Professor KaltSection 3

Torts I

Ch. 1: IntroductionA. Introductory Materials

Tort Law is mainly governed by statutes Three Policy Goals of Torts:

1. Compensate Victims of Accidents2. Allocate Liability Fairly Among the Responsible Parties3. Minimize the Cost of Accidents, of Avoiding Accidents, and of Administering the

Tort System B. The Nature of Intent

Intent is a required element of intentional torts “intends” the consequence of his conduct if

1. His or her purpose is to bring about these consequences2. He or she knows with substantial certainty (KSC) that the consequences will result

from his actions. For KSC, it is that defendant knew that it would happennot just that it “might” happen or

even that there was a “high risk that it would” happenand he did it anyways, even if plaintiff can’t prove that that was why he did it.

In many states, young children are deemed incapable of having the intent to commit intentional torts until a certain age (Garratt v. Dailey)

Ch. 2: Intentional TortsA. Special Cases in Intent

Mistake : Does not vitiate intent. If someone had intent, the fact that it was based on mistaken pretenses is irrelevant. (Ranson v. Kitner)

Insanity : Does not vitiate intent. Again, so long as had the requisite purpose or knowledge to a substantial certainty, it does not matter that he acted based on some insane perception of the world. This does not mean that insane people always have intent; it just means that people with intent might be basing it on something insane, and if so we don’t care. (McGuire v. Almy)

Transferred Intent : o If intended to commit one of the five classical intentional torts (see below) against A,

and ended up committing it against B, will be liable to B. Even though did not intend to commit the tort against B, the intent to commit it against A transfers and the intent element is thereby satisfied. (Talmage v. Smith)

o If intended to commit one of the five classic intentional torts, but ended up committing a different one of the five, he will be liable for committing the other tort, because the intent to commit the first tort transfers.

B. Classic Intentional Torts 1. Battery (Cole v. Turner)

I. acted with intent to cause a harmful or offensive touching to ’s personII. That intentional act caused a harmful or offensive touching to ’s person

Once has intent to commit a battery and causes a battery, the fact that the actual damages are far more serious than intended is irrelevant. Because meets the elements of the trot, he is liable for the full extent of damages that he ended up causing. (Wallace v. Rosen)

A “touching” does not necessarily need to be directly on ’s person; it might include something that is touching or wearing. (“Push Shirt” Example) (Fisher v. Carrousel Motor Hotel, Inc.)

2. Assault (*Rarely adds anything; so don’t bring up unless only tort or adds something) I. acted with an intent to cause a reasonable apprehension in of an imminent battery

II. That intentional act caused to suffer a reasonable apprehension of an imminent battery (I de S et ux. v. W de S) The “reasonable” part of the test subsumes lots of other questions (i.e. if is not

actually in danger of suffering a batter, it might still be an assault if reasonably thought otherwise)

Imminent means imminent . If is threatening a future battery, or is merely preparing to commit the battery, or is on the way to commit it, that is not enough. must be “in range” and must be overtly acting. “Apprehension” here means that expected the imminent battery, not necessarily feared it. (Western Union Telegraph Co. v. Hill)

Not every battery has an assault!3. False Imprisonment

I. acted with an intent to confine or restrain in a bounded area (Big Town Nursing Home, Inc. v. Newman)

II. That act caused to knowingly be confined or restrained in a bounded area (Parvi v. City of Kingston)

III. lacked legal authority to do this Means of confinement or restraint might include: physical barriers, force or threat of

force, (invalid) use of legal authority, and maybe even threat of damage or loss to reputation or property. The Restatement and some states allow actual injury to substitute for knowledge of confinement. There is no majority rule.

is not confined if he or she knows or reasonable should know of a reasonable means of escape. (Even if doesn’t know about the escape opportunity, might think does, and so might not have intent)

False imprisonment will not be found if stayed in the space of her own volition. (Hardy v. LaBelle’s Distributing Co.) The point at which ’s actions amount to actual restraint may be hard to pin down: Threat of force or physical barriers are easy: threat of damage to reputation or property is tougher but at some point, may rise to the level of false imprisonment. This would be jury question.

False Arrest is a subset of false imprisonment. can show that an arrest was proper if he had lawful authority to arrest and was later convicted of the offense for which he was arrested. Of course, this is not the only way for to win (there are many reasons why might not be guilty of the crime even if the arrest was proper). But can also prevail by showing he or she had a warrant, or that he or she had probable cause to make the arrest. (Enright v. Groves)

4. Trespass to LandI. Intent by to invade real property

II. Invading the real propertyIII. The property is ’s IV. There is no authorization by

No damages necessary to prove this tort; however, if there are damages, it will vary upon how invaded upon the property. (Dougherty v. Stepp)

The “invasion” can be by ’s person or by any other person or object that causes to go onto the property.

This includes invasion of small zones of air above the land and ground below. How far above or below goes is subject to balancing that turns on the extent of the interferences with ’s use or enjoyment of the land. (Herrin v. Sutherland)

5. Trespass to ChattelsI. Intent by to use or intermeddle with a chattel

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II. Chattel was in ’s possessionIII. This results in either:

a) Impairing the chattel’s condition, quality or value (Glidden v. Szybiak) b) Depriving of the use of the chattel for a substantial period of time or completely

dispossessing of the chattelc) Harm to or a legally protected interest of ’s (CompuServe Inc. v. Cyber

Promotions, Inc.)C. Conversion

I. An intentional exercise of dominion over a chattel that so seriously interferes with the right of the owner to control it that may justly be required to pay the the full (prior) value of the chattel. (Pearson v. Dodd)

Conversion is distinct from trespass to chattels because of the remedy: forced sale instead of just recovering the amount of the diminution in value.

There are several cases where the remedy will be the same for trespass to chattels as it is for conversion. If completely dispossess of the chattel and there are no other damages, for instance, the remedy in both cases will be for the full value of the chattel. The same is true if completely destroys the chattel. The difference is that trespass to chattels can encompass less-than-complete dispossession or destruction, as well, and it can more easily give rise to other dames (emotional harm, etc.) that result from the tort. Conversion will always involve complete dispossession or complete or near-complete damage to the chattel

In a conversion case, if purchase the chattel in good faith this might defeat ’s conversion claim. will have to show either that didn’t lose the chattel through theft, or that bought it from someone in the business of selling chattels like that. But if the chattel was stolen, and if the good-faith purchaser bought it less formally (like on Craigslist), will lose even if he was a good-faith purchaser. (Note that none of this permits from also suing the first person who got it away from him)

D. Intentional Infliction of Emotional Distress (A New Intentional Tort) I. Extreme and outrageous conduct by II. With intent to cause to suffer severe emotional distress (Slocum v. Food Fair

Stores of FL)III. Causing severe emotional distress (State Rubbish Collectors Ass’n v. Siliznoff)

Requires damages (unlike the classic intentional torts) High bar of Emotional Distress. Judges are more likely to take IIED cases away from juries. Transferred intent does not apply to IIED (Taylor v. Vallelunga) must have intent to commit this tort against this . In some jurisdictions, recklessness, a lower standard than intent, suffices for the

intent element of IIED. There is no majority rule on this point. High standard for this tort. The intentional behavior that caused the tort must be

severe. (Harris v. Jones)

Ch. 3: PrivilegesWhat is a Privilege? Something that can establish as an affirmative defense for an action that would otherwise be an intentional tort. Defenses to intentional torts. Burden on to prove it. A. Consent: is not liable for an otherwise tortious act if consented to ’s act.

Whether reasonably thought consented (Hackbart v. Cincinnati Bengals, Inc.)

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Consent can be expressly spoken or written (Mohr v. Williams) Consent can also be implied by context (O’Brien v. Cunard S.S. Co) Consent given by mistake is valid ( can plead it; will lose) unless induced the

mistake (e.g., though misrepresentation, fraud or duress) or otherwise should have known that was giving consent based on false pretense. (De May v. Roberts)

In most states, consent to a criminal act is not valid ( cannot plead it; will win). Some states disagree and allow consent to be pled by in this circumstance ( can plead it; will lose), though those states typically don’t if the criminal statute was intended to protect people in ’s position (e.g., statutory rape), in which case it is less appropriate to use victim’s consent to prevent her recovery in tort.

B. Self-Defense: is not liable for an otherwise tortious actusually batteryif:I. It was performed under a reasonable belief by that he or she is being attacked or is

about to be attackedII. It constituted reasonable force

Reasonable force means two things: that it was reasonable to use force, and that the amount of force used was reasonable.

Retaliation is not allowed Verbal provocation is irrelevant It is about reasonable response to an imminent physical danger Reasonable mistake does not vitiate the privilege A minority of states require retreat when doing so is reasonably safe, though

even these states typically don’t require to restart from his or her home (Note that even when there is not a formal/automatic retreat requirement, a jury might still find acted unreasonably in a particular case by failing to retreat)

C. Defense of Others: If a third party would have privileged to use self-defense, is privileged to use reasonable force on the third party’s behalf

D. Defense of Property: is privileged to use reasonable force to prevent the commission of a tort against his property (note: once the tort is complete, the rules for recovery of property apply instead).

The amount of force that is reasonable will be less than that for self-defense, and deadly force will almost never be reasonable for property. (Katko v. Briney)

E. Recovery of Property: may be privileged to use reasonable force to recover a chattel, as opposed to relying on legal process. (Hodgeden v. Hubbard)

must be in an uninterrupted “fresh” or “hot” pursuit of . A mistakeeven a reasonable onevitiates the privilege, except for shopkeepers who

reasonably suspect shoplifting. (Bonkowski v. Arlan’s Department Store)

In all of these privileges, the force must be reasonable, and more things are reasonable to defend a person than are reasonable to defend property. Recovering property allows for even less force, all other things being equal.

F. Necessity: may commit an intentional tort against if reasonably necessary to avoid injury or damage. The threatened damage must be

I. Natural/ExternalII. Substantially more serious than the interference with ’s interestIII. Sudden, unexpected, and temporary (otherwise they would have to negotiate)

If is acting to prevent threatened damage to the public at large (public necessity), the privilege is an absolute and need not pay for damages caused by ’s property. (Surocco v. Geary)

If is acting to protect a personal interest (private necessity), he must compensate for actual damage to ’s property, but under the law, he is still

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“privileged to act as he did. Any privilege that would otherwise have had to eject will be trumped by ’s necessity. (Vincent v. Lake Erie Transp. Co.)

G. Authority: Otherwise tortious acts may be rendered non-tortious if performed pursuant to legal authority (such as by police or wardens)

H. Discipline: The common law permits parents, teachers, etc. to use reasonable force to discipline their children, students, etc. without being liable for intentional torts.

Ch. 4: NegligenceI. In order to establish negligence, a generally must prove that had a duty to to exercise some

level of care, and breached that duty, causing damage to . (Lubitz v. Wells)1. Duty2. Breach3. Causation4. Damages The most common duty is the duty to exercise the level of care that a reasonable prudent

person would use (called the duty of ordinary care or the duty of reasonable care). (Blyth v. Birmingham Waterworks Co.)

The Learned Hand Test states that conduct falls below reasonable care when B<PL. That is, if burden for the part of avoiding a risk of harm was less than the risk itself, then the party is negligent for undertaking that burden. The burden (B) equals both the cost of taking steps to avoid the risk and the benefits sacrificed as a result (you can think of B as either the cost of adequate precautions or the benefit of the inadequate ones). Risk of harm equal the magnitude of the harm it occurs (L) times the probability of it occurring (P). For B in the Learned Hand Test, keep substitutes in mind (i.e. if there are alternative ways of obtaining the benefits, this will reduce (B). (Chicago, B &Q.R. Co. v. Krayenbuhl and United States v. Carroll Towing Co. )

The Learned Hand Test is only one way to determine reasonable care. If a case doesn’t lend itself to using the Learned Hand Test, you can just find a different way to assess what a reasonable person would do.

A. Duty of the Reasonable Person (Vaughan v. Menlove) A customary practice can be used as evidence of the care (or its lack) exercised by a

reasonable person in that context. It does not form the standard itselfit is neither necessary nor sufficient evidence as a matter of lawbut it can be very persuasive evidence. Still, the underlying question will always remain what the reasonable prudent person would have done, not whether a custom was followed or not. (Trimarco v. Klein)

The reasonable prudent person standard is objective, with some subjective components. The reasonable person is a person of ordinary intelligence, perception, and memory with the physical characteristics (Roberts v. State of Louisiana), abilities, and disabilities of the actor, and nay relevant additional specialized knowledge, skills or experience that the actor has. (Delair v. McAdoo) In other words, the actor’s general mental characteristics are not taken into account, and neither are any deficiencies in the actor’s specific knowledge and experience.

The context of the specific situation in which found him, or herself must be considered as well. (Cordas v. Peerless Transportation Co.)

A child is held to a mostly subjective standard: the level of care of a reasonable child of similar age, intelligence maturity, and experience. Furthermore, similar to what we saw for intentional torts, in many states children under a certain age cannot be considered negligent at all (for example, there is no such thing as a reasonably prudent 2-year-old).

Children engaged in adult activities (usually things involving motorized vehicles or heavy equipment are held to the (more objective) adult standard. (Robinson v. Lindsay)

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In most states, insanity is not a defense to negligenceas with other cases involving general mental conditions, the insane are held to the standard of a person of ordinary intelligence, perception, and memory. (Breunig v. American Family Ins. Co.)

B. Duty of Professionals Professionals (doctors, nurses, lawyers, pharmacists, accountants, pilots, and others in jobs

that require lots of training and education and are governed by detailed and coherent internal standards) are subject to an objective standard that dispenses with the usual language of reasonableness. Instead of being partially subjective--as we would usually be about specialized skills and experience--we hold professionals to the standard of an ordinary member of the profession (not an “average” member; that would make about half of the profession always negligent). That is, they are expected to exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession. (Heath v. Swift Wings, Inc.)

Specialists are subject to the standards of other ordinary members of their specialty, if the specialty is relevant to the case.

Unlike in RPP cases, the custom of the profession is generally dispositive of the issue of the duty of a professional, regardless of its reasonableness. In other words, defendants who comply with the professional custom are not negligent, and those who do not comply are negligent. The standard is purely objective. Establishing this standard typically requires an expert witness.

Liability for malpractice cannot be premised on a mere disagreement over, or failure of, technique or tactics. Professionals are humans too! (Hodges v. Carter)

Most medical malpractice cases define the professional standard as that which doctors in the same or a similar locality do. This allows for diversity in practices and allows for appropriately lower standards in areas with fewer medical resources. Some states use a national standard instead. (Morrison v. McNamara)

A subset of medical malpractice is informed consent (IC): a patient may sue if she is not told of a risk of injury from a medical procedure, she has the procedure, and she then suffers that injury. In some states, doctors in IC cases are held to the baseline professional duty of care: we require plaintiff to show that the ordinary level of professional care (i.e., the customary practice) mandates disclosure, and thus that the failure to disclose the risk is a breach of that duty. But other states subscribe instead to a “reasonable patient” rule (invented in the Canterbury case), under which a doctor must disclose material risks (i.e., those that a reasonable patient would want to know and would carefully consider). There is no majority rule (be careful on this when reviewing previous years’ exams, because the baseline was the majority rule until recently). The Canterbury case adds objective causation to normal subjective causation necessary for all torts. (Scott v. Bradford)

C. Informed ConsentFor informed consent, we must also examine causation--after duty and breach have been found--to see whether disclosure would have changed a patient’s decision. Almost all states require another rule invented in the Canterbury case: plaintiff must make an objective showing (that a reasonable patient in plaintiff’s position, upon learning of the risk, would have changed her mind and not had the procedure done) in addition to the usual baseline subjective showing (that the patient herself would have changed her mind had the disclosure occurred).

Doctors also have a duty to disclose any profit or research interests of their underlying their treatment. (Moore v. The Regents of the University of California)

D. Negligence Per Se (Don’t Forget Ordinary Standard of Care or Other Exception) 1. Statute was meant to protect people like from harms like what befell

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2. Statute must be a good “fit” for negligence

Proving a violation of a criminal or regulatory statute or an administrative regulation may be sufficient to establish the duty and breach elements of negligence. This is often an easier way to do it than using the usual standard of ordinary care, etc. would be. It is called negligence per se. Remember that it is an alternative method of establishing negligence, not an exclusive one. That is, a plaintiff might be able to show a breach of both sorts of duty. The two inquiries are separate.

Before the statute can be used to provide a duty in this way, the court must find that the injury at issue is of the sort that the statute meant to prevent, and that the victim is of the sort that the statute meant to protect. (Osborne v. McMasters)

The court must also decide if the statute is appropriate for translation into a civil duty. Some factors they must consider include: (Bad “Fit” Options)

* whether it creates difficulty in proving causation and attenuated causation; (Stachniewicz v. Mar-Cam Corp)

*MOST IMPORTANT whether it creates a new duty [this is the most important and oft-confused factor]; (Perry v. S.N. and S.N.)

* whether it provides liability that is too strict (i.e., too detached from defendant’s level of care); (Ney v. Yellow Cab Co.)

* whether it provides for disproportionate liability;

* whether it represents too vague of a duty.

Once established, the effect of negligence per se (NPS) varies from state to state. In the majority of states, duty and breach are established automatically for unexcused violations of a usable statute. Excuses, which the would then have the burden of proving, include: incapacity or reasonable inability to comply, reasonable lack of knowledge of violation (ignorance of facts, not law), emergency, and greater harm from compliance than violation. In a minority of states, the burden shifts to to show, more generally, that he exercised reasonable care (which does not, in practice, lead to results that are all that different from the majority rule). Finally, in a small minority of states, NPS is only ever evidence of unreasonableness. (Martin v. Herzog)

Compliance with a statute may be evidence of reasonable care, but it will not establish any sort of “non-negligence per se.”

Contributory Negligence in the case of (Zeni v. Anderson) is also often considered to establish negligence per se.

E. A Word about Evidence and Proof

Direct evidence is not required to prove the elements of a tort Circumstantial Evidence is okay; it is just evidence that proves a point through inference. If

a reasonable jury could draw the inferences (or chain of inferences) that a party is trying to establish, then it is permissible for the jury to rest its decision on the evidence that produced those inferences, however circumstantial that evidence may be. (Goddard v. Boston & Maine R.R. Co, Anjou v. Boston Elevated Railway Co., Joye v. Great Atlantic & Pacific Tea Co.,

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Ortega v. Kmart Corp., Jasko v. F.W. Woolworth Co., and H.E. Butt Groc. Co. v. Resendez)

F. Res Ipsa Loquitur (For When You Don’t Know What Happened)

If cannot allege what exactly has done, it may suffice to allege ’s negligence through negative inferences namely: (These things will help survive a motion to dismiss or motion for summary judgment, which ordinarily would be granted when plaintiff has so little evidence)

1. The accident is of a type that normally would not occur unless someone was negligent (Byrne v. Boadle)

2. exercised substantial control over whatever caused the injury, so it wasn’t someone else’s negligence here (McDougald v. Perry)

3. So therefore, the accident more likely than not as caused by ’s negligence. (Larson v. St. Francis Hotel)

’s res ipsa loquitur argument may provide enough to allow to win a directed verdict, but not necessarily; especially once the evidence is no longer viewed in the light most favorable to , the jury may decide that defendant should win

James v. Wormuth: No res ipsa loquitur because it was direct inference; so they know what happened so it won’t work

Res Ipsa Loquitur is a pre-Discovery defense against a motion for summary judgment or dismissal from

Ch. 5: Element 1 of Causation Causation in Fact A. “But For” Cause

“But For” Causation meaning that the damages at issue would not have occurred “but for” the negligence. (Perkins v. Texas and New Orleans R. Co)

The converse argument in opposition would be that there is no causation-in-fact because even if the party had not committed the tort, the damages still would have occurred. There is no reason why there cannot be more than one cause-in-fact of an injury. Indeed, there usually is. The fact that one thing is a cause-in-fact does not mean that a second thing isn’t as well. Put another way, it doesn’t matter whether a cause is sufficient or not; what matters is that it was necessary.

There must also be a causal link: the negligence at issue must be something that, more abstractly, makes the result more likely. Put another way, a “but for” cause will not be enough to establish causation-in-fact if it is a mere coincidence.

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B. Proving Causation To prove “but for” causation, must produce evidence to argue that more likely than not

caused the injury (Reynolds v. Texas & Pac. Ry. Co.) While it may be relevant, evidence that ’s tort could possible caused the injury will not

suffice by itself to get the case to a jury. (Daubert v. Merrell Dow Pharmaceuticals, Inc.) needs at least some evidence that ’s tort did cause the injury (Gentry v. Douglas Hereford

Ranch, Inc.) To fight ’s causation argument, however, defendant can try to use any evidence of

possibility, probability, or what have you, that casts doubt on plaintiff’s explanations. C. Concurrent Causes & Substantial Factor

Sometimes there are two causes, both of which are sufficient causes of the injury (Hill v. Edmonds)

Because of that, they cancel each other out as but-for causes, that is, neither is a “but-for “cause and under the “but-for” test both s would avoid liability.

In this situation, and only in this very rare situation of mutual cancellation, causation can be based instead on whether an individual cause was a substantial factor in causing the harm. This is an alternative to the “but-for” test, and it avoids allowing a who otherwise would be liable from getting out of it just because another did something negligent, too (and vice versa). (Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co.)

D. “Whodunit?”: Difficult Cases in Causation Where there are multiple possible tortious causes and no possible way for to pinpoint which

it was (e.g., two negligent shooters with no way of knowing which shot did the damage Summers v. Tice), the inability to sort out which it was will not necessarily deprive of the ability to recover. Instead, a court may simple shift the burden of proof on causation to multiple negligent s to get the 51% of the 50/50 issue.

Ch. 6: Element 2 of Causation Proximate Cause A. Foreseeability

(Sindell v. Abbott Laboratories) Market Share liability is used to apportion liability though this is not common and is limited to Sindell-like contexts. Don’t treat this as a majority rule. If a business cannot identify itself as a different entity (i.e. “the pills in question were green, and ours were pink”) then they would share their market share.

Less a matter of fact and logic than it is a matter of how broadly the court wishes to allow a to be held responsible for damages he or she causes-in-fact: scope of liability (Ryan v. New York Central R.R. Co.)

If someone is susceptible to something already if damages where not what expected, it doesn’t matter, there is proximate cause there. “Eggshell Skull Doctrine” (applies to each )

Whether the injury was a foreseeable result of ’s negligence. Was it within the scope of the risk that created? (Overseas Tankship Ltd. v. Morts Dock & Engineering Co.) THIS WILL OFTEN BE A JURY QUESTION

In most states, the type of accident is what must be foreseeable, rather than the precise method of its occurrence or the magnitude of the injury.

The more foreseeable it is, the more likely was the proximate cause. Following Palsgraf v. Long Island R.R. Co., we may also ask whether the scope of the

risk extends to in a positional sense. If negligently crashes his car into another car, a pedestrian who gets mangled on the sidewalk next to accident is within the scope of the risk but a pedestrian three block away who gets injury by shattered glass is less likely to be in the scope of the risk.

Remember:1. Scope of the Risk

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2. Line-Drawing3. Not Enough of These Questions Go To Jurys (Yun v. Ford Motor Co.)

B. Intervening Causes Intervening Causes: Causes-In-Fact of an injury that arise subsequent in time to ’s

negligence, may or may not supersede ’s negligence. A superseding cause is an intervening cause that cuts off ’s responsibility or, more

precisely, forces a conclusion that ’s negligence was not a proximate cause of ’s injury An intervening cause is more likely to be superseding if it is unforeseeable. As usual,

foreseeable does not mean foreseeable in the lay sense of the word, but rather deals with the scope of the risk. Applying this to intervening causes, we ask whether the occurrence of the intervening cause is within the scope of the risk of ’s negligence.

Be sure to define foreseeability with enough generality, the specific way that something occurred, may not be foreseeable, but the category of harm is; it is only the latter that matters for foreseeability.

An intervening cause is more likely to be superseding if it is independent of ’s negligence as opposed to flowing from it. Assuming that causation-in-fact was already established, ’s negligence will always “cause” the intervening act in the sense of allowing it to result in damages; what we mean by “dependence” here is something more. An independent intervening cause is something like an act of God or an epileptic seizure (Derdiarian v. Felix Contracting Corp.), which would have happened regardless of ’s negligence (even though it wouldn’t have led to the same result). A defendant intervening cause is one for which the was the cause in fact.

Example : a battery in which the intended target ducked, and plaintiff was hit instead; because the ducking was caused by ’s initial tortious act, the ducking is the depending intervening cause.

A criminal act or an intentional tortious act by a 3rd party are not necessarily superseding causes, but they are very likely to be (Watson v. Kentucky & Indiana Bridge & R.R. Co.) There is plenty of interplay between these categories, though. In some cases, the criminal act is somewhat dependent, and thus unlikely to be held to be superseding. In some other cases, where is no such foreseeability that the act is not superseding; this is generally when the crime is squarely within the scope of the risk.

“More likely” does not mean “certain.” Foreseeable and dependent intervening causes may turn out to be superseding; extraordinary and independent ones may not.

As a matter of law, it is never superseding cause that a reasonable rescuer will attempt to save ’s victim, or that the victim will attempt a reasonable escape. (McCoy v. American Suzuki Motor Corp.)

It is not usually a superseding cause that the victim will seek medical treatment and suffer medical malpractice, or that will suffer a subsequent injury as a result of his -caused weakened state.

still must establish duty, breach, causation-in-fact, damages and the rest of proximate cause (i.e. there may be other intervening causes as well, and these rules don’t affect them.)

C. “Public Policy” 1. Social hosts cannot be a proximate cause of harms to the victims of their drunk-driving

guests (Kelly w. Gwinnell) 2. Defendants cannot proximately cause harm to plaintiffs who had not been conceived when

the operative injury was inflicted (Enright v. Eli Lilly & Co.)Ch. 12: Defenses

A. Contributory Negligence (Minority Rule/Rejected by Most States) (Butterfield v. Forrester) Precludes from prevailing if he was at all a negligence cause of the injury, regardless of

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the extent of ’s negligence. Exceptions:

1. can recover if had the Last Clear Chance to prevent the injury. (Davies v. Mann)

2. Remote Contributory Negligence: Treating more forgivingly when determining if he or she was a proximate cause of his or her injury. When the proximate cause analysis is done, it is done more conservatively.

B. Comparative Negligence (McIntyre v. Balentine) can still recover if she is negligent, but has her award reduced by the percentage of her

fault. Some states use Pure Comparative Negligence in which can recover something even

if she is 99% responsible. Most states, however use “Modified Comparative Negligence” where ’s recovery is

reduced according to her percentage of fault to a pointhe or she cannot recover anything if he or she is mostly at fault (more than 50% in some states, 50% or more in others). Modified comparative negligence does not function precisely like contributory negligence at that point, though, because it does not use exception like last clear chance.

’S NEGLIGENCE IS GENERALLY NOT A DEFENSE TO INTENTIONAL TORTS!

If unreasonably fails to mitigate damages, he or she cannot recover for the resulting incremental increase in damages.

C. Express Assumption of the Risk (Seigneur v. National Fitness Institute, Inc.) If is injured but had contracted not to hold responsible for such injuries, the contract

will be enforced to bar suit unless:1. The contract contravenes public policythis mainly includes contracts for essential

services where had no real bargaining power; or ’s tort was an intentional or wanton-and-willful one

2. The injury was medical malpractice3. The contract waived application of a safety statute

D. Implied Assumption of the Risk (Most Jurisdictions No Longer Use This) (Rush v. Commercial Realty Co. and Blackburn v. Dorta)

must have actual knowledge of the risk (“scope of the risk”), have an appreciation of its magnitude, and must voluntarily encounter the risk.

Encountering a risk while acting pursuant to a reasonable necessity means that the encounter was not voluntary, and assumption of the risk does not apply.

Assumption of the risk is all or nothing; if it applies, ’s claim is completely barred. While contributory negligence states still use implied assumption of the risk, almost all

comparative negligence statesand thus almost all stateshave rejected the doctrine of implied assumption of the risk.

Instead, they either say that has breached no duty, or they subsume the question into the general comparative negligence analysis.

(Remember: In almost every jurisdiction, IAR is not used anymore, so don’t talk about it unless you have some reason to believe that you are in one of the few jurisdictions where it applies.)

E. Statutes of Limitations (Teeters v. Currey) Procedural rules limiting the time has to file a lawsuit. The SOL is subject to waiver (i.e. it is a “use it or lose it” argument for ), and equitable

tolling. An example of equitable tolling is for latent injuriesmost states begin the SOL clock only upon ’s constructive knowledge of the injury and enough facts that would start a reasonable toward discovering ’s apparent tortious causation of it. (Some states require more, others less)

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Other uses of tolling are where the victim is a minor child Also, where has fraudulently concealed the injury or his own conduct The Continuing Tort Doctrine allows suit for an entire continuous tort, starting the SOL

count only when the tort ends. F. Statutes of Repose

Gives a firm outer bound for the timing of suits. They are not subject to the discovery rule or to waiver. They are substantive, where SOL is procedural. The clock for them starts when performs the tortious action in question, regardless of

when the injury occurs or is discovered. G. Immunities (Can Sue ? and What Will the Duty Amount To?)

Spousal Immunity: Most states have completely abrogated this. Of the minority that keep it, most eliminate it at least partiallyfor things like intentional torts, car accidents, or obvious exceptions where the beneficial relationship that immunity purports to protect is absent. (Freehe v. Freehe)

Parent-Child Immunity: Most states have partially abrogated parent/child immunity. Most keep the immunity (or alternatively limit any duty) for actions that are core parental activities. Others eliminate immunity only for thinks like intentional torts, car accidents, and obvious exceptions where the beneficial relationship that immunity purports to protect is absent. (Zellmer v. Zellmer)

Inter-Sibling Immunity does not exist. Even in those situations where immunity has been abrogated, spouses and parents may face

a lighter burden on duty/breach in negligence cases. Governmental Immunity: In most states, governmental immunity has been voluntarily

waived, at least partially, by the government. (Like many states, the federal government has a general waiver of immunity but with numerous exceptions). State & Local Governments Where the governmental waiver of immunity applies, it allows suits against the

government for torts by public officialsunder these waivers the suit is against the government, and the official becomes immune. (Clarke v. Oregon Health Sciences University)

One common context in which most states waive immunity is for proprietary actions. Even when they are retained, governmental immunity and governmental-employee

immunity are generally limited to discretionary duties. (Deuser v. Vecera) Even without immunity, a government may not owe a duty to a particular citizen (e.g. there is not duty for the police to protect every single person who feels unsafe) (Riss v. New YorkStalker Case)

Immunity as to ministerial duties is rare. When the government undertakes a duty, however, it must perform it non-negligently. (Delong v. Erie County9-1-1 Case)

There won’t be immunity for when a government is acting as a proprietary because they are acting as a business (ex. Snack Bar in the Hospital)

Public Officers Legislators, prosecutors, judges, and the President get absolute immunity for torts

committed in the scope of their positions. Other officials typically only get qualified “good faith” immunity, though a minority of

states give total immunity to these officials. In either case, the immunity for these other officials only extends to discretionary actions; there generally is no immunity for them for ministerial actions. Keep in mind, though, that one’s ability to sue the government usually comes attached to an inability to sue the employee.

Public Employees Immune If :1) Government is not immune because of waiver

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2) Discretionary *if acting in good faith Qualified Immunity3) (Thus, not immune for ministerial)

Ch. 7: Joint TortfeasorsA. Joint Tortfeasors (What Do We Do with Multiple s?)

Joint and Several Liability: Each is liable for all the damages. In other words, it means that liability overlaps; that s are liable for more than just their individual “fair share” of the liability.1. Acting in Concert (always possible) (Bierczynski v. Rogers)2. Vicarious Liability (always possible)3. Indivisible Harm (if the jurisdiction keeps this)

J&S Liability makes much more sense when s have a right to contribution: the two are typically found together. That said, the most important policy issue in J&S Liability is who bears the risk of an insolvent/broke defendant. (Coney v. J.L.G. Industries, Inc.)

INTENTIONAL TORTFEASORS CANNOT COLLECT CONRIBUTION Comparative Negligence has led to the scaling back of J&S Liability for indivisible harm

in many states. Many states still have J&S for indivisible injuries, some others restrict it there only for

non-economic damages; for s with less than a certain amount of fault; for certain torts. While states have kept J&S liability for acting in concert and for vicarious liability, there is

not majority rule as to whether J&S is kept for indivisible harms. (Bartlett v. New Mexico Welding Supply, Inc.)

B. Satisfaction (What Do We Do Now That There is J&S Liability?) Full Satisfaction: If has already collected full payment from one joint tortfeasor through

judgment or settlement, there is full satisfaction and cannot proceed against any other of the joint tortfeasors. (Remember idea of being “made whole again”). The settler may proceed against them, though, to obtain contribution.

Partial Satisfaction: Partial satisfaction does not preclude ’s suit or collection against remaining joint tortfeasors, but he partial satisfaction is subtracted from any judgment against them. (Bundt v. Embro) 1. pro rata : reduction is made by percentage, and puts the risk of the initial settlement

being good or bad on ’s shoulders OR total minus partial satisfaction % settling represents

2. pro tanto : reduction is made dollar for dollar, and puts the risk of the initial settlement being good or bad on ’s shoulders OR total minus partial satisfaction in dollars

Hypothetical Pro Rata Pro Tanto$100K1 40%2 60%

& 1 settle for $30K

(Total Minus Partial Satisfaction % settling represents)

$100K40%=$60K is what 2 pays

(Total Minus Partial Satisfaction in dollars)

$100K$30K=$70K is what 2 pays

If has received money from a “collateral source” because of the injury (e.g. life insurance or a benefactor not involved in the injury), in most states this is not subtracted from a judgment as a partial satisfaction would be.

C. Contribution and Indemnity Contribution: A who is J&S liable and who paid more than his fair share can seek

contribution against other joint tortfeasors who paid less than their fair share. (Knell v. Feltman)

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It is not required that have sued these other joint tortfeasors, but it is required that could have done so at some point (e.g., if a party is immune from ’s suit, cannot seek contribution from that party such as in Yellow Cab Co. of D.C., Inc. v. Dreslin).

Indemnity: If ’s share is 0% and the contributors is 100%, contribution is for the full amount paid.

Majority Rule: Intentional tortfeasors cannot seek contribution from each other. Good Faith Settlement: In most states, a good faith settlement renders the settler immune

from contribution actions brought by other joint tortfeasors (Slocum v. Donahue). Ch. 8: Duty of Care

A. Where Tort Meets Contract: The Privity Requirement It is no longer always impossible for C to recover for the negligence of A when A

breached a contractual duty it owed to B. We now say that you owe a duty to those who might foreseeably be injured by your negligent affirmative actswhat we’ve been saying about negligence all along this semester. One exception, though: in most (not all) situations, lawyers owe a duty only to their clients. (Clagett v. Dacy) The exception to this is in situations where the interests of the client align perfectly with the interests of the third party, then the third party will be able to sue the lawyer (beneficiary in will example).

Nonfeasance (not performing the contract) gives a right to sue only in contract, not tort. Only Sue Under K (Winterbottom v. Wright)

Misfeasance which includes performing the contract improperly, but also fraud (lying about nonfeasance, or entering a contract with no intention of performing) or partial performance can be addressed in a tort action too. Can Sue Under K & Tort (MacPherson v. Buick Motor Co.)

B. The Duty to Rescue and the Duty to Protect In almost every state, there is no general duty to rescue (Commonwealth v. Peterson)

Exceptions:A. Business Toward Their CustomersB. Bosses and Their Helpless EmployeesC. Person Creating the Harm (Even if Not Negligent)D. Person Controlling the Instrumentality of the HarmE. Person Who Has Undertaken a Rescue*Once a duty applies, only needs to be reasonable (assuming that RPP is the only duty that applies.)

In almost every state there is no general duty to protect people from others.Exceptions:A. A Special Relationship Between and ( is Common Carrier, Custodian,

Parent, Employer) (A University Does Not Count Hegel v. Langsam)

B. A Special Relationship of Control or Responsibility Between and the third party (Psychiatrist and Patient Who Kills , Boss and Worker Who Hurts Customers) (If a wife knows her husband is sexually assaulting young girls J.S. and M.S.V.R.T.H.)

C. Negligent Infliction of Emotional Distress (Daley v. LaCroix) To recover, s no longer need to have a contemporaneous physical impact from the thing

that upset them. However, if there are not contemporaneous physical injuries, the emotional reaction must

manifest itself with definite and objective physical effects before can recover. It must be shown that a normal person would suffer an emotional reaction passing that

same threshold (though once that is shown, can recovery for the entirely of his emotional

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reaction to ’s tort). If there is contemporaneous physical harm, it’s not an NIED case and can recover for

the concomitant emotional harm without these extra showings. (IIED has a much higher bar so it doesn’t concern itself with these things) To recover for NIED from witnessing an injury to another caused by ’s negligence, many

states require that herself have been in the zone of danger of the physical injury. A strong trend, whoever, is for states to requires instead that contemporaneously witness

the actual impact on the victim be a close family member of the victim, and suffer more distress than a typical bystander would (the last factor is pretty much automatically covered by the second one.) (Thing v. Lachusa)

D. Duty Owed to the Unborn A viable fetus typically can recover for injuries suffered in utero if it is born alive.

(Endresz v. Friedberg) In most states, it can also recover even if it is not born alive, at least for post-viability

injuries, and maybe even for pre-viability injuries if there is sufficient evidence of causation.

Parents can recover for the damages that they themselves suffer in either case. If a child is born, and but for ’s negligence the parents would have aborted him or her

because of a defect, most states allow the parents to sue for “wrongful birth”. Damages may include emotional injury, extra cost of child-rearing caused by the defect, or in some places the entire cost of child-rearing. None, however, that he “plusses of parenting” should be subtracted from any of these damages. (Procanik v. Cillo)

A small minority of states allow the child to sue for wrongful life, the argument that but for ’s negligence ’s parents would have aborted him or her. Even those states that allow it in general limit damages to the medical expenses presented by the defect; they don ot allow recovery for the existential torment of a traumatic life, because the alternative of non-existence is considered to be even worse (or at least incommensurable) as a matter of law. (Procanik v. Cillo)

Most states allow negligence claims for wrongful pregnancy, usually from informed consent violations or botched sterilization. The damages typically include the cost (including pain and suffering) from pregnancy and labor. Same states allow damages for child rearing costs, but only when the parents’ reason for wanting a child was economic.

Ch. 9: LandA. Injuries Off the Land

landowner has no duty to protect off of the premises from natural occurrences on/from ’s land. (Taylor v. Olsen)

For things involving human agency, though owes a duty of reasonable care. Trees are treated like the latter, no the former. owes a duty of ordinary care if he has knowledge or constructive knowledge that a tree may cause damage.

B. Trespassers and “Licensees” In most jurisdictions, owes a duty of care to known or anticipated trespassers.

Jurisdictions vary as to what duty owed they range from a duty not to wantonly injure up to a duty of reasonable care, with many jurisdictions in between. A majority also require a duty of for active operations to actually-known trespassers.

A licensee is someone on ’s property for his own purpose. (Social Guests, Solicitors, Anyone Who Isn’t an Invitee)

’s Duty To A Licensee: (Salevan v. Wilmington Park, Inc.)1. To Not be Wilful or Wanton 2. Warn of Hidden Dangers That are Unknown to Licensee but Actually Known to 3. When conducting “active operations” on his property, he owes a duty of a

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reasonable care not only to invitees but licensees (or actually-known trespassers). A social guest does not become an invitee merely by providing an incidental service to

but at a certain point, licensees can become invitees (or even trespassers) and vice versa. Invitees are owed a duty of reasonable care. (Barmore v. Elmore)

C. Invitees and When These Categories are Irrelevant Invitees are business visitors: customers, employees, delivery, repair etc. (Campbell v.

Weathers) The landowner owes invitees and unreduced duty (typically ordinary care) Invitee status has limits. If you stay past the basis of your invitee status, and/or go past

the physical area of your invitee status, you may become a licensee (or maybe even a trespasser). (Whelan v. Van Natta)

’s limited duty to trespassers may be heightened as to children under the attractive nuisance doctrine. 1. The dangerous condition must be artificial2. must have actual or constructive knowledge that:

a. Children are likely to be on the premises (attracted by the attractive nuisance, which is not necessarily the thing that is dangerous).

b. The dangerous condition must present a very unreasonable risk of serious bodily harm.

3. The child must be unaware of the hazard or level of risk it presents because of their youth

4. need only exercise reasonable care in this case. Many states have abolished the categories of licensee versus invitee and just apply a duty

of reasonable care to both. There is no majority rule. Some states, though a clear minority, abolish the trespasser/non-trespasser distinction too (put another way, a majority still apply a reduced duty toward trespassers.) (Rowland v. Christian)

Reasonableness still varies by context, so this does not set (what would otherwise be) trespassers and licensees on exactly the same footing as invitees.

D. Lessors and Lessees In most jurisdictions, landlords owe no duty to guests of their tenants other than in certain

exceptional situations. (Borders v. Roseberry)Hazard is:1) Unknown to Tenant; Undisclosed by LL; Constructively Known by LL2) To People Off the Land3) On Premises Leased for Admission to the Public before T had possession 4) Common Areas5) Broken K to Repair6) Negligent Repairs if T is Unaware

In some states, this doctrine has been largely swept away and the landlord owes the general duty of reasonable care. (Pagelsdorf v. Safeco Ins. Co. of America)

Coase Theorem: (Kline v. 1500 Massachusetts Ave. Apartment Corp. attacked in apartment hallway of apartment. Should LL pay to get security or tenants?) 1) Assuming no transaction costs, the same final result in a system will occur

regardless of the initial allocation of rights/duties/liability2) In the real world there are no transaction costs, so it makes sense to impose

liability on the side with the lower transaction costs associated with it. Ch. 10: Damages

1. Nominal Damages2. Compensatory Damages

i. “Special” Damages or Economic Damages

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ii. General Damages 3. Punitive Damages

Lump-Sum Money Damages Compensatory Damages: generally divided between economic (medical expenses, lost wages,

loss of services, loss of consortium, etc.) and non-economic (general) damages (pain and suffering, disfigurement, etc.)

Future Damages: Typically require expert testimony on likely future needs, counterfactual career paths, discount rates, etc. Experts may also testify on the reasonable value of services for both past and future damages.

Discount Rate (“A Dollar Today Is Worth More Than In The Future”): Future economic damages must be discounted when they are being compensated with a lump sum paid today. Some courts set a standard one (usually 0-3%) while other calculate it ad hoc, at least for special categories of damages where price changes vary from the rest of the economy. Example: $80K for 35 years with 2% Discount Rate = $2 Million

Year01 80K x 98%2 80K x (98%)^23 80K x (98%)^34 80K x (98%)^4

35 80K x (98%)^35

What Damages Are Taxable?1. Compensatory Damages w/o Physical Personal Injury 2. Punitive Damages

What Damages Are Not Taxable?1. Personal Injury Damages

Motion for Remittitur Excessive Damages: can motion for a new trial or remittitur where can 1) accept a lower,

reasonable award or 2) reject it and opt for a new trial ( can either motion for remittitur and get remittitur or motion for a new trial and get remittitur)

Standard for Excessiveness in Damages: Whether a reasonable jury could have awarded this amount or whether the award shocks the judicial conscience or if the award was a result of passion or prejudice on the part of the jury.

Harm to Property Damages:1. Fair Market Value (Open Market, Voluntary Sale, Leisurely Seller and Willing Buyer at the Time

and Place of the Injury 2. + Sentimental Value (if there is any)

Punitive Damages To punish and deter and others from similar actions Majority Rule : Punitives require to prove wanton and wilful conduct by by clear and

convincing evidence

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Jury generally weights how bad the conduct was, and how effective a deterrent punitives would be

A jury is never required to give punitives, these things only make eligible for them.

Standard for Excessiveness in Punitive Damages: Same reasonable standard as for compensatory damages, but also look at proportionality between punitives and compensatories. What about a rich ? DOESN’T MATTER!

Majority Rule: Most states do not allowed insurance coverage for punitives. Ch. 11: Death

Wrongful Death *NOT A TORT: When you sue for wrongful death you are suing because of a tort that CAUSED the wrongful death

Who Sues on Behalf of ? (No Majority Rule) ’s Estate

Loss of Income Funeral Expenses

’s Next of Kin Loss of Services Loss of Support Funeral Expenses

Damages can be measured, respectively, from the decedent’s perspective (mainly lost earnings) or from the survivors’ (mainly lost support and services, and, in some states, emotional damages).

Survival: Majority Rule is that most states no longer terminate a cause of action upon the death of one of the parties. This applies both to cases in which the death is related to the issue of the suit, and those where it is not. In the former cases, some states combine survival and wrongful death to allow decedent to recover in a single claim for losses and suffering before death as well as post-mortem damages.

Defenses: Comparative Negligence Punitive Damages Die if Dies Because . . . Who Is There to Punish?

Ch. 13: Vicarious LiabilityRespondeat Superior: An employer is liable for the tort of its employee committed in the scope of employment, regardless of whether the employer is free from tortious conduct itself. (O’Shea v. Welch) ( Can Also Sue Employee Too) The employer may be liable directly under a regular negligence theory (e.g. negligent hiring or supervision) in addition to or instead of vicarious liability.

Frolic: The employer is not liable if the employee was negligent during work hours, but too far outside of the scope of employment Detour: The employer will be liable for employee’s detour negligence if it is the sort that the employer expects or tolerates

*There is only vicarious liability for an intentional tort by an employee when it is more directly within the scope of employment than negligence (e.g. battery by a bouncer at a bar). But it can be, so don’t say that there can’t be respondeat superior for intentional torts.

Independent Contractors (Maloney v. Rath) Employers are not vicariously liable for the negligence of their independent contractors, unless the tort

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was in the scope of the independent contractor doing something “non-delegable” (e.g. car repair, property maintenance, building design, inherently dangerous activities, and crimes) You are still liable for negligence or torts committed by independent contractor if they are working for you.

Joint Enterprise (Popejoy v. Steinle) A participant is vicariously liable for the torts of other participants, assuming the tortious act is within the scope of the enterprise. The vicariously liable person must generally have some control over the negligent party’s actions, as opposed to being a merely “silent” partner in the enterprise. The joint enterprise must also be a commercial one.

Cars (Malchose v. Kalfell) The owner of a car is vicariously (and/or directly) liable for the torts committed by someone to whom he or she lent it, in the scope of the lending.

Imputed Comparative NegligenceVicarious liability not only imputes negligence but also may impute comparative negligence. That is, if X would be liable for Y’s negligence vicariously were X a , he will also be saddled by Y’s negligence when he (X) is , and thus will have his recovery reduced or eliminated accordingly. X stands in Y’s shoes either way. This is generally limited, however, to vicarious liability relationship involving control (i.e. respondeat superior, non-delegable duties, and joint enterprise, but not car owner/lender).

Ch. 14: Strict Liability1. Wild Animals: Generally, owners of wild animals are strictly liable for the damage the animals do. 2. Domesticated Animals: There is strict liability for domesticated animals of known (or

constructively known) destructive tendencies. *In both cases, though, the damages must not be from something collateral (like tripping over the animal). They must be from something destructively “animal” about the animal.

3. Abnormally Dangerous Activities: Subjects the performer to strict liability for damages they cause. Restatement § 520:1. Risk and Magnitude of Harm2. Location3. Commonness4. Value to the Community5. Serious Risk of Harm Even After Reasonable Care (*most important)

If the benefits are significant but the costs are great and hard to avoid, we impose strict liability for the activity because we want the activity to continue, but we also want it to cover the costs it inflicts on others. Two Courses of Action:1. They can ban the activity in question (leading to criminal liability and perhaps

“negligence per se” civil liability)2. They can impose strict liability, which guarantees that all victims will be compensated

(not just victims of unreasonable carelessness) but also allows the activity to continue Under Negligence: If activity is “worth it” and is careful enough, the victims of any accident will be saddled with their lossesUnder Strict Liability: The victims will be compensated regardless

*Even if is subject to strict liability for engaging in an activity, still must establish causation-in-fact, proximate cause, and damages before will be liable. (NOT DUTY AND BREACH)

(Harder to establish proximate cause for strict liability than it is for negligence just as it is harder

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to establish proximate cause for negligence than it is for intentional torts.)

Defenses to Strict Liability; 1. Comparative Negligence2. Implied Assumption of the Risk (if jurisdiction keeps it)

Contributory Negligence is not a defense Ch. 15: Products Liability

1. Defective Products Liability1. Negligence

Manufacturer owes a duty of care to foreseeable users of the product, regardless of privity of contract, if the product would be likely to cause injury if negligently made. If that duty is breached, causing damages, is liable.

2. Express Warranty Manufacturers who make material representations about their products that turn out to be false are, effectively, strictly liable for damages caused by reasonable reliance on those representations. Privity is irrelevant.

3. Strict Liability (The Second Restatement §402A) Manufacturers are strictly liable for the defective products that were not materially altered after leaving manufacturer’s control (i.e. the defect must have been present when the product left the manufacturer’s hands)

Third Restatement (Majority Approach) Strict Liability? Negligence? Express Warranty?

Manufacturing Defects

Yes Yes Yes

Design Defects No Yes YesWarning Defects No Yes Yes

2. Design Defects: the inherent design of the product gives it dangerous propensities (some states purport to apply strict liability to design defects as well as negligence, but this generally becomes a negligence standard anyways. Majority Rule: Most follow the Third Restatement and only purport to apply a negligence standard.

Proving Design Defects:1. Risk/Utility Balancing Test (basically Learned Hand B<PL test that looks at benefits and risks of

particular design)

AND/OR

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Intentional Torts

2. Consumer Expectation Test there is a defect only if consumer has a reasonable expectation as to use or performance or safety therein of product, which the product fails to meet

Feasible Alternative Design Most states require, before a design can be ruled defective that there be a practically and economically feasible alternative design that would have avoided the injury in this case.

Inadequate Warnings or Instructions There is liability for inadequate warnings or instruction if there is a foreseeable risk of harm

that could have been reduced or avoided by an adequate warning. Some states follow the Second Restatement (strict liability and negligence available) but most

reflect the Third (negligence duty). Adequacy of a waring is based on:

1. the warning getting people’s attention2. informing them of the risk3. informing them how to avoid it

Defense for Failure to Warn Lack of constructive knowledge of the risk

There is a continuing duty to warn of subsequently discovered dangers, subject only to a negligence standard (even in jurisdictions that allow strict liability in warning cases).

Risks that are obvious do not require an additional warningthe obviousness of the danger is its own warning, by definition.

Hypersensitive plaintiffsMay still be entitled to warning, based on how widespread the hypersensitivity is, and how serious it is

Causation for Inadequate Warnings or Instructions1. For an individual to establish causation, he or she must be able to show that an adequate

warning would have prevented his or her damages. 2. Sophisticated user may not need as much warning 3. Someone who doesn’t follow directions may not be able to establish causation, though

plaintiff is entitled to a (rebuttable) presumption that he or she would have heeded an adequate warning.

Most states use comparative fault in product liability cases, including strict liability, but ’s negligence in not discovering the defect is not included in comparative negligence here.

Misuse1. Eliminate the notion of a defect, if the misuse is not reasonably foreseeable 2. Eliminate proximate cause (if the misuse constitutes a superseding cause)3. Show comparative fault (if is liable but was negligent too)

Commercial wholesalers and retailers typically are subject to strict liability for defective products to the same extent as manufacturers. If found liable, they can generally seek indemnity from others higher up on the “chain.” Sellers of used goods, however, are excluded from strict liability in some jurisdictions, either because the “chain” has been broken by the previous owner (who is presumably not a commercial retailer) or because the manufacturer is no longer strictly liable because the damages are not from a defect it caused (because it was not present before it left their hands).

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There is generally not strict liability for defective products for providers of services (including those who sold a defective product, but only incidentally to selling the service). Negligence remedy is always potentially around for all of these situations.

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