TORTS OUTLINETort: a civil wrong not arising out of a contract

I. Negligence Liability: Historical Foundations and Modern FeaturesA. Stages in a Lawsuit

● Plaintiff’s complaint/ declaration● service of process● Defendant’s answer● Discovery● Trial● Instructions to jury● Verdict (liable/ not liable)● Entry of judgment (P or D)● Appeal

B. Functions of Judge and Jury● Courts decide question of law only● Juries decide questions of fact only

-Empirical question-Evaluative questions—“mixed questions of fact and law”

● Appellate courts decide questions of law only (can’t second guess juries)-The basis of appeal is that the trial judge did something wrong—made an error—can be described in procedural and substantive terms.

Vosberg v. Putney—(procedural error—trial court granted D’s motion and not P’s. A D is liable for battery when he engages in a harmful or offensive intentional touching without the express or implied consent of P. You have a right to bodily integrity except in situations where touching is expected. Issues left undecided: When is consent implied? When is intent determined? When is touching offensive even if not harmful?

C. Verdicts1. General: Jury instructed on the law and asked to find the facts necessary to

decide whether the D is liable and to award damages if so. General verdicts allow juries greater opportunities to make mistakes (greater leeway to ignore the law). Sometimes we want to give the jury the power to “nullify” the law—cheat the strict rules in a way that is unavailable with a special verdict. General verdict allows for juries having to deal with ambiguities. General verdicts also avoid getting the appellate court involved in determining fault in reasoning of the verdict.

2. Special: Jury is instructed to answer specific factual questions.Hammontree v. Jenner—D causes harm to Ps and their property due to an epileptic seizure (hard to show negligence b/c he had not had seizures for 14yrs). Jury found for D. Basis for Ps appeal—refusal of trial judge to give absolute/ strict liability instruction to jury.

D. Bases for Imposition of Tort Liability1. Intent to invade the legally protected interest of another2. Negligence3. Strict Liability

E. The Functions of Tort Law1. Corrective Justice: When one party harms another, correction of the wrong

may help to restore moral balance between them.

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2. Optimal Deterrence: The imposition of tort liability helps to prevent future tortious actions by threatening potential wrongdoers with liability if they cause actionable harm. Not all risky activity is worth deterring or we would be required to take endless safety precautions at unlimited costs. So one function of tort law is to promote optimal deterrence—that is to deter excessively risky activity so that only the loses worth avoiding are avoided.

3. Loss Distribution: The cost of P’s losses is not simply transferred to the defendant, but is distributed through the defendant to a larger number of individuals. Having a large number of people bear a small loss is better than having a single person bear a large one. This rationale has a weakness because it creates a situation where there is no stopping point. Plus, imposing tort liability through a lawsuit is a cumbersome and expensive mechanism for achieving loss distribution.

4. Compensation : It is sometimes argued that the principal function of tort law is to promote compensation of those who have suffered injury. This is true in a limited sense (it is a beneficial effect). But, liability is not imposed to provide compensation to victims. Victims are given compensation to serve the goals of tort law. Providing compensation under certain circumstances rather than in general is what is really going on when tort liability is imposed.

5. Redress of Social Grievances: The right to sue in tort promotes the redress of social grievances, especially against large, impersonal institutions. In this sense, tort law is a populist mechanism that allows ordinary people to put authority on trial. This function is not strong by itself, but when allied with other functions, it can explain why some cases are decided the way they are.

6. Summary : A Mixed System: Tort law does not serve any one goal, but a set of different goals whose strength is likely to vary with the situation.

F. Pleas and Outcomes of early Cases● Trespass-required that the injury to P be forceful and direct. In trespass the defendant is liable virtually without regard for whether he was to blame for P’s injury, as long as he caused it (it was what we would today call strict liability).● Weaver v. Ward –P and D were 2 English soldiers. P shot D during a military exercise. P only had to show violent harm. P can recover for direct and forceful injuries (i.e. trespass) unless the D succeeded in proving that the circumstances fell within the substantively narrow defense of “utterly without fault.” ● 2 defenses arose in trespass.

1) General defense: denied the facts alleged or at least the critical allegation that the D’s act caused P’s harm

2) Special defense: admitted that the cause of P’s harm was the D’s act, but further alleged that D was utterly without fault.

● Thorns Case –If the claim falls within the contours of trespass, P usually won b/c the D was virtually w/o regard to whether he was to blame for P’s injuries, as long as he caused it.

Case Plea RationaleWeaver Special D not “utterly without fault”Smith Special Not D’s actGilbert General Defendant not “utterly without fault”Gibbons Special Not D’s act

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● Wrong Pleas—courts hold out the possibility that a D could prove no liability if he pleads a different way—proves it. If Ds had plead something else and offered a different defense, they could have won. D has the burden of proving freedom from fault.

● Case—As tort law expanded, additional writs became available for indirect or consequential damages.Scott v. Shepherd—(case of the lighted squib)D argued that P should have sued in case, not trespass, b/c harm was indirect. Court found that harm was direct and trespass would lie (arbitrary decision). 1) Trespass-lies for direct harm. Ps recover in trespass and Ds pay virtually on a strict

liability basis. (D unlucky if harm is direct and sued in trespass)2) Case—lies for indirect harm. Ps recover and Ds pay only when P proves D’s

negligence. (Harder to prove liability b/c have to prove negligence).

Brown v. Kendall—D was trying to separate his and P’s dogs that were fighting. D damaged P’s eye w/ the stick he was using to separate the dogs with. Shaw/ court said that neither trespass nor case would lie unless the D intended to injure the P or had negligently injured him. The standard by which the defendant is to always be judged is one of “ordinary” or “reasonable” care. If D has exercised ordinary care, then he is not liable, whether the action is brought in trespass or case. P has the burden of proving breach of standard of care.1) P must prove that the D was negligent—failed to exercise ordinary care—or worse

(not all cases of direct harm can be a cause for trespass—case overrules 400 years of precedent).

2) This is true regardless of whether the proper writ is trespass or case.3) Even if D was negligent, there is no liability if the D proves that P was also negligent

(contributory negligence).

● The Subsidy Thesis: results of Shaw’s decision in Brown-Theory-the adoption of negligence as a basis for liability in the mid-19th century operated as a “subsidy” for defendants and thus American industry.-Prior to 19th century there was strict liability-Does the subsidy theory operate?a) Makes sense as a matter of policyb) Just b/c this is the effect does not mean that this was the motivation-Term of Subsidya) Subsidy as a factual description (term is loaded)b) Starting point assumption that presumes the conclusion—move from strict

liability to negligence liability is true, but doesn’t mean it is a subsidy.-World changes b/t 17th and 19th centuries—industrial revolution, kinds of injuries caused by accidents are different as the accidents are different. This changes the liability scheme.-Notion that you are liable if you act in a way that is wrongful. Negligence standards fit the notion of rugged individualism. If you are not at fault, the law won’t inhibit your activities.- Did not just aid the industries, all Ds benefited from this.

● Holmes- “Life of law has not been reasoned, it has been experienced”- Writing a manifesto for negligence- Negligence liability is the right amount of liability

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- Historical reinterpretation—all these cases involving strict liability actually hinge on fault.

G. The Reasonable Person Standard● Negligence is the failure to exercise reasonable care to avoid injury to another person or property. It is the failure to exercise the reasonable care that would have been exercised by the reasonably prudent person under the circumstances. It is not a concrete rule, but a general standard that asks for a normative judgment.

1. Negligence Principlea. Tort that generates civil liability

-Failure to exercise the care that would have been exercised by the reasonably prudent person.

b. 4 Elements that P must prove to prevail-Duty: Did D owe P a duty to conform his conduct to a standard necessary to avoid unreasonable risk of harm?-Breach: Did D’s actions fall below the applicable standard of care?-Causation: Was the defendant’s failure to meet the standard of care causally connected to plaintiff’s harm?-Damages: Did P suffer harm?

2. The Objective Standarda. Reduces Variability of Result : Subjective standard would be infinitely

variable. With the objective standard, the jury only has to compare actual conduct of D with the standard.

b. Discourages Fraud : Subjective standard would encourage fraud and deception. If the negligence determination depended on the characteristics of the defendant, the defendant would have the incentive to mislead the jury about those characteristics (understating her strengths and overstating her weaknesses.

c. Promotes Safety : Has the greater potential for encouraging defendants to exercise all the care and skill possible. The objective standard is unforgiving—the threat of liability under the standard encourages the defendants to do their best.

d. Assures the Public : Gives the public assurances that other people will act with a predictable level of care or be liable if they do not.

Vaughn v. Menlove ( the objective standard) —D was sued to damaged to P’s cottages and property resulting from a fire caused by D’s failure to properly stack a haystack (spontaneous combustion caused hay stack to light). The question of negligence is a question of fact for the jury to be decided on the basis of the reasonable person standard where the person is held to the objective standard.Counterargument to Objective Standard: we can inquire into the D’s state of mind. If you have below average citizens you don’t get anything out of imposing objective standard. Juries are not consistent.

H. The Meaning of Negligence1. The objective standard (Vaughn)2. Infirmities and incapacities (do they count?)

a. The elderly: no (Roberts)—(77 year old hits 7 year old w/his auto)b. Children: yes (Roberts)-age gets taken into account for child (he has to

be as good as another 7 year old).

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c. Children enjoying adult activities: No (Daniels)—19 year old was killed when his motorcycle collided w/ D’s car. Minors engaged in adult activities held to adult standard of care.

d. Mental illness: No if forewarned (Breunig)-P’s car was struck by a car driven by a woman (w/mental illness). Court more likely to take into account physical rather than mental infirmities b/c there are more readily observable. Even insane people judged by objective standard. If you have no control over what you do, you cannot be found negligent. If you do have forewarning, then you may be found negligent.

● Children below the age of 5 cannot be found negligent because they cannot be expected to exercise care. Until the mid-20th century, the rule governing children above age 5 was that they would be expected to exercise the degree of care that would be reasonable in a child of similar age. A child of unusual intelligence or experience might be expected to exercise more care than would usually be expected of children of his age. This is a semi-objective standard that has been qualified in many jurisdictions.

● When children engage in adult activities they are held to the adult standard of care. Distinction between child and adult activities has to do with care child is supposed to take and care potential victims are expected to take. Standard for children is not subjective. It is an objective one revised to take into account the fact that the person being assessed is a child. Objective standard based on what an average person of that age and maturity level would or would not do.

●Typical mental infirmities are not taken into account in judging the reasonableness of behavior, but physical infirmities are. Mental infirmities are invisible and hard to measure and incompletely verifiable. It is difficult to know when mental infirmities compromise behavior and when they do not. Physical infirmities pose measurement and verifiability problems to a lesser degree than mental infirmities and are therefore subject to a semi-objective standard.

I. The Forseeability Requirement● D is not liable unless he knew or should have known of the risk of harm to the plaintiff. Even then, the D is not negligent unless a reasonable person under the circumstances would have taken precautions that the defendant did not take to avoid the risk. It is not negligent to fail to foresee something that is not knowable or foreseeable. P must prove that it is foreseeable.

●Blyth v. Birmingham Water Works—water damage to P’s house. Record- breaking freeze affecting pipes.

-Negligent in what regard? Did not inspect pipes. Construction of pipes or water system-Negligent design/ negligent construction of design/ negligent maintenance-BUT the forseeability requirement: The risk that materialized in harm to P simply was not foreseeable. Rarely does a D escape liability purely b/c the risk was utterly unforeseeable. Yet, how likely or unlikely it was that the particular risk would materialize in harm is very relevant. “Unforeseeable” simply means that it is so unlikely that the reasonable person would not be held liable.-Trial court should have granted D’s motion for directed verdict because as a matter of law, D was not negligent.

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●Keeping the case away from the jury is good for Ds b/c Ps win more often when juries decide cases.

●Eckert v. Long Island R.R.—P’s decedent was killed in the act of saving a small child from certain death by sweeping child off of the tracks of a negligently operated train. D said it was negligent for the rescuer to risk his life the way he did and that P’s “contributory negligence” barred recovery. Court rejected that notion because P’s decedent was saving a human life and emergency is relevant.-The trial court did not err in giving instructions to the jury (not ruling P contributorily negligent as a matter of law) and not granting a directed verdict for D—it was not error to submit case to the jury. (Hand calculus: Saving life is a greater benefit than risk taken by P)

J. The Negligence Calculus B/PXL (B/ (PL)) (Hand Principle)●The burden of precautions as compared to the probability of loss multiplied by the severity of loss if it occurs. B=the burden of adequate precautions. P=the probability that the particular act or omission will cause harm. L=the magnitude of the harm if it occurs.

B PXLAvoidance Cost versus Accident CostThe cost of precautions The cost of compensatingOr any other interest the victim multiplied bySacrificed to reduce the probability this willThe risk of harm be necessary.

●Realistically, it is hard to quantify these things and sometimes we can’t. Repeat defendants will still use the calculus to determine costs of precautions v. costs of injuries.● when the accident cost outweighs the avoidance cost, taking the risky action is unreasonable. Conversely, if the avoidance cost is weightier than the accident cost, then it is not unreasonable to take the risk.

●Hand is saying that because the components vary in each situation, we cannot have a rule about whether in general there always has to be a bargee on board (Carroll Towing). Hand is anti-standard. He’s saying that negligence is context and fact-dependent.

●Posner says that it is an economic calculus (many find this disgusting). Monetary as well as social costs could be plugged into equation. Regardless of whether you plug in quantitative of qualitative values you are saying that some accidents are not worth avoiding (this is troubling).

Use of the Negligence Calculus1. Instructions to the jury—explaining to the jury how

it should determine if D’s behavior was justifiable. (Eckert—benefit of saving life was greater than the risk)

2. Assist courts in determining what evidence is relevant and therefore potentially inadmissible. (Carroll Towing—was it negligent not to have the bargee on a barge under tow?)

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3. Assist court in ruling on summary judgment motions and directed verdicts (Andrews—what precautions on the part of United Airlines would have prevented harm/ injury to passengers)

K. Custom● Introducing standard by which the jury must judge takes away some jury discretion. The dominant rule is that evidence of compliance or non-compliance with an industry custom is relevant and admissible, but not dispositive.

● Titus (old view of custom)— (P’s decedent killed while switching cars from one track of a railroad. Manner of switching cars was an industry-wide practice). Industry decides what determines negligence. D not negligent as a matter of law due to industry custom, so jury does not get to decide. As long as you do it the way everyone else does it and follow custom, you are not negligent.

●A practice need not be universal to constitute a custom, although it must be more than just one of a number of different practices. At the very least, it must be something done by most people or entities. Custom implies universality. It is unclear how universal a practice has to be.●Some practices that are not customary are still admissible with regard to negligence. Even if a practice does not qualify as a custom, evidence of noncompliance with the practice in which some others engage may be admitted and considered by the jury anyway.

Evidence as to custom—Relevance? As to compliance and noncompliance.Compliance Non-Compliance EffectTitus (switching cars on RR) DispositiveMayhew (mining case) IrrelevantHooper Hooper Admissible, but not

Dispositive

●Why admit evidence as to custom?The reason we have this information coming in is to familiarize the jury with more technical cases, etc. and it is a way of binding juries & lessening the discretion of the juries thereby lessening different rulings in different rulings in similar cases. It also lets juries know that if they find the defendant negligent, they are basically finding the entire industry negligent.

●RationaleEvidence of non-compliance or compliance with custom is only relevant, not dispositive. As to non-compliance, the D may be able to explain why he departed from the custom of his industry (complying with the custom may have been dangerous under the circumstances), or he may reasonably believe (and perhaps correctly) believe that his precautions are superior to customary precautions. As to compliance, the entire industry may be negligent in the way that it conducts itself.

● TJ Hooper—D operated tug boats towing barges that were lost in a storm along with their cargo. The negligence alleged was the failure to supply the tugs with radios that would have warned them of the approaching storm. Although many tugboat captains carried their own radios, it was not the custom of tug owners to supply radios. The court

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upheld a finding of negligence on the part of the tug owner for failing to supply radios, saying, “There are precautions so imperative that even their universal disregard will not excuse their omission.”

●The principal reason that evidence of custom is so relevant is because it reflects the judgment of a large number of those who engage in risky activity about the best ways to conduct that activity. Compliance tends to show reasonableness and non-compliance tends to show negligence. In addition, potential victims sometimes are aware of the customary practices of potential injurers. On this basis, the potential victim can make judgments about the necessary levels of self-protective care they should take. Non-compliance with custom may thus tend to show negligence if the plaintiff can also show that the defendant knew or should have known that potential victims were relying on the defendant’s taking customary precautions. Similarly, proof of compliance with custom may show that the defendant took the precautions that potential victims generally anticipate and therefore may tend to show that the defendant’s behavior was reasonable.

L. Malpractice● The Special Standard of Care for Professionals—In cases involving professionals, the rule is that compliance with custom insulates the defendant from liability, and failure to comply with custom is malpractice. P’s proof that D committed malpractice consists entirely of proof that the D violated the standards of the profession. The justification for this departure from the treatment of custom must lie in necessity. If we had to ask juries to determine whether it was reasonable for the D to follow a particular course of treatment, we would be asking the jury for a medical judgment, something that no jury member is likely to be able to do.Lamas v. Borras

Brune v. Belinkoff—If there are 2 respectable schools of thought about behavior and defendant complied with one of these 2 schools, then defendant is not liable for malpractice even though the D’s behavior did not comply with the other school of thought. The rule is protective of professionals and binds the jury’s discretion even more strictly than Titus.

● Demise of the Strict Locality Rule-Contributed to the escalating cost of medical malpractice liability.-The “strict locality” rule held that only physicians actually practicing medicine in the D’s own community could testify as to the medical standard that prevailed in that community. This made it very difficult for a potential plaintiff to secure an expert both competent and willing to testify. Personal colleagues were reluctant to testify against one another. The result came to be known as the “conspiracy of silence.”

● Informed Consent-A cause of action distinct from ordinary malpractice based on a physician’s failure to obtain the patient’s informed consent to the treatment. Actions for informed consent sound in negligence or malpractice for they involve the claim that although the patient consented to treatment, consent was not sufficiently informed because of the physician’s failure to provide the patient with the requisite information about the risks associated with the treatment.

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1) The principle underlying the doctrine: Bodily integrity and autonomy over decisions. Patients should have the right to determine whether to take the risks associated w/ any given form of treatment.

2) The Reasonable Patient Standard—negligence test: Requires the physician to disclose information about the risks and benefits of treatment that a reasonable patient in what the physician knows to be the patient’s situation would want to know. If a physician knows the patient’s particular idiosyncrasies, then the disclosure necessary to satisfy those interests is also required. The standard focuses on patient, not doctor. (Don’t need expert testimony). Action is in negligence, not malpractice.

3) The Professional Standard: Malpractice—reasonable physician standard. The failure to obtain the patient’s informed consent is actionable only as malpractice. So the plaintiff must prove that the physician failed to comply with the standards of the profession regarding disclosure of information to patients in the plaintiff’s position. Expert testimony is necessary (unlike patient standard). Obtaining expert testimony—under locality rule in malpractice & “conspiracy of silence.” Still might need expert testimony for reasonable patient standard to establish relevant risks.

4) The Causal Question—Causal connection exists when a reasonable person would have declined the procedure in light of knowledge of the risks.Scott v. Bradford—the causation question must be resolved by examining the credibility of the plaintiff’s testimony—if s/he would have opted out of the treatment for particular idiosyncratic reasons not reflected in the reasonable person standard.

5) Flaws in the Assumption Behind the Doctrine:a) Patient inexpertise—risks can’t be fully appreciated by normal

people. They become less uninformed, not totally informed.b) Regressions/ dependence—people in medically risky positions are

not necessarily in the best position to make those decisionsc) Ambivalence—people turn back to their doctors to make decision for

them.

● Informed consent protects the patient’s rights to decide (even if it does not change your mind and even if your decision is idiosyncratic.

M. Violation of Statutes1. Why negligence per se (Osborne—D, a drugstore clerk, sold poison w/out a

poison-label to a customer. Law required the label. Decedent later took poison and died. The court said that the statute created a duty in D to use reasonable care to protect customers from taking the wrong drug)

a. Why don’t we let juries decide whether or not violation of statute is negligent? Reasonable person does not violate statutes—it is unreasonable to violate statutes—Not a statutory claim. Courts have determined that it is unreasonable and therefore negligent. Takes discretion on question of negligence away from the jury and there is less difference between like cases.

b. Legally Cognizable Excuses—Only when there is sufficient evidence of a legally cognizable excuse may the jury determine whether violation of the statute is excusable. In cases of:

1. Incapacity (children)2. Emergency (split-second decisions)3. Necessity

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4. Reasonable effort to comply5. Limited statutory purpose—P was not in the class of

people intended to be protected by the statute D violated (rarely a winner).

2. Because there are legally cognizable excuses it is rare that a summary judgment will be granted at the end of plaintiff’s case b/c excuses can only be raised during defendant’s portion of the trial. There is also an implied exception of cases in which compliance with a statute would involve greater risk of harm than violation.

3. Why must Martin v. Herzog be retried?a. Martin v. Herzog - (Buggy w/ no lights)--court held that unexcused

violation of statute is not merely evidence of negligence, it is negligence per se, so plaintiff was contributorily negligent. Did the negligence cause the result? Would the same thing have happened had there not been negligence on the plaintiff’s part? The causation question is one for the jury. It is not sufficient for summary judgment or directed verdict that there was negligence established by violation of the statute—causation is still a question for the jury.

● Goodman—per se rule established by Holmes—There are certain situations and facts that come before the court time and time again. Courts should set down a rule for deciding cases that disallows for jury variation/ discretion. Holmes wanted to have a per se rule for cases that have the same facts and were decided alike, and for cases which juries wavered back and forth on. (Does it make sense in both of these types of cases)?

● Judge and Jury-Legal sufficiency of the evidence: court (whether to grant a motion for directed verdict)-Weight of the evidence: Jury (whether to find for P or D)-Holmes’ disappointment—The variation in jury verdicts that occurs in absence of per se rule is a cost and injustice because like cases should be decided alike. Per se rule may provide uniformity, but only at the cost of cookie cutter justice (especially in the cases in which there is no consensus among juries or in the community at large. Per se rules that apply to repeat defendants can be effective (provide incentives for defendants to comply). More cases are going to juries now—partly because a lot of cases are not the same and there can’t be a per se rule. But with cases that are the same, per se rule would set a precedent—it’s hard to overrule precedent…times change, norms change, so per se rule can’t hold. Also the nature of democracy leads us to prefer that juries decide rather than a judge with per se rules.

N. Negligence: A Summary of Some Themes1. Substantive Rules

a. Objective Standard v. Subjective Standards, age (children), ability (infirm)

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b. Standards for Defendants v. Plaintiffs—In practice, standards may be more lenient with Ps than with Ds—there is a subtle bias to Ps in terms of recovery.

c. Relevance of forseeability—You can’t be expected to take precautions against an unforeseeable risk. If a reasonable person could not foresee it, you are not negligent.

e. The Role of Custom—Compliance with custom is not dispositive. You are not immune from liability if you comply.

f. The Role of Statutes—compliance with statute is not dispositive. You are not immune from liability if you comply

2. The Meaning of Negligence a. Ordinary activities: Moral and Practical considerations. There could be

legal fault even if moral considerations taken.b. More complex activities where custom is likely to be more influentialc. Malpractice where custom is dispositived. Cost-benefit (Hand theory), moral, and practical considerations

relevant to the above.3. The Relative Role of Judge and Jury

a. Rules as constraints on jury discretion.—Rules taken seriously by jury. There is ambivalence about role of rules—they are only constraints.

b. Categorical v. Non-Categorical approaches (if you, the jury finds X then you must rule Y)

c. The variability of result issue.

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II. Proof of NegligenceA. The Burden of Proof (consists of 2 things)

1. The burden of production (obligation of the party who produces it)a. Introduces legally sufficient evidenceb. The court decides whether the burden is satisfiedc. Enforces its decision by granting or denying a motion for directed verdict

or a JNOV.2. Other terms for burden of production

a. Burden of going forward with the evidenceb. Burden of making out a prima facie casec. Burden of creating a permissible inferenced. The risk of non-productione. Introduce evidence about which reasonable people could disagree

3. The burden of persuasion (have to prove your case beyond a preponderance of the evidence)

a. A preponderance of the evidence: Weightb. The jury decides whether this burden is met by rendering a verdict.

4. Other Terms for the burden of persuasiona. The burden of proofb. The risk of non-persuasion

● The problem of circumstantial evidence: Difficulty arises when the plaintiff does not have specific evidence of what the defendant did or did not do, or all of the potentially relevant facts associated with the cause of the plaintiff’s injury.-Banana Peel Hypo—No evidence that the peel was there for an unreasonable length of time. No way one way or the other on negligence.

B. Res Ipsa Loquitur (The Thing Speaks For Itself)

●Res Ipsa Loquitur doesn’t mean anything—It’s an ordinary rule of circumstantial evidence. Res Ipsa usually does no work other than labeling. Many cases in which res ipsa loquitur is invoked are simply cases in which there is only circumstantial evidence on the issue of identification and negligence, but that evidence is sufficient to satisfy the plaintiff’s burden of production.

●Byrne (barrel of flour case)—Direct evidence resolves a question, Circumstantial evidence supports an inference that resolves a question. Situation in Byrne doesn’t ordinarily happen without negligence (regardless of how it happened). So a jury could infer that there was negligence from this evidence. The evidence warrants sending case to the jury.

●Res ipsa loquitur only really applies when the thing does not speak for itself. It just means that the plaintiff has met the burden of production. It’s not a doctrine, it’s a label for a class of cases. Ordinarily, rules of evidence and inference do the job.

●Res ipsa loquitur theoretically can perform the function of “smoking out” the evidence in the possession of the defendant.

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● Ybarra v. Spangard (Malpractice case)—Some defendants are responsible for what some other defendants did. Everyone is not responsible for everyone else. Effects of trying to “smoke out” evidence:

-Somebody knows and will tell in a deposition. Don’t need res ipsa loquitur in this case b/c negligence will come out in discovery-Nobody knows anything (not even person who did it). Res ipsa does not work in this case b/c there is no evidence to “smoke out.”-Somebody knows, but won’t tell no matter what. Res ipsa loquitur won’t help in this case either b/c no evidence will be smoked out.-Somebody knows and will not tell in a deposition, but will tell at trial. Res ipsa loquitur will help in this case, but it is an unlikely case.

● It is possible in a lot of cases that innocent people will be held liable—strict liability under res ipsa loqitur. Malpractice when one has not committed malpractice—not just money, a person’s reputation is at stake.

● Functions of Res Ipsa Loquitura) Just a name for circumstantial evidence that makes out a prima facie

case.b) Create an artificial inference of negligence, in order to smoke out evidence

from the defendant.c) Impose under-the-table strict liability. But there is nothing about the

category of cases in which there is no direct evidence of taken or untaken precautions that warrants making them special candidates for strict liability.

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III. Strict Liability and Nuisance

●Liability is imposed without regard to the negligence of the defendant. While these liabilities are strict, they are not absolute. The critical question is what characterizes the activities for which the negligence requirement is dropped? Strict liability does not replace negligence liability. It is imposed in addition to negligence liability. You don’t get more safety out of imposing strict liability. People will only avoid accidents that it is worthwhile to avoid. Why? Because it is cheaper to take risks than to avoid them, and because potential defendants act in their own self-interest. Holding defendants liable even when they have not been negligent will not cause them to act any more safely than it is already in their interest to act. It only transfers the costs that victims would have to bear for non-negligent accidents to the injurers. The real question is who should bear strict liability, injurers or the injured, in non-negligently caused harms. When imposing strict liability can achieve one or more of the following functions/ benefits, this serves as an argument for strict liability in the injurers.

● Spano v. Perini—D was engaged in blasting w/dynamite and P’s garage and car housed inside of it were damaged. D was held liable. Old rule in New York was that strict liability would be found in cases where physical invasion results, but not where other, mediate results cause harm. Why was NY seemingly so far behind? Before Spano, NY was calling all concussion cases res ipsa and so negligence was automatically inferred. People were recovering quite happily under res ipsa, which was functioning as “under the table strict liability.”

A. The Theory Behind Strict Liability—Functions of Strict Liability1. Promote Greater Accuracy: From negligence standpoint (if negligence

liability is already inaccurate). Address the recurring miss in category of cases in which evidence of the defendant’s negligence is either not available or very difficult to obtain—perhaps b/c the kinds of accidents that characterize these cases tend to destroy the relevant evidence—but defendants are in fact negligent. [SL and res ipsa have in common their potential capacity to reduce the error rate of the conventional negligence system].

2. Save Costs of Administration: The level of generality issue. A shift to SL saves the cost of making the negligence determination (time and money of judges, juries, the parties and their attorneys). But this is a cost-saving per case, not overall b/c there will be more claims when an activity is subject to SL than when there is only liability from conducting the activity negligently. [The higher the level of generality, the more predictable cases become, less litigation and lower administrative costs]. S/L rules are to be couched at a high level of generality. The per case cost of adjudication under a S/L standard set at a high level of generality is very likely to be lower than the per case cost of adjudication under a standard set at a low level of generality. A context-dependent rule that is formulated at a low level of generality will result in case-by-case adjudication that is likely to be more expensive and complicated than litigation under a rule operating at a high level of generality.-Whether the activity is an abnormally dangerous one is to be determined by the court.-Question is not whether or not there should be strict liability—Non-negligently caused injuries are borne by the victims unless strict liability is imposed on the injurer (victim strict liability). The question is whom is strictly liable?

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3. Optimize Activity Levels—A shift to S/L would give more reason to consider alternative activities/ methods. The result is a potentially more efficient allocation of resources among possible activity levels and activities. In theory, but it assumes that there are activities to substitute. In some cases, depending on a host of factors, superior activity-level effects can be expected from injurer negligence liability and victim strict liability. This will occur when most safety can be obtained by influencing potential victims’ activity levels.

4. Create Research Incentives: Give personal injurers incentive to research alternate/ substitute activities, etc. Discovering a cost-effective method of reducing or eliminating the injuries for which the injurer is strictly liable will redound to their benefit. Some parties are more likely than others to be in a position to perform formal research; and some activities are more likely than others to be susceptible to change through cost-effective research. Moreover, research itself entails certain costs but uncertain benefits.

5. Distribute Losses More Broadly: To the extent that loss-distribution is regarded as an appropriate goal, S/L probably is superior to negligence in this regard. [But losses are probably already broadly distributed amongst potential victims via health, renters, fire insurance, etc.] The choice is really between 2 different channels of broad distribution.

B. Traditional Strict Liability

● Fletcher v. Rylands—Water from a man-made reservoir on D’s land broke through old mine shafts beneath the reservoir and flooded P’s land. There was no negligence on the part of the D. Perhaps there was negligence on the part of the people whom D hired to build the reservoir. Liability in the absence of negligence. Judges talked in the terms of the claims at the time (trespass, case, etc.). Appellate ct. held that a person who, for his own purposes, brings onto his land and collects or keeps there, anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so…is answerable for all of the damage which is the natural consequence of the escape. The problem with this is what is not likely to do harm if it escapes? Under this, the land use for which there is no S/L are those in which the victim assumes risk. Rylands Rule: A landowner is liable to adjacent landowners when he brings onto his land an unnatural or artificial device that causes something to escape from the land and harms another’s land or chattels.

● Rule of S/L is contingent on 2 factors:1) Knowledge of people in plaintiff/ victim’s position of the possible risks.2) How dangerous the activity is. Becomes a test of ordinary v. extraordinary land

use.

● Brown v. Collins (opposite of Fletcher v. Rylands)—(D was waiting at a railroad crossing with his horse. The train came by and frightened the horse, which then darted into a lamppost owned by P.). P said that D should be strictly liable for the horse escaping from his land. Court found for D saying, “everything a man can bring on his land is capable of escaping.” Court already decided that there was no liability in the absence of negligence. So they can’t then say that there is liability in the absence of negligence.

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● Most courts rejected Fletcher v. Rylands. As time went on, courts started imposing S/L—first where the activity was inherently dangerous (storing explosives)—expanded to activities that were dangerous and not common to the area—the scope of S/L broadened. Strict liability for ultra hazardous activities.

Two factors are:1) Degree of Danger Posed : The more dangerous the activity is, the more violent it

is likely to be, and therefore the more likely it is to destroy the evidence needed by the plaintiff to prove that the defendant conducted the activity negligently.

2) How common it is in the area: The more uncommon the activity is in a particular area, the more likely it is that the activity –level and research incentive created by the threat of strict liability will be most effective operating on potential injurers rather than on potential victims.

● The more dangerous and less common the activity, the more likely it was to qualify as ultra hazardous. When a particular activity is neither especially dangerous nor uncommon in an area, potential injurers are not superior to potential victims in their ability to control the risk of injury through activity-level adjustments or research. Result is that the rule is very context dependent and is more of a standard than a rule.

The Modern Conception: Strict Liability for “Abnormally Dangerous Activities.”New tests includes three factors affecting dangerousness: 1) Degree of risk2) Probability of Harm3) Inability to eliminate the risk through exercise of reasonable care

Two factors affecting commonness:1) The extent to which the activity is uncommon2) Activity’s inappropriateness to the area

Plus a new consideration:1) The extent to which the values of the activity to the community is outweighed

by its dangerousness.

● Advantage: this approach has the ability to draw fine distinctions between activities in light of these factors, but the disadvantage is that what results is a low level of generality.

● Cyanamid (Cyanamid transported dangerous chemical through P’s shipping line. A tank car leaked on P’s property causing damages for which P was responsible). Court said that case was one of negligence, not strict liability, and even if strict liability applied, it is not clear that it would offer relief in this case.

-Positives of Posner’s Criterion/ Opinion:1) Distinguishes safety-level/ activity-level effects (Abraham

does not think the court should consider activity level effects when considering strict liability)

2) Recognizes that this is a cost-bearing issue-Negatives:

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1) Excessive focus on the effects of strict liability in this case (fact intensive)

2) Decision made at a low level of generality (whole point of strict liability is to provide a very generals rule)

3) No recognition that D is strictly liable

Limitations and Defenses●There is strict liability only for a kind of harm whose risk makes the activity dangerous. This is a complicated way of saying that there is only strict liability if engaging in the relevant activity is not only the cause in fact, but also the proximate cause of the harm the plaintiff suffered. Strict liability is not absolute liability for engaging in a particular activity, but liability only for the consequences that the law is designed to influence.

●The D is not strictly liable if the harm in question results from an Act of God, or the unenforceable intervention of a third-party, or from the plaintiff’s knowing an unreasonable assumption of risk of the harm.

Repondeat Superior –“Let the superior answer”1. Employer liable for his own torts: (e.g. Negligent supervision)2. Also subject to “vicarious liability.” (Vicarious liability is liability for injury

caused by the conduct of another party)a. Liable for certain torts of employees even

if the employer was not negligent, but not every act of employees. Those committed within the scope of employment. Rationale is that the employer is probably within a better position to make activity level and research decisions that can affect accident levels. So respondeat superior may generate greater accuracy than negligence liability alone.

3. Test: Within the Scope of Employmenta. Who is an employee? Distinction

between employees and independent contractors, for whom contracting party is not liable--Level of control of employer. Will effect cost-bearing capacity (more incentive for employer to prevent accidents) and deal with distribution of losses and who can better afford losses.

b. What is within the scope of employment (detour v. frolic)? Detour is a little outside the scope. Frolic is far outside the scope of employment. The employer is liable for torts committed on a “mere” detour by the employee, but not for torts committed while the employee is on a frolic of his own. Employers can affect incentives only to a certain point. It

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is not always easy to tell the difference between a detour and a frolic, and sometimes even if the employee is obviously on a frolic, the employer is still in a good position to influence the behavior. Ira s. Bushey & Sons, Inc. v. United States –drunken sailor destroyed a boat yard. The employer, the US government was held liable b/c behavior was foreseeable and predictable and government had deep pockets. (In this case the question is who is in a better position to decide whether to do anything—the government or the dry dock owner? Neither party here is in a better position—that’s what makes it so hard. Friendly and Posner want to have perfect rules that are tailored to each case and this destroys the notion of a high level of generality producing more consistency in outcomes across the board.)-Also adds a pocket for compensating the P. What counts as conduct within the scope of employment will depend on how effectively imposing liability on the employer for injuries caused by that conduct will serve the purposes of strict liability.

Independent Contractors1. General Rule: No vicarious liability for tort of independent contractor2. Exceptions

- Petrovich v. Share Plan of Illinios —P sued HMO. Can HMO be held vicariously liable for the negligence of its independent contractor physicians? P was unaware of the contractual relationship between HMO and her doctors. Ct. said that vicarious liability could be imposed for the actions of an independent contractor where an agency relationship is established under either doctrine of apparent authority or implied authority. Apparent authority: Don’t have to intend to make something appear a certain way, simply have to make something appear that way. Did the HMO make it appear that the doctor was an employee or agent of the HMO? But does this apparent authority matter? There has to be a causal connection—there has to be a justifiable reliance on that authority. Tort liability for making it look like there was authority even where there wasn’t any real authority. Implied Authority: Does the alleged agent retain the right to control the manner of doing the work? Key is whether the person is acting for himself or for the HMO. Does the doctor (independent contractor) as an agent for the HMO have the right to act for the

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HMO? This is real authority. These 2 types of authorities are issues of fact that should be determined by the jury.

3. Levels of Generality Issue in Petrovich-Jury is being asked to decide whether there was apparent authority or implied authority. But the facts have to do with what their general policy is for all of their patients. But the jury is going to be determining the questions of fact for this case. A different jury on a different case with the same facts could find differently. It doesn’t set a standard or precedent.

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● NUISANCE1. Substantial and unreasonable interference with the right of an owner or occupier of

land to the enjoyment and use of the land.2. Generally non-trespassory (does not have to do with possession of land)3. Actionable as

a. “Intentional”—party has to know that it is occurring and continue to do it

b. Negligentc. In accordance with rules governing strict

liability.

● Has to be SUBSTANTIAL interference● Balance of the equities in terms of determining if nuisance is a substantial interference. Balance of equities as to remedy.

● Nuisance Remedies1. Defendant enjoins plaintiff-- Think of it as if the D gets an injunction

against P enjoying/ using his land in the way he would like to. Court has held that D is not substantially interfering w/ P’s enjoyment/use of land. The broader the land use rights of D, the more limited the land use rights of P. P can’t legally stop D from doing what he is doing, and P can pay D off. D has the right to set the price.

2. Plaintiff enjoins the defendant—D cannot continue the nuisance.-Ensign v. Walls—D raised dogs (are smelly, gross and loud). Ps attempted to sue D for nuisance. The rule generally is that if there is a nuisance, you get an injunction. The court in this case struggled with the fact that D had been in his location first. The court decided that even though P “comes to the nuisance”, he/she can still get an injunction. Coming to the nuisance cannot be an automatic rule b/c it would encourage people to start a nuisance simply b/c they know they got there first.-What if D won’t pay P? There is a provision in the law for enforcement of judgments. Find out where D has money, property, etc. and take it. P has to take initiative to have judgment enforced. Same thing for injunction. P can choose not to have the judgment enforced and D can pay off P for the injunction. Things get more complicated when there are several Ps…every P will want to wait until the end to have more leverage and get more money—hold out. With both of the first two remedies, the court has to get the answer right b/c in most cases, the parties can just bargain around the law.

3. Defendant pays damages to the plaintiff—By awarding damages, court can be saying that it does not know the right answer, but D is in the best position to make the determination—the court imposes damages. If it is cheaper for D to continue the nuisance and pay the future damages than to stop the nuisance, then D will pay and continue. If it is more expensive for D to pay the damages than to stop the nuisance, then he will cease the nuisance. By awarding damages, the court can also be saying that the social and economic costs of discontinuing the nuisance are greater than the costs that will result from permitting it to continue (conflict of land uses).

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-Boomer v. Atlantic Cement Co.—(Ps suffered from dirt and smoke emanating from D’s plant). Ps have a remedy for the injuries they have already suffered and for the future because they can’t get an injunction. Injunction would result in disproportionate damage to the community b/c a lot of people would lose their jobs. D has to be able to continue the nuisance. Difference in this circumstance is the D has the choice, and the price is set by the court and there can’t be any holdouts. In issuing an injunction, the P would determine the price of continuing the nuisance, but in awarding damages, the D gets to make the determination.

4. Plaintiff pays damages to the defendant—This is a very rare case. The court concludes that the P should be entitled to cause discontinuance of the nuisance only if doing so is worth it to them. The P would compensate the D for the cost of discontinuing the nuisance. If the benefit to the plaintiff is greater than the cost, plaintiff will pay and the nuisance will stop.

● Again, the question in these cases isn’t is there liability, but who bears the liability.

● NECESSITY ● Ploof v. Putnam—(Private necessity) The P has a right to tie up to the dock for the duration of the storm. When the defendant interfered with that right by untying, he interfered with that right and is liable for that. The D trespassed on the plaintiff (interfered with his property right). Ownership can be described as a set of rights pertaining to something. The reason the defendant is liable isn’t simply b/c he had a duty, he was liable because he interfered with P’s right to tie up at the dock.

●The rule is in cases of necessity you have a privilege to take/use someone else’s property in order to avoid harm to yourself or to your property (but the risk of harm is not created by that person), but you have to pay for the losses suffered by the nominal owner of the property as a result of exercising your privilege. (Privilege is conditioned on the privileged party’s later compensating the other party for using his property). Owner’s interest is protected with a liability rule rather than a property rule in cases of necessity. [In cases of public necessity, a risk to the property of a sufficiently large number of people to make the risk “public” can be reduced or eliminated by damaging or destroying the property of the plaintiff. Not a conditional privilege].

-Vincent v. Lake Erie Transportation—Ship owner tied up at a dock. The storm was so bad, they had to replace the ropes. Not only did they have the right to tie up at the dock, but also it would have been negligent not to. But there is strict liability for the damages. Ship owner did not intend to damage the dock, nor did he know that damage would result. He risked causing harm- he non-negligently imposed a risk on dock. The risk in this case was high. D retied the mooring ropes several times.

1. The Privilege Explanationa. Private necessityb. Only “conditionally” privileged—must pay damages to property.

2. The Property Rights Explanationa. Do property rights dictate tort liabilityb. Or does tort liability yield property rights?

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-Determination of liability determines ownership. Ownership rights follow determination of liability. Determination of liability does not follow ownership right. [The scope of the P’s property rights does not determine the appropriate liability rule. The appropriate liability rule determines the scope of the P’s property rights.]

3. The Deterrence Explanationa. Who is in the best position to decide?1. These parties are perfectly capable of deciding who should bear what kind of liability. They will decide regardless of the rule. Connection to nuisance cases: if you get the rule right, parties don’t have to spend time bargaining their own rules. Threatening a party with liability gives that party the incentive to compare the cost of liability with the cost of alternatives that may avoid liability. Which party is in the better position to compare the risks?b. Where there is a contract, does it matter? (Coase)1. When the parties themselves can identify the most cost-effective approach

and can inexpensively set aside the prevailing tort liability rule, then the costs of the court adopting the “wrong” rule is simply the cost of setting the rule aside in advance by contract. In absence of transaction costs, the rule of liability does not matter.

Strict Liability Themes1. Evolution Test (a line is always drawn)—you are liable in certain instances and not in

others.a. Non-natural useb. Ultra hazardous activityc. Abnormally dangerous activityd. “Substantial” interference with the use/ enjoyment of the land

2. Contrast with Negligencea. Level of generality –strict liability can be conducted at a higher level of

generalityb. Consequences/ functions/ justifications

3. Deep structure of strict Liabilitya. Reciprocal character of the issueb. Remedial questions in nuisancec. Which party decides: court, jury, P, D

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IV. Causation

● Causation is a part of every tort case. Causation means the required connection between the D’s conduct and the injury for which P claims damages.● The Theory Underlying the Causation Requirement

a. There is a requirement that there be a causal connection between what the D did and what happened to P.

b. Partly has to do with corrective justice, but more accurately, this causation requirement ties in with deterrence. (The fact that D risked harm to others is the relevant consideration)

c. The whole point of imposing tort liability in order to deter unreasonable behavior is to give potential injurers the incentive to compare the amount of liability that they anticipate they will incur from taking a risk by taking safety precautions.

d. From a deterrence standpoint, requiring proof of causation is simply a way of communicating to the defendant in advance the scope of liability it will face.

● Cause-in-Fact—the requisite historical or empirical link between the defendant’s conduct and the plaintiff’s injury. Show’s the D’s act or omission caused P’s injury or damage. (Necessary, but not sufficient condition of liability)

● Proximate Cause—Misnamed/ misleading. The existence and scope of legal responsibility for what was caused, assuming it was caused (question about legal responsibility, not really about cause).

Cause-in FactNew York Central RR v. Grimstad—Grimstad was the captain of a barge owned by the railroad and was knocked overboard when a tug bumped the barge. B/4 his wife could find a line to throw to him, he drowned. The defendant was negligent not to have life preservers on the barge. The P has burden of proof (to prove causation). Question is not about what actually happened, but what might have happened had the defendant not been negligent—would the harm have occurred had the defendant not been negligent. (e.g. Would P’s wife have been able to throw the preserver to him if they were available?). The trial court should have granted a directed verdict for D. The jury needed some evidence from P to give jury a basis to rule on what would have happened. Jury found for D.

1. The-But-For Test—But for the defendant’s negligence, would the plaintiff’s injury have occurred? What would have happened had the defendant not breached his duty? It is a counter-factual inquiry. P bears the burden of production, and if there is not enough to go on, the court will grant a motion for directed verdict in the defendant’s favor. To be a negligent but-for cause is a necessary, but not a sufficient condition of liability.

2. The Substantial Factor Test—is confusing b/c most courts don’t talk about it in these terms. The test asks whether the defendant’s negligence was a substantial factor in bringing about the plaintiff’s injury or damage. The substantial factor test could merely require a finding that the defendant’s negligence was a major contributor to what happened.

3. The Counter-Factual Nature of Both—how could anyone know what would have happened. You can’t rewind time, remove the negligence factor to replace it with

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due care and press play to see what happens. It is a probabilistic determination that must be made. We ask the jury to make a judgment based on the evidence and its own experience about what would have happened if the defendant had not been negligent. The more strictly we require that there be an evidentiary basis for making that judgment before submitting the case to the jury, the more often we will say that the P has not made out a prima facie case on the causation issue. In this sense, cause-in-fact is a bit like res ipsa loquitur. In the absence of evidence of other probable causes, the defendant’s negligence is the probable cause (or at least so the jury can find).

a. Grimstadb. Kirincich—went to the jury b /c there was evidence that they had the

capacity to save the decedent if they had only had the right equipment.4. Haft —Required to have a sign or a lifeguard. Absence of a lifeguard goes to two

things—the absence of someone who could have saved the 2 lives and also the absence of someone who could have testified about how the 2 people drowned. Both deprived P of a chance to survive and prove causation (deprived P of evidence). But, the absence of a sign does not do either of these things. D’s negligence makes him liable for the absence of evidence. Causation is proved because of defendant’s responsibility for the absence of evidence. Ordinarily we require that plaintiff introduce evidence of causation, but once we have a situation where the defendant was negligent and the proof regarding the negligence is absent because of the defendant there is a causation shift in terms of the burden of proof.

a. Suppose only a sign were required?b. Only a lifeguard required?c. Shifting the burden of proof—shifting the burden of proof for something for

which there is no evidence means that that side loses.d. The recurring miss problem.

Cause-in-Fact and Product Liability CasesWith drugs/ chemicals, you can’t say that but for exposure or overexposure person would not have contracted the disease. (exception to but-for test).

●Zurchowicz—P claimed to develop PPH as a result of an overdose of Danocrine.- Evidence that Danocrine caused PPH (primary pulmonary

hypertension)? -Temporal relation (she was healthy, took the drug and developed PPH)—other things being equal, short period of exposure seems to make other factors less likely.-Certain other causes ruled out—when other causes are ruled out, remaining possibilities become more probable.

- Evidence that overdose of Danocrine caused PPH-Temporal relation-Unclear what other causes are ruled out.

- Conclusion: “Substantial Factor” -Suppose expert testified that drug caused PPH and that increased dosage substantially increases the likelihood of causation. Still no proof that overdose of Danocrine caused the P’s PPH.

● Why should a case like Zuchowicz go to the jury?

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Ct. relied on Justices Traynor and Cordozo: If a substantial increase in the chance of something happening is caused by negligence and that something actually happened, this is enough to say that negligence caused the harm.

-Increases chance to greater than 50%?-More probable than not—if it were, we would not have to use the substantial factor language.

● Changes rules of causation to not more likely than not, but considerable. Trying to address the problem of the recurring miss.—If not held liable, then defendant can continue negligent behavior and get away with it.

●General Electric v. Joiner P claimed that he had to work closely w/coolant containing PCBs and as a result has developed small cell lung cancer. Court said that P’s experts failed to show link between exposure to PCBs and small cell lung cancer.)-Significance of standard of review? (Abuse of discretion standard)

-2 kinds of studies (animal and epidemiological). Trial court excluded expert testimony. S.Ct. asked if trial court used reasonable discretion in deciding to exclude/admit testimony—said there was no abuse of discretion.

-Basis for expert opinion: Animal studies and epidemiological studies

-Toxicology studies use much higher doses of substance than plaintiff was exposed to. Why does the court dismiss these studies based on massive doses? They’re good enough for FDA studies, but not good enough for evidence? Just b/c a possibility or a risk of cause is demonstrated by the studies does not show that it is more probable than not that it caused this particular harm. Also, scientist does not provide foundation for extrapolating that conclusion of causation. —Failure to link the animal studies to causation in this case or link is too attenuated.

-Distinguishable from Zuchowicz?-Two issues in Joiner: 1) Did D’s act increase the risk and 2) If so, did that risk cause this harm?-Only issue in Zuchowicz was the second one—there was no question that the drug caused PPH. In Joiner, it wasn’t even established that PCB caused the cancer.

-Tenability of distinction between validity and accuracy of result? Daubert & “gatekeeper” function:

● Peer reviewable● Is it falsifiable (can it be replicated?)● What is the error rate?●Overall general acceptability of methodology—jury has to take expert testimony on faith and some of that testimony may not be admissible.

●Herskovitz Computation (lost chance of survival case)Plaintiff’s decedent was not properly diagnosed (when chance of survival was 39%) and was diagnosed later when his chance of survival went down to 25%.

● 14% reduction in value of life worth $1,000,000.14 X $1,000,000 = $140,000

● A life worth $1,000,000 healthy that has a 39% chance of survival is worth $390,000

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Reduction from 39% to 25% chance of surviving constitutes a 35.897% reduction.

The value of 35.897% reduction of $390,000= $139,998.

●The “Recurring Miss”Case A: Defendant’s negligence decreases plaintiff’s chance of surviving by 14%; (Herskovitz)

Case B: Defendant’s substance causes 14% of all liver cancer. P has liver cancer and was exposed to the substance. D has increased P’s chance of dying by 14%.

Why shouldn’t the interest in not dying of a disease you already have get more protection than the interest in not getting a disease and dying of it? Is the defendant in each case any more blameworthy than the other?Lesson: Courts are uncomfortable with inconsistency. But if they don’t think they are being inconsistent, they don’t feel the need to apply the rule and the distinction is maintained.

Joint and Several LiabilityThe situation in which more than one defendant is liable. Each D is liable for the entire amount of damages (each D is liable in full). However the P cannot ever recover more than the amount of damages. If one defendant pays, s/he is entitled to “contribution” (partial reimbursement) from the other. Significance is the situation in which one defendant does not have sufficient assets to cover award (Plaintiff would not get full award if it were split between the parties one of whom could not pay).

When is joint and several liability imposed?1. Joint enterprise/ action in concert: “Joint tortfeasors.”2. A single, theoretically indivisible injury caused by independent acts of negligence.

(Both are negligent) (Part A is speeding, Party B runs a red light. Together they hit C, who is walking on the curb)

3. A theoretically divisible but practically indivisible injury caused by independent acts of negligence. (Marta and Kristine beat up Myriam—doctor cannot tell who caused what injuries)

Cases illustrated by fire…

Simultaneous Causes● Two simultaneous causes: Both negligent--Suppose fire A and fire B are both negligently set and reach P’s house at the same time. Counsel for party A would say that fire A was not a but-for cause of the damage. That argument would lose b/c the but-for test is not an end, it is a means of telling defendants how much liability they can incur for their actions. Also, if fire A would not result in liability, then fire B would not result in liability either b/c it too is not the but-for cause. Each fire was an actual cause of the harm. Choice is between over deterrence through the imposition of liability and under deterrence through failure to impose liability.

●Two simultaneous causes: One negligent, one not—Distinction in Kingston (1 fire was of unknown origin) Nonetheless, the tendency of the courts is to hold the negligent defendant liable in this situation, but not all courts do. It is essential to the courts that do

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impose liability in such cases that the negligent fire arrive no later than the non-negligent fire. (Over deterrence—negligent person would have caused the fire anyway).

Sequential Causes● If fire A arrives first, and was negligently set, regardless of whether fire B was negligent or not negligent, if it comes afterward, fire A is liable (it was the actual cause)—even though fire B would have burned plaintiff’s house in a few minutes in fire A’s absence. If fire B arrived first (suppose it was non-negligent), fire A would not be liable.

The Indeterminate Defendant● Summers v. Tice—Alternative liability3 hunters—2 defendants were both negligent (both potential causes), but we don’t know which one got there first (we don’t know which one caused the harm). Ordinarily, liability would not result using the but-for test because we can’t show that but-for A’s (or B’s for that matter) negligence that the harm would not have resulted. It is not even more likely than not that A’s negligence caused the harm. It is only as likely that A’s negligence caused the harm, as it was that B’s negligence caused the harm. There is no real argument in the opinion. Ct. is saying that these two defendants should pay. It shifts the burden to the defendants to disprove causation. But we know that when you shift the burden when there is no causation, party who bears the burden loses. Each defendant in this case is so nearly “more probably than not” the cause of the harm that courts are unwilling to immunize them from liability.

Market Share Liability-Form of liability introduced in DES cases (Sindell was the case that adopted market share liability rule)—DES was the only cause of a particular type of disease (signature disease). The more of a product (that has a patented formula) that you sell, the more liable you are. It is statistical corrective justice. Another way of signaling to the defendant that we are going to hold them liable for exactly how much damage they cause.

-Exception to the but-for test. Companies that are in no way the cause-in-fact are liable based on share of the market. Why do we do it? Don’t know what cause-in-fact is; Address the problem of recurring miss.

1. Fundamental Premises—a. Each D’s market share and the percentage of total harm caused by each

defendant’s product are equal.b. Therefore imposing liability based on the market share holds each

defendant liable for the amount of harm it caused2. Skipworth (P supposedly suffered results of lead poisoning from lead paint used in

home)—Ct. would not adopt market share liability in this case.a. Market share varied over the period in question (100 years)—companies

entered and left the market so very inconsistent.b. Because products were not identical, fundamental premises not satisfied.c. Not exclusive sources of the lead in this P’s blood. Lead could have come

from other sources.

● Courts see the threat that imposing market share liability poses to traditional tort liability, so they are wary of imposing it at all, especially in a sloppy situation like

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Skipworth. Generally this approach is limited to cases where there is “a signature disease,” where the relevant market-share data is available, and usually where a substantial share of the market is joined in the suit.

Problems with Market Share Liability even when applicable:1. Which market share is relevant (local, state, national) and when?2. Facts necessary to determining market share are not easily available3. Who pays for the unjoined share?

a. E.g. $100,000 damages; D1: 20% market share; D2: 40% market share; D3: 20% market share.—only 80% joined. Does P recover $100,000 (relative market share) or $80,000 (absolute market share)?

b. CA requires that a substantial number of defendants are joined b/c it is assumed that the P will recover the full amount of damages from defendants in proportion to their market share.

Cause-in-Fact Themes1. The counter-factual nature of the inquiry2. Cause-in-fact as a moral imperative3. Cause-in-fact as a mere practical guideline

a. Substantial factor testb. Reduced chance of survivalc. Practically indivisible injuryd. Over determined causese. Alternative liabilityf. Market share liability

4. The functions of the exceptionsa. Greater accuracyb. Avoid recurring missc. Tilt toward corrective justice in hard, close cases.

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Proximate CauseProximate cause is a misleading name for it. Think of it as the scope of responsibility. It is a way of determining which causes in fact will result in liability. Most cases posing the issue of proximate cause can be resolved by the forseeability test or by the harm within-the-risk test. Linked to negligence.

● Forseeability: D’s negligence is a proximate cause of P’s harm if the harm was a foreseeable result of acting in the way that D did.

● The Harm-Within-the-Risk Test—Is the risk of the injury to the P one of the risks that makes D negligent for its conduct? One should ask whether what happened was not foreseeable in the sense that it is not one of the risks we would want D to take into account in deciding how to act.

● Berry—P driving trolley car faster than speed limit. Car was hit by a chestnut tree and injured the P. Negligence of the P has to be a cause-in-fact of his/her own harm in order for affirmative defense of negligence. It is a fact that but-for the P’s negligence the injury would not have occurred b/c the car would not have been at the point where the tree was at the time it fell. Why then is he not eligible to be denied recovery?

Proximate Cause1. Berry —Did the act increase the risk of the harm that made the act negligent? The

harm-within-the-risk test. Speeding doesn’t increase the risk that you will be in a particular place at a particular time. This is why it is a coincidence. Going slower does not reduce the risk of this kind of harm. There is no added value, no extra deterrence if recovery is barred in this case. Negligence does not increase the risk that this kind of harm will occur. The injury was not a harm-within-the-risk that made the activity negligent. Sometimes proximate cause is a question of fact. Sometimes it is a question of law.

2. Ryan —Building #1 catches fire due to defendant’s negligence, and building 2 caught fire from building 1. D’s negligence was the cause-in-fact of the damage, so why is he not held liable to P for damage? Court is concerned about how much liability there would be here. —Potential for being held liable for a large number of destructions.

- Court is saying that it was not foreseeable that way we usually define it.

- Saying that the defendant was not required to foresee it or insure against this outcome.

3. Brower —train negligently hit horse and buggy and scattered contents of the buggy, which were then stolen by thieves. Can D be held liable for the loss when it increased the risk of loss? (Thieves were an intervening cause b /c railroad should have foreseen that thieves would come—they had a guard on the train)

4. Wagner —Train negligently caused the death of 1st cousin. 2nd cousin injured in the subsequent rescue effort. Is the train company liable for negligently causing the 2nd injury? The court held that one of the risks that makes it negligent to risk harm of another is the risk that a different individual will be injured while attempting to rescue him from the consequences of the defendant’s action. “Danger invites rescue”—or so the jury may find.

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●Brower and Wagner involve subsequent force by a third party that occurs after the D’s act has occurred and caused harm.

“Intervention”1. Character of subsequent force/act

a. Criminal or intentional tort (Brower)—There are many cases that hold that the D would not be liable, but there are also those that would hold D liable.

b. Negligent (ambulance p. 492)c. Innocent (Wagner)

2. Degree of forseeability of subsequent force/acta. Factual forseeability (Wagner)b. Reason defendant’s act was negligent (key in car); Did the D’s act elicit

that act of the third party? The principle reason defendant is negligent is b/c defendant’s act is the risk that someone else can do harm is increased.

3. “Second-Pocket” considerationse. No question that third party is liable to plaintiff. Holding original

actor liable adds a second pocket. There isn’t always liability—there isn’t always a need for a second pocket.

4. Question of Law v. Question of fact (Brower, cases on page 494)

● Should not infer that there is a rule that defendant is liable in these cases. Often the cases simply hold that a jury could find that there is liability, but that also means that a jury could also find that defendant is not liable.

Forseeability of Plaintiff1. Polemis —(Unforeseeable extent of harm to a foreseeable P). Chartered ship,

explosion destroyed it. Negligence was in allowing plank to fall in ship’s hull. Result was not foreseeable. Was not negligent in causing the harm, so it looks like strict liability. But, it requires negligence of some sort in the first place. Negligent for failing to protect against a harm that they could not foresee. Not negligent for all unforeseeable harms-only for those that cause direct harm (no difference from Vosberg). D’s negligence was a proximate cause of even unforeseeable harm, so long as the harm was a direct consequence of the D’s negligence.

a. Directness Test—Not liable for all consequences of your behavior if you are negligent, but if your negligence directly harms a foreseeable plaintiff, you are liable for all harm you cause even if that harm was not foreseeable.

b. Thin-Skull Rule—If you are already negligent because you unreasonably risk harm to a foreseeable plaintiff for an unforeseeable extent of harm. You take P as you find him.

2. Palsgraf v. Long Island Railroad (Unforeseeable Plaintiff)—D assisted a passenger on to a moving train and negligently dislodged his package that contained fireworks, which fell on the tracks and exploded. Negligence of the D was to passenger and his package. Subsequently, allegedly due to the explosion, scales on platform fell on plaintiff. The passenger’s property was within the zone of danger, Mrs. Palsgraf was not. Plaintiff’s lawyer should have alleged that defendant RR’s scales were negligently placed or maintained—he messed up big time. If she is not a foreseeable plaintiff, then there is no liability to her for the negligence. ● Cardozo frames this in terms of duty—if she is not a foreseeable plaintiff, there is no duty (issue of duty should not go to the jury). But he could have couched in terms of proximate cause. Andrews (dissenter) thought that Mrs. Palsgraf was foreseeable

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so the question of proximate cause, he believed, was one for the jury. The rules of Palsgraf only apply where the plaintiff is utterly unforeseeable.

Unforseeability Rules1. Unforseeable plaintiff—palsgraf

-No liability, no duty2. Unforeseeable extent of harm to a foreseeable plaintiff--Polemis

-liability, thin-skull rule3. Unforeseeable type of harm to a foreseeable plaintiff

a. Wagon Mound #1 : no liability as a matter of law for unforeseeable “type” of harm (US law less general)

b. Wagon Mound #2 : if the type of harm is not wholly unforeseeable, liability is not foreclosed.

4. Unusual mannera. Marshall —whether negligent force had come to rest is a jury question

on these facts.b. Albritton —but not on these facts. (Some courts are going to say that it

cannot go to the jury and some courts are going to it can, but just barely.

Unforeseeable Type of Harm

1. Wagon Mound #1—Boat discharged oil into the Sydney Harbor—Foreseeable plaintiff but foreseeable type of harm is mucking up the harbor/dock. Oil was ignited by a spark and plaintiff’s dock burned. This type of harm was unforeseeable.—D could not be held liable for the damage to the dock. [This case does not overrule Polemis—still liability for unforeseen extent of harm].

a. No liability as a matter of law for unforeseeable “type” of harm. (US law less general)—American courts take it on a case-by-case basis. Varies with the type of harm so there can’t be a general rule about it. Effort by US courts to fit the liability to the tort.

b. Attorney for P failed to prove there was forseeability. But then he would have shown that if it was foreseeable to the defendant, it was also foreseeable to the plaintiff, and he should not have been welding.

c. These categories are ways of explaining cases that seem to be all over the map and inconsistent with each other.

2. Wagon Mound #2—Plaintiff is a bystander in the same accident (at a different time). If the type of harm is not wholly unforeseeable, liability is not foreclosed. He is free to show forseeability without incriminating himself. Judgment in this case, because of admittance of evidence demonstrating forseeability, was affirmed for plaintiff.

Unusual Chain of Events—Intervening and Superseding CauseForeseeable plaintiff, foreseeable kind of harm, it just happens in an unusual way.

Intervening Cause (Marshall)—D’s negligence is a proximate cause of P’s injury. —The possibility of injury to the plaintiff by the third party/force is one of the risks that is taken into account in deciding whether the D’s acts were negligent. The intervening act does not break the chain of causation b/t D’s act and P’s injury.

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Superseding Cause—3rd party action breaks the chain of causation and D’s negligence is not a proximate cause. The negligent D had no way to foresee that the 3rd party would contribute to the harm. If it is absolutely unforeseeable, it is a superseding cause. (Albritton)

●Marshall—As long as the P was injured at roughly the same time and in roughly the same place as was foreseeable through the same forces as were foreseeable, it is not necessary that the precise manner in which the injury took place have been foreseeable. Whether negligent force had come to rest is a question for the jury on these facts.

●Allbritton—but not on these facts.

Proximate Cause—language used in determining if there is liabilityProximate RemoteNatural and probable consequence NotDuty No dutyForeseeable UnforeseeableDirect IndirectRisk-Increasing CoincidentalUnbroken Chain Broken ChainMere Concurrent Cause Superseding Cause

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V. DefensesA. Contributory Negligence

1. What is it? ● The failure of the plaintiff to take reasonable cares to protect himself or his property from the risk of harm. Focus on risk and benefit of protecting oneself. Often conduct which would be contributory negligence if it were the subject of a defense would be primary negligence if it were subject to a claim.● Question would not be whether or not the plaintiff was behaving unreasonably, but was plaintiff’s behavior risking plaintiff’s own self or property.● Butterfield v. Forrester—P was injured when he failed to use ordinary care to guide his horse around an obstruction that D negligently placed in the road—Negligent plaintiff could not recover from a negligent defendant.

2. Justifications for the Defensea. Proximate cause is not a justification for the defense b/c there can be

more than one proximate cause of the harm.b. Deterrence is not justification b/c plaintiffs already have a non-legal

deterrent not to injure themselves—it is self-interest.c. Corrective justice fails as a justify cation as well b/c it might be unjust

to have complete recovery when there is contributory negligence, but it is equally unjust to bar recovery completely.

d. The “clean hands” rule of only allowing a person who is absolutely free from guilt to benefit from the legal system is another justification that fails.

3. Persistence over time—if these justifications don’t work, then why did contributory negligence persist as a defense for so long?

a. 19th century judges distrusted juries and contributory negligence was a way to take power away from juries—but contributory negligence would have to be applied as a matter of law.

b. Courts were not routinely keeping contributory negligence questions from the jury. Juries were then able to apply comparative negligence under the table by awarding less to the plaintiff if he was partially at fault and courts had no way of policing that.

4. Contributory Negligence: Limitations and Exceptions—courts begin to recognize the dangers resulting from a complete bar to recovery.

a. Greater Degree of Blame—Even though P is contributorily negligent, Defendant’s conduct is more than negligent or intentional. A rough comparison of the faults of the parties not only determines when there is an exception to the contributory negligence defense (D’s conduct more negligent than P’s) but also when there is no exception. Seems like a crude version of comparative negligence. Acting with more than negligence or intent to harm is worthier of punishment (from a corrective justice/ deterrence perspective) than the failure to protect oneself from harm.

b. Certain safety statutes—Many courts hold that when a defendant’s negligence consists of the breach of a statute specifically designed to protect a class of persons unable to protect themselves against the defendant’s negligence, the contributory negligence of a member of the protected class is not a bar to recovery. Seems to reflect a reaction to the

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harshness of contributory negligence bar to recovery in a category of cases that seem distinct but when you get down to the analysis you find that they are hard to distinguish from other ordinary cases.

c. Burden of Proof –Defendant bears the burden. One of the facts that undermines contributory negligence is that it is a defense.(Gyerman)

d. Cause-in-Fact—(Gyerman—P (a longshoreman) was injured when working in a warehouse and sacks of fish meal fell on him b/c sacks were improperly stacked. Even though he complained to supervisor, nothing was done. P continued working and was injured)—For D to prevail, he has to prove that P was negligent and P’s failure to exercise care is the cause-in-fact of P’s own injury. (But for his own negligence, the harm would not have occurred)

e. Proximate Cause— (Smithwick, Mahoney note cases, p. 320)--Court more likely to ask whether P’s negligence was a cause-in-fact or a proximate cause and keep those questions from the jury than when the question involves defendant’s negligence.

f. Landowner Rights—(LeRoy Fibre—700 tons of straw belonging to Le Roy destroyed b/c of sparks emitted from train operated by railroad. The question was whether P was negligent in stacking straw so near trains right of way)—No duty to guard against a negligently operated railroad (majority), but, jury may find duty to guard against properly operated railroad (Holmes). Decision in this case is more of an attempt to guard against property rights. —To find P contributorily negligent would be imposing on P a duty to use its land in a manner that would not be harmed by the wrongs of another.

g. Seatbelts●Derheim Ct.—can a defendant in an auto accident case allege the contributory negligence of the plaintiff failing to use a seatbelt?—Hostility toward contributory negligence. Says that seatbelt is not even admissible as to contributory negligence. Reasoning is a little off—says it would be tantamount to comparative negligence. It is really something between contributory negligence and failure to mitigate damages.

h. Last Clear Chance● Mostly does not exist anymore as a doctrine (it was a transitional doctrine). ● If the defendant had the last clear chance of preventing the harm to the plaintiff, the defendant is liable for the harm (plaintiff’s contributory negligence is not a bar to recovery). It is a doctrine that trumps the defense of contributory negligence.

a. P is helpless and D knows of plaintiff’s situation: Last, clear [§ 479(b)(i) Restatement] is well-placed—D is morally blameworthy.

b. P is inattentive and D knows of the P’s situation: clear, but not last [§480(b) “realizes”]. Both have last chance, but D is more blameworthy than P.

c. P is helpless and D should know. Last but not clear [§479(b)(ii)]d. P is inattentive and D should know: Not last, not clear [§480(b)

“has reason to realize”]B. Assumption of Risk

● It is a defense in negligence cases. But courts have used the term when they mean different things. Did the plaintiff assume the risk-associated with the activity?

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1. Express, contractual disclaimer/waiver of right to recover from defendant. Valid when entered into knowingly, voluntarily and with appreciation of their significance.

2. No breach of duty by defendant (“primary assumption of risk”)—D did not do anything negligent by virtue of the fact that he took all the precautions it was obligated to take. So P has no right to sue for the situation. E.g. (Murphy v. Steeplechase Amusement Co.—P got on “the Flopper,” an amusement park ride with a moving belt that makes people fall. P assumed risk b/c he saw obvious dangers of the ride and D was not obligated to provide additional warnings)

3. Species of contributory negligence (“secondary”—conscious negligent risk taking on the part of the P). Defense based on P’s conduct.

a. Unreasonable conscious taking of riskb. Unreasonable careless taking of risk

4. Non-negligent, conscious taking of risk by the plaintiff—not a defense. Cases like Eckert (P’s decedent was killed in the act of saving a small child from certain death by sweeping child off of the tracks of a negligently operated train.)

C. Comparative Negligence● Under comparative negligence, the contributory negligence of the plaintiff does not necessarily bar recovery. Instead the P’s recovery is reduced “in proportion to the amount of negligence attributable to him.”●There is no deterrence argument in favor of contributory negligence. But it does not follow that there is a deterrence argument in favor of comparative negligence. The move to comparative negligence can be better understood in that comparative negligence more closely approaches our ideals of corrective justice. Along with the lack of respect for the rule of contributory negligence from the vast majority of the public. ● This is comparative negligence, not comparative causation.

● Li v. Yellow Cab—P was contributorily negligent while turning into a service station. D-taxi driver was speeding through a yellow light and hit P. The court said that contributory negligence (no recovery for P) should be abolished in favor of comparative negligence (liability in proportion to respective fault).

● Bohan v. Ritzo—P was riding his bike past D’s house when D’s dog approached him. In an effort to ward off the dog (which never bit the P), P lost his balance and fell off of his bike suffering severe injuries. D’s wanted the court to give comparative negligence instructions to the jury. The court said that this was not necessary b/c the P did not have time to think about an alternative evasive action. If he had, he may have been held to the standard of “plaintiff misconduct” which would have warranted comparative negligence instructions to the jury.

1. Pure v. Modified—a. Pure —P’s recovery is reduced in proportion to the amount of negligence

attributable to P. Contributory negligence is never a bar to recovery.b. Modified —retains contributory negligence when P is more negligent than D

and applies comparative negligence when P is less negligent than D. No recovery for P when he is more negligent than D.

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EXAMPLES

Pure:A. P is 10% negligent, D is 90% negligent.

P suffers $100,000 damagesP recovers $90, 000

B. P is 90% negligent, D is 10% negligent.P suffers $100,000 damagesP recovers $10, 000

Modified:A. P is 10% negligent, D is 90% negligent.

P suffers $100,000 damagesP recovers $90, 000

When you recover in modified comparative negligence, you recover the same amount as you would under pure comparative negligence. But if the P is more negligent than the D, he recovers nothing.

B. P is 90% negligent, D is 10% negligent.P suffers $100,000 damagesP recovers $0

Pure:C. P is 90% negligent, D is 10% negligent.

P suffers $100,000 damagesD suffers $5,000P recovers $10, 000D recovers $4,500

What happens if you have more than 1 D?D. P is 30% negligent

D1 =25% negligent; D2 = 20% negligent; D3 =25% negligentIn modified, does P recover at all? Yes, as long as P is less than 50% negligent

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VI. Products Liability Each era of products liability adds new causes of action. They don’t replace the old ones.

1. Contract Privity Requirement (Winterbottom)2. Negligence (MacPherson)3. Implied Warrenty—transition b/t negligence and strict liability)4. Strict Liability

A. Contract Privity Requirement●Winterbottom—an English decision involving a P who was injured by a defective stagecoach that had been supplied to his employer. In his suit against the stagecoach manufacturer, with whom he had no contract, the P was denied recovery b/c of absence of privity. No contract b/t P and D, no liability. This idea relies on the notion that the existence of a contract and liability depends on contract and terms.

● Rationales for privity Requirement1. Floodgates of litigation would be opened if privity were not a requirement.2. No duty b/c there is no contract w/ plaintiff3. Potential difference b/t contractual and legal standards regarding safety/ quality of

product. If we hold D liable, every time he makes a product and supplies it to someone else and the person he is selling the product to only wants a certain quality of product, he should not be liable to a distant P who uses the product and is injured. Liability on this basis would infringe upon the contract parties’ ability/ right to contract. Once we enforce liability in this situation, we are regulating the original contract. Under the new regime of modern tort, the plaintiff automatically has rights that he cannot contract away (it is factored into the price of the product already).

B. Negligence (demise of privity requirement)● MacPherson v. Buick Motor Co.—D manufactured a car, which was sold by a dealer to the P, who was injured when a wheel made of defective wood collapsed. P sued for negligence.

- Duty regardless of privity: under what circumstances?- Nature of manufacturer evidence

● Inadequate evidence● Negligent design

- Because there is no precise meaning of what it is to be negligent, just because P has cause of action does not mean that s/he will recover. It is difficult to prove manufacturer negligence—may not have access to information. Proving negligence is difficult and costly. At the core of MacPherson is an indeterminacy of what it means to be negligent. This difficulty of proving negligence makes strict liability more attractive.

C. Warranties● Warranty is a promise or a guarantee statement. It is not a contract, but it is binding. When a warranty about the safety or quality of a product is breached, the breach may give rise to a cause of action, not only for losses flowing immediately from the breach, but also for consequential losses such as personal injury or property damage.

● Express-a binding, affirmative statement● Implied v. retailer

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- McCabe —plaintiff-purchaser was injured when coffee pot purchased from defendant-retailer exploded. No written warranty. Implied in fact or implied/imposed by law. In every contract for the sale of goods that the goods are of fair, average quality—merchantable. States eventually passed a statutes incorporating warranty of merchantability (P’s don’t have to prove negligence and it is not a defense that there was no negligence. Standard of care for merchantability is strict liability. Focus is on the product’s quality, not on negligent conduct.

- At the outset, implied warranty of merchantability was an option, it was not required—a default rule. Parties can contract out of them—disclaimable.

● Implied v. manufacturer of foodstuffs—there was no basis for this implied warranty under law. Purchasers made sick by unwholesome food had no contract with the manufacturer. Courts extended implied warranty to manufacturer—strict liability. Focus is on the product’s quality, not on the manufacturer’s conduct. Warranty is disclaimable.

● Implied v. Manufacturer of other products—Justice traynor advocates this in Escola

-Escola v. Coca-Cola Bottling Co.—a waitress was Iinjured when a coca-cola bottle exploded in her hand. She sued Coca-Cola for negligence. Res ipsa loquitur was used to find D negligent (under the table strict liability). But, Traynor, in the opinion advocates strict liability for products. His arguments are: (1) Loss minimization—the manufacturer is in a better position to take precautions if we threaten him with strict liability. (2) Cost-spreading: manufacturer can best spread costs over society. The manufacturer is in the best position to insure in case harm occurs. (3) Elimination of proof complications.

-Henningson (landmark case)— P was the injured wife of the purchaser of a new Plymouth, which left the road after the steering failed. Ct. held that there is an implied warranty of merchantability for any product from manufacturer to purchaser/ user. Not disclaimable disclaimer is invalid—Strict Liability. A cause of action for breach of implied warranty that cannot be disclaimed, running from manufacturer to a party who is injured but not in privity is simply strict liability.

-Greenman—court held that there is strict liability of manufacturer to purchaser/user if there is a defect in the product. Eventually this idea was embodied in Restatement § 402(A)—“defective conditions unreasonably dangerous to the user results in strict liability on the part of manufacturer for personal injury

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or property damage resulting from the defective condition.

THE BIG PICTURE

Theory Retailer Manufacturer

Negligence Always by contract MacPherson

Implied warranty Uniform Sales Act Common law(foodstuffs)

Implied Warranty Uniform Sales Act Henningsen

Strict Liability Greenman and 402A Greenman and 402A

● Liability of any seller to any buyers and bystander §402(A)—strict liability for product defect that is unreasonably dangerous to user. What makes a product defective is a lot like what makes it negligently made (as not every injury caused by a product is caused by a defect)—So strict liability does not really look like the traditional concept of strict liability. So we get to Restatement, 3d Law of Products Liability §2.—This is negligence really.

D. Liability for Defective Products● Manufacturing Defects

- Real strict liability for defects in manufacture/ construction of products

●Design Defects- For all intents and purposes, negligence liability

● Marketing (warning) defects- Must use reasonable care to warn—basically negligence liability.

● Manufacturing Defects● Pouncey—P was injured when a blade broke off of radiator fan of car and struck him in the face.

a. Difficulties with a negligence test in this case—proof, cost, etc. (use of res ipsa loqutur)

b. Difference b/t negligence and strict liability—avoid difficulties of proving negligence. Manufacturer is liable even if it has exercised reasonable care in every aspect of the manufacturing process. Arguments in favor of strict liability in products liability are the same as those in favor of strict liability in other kinds of cases. (Accuracy, research incentives, etc.)

c. Restatement 3d of products liability test.- Do we really want to hold manufacturers liable for all defects or

just those that are worth detecting? Problem with negligence

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(MacPherson) test are avoided, but only at the cost of holding a manufacturer liable for defects that are not worth avoiding. Maybe a manufacturing defect is really a defect in design-of the assembly line.

● Design DefectsDefect occurs in an entire product line. Defect in design when a product is used for its intended purposes (as distinguished from a purpose for which it is not intended). There is liability not only for the intended uses, but also for unintended but foreseeable uses (and in some cases for foreseeable misuses).

Volkswagen of America v. Young—P’s decedent was killed when he was involved in a car accident as a result of colliding with part of the car he was driving (a 2nd collision). The design defect in the car increased the chance that injuries would occur if a collision occurred. Getting hurt through the aftermath of a collision is foreseeable. Negligence is the standard of care that courts say should be used for design defects. It is hard to articulate a test for defectiveness that would be a strict liability test.

1. Cost/ benefit test—is hard to avoid. Hard to articulate a test for strict liability without having cost/benefits enter into the equation. You are compelled to say that safe means a “safe enough design.”—The reasonable amount of safety. Ultimately you are comparing risks and benefits. How different from negligence? —Not different. What role for forseeability/ state of the art? A product design is not defective unless its risks outweigh its benefits.

2. Problems (why we have settled with what we have got to deal with products liability)

a. Multi-factoral calculations : There is a complicated mix of factors that goes into the purchasing process. The focus in the suit is the particular design feature that P claims was defective. The product is often made up of a number of design decisions on the part of the manufacturer. P wants to litigate whether one change would have made a difference.

b. Jury-to-Jury Variation : In order to assess this, the jury has to take into account all of the decisions made by the manufacturer. The jury is not equipped to redesign the car. The problem posed to the jury is wholly unsatisfactory and the jury is ill equipped to approach the problem. We let people decide what mix of safety, functionality, and attractiveness they want to have in a product. We should not let the jury decide the issue.

But what choice do we have? Consumer choice/ sovereignty (this fits into the assumption of risk defense)—but safety features are not always apparent—This is complicated and not all consumers make the right choice (as to between items that cost the same)—market alone is not an

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optimal alternative. So then what if we give consumers the information regarding the design so that they can choose…

● The Patent Danger Rule (open and obvious)- Linegar —P’s decedent was killed in the line of duty by a bullet

that entered his body under his arm where the bulletproof vest he was wearing provided no protection. Consumer made the choice to have this type of vest as standard issue. The vest performed as expected. It is obvious that the vest did not provide coverage for the armholes so D should not be liable. But deceased was not the consumer (consumer was agency he worked for). The employer made trade-offs and weighed costs and benefits. The employee cannot sue the employer in tort. It will be liable for medical expenses and worker’s compensation but will not be liable for pain and suffering

● Warnings1. When is a warning (rather than a design change) sufficient?

- When the product is unreasonably dangerous without a warning, but with a warning the risks are outweighed by the benefits. Warning renders the product suitable. By transferring the warning to the consumer, the consumer is given knowledge and the ability to control/ decide whether to use the product. Or consumer is given the opportunity to make that subjective choice.

- When the features of the product are open and obvious, there is no need for a warning (patent-danger rule). —Need warning for a latent danger.

2. Who must be warned?- The “learned intermediary issue”—Default rule. MacDonald

case is a big exception to the rule (Contraceptives caused P to have a stroke. The warnings in the package mentioned, “blood clotting” but never mentioned the word “stroke”. Usually the duty to warn is met by warning the physician, but this case held that the manufacturer must also warn the user (b/c pills create high risk of injury due to stroke and the patient must only visit the doctor once a year).

3. When a warning is sufficient, is it adequate?a. Instructions-tell you how to use the product more safely-- to reduce risk.b. Label clutter and diminishing returns—The more warnings there are, the

less likely they are to have impact. MacDonald case says it is up to the jury to decide whether the absence of the word “stroke” made the warning adequate.

c. The single-inadequacy fallacy—Inadequate as to one factor, but what about when another ailment occurs.

d. Jury-to- Jury Variation—Adequate for some women, but not adequate for others. How do juries decide?

e. Problem of Causation—Would the person have heeded the warning if it had been there? Distinguish instructions from warning (instructions in safe use), mere warning. (This is much like informed consent)

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●Warning liability is not truly strict liability since inadequacy determinations inevitably take into account the feasibility and cost of providing a warning as well as the kind of information that consumers want and need.

●Abraham thinks that court should have directed a verdict in MacDonald. What is really going on is the court’s aim of getting warnings for everything. Big factor—few people who suffer significant adverse reactions to drugs are being compensated. All of the people who use the drug should pay a little more in order to insure that protection for those who are injured. Well, maybe people should be able to choose whether or not to insure against those harms. More money (of each dollar) would go to the victim because question would only be whether or not person suffered an extreme side-effect, not whether there is a duty to warn or whether the warning was adequate (money spent on litigation).

● Vassallo v. Baxter Healthcare Corp.—P claimed that breast implants manufactured by a predecessor company to D were negligently designed and were accompanied by negligent product warnings. Court said that a D will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. Thus, the court affirmed a judgment for the P.

● Strict Liability or a State of the Art Defense for Failure to Warn-There is liability for negligent failure to warn. Chemicals and pharmaceuticals sometimes pose unforeseeable risks. Strict liability for failure to warn about an unforeseeable risk is an odd kind of liability. —It is impractical.What do we get from strict liability?

a. Greater Accuracy? —By imposing strict liability b/c it is hard to prove negligence. It gets you closer to negligence that you would get if you could prove negligence.

b. Administrative Cost Savings—Negligence cases are costly. There will be more cases if we adopt strict liability. But the outcomes will be more predictable so we won’t have to litigate as much.

c. Activity Level Effects—Do we really want to depress the level of commerce b/c the manufacturer will be held liable even when they can’t foresee harms/risks? The last thing we want is this activity level effect. If we say we want to decide on a case-by-case basis, we lose the benefits of strict liability.

d. Research Incentives—if a manufacturer is threatened with strict liability for things they can’t foresee, you deter them from exploring research options to find the unforeseeable harms.

e. Risk Distribution/ Compensation-- Remedying misfortune is a value. Abraham doesn’t see why we should compensate people for being victims of unforeseeable harm. All we are saying is here is someone with a deep pocket and a party who is injured. If no deterrence is achieved and no injustice corrected, Abraham doesn’t see why we give the money through a tort suit to a person (we are not sure if they are supposed to have it). What purpose does it serve?

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● Products Liability Themes1. Contract v. Tort (Winterbottom)

- Underlying rationale- The consumer sovereignty issue

2. The search for a limiting principle- Negligence (the problems with proof and with core of concept)- Warranty of merchantability (a seemingly workable approach, but

not entirely coherent)- Disclaimability of warranty- Defect

3. Conceptions of Defectiveness4. Level of Generality Problem (jury-to-jury variation)5. Who is in the best position to prevent the injury? To foresee the injury?

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VII. Damages (promotes corrective justice and deterrence)A. The Principle of Single Recovery

● P recovers all damages for past loss which s/he has suffered and all damages for future loss which s/he will suffer.Advantages—Case doesn’t go on forever. Both P and D get repose. P can get closure and get on with his/her life physically and mentally. D gets closure b/c there is no longer an open debt.Disadvantages—less accuracy in determining plaintiff’s future damages. Lump sum is discounted to present value. P has to be a really great investor of the lump sum received in order to be fully compensated. If there were a periodic payment, maybe this would be better.

B. Recoverable Damages1. “Special” Damages (“pecuniary” or “economic”) for out-of-pocket loss

a. Medical expensesb. Lost wages/ imputed income—services provided by injured person to

family (lost earning capacity)c. Lost profitsd. Cost to repair or replace property, not to exceed actual cash value

2. General damages (“non pecuniary” or “non-economic”) for “pain and suffering”

- General rule is that if you have no conscious awareness, no “general” damages are recoverable. You have to be able to experience/ feel the pain you are experiencing to recover (McDougal—P was having a tubal ligation, and during the procedure experienced loss of oxygen to the brain which resulted in brain damage. This left her in a permanent comatose condition)

- Attorneys have tried to split up pain and suffering into cognizable segments (loss of enjoyment of life, loss of opportunity, etc.)—possibly get higher rewards. In McDougal—the court said that if there is a special verdict, there is not going to be separate awards for pain and suffering and loss of life’s enjoyments. The P is entitled to recover special and general damages. However, you can’t point the jury with specificity to loss of life’s enjoyments as a separate instruction.

- Abraham says: we have to see if deterrence is served by awarding damages for pain and suffering. If we don’t have enough deterrence, we need to set it up so that juries award more. The answer may not be to award a separate amount for loss of life’s enjoyments.

- Aim is optimal deterrence. Acknowledges P’s intangible losses. Helps pay for attorney’s contingency fee.

- Pain and suffering damages are about 50% of the award.

Discounting to present value: Special and General Damages- O’Shea v. Riverway —P worked as a cook on a boat. While

disembarking the boat, P fell and sustained injuries. D appealed the award intended to compensate P for her lost wages.

- a. Ignore inflation of losses and use real rate of interest; orb. Calculate inflation of losses and use rate of interest that includes inflation

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- It is disgraceful that some of these issues are litigated case by case (experts are paid to come in and testify about what the inflation rate is going to be—when it is quite unpredictable and expert opinion will vary from case to case). We need a per se rule about how much inflation is going to be. We don’t need juries deciding about inflation period.

C. Limitations on Damages1. Remitittur and additur (addresses the variability of awards)

a. Remitittur—judge reduces the damages award when it is excessive if plaintiff agrees and there will not be a new trial (motion for new trial by D is denied if P agrees).

- Firestone—P was injured when a suspended balcony in a hotel fell. The injuries suffered by P were substantial. Court said no to remitittur—If the award is too extreme, it is wrong as a matter of law and judge should direct a verdict accordingly. (Abraham does not like remitittur b/c there should not be a cap on damages—the young and seriously injured is the group most devastated by caps on damages) b. Additur is the converse of the above.c. Remitittur and additur gives the courts some control over the jury

when the jury is too excessive or too stingy.2. Statutory Caps on Damages (to prevent excessive awards)

● Caps on general damages for pain and suffering, usually around $250,000. Only addresses one part of the problem. An award for $30,000 may be unreasonable in light of the injury, but caps don’t affect that. If you are seriously injured and have a long life expectancy, you are going to be getting the biggest award. The young, seriously injured is the last group you want to hurt with caps on damages. The appropriate remedy is to have some control over variation of awards case-by-case. We need to have categories and damages that correspond to certain categories of damages. (E.g. we say $5, 000 for lost of sight, for example.). A lot of people don’t like this b/c it does not take into account individualism, which the tort system would like to—it treats the plaintiff like a piece of meat. With statutory caps, you accomplish predictability at the cost of possible unfairness to the most seriously injured victims.

3. Mitigation of Damagesa. Subject of comparative negligence rule? Should failure to mitigate be

a complete bar to recovery? Or should failure to mitigate damages be subject to comparative negligence.

b. Elective surgery issue—unless the surgery is extremely low-risk, then courts will not hold that you failed to mitigate damages by not having the surgery

● McGinley—failure to mitigate damages—P was a stevedore injured in an accident for which the US claimed liability. The issue before the court was whether P’s damages should be reduced based on his failure to mitigate damages by having surgery on his lower back. Think of it as a kind of contributory negligence in that damages could have been avoided. Not obligated to mitigate all damages that are mitigatable. The P is only required to take reasonable steps to mitigate his

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damages—measure of reasonableness is sometimes a matter of fact, sometimes it is a matter of law. (It is a rare case where P is required to receive surgery or treatment of speculative value or benefit.

c. Treatment of religious objections-- Plaintiffs refusing to mitigate damages b/c of religious objections. The last thing we would want is for a jury to decide on a case by case basis whether a party’s failure to mitigate on the grounds of religious objections was reasonable or not. There ought to be a rule that treats all cases in a general fashion. This issue should be decided as a matter of law based on decisions by judges. A religious objection is an issue that we want to be treated uniformally throughout the system. This is related to the thin-skull rule—you take your victim as you find him (victim includes someone with certain religious objections).

D. Collateral Source/ Collateral Benefits Rule● Provides that the evidence of payment to P from collateral sources, such as insurance, as a result of injuries suffered cannot be used at trial. It is a common occurrence for a P to be covered by insurance and to have had her losses covered and lost wages paid (disability insurance).

1. Traditional Approach : evidence inadmissible of payment to plaintiff by insurance/ 3rd party—therefore P gets a “double-recovery.” Promotes D deterrence. But does it serve any purpose (in terms of corrective justice) to have the D recover twice?●Harding—P was injured due to negligence of the town. Court said that damages should not be calculated by subtracting P’s recovery from his insurance company from the total damages. A jury cannot take into consideration the money P received from his insurance company

2. Reforms: Payment of collateral benefits reduces recovery by amount of payment by insurance company or other collateral source.

3. Role of “Subrogation” by Collateral Source: Process by which one party steps into the shoes of another (assignment of rights). Collateral source steps into the shoes of the P.

a. After injury, P’s health insurer pays her $10,000 worth of medical bills.b. P sues D and proves, among other things, that she suffered $10,000

medical costs + $40,000 in mother damages.c. Under the collateral source rule, P still recovers $50,000 from the D. (In

essence, a double recovery)d. Subrogation clause in insurance policy—So b/c of the insurer’s right to

subrogation, P has to reimburse her insurer the $10,000. Under subrogation clause, if P does not sue, insurer can sue on P’s behalf. If P does sue, he/she must reimburse insurer from tort recovery.

e. Under subrogation, the P is fully, but not over-compensated. The D is held liable for the full amount of costs resulting from his tortious act.● The system does not work so well in practice. The insurer has to diligently monitor the lawsuit (which usually takes a couple of years). Most cases are settled, and P is not fully compensated. Total damages have not been litigated. Generally if recovery is low, P can keep that money. If recovery is high, then the insurer gets paid (and sits in on settlement).

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E. Wrongful Death 1. Wrongful Death Statutes

a. Gives a cause of action to the people who survive the victim- Loss to survivor heirs- Liability where “decedent could have recovered if death had not

ensued.”- New cause of action—as if tortfeasor had wronged survivor.

2. Survival Statutes- Loss to estate/ loss to decedent - Preserve decedent’s cause of action after death

3. Issues under eacha. Beneficiaries—statutes prescribe these individuals. Under most statutes,

these are decedent’s “heirs at law” (those who would inherit if decedent dies without a will. —Statutes designate these people. —These are the people entitled in a wrongful death action.

b. Measure of Recovery—Damages that are recoverable were originally the out-of-pocket expenses the heirs incurred as a result of the decedent’s death. General damages for emotional loss were not recoverable (to disallow excessive awards). Legislatures amended this (for deterrence and consistency purposes). General damages for pain and suffering of survivors. So if heir is a distant cousin, there would likely be no recovery, hence no deterrence.● Survival statutes fill this gap. Cause of action used to be for damages incurred between injuries and death. Now it recovers what decedent’s estate would have gained between date of death and the expected end of decedent’s life (based on life expectancy).

c. Defenses- Wrongful Death—Contributory negligence/ comparative

negligence of decedent or survivors- Survival Statutes—Negligence of others (heirs/ survivors) not a

defense. Only the contributory/ comparative negligence of decedent is a defense.

4. Loss of Consortium● Spouses can recover for losses and pain-and-suffering when a spouse is injured. Parents cannot recover for loss of consortium on the injury of a child and children cannot recover for loss of consortium on the injury of a parent. This is a separate cause of action from that seeking to compensate the injured. Originally, it was an action that could only be brought by the husband for loss of his wife’s services when she was injured (sexist point of view).

F. Punitive Damages● Damages beyond compensatory damages (D has been insufficiently deterred by the threat of liability for compensatory damages). They are awarded to punish a defendant when he/she/it has behaved badly. Punitive damages are said to be designed to deter extremely blameworthy behavior. Almost always behavior more blameworthy even than gross negligence is necessary.● Kemezy v. Peters –P claimed that D beat him with a nightstick while he (D) was moonlighting as a security guard in a local bowling alley. D claimed that in order to

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arrive at a just measurement of punitive damages, P had the burden of producing information about D’s net worth. Court said that P had no such burden and that the purpose of punitive damages is that it punish the defendant for reprehensible conduct and to deter him and others from engaging in similar conduct.

1. Functionsa. Punishmentb. Deterrencec. Expression of outrage

2. Issuesa. Test for availabilityb. The relevance of wealthc. Constitutional considerations (Due process cannot be completely

arbitrary). The closest the Supreme Court has come is in BMW of North America v. Gore—In this case a national distributor of vehicles was not advising its dealers and hence its customers about certain damages to new cars. The court set out 3 factors that juries must take into account in deciding punitive damages: a) blameworthiness; b) degree of proportionality; and c)sanctions for comparable conduct.

d. Multiple awards—the problem of horizontal federalism. Same kinds of actions being brought in various states. The defendant can be punished a number of times.

e. Statutory limitations—dollar ceilings on awards for punitive damages. They buy greater predictability at the expense of accuracy.

G. Limited Duty (absence of duty is a liability-limiting notion/ concept1. Pure Emotional Loss

● Loss that does not result from physical injury. Physical injury may result from emotional harm.Mitchell v. Rochester Railway— P was waiting to board D’s train and was frightened by one of D’s horse cars. Court did not allow P to recover for emotional injury, which resulted in miscarriage. No immediate injury to P. Court was concerned about the possibility of fraudulent claims and of opening the floodgates of litigation. Courts used a “bright-line” rule of impact—actual contact (without actual contact, there could be no harm).

● The Natural History of Liability for “Pure” Emotional Loss- Women disproportionately bring these suits

1. General Rule (of 100 years ago): No liability in negligence for pure emotional loss/distress. There is liability for intentional infliction of emotional distress.

2. Impact Rule: Resulting bodily injury required. Concern about fraudulent claims and opening the floodgates of litigation. (This is a rule at a high level of generality—but it is not very good substantively—courts start to see this and though they want to change it—even today—they worry about too much litigation and the possibility of fraud—so then we get the zone of danger rule)

a. Some courts required physical manifestations of emotional distress (nausea, loss of sleep, digestive problems). (Fear of fraud and fear of the floodgates being opened to litigation.

3. Zone of Danger Rule—

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a. Some courts say you had to be in the zone of Danger and the incident caused you freight.

b. Some courts say that you have to be in the zone of danger, suffer freight and have resulting bodily injury.

c. Then some courts said: you had to be in the zone of danger, have resulting bodily injury, but fear can be for another’s safety. (Many of these cases involve women being out with their kids and being fearful for the safety to her child)

● Dillon—A mother could recover for emotional distress from seeing her child killed even though she was outside the zone of danger. d. Dillon, with or without its limitation. Whether or not you are able to

recover depends on 3 factors: (a) proximity, (b) visibility, (c) relationship between plaintiff and victim (has to be close). Even Dillon, by imposing these limitations, the court is saying we have to watch out for fraud and too many lawsuits. The law has refrained from creating standards about how careful a person should be about hurting another person’s feelings.

● Progressive relaxation of the rule that there can be no recovery in negligence for pure emotional loss. Each stage brought a new “bright-line” rule that was couched at a high level of generality that prevented it from degenerating to an “under all circumstances” approach.

2. Pure Economic Loss ● The second class of “limited duty” involves cases of negligently caused economic harm occurring in the absence of personal injury or property damage suffered by P. (There is a cause of action for intentional infliction economic loss.) The cases in this category are cases in which physical injury to the person or property of one party results in purely economic harm to another party. (E.g. D is driving and causes a collision on a bridge that necessitates the building being shut down for the day. A business owner who is hurt economically by the bridge being shut down (decrease in customers) has traditionally not been able to recover for economic loss).

a. General Rule: No liability in negligence for pure economic loss. Economic loss has to be parasitic on physical injury or property damage. Unlike the evolution of law exhibited in the realm of emotional loss, the bright-line rule of no-recovery for pure economic loss has not evolved. (same rule as a century ago).

b. Insurance/ Cost-Bearing Considerations —the amount of liability that could result if there were a cause of action for “pure economic loss” could be enormous. There is a risk of liability in an indeterminate amount to an indeterminate class of people. The unpredictability would render the sale of insurance against such liability a very risky undertaking. Such liability therefore, may go uninsured. As a result, many D’s would not engage in valuable activities that entail a risk of enormous consequential economic loss if the activities are conducted negligently.

c. Net-Social Loss Considerations —When there is an emotional loss, it is a social loss and the defendant ought to be liable for it. When there is an

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economic loss to an individual, someone else may gain business, so we can’t say that there has been a net social loss.

d. Exceptions to the Rule 1. Misrepresentations2. Professional malpractice3. Special relationship of trust and confidence between P and D4. Physical damage to natural resources (economic loss acts as

a surrogate for a cause of action for physical damages to natural resources (Union Oil Co. v. Oppen—Pollution by the oil co. killed fish in the Santa Barbara Channel. This incident resulted in economic loss to Ps, who were fishermen. The state made no effort to sue the D so the Ps did. The Ps recovered in this very unique case that strayed from the bright-line rule. Recovery was probably permitted b/c there was not a proper P to bring the action and the D was a sufficiently large enterprise capable of bearing the liability. Overall, however, courts have decided not to stray from the traditional rule and thus have decided avoid the slippery slope by permitting some recovery and not others.)

H. Damages Themes1. Concern for full cost-internalization by Ds. How much liability do we threaten

D with?2. Tension between individual awards and administrative costs.3. The practical function of damages in a contingent fee system.4. Concerns about predictability and reliability of proof. The possibility of fraud

problem.5. Implication of rules for issues of principle

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