juries Judge has more experience than jury (unlikely, since judges hear varied cases) Want uniform law (denies importance of context) Jury will make decision for wrong reason (sympathy, better lawyer, etc.)

iv. Examples: Goodman : P was hit by a train; court found that P's negligence – failing to

stop and get out of his vehicle to look – contributed to the accident; court judged that the evidence in favor of this finding was "plain," so no need to submit to a jury. "The question of due care is generally left to the jury…but…when the standard [of conduct] is clear it should be laid down once and for all by the courts.

Andrews : P injured by briefcase falling out of airplane's overhead compartment; D's motion for summary judgment denied as determination of D's negligence under common-carrier standard to be decided by a jury even though D warned passengers of the danger and such accidents rarely occurred. "A reasonable jury might conclude [D] should have done more (e.g., install netting in overhead compartments); it might also find that [D] did enough. Either decision would be rational.”

Pokaro : Court refuses to apply the bright-line rule from Goodman (see above) – in Pokaro, rule that driver "must stop and get out of his vehicle" when unsure if a train is approaching did not apply as following such a rule may have been more dangerous for P. In this case, a jury should determine P's negligence; "[extraordinary] situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal…what is suitable for the traveler caught in a mesh where ordinary safeguards fail him is for the judgment of a jury.”

b) Burden of Proofi. Burden of Production -- P must come forward with some evidence that P was negligent, that P suffered an injury, that D's negligence proximately caused the injury, etc. This burden will shift back and forth from P to D during trial.

ii. Burden of Persuasion -- P bears this burden as well. If case goes to a jury, P must convince jury that it is more probable than not that his injuries are due to D's negligence.

c) Function of judge and juryi. Judge decides law -- Decides whether reasonable people could differ as to the facts of the case.

Example: Car accident case. Judge may find speed so high that no reasonable person would find D non-negligent

ii. Jury decides facts -- In negligence case, jury decides: What really happened Whether D breached a duty to P in a way that proximately caused P's injury Thus, jury usually decides whether D's conduct satisfied the "reasonable

person" standard

2. The Role of Customa) In determining standard of care, custom is persuasive, not controlling – to be controlling, "the jury must be satisfied with its reasonableness" (Trimarco)

i. Note: custom need not be universal (radios on some tugs suffice T.J. Hooper)ii. Example: Trimarco: P (tenant) was injured by falling through a glass shower door; D (landlord) had failed to install tempered glass, as was customary. In this case, jury could use custom as evidence of unreasonableness, but could not use existence of custom as proof of unreasonableness

b) Persuasive uses of custom in determining reasonableness of behavior (See pp. 70-71, citing Morris, Custom and Negligence, Colum. L. Rev. 1147):

i. Feasibility of Alternative Measures D's Adherence to custom may indicate that safer practices are not feasible; in contrast, D's failure to adhere to custom may indicate that safer practices were feasible ii. Notice of Alternative Measures D's adherence to custom may indicate that it is reasonable to think D was unaware of safer practices; in contrast, D's failure to adhere to custom may indicate that D had the opportunity/notice to learn about alternative, safer practices iii. Social Impact D's adherence to a custom involving large fixed costs may warn the court/jury of the social impact of finding the custom unreasonable/negligent; in contrast, D's failure to adhere to custom may indicate that no great social upheaval will result from finding D's conduct unreasonable

c) When does custom apply? i. For the persuasive use of custom to apply, the harm that occurred must have been the harm the custom was adopted to preventii. Example: Levine: P injured while handling a dumbwaiter equipped with a "rough rope," when the use of smooth ropes was customary. P could use evidence of this custom only if P could show that the purpose of this custom was to prevent injuries

d) Except in malpractice cases, courts have rejected the argument that a prevailing custom defines the standard of care. Whether or not the D fell below the industry standard, however, may have impact on showing reasonable person/ordinary care. The fact that you are following custom does not automatically mean you are reasonable per

standard. Custom is evidence of reasonableness or negligence. Statute is constitutive of negligence.

3. The Role of Statutesa) General Rule: Martin v. Herzog

i. Statute is conclusive – per se negligence if an injury results because of a statutory violation In Martin, in which P was guilty of contributory negligence in a car accident for failure to meet statutory provision requiring P to install a light on his buggy for use after dark

b) Exceptions: i. If purpose of a statute is better served by violating the statute, then a violation of the statute that leads to injury is not per se negligent. In Tedla, P's violation of statute prescribing side of street pedestrians were to walk on was not per se contributory negligence even though this contributed to P's injury – P's violation of the statute was intended to better serve the purpose of the statute (i.e., protecting pedestrians) because of heavy traffic on the statutorily prescribed side of the streetii. The harm that occurred must have been the harm that legislature was attempting to prevent. In Platz, D left an obstruction in the road; this obstruction caused Ps' injuries while Ps' were violating a statute by riding on Sunday. Ps' violation of the statute was not negligent, as statute's purpose was not safety, but, rather, public order. Note: identifying the purpose of a statue can be difficult and contentious.iii. Justified noncompliance Casey v. Russel l: "other circumstances…prevented compliance or justified noncompliance." Railroad not liable when blizzard prevents it from meeting statutory duty to keep fence clear of snow

D. PROOF OF BREACH OF DUTY

1. Real/Direct Evidence (Most convincing forma of evidence) Real Evidence: Documentary evidence – e.g., videotape of an automobile crashDirect Evidence: Eyewitness testimony

2. Circumstantial Evidence Circumstantial Evidence: Unlike direct/real evidence, circumstantial evidence that

does not conclusively establish some fact; rather, implies that some fact obtainsa) Mere probability that a particular D (rather than someone else) breached a duty is

insufficient to establish negligence – e.g., Hypothetical based on Rapid Transit: P is hit by a bus; D's bus company owns 51% of buses, bus owner B owns 49% of buses D is not liable i. Justification: worry that P is withholding evidence that could exonerate D or

that P has not conducted a thorough investigationii. Exception: Howard: If damages at stake are low (e.g., <$20,000), mere

probability that D was the negligent actor may be sufficient to sustain liability low damage amount does not warrant coercing parties into finding more conclusive evidence because finding such evidence would be too expensive

b) Examples:

i. Negri: D liable for injuries suffered by P when P slipped on baby food spilled in grocery store aisle obviously "visible and apparent," and circumstantial evidence (e.g., baby food was dirty, no one had heard anything fall in 15-20 minutes before accident, aisle had not been cleaned for 50 min.) was sufficient to establish that the dangerous condition had existed for a "sufficient length of time"

Constructive Notice: Sufficient conditions exist for the law to assume D had notice (even though actual notice is absent) – circumstantial evidence may be used to establish (see Negri, Gordon, infra.)a) Slip & Fall Cases: Constructive notice if the following obtain:

i. "Defect [is] visible and apparent" (Gordon); and,ii. Defect existed "for a sufficient length of time prior to the accident to permit

D's employees to discover and remedy it" (Gordon) b) Business Practice Rule:

i. Applies to self-service operations where "proprietor can reasonably anticipate that hazardous conditions [will] regularly arise."; thus, no need to provide evidence of actual or constructive notice

Examples:o 1970 Vermont Case (name unknown): D liable for injuries suffered by

P when P slipped on produce even though P was unable to provide evidence of constructive notice – merchant used a self-service method of selling produce and was thus obligated to anticipate these conditions.

o Randall: D not liable for injuries suffered when P slipped on loose birdseed in an aisle of D's store – P provided no evidence of the packaging of the birdseed, thus failing to establish "self-service" of birdseed – P was required to provide evidence (e.g., time) of constructive notice

Burden of proof: D has burden of proving that reasonable steps were taken to avoid foreseeable risk of a self-service operation – "a merchant that uses such a self-service method of sale must bear the burden of showing what steps were taken to avoid the foreseeable risk of harm”

3. Res Ipsa Loquitor (translation –"the thing speaks for itself")

Very strong form of circumstantial evidence – description of the cause of an injury serves as a presumption/inference (see Burden Shifting, infra.) that a duty was breached – "[P]resumption of negligence [arises] from the fact of an accident" (Byrne); "In rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate precipitating cause" (McDougald)

Majority rule: can use res ipsa loquitur and specific negligence simultaneously Three elements must obtain for res ipsa to be shown:

a) "The accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control" (McDougald) i. "Common experience" and "general knowledge" are used to determination

whether an accident falls within this category, although expert testimony and party evidence are also allowed

Often a framing question that boils down to frequency (i.e. cradled spares rarely fall off tractor trailers, but chains fail all the time McDougald)

Need not preclude other possible explanationsii. Examples:

McDougald : Common experience says that spare tires do not fall from their cradles underneath the vehicle unless driver is negligent

Cheung : Common experience says that tires do not fall off their axles unless driver is negligent

R2T : Common experience says that a tire blowout may happen without negligence of the driver

b) Instrumentality/agency causing the accident is under the exclusive control of Di. Assigning often includes a normative judgment. Who controls a cradled spare

(manufacturer, driver)? Could answer based on custom, cheapest cost avoider, pragmatism, etc.

ii. Examples:Byrne: Barrel of flour was under the exclusive control of D res ipsaLarson: Chair thrown from window of hotel guest room was not under

exclusive control of hotel no res ipsaDermatossian: bus grab handle was not under exclusive control of transit

authority as other "agencies" may have damaged the handle no res ipsaMcDougald: Chain securing tire was under exclusive control of D res ipsa

c) P's voluntary action did not contribute to or cause the accident i. Example: Byrne – P did not contribute to the accident when a barrel of flour

fell on him from above Burden Shifting: Inference View & Presumption View

a) Inference View: Majority rule. If judge applies res ipsa (e.g., following denial of D's motion for summary judgment), then jury “may but need not find D negligent," even if D presents no rebuttal evidencei. In this case, res ipsa will allow P to avoid demurrer/summary judgment for D

when P is unable to prove duty/breach of duty, but does not allow P the benefit of summary judgment/directed verdict when D offers no rebuttal on these elements

b) Presumption View: Minority rule. If judge applies res ipsa (e.g., following denial of D's motion for summary judgment), then 1) P is entitled to summary judgment/directed verdict unless D presents plausible rebuttal evidence, and 2) jury must find D negligent "in the absence of a persuasive exculpation" i. In this case, if D does offer rebuttal evidence, jury is instructed that P "bears

the burden of proving that D was negligent”c) Jurisdictions that use the inference view will adopt the presumption view in

extreme cases – i. e.g., Farina: P, airline passenger, injured when plane went off the runway

during landing; D provided no rebuttal. P entitled to summary judgment even though the jurisdiction (New York) generally applies the presumption view

d) Both views on burden shifting apply only to the elements of duty and breach of duty. P must still prove injury and causation when res ipsa applies (AL: Even when there's a presumption of negligence?)

Ybarra and the focus on the burden shifta) Basic idea: the party with greater access to the evidence should bear the burden of

proof. "The particular force and justice of the rule…consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is

practically accessible to him (D) but inaccessible to the injured person" (Maki v. Murray Hospital)

b) Used as justification to relax res ipsa requirement (In Ybarra the P sued numerous Ds, one, but not all, of whom controlled the dangerous instrumentality. The ct. allowed all to be found liable)

c) Objections: Relaxing the elements for res ipsa unnecessarily risks en masse liability (as in Ybarra) since modern discovery allows Ps to uncover evidence from Ds. It also unjustifiably reverses the burden of proof when no information is available (D's plant explodes; all employees w/ relevant info. die. Res ipsa applies. No rebuttal possible Giant Powder Co.)

d) Example: P is unconscious at hospital when injured by one, but not all, Ds. Ct. applies res ipsa loquitur and requires each D to rebut presumption of negligence. None do. All are liable (Ybarra)

Res Ipsa Loquitor -- "The thing speaks for itself.""From facts of injury, we are going to presume negligence on D"4 requirements--1. No direct evidence of D's conduct.

*No reason to use doctrine of res ipsa loquitor if we know details of D's conduct.2. Harm seldom occurs without negligence.

*Aviation claims, "Within the general experience of the jury", NOT required to negate other possible causes3. In defendant's exclusive control

*P must show probability as to whether the D was negligent, so the instrumentality involved must always have been within the exclusive control of the D.

Modern tort cases do not rely on exclusive control as much, however. P is required to produce evidence negating other possibilities. There may be more than one D involved. If these multiple defendants have a special relationship, like in the hospital (see Ybarra), this is easier to hold.4. Rule out plaintiff's contribution

*Contributory negligence--accident was probably not due to P's own conduct5. Evidence more freely available to D (requirement for some courts)6. Even if res ipsa applies to show negligence on the part of the defendant, P still has burden of proof in showing that that negligence constituted a breach of duty.7. Applying the doctrine of res ipsa merely indicates that the jury COULD find negligence, not that it is required to. Occasionally, res ipsa is so convincingly applied that the court would rule as a matter of law that the defendant must have been negligent.8. Most courts hold that res ipsa is no different from the effect of any other kind of circumstantial evidence. Some states hold that, once res ipsa applies, the burden of proof shifts to the D to prove by a preponderance of the evidence that D was NOT negligent.9. Proof of specific negligence does not automatically waive the right to benefit from res ipsa.10. D will want to offer rebuttal evidence of due care. This may prevent a directed verdict against D. OR D's evidence may disprove one of the elements required to claim res ipsa loquitur.

E. MEDICAL MALPRACTICE (A SPECIAL CASE)

If D has higher degree of knowledge or skill or experience than the "reasonable person", D must use that higher level.

1. Custom Unlike other negligence actions (in which custom is persuasive but not controlling), a

custom (there may be more than one valid custom) establishes the standard of care in medical malpractice actions – "As part of his prima facie case a malpractice P must affirmatively prove the relevant recognized standard of medical care exercised by other physicians and that the D departed from that standard when treating the P" (Robbins)

Whose custom applies? The issue of geographic scope:a) Strict Locality Rule: Physicians required to exercise the degree of care typically

exercised in their locality i. Justification: Recognized "that opportunities, experience, and conditions may

differ between densely and sparsely populated communities" (Sheeley)ii. Critique: Allowed for "conspiracy of silence" within localities, legitimized a

low standard of care in some communitiesb) Similar Locality Rule: Physicians required to exercise the degree of care typically

exercised in "similar localities”i. Justification: Meant to mitigate the undesirable consequences of strict locality

rulec) National Standard Rule: Physicians are "under a duty to use the degree of care

and skill that is expected of a reasonably competent practitioner in the same class…[and] acting in the same or similar circumstances”i. Justification: Recognizes the existence of national standards for accreditation,

training, role of modern communications/transportation in creating national standards for medical care – today, same/similar locality rule is an anachronism (Sheeley)

ii. Critique: Fails to recognize the disparity of resources that still exists between rural/urban communities

d) National standard rule is the majority rule, but a minority of states still applies the similar locality rule

Exception: If a case is factually simple enough for jurors to rely on their common experience in determining the standard of care, then custom is not controlling.a) Examples:

i. Leonard: custom (e.g., of not counting surgical instruments) was not controlling in a case where a surgical clamp was left inside P, as no special skill needed to count surgical instruments

ii. Tousignant: Standard or care determined by instructions on a referral form (rather than custom) calling for restraint of P in a case in which unrestrained P fell and broke her hip – custom not controlling as there were no questions of "complex scientific or technological issues" outside of the "general knowledge and experience of lay persons"

2. Informed Consent Patient must consent to both invasive and noninvasive procedures – in both cases,

overarching goal is protection of the patient's autonomya) Invasive Procedures: W/out consent, an invasive procedure constitutes a battery,

depriving patient of "right to reject a nonconsensual touching" (Matthies)

b) Noninvasive procedures: W/out consent, patient is unable to decide the type/quality of life she will have, thus depriving the patient of "right to self-determination" (Matthies)

Failure to obtain patient's informed consent constitutes medical malpractice Requirements of informed consent:

a) Physician must describe material risks of possible procedures i. Examples:

Milobsky : 1/100,000 (frequency) risk of loss of sensation in half-inch square below lower lip (seriousness) during removal of wisdom teeth not material risk, as injury was "troublesome but hardly disabling”

McKinney : 1/1,000 (frequency) risk of testicular atrophy (seriousness) during hernia surgery jury could find material risk, as injury had serious impact on quality of life (psychological effects led to impotence)

Need not disclose cocaine use or doctor inexperience (Cleveland; Lukson)b) Physician must disclose any "medically reasonable alternative," whether

recommended by the physician or not recommended by the physiciani. Example: Matthies: Surgery to repair broken hip by installing steel screws,

even though risky, was a medically reasonable alternative, given the impact on P's quality of life of the alternative treatment (bed rest) recommended by the physician

Standards for Informed Consent – subjective and objective standarda) Reasonable Patient Standard: Majority Rule – Determines what is a "material

risk" or a "medically reasonable alternative" by using the perspective of the reasonable patient

b) Reasonable Doctor Standard: Minority Rule – Determines what is a "material risk" or a "medically reasonable alternative" by using the perspective of the reasonable physician

c) Differences: i. Under reasonable patient standard, physician is not required to disclose any

more than what the reasonable patient would want to know even if the actual patient requests more information – reasonable doctor standard might avoid this outcome as reasonable doctor might provide the information requested by the patient, thus providing greater protection to autonomy

ii. Reasonable doctor standard might be more paternalistic bad for patient's autonomy

3. Expert Testimony General Requirement: "In almost all cases the P must present expert witnesses since

the technical complexity of the facts and issues usually presents the jury itself from determining both the appropriate standard of care and whether the D's conduct conformed to that standard" (Robbins)

Criteria:a) "Knowledge of or familiarity with the procedure, acquired through experience,

observation, association, or education" (Sheeley)b) Board certification in the medical specialty at issue = presumption that witness is

qualified (Sheeley)c) Active clinical practice in D's specialty/field within the last year – only in some

states (Sami)

Exceptions:a) If a case is factually simple enough for jurors to rely on their common experience

in determining the standard of care, then experts are not needed – e.g., no need for experts if surgeon leaves a sponge in patient's abdomen

Experts and Res Ipsa: a) Experts may be used in cases in which res ipsa applies – they may testify as to the "common knowledge" (of the medical field, though) that is used in res ipsa cases to determine whether an injury can occur only through negligence; "experts can educate jurors by training them to be twelve new initiates into a different, higher level of common knowledge." (Connors)

4. Professional will not normally be held to guarantee that a successful result will occur

F. THE REASONABLE WOMAN STANDARD

1. UNCOMMON LAW by A.P. Herbert, M.P. A.P. Herbert -- liberalizing force in England. Wrote these fictional cases.

2. It is not as though there is one simple reasonable man standard.a) There are slight variations on this.b) Will tort law hold you liable for being a human being, rather than being a priggish

anal-retentive freak?

3. Point-of-View for reasonable persona) Are we going to look at this from the point of view of the harrasser vs. the harrassee?b) Are we looking at the average man vs. reasonable man?

i. Custom is evidence of reasonableness but not proof.ii. What actually goes on in society?iii. What people think should go on?iv. What should go on whether people think it should or not?

4. Example: Rape is non-consensual sex. Woman often believes she did not consent. Man believes she did. Suppose crim law says rape is non-consensual. He is able to show a reasonable man in his position would have had the same belief. She is able to show that no reasonable woman would have thought her behavior showed consent.

5. What do juries actually DO? Irving Younger practiced in NY courtroom under reconstruction. One wall of jury was made of Masonite, he would listen in to what jury would say. His claim was juries don't care about the law period. They pretty much try to figure out what is fair and try to make that happen. They might deliberately ignore the instructions from the judge. They might try to pretend to look at the instructions, fitting them into their view of what is fair.

IV. THE DUTY REQUIREMENT: PHYSICAL INJURIES

A. INTRODUCTION

1. We owe everyone we come into contact with a general "duty of care"--to behave with care that reasonable person would.

2. Situations where courts hold that D owes P LESS than a general duty of carea) No duty, generally, to take affirmative action to help P

i. Person not generally liable in torts solely on grounds of failure to actii. If D sees P in danger (like drowning pond), no duty to assist even if it could be done safely.iii. Exceptions:

Business premesis--owner must give warning and assistance regardless of source of danger/harm Employers must give assistance to employees Universities must give assistance to students If danger/injury is due to D's own conduct, even if D acted without fault When defendant and victim are co-vernturers Once D voluntarily starts to assist, D must proceed with reasonable care (as this has effect of dissuading others from helping) Mere promise to help by D is not enough to make D liable for not following through If D has duty to control third person, D can be negligent for failure to exercise that control (special relationship)

b) No duty to avoid causing unintended mental suffering to Pi. If D causes physical impact, then is liable for emotional/mental suffering which flows from it. "Parasitic" damagesii. Mental suffering without physical impact--courts limit recovery

When no impact or physical symptoms, nearly all courts deny recovery Exceptions: Negligence by telegraph companies in wording message and funeral homes for handling corpses 14 states allow recovery for negligent infliction of purely mental harm "At-risk"--If P, by virtue of exposure to certain substance, suffers increased likelihood of disease, probably no liability If D's conduct is intentional or willful, remember, can recover through IIED

iii. Most court allow recovery when D's negligent act physicall endagers P, no impact, but P has ED with physical consequnces.iv. Courts are split as to whether P recovers when suffering ED due to danger or harm for third persons

If P was in "zone of danger" nearlr all courts allow recovery for ED due to third party's distress A number of states have abandoned zone requirement and allow the action if:

--P observes danger or injury to X--X is a close relative to P

c) Recovery for pre-natal injuries varies:i. If child is born alive eventually, nearly all courts allow recovery

ii. Couts are split about whether suit can be brought on behalf of a fetus which is never born alive--"person" in wrongful death statute?iii. Courts are split about whether pre-conception injuries allow for child eventually born alive to recoveriv. Wrongful life suits -- child may claim, if illegitimate or congenital disease, that it would have been better off aborted. Almost no courts allow.v. Parents may recover for medical expenses and perhaps ED from child's condition.

d) No duty to avoid causing pure economic loss to P in absence of more tangible harm (property damage or physical injury)

i. When D tortiously causes injury/prop damage to X, but only pure economic loss to P, P may not recoverii. Rationale for denying recovery: fear of "open-ended liabilityiii. Modern approach: Some courts relax this restriction. Possible recovery where:

injury was relatively foreseeable relatively few Ps would be permitted to sue D's conduct is relatively blameworthy

B. OBLIGATIONS TO OTHERS

Affirmative Duties – Traditional Conception General Rule: No duty to aid those in need. Examples:

1. Bentham: If a drunk falls, face-down, into a puddle on the street, a passerby has no legal duty to lift the drunk's head out of the puddle; while failing to help the drunk is morally reprehensible, it is legally innocuous.

2. If someone is drowning, a fellow beach patron who happens to be a certified lifeguard has no legal duty to rescue her.

3. Harper: Owner and operator of a boat has no duty to warn passenger that water is shallow and unsafe for diving even if he knows the water depth to be highly dangerous for diving.

Justification:1. Protection of individual autonomy: Imposing an affirmative duty to aid would be

an invasion of autonomy2. Critique: Hand Formula trumps considerations of autonomy, and would generally

impose affirmative duties when the risk of rescuer's injury is low – in such cases, B (burden on the rescuer, i.e., lifting the drunk's head) is less than P (probability of rescuer's injury) multiplied by L (rescuer's potential injury)

Exceptions: Affirmative duty obtains when… 1. Special Relationship: "[An] affirmative duty to act only arises when a special

relationship exists between the parties" (Harper) 2. Examples of Special Relationships:

a) Reliance on promiseb) Mutual adventurec) Common carriers/innkeepers owe an affirmative duty to protect/warn their

patrons/invitees d) Landowners owe a duty to those on their land

e) "Persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection" owe affirmative duties to persons so situated (Harper) – in such cases, the other person has a reasonable expectation of protection from the person with custody

f) Examples:i. Harper: No such relationship between owner of a boat (D) and 20-year old

passenger (P) injured when diving into shallow water – even a child knows the inherent dangers of diving into water of unknown depth, so 20-year old passenger was not deprived of normal opportunities to protect himself and had no reasonable expectation to look to D for protection

ii. Farwell: P was injured in a fight following P and D's efforts to "engage [two girls] in conversation; the court held that special relationship obtained because P and D were "companions engaged in a common undertaking"

iii. Andrade: Day care provider (D) had a duty to protect children (P) attending the day care center under its supervision from abuse/overcrowding – because Ps "had little opportunity to protect themselves" while in D's custody and looked to D for protection, P had reasonable expectation of protection

iv. Morgan: P's decedent was owed a duty to warn by D's sheriff when sheriff promised to inform decedent when man who had threatened decedent was released from jail if decedent relied on this promise – such reliance would establish the required reasonable expectation of protection

v. Mixon: D, P's employer, owed P a duty to inform P when P's pregnant wife called to ask for a ride to the hospital because D had promised to do so – the promise established "reasonable expectation"

3. Non-negligent/Negligent Injury: a) Traditional common law rule – no duty to help someone whom one has

innocently/non-tortiously injured i. Example: Cappier – D had no duty to help a victim non-tortiously injured

while victim was trespassing on D's railroad tracksb) Modern Rule: Beginning to reject traditional common law approach

i. R2T, § 322: "If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm"

ii. Maldonado: D had a duty to aid P when P was non-tortiously injured while boarding D's train – D was held liable for aggravation of P's injuries

4. Non-Negligent Creation of Risk:a) R2T, § 321: One who has done an act and "subsequently realizes or should

realize that it has created an unreasonable risk of causing physical harm to another" is under a duty to exercise due care to prevent the risk from occurring/eliminate the risk

b) Examples:i. Simonsen: D, after non-negligently knocking a utility pole into the street,

had an affirmative duty to remove the hazard or warn others of the hazard, even though he was not liable for creating the hazard

ii. Menu: D, a cab company, owed no duty to P injured by a disabled car at rest on an interstate highway even though D had transported the driver of the disabled car from the accident – D had not created the risk nor changed the nature of the risk by transporting the driver

iii. Tresemer: D owed a duty to warn P of newly-discovered dangers of an intrauterine device previously inserted by D into P

5. Undertaking Rescue: Affirmative duty to aid obtains once one has undertaken to rescue someone in danger (See Nonfeasance & Malfeasance/Omission & Commission, infra.)a) one cannot begin to rescue someone, stop efforts halfway through the rescue,

and avoid liability for resulting injuries even though no liability/duty would obtain if one had never attempted the rescue

b) R2T, § 324: One who takes charge of another who is helpless is subject to liability caused by:(a) the failures of the actor to exercise reasonable care to secure the safety of

the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by doing so he leaves the

other in a worse position than when the actor took charge of him”c) Example: Farwell – "If the defendant does attempt to aid him, and takes

charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility"; therefore, D owed duty of care to P once he voluntarily attempted to aid P (e.g., applying an icepack, unsuccessfully attempting to rouse P) following P's injury in a fight

Nonfeasance & Malfeasance/Omission & Commission1. General Distinction: Malfeasance = acting negligently (commission),

Nonfeasance = failure to act (omission)a) duty obtains for malfeasance/commission, but not for nonfeasance/omissionb) Application: Bentham's drunk

i. Not liable for not helping B's drunk (i.e., not liable for nonfeasance)ii. liable if, when helping B's drunk, you injure him (liable for malfeasance)iii. "It is ancient learning that one who assumes to act, even though

gratuitously, may thereby become subject to the duty of acting carefully …The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all" (Moch)

2. Incomplete: this distinction/rule assumes that an affirmative duty does not obtain a) when affirmative duty obtains, actor liable for both omission and commissionb) key inquiry: does duty exists? (not was harm's cause omission or commission)

3. Cardozo reformulation: must look to a party's conduct to determine if the party owes a duty of carea) certain conduct engenders a duty relationshipb) "if conduct has gone forward to such a stage that inaction would commonly

result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward”

4. Weak distinction: many acts may be described as both omissions or commissions a) rear-ending someone could be seen as failure to apply the brakes (omission) or

as simply rear-ending another car (commission)b) not throwing a life preserver (omission) can be recast as "sitting on one's butt"

(commission)

c) ambiguity reinforces the centrality of the duty inquiry in determining liability 5. Examples:

a) Moch: D's failure to provide water for P to fight a fire when D had entered into a contract with the city but not with P was "at most the denial of a benefit" rather than the "commission of a wrong”

C. OBLIGATIONS TO PROTECT A THIRD PARTY

1. R2T, § 315: Duty of care may arise from either: (a) "a special relation…between the actor and the third person which imposes a duty

upon the actor to control the third person's conduct, or (b) a special relation between the actor and the other which gives to the other a right of

protection”

2. Examples: a) R2T, § 319: "One who takes charge of a third person whom he knows or should know

to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm”

b) Physician-Patient Cases – Issue: Physicians owe a duty to protect or warn third-parties harmed by the physician's patient

i. special relationship between the physician and patient extends the physician's duty of care to such third-parties when: harm to third-party is foreseeable and third-party victim is identifiable

ii. Interpretation Don: this is "handwaving" – non-cogent rationalization to sidestep lack of

such duty absent a special relationship between P and D Public policy considerations: interest in saving lives overrides the

doctor/patient's interest and public's interest in confidentiality iii. Not all states have accepted the Tarasoff approachiv. Special relationships

o Tarasoff: D, psychologist, owed a duty of care (e.g., to warn) to the homicide victim of D's patient when that patient had confided his homicidal intentions to the psychologist if the psychologist knew or should have known (according to professional psychological standards) that the patient would carry out these intentions (i.e., harm was foreseeable) – the special relationship between D and the murderer/patient sufficed to establish the affirmative duty to warn P when harm to P was reasonably foreseeable

o Lego: Passenger in a car had no duty to warn driver of impending collision with a pedestrian – no special relationship between passenger and driver or passenger and pedestrian

v. Foreseeability:o Hedlund: D, psychotherapist, owed a duty to protect P, child, when child's

mother had conveyed threats of physical assault and child was injured in such an assault – injuries to child were foreseeable in an assault upon the mother

o Reisner: D doctor owed a duty of care to P when D's HIV+ patient, who was not informed of her HIV contamination, passed the disease to P – D owed a

duty to inform patient of HIV status so she could prevent passing the disease to P

o Bojarski: D, employed by P's employer to give prospective employees a physical exam, had a duty to inform P (a prospective employee) of a serious medical condition discovered during the course of employment exam (Tthis is a minority position – most courts rule that no duty obtains in such conditions)

vi. Identity of Victims: Duty imposed if potential victims are identifiableo Pate: D surgeon, who operated on carcinoma of P's mother and knew or

should have known that the condition was genetically transferable, owed a duty to P to inform P' mom of the genetic condition so P's mom could secure earlier diagnosis and treatment – third-party victims were identifiable

o Hawkins: D physician did not owe a duty of care to P when P contracted Hepatitis C from D's patient following D's negligent misdiagnosis of patient – even though it was reasonably foreseeable that D's breach would lead to someone's injury, duty did not obtain because, at the time of the misdiagnosis, specific P was unknown to D (i.e., P and patient were not married) – victim was not identifiable

o Thompson: D not liable for releasing a violent juvenile offender even though he had threatened to kill an unspecified child in his neighborhood – no duty to warn public/those in the neighborhood because, even though the murder was foreseeable, potential victim was not identifiable

vii. Exception: Bellah: D psychiatrist had no duty to warn P parents of their patient/daughter's possible suicide – "Tarasoff does not apply where the risk is 'self-inflicted harm or mere property damage’”

c) Negligent Misrepresentation:i. R2T, § 311:

o One who negligently gives false information to another is o subject to liability for physical harm caused by the action taken by the other o in reasonable reliance upon such information, o where such harm results

(a) to the other, or (b) to such third persons as the actor should reasonably expect to be

put in peril by the action taken ii. Randi W.: D, school district, was liable to P when former employee of D, hired

by P's school district, sexually assaulted P; duty obtained because: o Foreseeability: the assault was reasonably foreseeable because employee

had a history of assaulting his students, o Policy: protection of children from sexual assault was public policy priority,

and o Affirmative Misrepresentation: D's letters of recommendation, which gave

"misleading half-truths" about employee's background and character by praising employee w/out mentioning prior incidents of sexual assault, were an affirmative misrepresentation (misfeasance/commission), not a mere failure to disclose (nonfeasance/omission) – letters "strongly implied [employee] was fit to interact appropriately and safely with female students”

o Reliance: P's school district relied on D's recommendation when hiring employee

iii. Garcia: D, parole officer, liable for P's death when P was killed by D's parolee because D had told P that parolee was not dangerous

iv. Boon: D liable for injuries to P, police officer responding to D's 911 call, when D told P that D's husband was not dangerous and husband then shot P

d) Negligent Entrustment: If you give something to another w/ which the other harms someone, you are liable if the injuries were reasonably foreseeable

i. R2T, § 390: o "One who supplies directly or through a third person a o chattel for the use of another o whom the supplier knows or has reason to know o to be likely because of his youth, inexperience, or otherwise, o to use it in a manner involving unreasonable risk of physical harm o to himself and others whom the supplier should expect to share in or be

endangered by its use, o is subject to liability for physical harm resulting to them”

ii. Convey v. Control: some jurisdictions only allow this tort when D actually retains control/ownership of chattel (i.e. no liability if sell car to unlicensed, drunk driver son, but liability if lend car to him)

iii. Exampleso Vince: Ds (great-aunt and car dealer) liable for injuries suffered by P when

grandnephew injured P while driving car paid for by great-aunt and sold by car dealer – Ds knew that grandnephew abused drugs and alcohol and had failed driver's test several times, reasonably foreseeable that providing him with a vehicle would lead to injury

o Osborn: D, car rental company, had no duty to investigate driving record of sober customer with valid driver's license, even though customer had history of DUI convictions and injured P while driving drunk in car rented from D

o Kitchen: D, K-mart, sold gun to a drunk who immediately used it to kill P; D liable for P's injuries

o McLean: duty to investigate background of home salesmene) Dram Shop Liability & Social Host Liability

i. Definitions:o Dram Shop Liability: Taverns that furnish alcohol to person liable to those the

person injures while intoxicatedo Social Host Liability: Social hosts who furnish alcohol to person liable to

those the person injures while intoxicatedii. Jurisdictional Splits: Majority Position: Yes to dram shop liability, no to social

host liabilityo Minors: Social host liability is more likely to obtain for minor guests (48

states refuse liability to social host)iii. Examples:

o Reynolds: Ds provided their nephew, a minor, with alcohol at their wedding; nephew injured P in a car accident. D owed no duty to prevent nephew from driving, so not liable to P. Rationale: Imposing liability would be an enormous social change,

contrary to customs – unrealistic and costly to force social hosts to control/monitor their guests

o Graff: no duty to prevent drunken guests from leaving partyf) Privity:

i. Traditional Common Law Rule: Contract required to establish duty of care; o car manufacturer owes a duty to the dealer buying a car from the manufacturer

(the parties entered into a contract)o does not owe a duty to third-party who buys the car from the dealer (no

contractual relationship between third-party and manufacturer)ii. Winchester: Narrow attack on privity doctrine

o D had falsely labeled a bottle of poison as a bottle of medicine; bottle of mislabeled poison was sold to several distributors, pharmacists before P bought it. P was severely injured after taking the poison, mistakenly thinking the poison was medicine

o Because the product was imminently dangerous and D knew that it would only be taken by a consumer, court held that privity did not apply and that D owed a duty of care to P, even though P was several "contractual steps" removed

iii. MacPherson: Extension of Winchestero P injured when wheel of car made by D collapsed; even though no contractual

relationship between D and P, court held that D owed a duty to P (e.g., to inspect the wheel)

o "Subject-matter" does not have to be imminently dangerous (e.g., poison, explosives) for duty to obtain outside the a contractual relationship; for duty to obtain, "subject-matter" merely has to be of such a nature that it becomes dangerous if negligently made

o Duty imposed upon a manufacturer extends beyond the contractual relationship between the manufacturer and dealer if manufacturer knows that "the subject-matter of the contact is intended for" the use of others

o Court holds that D, Buick, knows that persons other than the dealer will use the car, so Buick owes a duty to those that buy cars (e.g., P), not just to those that sell cars

iv. Subsequent extensionso Property damageo Beyond users (e.g. pedestrians hit by out of control car)o Beyond manufacturers to repairers

v. Exampleso Devlin: D liable when negligently built scaffold collapses, injuring purchasers

P workmeno Carlson: D master not liable when supplies P servant w/ tool that harms P

because D is not a tool expert, so reliance on tool's manufacturer is proper/inevitable

D. OBLIGATIONS TO SELF

1) Ps have a duty to self to protect self from harma) Duty to warn driver of impending accident to protect self (but not pedestrian)b) Duty to mitigate injuries/seek treatment

E. LANDOWNERS AND OCCUPIERS

Traditional Scheme1) Trespassers:

a) Definition: No permission to be on propertyb) Landowner's Duty: Duty not to willfully or wantonly injure trespasser

2) Licensees:a) Definition: Landowner gives permission to be on property, but permission not

extended to the public, not given with expectation of material benefit b) Landowner's Duty: Duty to protect against known dangers

3) Invitees:a) Definition: Landowner gives permission to be on property, extends the permission to

the public, and expects material benefit from the visit c) Landowner's Duty: Duty to protect against known dangers and those that would be

revealed by a reasonable inspection4) Example: Carter – P on D's property to attend a Bible study; because invitation not

extended to public and D has no expectation of material benefit, P=licensee. Therefore, D not liable for injuries suffered by P when P slipped on ice in D's driveway because D not aware of the danger

Modern Reform/Rejection of Traditional Categories1) Heins: Abandons invitee/licensee distinction, holding that landowner owes duty of

reasonable care (i.e., duty to protect from foreseeable harm) to all nontrespassersa) Rationale:

i. Distinction is contrary to the typical behavior of the reasonable person ("reasonable people do not vary their conduct depending on [the distinction]") and to "modern social mores and humanitarian values" (quoting Rowland)

ii. Eliminate complexity/unpredictability of the traditional rules 2) Some jurisdictions have followed Heins, Rowland, others have retained traditional

classifications – split about 50/50 (p. 204) Criminal Activity on Property

1) Approaches used to determine existence of landowner's duty to protect against criminal activity:a) Specific Harm: Duty to protect if landowner is aware of specific, imminent harm

(outdated rule)b) Prior Similar Incidents: Duty imposed if prior incidents of criminal activity on the

property, as prior incidents establish that criminal activity is foreseeable ("one free assault" rule)

c) Totality of Circumstances: If criminal activity is foreseeable upon an examination of all relevant circumstances (e.g., prior similar incidents, crime rates in the surrounding area), then landowner has duty to protect (most common approach)

d) Balancing: Foreseeability and gravity of harm weighed against burden of precautionary measures – similar to Hand Formula

2) Posecai: D, Wal-Mart, did not owe a duty to protect P from being robbed while in D's parking lot; court adopts "balancing test" and determines that harm was not sufficiently foreseeable to impose a duty – even though D's store was in a high crime area, incident was not sufficiently foreseeable because only one such incident against a customer had occurred in previous years

F. INTRAFAMILIAL DUTIES

1) Traditional View: Parents were largely immune from tort actions (but not property or contract actions) brought by their children because:

(a) parental discretion was necessary to correct the "evil" nature of children,

(b) tort actions would "disturb domestic tranquility, (c) damages would deplete family resources, and (d) availability of such tort actions creates danger of fraud/collusion

2) Broadbent: Abolishes parental immunity and instead imposes duty to act as a "reasonable and prudent parent." The court held that "A parent is not immune from liability for tortious conduct directed at his child solely by reason of that relationship…a parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent parent in a similar situation”

G. DUTY AND STATUTES

1) To determine if a statute imposes a duty of care not recognized under common law (and, therefore, a private right of action in tort), examine three factors:a) Whether the plaintiff is one of the class for whose particular benefit the statute was

enacted;b) Whether recognition of a private right of action would promote the legislative purpose;

and,c) Whether creation of such a right would be consistent with the legislative scheme

2) The negligence per se doctrine used here will only apply when P shows statute was intended to protect against the very kind of injury in question.

a) P must be member of class or persons whom statute was designed to protect (safety device in elevator designed to protect ees only).

b) Statute must have been intended to protect against the particular kind of harm that P seeks to recover for (dummy lowering example)

3) Examples: a) Uhr: Statute mandating that school districts to perform annual testing for scoliosis did not

create a private right of action for failure to test because a private right of action would be inconsistent with legislative scheme. Because legislative scheme conferred immunity for misfeasance (i.e., negligent testing), legislature, court infers that legislature intended to immunize school districts from liability in tort. Therefore, court holds that a private right of action for nonfeasance would be inconsistent with legislative scheme – "it would be incongruous for the Legislature to accord immunity for one circumstance but not the other"

b) D drives 65 mph in a 55 zone and hits P, a pedestrian. Because 55 mph limit is a safety measure designed to protect against accidents, the fact that D has violated statute conclusively shows that that D was negligent--D cannot argue it was safe to drive at 65 mph.

4) Inapplicability of Martin: Martin asserts that statute mandating certain behavior conclusively establishes standard of care when common law already recognizes a duty of care in the circumstances at issue in the statute – if no duty at common law (as in Uhr), then Martin does not apply

5) Automobile Guest Statutes: Minority of states provide that an owner-driver is not liable for any injuries received by his non-paying passenger, unless driver was grossly negligent or reckless.

H. DUTY AND FORESEEABILITY

1) Palsgraf and "Duty to Whom?”a) Cardozo (majority) & Private Law:

i. Duty is owed to individuals, not the world at large tort law is used for personal redress, as private law "What the plaintiff must show is 'a wrong' to herself, i.e., a violation of her own

right, and not merely a wrong to someone else" ii. Zone of danger: duty owed to those within an action's "zone of danger" (i.e., range of

reasonably foreseeable consequences) "The risk reasonably to be perceived defines the duty to be obeyed, and risk

imports relation; it is risk to another or to others within the range of apprehension”

D owes a duty of care to P only if P's injury is a risk of D's action iii. Application: Negligence to the owner of the package containing fireworks (i.e.,

damage to his property) is not a wrong relative to P because it was not reasonably foreseeable that this action would injure her D owed no duty to P when negligently damaging the property of another D not liable for P's injuries when only breaching duty to fireworks owner

iv. On this view, the four elements of negligence must be "linked" – C's breach of a duty owed to A can not be the basis of liability for an injury caused to B if C owed no duty to B

b) Andrews (dissent) & Public Law: i. Duty is owed to the world at large; when an action injures a person, she is wronged

even if she is not within the "zone of danger" – i.e., P's injury need not be within the risk that rendered D's action negligent – once D is negligent, any injury to any party falls within the scope of the breached duty

ii. Liability then turns on whether D's breach was the proximate cause of P's injury, not whether D owed a duty of care to P; the boundary of proximate cause is "arbitrarily" determined by considering public policy – tort law is thus used as a mechanism for setting public policy rather than as a setting for redress of private wrongs

2) Role of Policya) Courts often weigh policy considerations, social impact of a decision (in addition to

reasonable foreseeability), when deciding whether to impose a duty – Andrews's approach, Prosser's approach to tort law (Don does not like this approach…)

b) Considerationsi. Deterrence: prevent Ds from doing bad things by assigning penalties (forward

looking)ii. Compensation: allow (innocent) injured Ps to recover when harmediii. Justice: secondary consideration at best

c) Objectionsi. Anti-democraticii. Pointalist approach inconsistent/factured policyiii. Judges not very good at setting social policyiv. If Ds are insolvent, they cannot be deterred or compensate

d) Examples:

i. Mussivand: During affair with P's wife, D infected P's wife with STD; P's wife then passed disease to him. Court held that D had a duty to protect P from infection because it was reasonably foreseeable that P and his wife would have intercourseo If D knew that P's wife was promiscuous, reasonably foreseeable that persons

other than husband (P) would become infected; however, D owes no duty to these other men. Court is making a policy judgment to uphold marriage, so no duty obtains outside the context of marriage

ii. Strauss: D, utility, not liable to P for injuries suffered by P during a blackout because P was in a "common-area" of his apartment building; court's rationale – an extension of duty outside the contractual relationship would impose "crushing liability" on D ( more injuries = less liability)

V. THE DUTY REQUIREMENT—NONPHYSICAL HARM

A. EMOTIONAL HARM

1) Role of Foreseeability/Zone of Dangera) Reasonable foreseeability of harm, while an important factor in assigning duty of care,

does not conclusively establish a duty of care ("There are many situations involving foreseeable risks where there is no duty," Amaya) – must also determine whether D had a duty as to the type of injury suffered by P

b) Examples:i. A rear-ends B; A liable for damage to B's car and for B's injuries. Despite being

reasonably foreseeable, A is not liable for making B miss an important meeting in which B would have closed a $2 million deal because purpose of duty to exercise reasonable care while driving is to protect against damage to persons and property – this duty does not extend to other types of harm

ii. Loss of consortium: Same hypothetical. But, B's injury ruins his marriage. B, however, has no action for loss of consortium, even though it is reasonably foreseeable that many people on the road are married and that one's negligence may harm a marriage. Again, liability is limited by the purpose of the duty (namely, to protect against damage to persons and property)

iii. Emotional distress/physical injury suffered by P while witnessing injury to 3d party – Messy, evolving area of tort law; courts are currently split as to whether drivers owe a duty to those who suffer emotional distress/physical injury solely from witnessing, for example, their child being hit by a caro It is reasonably foreseeable that a parent will suffer emotional distress in such a

situation, but some courts have nonetheless refused to acknowledge that driver owed a duty to the parent as to emotional distress Example – Amaya: Ct. held that extending duty to such injuries was an

"unwarranted extension" of duty; i.e., would be difficult to sets limits in such a duty (bad slippery slope argument), would unreasonably burden drivers, would be disproportionate to driver's culpability

o Other courts have imposed liability for parent's emotional distress, abrogating the duty element from analysis and using Andrew's version of tort liability

Example – Dillon: Court overturns Amaya, imposes liability because P's emotional distress was foreseeable; court also rebuts concerns about fraudulent cases, slippery slopes

c) Takeaway: Must determine the purpose of a duty, the injury trying to be prevented by imposing the duty – Do not just ask "duty to whom?"; must also ask "duty for what?", or "duty as against what type of injury?"

VI. CAUSATION

A. CAUSE IN FACT

1. But-For Causation--Cause-in-Fact a) Definition: An actor is liable to another if and only if preponderance (>50%) of the

evidence shows that the actor's breach is a sine qua non of the other's injury – i.e., but-for the actor's breach, the injury would not have occurred. If P would have drowned anyway, regardless of D's negligence in not providing a life preserver, no liability.

b) But-for causation is an empirical inquiry into the cause(s) of an injuryc) Burden of proof for cause-in-fact lies with Pd) Multiple Causes: If two or more possible causes exist, for only one of which D may be

liable, P must establish facts from which it can be said with reasonable certainty that the cause-in-fact of the injury was the one for which D is liablei. Examples:

o Stubbs: P contracted typhoid fever and alleged that D's contamination of water system was the cause. P presented evidence that contaminated water causes typhoid fever, that a large number of persons in P's locality also contracted typhoid fever; even though P did not prove that he did not contract typhoid fever from other sources – this would be impossible – court held that P's evidence provided reasonable certainty that contaminated drinking water was the cause

o Mitchell: While a guest in D's hotel, P's decedent was murdered in his room; P sued, claiming inadequate security measures. Court dismissed this claim – P failed to establish that inadequate security measures were the cause of murder because there was no evidence of forced entry. Thus, it could not be established with reasonable certainty how murderer gained entry – murderer might have been a friend/colleague of decedent whom decedent invited into the room

o Burgos: After being assaulted in her apartment, P, tenant, sued landlord for negligently maintaining entrance to P's apartment building. P established causation because P testified that she did not recognize assailant although she knew all other tenants and eyewitnesses testified that they did not recognize assailant

ii. Probabilistic Recovery for Future Harm:o D's negligence not only causes a present injury, but also creates a risk of a future

harm; jurisdictions have split in whether to allow P to receive damages for risk of future harm

o Majority View: P must sue for future harm when it materializes; no present recovery for increased risk

Example: Simmons – P exposed to asbestos could only recover for present injury (asbestosis); could only recover for consequent lung cancer or mesothelioma when/if these conditions developed

o Minority View: P may sue for full damages of future harm in a present action if the risk of the future harm exceeds 50% (see Mauro, p. 347)

2. Burden Shiftinga) Statutes/Regulations

i. Application of Martin: If a negligent act is prohibited by statute/regulation because that act increased the chance that a particular type of harm would occur, and the negligent act is followed by that harm, then jury may infer that negligence caused harm absent direct evidence of causation

ii. Examples:o Zuchowicz: D negligently prescribed overdose of danocrine to P, in violation of

FDA regulations; P later developed PPH. Experts testified that PPH could be caused by danocrine. Court held that the such testimony was sufficient to allow a jury to infer that the overdose, not simply the ingestion, of danocrine was the cause of P's PPH – "[W]hen a negative side effect is demonstrated to be the result of a drug, and the drug was wrongly prescribed in an unapproved and excessive dosage…the P who is injured has generally shown enough to permit the finder of fact to conclude that the excessive dosage was a substantial factor”

b) Exceptions to But-For Rule i. Alternative Liability: If two Ds commit similar and simultaneous negligent acts and

one of these acts causes P's injury, each D bears the burden of showing her act was not the cause of P's injury; otherwise, each D may be held liable for the whole injuryo Examples:

Summers: Ds both shot in the direction of P; one shot hit P in the eye, one in the lip. No evidence indicated which Ds' shot had injured P. This evidence was sufficient to uphold judgment against both Ds – Ds bore the burden of offering evidence to indicate which had shot P because Ds were in a better position to offer such evidence.

Gross: P was injured by two Ds three months apart. P sued D1, claiming D1 caused all of P's injuries. Court held that D1 should bear the burden of allocating the injury between each accident; if D1 were unable to do so, D1 would be liable for entire harm.

ii. DES Cases: o Causation – Evidenciary Problem: Ps injured by their mothers taking DES during

pregnancy; because DES had been taken years earlier and was produced by 300 manufacturers, it was impossible to determine the specific manufacturer of the drug that injured each P

o Solution – Market Share Liability: Court applies market share theory of liability because of the impossibility of proving but-for causation – P recovers from each D in proportion to each D's share of the national market for DES. Ds were not allowed to rebut this finding of causation by proving that particular P could not have taken its drug (Hymowitz). Courts are split as to whether each D should be able to show that it conclusively did not make the particular items in question. Modern cases say no. National, not local model used. Courts often reject joint-and-several liability in these cases. P can only collect from any D that D's

proportionate share. More socially valuable the product, less likely court will apply a market-share doctrine.

iii. Substantial Factor: When two independent negligent actions occur and each would be a sufficient cause of P's injury, neither action is a but-for cause (i.e., injury would have occurred from one of the actions alone). In such a case, causation is established if an action is shown to be a substantial factor of the injury – no need to establish but-for causation. o Example – Basko: P was blinded after taking two of D's drugs; either one drug or

the combination caused blindness. D was negligent as to one drug but not the other. Even though D's negligent act could not be a but-for cause, court held that liability would obtain if D's negligence was a substantial factor in causing P's blindness.

iv. Concerted Action: All Ds with an express or tacit agreement to participate in a common plan to commit a tortious act are held jointly and severally liable for P's injury even if particular Ds act could not have been a but-for causeo Example – Orser: Three Ds negligently fired in P's direction; P was injured by a

shot fired by either D1 or D2. D3, who was firing at the same time, was held jointly and severally liable because he knew D1 and D2 were acting tortiously and encouraged them by doing the same thing

3. Expert Testimonya) Fed. R. Evid. 702: "If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue. A witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto"

b) Daubert Test:i. Rule: In applying FRE 702, judges must make a preliminary assessment of whether

the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue

ii. Factors:o Whether the theory can be tested according to the scientific methodo Whether the theory or technique has been subjected to peer review and

publicationo In the case of a particular scientific technique, the known or potential rate of erroro Whether the theory is generally accepted

c) Examples:i. Zuchowicz: Experts' testimony, which was based on methods generally relied by

other experts in their respective fields, was admissible ii. Kumho Tire: Experts testimony about a tire blowout was excluded because no other

industry experts used his methods, his methods were not supported by articles/papers – the expert's mere assertion that his methods were reliable was insufficient to allow his testimony

4. Loss of Chancea) Applies in medical malpractice cases in which P seeks damages for the lost chance of

avoiding physical harm – D's malpractice did not cause P's injury (a pre-existing condition – known as the "presenting problem" – is the cause of the injury), but, rather, decreased P's chance of avoiding the injury

b) Causation: P must prove "to a reasonable degree of medical probability" (i.e., more probable than not) that D's negligent treatment of the presenting condition caused P's "loss of chance”i. Three-part test encompassing:

o Did P patient prove by a preponderance of the evidenceo That it is more than likely that that D doctor's actions caused harmo Resulting in a measurable reduction of the odds that P will recover

ii. Algebraic form: P's evidence makes us X% confident that it is Y% likely D inflicted injury lowering chance of recovery by Z%o X must be over 50% to recovero Y must be over 50% to recovero Damages = Z% of ultimate harm

c) Damages: Calculated by subtracting P's chance for a better outcome after D's negligence from P's chance of a better outcome before D's negligence; resulting percentage is multiplied by the total value of the injury caused by the presenting condition

d) Examples: i. Alberts: P visited D, doctor, and complained of leg pain in the absence of activity – a

clear sign of gangrene – but D did not refer P to specialist until two weeks later. P received unsuccessful treatment at this time, and his leg was amputated. No evidence showed to a reasonable degree of medical probability that P's leg could have been saved if D had not been negligent, so P's failed to show causation – D not liable for P's loss of chance

5. Concurrent causes: D's conduct may meet the "cause-in-fact" requirement but not be the "but-for" cause of the injury.

i. Where two events concur to cause harm and either would have been sufficientii. Each of events is deemed cause-in-fact of injuryiii. Example: Two fires merge together to destroy P's property

6. Indeterminate Plaintiff: Toxic-tort and mass tort cases. Courts may allow a class-action lawsuit.

i. Silicone breast implants--many women have or will develop an auto-immune reaction. Courts would probably allow class-action suit.ii. D can recover even if can't show that her disease was more likely than not caused by D's product.

7. Joint and Several Liabilitya) Traditional Doctrine: When multiple tortfeasors acted concurrently or in concert to

produce a single injury, they could be sued together or separately; each D was held equally liable, but P could recover full damages from any D.

i. Only applies to indivisible harmii. P can never collect twice.

b) Recoup: If P recovers from one D, that D may recoup other Ds' share of liabilityc) Rules on Apportionment

i. Apportionment does not take place if Ds acted in concert (drag racers)ii. Courts will apportion damages if separable over timeiii. D1 may be jointly and severally liable while D2 is only liable for her own portion of injury (Doctor negligently treats arm that D1 broke)

iv. Some harms, like death or property damage through fire, are indivisible resulting in joint and several liability

d) Contributioni. If 2 Ds are jointly and severally liable and D1 pays more that pro rata share, he may usually obtain reimbursement from D2.ii. Usually each D is required to pay an equal share, but perhaps not in comparative negligence states.iii. Intentional tortfeasor may not get contribution from his co-tortfeasorsiv. Contributant must actually be liable to original P (intra-family immunity could supercede in car accident where husband and other driver both at fault to wife)v. If D settles, he may then generally obtain contribution from other Ds provided he can prove they would have been liable as well.vi. Where D1 settles, and D2--against whom P later gets a judgment--sues D1 for contribution, courts are split: Traditional rule is that D1 is liable for contribution Some courts reject contribution, but reduce P's claim against D2 pro rata (D2 comes

out same as if contribution allowed) Courts are increasingly discharging D1 from contribution to encourage settling

e) Indemnityi. Sometimes courts will shift responsibilit from one joint-and-severally liable D to the other. 100% shiftii. Example: D1 is only vicariously liable for D2's conduct, D2 may be required to indemnify D1iii. Retailer who is held strictly liable can get indemnity from others further up the chain.

f) Reform under Comparative Negligence:i. Juries now apportion percentage of each D's fault – under traditional doctrine of joint and

several liability, Ds may recoup damages in proportion to their faultii. Legislative Changes: ≈ 40 states have adopted one of these reforms

o Abolish the doctrine – Ds liable only for their percentage of faulto Abolish the doctrine only when D is less than certain percentage at fault (usually

50%)o Retain doctrine for economic damages, abolish it for non-economic damageso Abolish the doctrine when P is partially at fault, retain when P is not at faulto Abolish the doctrine for certain types of torts, retain the doctrine for others

g) Absent Tortfeasors: Jurisdictions have varying responses to D's effort to apportion blame to an absent (i.e., non-party) tortfeasor; e.g., some jurisdictions do not allow jury to apportion fault to unidentified, non-party tortfeasors

h) Immune Tortfeasors: Some comparative fault jurisdictions will allow juries to apportion fault to an immune, non-party tortfeasor

i) Non-delegable Duties: If D found liable for the negligence of an agent who carries out D's non-delegable duty, D may obtain contribution from agent if jurisdiction retains joint liability for agents/principals

j) Intentional Torts: Jurisdictions are split – some compare negligence and intent, others don't

8. Toxic Harmsa) Problems with cases involving toxic harms:

i. Identification of Injury -- causes later disease instead of immediate injuryii. Boundaries -- Claims are unbounded, victims not yet known, in utero victim, future generations. The magnitude of harmiii. Source -- Which polluters, manufacturers, etc. should be joined to suit?

B. PROXIMATE CAUSE

1) Purpose: Causal Over-determination:a) Cause-in-fact analysis identifies an insanely large number of but-for causes for a

particular injury – proximate cause rules establish limitations on which but-for causes are the basis for tort liability

2) Foreseeabilitya) Foreseeability of an injury is an important factor when determining proximate cause, but

it is not conclusive b) Traditional Rule: Foreseeability of harm is only relevant to determining whether D's

action was negligent – once a negligent act has been committed D is liable for all harm "directly" caused by the negligent act (In re Polemis)i. Polemis: Worker dropped a wooden board in the hold of a ship; this act was negligent

because reasonably foreseeable that dropping the board would cause harm to the ship. The negligent act caused a spark that ignited petrol vapor, causing a fire that destroyed the ship. Negligent actor was liable for the destruction of the ship because negligent act was "direct" cause of fire, even though this result was not reasonably foreseeable

c) Modern Rule: i. Wagon Mound No. 1, Rule: Overrules Polemis, establishes that D is only responsible

for foreseeable consequences of a negligent act – "[T]he essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen”

ii. Wagon Mound No. 1, Application: D spilled oil around P's dock; the oil damaged P's slipways and caused a fire that damaged P's dock; damage to slipways was foreseeable, while fire was not foreseeable. D was liable for damage to the slipways, but not for damage to the dock

3) Normative inquiry: a) If cause-in-fact obtains, should tort law attach liability when injuries happen in a certain

way? Two prongs, both of which involve more than a determination of reasonable foreseeability:i. Did D's duty extend to this [kind of] injury? Examples:

o A injures B, and, as a result, B goes to the hospital. A is liable for additional injuries to B if injuries are caused by medical malpractice (see Stoleson, p. 403) but not if injuries are caused by a thief who steals B's purse while B is in the hospital.

o Same result obtains even if the hospital has a reputation for providing excellent medical care (i.e., malpractice not foreseeable) but is located in a crime-ridden neighborhood (i.e., theft of purse foreseeable)

o Employee P informs employer D that he will kill himself if he does not receive a promotion. D does not promote P, and P commits suicide. Even though P's suicide was reasonably foreseeable, D is not liable

o Wagon Mound No. 1: One gloss on Wagon Mound No. 1 stresses the role of "duty as against what injury" – D breached a duty to not spill oil into P's slipways, but had no duty to protect against fires caused by oil spills (such harm was not reasonably foreseeable) and thus could not be held liable for this harm – negligence as to one type of injury can not be the basis of liability for another type of injury (Analogous to Cardozo's reasoning in Palsgraf)

ii. Is it now incumbent on P to be responsible for herself? Examples:o Wagner: D negligently injures P, leaving P in crutches. While P was recovering,

through no fault of his own his crutch slipped and his leg was rebroken. D liable for injuries incurred in this later incident

o D negligently injures P, leaving P in crutches. Several years later, P is injured when, because of her reliance on crutches, she is unable to escape quickly a burning building. D is not liable for P's injury even though it is reasonably foreseeable that P could be injured in this way because of D's negligence

4) Linkage: D's negligence must be "linked" to P's harm a. "No liability ensues unless D's wrong increases the chances of such harm occurring in

general”b. This may recast proximate cause as a duty analysis – i.e., was D's duty was imposed to

prevent the type of injury P suffered? (See VI(B)(3), supra.) If yes, proximate cause obtains; if no, proximate cause does not obtain

c. Examples:i. Sugar Notch: Tree fell on trolley operated by D, injuring P; D was negligently

operating the trolley by speeding. D not liable – "although the accident would not have occurred but for the trolley's speeding, speeding does not increase the probability of trees falling on trolleys."

ii. Ventricelli: P's rental car had a defective trunk lid; when trunk lid flew up, P stopped in a parking space along the street to fix it and was hit by a car. D, rental company, not liable even though its negligence (defective trunk) was but-for cause of P's injury – "negligence of [D] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated"

5) Superseding/Intervening Cause -- An intervening cause that prevents D's negligence is called a superceding cause.

a) Pattern is difficult to discern. Best to argue by analogyi. Superceding causes -- If intervening cause AND the kind of harm was unforeseeable,

the intervening = superceding and D is relieved.o Intermediating third party but-for-cause who has duty to prevent injuryo Unforeseeable or foreseeable, but reckless intermediating act of third-party that is

but-for-cause of injuryo Unforeseeable intermediating negligence of third party that was but-for-cause of

injuryo Unforeseeable intervention wit unforeseeable results (extraordinary act of nature)

ii. Not superceding causes

o Criminal actions that D had duty to protect P against (Hines: if P lets D off train a mile from station to walk through bad neighborhood rapist intervening cause)

o Person w/o duty fails to intervene or third party fails to discover dangero Risk of intervening cause is of very type which made D's conduct negligent in

first placeo Foreseeable negligence of third person that is an intervening causeo "Normal response" to D's act, even if not particularly foreseeable, like escape or

rescue attempt (unless grossly negligent)o P is further injured by medical treatment, unless there is gross malpracticeo Intervention neither foreseeable nor normal, but leads to same type of harm as

was threatened by D's negligence (termite infestation)b) Paradigmatic examples:

i. McLaughlin: P was severely burned by D's uninsulated heating blocks because the warnings on the blocks were inadequate. Nonetheless, D not liable because 3rd party, who knew of the danger posed by uninsulated blocks, had given them to the person who applied the blocks to P and had stood by silently while blocks were applied to P. 3rd party's gross negligence superseded D's negligence and insulated D from liability because 3rd party's negligence was not foreseeable.

ii. Addis: Ps injured when, because of D's negligent failure to provide lights and reasonable escape paths, they were forced to jump from the 2nd floor of D's inn to escape a fire. Arsonist's actions did not supersede D's negligence because D's duty was to anticipate fire from any source.

c) Dependent vs. independent intervention. Dependent intervening cause are more likely to be foreseeable and not superceding

6) Eggshell Skull Rule--Exception to foreseeablea) Doctrine: Once P establishes that D caused some injury to P, D is liable for all of P's

injuries, not merely those injuries that were foreseeable – exception to the general rule that reasonable foreseeability is required to establish proximate cause

b) Examples:i. Benn: D negligently caused a car accident in which P, who had a history of coronary

disease, suffered a bruised chest and fractured ankle. P dies six later from a heart attack; medical expert testified that accident caused the heart attack. App. Ct. held that jury should have been instructed on the eggshell-skull rule – D liable even if heart attack not foreseeable

ii. Steinhauser: P was involved in minor car accident and suffered no bodily injuries; however, she developed schizophrenia shortly thereafter. Experts testified that P's schizophrenia required a precipitating factor – if jury found that accident was a precipitating factor, D liable for causing P's schizophrenia

iii. Bartolone: P was slightly injured in a car accident; after the accident, P began to exhibit symptoms of schizophrenia. Court held that D liable for exacerbating P's preexisting schizophrenia

iv. Zygmaniac: D liable for the death of a victim who was shot and killed at victim's request by his brother after D's negligence had rendered the victim a quadriplegic

7) Another exception to foreseeability: As long as harm suffered by P is of the same general sort that made D's conduct negligent, it is irrelevant that the harm occurred in an unusual manner.

a. D give loaded pistol to X, an 8-year-old, to carry to P. X drops it, injuring playmate's foot and gun goes off injuring P. D liable to P because same general harm (risk of accidental discharge) but not to playmate.

8) Another exception to foreseeability: As long as P is member of foreseeable class of victims, the fact that the injury was not especially foreseeable is irrelevant.

VII. DEFENSES IN NEGLIGENCE ACTIONS

A. THE PLAINTIFF’S FAULT

1. Contributory Negligencea) If P's negligence contributed to his injury, then D was not liable – P's contributory

negligence was an absolute bar to P's recovery if P's negligence was a but-for and proximate cause of the injury. This was common law principle.

b) Standard of care was same for both P and D -- "reasonable person under like circumstances"

c) P's contributory negligence must contribute proximately to his injuries.d) Exceptions:

i. Recklessness: If D was reckless (willful or wanton) or intentional, then P's negligence would not bar P's recovery. But the defense is allowed for gross negligence cases.

ii. Last Clear Chance: Even if P's negligence contributed to the injury, D will be liable if D failed to utilize the last opportunity to avoid the injury by acting unreasonably. Limit on the contributory negligence defense.

P's negligently put herself into a position of "helpless peril"; D liable if D knew or should have known of P's situation while still able to avoid the injury by exercising due care.

P oblivious to her dangerous situation, but could have avoided it until the last moment by exercising reasonable care; D liable if D had actual knowledge of P's danger.

e) D must have had an actual opportunity to avoid the harm at the last moment, not simply an opportunity which might have existed if not for D's previous negligence

2. Comparative Neligencea) P's negligence contributed to her injury, P's recovery would depend on how serious her

negligence was compared to D's. A "comparative negligence" system rejects the all-or-nothing approach of contributory negligence. It instead attempts to divide liability between P and D in proportion to their relative degrees of fault. 46 states have adopted some form of this.

b) Variants of Contributory Negligence:i. Pure Contributory Negligence: P's recovery is reduced by P's percentage of fault –

"[A]ny contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery (UCFA)

ii. Modified Contributory Negligence: Version 1: P at fault can recover under the pure system only if P's negligence is

not as great as D's negligence (i.e., P's negligence<50%)

Version 2: P at fault can recover under the pure system only if P's negligence is no greater than D's negligence (i.e., P's negligence≤50%)

c) What is compared?: i. UCFA: "In determining the percentages of fault, the trier of fact shall consider both

the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed"

ii. Factors bearing on "nature of the conduct” Inadvertence v. awareness Magnitude of risk created by conduct Significance of the goal of the conduct Superior or inferior capabilities Particular circumstances, e.g., emergency

d) Recklessness: Unlike contributory negligence, most jurisdictions with pure contributory negligence will compare one party's reckless conduct to another party's negligent conduct; jurisdictions with a modified version will not make the comparison if plaintiff was reckless and defendant was negligent

e) Intentional Torts: Most jurisdictions will not compare P's negligence with D's intentional tort (though some will)

f) Modified Version and Multiple Ds: Most jurisdictions compare P's negligence against combined fault of Ds rather than against the negligence of each D individually to determine if P falls below the threshold for P to recover

g) Imputing Negligence:i. Loss of Consortium: Majority rule – injured spouse's negligence is imputed to Pii. Wrongful Death: Majority rule – decedent's negligence is imputed to Piii. Parent-Child: Parents' negligence is not imputed to child (e.g., if child is injured

because of negligence of D and child's mother)h) Medical Malpractice:

i. Contributory negligence functions as a defense to medical malpractice in limited situations, including P's failure to reveal medical history, furnishing of false information, failure to follow advice/instructions, or delay or failure to seek further medical care

ii. Exception – "[A] physician may not avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by the patient's own negligence" (Fritts)

iii. Example – Fritts: P was injured in a car accident while he was drunk (he was either the driver or the passenger of another drunk). During surgery for his injuries, D's negligence caused P's death. Court held that P's negligence in causing the initial injuries did not reduce or eliminate D's liability.

i) Courts are split as to whether last clear chance rule applies to comparative system.j) Seat belt defense -- D argues that P's injuries from a car accident could have been reduced or entirely avoided had P worn a seat belt. i. Seat belt defense refused in most contributory negligence districts ii. Various approaches in comparative negligence states:

D liable for only injuries that would have occurred if P wore seatbelt D liable for all injuries with reduction made equal to percentage of P's fault D is liable for all injuries, but P's fault reduces his recovery for those injuries that would have been avoided

iii. 32 states have mandatory seat belt use statutes. Majority of these prohibit seat belt rule or allow only tiny reduction of damages.

3. Avoidable Consequences (Mitigation)a) P's recovery might be reduced if P fails to exercise due care to mitigate injuries caused by

D's negligenceb) Failure to receive medical attention: P has a duty to mitigate injuries by receiving

medical carei. Exception: No duty to mitigate if treatment involves a recognized risk – if treatment

could aggravate existing condition, lead to development of new condition → no duty; risk need not be significant or probable for exception to apply, but if risk is remote → duty to mitigate

ii. In general, courts do not recognize religious exceptions to duty to mitigatec) Anticipatory Avoidable Consequences – Seatbelts and Helmets

i. Jurisdictional Splits: Policy #1 – Evidence of failure to wear seatbelt/helmet inadmissible in civil

action Policy #2 – Evidence admissible, but may only affect damages by small

percentage Policy #3 – Failure to wear seatbelt/helmet is a species of fault Policy #4 – Failure to wear seatbelt/helmet may fully reduce damages

ii. D bears burden of proving portion of P's injury caused by failure to wear seatbelt/helmet

B. ASSUMPTION OF RISK Basic Principle: Assumption of risk functions as an affirmative defense in a negligence

action much like consent functions as an affirmative defense to an intentional tort; P may not recover for injuries if P assumed the risk of those injuries – “Volenti non fit injuria" (i.e., a person is not wronged by that to which he or she consents). A P is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that he harm would occur.

Consent is defense to intentional tort but not to negligence. Negligence defense is assumption of risk

Categories: Express vs. Implied (see below) Primary v. Secondary implied assumption of risk

1. Express Agreementsa) Agreement by parties in advance in which P releases D from liability for D's

negligent conduct, usually by formal, written contract – courts will generally honor such agreementsi. Exception: Courts will not honor agreements to assume the risk of D's gross

negligence or recklessnessb) No Duty: Express assumption of risk may be recast as P relieving D of D's duty to

exercise reasonable care (see Davenport – "Express assumption of risk applies when the parties expressly agree…that the P will relieve the D of his or her legal duty to the P")

c) Agreement is valid if… (R2T, § 496B)i. Freely and fairly madeii. Between parties who are in an equal bargaining positioniii. Agreement does not interfere with any other social interests; i.e., does not violate

public policy”

iv. Courts don't allow P to expressly assume risk in regard to medical services.d) An agreement violates public policy if… (Tunkl)

i. Concerns a business suitable for public regulationii. Service provided is of great importance to the publiciii. Service is offered to the public at largeiv. Party seeking exculpation possesses decisive bargaining advantagev. Provides a standard contract w/out offering the option of buying additional

protectionvi. Person or property of the purchaser is put under the control of the sellervii. Alternative to above factors: "[Determinations] of what constitutes the public

interest must be made considering the totality of the circumstances of any given case against the backdrop of societal expectations”

e) Examples:i. Dalury: Exculpatory agreement signed by skier violated public policy because it undercut the public policy underlying business invitee law that places responsibility to protect customers on a business because the business is better placed to foresee and control hazards and to spread the risks of hazards

2. Implied Assumption of Riska) Basic Principles:

i. P does not expressly consent to the risk of injury; rather P knows of the danger, appreciates the danger, and acquiesces to the danger – implied assumption of risk turns on P's knowledge of and voluntary acceptance of a risk of injury. Must actually know of risk.

ii. Elements (Davenport):o P has knowledge of the facts constituting a dangerous condition o P knows that the condition is dangerouso P appreciates the nature and extent of the dangero P voluntarily exposes himself to the danger

iii. Traditionally, assumption of risk functioned as an affirmative defense to P's prima facie case of negligence, and it was an absolute bar to recovery.

iv. Examples:o Murphy (The "Flopper"): P was injured when he fell while on a carnival ride

called the "Flopper." The ride consisted of a moving belt; the purpose of the rise was to try and keep one's balance. P knew of the risk of falling and voluntarily stepped onto the ride. D, owner of the ride, not liable because P assumed the risk.

o Boddie: P injured when trying to put out grease fire that D negligently started. Court held that P did not assume the risk of his injury because his choice between two evils was not voluntary (cannot be made to choose between risk and exercise/protection of right).

v. Voluntary assumption: There is no assumption of the risk if D's conduct left P with no reasonable choice but to encounter a known danger.O Stairway case--As if there had only been one staircase in the whole building

with the lights out.o Where it is not D's fault that P has no reasonable choice except to expose

herself to he risk, defense will apply.

b) Primary Implied Assumption of Risk: P impliedly assumes those risks inherent in an activity (i.e., those risks that can not be eliminated by exercising due care). Here D is never under any duty to P at all.i. Primary implied assumption of risk may be recast as part of the initial negligence

analysis rather than as an affirmative defense; i.e., D did not breach a duty of care by offering an inherently dangerous activity to P – the risk created by D and assumed by P was not an unreasonable risk, so D did not breach a duty.

ii. Examples:o Participants in Sports: Courts in the 1990s have generally analyzed these cases

without relying P's assumption of risk, holding that participants are not liable for injuries caused to other participants because they have no duty to prevent injuries sustained during the sporting event (however, courts define participants' duties in different ways…) Knight: After telling aggressive D to be careful, P injured during a pick-up

football game when D knocked her down and stepped on her hand. Court held D was not liable – D only had duty to not recklessly/negligently injure P while engaging in a sporting event

Lestina: D liable if negligent – jury, though, should consider the circumstances of the sport (e.g., rules, regulations, customs, typical level of contact, inherent risks) in setting the standard of care

Crawn: Duty of participants in informal sporting events is to avoid infliction of injury caused by reckless or intentional conduct

Freeman: Court held that D, drunk skier, had a duty to not increase the chance of inadvertent contact w/ other skiers, but had no duty to avoid inadvertent contact

o Baseball Spectators: Davidoff: Owner of baseball park only has a duty to provide screening for

the area behind home plate and that screening is sufficient to provide seating for all spectators that may reasonably be expected to want it

c) Secondary Implied Assumption of Risk: P knowingly encounters D's negligently created risk – unlike primary implied assumption of risk, D has breached a duty, so secondary implied assumption of risk functions as an affirmative defense to P's prima facie case of negligence.i. Reasonable P: P reasonably assumed the risk caused by D's negligence

o Examples: D negligently started a fire and P enters the burning building to save a child

ii. Unreasonable P: P unreasonably assumed the risk caused by D's negligenceo Examples: D negligently started a fire and P enters the burning building to

save a hat

3. Assumption of Risk Under Comparative Neligencea) Express assumption of risk and primary implied assumption of risk:

i. Some comparative fault jurisdictions have recast express assumption of risk and primary implied assumption of risk as components of the initial negligence analysis

ii. Rationale: Express assumption of risk and primary implied assumption of risk become compatible with comparative negligence when they are recast as issues of duty/breach

b) Secondary implied assumption of risk: i. Some comparative fault jurisdictions have abrogated the defense of secondary

implied assumption of risk and now allow P's conduct in assuming the risk to be compared with D's negligence; some have retained secondary implied assumption of risk (Davenport)

ii. Rationales:o Retaining Assumption of Risk: "Contributory negligence and assumption of

risk do not overlap; the key difference is, of course, the exercise of one's free will in encountering the risk. Negligence analysis, couched in reasonable hypotheses, has no place in the assumption of risk framework. When one acts knowingly, it is immaterial whether he acts reasonably." (Davenport, quoting R.I. Supreme Ct.)

o Abrogating Assumption of Risk: The purpose of comparative negligence is to award damages based on the degree of a party's fault – because "[a] D's fault in causing an accident is not diminished solely because the P knowingly assumes a risk…[this] goal would clearly be thwarted by" allowing a D to avoid liability for her negligence just because P reasonably or unreasonably assumed the risk of that negligence"

C. STATUTE OF LIMITATIONS

1. P does not discover his injury until long after D's negligent act occursa) Statute of limitations may start to run at the time of the negligent actb) May not start to run until P discovered (or ought to have discovered) the injury

2. Medical Malpractice: States and case law apply the "time of discovery" rule, usually. Statute of limitations runs from time of discovery.

a) Doctor leaves foreign body in P after surgery which isn't discovered until years later.

3. Sexual assaults: They also apply the "time of discovery" to cases where P doesn't realize abuse until years later.

D. IMMUNITIES

1. Two immunities in the family relationshipa) Husband and wife

i. Common law prevented inter-spousal suits for personal injuryii. Over half of states have abolished this inter-spousal immunity doctrine

b) Parent and Childi. Common law prevented suits by child vs. parents and vice versaii. Many states have abolished or limited this immunity.

2. Charitable organizations, as well as educational and religious onesa) Received immunity at common lawb) More than 30 states have abolished charitable immunity or cut back on it.

3. Governmental immunitya) Common law doctrine of "sovereign immunity"

b) In U.S., suits against government are generally allowed under Federal Tort Claims Act

i. Except no liability may b based upon government's exercise of a discretionary or policy-making function

c) Many state governments have abolished their sovereign immunityd) Local governments have sovereign immunity as well

i. No immunity where they are performing "proprietary functions", e.g. running hospitals, utilities, airports as revenue producing

ii. Most states have abolished general local govt immunity, or allow suits where there is liability insurance

e) Public officials have tort immunity, as long as their act is within the broad general scope of their duties.

VIII. STRICT LIABILITY

A. ABNORMALLY DANGEROUS ACTIVITIES

1. Scope of Application – Abnormally Dangerous Activities -- A person is strictly liable for any damage occurring while he is conducting A.D.A.

a) R2T, § 520 – Six factors may be used when determining whether an activity is "abnormally dangerous:i) Existence of a high degree of risk of some harm to the person, land, or chattels of

othersii) Likelihood that the harm…will be greatiii) Inability to eliminate the risk by the exercise of reasonable careiv) Extent to which the activity is not a matter of common usagev) Inappropriateness of the activity to the place where it is carried on; andvi) Extent to which its value to the community is outweighed by its dangerous

attributes (i.e., utility)b) Examples (besides nuclear reactor, use and storage of explosives, conducting of crop

dusting, airplane accidents for ground damage only.i) Rylands: P's mines were flooded by when D's reservoir failed. Though D was not

at fault, D was held liable for damage to P's property because the water in the reservoir was "likely to mischief" if it escaped – D kept the water at his own peril.

ii) Sullivan: D was dynamiting a tree on his property; a piece of the tree hit P as she was traveling on an adjacent highway, killing her. Although D was not negligent in using the dynamite, D was held liable because D had wronged P – "safety of property generally is superior in right to a particular use of a single piece of property."

iii) Indiana Harbor Belt R.R.: P was shipping D's dangerous chemical. The container leaked, and P was charged for the cleanup costs. P sued D to recover these costs, alleging that D was strictly liable for the accident. The court held that D was not strictly liable; D's activity was not dangerous for the following reasons: --Negligence liability was sufficient to deter the accidental spillage of the

chemical – not highly corrosive, so could be contained by the exercise of due care (see b(1)(c), supra.)

--This case not amenable to strict liability rationale of relocating the dangerous activity – Posner argues that rerouting away from metro areas could increase some dangers (poor tracks, longer time in transit) (see b(1)(e), supra.)

B. ANIMALS

1. Trespassing Animals. In most states, the owner of livestock or other animals is strictly liable for damage caused when they trespass on another's property. Regardless of whether the owner has used utmost care to prevent animals from escaping.

2. Person is also strictly liable for non-trespass damage done by any animal he keeps. Like guy with tiger in his apartment in NY, NY.

a) Person who keeps a "wild" animal is strictly liable for all damage done by the animal Damage must result from a dangerous propensity that is typical of the species in question.b) Damage from domestic animals is only strict unless owner knows or has reason to

know of the animal's dangerous characteristics.

3. Policy: Strict liability gives owner reason to get rid of animal.

C. LIMITATIONS ON STRICT LIABILITY

1. Scope of Risk = strict liability only for damage which results from the kind of risk that made the activity dangerous.

2. Abnormally sensitive activities by P may block strict liability claims

3. Usually contributory negligence by P will NOT bar her recovery in strict liaiblity (example, kicked by vicious horse when she isn’t watching out). But assumption of risk is a defense.

IX. LIABILITY FOR DEFECTIVE PRODUCTS

A. INTRODUCTIONThree main theories regarding products liability:1) negligence2) warranty3) strict liability

1. Negligence -- Usually applied to case where personal injury is due o carelessly manufactured product.

a) Historically, the use of negligence theory was drastically limited in this area by the requirement of privity, i.e. the requirement that in order to maintain an action, P must show that he contracted directly with D. This comes from 1842 English case of Winterbottom v. Wright--driver of mail coach injured due to defective wheel.b) Within years after Winterbottom, courts modified the rule where personal injury occurred from an "inherently dangerous" defective product. Like Thomas v. Winchester. c) Judge Cardozo rejected the "inherent danger" requirement in MacPherson v. Buick

1916. Abolished Winterbottom. Once P shows that product will be unreasonably dangerous if defective, he may sue in negligence without privity. d) Every state has now accepted MacPherson. One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence. Most courts also allow property damage, not just personal injury claims under this rule. Courts are split if there is only economic harm. A casual bystander can recover in negligence if he can show he is a "foreseeable plaintiff."e) Classes of defendants: Manufacturers, retailers, bailors, and others may have liability as well.

i) Manufacturers--most likely to have been negligent due to: careless design, careless manufacturing, carelessly performed inspection/testing, careless packaging or shipping did not obtain quality components with reasonable care

ii) Retailers--Usually not liable in negligence. Retailer has no duty to inspect the goods. Suit must be brought on other grounds. But a retailer having reason to know something is wrong has to warn her customer or be found liable. Some courts will say a cursory inspection is required by retailer.iii) Others--Bailors of tangible property, sellers, and lessors of real estate and suppliers of product-related services (hospitals) may be sued.

2. Warranty -- See UCC 2-313 for law of warranty, every state but Louisiana.a) Express warranties: Seller may expressly represent goods as having certain qualities. Ex/ "shatterproof glass" shatters and injures P

i) statement of fact or promise about the goodsii) description of the goodsiii) use of a sample or modeliv) No requirement of privityv) Strict liability, almost. P just has to show that representation was not true, not that it was reasonable to for D to believe true

b) Implied warranties: existence of warranty of quality assumed from fact they are being offered by seller for sale.

i) warranty of merchantability--"fit for the ordinary purposes for which goods are used" and seller must be merchant under UCCii) fitness for a particular purpose--relying on seller's judgment in recommending a product.iii) Nearly all states have rejected any privity requirement for implied warranties.iv) Manufacturer's warranty extends to remote purchasers

3. Strict Liability -- Products liability falls between negligence and strict liability. Eliminates breach of duty inquiry. Shifts burdens of proof.

a) Restatement Third: Products Liability:i) § 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”

ii) § 2: Three types of defects:

Manufacturing Defect: A product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product" (See (C), infra.)

Design Defect: A product "is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe" (See (D), infra.)

Inadequate Warning: A product "is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, and the omission of the instructions or warnings renders the product not reasonably safe" (See (E), infra.)

b) Cronin: Attempts to remove negligence from the doctrine of products liability – holds that a product need not be "unreasonably dangerous" for liability to obtain; rather, P must simply show that product was manufactured or designed defectively (although "negligence language" reappears in California's rules concerning design defects…) – many states followed California's example in striking the requirement that a product be "unreasonably dangerous"

c) Who to sue: Retailer is presumed liable for defective product. Burden on P to show that defect existed earlier in the supply chain (i.e. that it was not introduced after leaving the factory), but the burden is so low as to basically not exist

i) Marathon: 6V battery manufactured by D explodes in P's hand, and P is maimed. D's experts testifies that chemicals D manufactures batteries cannot explode any defect causing explosion could not arise until after left D's hands (implication: P lying). Ct. says that jury must evaluate expert's testimony against P's contention and its implication that the manufacturer introduced the defect. P prevails

ii) National Dairy: While working with a deep fryer, P drains shortening and shortening explodes. D introduces numerous experts who testify that shortening simply cannot explode w/o the introduction of an outside substance (like the water in a can that the shortening was poured into). Ct. lets jury weigh multiple experts' testimony against P's assertion that explosion occurred and it implies the manufacturer introduced the defect. D held liable

iii) Johnson Controls: P buys a heating system manufactured by D that is designed to last 15 years; ignition system fails after six years and P's stuff freezes. D held liable even though P present no evidence as to whether heating system was interfered during six years out of D's hands. D held liable.

d) Rationales for strict products liability (J. Traynor, Escola)i) Strict liability provides an incentive for manufacturer/retailer to make/sell safer

productsii) Allows manufacturer/seller to spread the costs of an injury among the public;

insuring the injured consumer become a cost of doing businessiii) Lower judicial costsiv) Honesty of decision making – allows judges to quit stretching duty and reasonable care to cover parties that judges think should be liable even though the fault of these parties is unclear

4. Scope of Liability for Defective Products: All sellers/manufacturers in the supply chain are presumed to be liable for P's injuries from a defective product; Ds may rebut this presumption – if the defect was introduced by a D later in the supply chain, earlier Ds are absolved of liability

5. Causation and Enhanced Injuries: Usually an issue in car accidents, concerns burden of proving that defect caused harm over and above that caused by the initial impact

a) Separate/Divisible Injuries: P has burden of proving causation of enhanced injuriesb) Indivisible Injuries

i) Majority Rule: One P shows that defect was a substantial factor in producing enhanced injuries, burden shifts to D to show which injuries are attributable to the original accident and which to the defect

ii) Minority Rule: P has burden of proving which injuries were caused by defect and which by original accident

6. Purchasers and Users -- Can be virtually any foreseeable user or purchasera) Negligence: user has to be "reasonably foreseeable" and almost always is.b) Strict liability: Any user or consumer injured can suec) Warranty: Any purchaser can recover on implied warranty. Maybe not for a mere user, states go different way on this.

7. Bystanders -- More difficult for bystander to recover. Injured because she happens to be nearby.

a) Negligence: P apparently would have to be a "reasonably foreseeable" plaintiffb) Strict Liability: Bystander has to be reasonably foreseeable for his as well. Pedestrian injured by car with defective brakes would recover.c) Warranty: Courts are split and it depends on version of UCC in force in state.

8. Potential Defendantsa) Any retail dealer of goods. even if nothing could do to discover the defect. Only if seller is in business of selling that type of goods.b) Courts are split about whether strict liability or warranty for seller of used goods. Probably not against used car dealer for defective brakes.c) Lessors of goods: Strict liability is frequently imposed here. Lessor may also be liable for negligence in failing to discover defect or implied warranty theoryd) No strict liability for sellers of professional services. See IX. F. below.

9. Property Damage claims due to defective products. Special rules may apply.a) Might succeed on strict liability and negligence even though damage is only to property.b) Warranty theory--If suing a remote defendant, 2 of 3 UCC versions do NOT allow recovery for prop damage alone.c) Rules for property damage recovery are easier than for pure "economic harm"d) Property damage counts as product itself or other propertye) If damages stem from the fact defective product doesn't work or is worth less defective, then no dice--pure economic harmf) Intangible economic harm covered under warranty provisions in the UCC.

g) Remote purchaser: Where P is suing not his own seller, but a remote person (e.g. manufacturer), will probably not recover economic harm only under any of the three theories, unless he can tack on damages to another physical or property damage claim.

10. Law is tending toward making manufacturers insurers of their customers, but not quite there.

B. MANUFCTURING DEFECTS

1) Manufacturing defect actions are the most common form of products liability action.a) This occurs where particular item that injures P is different from the other items

manufactured by D, in a way that is unreasonably dangerous.b) Maybe mishap in the manufacturing process, from improper workmanship, or from

use of defective materials.

2) Manufacturing defect actions revolve, mostly, around practical issues (e.g., proving existence/cause of the defect)

a) Examples:i. Welge: P injured when glass jar broke as he tried to open it; experts were unable to

identify when the defect had occurred. Summary judgment against P denied; even though Ds argued that P's actions created the jar's weakness, P's evidence suggested that nothing had happened to the jar after purchase.

ii. Price: Ps alleged that leak in power steering fluid caused by a defect in their car led the car to swerve and hit a telephone pole; court granted summary judgment for D – because car had since been destroyed and P offered no evidence of maintenance and repair history, no way to tell if leak was caused by a defect or by inadequate maintenance, defective replacement parts, improper repairs

iii. Daniels: Failure to preserve defective product not always fatal to P's case; P's testimony about an exploding car battery and expert's testimony that P's testimony was consistent w/ a product defect were, together, sufficient to overcome summary judgment

iv. Tuna can and shard case = P merely has to show the can contained shard, not how it got there.

C. DESIGN DEFECTS

1) Design defect = All similar poducts manufactured by D are the same; all bear feature with defective design that is unreasonably dangerous.

a) Structural defects -- D's choice of materials caused item to break or otherwise become dangerous

b) Lack of safety featuresi. Could have built in a safety feature at so little expense that it is defective design

withoutii. D will be permitted to rebut with evidence that competitive products lack the

feature. But all could be defective per jury.

2) Threshold issue: Injury must have occurred while the product was being used in the intended manner or in a reasonably foreseeable manner (Barker)

a) Examples:

i. Using a screwdriver to pry the lid of a tin → liabilityii. Standing on a chair → liabilityiii. Using a lawn mower to cut one's hair → no liability

3) Two tests of design defect: a) Consumer Expectations: "[A] product may be found defective in design if the P

demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner" (Barker)

i. Applicable only if "the facts…permit an inference that the product's performance did not meet the minimum safety expectations of its ordinary users"; if this condition obtains, no need for expert opinion about the merits of the design or about the balance of risks and utility of the design

ii. Examples: Consumer expectations test applies when…Vehicles that explode while idling at stoplights Vehicles that exhibit sudden brake/steering failure while leaving the

dealership Vehicles that roll over and catch fire in two-mile-per-hour collisions Air bags inflating for no apparent reason while one is cruising down

the road Campbell: P injured because bus did not have grab bars w/in P's reach;

P need only show the objective conditions of the bus (through photos) – jurors could apply the consumer expectations test because public transportation is a matter of common experience

Consumer expectations test does not apply when… Soule: P was injured in a car accident when the left front wheel of her

car broke off, collapsed inward, and smashed the floorboard into her feet; consumer expectations test not applicable because ordinary experience could not inform consumers' expectations in the "esoteric circumstances of this case" – complicated design considerations outside the ordinary experience of consumers were at issue

Pruitt: Airbag deploys in a low-impact collision ("deployment of an airbag is…not part of the everyday experience of the consuming public. Minimum safety standards for airbags are not w/in the common knowledge of lay jurors")

iii. Jurisdictional Split – Not all jurisdictions use the consumer expectations test – some use only the risk/utility test (see Camacho, dissent)

b) Risk/Utility: i. Standard: Design is defective if the risk of danger in the challenged design

outweighs the benefits of the designFactors: Similar to the Hand formula Gravity of danger Likelihood of danger Mechanical feasibility of safer design Cost of improved design Alternative design's adverse consequences to product/ consumerApplicable only when consumer expectations test is not applicable

ii. Reasonable Alternative Design (RAD) – most states require P to prove that a reasonable alternative design would have reduced the foreseeable risk of harm – "The essential inquiry…is whether the design chosen was a reasonable one

from among the feasible choices of which the manufacturer was aware or should have been aware" (Banks)

A minority of states assign D the burden of proving no RAD iii. Comparable Products Rule: A product may only be compared to similar

products when balancing that product's risk and utility – i.e., an RAD must be consistent w/ the purpose of the challenged product's design

Examples: Dyson: Safety of hard-top car design not to be compared to full frame

car designDreisonstok: VW microbus not defective – no evidence given to show

an RAD that was consistent w/ its peculiar purpose and unique design; rather, D presented evidence that microbus's safety equaled or exceeded that of similar vehicles

Bittner: D allowed to compare the safety of its 3-wheel ATV w/ other products used for similar purposes (e.g., snowmobiles, minibikes, 4-wheel ATVs) but not w/ the safety of dissimilar activities (e.g., skiing, skydiving)

iii. Crashworthiness Doctrine: Vehicles (motorcycles, cars, etc…) must be designed to minimize the injuries caused by reasonably foreseeable accidents – manufacturers held liable in negligence or strict liability for injuries beyond those caused by the accident (Camacho)

iv. Irreducibly Unsafe Product: Very dangerous products w/ no RADsIf a product has no RAD, manufacturer/seller may still be liable if the product is “so dangerous and of such little use that under the risk-utility analysis, a manufacturer would bear the cost of liability of harm to others"; i.e., if no RAD, then liable for dangerous product w/ minimal value (O'Brien, Products Restatement)Examples: O'Brien: Jury could find that risk of above-ground pool outweighed

its utility even if no alternative design Prank exploding cigars → liability (Products Restatement) Alcoholic beverages, firearms, above-ground swimming pools → no

liability (Products Restatement)v. Burden shifts to D to utility outweighs the benefits

4) Open and Obvious Dangers a) Different jurisdictions use two opposing rules when determining whether a product

with an "open and obvious danger" is defective:i. Apply the consumer expectations test – ordinary consumers capable of

assessing a product w/ an open and obvious danger (see Camacho, dissent)ii. Apply risk-utility test – more effectively deters dangerous designs than does

the consumer expectations test (see Camacho, majority)

5) Government and Regulatory Concernsa) Manufacturer immune when government approves sale and product specifications for

military use despite gross negligenceb) Compliance with federal or state regulations concerning product design does not

automatically absolve liability

i. Labeling: P can still bring product liability suit on theory that labeling was inadequate even though compliant

ii. Design or manufacture: Regulatory compliance not a defense, merely an item of evidence.

D. SAFETY INSTRUCTIONS AND WARNINGS

1) Common Knowledge: If a danger is a matter of common knowledge no duty to warn.a) Examples:

i. Brown Forman Corp.: No duty to warn underage P of the dangers of drinking large quantities of tequila in a short time – danger was apparent

ii. Maneely: No duty to warn about the dangers of riding unrestrained in the bed of a truck – common knowledge that riding in a vehicle w/out restraint is dangerous

2) Adequacy of Warninga) Factors:

i. Adequately indicates the scope of the dangerii. Reasonably communicates the extent of the harm that could result from

misuseiii. Physical aspects of the warning must be adequate to alert a reasonably prudent

person to the dangeriv. Means to convey the warning must be adequate – prominence of display (e.g.,

block letters on the front label of a product v. small print in a 10-page manual)v. Intensity of the warning

b) Specificity v. Impact– must weigh the benefits of a more detailed warning against the costs of a more detailed warning – too much detail may undermine the effectiveness of a warning: "The inclusion of each extra item dilutes the punch of every other item. Given short attention spans, items crowd each other out; they get lost in the fine print" (Hood, Buckeye Gas Prods.) i. Example – Hood: P was injured when he removed the guard from his miter

saw – the blade flew off and injured P. D had included numerous warnings to not remove the guard, but D had not indicated the consequences of failing to heed the warning. P argued that he thought the danger was the risk of clothing or fingers coming into contact with the blade and that warning w/out indicating the consequences was not specific enough. Court disagreed, holding that the warning was clear and unequivocal, and that indicating the consequences risked diluting the effectiveness of the warning

3) Causationa) Heeding Presumption: Court presumes that if warning had been adequate, P

would have heeded it – burden as to but-for causation is shifted to D (by shifting burden on causation, "heeding presumption" pushes products liability toward strict liability)

4) Learned Intermediary Rule: Exception to manufacturer's duty to warn the ultimate consumer when the product is a drug prescribed by physician and the physician was adequately warned by the manufacturer – physician is obligated to warn the consumer

a) Exceptions:

i. Mass immunizations – no physician patient relationship in this context, less individualized attention

ii. FDA regulations mandate directly warning the consumer; e.g., FDA mandates warnings to the consumer for contraceptives, nicotine patches

iii. Prescription drugs advertised directly to the consumer

5) Unknown Risksa) Majority Rule: Most states adopt Third Restatement – A "seller is required to give

warning against [a danger], if he has knowledge, or by the application of reasonable, developed human skill and foresight, should have knowledge of the …danger" i. Seller has a duty to perform reasonable testing before placing a product on

the marketii. Burden of proof: In some jurisdictions (but not all), D has burden of proving

that D did not or should not have known of the danger by presenting evidence concerning the status of knowledge in the field (see Feldman)

b) Minority Rule: "Hindsight Analysis" – Seller is strictly liable for failing to warn of a product's dangers, regardless of whether the seller knew or should have known of the dangers

6) Post-Sale Warningsa) Majority Rule: Seller/manufacturer has a duty to warn customers of dangers

discovered after a product's sale (see Lovick)b) Minority Rule: No duty to warn of dangers discovered after a product's sale

7) Misrepresentation: a) Products Restatement: A seller or distributor who "makes a fraudulent, negligent,

or innocent misrepresentation of fact concerning the product is [liable] for harm to persons or property caused by the misrepresentation”

8) Design & Warninga) An adequate warning will not necessarily absolve a manufacturer from

liability for a design defect – an adequate warning is, rather, one factor to be weighed in a design defect case

E. DEFENSES

1) Comparative Fault: D cannot as easily use this against strict liability claim as negligence or warranty.

a) Most jurisdictions apply comparative fault in products liability cases – however, P must breach an existing duty for comparative fault to applyi. Example – Sanchez: P was killed when his truck misshifted, rolled back, and

pinned him against a fence. P's fault could be compared – even though there is no duty to discover or guard against defects, P had breached the duty to take reasonable precautions to secure his vehicle

b) P's contributory negligence in failing to inspect will not be a defense in most jurisdictions.

c) Abnormal use is a defense to strict liability, but only if misuse was not relatively foreseeable.

d) Comparative negligence: Courts are split as to whether P's contrib. neg should reduce her strict liability recovery.

2) Assumption of Risk: Applies same to strict liability, negligence, and warranty cases. The use must be voluntary and unreasonable.

Is P's use of car with defective seatbelt (has ordered new one) reasonable? That will determine if risk assumption is a defense.

F. BEYOND PRODUCTS?

1) Theory is that there is a distinction between "products" and "professional services". Strict liability applies to products but not services.

X. DAMAGESDamages -- the financial judgment when defendant is found liable. Types of damages:Compensatory vs. punitive damages: restoring the victim to her whole vs. punitive, which the state wants out of your pocket--"the court wants to make this sting.”Normally, compensatory damages will be allowed in negligence, intentional and strict liability cases. Nominal damages will only be awarded for intentional torts.

A. COMPENSATORY

1. Basic Principlesa) Traditional goal of damages has been to make the victim whole, i.e., return the victim as

closely as possible to her condition before the accident; however, this seems weird – e.g., if the victim has lost her ability to play the piano, how can $$$ make her whole?

b) Economic View: Damages should return the victim to the indifference curve the victim occupied before the accident; however, this approach faces insurmountable evidentiary problems – how does one determine what this curve actually looks like?

2. Pecuniary Damagesa) Past Pecuniary Losses: Fairly simple – includes lost wages, medical bills, direct loss of

bodily functions, etc…i) Taxes: Because compensatory damages are not taxable – some courts inform juries

that compensatory damages are not taxable and that the jury should award, for example after-tax income for lost wages

b) Future Pecuniary Losses: More complex…must calculate future medical expenses, lost wages, etc…i) Future Wages: 1) determine P's retirement age, 2) determine P's wages, considering

inflation, promotions, work-related expenses, etc…ii) Future medical Expenses: If future medical expenses are probable rather than certain,

then damages are discounted by the probability of incurring the medical expense; e.g., 30% chance of future surgery recover 30% of cost of surgery**Critique – P is either over-compensated or under-compensated

iii) Discount to present value – P could invest entire damages award now and thus be overcompensated, so must determine amount of money that would bring P to the

proper amount if invested prudently (courts often avoid this calculation by offsetting inflation and return on investment)

3. Non-pecuniary Damages a) Pain and Suffering

i) Economic Critique: No insurance market for pain and suffering – if no one wants it before they are injured, why should they be compensated after being injured?

ii) Economic Justification: Awarding damages for pain and suffering deters tortious conduct (Posner)

iii) Per Diem Guides: Rather than asking the jury to determine the value of pain and suffering, P will direct jury to determine the value of one day's pain and suffering and multiply this amount by appropriate number of days (e.g., P's life expectancy) – most states allow per diem arguments

b) Loss of Enjoymenti) Awareness Dilemma: Is awareness a perquisite for an award for loss of enjoyment?

1) Subjective View: Yes, awareness is required – the purpose of damages is to compensate the victim; if victim has no cognitive awareness, she cannot lose the enjoyment of life and has nothing to be compensated for (majority, McDougald)a) Don's counterexamples – both have outcomes that seem bizarre:

i. On subjective view, if P is enslaved, then she has suffered "loss of enjoyment." However, if P is enslaved and brainwashed, then she has not suffered "loss of enjoyment" – she is not aware that she has lost anything

ii. P unknowingly drinks carcinogenic water and develops cancer. Two weeks later, P unknowingly drinks a cure for cancer. Because P was not aware of his cancer and subsequent cure, subjective view concludes that P has not lost and then gained something

2) Objective View: No, awareness is irrelevant – loss of the capacity for awareness is itself an injury, the most severe form of loss of enjoyment – "I can imagine no physical loss that is more central to the quality of a tort victim's continuing life than the destruction of the capacity to enjoy that life to the fullest" – this impairment exists independent of the victim's ability to apprehend it (dissent, McDougald)

ii) Categorization – Two views:1) Component of "pain and suffering" – "loss of enjoyment" may be interpreted as a

type of suffering, and it therefore falls w/in the ambit of "pain and suffering" if "pain and suffering" is broadly defineda) Rationale – If separate categories, damages would increase, but would be no

more precise2) Separate category – "Loss of enjoyment" = limitation of life's activities, inability

to participate in activities; "pain and suffering" = victim's emotional response, frustration, anguish – these are distinct categories, so no worry that damage awards will be duplicative if jury is properly instructed

4. Appellate Review: Abuse of Discretion a) Reviewing courts grant considerable deference to trial court/jury – will only overturn an

award if it "is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion or prejudice" (Seffert); i.e., App. Ct. will reverse only if no reasonable jury could have awarded the amount

5. Collateral Source Doctrine: Ps may still receive compensatory damages even if they have already received compensation for their injuries from alternative sources (e.g., medical insurance, pension or disability benefits, wages, family) – collateral benefits may be contractual (e.g., insurance) or gratuitous (e.g., family gifts) a) Rationale:

i) Encourages the purchase of insurance for personal injuriesii) Promotes private charityiii) Prevents gifts, insurance payments, etc. from being a windfall for tortfeasors iv) Partially compensates an attorney's share of damages – no actual double recovery for

Pv) Purpose of tort law is private redress

b) Minority Rule: Collateral benefits mitigate damages – "The purpose of compensatory damages is to compensate; it is not the purpose of such damages to punish Ds or bestow a windfall upon Ps" (Peterson)

c) Example – Arumbula: P was injured by D and was forced to miss work. P's employer (his brother) continued to pay him while P recovered. P was able to recover lost wages from D even though P was not obligated to repay the wages to his brother.

6. P has a duty to mitigate. P cannot recover for any harm that was avoidable by exercise of reasonable care.

B. PUNITIVE

1. Punitive damages are awarded in 5-10% of cases.

2. The real issue is that the crap shot on punitive makes is very hard to settle. Might settle for very high amount, hoping for a huge cash-in on punitive damages (in intentional torts)

3. You only get punitive damages in negligence when there is "contemptuous indifference/disregard to others interests." Gross and wanton negligence. Malice, oppression, fraud. Sheer recklessness. Awarded in products liability, if D knew product was defective or recklessly disregarded possibility of defect.

4. When we grant punitive damages, jury is charged with taking into account how wealthy defendant is. We want it to make it sting. If Bill Gates gets same damage award that I get, then he has a free reign to do whatever.

5. Other functions of punitive damages:a) Expressing sense of community that person has behaved badlyb) In relation to corporations, grab their attention and stop it now.

6. Constitutional limits: Due process concerns. Mere fact punitive damages are large viz-a-viz compensatory not enough. Must be high ratio.

C. RECOVERY BY SPOUSE OR CHILDREN

1. Most states allow the spouse of an injured party to bring an independent action for his or her own injuires (loss of consortium)

2. Parents can usually recover medical expenses due to injury to a child.

3. Children can recover for loss of companionship where parent in injured.

4. All normal defenses that could be used against original injured party may be used vs. 3rd party, even if the defense only applies to third party.

D. WRONGFUL DEATH OR SURVIVOR ACTIONS

1. Death Casesa) Survival Actions: Deceased P "recovers" for negligently-inflicted predeath injuries –

damages include medical expenses, lost wages from time of injury to death, pain and suffering from time of injury to death. Such a satute would govern whether right of recovery continues after death.i) Estate may sue for damages that victim herself could have sued for (i.e. P&S, lost earnings prior to death, actual med expenses)ii) If death is instantaneous, many states will not allow this action since all damages are sustained on account of or after death.

b) Wrongful Death: Action brought by beneficiaries of decedent for recovery of their damages that were caused by decedent's death.i) Pecuniary damages: Ps receive decedent's lost wages minus the amount that

decedent would have spent on herself ii) Some courts allow for damages for loss of advice/education/moral

training/companionship (Sander, Green)iii) Usually spouse and children are allowed, or if none, then parents are covered in

this action.iv) Damages: economic support, companionship and moral guidance. Some states

allow recovery for grief.v) Defenses: D can use any defense they could have used against P if still alive and

suing in own name (contributory negligence, assumption of risk, consent, etc. will bar action for wrongful death by survivors)

XI. NUISANCE

A. NUISANCE is not a type of tort, but a type of injury sustained by P.

1. Public nuisance = loss of any right that P has by virtue of being a "member of the public"a) health hazardsb) improper businessc) obstruction of public streetsd) harm to public must be substantial and injury or possibility of injury to public at large

2. Private nuisance = interference with P's use or enjoyment of her landa) P must have interest in land (fisherman injured by oil spill cannot sue for private nuisance)b) Tenant or member of family may sue, however

c) use and enjoyment must be injured in a substantial way and D's conduct must be negligent, abnormally dangerous, or intentional.d) Unreasonable will be determined if harm to P ouweighs utility of D's conduct or harm to P is greater than they should bear w/out compensatione) Remedies = Compensatory damages or an injunction, if damages are not sufficient.

B. MENTAL STATES FOR NUIISANCE

1. Intentional interference with P's rights2. Negligence3. Abnormally dangerous activity or conduct giving rise to strict liability

C. DEFENSES TO NUISANCE

1. Contributory negligence2. Assumption of risk - i.e. "coming to the nuisance"

XII. VICARIOUS LIABILITY

A. RESPONDEAT SUPERIOR

1. If an employee commits a tort during the "scope of his employment". employer will be liable (jointly with employee).

2. This applies to all torts, including intentional ones (except ones committed for personal reasons.

3. Does not apply to cases with "independent contractors" Example: Doctors at hospital. Employer has to exercise control over employee.

4. The tort is within the scope of employment if the tortfeasor was acting with intent to further his employer's business purpose.

a) trips from home to work is probably not within scope, but trips to home from work may be.b) Short detours for personal reasons will be within scope if reasonably foreseeablec) Acts expressly forbidden by employer--still within scope of employment

B. INDEPENDENT CONTRACTORS

1. One who hires an independent contractor is generally not liable for the torts of that person.

2. Exceptions.a) If employer is herself negligent in own dealings with contractor (such as by hiring someone she knows will not do work safely)b) Some duties of care you cannot delegate to someone else because they are so important

i. City cannot delegate duty to keep streets in good repairii. Business owner cannot delegate duty to keep premises safe for visitors

iii. Driver cannot delegate duty to keep brakes in working order

3. One who employs an independent contractor will also be liable where the work is such that, unless special precautions are taken, high degree of risk.

C. JOINT ENTERPRISE

1. A "joint enterprise" where it exists, may subject each of the participants to vicarious liability for the other's negligence. Ex/ a trip.

2. Used most often in auto accident cases (either to allow occupant of second car to sue passenger of first or to prevent passenger from recovering on theory of imputed contributory negligence.

3. Four requirements for joint enterprise.a) an express or implied agreement between membersb) common purpose carried out by the membersc) common pecuniary interest in that purposed) an equal right to a voice in the enterprise

D. BAILMENT AND AUTO CONSENT STATUTES

1. Family purpose doctrine = car owner who lets household member drive car for personal use has done so to further a "family purpose" and is vicariously liable.

2. Many states have enacted auto consent statutes, liability extends to owner for any negligence committed by one using the car with owner's permission, unless use exceeds scope of permission.

3. Non-statutory bailment. Existence of a bailment does not make the bailor vicariously liable for the bailee's negligence.

a) Bailor may be negligent herself for entrusting dangerous instrument to bailee, where bailor knew latter may use it unsafely.b) So if D rents car to X who is drunk and immediatley runs over P, D will be directly negligent, not vicariously liable.

E. IMPUTED CONTRIBUTORY NEGLIGENCE

1. Court recognized this doctrine in many three-party situations. Because of some relation between A and B, B's suit against C might be defeated because of A's contributory negligence, imputed to B. This was the common law rule.

a) Prevent passenger from recovering against driver of another car whose negligence caused accident if driver of passenger's car was contributing.b) When child runs into street, D will defend by saying Dad's contributory negligence in letting child run in street will be imputed to child.

2. Modern Rule. Contributory negligence will only be imputed if the relationship is one that would make P vicariously liable if he were a D.

a) Passenger rides in car owned and driven by Driver. Driver collides with Trucker. Trucker shows Driver was negligent. Under old scheme, this would work. Not now, because most courts would say the driver-passenger relationship is not one in which passenger would be vicariously liable for the driver's negligence if the passenger were being sued in absence of a joint enterprise.b) Conversely, if the car above is a Company-owned vehicle, Company may try to sue Trucker for damage, but would be blocked in contributory negligence jurisdictions and partially responsible in comparative liability jurisdications.