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TORTS OUTLINE
PROFESSOR BELL

INTENTIONAL TORTS
I.

BATTERY
A. Elements
i. INTENT (not to cause the injury, but to CAUSE THE CONTACT)
1. INTENT is the knowledge of SUBSTANTIAL CERTAINTY that harmful contact will
happen
2. desire or purpose a result will occur
II. CAUSE
iii. HARMFUL OR OFFENSIVE (harms persons dignity) CONTACT judged by reasonable
person standard
1. Harmful contact is impairment of physical condition, pain, or illness
2. Offensive contact offends a REASONABLE SENSE OF REASONABLE
DIGNITY
3. Split of authority
a. Majority of courts will determine if a REASONABLE PERSON would find
that contact harmful/offensive -- objective
b. Minority of courts will determine if DEFENDANT thought the contact was
harmful/offensive (Spivey v. Battaglia) -- subjective
iv. Consequences
B. GARRAT V. DAILEY (1955) (BAD LITTLE BOY WITH CHAIR)
i. Issue: Is D liable for battery, where he had the INTENT to pull the chair, knowing with
substantial certainty that the act would cause her to fall?
ii. Holding: Yes, the court erred in ruling that D was not liable for battery.
1. It is not enough that action was intentionally done; for liability, action must be certain
to happen.
2. If D had that knowledge in his mind that his action would result in her falling and
breaking her hip intentional battery.
iii. Rule: Actor is liable for battery if D, in the intent of pulling out the chair, knew to substantial
certainty that P would sit down on the chair he intended to pull away.
C. VOSBURG V. PUTNEY (1891) (KICKING INCIDENT)
I. Issue: Does P have a valid cause of action for assault and battery with intent, where Ds kick
excited a previous injury causing extensive pain and damage?
II. Reasoning: Yes.
1. To have cause of action for battery, P must show either that intention was unlawful
or that the D is in fault.
2. Had P and D been on playgrounds playing sports, D might have been free from
malice or negligence, since sports constitute the implied consent to physical contact.
3. But D kicked P in class time, when order was called. There is no other explanation
for the injury in a civil setting other than to kick someone with the intention to cause
harm.
III. Rule: If party intends to do unlawful act, and conduct causes injury, D is liable for battery.
(Liability for all resultant causes of battery, foreseen or not)
B. SPIVEY V. BATTAGLIA (1972) (FRIENDLY, UNSOLICITED HUG)
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I.
Issue: Is D liable for battery, where he claims that in giving P a friendly, unsolicited hug, he
knew that it would cause the paralysis on her face?
II. Holding: No. Ds cause of action for battery is dismissedthere is no way that anyone can
substantially be certain of the bizarre consequences that occurred in the case at bar: putting
someone in a headlock will not guarantee paralysis.
III. THIS CASE IS NOT GOOD AUTHORITY
1. While the jury determined Ds liability based on whether the D would have expected
the harm to result, the majority of courts determine a Ds liability based on what a
REASONABLE person would believe.
C. TALMAGE V. SMITH (1894) (STICK IN THE EYE)
I. Issue: Is D liable for battery, where, in throwing the stick at P, he had the intent to cause
damage in blinding him?
II. Holding: Yes, D is liable for battery with intent in throwing the stick at P.
III. Reasoning:
1. Though D had the intent to hit the first kid, the court transferred the intent to batter
one person to establish a battery against another whom the defendant did not intend
to hit.
2. If D had no idea that the boys were on the shed, that he did not intend to hit Smith
or P, but that he simply threw the stick to scare them and accidentally hit him, D is
not liable.
3. If Ds throwing of the stick was reasonable, D liable.
4. BUT, D threw the stick with intention of hitting P and that the force was
unreasonable to the extent that it blinded Pthis is an unlawful act.
IV. Rule of law: Actions conducted with the intent to cause contact and harm constitute as
intent. Also, transferred intent; defendant intended to batter but hit wrong person, still battery.
D. BRZOKSKA V. OLSON (1995) (HIV+ DENTIST)
I. Issue: Is D, HIV+, liable for battery, wherein his performance of consented dental
procedures caused offensive bodily contact to his patients?
II. Holding: No. Though D was HIV+, because Ds acts of dentistry were not conducted with
the intent to cause harm, D is not liable for battery.
1. RESTATEMENT OF TORTS 18(2): AN ACT NOT DONE WITH THE INTENTION
TO CAUSE HARM DOES NOT MAKE THE ACTOR LIABLE ALTHOUGH THE
ACT INVOLVES AN UNREASONABLE RISK OF INFLICTING CONTACT
2. Because HIV is transmitted through fluid-to-fluid contact, the reasonableness of
Ps fear of AIDS should be measured by whether or not there was a channel of
infection or actual exposure.
3. The fear of contracting AIDS is unreasonable without proof of AIDS exposure. Mere
fear of contracting AIDS, without actual exposure to HIV, is not sufficient to impose
liability on health care provider.
4. Contact is offensive and grounds for battery only if there is actual HIV exposure.
III. Ruling: The fear of contracting a disease without actual exposure to a disease-causing
agent is unreasonable, and therefore does not meet the standard for reasonable offensive
contact.
E. FISHER V. CARROUSEL MOTOR HOTEL (1967) (PLATE = EXTENSION OF BODY)
I. Issue: Does P have valid cause of action for assault and battery, where Flynn, employee of
D, snatched Ps plate away and shouted that because he was a Negro, he could not be
served in the club; where P was not physically harmed but embarrassed?
II. Holding: Yes.
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1. RESTATEMENT OF TORTS 2D 18: Intentional CONTACT WITH ANYTHING SO

CONNECTED WITH THE BODY THAT CAN BE REGARDED AS PART OF THE
OTHERS PERSON can constitute as offensive contact with his person, e.g., things
like a cane, clothing, [in this case, a plate], or anything directly grasped by the
hand.
III. Rule of law: Actions causing contact or HARM TO THE EXTENSION OF THE BODY
constitute as battery.
II.

ASSAULT
A. Elements
I. INTENT to cause harmful or offensive contact with the person OR
1. INTENT is the knowledge of SUBSTANTIAL CERTAINTY that harmful contact will
happen
2. The intent must be of immediate contact
II. IMMINENT APPREHENSION of the harmful contact
1. Apprehension constitutes a well-founded, reasonable beliefnot fearthat D will
make harmful or offensive contact with you.
2. Imminent: Person must have an apparent and present ability to make the
threatened contact and opportunity to make the harmful or offensive contact
3. Threats of future harm are not assault.
B. WESTERN UNION TELEGRAPH CO. V. HILL (1933) (Ill FIX YOUR CLOCK)
I. Issue: Is Sapp liable for assault, where Sapps intention to cause harmful/offensive act put P
in imminent apprehension, where Ps clock needed repair; where D was close enough to
touch P; where P solicited sex to D; where D felt imminent apprehension? Is there an issue
of respondent superior, where Western Union should be held vicariously liable for Sapps
actions?
II. Holding: Yes, Sapp is liable for assault. No, Western Union is not vicariously liable for
Sapps actions.
III. Reasoning:
1. Sapp was within reaching distance of Hill when he solicited sex with the result of
causing imminent apprehension to Hill.
2. Sapps solicitations were from his own selfish motives to satisfy his own desires,
and do not reflect the scope of his employment in representing Western.
3. In this case, the liability rests with the agent, not the master (i.e., Western Union).
IV. Rule of law: (1) Solicitation for sex conducted with the intent to cause harm, therefore
causing imminent apprehension in the other, is assault. (2) The master is not liable for its
agents actions of alleged assault if the agents actions are

III.

FALSE IMPRISONMENT
A. Elements
I. INTENT to
II. CONFINE ANOTHER WITHIN FIXED BOUNDARIES
1. To be wrongly confined, plaintiff must be confined to a physical area and cannot
have a reasonable avenue to escape.
a. If there is reasonable avenue to escape, P must not be aware of it
2. P should not have to place himself in personal difficultyif you are false
imprisonment of confinement
3. If D uses unconsented physical force against P, there is confinement against will
III. CAUSATION
IV. CONSCIOUSNESS OF THE PERSON BEING DETAINED
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B. GRANT V. STOP-N-GO MARKET OF TEXAS, INC. (1999)

I. Issue: Is D liable for falsely imprisoning P?
II. Holding: Yes.
III. Reasoning:
1. Elements of false imprisonment: (1) willful detention, (2) without consent, (3) without
authority of law.
2. Dispute in willful detention. P felt compelled to stay because he was afraid the
police was going come after him. Ps allegations are inconsistent with Ds
affidavit.
3. Dispute with willful consent.
a. According to P, Calhoun (1) grabbed his arm for 2 seconds and (2) told P he
could not leave and that he was calling police. P did not willfully consent to
stay in the storeDs calling of police forced him to stay in fear of being
chased after. Disputed issue.
4. Dispute in detention time. D relies on Resendez to argue that 10-15 detention is OK.
But, P was detained for longer than 15 minutes. It was 1 hr and 20 minutes.
C. HYPO, MR. BIG & THE EMPLOYEE IN THE CARRIER DOME
I. SU makes motion for directed verdict; will judge grant it, i.e., no reasonable juror could
conclude P has probably proven all the elements?
II. Elements of False Imprisonment
1. Intent
2. Confinementno one said she couldnt go, so she was not actually confined against
her will
a. Threat of immediate use of force (e.g., two big guys strongly suggesting
that you stay and meet with Mr. Big.) is enough to constitute that P was
confined.
b. Assertion of legal authority
i. If wearing uniform, and seem to be official, courts are likely to say
that there was confined against his/her will.
c. Moral pressure to stay is not enough. The threat that force will be used in
future is not enough.
d. Economic threat of losing job is not enough to constitute false
confinement
3. Causation
4. Consciousness
IV.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

A. Elements
I. INTENTIONAL OR RECKLESS ACT
II. Act must be EXTREME and OUTRAGEOUS CONDUCT
III. Causation
IV. Severe and emotional distress
1. Plaintiffs emotional distress must be so severe that no reasonable person could be
expected to endure it (Jones v. Clinton)
B. HARRIS V. JONES (1977) (SPEECH IMPEDIMENT)
I. Issue: Is D liable for inflicting IIED on P, where, in mimicking his speech impediment (with
the fair knowledge of Ps susceptibility) and causing him to be nervous at work, his (1)
intentional or reckless actions were (2) were extreme and outrageous, and that (3) there was
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causal connection between the wrongful conduct and emotional distress that led to (4)
severe emotional distress?
II. Holding:
1. Yes, Ds actions were found to be intentional or reckless, as well as extreme and
outrageous
a. Yes to 1 and 2, no to 3 and 4.
b. RS OF TORTS 46: one who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress is liable for tort.
c. RS 46 states that if the conduct EXCEEDS ALL BOUNDARIES
TOLERATED BY DECENT SOCIETY, the conduct is subject to tort liability.
d. RS 46(f) states that extreme and outrageous conduct may arise if the
actor takes HAS SUFFICIENT KNOWLEDGE THAT THE OTHER IS
PARTICULARLY SUSCEPTIBLE to emotional distress.
2. There was no proximate, causal connection between the intentional/reckless action
and the severe emotional distress
a. P had suffered from this nervousness before ever working under D.
b. P saw a physician for 6 years prior to working for Harris. D only excited a
preexisting condition.
c. Distress was not severe. All that was shown was that P was shaken up by
Jones misconduct and was so humiliated that she felt like going into a hole
and hide.
3. Rule of law: An action with the intent to cause emotional distress may be subject to
tort liability if the conduct is so outrageous that it exceeds all boundaries tolerated by
decent society, and if actor has sufficient knowledge that the other is particularly
susceptible to emotional distress.
C. ALCORN V. ANBRO ENGINEERING, INC. (1970)
I. Issue: Does Ds conduct constitute IIED, where in firing and berating an African American
employee with blistering racial slurs, i.e., calling him n word, after he prohibited another
white employee from driving a truck to a site (actions which were ratified by his superior), D
caused P to suffer humiliation, mental anguish, and severe emotional distress as a result of
Ds allegedly outrageous conduct?
II. Holding: Yes, Ds conduct, where he his intentional/reckless act caused P to suffer from
severe distress, all without just cause, constituted IIED.
1. Extreme and outrageous conduct
a. Abuse of employer-employee relationship
b. Exceeds all bounds of decency
c. Knowledge of susceptible vulnerability
2. Severity
a. Shock, nausea, and insomnia
III. Rule of law: Action conducted with intent to cause severe emotional distress is liable for tort
suit.
D. JONES V. CLINTON (1998)
I. Issue: Does Ds actions of soliciting sex in a hotel room by kissing P, touching her, and
requesting her to kiss his penis after pulling down his trousers, constitute as IIED, where P
therefore was extremely upset and confused?
II. Holding: P did not suffer from IIED after Ds solicitation for sex and physical conduct.
1. RS 46: Conduct must be so extreme and outrageous in degree that it
EXCEEDS THE BOUNDARIES OF DECENT SOCIETY.
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2. Element (1) is not an issue. In RE: element (2), Ds actions were outrageous but not
of sexual assault. Ds conduct was merely a sexual proposition, one relatively brief
in duration, not of coercion of threat, and was abandoned once P refused.
3. P did not suffer any emotional distress.
a. P admits to never missing a day of work following the encounter; she
continued to see D in friendly, nonsexual manner; she never filed formal
complaint; never consulted physician or psychiatrist.
III. Rule of law: In order to have torts claim for severe emotional distress caused from
intentional infliction of harm, allegations must meet the elements of Arkansas law.
E. SWENSON V. NORTHERN CROP INSURANCE, INC. (1993) (SEX DISCRIMINATION IIED)
I. Issue: Is D liable for IIED, where after P (female) took a high-paying position from a retired
male, (1) continually listened to John Krabseth insist in the need for a man to work for him
instead of a woman, (2) recd unequal pay, (3) was demoted to a lower job while two new
male employees were hired and paid more, and as a result, she suffered emotional disorder
which excited her past history of alcoholism?
II. Holding: Where P was rendered to sexist remarks, lower pay in comparison to other male
workers, and the humbling insult of working under two newly-hired males, which led to
alcoholism and severe emotional distress, Ds conduct constitutes IIED.
III. Reasoning:
1. Alcoholism was excited by distress she was experiencing in the work place.
a. The RELATIONSHIP OF THE PARTIES IS RELEVANT when examining
whether or not the conduct was outrageous and extreme.
b. RS 46: It is only natural that a Ds position of power over P may enhance
his ability to do harm. While the Restatement does not explicitly mention the
employer-employee relationship, this court implies this relationship and
finds D liable for abusing his authority.
2. COMMENT F OF 46 states that extreme and outrageous conduct may arise from
ACTORS KNOWLEDGE THAT THE OTHER IS SUSCEPTIBLE to emotional
distress. (reasonable person test is more lienient in IIED to account for wide
range of individual emotionis someone his hit, pretty much everyone would come
to the same conclusion. However, for IIED a bit more variation in what seems
harmful and offensie).
IV. Concurrence, Levine:
1. DISCRIMINATION ITSELF IS OUTRAGEOUS.
2. Discrimination (1) denies them due credit of money and promotions, but it (2) has
secondary impact of being stripped of self-esteem, self-confidence, and selfrealization.
3. I find it hard to believe that a reasonable member of the community would not
believe that sex discrimination goes beyond the bounds of social decency.
V. Rule of law: Discriminatory conduct becomes extreme and outrageous when there is abuse
of employer-employee relationship and when the conduct is done with knowledge of
susceptibility.
VI. State Rubbish Collectors v. Siliznoff1. Severity needs physical affects. Vomited and stayed home from work.
F. AUSTIN ARTICLE, BB #1while tort lawsuits may be useful adjuncts for social change, tort
litigation is clearly not the best approach.
I. Strengths of bringing tort law to litigation
1. Brings attention of employee abuse to forefront
2. Brings in the elite
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II.
Weaknesses of tort litigation
1. Personal litigation defeats the collective action of employer abuse.
2. Change comes as a result of united, collective action, not single, isolated
occurrences
V.

TRESPASS TO LAND
A. Elements
I. INTENT
II. TO ENTER LAND IN THE POSSESSION OF ANOTHER
1. Your actions will result in someone or something being on a certain area of
property of another.
2. Even one who mistakenly steps on anothers property, believing it to be his own,
commits tort of trespass.
3. If you trespass, you are responsible for all injuries that result from trespass.
B. ROGERS V. KENT BOARD OF COUNTY ROAD COMMISIONERS (1947) (SNOW FENCE)
i. Issue: Is D liable for trespass of land where, after obtaining a license to place a snow fence
in Ps field, D failed to remove the fence as required after snow cleared, where grass grew
and hid the anchors; where Ps husband to hit the steel stake while mowing the land,
thereby being thrust into the wheels of the mowing machine and sustaining injuries that
killed him later?
ii. Holding: Ds failure to remove the fence off of Ps private property upon expiration of it
directly caused the injury of Ps death. Failure to remove the anchor stake upon expiration of
the license to have it on Ps land is continuing trespass. 160.
iii. Rule of law: Failure to remove things placed on private property after consent has been
effectively terminated constitutes as trespass.

VI.

TRESPASS TO CHATTEL AND CONVERSION

a. TRESPASS TO CHATTEL: recover compensatory damages that the intermeddling caused to your
property
i. RS 217: INTENTIONALLY USING OR INTERMEDDLING with the chattel in possession of
another. (Compuserve)
ii. RS 218: Trespass to chattel: (Compuserve)
a. (1) He dispossesses the other of the chattel, OR
b. (2) Chattel is impaired as to its condition of quality, value, OR
c. (3) Possessor is deprived of use of chattel for substantial time, OR
d. (4) Bodily harm is caused to possessor, or harm is caused to person/thing in
which possessor has legally protected interest.
b. TRESPASS TO CONVERSION: (exercising dominion or control over something that belongs to
someone else) recover full value of that good which was damaged.
i. RS 222ATo determine seriousness of interference of conversion
1. Extent and duration of actors exercise over dominion of anothers property
2. Actors intent to assert right that is inconsistent with the others control
3. Actors good faith
4. Extent of duration of resulting interference of others right to control
5. Harm done to chattel
c. COMPUSERVE INC. V. CYBER PROMOTIONS, INC. (1997) (STOP EMAILING ME)
i. Issue: Is D liable for trespass of chattel and conversion, where it continually sent mass
quantities of unsolicited emails to Ps subscribers, thereby causing damage, when P
requested that D cease sending emails?
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ii.
Holding: Yes, Ds incessant mailing of unsolicited emails to Ps subscribers, while at Ps request
for cessation, is trespass of chattel and conversion.
1. Electronic signals = physically tangible to support cause of action for trespass.
2. D intermeddled in the possession of Ps serversatisfy element.
3. While intermeddling of possessor chattel must be caused through impairment of
physical condition, there are situations when chattel can be impaired by
through actions that dont affect physical condition. E.g., P has to deal with
mass volumes of emails, and this places tremendous burden on its equipment. The
added bulk of Ps junk mail wastes even more disk space and drains processing
power of Ps server, and this disallows the resources to serve subscribers.
4. Restatement 218(d): P can recover damages if P has legally protected interest.
Ps legally protected interest is to make sure subscribers arent bothered by the junk
mail.
5. Restatement 218(d): recover damages if D harms Ps business reputation. P
lost many subscribers because of the unwanted bulk of junk mail.
6. Ds First Amendment argument to send junk mail does not stand because 1 st
Amendment protection to free speech is rights that only protect you from
government efforts to shut you up.
iii. Rule of law: The intentional intermeddling of private chattel that causes impairment through
damages, harms that which possessor has a legally protected interest in, and harms
possessors business constitutes as trespass.

PRIVILEGES AND DEFENSES

CONSENT

I.

I.

II.
III.

IV.

V.

Elements
i. MANIFESTED BY ACTION OR INACTION and need not be communicated to the actor
ii. If WORDS/CONDUCT ARE REASONABLY UNDERSTOOD BY ANOTHER to = consent
constitute as apparent consent and are effective as consent.
1. Volenti non fit injuria: to one who consents, no wrong is done.
Defenses to invalidate consent:
i. Induced by fraud:
ii. Lack of capacity to understand the nature of the consented act
Miscellaneous privileges
i. Cop privilege
ii. Discipline
1. Parents and teachers can use force on childrenthis isnt uniform
OBRIEN V. CUNARD STEAMSHIP, CO. (1891) (VACCINE SHOT)
i. Issue: Is D liable for battery and negligence, where defendant surgeon vaccinated P with
force and without consent after she was waiting in the vaccination line and did not say
anything in retaliation of the vaccination?
ii. Holding: No, P, in not voicing any feelings against the vaccination after surgeon forcefully
grabbed her arm, willingly and impliedly consented to surgeons action of vaccinating her
again.
1. she did not tell him that she did not want to be vaccinated. She was amongst a
large group of women who were receiving shots and did not object to anything. They
all desired to avail themselves of the provisions made for their benefit to get into
Boston.
iii. Rule of law: Forceful actions done with the consent of the one receiving the action and
without expressed feelings against the action are not considered assault. (revised: consent
can be given, absent words, when circumstances imply it.
HACKBART V. CINCINNATI BENGALS, INC. (1979)
i. Issue: Is there implied consent for one player to intentionally cause injury to another, q
the intentional injury was not expressly consented?
ii. Holding: Noin the activity of intense contact, P did not consent to an intentional blow to
the head, to which actions are beyond the decorum of football.
1. Evidence shows that there are rules of the game of football which prohibits the
intentional striking of blows.
2. Article 1, Item 1, Subsection C: All players are prohibited from striking on the head,
face, or neck with the heel , back or side of the hand, wrist, forearm, elbow or
clasped hand.
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VI.

iii.
Rule of law: In the activity of physical contact, there is no implied consent for one player to
intentionally cause injury to another player. ( not so clear cutt)
EXCEEDING CONSENT If doctor exercises sound, professional judgment, and if there is no
opportunity to obtain consent from patient or from third party, and if REASONABLE people would be
believed to have consented to this surgery, then this may allow doctor to operate without being sued
for battery.
i. KENNEDY V. PARROTT (1956) (CYSTS/APPENDICITIS CASE)
1. Issue: Is D liable for battery, where a non-consented surgery to puncture Ps cysts,
while performing the primary surgery of appendicitis, caused Ps extensive pain and
suffering in her leg?
2. Holding: No, D is not liable for battery where he conducted, with good surgical
judgment, a secondary operation, without Ps consent. .
3. Rule of law: Where a surgeon, with SOUND SURGICAL JUDGMENT, extends his
operation further than was originally contemplated, surgeon is not liable for
damages for an unauthorized operation.

Consent invalidated
o Incapacity to grant consent
o Consent made for action prohibited by law
o Consent made under duress or by misunderstanding of the facts
VII.

VIII.

DE MAY V. ROBERTS (1881) (PRETEND DOCTOR)

i. Issue: In appealing the lower courts decision, did D have cause of action to vitiate her
consent in allowing Scattergood to assist her in the birth of her child, where she mistook
Scattergood to be a doctor?
ii. Holding: Yes, D did have cause of action to vitiate her consent in allowing Scattergood and
P to assist her in labor because she mistakenly consented to Scattergoods assistance after
he pretended to be a doctor.
1. She consented to Scattergoods presence because she was fooled into thinking that
he was a doctor. Scattergood failed to disclose his true character.
iii. Rule of law: The acquisition of ones consent through fraudulence or deceit is unlawful.
BARTON V. BEE LINE, INC. (1993) (IF MINOR FEMALE AWARE OF NATURE OF SEX, CANNOT
VITIATE CONSENT)
i. Issue: Should a consenting female under the age of 18 have a cause of action if she has full
understanding of the nature of her act, where Barton, 15 at the time, consented to sex with
an adult?
ii. Holding: No. P, despite being under 18, does not have cause of action to vitiate her consent
to sex with an adult since, in consenting, SHE WAS AWARE OF THE NATURE OF THE
ACT.
1. It is one thing to say that society will protect itself by punishing those who consort
with females under the age of consent and another to hold that a female should be
awarded for damages even when she knew the nature of the act.
iii. Rule of law: A female under the age of 18 has no cause of action against a male with whom
she willingly consorts, if she knows the nature and quality of her act.
o Majority view: consent is not effective if it is to a criminal act. (general
statement)
o Minority view- consent is valid for criminal act, unless the purpose of
statute is to protect group of people who are incapacitated by own
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IX.

X.

XI.

XII.

decision (immaturity).here, girl wasnt group meant to be protected

because she was already knowledgeable about sex.
BISHOP V. LISTON (1924) (STRICT LIABILITY FOR RAPE, REGARDLESS OF CONSENT BY
MINOR)
i. Facts: P is 17 years old and engaged in sexual intercourse with D, 50 years old.
ii. Issue: Is D liable for rape, regardless of consent, where he, 50 years old, engaged in sexual
intercourse with P, 17 years old?
iii. Holding: Yeseven if P, under 18, consented to sex, D is still liable for rape because
females under 18 have no attained the mental capacity to fully understand the nature of sex.
.
iv. Rule of law: Because female minors HAVE NOT ATTAINED THE MENTAL CAPACITY TO
FULLY UNDERSTAND THE NATURE OF SEX, with or without consent, a male person over
the age of 18 is liable for rape if he has sex with female minor under 18.
HOGAN. V. TAVZEL (1995) (GENITAL WARTS, BABY)
i. Issue: Does P have valid cause of battery, where while unaware of the quality of possible
invasion of venereal disease, she mistakenly consented to sexual intercourse with D, who
had genital warts but did not notify her about the disease?
ii. Holding: Where D withheld his VD from P who unknowingly consented to sexual
intercourse, P has valid cause of battery and to vitiate consensual sex.
1. Restatement of Torts 5 892B: states that consent to sex consent to be infected
with VD
2. Consent will be invalidated if CONSENTING PERSON WAS MISTAKEN ABOUT
THE NATURE AND QUALITY OF THE INVASION INTENDED.
3. Since P would not have had sex with D had she known about Ds VD, because D
engaged in sexual intercourse without telling her about warts, he is liable for battery
and acquisition of fraudulent consent
iii. Rule of law: Consent will be invalidated, if consenting person was mistaken about the
nature and quality of the invasion intended.
NEAL V. NEAL (1993)
i. Issue: Does P have valid of action for battery, where there was an absence of consent to
engaging in sexual intercourse with her husband since she was not fully aware of the
injuries that she would incur as a result of Thomas affair?
ii. Holding: No, P does have not valid cause of action of mistaken consent since her
husbands affair with LaGasse had nothing to do with the consent of the essential act of sex
with Thomas.
1. The mistake in giving consent must only be related to the essential character
of the act itself, rather than to some collateral (i.e., secondary) matter. This rule
holds true only when one gives his consent with full understanding of the conduct
but has done so because of a mistake concerning some other reason for
consenting.
2. Thomas failure to disclose the affair does not vitiate Marys consent to sex. Mary
consented to intercourse with Thomas. Thomas affair had no direct relation to the
physical contact of intercourse between Thomas and Mary.
iii. Rule of law: In order to vitiate consent, the mistake in giving consent must only be related to
the character of the act itself, rather than to some secondary fact.
HYPO, SAMANTHAS CONSENT TO SEX WITH JENNINGS
i. Problem C, BB#1
ii. What is the tort lawsuit?
1. Battery: intentional infliction of harmful or offensive contact
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iii.

iv.

v.

vi.

II.

2. Whats the contact? Sex

3. Is the contact of sex harmful or offensive?
a. If done without consent, yes it is offensive
4. Did Samantha consent to sex with Jennings?
a. Consent by conduct
i. The conduct must be so that a reasonable person may believe
that P was giving consent
ii. Initially she unsure and hesitant, but later she did not resist his
obvious moves towards intercourse
b. Consent by words
As to what activity was Samantha giving consent given to?
1. If Jennings has sex with Samantha and its rough sexshe comes out with
bruises, lacerations, etc. Can she sue him for battery?
2. Yes because she was consenting to something other than rough sex.
Even if Samantha consents, consent is invalid
1. Criminal violation (Bishop v. Liston)
a. Did Samantha know the nature and quality of her act?
i. Bishop: women, at a young age, are not able to appreciate the
nature of sex with older men
ii. Barton: if you consent to sex as a minor aware of nature
2. Defenses against consent
a. Too young to be aware of the nature of the act
b. Duress (e.g., use of force or the threat of immediate force)
c. Diminished capacity
d. Intoxication (In order to invalidate consent from intoxication, D must know
that you are so wasted that you cant understand the nature and
consequence of the act)
What if she consents to sex after Jennings tells her hes leaving for Iraq?
1. This mistake doesnt invalidate her consent because she consented to the essential
character of the act. i.e., sex. Neal.
2. But Supreme Court of Idaho reversed Neal
What if Jennings tells her that he loves her when he really doesnt and she consentsdoes
this invalidate the consent?
1. No. This substantial mistake proximately deals with the essential character of the
act. Neal.

SELF-DEFENSE
I.

Elements
I. REASONABLE BELIEF AS TO APPARENT NECESSITY
II. FORCE REASONABLY PROPORTIONATE TO HARM
1. RS 63: Self-Defense by Force Not Threatening Death or Serious Bodily Harm
a. Actor is privileged to use reasonable force, not causing death or serious
bodily harm, to defend himself against unprivileged harmful/offensive
contact which he reasonably believes that another is about to intentionally
inflict on him.
2. RS 65: Self-Defense by Force Threatening Death or Serious Bodily Harm
a. Actor is privileged to use reasonable force, causing death or serious bodily
harm, to defend himself against unprivileged harmful/offensive contact
which he reasonably believes that another is about to intentionally inflict on
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him when he reasonably believes (1) the other is about to inflict intentional
contact AND (2) he is put in peril of death or seriously bodily harm or
ravishment, which can safely be prevented only by use of deadly force.
iii. 3rd PARTY INTERVENTION
1. If 3rd party reasonably believes that someone else is being attacked, she has
privilege to use self-defense
2. This varies depending on what jurisdiction youre under
a. Some courts allow the privilege if the mistaken belief regarding the need to
intervene was reasonable under the circumstances
b. Other courts refuse to provide this privilege because the chances of mistake
are greater when 3rd party tries to intervene, thereby holding 3 rd party liable
for interference.
c. Those who are most intimately involved with the situation know the nature
of the attack.
d. 3rd party should think twice before helping so as not to make a mistake
D. COURVOISIER V. RAYMOND (1896) (I SHOT THE COP)
i. Issue: In dismissing Ps claim for self-defense in the lower court, was the jury improperly
instructed to evaluate Ps reasons for shooting D? Is Ps use of self-defense in shooting
Officer Raymond justified, where after burglars tried to break into his house, steal goods,
and throw stones and other materials at him, P, in fear of his life, mistakenly shot D in fear
that he was an approaching burglar?
ii. Holding: YesPs use of self-defense in shooting Officer Raymond should be justified, P
shot D in the dark out of fear that the approaching figure was one of the burglars who may
have intended to cause serious bodily harm or death.
iii. Rule of law: Self-defense is valid when one believes his life is in danger or if one is danger
of receiving bodily harm at the hands of the attacker.

II.

DEFENSE OF PROPERTY
a. KATKO V. BRINEY (1971)
I. RS 77: Even nondeadly force (grab someone) cannot be used to defend yourself
against property trespasser without first asking that person to leave.
II. Issue: Does a party have a valid cause of action in using forceful or deathful self-defense
against the mere trespass of property, where D, to protect his property, set up a shotgun
trap to prevent theft, resulting in permanent damage to P?
III. Holding: No, Ds actions of self-defense were not reasonable for the petty theft that P
committed.
IV. Reasoning: There must be a reasonable threat to the person, not the property, in order to
self-defense that can cause death or serious bodily harm.
1. In order to have the privilege to use deadly force, there must be a threat to the
person.
V. Rule of law: Property alone cannot be protected by self-defense that causes death or
serious bodily harm.
VI. NOTES:
1. Breakdown of Larsons dissent
a. If D intended to scare to him, then there is the intent to cause imminent
apprehension of harmful contact, which is sufficient intent for the tort of
battery.
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b. He is trying to offer an alternative definition for privilege of self-defense. If all

you intended to do was to scare somebody, for the sake of ones property,
then you have a privilege of self-defense.
c. Judge Posner (95): there should be a case-by-case analysis; sometimes
the interest of property can outweigh the value of life where self-defense
that causes death or bodily harm is allowed.
IV.

RECOVERY OF PROPERTY
a. HOT PURSUIT
i. Courts recognize the privilege to use reasonable force to regain property tortiously taken by
another as long as the rightful possessor acted promptly in hot pursuit
II. If the sense of immediacy is lost, the self-help privilege is gone
iii. If the possessor seeking to recapture his property was mistaken, he has no privilege to use
force to get the property back.

V.

NECESSITY
a. Elements
i. D REASONABLY BELIEVES
ii. That his/her trespass to anothers property is
1. (1) NECESSARY to prevent serious, imminent harm to the
2. (2) person or property of
3. (3) himself or of others.
b. COMPLETE V. INCOMPLETE PRIVILEGE
I. Complete: if you damage property out of necessity, youre not liable; you dont have to pay
for damages (Ploof; Cordas)
II. Incomplete: you have the right to necessity, but you have to pay for whatever damages
result from your trespass (Vincent)
c. PUBLIC V. PRIVATE NECESSITY
I. Public necessity (pg 101, Surocco v. Geary): person who is doing the harm to the property
is usually a public official in order to prevent harm to the public at large.
II. Private necessity (Vincent): the person is doing the trespass to property of another in order
to protect himself or a few other people (the difference b/t this and public is the number of
people youre trying to protect.).
d. PLOOF V. PUTNAM (1908)
I. Issue: Does P have valid defense of necessity in tying his boat to Ds dock, where in fear for
their lives and for their property, they got off shore to avoid injury from the storm; where D,
arguing for trespass, untied the boat and let it drift into the ocean; where the boat was
destroyed as a result of Ds action?
II. Holding: Yes, because P and family were in danger from the tempest, they are justified
through the doctrine of necessity in temporarily tying their sloop onto Ds property.
III. Reasoning: The doctrine of necessity applies with SPECIAL FORCE TO THE
PRESERVATION OF LIFE. It is clear that an entry upon the land of another may be justified
by necessity. The stress of a sudden and violent storm compelled P to tie his boat to Ds
dock so as to save the boat and the people in it.
IV. Rule of law: The necessity of an action to enter upon anothers land and interfere with the
others personal property is justified when done so in for the preservation of ones life,
thereby superceding any cause of action for trespass.
e. VINCENT V. LAKE ERIE TRANSPORTATION, CO. (1910)

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I.
Issue: Is P liable for damages, where he moored his vessel in an exposed part of the wharf on
Ds dock; where he kept remooring the boat to the dock in necessity when the storm ripped
the moor up; where the boat caused significant damage to the dock?
II. Holding: Yes, while there may have been a necessity to moor the vessel onto the dock for
purposes of unloading the cargo, mooring the vessel in that location while the storm came
resulted in the vessel damaging the dock. P may have had a necessity, but is liable to pay
for damages.
III. Reasoning: P, in charge of his own vessel, deliberately and by direct efforts moored the
vessel in a way that the damage of the dock resulted, and having preserved the ship at the
expense of the dock, is responsible for the damages incurred.
1. While public necessity may require the taking of private property for public
purposes, and the property is thereby damaged, compensation must be made.
IV. Rule of law: During the course of using Ds private property out of necessity, if damages
onto that property incur as a result of Ps negligent actions, P is responsible for proper
compensation.
f. CORDAS V. PEERLESS TRANSPORTATION, CO. (1941)
I. Issue: Is D liable for negligence, where, at being held at gunpoint, he jumped out of a
moving vehicle, subsequently placing the lives of the public in harm from a dangerous
instrumentality; where he injured a mother and two children?
II. Holding: No, given the circumstances that D was placed, potential death by murder, D was
not acting negligently, but acting reasonably under an emergency.
III. Reasoning: In the specific facts of this case, D was not required to act under perfect
judgment. The court would have expected him to act under unerring judgment, had he not
been confronted with this emergency prompting swift action.
1. Under normal circumstances, Ds action in jumping out of the car would have been
negligent, but this does not follow since Ds allegedly negligent act was performed
out of an emergency not created by his own.
IV. Rule of law: Where a reasonable person acts with erring judgment because of extreme and
imminent circumstances of danger, the actor is not held negligent for damages s/he causes.
g. EXERCISE: VINCENT V. CORDAS
i. In both cases, D acted reasonably
1. Vincent was required to pay for his damages, Cordas was not required.
ii. These cases have similar fact patterns with similar situations; yet the court comes to
different conclusions.
iii. What are the differences between the two cases?
1. Vincent
a. Intentional Harm
b. Threat of danger was to property, and damage done was to property
c. There is existing relationship between P and D
d. Ps dock was harmed intentionally
i. Boat was moored purposely and every time the wind kept pulling
the boat away, D kept tying it back
e. D had time to think about his actions
f. Storm was supernatural cause that resulted in the damage
g. Defendant acted reasonably, but was forced to pay
2. Cordas
a. Unintentional harm
b. Threat of danger was to person; damage done to person
c. P and D were strangers
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iv.
V.
VI.

vii.
viii.

d. P was harmed unintentionally

e. D had no time to think; he instantaneously jumped out of the car
considering his life was in danger.
f. Gunmans was human cause that resulted in damage
Being that Vincent was done with intentional harm and Cordas was done with unintentional
harm, why is there a difference in ruling?
Non-instrumental ruling: justice, fairness, moralist, philosophical
1. Punish someone for committing tort for the sake of justice and fairness
Instrumental for choosing the ruling: utilitarian
1. UTILITARIAN GOAL: GET THE LOWEST TOTAL ACCIDENT COST PLUS TOTAL
ACCIDENT AVOIDANCE COSTS.
2. A decision that is the best for the greater good (individuals dont have to benefit from
a decision as long as the ruling benefits a greater number of people).
If the taxicab driver was found liable, the next time this scenario comes out, will he stay in
the car and allow himself to get shot?
If the rule in Vincent: If your boat damages the dock in necessity of the storm, youre not
liable.
1. If P in Vincent weighed the damages that he would have to pay, and it were cheaper
to pay for its liability versus paying for the extensive damages the Vincents boat
would cause from banging into it, P would just untie the moor and cast the ship to
sea.

NEGLIGENCE
I.

II.

Negligence
a. Involves the situation where all Ds conducts presents a risk, not a certainty, of harm
b. Almost all conduct does that (driving; driving in the rain; running in crowded hall while
carrying books; playing football)
c. The law does not impose liability for all harms that result from conduct that creates risks of
harm
i. The law only imposes liability for unintentional harm when that conduct presents
UNREASONABLE harm
Elements4 STEPS AT PROVING NEGLIGENCE
a. (1) Did Ds conduct fall below the STANDARD of REASONABLE CARE?
i. You can act negligently at one time or another without being liable for negligence in tort
lawsuit.
b. (2) Did Ds negligent CONDUCT (which fell below the standard of reasonable care) in fact CAUSE
plaintiffs INJURY?
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III.

c. (3) Was Ds negligent conduct also the PROXIMATE CAUSE of the plaintiffs injury?
d. (4) But, is there something special about these cases that pushes us to not hold D liable for
negligent conduct? (e.g., D had no duty to help a stranger after a tree fell on top of him.)
e. Subpoint (5) Was there HARM to plaintiff?
ELEMENT (1): Did Ds conduct fall below the STANDARD OF REASONABLE CARE?
a. NEGLIGENCE BALANCING
i. IF B < P x L NEGLIGENCE
1. A defendant is negligent if the Burden of avoiding the accident is less than the
Probability that an accident will occur, multiplied by the gravity of the Loss if an
accident were to occur
2. To avoid liability, D must show that the Burden was too big
3. To explain B < P x L in other words
You must take the burden (i.e., precautions) or you will be held liable
a. The Defendants goal is to spend the least amount of money and still have
precautions that will not result in liability.
4. The ultimate goal is to achieve the lowest total social cost
5. There are 5 standards of instructions
a. Courts may say something about physical and mental disabilities
b. Emergency Idea (Cordas)
c. B < P x L
d. Violation of statutes (exceptions to violations of statutes)
e. Custom of the industry
ii. Problem D, BB (13)
1. Nancy drives on steep hill, when the brakes die. She jumps out the car, when the
car hits 10 people.
2. Ps cause of action (what about Ds conduct fell below standard of care?): negligent
driving once the brakes were shot
a. She just dove out of the car
b. She was negligent for driving generally in SF.
c. She didnt check her brakes
3. Nancys response against negligence claim:
a. She did her best
i. If this point is undisputed, would Nancy be awarded a directed
verdict?
ii. (Vaughn v. Menlove) But in doing her best, would a reasonable
person, in the same situation, just have jumped out of the car?
iii. To judge based on do your best, everybodys best is different
iv. P, in this case, can always bring in evidence to show that D did not,
in fact, try her best.
v. A uniform standard of best might promote greater safety; but the
people who are inclined not to do their best, but think they can get
away with it, now cannot because of a standard of reasonable care.
vi. But doesnt it seem fair that because one was doing his best, he
should not be held liable?
b. Process costs
c. Transaction costs
d. Utilitarian considerations

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e. Fairness consideration: is it ever appropriate to hold somebody liable when

they have not acted in fault? Did somebody behave as well as he could
behave?
4. What if the jury is instructed to decide if Nancy acted as a reasonable woman would
(Lehmann v. Toys R Us)?
a. Lehmann is not a tort case; its a case in which P is making a claim by NJ
State LAD, Law Against Discrimination.
b. If you take the approach from Lehmann, i.e., looking through the eyes of a
woman, you see how we can eliminate discrimination that women suffer. In
tort law, if we look through the eyes of a D, we are worried that we are not
going to make the world a safe place; we are going to look through the
eyes of how to excuse injurers.
c. What if we apply the reasonable woman standard to everybody? Havent
we established that by looking at the difference in insurance rates, that
women behave more safely than men, which means that women are even
more careful? If we create a reasonable woman standard, is this not an
even higher standard than the regular reasonable man standard?
d. Should we have a more global standard of care, e.g., a reasonable
mensch (reasonableness of a perfect standard) (123)
5. Thus exists the dispute between particular/specific standards v. general standard of
care
a. The courts have adopted the universal standard of negligence law: did the
D fail to act as a reasonable person under all the circumstances?
6. The Almighty Jury and Risk-Utility Balancing(117)
a. To just tell a jury in any situation that they should listen to all evidence and
decide if they acted reasonably is risky.
b. Back to Problem D(d)
i. How did Nancy act negligently?
1. She didnt check her brakes or pump her brakes at the start
of each trip made in the car
ii. Were these actions negligent?
1. There is liability if B < P(L)
2. In Nancys case at (d)(a)
a. Probability that she can cause an accident
(1/100,000) if she doesnt check her brake or pump
them
b. Gravity of damages: $200,000
c. Thus, (1/100,000)($200,000) = $2. So every time
she drives, shes liable for $2. If the burden to fix
the brakes is $25/week, and her potential costs are
$2, $25 > 2, therefore, he is not liable.
d. She is not negligent as long as she doesnt take
more than 12 trips a week, because this will
amount to $24. Should she take 13 trips, then $25
< $26 liable.
3. In Nancys case at (d)(b)
a. She would be liable to damages if she didnt pump
her brakes every time she took a trip.
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b. $.25 < $2. The burden to test your brakes is less of

a burden than to pay for the potential costs if your
accident causes damages.
7. What more does the court say to measure reasonableness under certain
circumstances?
a. Learned Hand Theory: B < P(L)
b. Tyler Tug Co. Problem
i. They want to spend as little money as possible to insure a level of
safety for the barges.
ii. What is it that the company wants to achieve? Spend the least
amount of money
1. Spend the least amount of accident costs if they dont take
safety steps
c. We want the lowest total accident costs + total accident prevention costs.
d. (122) This Learned Hand B < PL test sends a cold shudder my spine. Is it
worth sacrificing lives to create economic efficiency?
e. If it costs too much to save your life, companies will allow you to die
f. You cant avoid the reality that a court must consider B < PL formula. Some
expenditures/costs are not worth the savings of lives (e.g., a bubble
around bicycle to prevent accident).
8. Another way to evaluate standard of care is to see if D behaved the same way
everybody else is behaving
iii. LUBITZ V. WELLS, ET. AL (1955)
1. Issue: Is it negligent to leave a dangerous instrument on the ground outside, where
it could cause harm, where D, in leaving his golf club outside, should have known
that the negligent use of a gold club would have resulted in Ps injury?
2. Holding: No. A golf club is not a dangerous instrumentality where leaving it on the
ground is negligent.
3. Reasoning: It would hardly be good sense to hold that this golf club is so obviously
and intrinsically dangerous that it is negligence to leave it lying around in the yard.
4. Rule of law: Mere objects that could cause harm, but are not dangerous
instruments on its own, can be left unattended without being charged with
negligence.
5. Notes:
a. Killeen v. Harmon ruled the same way as Lubitz, where a kid, while having
a two-edged toothpick in her mouth, fell, puncturing her lip. P sought
recovery from Ds negligence in using toothpicks which were pointed at
both ends, rather than somewhat rounded at one end.
b. The court held that a toothpick was an everyday item, and that it could not
be deemed unreasonably dangerous. It would not be right to shift the loss
from the careless user to the blameless manufacturer of supplies.
iv. UNITED STATES V. CARROLL TOWING, CO. (1947) B < P x L
1. Issue: Did the bargees absence at the dock when Anna C sunk constitute as
negligence, where he left the dock at 5PM on Jan. 3 rd, only to return 2PM the next
day; where the barge was untied and refastened, only to break free, crash into a
nearby tanker, cause leak; and where he could have prevented the damage by his
presence?
2. Holding: Yes.
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3. Reasoning: The barge owners duty to prevent injuries resulting is a function of 3

variables: (1) the probability that she will break away; (2) if the boat does break
away, the gravity of the resulting injury; (3) the burden of adequate precautions
(i.e., is it burdensome to implement a system to prevent her from breaking away?).
a. If B < PL, then negligence
b. Its not required that the bargee spend all of his time on the barge to
protect it. But there are times when there is no excuse for bargees
absence: he left the dock at 5PM January 3 rd and returned 2PM the next
day24 hour layoff. In certain circumstances, we hold that it was a fair
requirement that the owner of the barge should have had bargee aboard
the bargeunless he a valid excuseduring the working hours of the day.
4. Rule of law: If the burden of preventing a barge from breaking away from the dock
is less than the product of the probability that the boat will break away and the
gravity of the resulting injury from the boats breakaway, the barges attendant is
liable for damages.
v. WASHINGTON V. LOUISIANA POWER & LIGHT CO. (1990)
1. RS 291, UNREASONABLENESS; HOW DETERMINED; MAGNITUDE OF RISK
AND UTILITY CONDUCT
a. Where an act is one which a reasonable man would recognize as involving
a risk of harm to another, the risk is unreasonable and the act is negligent
if the risk is of such magnitude as to outweigh what the law regards as the
utility of the act of or the particular manner in which it is done
2. RS 291, FACTORS CONSIDERED IN DETERMINING UTILITY OF ACTORS
CONDUCT
a. In determining what the law regards as the utility of the actors conduct for
the purpose of determining whether the actor is negligent, the following
factors are important:
i. (a) the social value which the law attaches to the interest which is
to be advanced or protected by the conduct
ii. (b) the extent of the chance that this interest will be advanced or
protected by the particular course of conduct.
3. Facts: D, power company, owns uninsulated high-voltage electrical wire that
stretched over to Ps property. P was a CD radio hobbyist who had an antenna
designed to be raised or lowered parallel to the wire and at a safe distance. 5 years
before the suit, P and son, while moving the antenna, came in contact with the wire,
suffering burned hands. P requested D to bury the wire, only at Ps expense, and
thus declined. After using special precautions, 5 years after the first incident, P and
friend touched the wire again. P died.
4. Issue: Does P have valid cause of action for negligence against D, where D knew
or should have known the possibility of an accident could have lead to
unreasonable harm to P?
5. Holding: No.
a. Applying negligence balancing test, the court concludes that although
there was a risk that electricity would be released, this possibility could not
be considered as unreasonable risk.
b. While there was a high degree of gravity of loss, when this is multiplied by
the very small possibility of the accident occurring in this case, this product
does not outweigh Ds burden in trying to prevent the accident. No
negligence.
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6. Rule of law: if B < PL, then there is no negligence

b. QUALITITES OF A REASONABLE PERSON
i. Qualities of a reasonable woman standard
1. LEHMANN V. TOYS R US (1993)
a. Issue: Under the LAD (Law Against Discrimination), would a reasonable
woman find D liable for hostile work environment sexual harassment,
where, P, because a hostile work environment in Toys R Us, was forced to
leave due to sexual harassment?
b. Holding: One can state a claim for hostile work environment sexual
harassment if (1) the conduct would not have occurred but for the
employees gender, (2) the conduct was severe or pervasive enough to
make (3) a reasonable woman believe that (4) the conditions of
employment were altered and the work environment was hostile and
abusive.
c. 4 PRONG TEST: For establishing a cause of action for hostile work
environment sexual harassment, the alleged conduct (1) would not have
occurred if it werent for the employees gender, (2) and it was severe or
pervasive enough to make (3) a reasonable woman believe that (4) the
conditions of employment are altered and the working environment is
hostile and abusive. 2, 3, and 4 are interdependent, in that the conduct
must be severe or pervasive enough to make the reasonable woman
believe that the conditions of employment are altered and her working
environment is hostile.
i. Harassment because of plaintiffs sex: There must be
preponderance of evidence that she suffered discrimination directly
because of her sex.
ii. Severe or Pervasive: Most plaintiffs who claim hostile work
environment sexual harassment allege numerous incidents that
would be insufficient alone, but if they are culminated and
considered together stronger case for severe and pervasive
conduct.
iii. The Requisite Level of Harm: In considering the level of harm that
P suffers, this is a subject that is split. (1) One court argues that the
harm must have caused the effect of unreasonably interfering with
Ps work performance, and creating an intimidating, hostile, or
offensive work environment that caused psychological damage. (2)
Other courts argue that P must show that the alleged conduct was
sufficiently severe or pervasive to alter the conditions of the
victims employment and create an abusive working environment.
This court agrees with latter argument because in RE: to the first
argument, psychological distress is one of many other problems
that LAD tries to preventit would be too narrow of a scope.
iv. The Reasonable Woman Standard: the court chooses a (1)
objective and (2) gender-specific perspective.
1. Objective standard: (a) Objective reasonableness
standard better focuses the courts attention on the nature
of the alleged conduct, rather than on Ps reaction of the
conduct, which is more related to tort damages. (b) An
objective standard provides more flexibility because as
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community standards evolve, the standard of what a

reasonable woman would consider harassment will also
evolve. (c) The purpose of LAD is to eliminate real
discrimination and harassment. (The category of
reasonable woman is diverse and includes both sensitive
and tough people. This standard should not be used to
reject as unreasonable an emotional response to sexual
harassment, because such a response is normal and
common. Only the peculiar response of a hypersensitive P
to conduct that a reasonable woman would not find
harassing is excluded by the reasonable standard).
2. Gender-specific: courts must recognize that there is
tendency in the courts and in our society to view the male
perspective as the objective or normal one. Research
shows that men and women perceive sexual conduct on
the job differently. Men think its harmless (while men would
probably be offended by a gay man harassing him, this test
is solely for hetero sexual harassment). However, (1)
women are in danger of sexual violence everyday; (2) they
are still minorities in the work field, and therefore it is
harder for them to gain acceptance and respect from
employers, coworkers, and clients. (3) Women are still
viewed as sexual objects rather than credible co-workers.
c. CUSTOMS STANDARDS
i. Evidence of common practice is good evidence if behavior is reasonable or not.
1. The evidence of common practice alone is not determinative.
a. CUSTOM ALONE DOES NOT SET THE STANDARD
ii. Market Standards
1. Can juries come in and tell the market what to do because were worried an entire
industry will adopt an unsafe standard (e.g., the 4 railing that injured 64 Melo)?
2. Market imperfections
a. Markets need an incentive to place safety standard
b. Consumers dont know enough about safety standards (e.g., Since not that
many people know the safety standard of cars, car manufacturers are less
likely to upgrade safety standards since consumers wouldnt even know
whats safe and whats not.)
iii. TRIMARCO V. KLEIN (1982) (WINDOWS CUSTOM)
1. Issue: Is a customary practice the only guideline needed to find an actor liable for
damages caused out of negligence, where P suffered severe damages from a
shattered bathtub glass window that should have been changed according to new
Federal regulations?
2. Holding: Yes.
3. Reasoning: It was understood that tenants looked to their landlords for safe
maintenance of the apartments. If landlords were not given the responsibility to
keep things in good repair, then defects would remain unremedied.
a. But even though the customary practice becomes universal to
everyone, this common test is not the conclusive test to determine
negligence. The jury must be satisfied with the customary practices
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reasonableness, just as the jury must be satisfied with the

unreasonableness of the behavior adhered to the custom.
4. Rule of law: the reasonableness and universality of a customary practice is not
enough to determine negligence; the jury must be satisfied with the customary
practices reasonableness, as well as with the reasonableness or
unreasonableness of the conduct done in accordance with the practice.
5. HYPO, CUSTOM STANDARDS:
a. STANDARD OF SAFETY RAILS THAT COME UP TO 4 EVIDENCE
OF CUSTOM
b. Melo, 67, falls off the railing. He sues RFK stadium for negligence arguing
that the railing wasnt tall enough. But RFK created the railing according to
the average height of people living in DC, and RFK was following industry
standards. Can Melo est. that D acted negligently?
c. D will not granted motion for directed verdict.
d. If following the customs of the industry nonetheless causes an injury,
where does the judge or the jury go?
e. According to Trimarco, how would the jury today consider the
reasonableness of the industry standard to have the railing only come up
to 46? Just because D acted under the industry standards, this act alone
is not conclusive to dismiss grounds for negligence.
i. Difference in Trimarco, P had introduced substantial evidence that
the custom of the industry was to replace glass with shatterproof
glass. In this case,
ii. CUSTOM DOES NOT SET THE STANDARD. However there are
some situations where you have evidence that everyone is
following the custom, and P cant prove that this custom is
unreasonable, then motion for directed verdict will result.
f. Why not just follow the industry standard? Why doesnt the court just base
their decision on the industry standard?
i. Even if an entire industry follows specific customs, those
customs dont necessarily have to be reasonable.
iv. ROBERTS V. STATE OF LOUISIANA (1981) (BLIND MAN WALKING)
1. Issue: Does an injured party have a cause of action for negligence against a
physically disabled person who allegedly did not act with reasonable care given his
disabilities, where D, blind, did not walk with a cane while going to the bathroom
during work, where he bumped into P and caused injury?
2. Holding: Where the blind actor injured another while acting as a reasonably
prudent blind man would act, there is no liability.
3. Reasoning: The correct statement is merely that he must take the
precautions, be they more or less, which the ordinary reasonable man would
take if he were blind.
a. It is common for blind people to rely on other techniques when moving
around in familiar settings. George Marzloff, director of Division of Blind
Services, says its OK for blind people to not use a cane when they are
walking around in familiar settings, and in his personal opinion, if the
operator is in a relatively busy area, the cane would be more of a hazard
than an asset.

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4. Rule of law: Where a blind man causes injury to another party while acting in the
conduct which an ordinary reasonable man would if he were blind, he is not liable
for injuries incurred.
v. STEVENS V. VEENSTRA (1998) (CRAZY KID DRIVING) (did we read this?)
1. RS 10, CHILDREN
a. (a) When an actor is a child, the actors conduct is negligent if it does
not conform to that of a reasonably careful person of the same age,
intelligence, and experience; except that
b. (b) A child who is less than five years of age is incapable of
negligence; AND
c. (c) The special rule in Subsection (a) does not apply when the child is
engaging in a dangerous activity that is characteristically undertaken
by adults
2. Issue: Where the trial court found in favor for D, should a minor be held to the
same conduct as an adult when engaging in adult activities that are highly probable
of causing damage, where D, while taking drivers ed, ran someone over?
3. Holding: Yes. Michigan has a long-standing policy of holding all drivers to an adult
standard of care: A minor who engaged in an adult activity that is dangerous,
e.g., driving a car, is charged with the same standard of conduct as an adult.
a. It would unfair to the public to allow minors to observe any standard of care
than that which all others abide by. It would be stupid to think that dangers
associated to driving are lessened when the activity is undertaken by a
minor.
b. Though the process of learning involves dangers, when the probability of
harm associated with engaging in an activity is great, anyone engaging in
that activity must be held to the same level of competence. Driving an
automobile is one of these activities, thus anyone driving a car, regardless
of age, must be held to the same standard of care.
4. Rule of law: Actors, minor or adults, regardless of age, who engage in adult
activities that have the high probability of causing damage, must be held to the
same standard of competence and conduct.
5. NOTES, SPECIAL CUSTOMS WITH CHILDREN
a. Hypo: Man sues children for negligence after she ran him over with an
ATV.
b. (Stevens) The judge should tell the jury that Natalie should be held to the
standard of a reasonable child of the like age, intelligence, and
experience (141).
c. But, this wont work because she was driving an ATV, an activity that is
considered an adult activity. A child engaged in adult activity should be
held to reasonable standards of an adult.
d. Is this an adult activity if she drove the ATV in the road? On an enclosed
lot?
e. The tricky part with cases like this is figuring out what is considered an
adult activity and which activities are not considered as adult activity
(hunting, gun use, ATV). It varies by states and jurisdiction.
f. Certain places where the activity is done by majority of adults are
considered adult activities, but where many of the people engaging in the
activity are children, then the standard is changed to the reasonable child
of like age, intelligence, and experience.
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d. MEDICAL MALPRACTICE
i. BOYCE V. BROWN (1938)
1. RESTATEMENT 229A, UNDERTAKING IN PROFESSION OR TRADE: unless
he represents that he has greater or less skill of knowledge, one who
undertakes to render services in the practice of a profession or trade is
required to exercise the skill and knowledge normally possessed by
members of that profession or trade in good standing in similar communities.
2. Issue: Under the general laws governing actions of malpractice, does a patient
have a cause of action against a doctor if her practice deviates from the proper
standard of medical care, where D allegedly did not exercise sound professional
care by failing to x-ray Ps ankle to figure out what was wrong with it?
3. Holding: Because not taking an x-ray does not necessarily deviate from the proper
standards of medical care, D is not liable for Ps continued pain in her ankle.
4. Reasoning: General rules of law governing actions of malpractice: (1) one
licensed to practice medicine is presumed to possess degree of skill which is
possessed by the average member of the medical profession and is to apply that
knowledge with ordinary and reasonable care; failure to do so is malpractice; (2) for
doctor to be liable, he must have done something that the standard of good medical
practice in the community he practices forbids; (3) jury may not speculate what the
required standard of care is unless there is evidence of such a standard; (4)
negligence must be affirmatively proven; (5) doctors alleged negligence must be
est. by expert medical testimony, unless the negligence is so grossly apparent that
a layman would have no problem in recognizing it; (6) the experts testimony that
they would have follow another course of treatment does not establish malpractice
unless that course deviated from a treatment approved by the community.
a. Dr. Kent provided his expert testimony as to whether D had deviated from
established standard in caring for Ps ankle. Kent testified that Ds method
of uniting the bone was a standard one. Kent said that he would have used
an x-ray to further probe Ps problem, but he did not say that failure to do
so was deviation from proper standard of treatment.
b. Counsel for Ps basis of negligence claim rested on Ds failure to take an xray, arguing that even a layman would know that failure to take x-ray is
deviation from standard. While it is true that many layman know the
benefits that x-ray provides, they cannot say that in all cases it is deviation
from the standard to not use an x-ray. X-rays cost a lot of money.
5. Rule of law: Failing to exercise certain medical practices which do not deviate from
the proper standards of medical care in the community in which the medicine is
practiced does not constitute as malpractice.
INFORMED CONSENT
ii. PRIMA FACIE ELEMENTS OF INFORMED CONSENT: If there is negligence cause of
action, what must Jeremy prove?
1. (1) That there was a failure to disclose information
2. (2) MATERIAL RISKS: That if P had been informed of the material risks he would
not have consented to the treatment
a. PATIENT STANDARD:
i. The risk is material if it would be likely to affect patients decision
b. PROFESSIONAL STANDARD:

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i.
A material risk is a material risk only if members of the medical
profession believe it to be; then and only then would they disclose
the risk
1. I.e., if there is a respectable minority that dont perform or
that dont tell the patient about the risk, then doctor is not
liable
3. (3) CAUSATION. That the adverse consequences that were not made known did in
fact occur AND
a. Objective Standard (majority standard): An objective patient would not
have consented to surgery if informed of the material risk (Canterbury v.
Spence)
b. Subjective Standard: A subjective patient, i.e. YOU, would not have
consented to the surgery if you were informed of the material risk (Scott v.
Bradford)
i. Why should the court take this subjective standard?
1. Its not what a reasonable person would do when told of the
1 in 400 chance; its what YOU would do because then the
courts have denied the patient his autonomous control
over his body.
ii. If this is so, why do MAJORITY of the courts adopt the objective
standard (Canterbury v. Spence)?
a. It might take too long to figure out what this patient
would have done versus the simplicity and
uniformity of a reasonable person standard.
4. (4) INJURYthe injury must be linked to those material risk patient was not
disclosed of
5. Exceptions to informed consent
a. Therapeutic privilege: I didnt want to tell Jeremy about the 1 in 400 chance
because its not significant. If I start telling him about the risks, hell be
freaked out and unsettled, and this will cause a greater chance that the
surgery wont be successful.
i. There needs to be a reasonable belief that the patient will be
affirmatively harmed by the disclosure of the risk.
b. BUT you cant withhold Jeremy of the risks because you believe that
Jeremy needs to have the surgery aside from the risks. The courts will hold
that the patient has personal autonomy to decide if he wants to go through
the surgery or not.
iii. SCOTT V. BRADFORD (1980) (THE LEAKING BLADDER)
1. Issue: Under OK law, is a doctor liable for malpractice when he does not adhere to
the informed consent basis, where D did not inform P of the risks of the surgery nor
of alternatives to the surgery?
2. Holding: No.
a. The cause of action, based on lack of informed consent is three-fold: (1)
duty to inform; (2) causation (this requires that P would have not have
chosen the treatment had he been informed of risks and alternatives); (3)
injury. If patient testifies that he would have continued with the proposed
treatment had he been adequately informed, the trial is over. If he testifies
that he would not, then the causation problem must be resolved by
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examining the credibility of Ps testimony. The jury must be instructed that

it must find P would have refused treatment if P is to win.
b. This court, based on jurys finding for D, does not reverse (WHY???)
c. Defense to failure to disclose
i. Plaintiff knew risks
ii. Full disclosure would be detrimental to patients best interest
iii. Emergency existed requiring prompt action.
iv. Notes on INFORMED CONSENT:
1. Jeremy sees Dr. Cho for back problems. She does MRI and finds that he has filling
cavity in 4th thoracic vertebrae. The thing we do for this lamenectomy. We gotta do
this. Jeremy agrees. She does the surgery well. But, in the course of that surgery,
something happens through no fault of the doctor that causes him to be paralyzed.
Theres no unreasonable care, but Dr. Cho knew about the complications and that
there is a 1 in 400 chance even in properly performed lamenectomies. He sues her.
2. What is Ps cause of action?
a. Doctor violated Informed consent ruled by withholding from him material
facts that could have influenced Jeremys decision in going ahead with the
surgery or not.
b. Consent to operate was obtained by fraud, just like in De May v. Roberts.
3. Informed consent cases could be treated as battery cases on the grounds that P
did not receive adequate information into giving his or her consent
a. In battery, youre talking about the protected sphere of your body. In
negligence, the focus is on the reasonableness of the Ds behavior. In
medical malpractice, youre combining both areas of negligence and
battery
4. PRIMA FACIE ELEMENTS OF INFORMED CONSENT: If there is negligence
cause of action, what must Jeremy prove?
a. (1) That there was a failure to disclose information
b. (2) MATERIAL RISKS:
i. PATIENT STANDARD: v. PROFESSIONAL STANDARD
c. (3) CAUSATION.
i. Objective standard v. Subjective Standard:
d. (4) He was INJURED as a result of submitting the treatment.
i. If Jeremy undergoes the surgery, assuming he knew of the risk.
Jeremy has a heart attack during the operation.
ii. Can he bring suit for lack of informed consent for this heart attack?
1. No. The injury that you suffer from must be the risk that you
were not informed about
5. But, would a reasonable doctor have disclosed this information, as opposed to the
patient standard, i.e., is this information likely to affect patients decision?
6. If using the professional standard, no respectable minority would not disclose
information.
e. VIOLATION OF STATUTES
i. 3-part analysis of violation of statute
1. PART I: Is this statute applicable to this situation to create the judgment of
negligence? (Remember, not all violations of statute are negligence per se, Reque
v. Milwaukee)
a. (a) Is P included in the class protected in the statute, i.e., other drivers in
the oncoming lane or pedestrians? AND
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b. (b) Is the harm and hazard resulting from the negligence that which the
statute aimed to protect against?
i. BOTH MUST BE SATISFIED
2. PART II: What effect?
a. If both parts in PART I are satisfied, then D acted unreasonably and
negligently.
b. Some courts say that there is evidence of negligence
i. Under all circumstances and facts, we are to determine if D violate
the statute
c. Some say that there is presumption of negligence
i. If D had a reasonable excuse for violating the statute, then D is not
liable for negligence per se. The presumption of negligence can be
rebutted by proof that a reasonable person would have acted the
same way D would have.
ii. For example, not every violation of statute is negligence per se (RS
288, pg 159)
3. PART III: What excuses will suffice?
a. Pg, 166, RS 288A, list of excusable situations (these are not exclusive)
i. Violation is reasonable because of actors incapacity
ii. He neither knows nor should know of the occasion for compliance
iii. He is unable for reasonable diligence or care to comply
iv. He is confronted by an emergency not due to his own misconduct
v. Compliance would involve a greater risk of harm to the actor or to
others
b. Ds son is late for his first soccer game.
ii. RESTATEMENTS
1. RS 14, STATUTORY VIOALTIONS AS NEGLIGENCE PER SE: an actor is
negligent, if without excuse, the actor violates a statute that is designed to
protect against the type of accident the actors conduct causes, and if the
accident victim is within the class of persons the statute is designed to
protect.
2. RS 288: The court will not adopt as the standard of conduct of a reasonable
man the requirements of a legislative enactment or an administrative
regulation whose purpose is found to exclusively:
a. (a) to protect the interests of state or any subdivision of it as such;
OR
b. (b) to secure to individuals the enjoyment of rights or privileges to
which they are entitle only as members of the public; OR
c. (c) to impose upon the actor the performance of a service which the
state or any subdivision of it undertakes to give to the public; OR
d. (d) to protect a calss of persons other than the one whose interests
are invaded; OR
e. (e) to protect an interest other than the one invaded; OR
f. (f) to protect against other harm than that which has resulted; OR
g. (g) to protect against other hazards than that form which the harm
has resulted.
3. Restatement 288A: an excused violation of a legislative enactment is not
negligence. A list of excusable situations:
a. (a) the violation is reasonable because of the actors incapacity
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b. (b) he neither knows nor should now of the occasion for compliance
c. (c) he is unable after reasonable diligence or care to comply
d. (d) he is confronted by an emergency not due to his own misconduct
e. (e) compliance would involve greater risk of harm to the actor or to
iii. MARTIN V. HERZOG (1920) (OMISSION OF LIGHTS IS NEGLIGENCE PER SE)
1. Issue: Is Ps conduct in not driving without headlights negligence per se, where the
mere act of driving without lights, a clear violation of statute, was contributory
negligence that caused the collision, resulting in Ps husbands death?
2. Holding: The violation of a statute is negligence per se.
3. Reasoning: The omission of lights is more the some evidence of negligence. It is
negligence in itself (per se). Lights are intended for guidance and protection of
other travelers on the highway. Highway Law, 329(a). To omit, willfully or
heedlessly, the lights for the benefit of another that he may be preserved in life and
limb, is to fall short of a standard of care to which all those who live in organized
society live by.
4. Rule of law: The violation of a statute is negligence per se. When an actor violates
a statute, where his conduct constitutes as contributory negligence to the accident,
actor is liable for damages.
iv. REQUE V. MILWAUKEE & SUBURBAN TRANSPORT CORP. (1959)
1. Issue: Are all violations of statutes negligence per se, where D allegedly violated
Wisconsin statute 85.19(2) by not stopping the bus 12 from the curb, where P
stepped off and injured herself as a result of this negligence?
2. Holding: No. Because the Wisconsin statute did not protect injured parties, a
hazard not mentioned intentionally in the statute, P cannot recover damages. Not
all violations of statutes are negligence per se.
a. 288 of Restatement, Second, of Torts provides as follows: The court will
not adopt as the standard of conduct of a reasonable man the
requirements of a legislative enactment or an administrative regulation
whose purpose is found to exclusively (a) to protect the interests of state or
any subdivision of it as such; OR (b) to secure to individuals the enjoyment
of rights or privileges to which they are entitle only as members of the
public; OR (c) to impose upon the actor the performance of a service which
the state or any subdivision of it undertakes to give to the public; OR (d) to
protect a class of persons other than the one whose interests are invaded;
OR (e) to protect an interest other than the one invaded; OR (f) to protect
against other harm than that which has resulted; OR (g) to protect against
other hazards than that form which the harm has resulted.
b. We consider (g): This statute had no intention in protecting persons such
as D from a hazard that arose from something other than from a collision
between a moving car and a parked car.
3. Rule of law: Not every violation of a statute creates negligence per se but if the
victim was within the class of persons the statute was trying to protect.
v. STACHNIEWICZ V. MAR-CAM CORP (1971)
1. Issue: Under ORS 471.410(3) and Oregon Liquor Control Regulation No. 10065(2), is D liable for negligently failing to (1) deny liquor to a customer who was
already wasted and (2) stop loud, noisy conduct upon his licensed premises, or
permit any visibly drunk person to enter or remain upon his licensed premises,
where the third-party customer P was injured after a fight between drunkards?
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2. Holding: Yes, D is liable in negligently failing to enact his responsibilities with due
care because the statute had aimed to protect a class of citizens by that legislation,
and where P was a member of that class, and where P was injured in a fight that
the statute enacted sought to prevent, D is liable.
a. ORS 471.030, Purpose of Liquor Control Act, provides in part, as follows:
(1) The Liquor Control Act shall be liberally construed as: (a) to prevent the
recurrence of abuses associated with saloons or resorts for consumption
of alcoholic beverages. This regulation concerns matters that directly relate
to the creation of physical disturbances in bars which would create a
likelihood of injuries to customers. No citation of authority is needed to
prove that abuses associated with saloons, which the LCA seeks to
prevent, include permitting on the premises abusive conduct which
resulted in serious personal injuries to customers as a result of the owners
failure to regulate patrons from such harm. The commission intended to
prevent these abuses through promulgation of the statute.
3. Rule of law: Under a statute, when an owner of a premises fails to regulate
moderate control pursuant to the statutes provisions, whereby a patron, a member
of the class of persons intended to be protected by the legislation, is injured by the
harm in which the statute intends to prevent, owner is held liable for negligence.
vi. IMPSON V. STRUCTURAL METALS, INC. (1972)
1. Restatement 288A: an excused violation of a legislative enactment is not
negligence. A list of excusable situations:
a. (a) the violation is reasonable because of the actors incapacity
b. (b) he neither knows nor should now of the occasion for compliance
c. (c) he is unable after reasonable diligence or care to comply
d. (d) he is confronted by an emergency not due to his own misconduct
e. (e) compliance would involve greater risk of harm to the actor or to
2. Issue: Under Restatement of Torts 288A, are actions done in justification or
excuse, which cause serious harm to another party, immune from negligence per
se liability, where D, violating criminal driving statute by driving on the left side of
the highway within 100 feet from intersection, crashed into P, killing three people
and injuring two others?
3. Holding: No. D had no excuse to drive on the other side.
a. None of the excuses D offered are within classes of this Restatement
288A. D was familiar with the law prohibited passing cars within 100 yards.
D made his move deliberately. There was no impossibility, no reason for
any particular rush, no emergency, no incapacity; he didnt drive in the left
side to avoid a greater risk of harm.
4. Rule of law: Under Restatement of Torts 288A, unless a harmful or dangerous
act was done with a legally acceptable excuse or justification, an actor who causes
serious harm to another party is therefore liable for negligence per se.

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f.

RES IPSA LOQUITOR (no causation needed)

i. Elements
1. (1) the accident ordinarily would not have happened unless the D was
negligent (i.e., the only reason for the accident was because of someones
negligence), AND
2. (2) the instrumentality or agent which caused the accident was under the
exclusive control of the D, AND
3. (3) the circumstances indicated that the untoward event was not caused or
contributed to by any act or neglect on the part of the injured person.
ii. To prove that a P sustained injuries because of Ds negligence requires evidence
1. You dont need any kind of particular evidence, but you need enough evidence.
2. You need a preponderance of evidence to convince a reasonable jury that its
more likely than not that the D was negligent.
iii. So whats res ipsa loquitor? The thing speaks for itself.
1. Essentially res ipsa loquitor seeks to have the court give special instruction to jury
that the circumstantial evidence is strong enough that the jury may conclude from it
that Ds negligence caused the Ps injury.
2. When the injury speaks, it says probably negligence by the D.
3. For example, PEELARS V. RJ REYNOLDS TOBACCO
a. Lawsuit by P who was unhappy with the chewing tobacco made by D. P
consumed one plug (bite) of his purchase which measured that it was
tobacco mixed with human flesh. He foamed at the mouth, getting sicker
and sicker. Finally, his teeth struck something hard. He could not bite
through it, discovering human toe with nails.
b. Think about that toe: NEGLIGENCE!
c. Pay attention to Kambat pg 45 top of column 1: when you prove that an 18
x 18 pad in the bowel of somebody of someone whos had surgery, thats
enough evidence for a reasonable jury to conclude that the doctors were
negligent.
iv. The first understanding of res ipsa loquitor comes from the doctrine set by Byrne v. Boadle
(p. 169 csbook)
1. P was injured by barrel of flour that fell from Ds window
2. At trial, only evidence put in by either party was by P, and he made no attempt to
show how the barrel fell from the window
3. After lower court found in favor D, Justice Pollack wrote in the appeals decision,
There are certain cases of which it may be said res ipsa loquitor and this seems
one of tem. In some cases the Court has held that the mere fact of the accident
having occurred is evidence of negligence.
v. EATON V EATON (1990) (IM SUING MY DAUGHTER)
1. Issue: Does this case represent a res ipsa loquitor negligence, where the jury can
infer that Donna was negligent, where she was driving the car on a dry day with her
mother in shotgun, where the car left the road and crashed; where Daughter
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suffered no damage but her mother was injured; where Daughters shoe was stuck
under the accelerator?
2. Holding: Yes.
3. Reasoning: Under the rule of res ipsa loquitor, a jury may draw permissible
inference of negligence from the circumstances surrounding certain accidents.
a. Application of the rule depends on satisfaction of 3 conditions: (1)
the accident which produced persons injury was one which
ordinarily does not happen unless someone was negligent (i.e., the
only reason for the accident was because of someones negligence);
(2) the instrumentality or agent which caused the accident was under
the exclusive control of the D; (3) and the circumstances indicated
that the untoward event was not caused or contributed to by any act
or neglect on the part of the injured person.
4. Rule of law: Where there is sufficient evidence to support the proposition that the
negligence that caused the harm points to the defendant, res ipsa loquitor finds the
defendant liable for negligence.
vi. Use of Expert Testimony to Support a Res Ipsa Inference
1. Where in many cases a jury can draw a common sense inference of negligence
from their own experience, some cases require expert testimony to establish res
ipsa.
a. MIRELES V. BRODERICK: P developed numbness in her right arm shortly
after surgery. A jury could not, from its own experience, decide whether
damage was from negligent surgery. P introduced testimony from
physician.
i. Thus, the res ipsa inference was not predicated on the jurys
common sense but rather on inference from the expert.
ii. However, on rare occasions, malpractice may be so clear that a
jury can draw a res ipsa inference without expert testimony.
vii. SULLIVAN V. CRABTREE (1953)
1. Issue: Is a D liable for negligence under res ipsa loquitor, where Ps son was killed
in car accident while D was driving; where P did not have substantial evidence
gathered to prove that the accident in which their son was killed in was caused by
Ds negligence as a driver?
2. Holding: No.
3. Reasoning: In exceptional cases the inference may be strong that it requires a
directed verdict against the D (e.g,. Byrne v. Boadle: objects falling from Ds
premises on persons in the highway). But in ordinary cases, res ipsa merely makes
a case for the jury. It merely permits the jury to choose the inference of Ds
negligence in preference to other possible inferences.
a. The case at bar is such an ordinary case. The accident may have been
caused by Ds negligence; it may have not. In choosing one of the many
inferences, the jury chooses that there was not enough evidence to find D
negligent.
4. Rule of law: Where the circumstantial evidence does not create a strong
enough inference of negligence, but only makes a mere inference of
negligence, permitting the jury to choose an inference of Ds negligence in
preference to other inferences, there can be no res ipsa negligence.
viii. KAMBAT V. ST. FRANCIS HOSPITAL (1997)
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1. Issue: Is P entitled to submit the case to the jury on the theory of res ipsa loquitor,
where the evidence alone provides the jury to make an inference that Ds actions
were negligent, where D performed surgery on P; where 10 laparatomy pads used
during the surgery were found in her abdomen after the surgery?
2. Holding: Yes, there is res ipsa negligence.
a. The jury did not require expert testimony to conclude that an 18 x 18 inch
laparatomy pad is not normally discovered in someones abdomen without
the doctors negligencesatisfy point (1).
b. Ps evidence that similar pads were used during the surgery, that P was
unconscious during the operation, that the laparatomy pads are not
accessible to patients and that it would be anatomically impossible to
swallow such a pad can infer the jury to conclude that points (2) and (3)
are metD had exclusive control of the pads and that it did not result from
any voluntary action on Ps part.
3. Rule of law: Where overwhelming, probative evidence can allow a jury to infer Ds
negligence on its own, expert witnesses are not necessary, and the doctrine of res
ipsa loquitor can be applied accordingly to hold D negligent as long as (1) the act
is of a kind that would not ordinarily occur in the absence of Ds negligence,
(2) the injury was caused by an instrumentality under Ds exclusive control,
and (3) the plaintiff had no voluntary action in causing the harm.
IV.

ELEMENT (2): CAUSATION. Did Ds negligent CONDUCT (which fell below the standard of
reasonable care) in fact CAUSE plaintiffs INJURY?
a. BUT-FOR CAUSATION (Perkins v. Texas, Ford v. Trident Fisheries)
i. 5 steps at proving But-For Causation
1. (1) identify the injury
2. (2) P must identify Ds wrongful conduct
3. (3) Figure out that if D had changed its wrongful conduct following the law, (4)
would the Ps injury still have happened?
a. If no, then there is no but-for causation
4. (5) Answer question (4) based on common sense and intuition
ii. If there is no causal link between Ds negligence and Ps injuries, then there is no but-for
causation
iii. When we talk about fairness, the punishment should fit the crime
1. For example, it would be unfair to hold a surgeon liable for an accident she didnt
cause because making her pay for injuries other than those which were increased
by her negligence would mean she pays out of her proportion.
2. In tort law, whats the proportional punishment? B < P x L
a. The sanction that tort judgments should correlate to their fault, which would
mean that you look at the way D is behaving, and you consider the
chances of harm and the harm that actually result.
iv. Tort law is set up as a market deterrent. You can drive as quickly as you want. But if youve
acted unreasonably, and you increase the chance of harm happening, when those harms
happen because of your negligence, you have to pay.
v. PERKINS V. TEXAS AND NEW ORLEANS RY. (1962)
1. Issue: But for Ds alleged negligence in engineering the train at a faster speed than
the limit, might the accident have been avoided, where D was speeding at 37mph in
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25 mph; where Ps car jutted out a little beyond the tracks; where the house track,
running parallel to the tracks, blocked the view of the train and the car?
2. Holding: No. Accident would have happened anyway had the train been going at
the speed limit.
3. Rule of law: When the plaintiffs harm would have occurred even if the D had not
acted negligently, then the Ds negligence did not legally cause the plaintiffs harm.
Ds negligence did not increase the probability that the accident would have
happened. (WHY?)
vi. FORD V. TRIDENT FISHERIES, CO. (1919)
1. Issue: But for Ds negligence in not suspending the safety boat lower to the water
and negligently supplying only one oar, would Ps life have been saved, where he
was thrown overboard when the vessel rolled?
2. Holding: No. It does not appear that if the boat had been suspended from davits
and a different method of propelling it had bee used he could have been rescued.
3. Rule of law: Even where the D acted negligently, in another respect, if that
negligence is not a substantial factor in bringing about the harm to the plaintiff,
D is not negligent.
vii. LYONS V. MIDNIGHT SUN TRANSPORTATION SERVICES, INC. (1996)
1. Issue: But for Ds negligent driving, would Ps death have been avoided, where he
allegedly speeding; where Ps wife pulled out of a parking onto the main road; and
where P steered into the left lane to avoid hitting Ps car?
2. Holding: No, though D was negligent in his driving, his negligence is not the legal
cause of the accident.
3. Reasoning: There was evidence presented at trial from which the jury would have
reasonably drawn the conclusion that even though D was driving negligently, his
negligence was not the proximate cause of the accident. Ds expert testified that
the primary cause of the accident was Ps action in pulling out of the parking
lot in front of an oncoming truck. D further responded reasonably in steering out
of the lane. A reasonable jury could conclude that P caused the accident by
abruptly pulling out in front of the oncoming truck.
4. Rule of law: With the element of proximate causation lacking, even the most
egregious negligence cannot result in liability.
viii. REYNOLDS V. TEXAS PACIFIC RY. (1885)
1. Issue: But for Ds negligence, could the harm sustained by P have been prevented,
where P fell down the unlighted stairs as a result of Ds negligence to not place
handrails on the ledges to safely guide customers down?
2. Holding: Yes.
3. Reasoning: The court concedes that even if the stairway was lit she could have
fallen down the stairs. But if Ds negligence in failing to place handrails in properly
designated places enhances the danger to P, it is nevertheless a character that
naturally leads to the injury.
4. Rule of law: Even if Ps harm would have occurred absent Ds negligence, if Ds
negligence enhances the chances of Ps accident, then this negligence leads to
the injury, and D is liable for injuries.
b. SPECIAL PROBLEMS OF PROOF
i. The standards that regulate expert testimony
ii. This is quite common esp. when the issue is whether the negligence caused the damages
iii. The legal issue that were focusing on is how carefully will the courts scrutinize the
substance of an experts testimony about causation once he or she is qualified as an expert?
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iv.
KRAMER SERVICE INC. V. WILKINS (1939)
1. Issue: Was the jury in the trial court improperly instructed by taking into
consideration the cancer that grew where P sustained injuries on the temple when it
had not been definitively proven that such trauma and injury has a proximate
connection to cancer; where broken piece of glass struck D in the temple; where
skin cancer developed later on the area of abrasion?
2. Holding: Yes
a. P was entitled to the requested instruction as RE: to cancer. It is not
sufficient for D to seek recovery in damages for an alleged negligence
where there was a possible connection that the injury was caused by the
negligence. Possibilities will not sustain a verdict.
b. The testimony from the two doctors is that theres only a possibility a skin
cancer could be caused by an injury. If doctors and researchers still do not
know after years of research, certainly judges and juries are far from
knowing what causes cancer.
c. Therefore, where medical testimony is undisputed, the jury must act upon
this, otherwise, the jury will resort to post hoc ergo propter hoc, i.e.,
after this, therefore because of this, i.e., cancer came after the injury,
therefore the cause of cancer is because of Ds negligence.
3. Rule of law: The mere possibility that an injury was caused by Ds negligence is
not enough proof to hold D liable for Ps injuries.
v. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993)
1. Issue: In using medical expert testimony to inform the jury so as to make a
decision, is the standard that the expert testimony must generally be accepted in
the field to which it belongs (Frye) a sufficient standard to determine which
testimonies are allowed, where Ps expert testimonies, because (1) they were not
published, (2) not subject to peer review, and (3) generated solely for the purpose
of litigation, were dismissed?
2. Holding: No, Frye made general acceptance the exclusive test for admitting
expert scientific testimony. That austere standard, absent from and incompatible
with the Federal Rules of Evidence, should not be applied in federal trials.
a. Rule 402: All relevant evidence is admissible, except as otherwise
provided by the Constitution of the US.
b. Rule 702: If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence, or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion. The drafting
history of this rule makes no mention of Frye.
c. TWO PRONG TEST: Thus the trial judge must determine at the outset
whether the expert is proposing to testify (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a fact in issue.
i. Easiest way to satisfy this two-prong test is to see if:
1. (1) Is this methodology peer reviewed (e.g., publication)?
2. (2) Is this methodology generally accepted?
3. (3) Has this conclusion and testimony been tested?
4. (4) Known error rate of the technique
3. Rule of law: Pursuant to the Federal Rules of Evidence, when determining whether
or not the expert testimony can be included for the jury to hear, the judges must
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consider whether the expert is proposing to testify (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a fact in issue.

V.

POSSIBILITY CASE OF PROOF:

Its not probable that the D caused Ps injury. The injury

probably would have occurred even without Ds negligence.
a. HYPO, PROBLEM E:
i. People in southern Utah are exposed to cancerous agents during 1950s. Ps get infected,
and there is possibility that US government is negligent.
ii. Two people file action, Ms. Ely and Moab
1. Ms. Ely gets cancer
2. Moab doesnt get cancer, but he suffers from emotional distress fearing that he
might have been exposed to the cancer
iii. MS. ELY GOT CANCER.
1. She has causation problem.
2. Why does she have a causation problem?
a. Theres no question that D was negligent, but we cant scientifically prove
that negligence caused the cancer
b. There is evidence of general causation, that Ds negligence in general
causes cancer.
c. The problem is with specific causationwhat we dont have is that Ds
negligence specifically caused Ps cancer.
3. Ely has to prove a preponderance of evidence that Ds negligence more likely than
not caused the cancer.
a. What if the children in Elys neighborhood were 10x more likely to get
cancer?
4. If the rate of increase in getting cancer went up 2x, then its also equally likely that
the cancer came from somewhere else.
a. x = 50
b. 2x = 100
5. Even if there is a 101 to 50 chance that US government is negligent, Smith v. Rapid
Transit held that it is not enough mathematically that the chances somewhat favor a
proposition to be proved.
iv. STRONG PREPONDERANCE OF EVIDENCE RULE
1. SMITH V. RAPID TRANSIT, INC. (page 197)
2. Under the strong preponderance rule, probabilities are not enough. You have to
have a strong preponderance of evidence. It is not enough that mathematically
the chances somewhat favor a proposition to be proved
3. The majority of courts adopt strong preponderance rule of evidence
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4. Courts want more evidence other than the percentage chance. The problem with
this is that most times in these cases (like Problem E), P has nothing but the
statistics to go on.
v. WEAK PREPONDERANCE OF THE EVIDENCE RULE
1. If theres not enough substantial evidence alone to prove that the D more likely than
not caused Ps injury, the weak preponderance of evidence theory allows
recovery if P can show that more likely than not statistically, i.e., 50.1% or over, D's
negligence caused P's injury.
2. Weak preponderance of the evidence rule is typically used in medical malpractice
cases (Jorgenson, Herskovits)
3. In Ms. Elys case, it is as likely as not that Ds negligence caused the injury.
vi. LOSS OF A CHANCE DOCTRINE (This is usually used in medical malpractice)
1. Some Courts have realized that people such as Ms. Ely in Problem E cannot
recover because the statistics do not show weak preponderance of the evidence
and they have no other evidence to go on.
2. Even when its less than likely that P can recover, P would receive that percentage
of her damages = to the chance D took away for recovery.
3. Without the loss of chance doctrine, it would allow doctors to be negligent and not
have to be liable as long as the patient didn't have a 50% chance of living in the
first place.
a. It would be "open season" on people who have less than a 50% chance of
getting better.
b. In Herskovits the court sums this up by saying about their decision
4. JORGENSON V. VENER (2000)
a. Issue: According to the loss of chance doctrine, should the court view the
reduction of a Ps chance of survival as a relevant event in Ps injuries, and
thus allow P to recover if more likely than not Ds negligence was a
proximate cause, where treatment could have saved Ps leg with 60%
success rate; where P elected for amputation; and Ds negligence to not
notice the defect caused loss of chance for him to save his leg?
b. Holding: Yes.
i. According to Torts RS 323, a professional is subject to liability to
the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if (a) his failure to
exercise such care increase the risk of such harm
5. HERSKOVITS
a. Issue: Can an estate maintain an action for professional negligence as a
result of failure to timely diagnose a disease, where the estate can show
probable reduction in statistical chance for survival but cannot show and/or
prove that with the timely diagnosis, decedent probably would have lived to
normal life expectancy, where Ps husband at 36% chance of survival
when he first got cancer, was not diagnosed in time; where then his
chance of survival dropped to 25%; whether this reduction in survival is
sufficient cause in-fact evidence that Ds failure to diagnose was proximate
cause of death?
b. Holding: Yes.
c. Rule of law: According to Hamil, once a P has demonstrated that the Ds
acts or omissions have increased the risk of harm to another, such
evidence furnishes a basis for the jury to make a determination as to
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whether such increased risk was in turn a substantial factor in bringing

about the resultant harm. Damages should be awarded caused directly
from the death, i.e., lost earning, additional medical expenses
vii. Taking the loss of chance approach, if Ms. Elys damages are $2M, and theres a 50-50
chance that D caused the negligence, then she should get 50% of $2M (Herskovitz)
$1M.
1. How does Elys case differ from Jorgenson and Herskovitz?
a. Ms. Elys case is not a medical malpractice case. Our case is about
exposure to environmental toxin.
b. Why should loss of chance doctrine in medical malpractice cases be
expanded to these kinds of cases?
i. Its a good idea to have this kind of rule in other areas as well
viii. SPLIT OF AUTHORITY ON LOSS OF CHANCE
1. (211) The minority of courts dont apply the loss of chance doctrine.
a. Application of the loss of chance doctrine to environmental injuries will not
work because there would be only speculative evidence. However, it could
promote good social policy to hold the government and corporations to
avoid accidents that could be prevented through testing.
2. The majority of courts adopt loss of a chance. Why is it good to have loss of
chance?
a. Overall accident cost reduction, i.e., instrumental category
i. the lowest total accident costs in society
ii. (1) accident costs + accident avoidance cost
iii. Doctors will be careful when their patients have a survival rate
lower than 50%
iv. Jorgenson Dissent: this will lead to decrease in availability of
medical care in SD.
b. Justice/fairness for the P to recover injury
i. Proportionality
ii. Jorgenson Example in Dissent (58, 59):
1. All 99 people have cancer.
2. 66 will die anyway because their chance of survival is
under 50%.
3. Under loss of chance, the D pays the just right amount.
The D pays out for the injuries for the total amount that the
Ds negligence caused.
4. The Ps injuries caused by Ds negligence dont get the full
amount, whereas some Ps whose injuries did not come
from Ds negligence, they get some recovery regardless
5. We dont want to do loss chance because with 99
people, we have 99 errors in the outcome of the judicial
system. At least under our present system without loss
of recovery, less error because you only give
compensation to those who were definitely injured
from Ds negligence.
iii. W/o the loss of chance the 33% of truly injured will never recover
its all or nothing.
c. Issue of institutional competence (58, first column)
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ix.

x.
xi.

xii.

i.
This is a big policy change in SD and this is something with lots of
medical complications. This is a job not for the courts, but for the
legislature.
Moab did not get cancer, but he suffered emotional distress. Mr. Moabs concern is not
causation. All of his angst was caused by Ds negligence.
1. What are his claims?
a. Enhanced risk due to exposure to cancer
b. Emotional distress (cancerphobia)
c. Increased medical bills due to consistent visits to doctor
Can he recover?
Elements of ENHANCED RISK
1. Under enhanced risk, is it probable that hes going to get cancer?
2. Cancerphobia: Moab must prove substantial proof that physical/bodily harm
caused that emotional fear.
3. The D must have foreseen that the cancerous agent caused a cancerphobia
4. The emotional distress must be manifested by subsequent physical injury
5. There must subsequent physical impact
6. Medical monitoring: He can recover for medical monitoring so long as he can get
medical testimony that shows that a specific frequency of medical monitoring is
necessary.
AYERS V. TOWNSHIP OF JACKSON (1987)
1. Issue: Can a plaintiff recover damages from a past harm because of a reasonable
probability that exposure to a cancer causes emotional distress and requires future
medical surveillance, where P, after being exposed to cancerous agents in the
water, while D knew about the contamination, suffered from emotional distress at
the reasonable possibility that they could get cancer, and required medical
surveillance to prevent the cancer?
2. Reasoning:
a. Enhanced Risk
i. The only way for a P to recover damages is only if the
prospective consequence of an injury, through reasonable
probability, can be expected to flow from the past harm.
ii. For recovery based on reasonable probability, P must
present sufficient evidence to generate a belief that there is a
strong likelihood risk.
iii. To permit recovery for possible risk of injury will raise all tortious
claims in a boundless proportion. What we do and make part of our
daily diet exposes us to potential harm anyway.
b. Emotional Distress Caused by the Risk of Getting Cancer
Cancerphobia
i. Was it REASONABLY FORESEEABLE that the fright or shock
would be experienced by one exposed to Ds conduct?
ii. It must be that emotional injury, shown by substantial bodily
harm, had resulted from knowledge the P ingested
contaminant.
iii. Without this proof of bodily harm that caused emotional distress,
the task evaluating and quantifying each persons apprehension
would be long and stupid.
c. Medical surveillance
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i.
He can recover for medical monitoring so long as he can get medical
testimony that shows that a specific frequency of medical
monitoring is necessary.

VI.

MULTIPLE DEFENDANT CASE

a. When One of Several Actors are NegligentA Multiple Defendant Problem
b. Problem F
i. P gets cancer from the ingredients of Agent Orange. He knows of the many companies who
produced dioxin and make the Agent Orange.
ii. He has to prove with a preponderance of evidence that D caused negligence.
i. Problem: P doesnt know for sure who did it.
ii. P comes to the problem that all 7 types of Agent Orange have different concentrations of the
dioxin.
III. Its obvious that Ps injury came from Ds negligence of Agent Orange.
1. P cannot prove that its more likely than not that one particular D caused the
injury.
iv. Each D argues that it wasnt me, it was probably one of them.
b. When P is facing multiple defendant causation problem, what is P going to rely on to argue for
recovery? What could P use to get past the causation problem of figuring out who caused the injury
from Agent Orange?
I. FOUR THEORIES OF RECOVERY FROM MULTIPLE DEFENDANTS
1. ALTERNATIVE LIABILITY (Summers v. Tice)
a. Prereqs
I. All Ds must be present in court
II. All Ds must be negligent
iii. Defendants are in better position to determine who actually caused
the harm; they can apportion the damages themselves.
b. Effects
i. The burden of proof is shifted from P to D. So D has to prove that
Ds negligence more likely than not did not cause Ps injuries.
ii. D has to prove that he didnt do it, but the other D did it
c. What if one of the Ds isnt in business anymore or does not have enough
money to pay its liability share?

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I.
JOINT AND SEVERAL: Ds are liable to pay for its own share (i.e.,
joint), but if one or all Ds cant pay, then you all have to pay for it
(i.e., several)
ii. If judgment comes against 2 Ds, and 1 of the 2 is rich, 2 of 2 is
poor, and 2 of 2 cant pay for its share of damages, 1 of 2 has to
cover all damages.
d. SUMMERS V. TICE (1948)
I. Issue: Where a plaintiff is injured by more than one party, but does
not know which one caused an injury, can a judgment against both
defendants stand, where two Ds both shot a quail that was flying in
Ps direction; where D was hit in the eye and in the lip; where the
injury to the eye was more important; where D did not know which
of the two people hit him in the ye?
II. Holding: Yes.
III. Rule of law: Where a plaintiff is injured from the activity of more
than one defendants, and plaintiff cant determine which of the
defendants actually caused the harm, liability falls on all the Ds and
it is up to them to apportion the damages.
2. CONCERT OF ACTION THEORY (Sindell)
a. Prereqs
i. All Ds work in COHORTS
ii. P also charges that D produced DES from COMMON AND
MUTUALLY AGREED UPON FORMULA, more like a commercial
brand drug. But its hard to create a cause of action from this
because the formula for DES is a scientific constant
FUNGIBLE PRODUCT. This conduct of creating the drug in concert
action is a common practice in the industrya producer avails
himself of the methods of others making the same products. There
is no cause of action here.
b. SINDELL V. ABBOTT LABORATORIES (1980)
I. Issue: When a plaintiff is injured from a product produced by
companies consisting of many smaller companies, can P recover
damages though she cannot prove which of the Ds actually caused
the harm, where Ps mother took DES drug; where P then suffered
from cancer; P filed suit against D?
II. Holding: No.
1. P relies on the concert of action theory.
3. ENTERPRISE LIABILITY (Sindell and Hall) -- small number of Ds
a. Go after every D who manufactures a certain product that causes damage.
b. All the Ds must adhere to the same standard of safety (theyre all adding
Dioxin in their products)
c. Each manufacturer could be liable for all injuries caused by virtue of
adherence to an industry wide standard.
d. In Hall, they had delegated certain safety standards to the trade
association
e. SINDELL V. ABBOTT LAB
I. Issue: When a plaintiff is injured from a product produced by a
companies consisting of many smaller companies, can P recover
damages though she cannot prove which of the Ds actually caused
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the harm, where Ps mother took DES drug; where P then suffered
from cancer; P filed suit against D?
ii. P relies on the enterprise liability theory. This theory came from
HALL, where Ps were 13 children injured from explosion of blasting
caps in 10 different states. The gist of the complaint was that the
practice of the industry of omitting a warning on individual blasting
caps and of failing to take other safety measures created
unreasonable risk of harm, resulting in Ps injuries.
4. MARKET SHARE LIABILITY (Sindell; Smith v. Eli Lilly))
a. Prereqs
i. P cant identify the particular D
ii. P must prove that Ds product caused the injury. There must be
proof that D acted negligently.
iii. How many Ds do you have to sue in order to use the MSL theory?
1. Either Ds who have SUBSTANTIAL SHARE IN THE
MARKET (CA COURT) or just ONE D (other courts)
b. Effects
I. MICHIGAN and FLORIDA courts require that the P make
diligent efforts to identify the D who caused the injuries. This is
to get around what the Smith majority was concerned about, that
Ps were better in being unable to identify the D because they can
inevitably recover from other Ds through MSL.
II. A D can exculpate himself by showing that (a) D did not sell or
make the product at that time, or in that area, or (b) the product was
used in a way not intended for use (NY COURT)
iii. Liability in MSL is not joint and severalits just several
1. So not every D would have to pay damages.
2. For example, P suffers $1M in damages
3. Dow and Monsanto make up 57% of the agent orange
manufactory. They would pay 57% of the $1M $570K.
c. SINDELL V. ABBOTT LABS
I. Facts: P sued after developing bladder probs. P joined many Ds,
but not all of them. She didn't know which one caused harm.
II. Issue: Can D be held liable under MSL?
III. Holding: MSL is fair. Ds are better capable of bearing the costs and
it provides an incentive to work on safety concerns. D may be held
liable for their percentage of the market of a product that injured P
unless Ds can prove they have no share in market. All DES cases
involve drugs marketed at certain times. Injuries were 15-20 years
later so no records.
IV. Rule: Under MSL, each D is liable for a portion of award
approx. to its market share.
V. DISSENT: MSL allows P to recover w/o est. causation. It should be
up to the legislators.
VI. Policy: Ds can better share the losses and it is better to allocate a
percent of damage to each D then to have innocent P pay.
d. Is this market share liability going to apply outside of the DES cases? (get
this on BB)
e. SANTIAGO v. SHERWIN WILLIAMS
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f.

I.
Issue: Can you use MSL and find D liable, where P was infected with
lead poison; where D consisted of many companies; where P could
not identify the D that caused the harm?
II. Holding: No. D argues that where DES had signature causes to
create cancer, D asserts that certain hereditary, social, and
environmental factors could have caused Ps injuries. D argues that
P did not suffer from a signature lead paint injury.
1. D has produced evidence to show other factors than
lead pigment in paint were adequate in producing
causes of Ps injuries. The jury could only speculate as
to the degree to which D caused the harm.
2. MSL holds Ds responsible only to the extent that their
product has contributed to the risk of injury to the public. D
argues two reasons as to why its impossible to determine
their contribution to the risk of harm. (1) P holds D
accountable for a time span of 54 year, during the time
when D moved in and out of the market. (2) P holds D
liable as bulk suppliers, not as paint manufacturersD did
not package the paint.
SHOULD MARKET SHARE LIABILITY EXIST?
I. LOSS SPREADING
1. Why is it used?
a. One of the emphases that the courts adopted,
starting with Sindell, was the idea Loss
SpreadingDs can better spread the costs. This
is why MSL exists in the first place
b. Why is society better off if the Ds have to bear the
cost?
i. Deep pockets theyre wealthier, so
they should bear the loss
ii. By spreading the loss, it makes it easier
for Ds to pay the loss
c. We put the loss on the D, and the D can spread
the heavy burden amongst all the other Ds.
Punishment should fit the crime
D. The idea here is that its an instrumental rule in
that society will be better off because there is
less total pain/disutility in society when a loss
is felt by a lot of people rather than a crushing
experienced felt by one person.
II. DETERRENCE
1. MSL is going to over-deter and put manufacturers out of
business because it will cost more for them to make
products and they will be afraid of liability
a. If you dont accept MSL, then all these companies
escape liability for manufacturing a fungible
product
b. W/O MSL, companies have no incentive to behave
safely because if we do, all the other companies
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who are not upgrading safety standards will have

better profit since they are selling their goods at a
lower price
2. Is MSL an accurate deterrent?
a. In theory, each company is liable for its share
involved in the market, so we create the just right
amount of deterrence.
B. But, in actuality, MSL is not really a likely
deterrent. Ps took drugs in the late 1950s and
now theyre bringing a tort lawsuit 30 years
later.
III. FAIRNESS/JUSTICE
1. Innocent v. wrongdoers
2. Proportionality: is D being held liable in proportion to that
share of the risk that they put out on society? MSL does
just that.
3. (Smith 73) Because its impossible to determine with
accuracy what a companys market share is that you would
have liability being too arbitrary and too inconsistent.
4. Pay for injuries that you didnt cause.
VII.

VALUATION
a. PROBLEM G
i. What could Pilly P argue?
1. I didnt cause her death
2. All that Pilly took away from Madelaine was 10% sight loss, so Pilly P pays 10% of
her loss until she dies.
ii. What could Madelaine G sue for?
1. Blindness caused by the medicine made by Pilly P
iii. What about Richard?
1. If he negligently drove, then Madelaine could sue him
a. Richards defense: youre going blind anyway!
2. The damages she would get from Richard would be reduced damages.
3. If Richard is negligent, the courts must figure what the dollar damages would have
been if Madelaine was completely healthy.
a. Then they have to assess the damages that Madelaine would receive if
she was blinded in one year
b. If she can recover a 10% loss from Pilly P and also an assessed damages
from Richard. If Richard is not negligent, then all she can recover is the
10% loss from Pilly P.
iv. Just because Madelaine dies, Pilly gets off the hook and only pays 10% loss.
1. What if Madelaine takes the drugs, finds out that shes going to be blind, and then
goes crazy and goes into a coma.
2. Pilly now has to pay 10% loss ALONG with the liability that it precipitated the
delirium
a. Pilly could argue that it was foreseeable that someone would be blinded by
the medicine, but we had no idea that a person would have delirium
tremens and suffer from comatose.
b. Ps injury would have had occurred anyway.
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c. Take your plaintiff as you find himthe unforseeability of the injury

doesnt matter. When you do something that physically injures someone
else, and that they if they are thin, egg-shell skull rule
d. What if D argued: this person was so fragile that he would have died
anyway very soon. In this case, D has to PROVE IT
v. So how does this relate to Pilly Ps chance to get away with liability if they only have to pay
for the 10% liability.
vi. The law doesnt hold you liable for whats expected; the law holds you liable for what
actually happens.
1. Cricket ball hits someone who suffers for dizziness and headacheyou pay for
that.
2. Cricket ball hits kid and shatters his egg-shell skullD pays because of the
consequences that Ds action caused in fact.
vii. DILLON V. TWIN STATE GAS & ELECTRIC KID ELECTROCUTED BY BRIDGE WIRE
1. Issue: Should a D have a duty of care to prevent injury to a P who uses certain
property for its wrongful use, where D owned electrical lines along a bridge; where
P and others climbed and played on the bridge; where P lost balance on the bridge
and grabbed onto the wires; where P was shocked, let go and was killed?
2. Holding: Yes.
a. If, but for the wires, the boy would have fallen, then D did not deprive him
of life expectancy long enough to be given too much $.
b. D would only be liable for suffering sustained by P by the shock alone.
Likewise, evidence that the boy would've been maimed by the fall should
be taken into account to determining damaged to earning capacity as
though he had already been maimed.
c. If he becomes maimed and survives, D should only pay for lost earnings
as maimed person.
3. Notes:
a. Suppose the kid would have fallen and diedwhat could P recover?
b. Kid could recover for the pain and suffering of the wires zap that he
otherwise would have not endured.
c. What if he fell and got maimed? Can P recover?
d. If he would have been maimed, had he fallen, then D took away his life as
a maimed, disabled person.
e. If you had preexisting disabilities and then you got maimed, D has to pay
damages for the earnings P would have made as a maimed disabled

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VIII.

PROXIMATE CAUSE: SEPARATE FROM CAUSATION

a. Things to remember
i. The P must satisfy this requirement Ds negligence caused Ps injury
ii. Proximate cause is in fact different from cause
1. Cause in fact: essence of what D is arguing is that this injury probably would have
happened anyway even if D had been careful
2. Proximate cause: essence of Ds argument is that there is something about the
connection between Ds negligence and the way this injury happened where I
should not be held liable.
3. Focus on Defendants argument: Connection between negligent conduct and
injuries that means should NOT be liable
b. Basic Proximate Cause Considerations:
i. The directness or indirectness of the actual chain (was the chain natural and continuous or
were there intervening causes)
ii. The nearness or remoteness in space and time of Ds breach to Ps injury;
iii. The foreseeability of the kind and scope of injury; and
iv. Notions of policy and justice.
c. Proximate cause is a series of three problems:
I.

Bizarre results cases

i. Spreading fires, e.g., RYAN V. NY CENTRAL RR
1. Issue: When A causes a fire which burns down B, and the fire from Bs house burns
down Cs house, is A liable for proximately causing damage to Cs house when it
wasnt foreseeable that Cs house would be burned?
2. Holding: No. Damages caused from remote negligence and added elements and
circumstances not related to Ds negligence.
a. You are liable for the proximate results of his own acts, not the remote acts
3. RYAN provides two part test to determine a remote accident:
a. If the accident is not a (1) natural and (2) expected result, its not a
proximate cause of damage
ii. HYPO:
1. Carrie drives the other way down 5th avenue, gets into accident. Cars tire comes
loose, hits a flag, and ricochets towards Tiffanys display case and causes $3M in
damages.
2. Tiffanys v. Carrie McMahon
a. Is Carrie negligent? Yes.
b. Ds argument: my negligence wasnt the proximate cause
i. (supp. 89) Why shouldnt D be liable for the damages caused to
Tiffanys?
1. Unlimited liability can include all the accidents that both
remotely and proximately result from that car accident
a. Liability would be so great so as to destroy
civilization
b. There would be mammoth liability, where A would
be liable for Zs damages.
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2. Reasonable security against their own losses: we want

to force one of them to get insurance cheaply to expend
a. It would be better to spread the loss of insurance
3. The problem of intervening causes, where the D is
essentially saying, yes I was negligent, but someone else
intervened in a way that I shouldnt be liable for that result
4. Another is actually responsiblethere was somebody
else who was really responsible of taking care of this P and
they should be the ones responsible for Ps injury.
5. Hypo, Mr. Alvarezthe manufacturers should not
responsible for making the Agent Orange; the US
government should be responsible for looking out for their
shoulders.
iii. DELLWO V PEARSON
1. Issue: Where a Ds negligent cause a chain of direct events which ultimately lead
to Ps injuries, is D liable for proximate injuries, whether or not they were
foreseeable, where P was fishing with 40 feet of lining following the boat; where Ds
boat crossed Ps and caught the lining, wrapping the lining around the motor,
snapping the rod and injuring P?
2. Holding: Yes, jury was incorrectly instructed
3. Reasoning: Whether or not the D could have foreseen the injury occurring, if the
act is negligent and causes injury, then that person is guilty and equally liable for all
its natural and proximate causes.
a. Although the D could have not anticipated the particular injury from
happening, if Ds act is one in which D could have anticipated it was likely
to cause injury, then he is liable for any injury proximately resulting from it.
Proximate cause should not be determined based on the foreseeability of
injury resulting from ones negligent act. From the Ds negligent act,
consequences that follow in unbroken sequence, without an intervening
efficient cause, from the original negligent act, are natural and proximate.
4. Rule of law: From the Ds negligent act, consequences that follow in unbroken
sequence, without an intervening efficient cause, from the original negligent act, are
natural and proximate, and D is liable even if he could not foresee the injury from
occurring.
5. Consequences which follow in unbroken sequence, without an intervening efficient
cause, from the original negligent act, are natural and proximate
6. If the damages are directly traceable from Ds negligence, then there is proximate
cause
7. DIRECT RESULTS TEST: do the actions follow in an unbroken sequence, do
they follow directly?
iv. WAGON MOUND 1 v. WAGON MOUND 2
1. Wagon Mound 1 based proximate cause only those injuries which were reasonably
foreseeable
a. WAGON MOUND 1
i. In hindsight, IN RE POLEMIS: (P chartered its ship to D's. While
D's were unloading it at the end of the voyage, a plank was
negligently dropped into a hull where flammable chemicals were, a
fire resulted and the ship destroyed.) Even though the damage was
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not foreseeable, the destruction of the boat was the direct result of
negligence.
ii. Issue: Is D liable for the damages that were not foreseeable, where
Ds ship spilled oil in a harbor, where workers were using acetylene
torches in repairing the wharf, where D assured the workers that
the oil would not ignite from the torches, where few days later the
wharf blew up, and where D argued that negligence because the
explosion was unforeseeable?
iii. Holding: Says Polemis-rule is bad law. Reasonable
foreseeability test. Here the fire was unforeseeable; hence, no
liability
iv. Rule of law: D is only liable for the proximate cause of his actions if
the damages from that negligence are foreseeable. narrow
definition
b. WAGON MOUND 2
i. Wagon Mound 2 decides that the burning of the ships was
foreseeable
ii. The Court broadly acknowledges what is reasonably foreseeable
iii. The Court explicitly refers to the finding by the lower court, that if D
had given attention to the risk of the consequence, would he have
RE: it as possible consequence, then that consequence is a
reasonably foreseeable consequence
iv. The Court in Wagon Mound 2 agrees with Wagon Mound 1
2. The trial court in Wagon Mound 1 saw a different picture than the court in Wagon
Mound 2 did
a. In 1, the Ps are the owners of the dock. The owners of the dock at the time
had people using acetylene torches. Therefore, when P was suing, they
couldnt come in and say that it was really obvious that the oil could catch
fire.
b. In the second case, if D had been asked if it would catch on fire
v. POLEMIS and DELLWO look at the INNOCENT v. WRONGDOER approach
1. If someone innocent is injured because of the negligence of someone else, the
innocent person should be able to recover.
vi. PALSGRAF V. LIRR
1. Issue: If Ds negligent conduct results in some foreseeable personal injury to P, is D
liable for the full extent of Ps injuries even if they are more serious than could
reasonably have been foreseen, where D had helped an individual up onto the
train, where the newspaper fell; where D did not think that fireworks were in the
paper, thus not thinking that P was in any foreseeable danger; where the fireworks
went off and proximately injured P?
2. Holding: No.
a. Since D's conduct did not involve an unreasonable risk of harm to P, and
the damage to her was not foreseeable, the fact that the conduct was
unjustifiably risky to someone else is irrelevant.
b. P could only recover only if she can establish that she was located in a
foreseeable zone of danger.
3. Rule of law: If Ds negligent conduct results in some foreseeable personal
injury to P, then D is liable for the full extent of Ps injuries even if they are
more serious than could reasonably have been foreseen.
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4. Notes:
a. The P must be in the zone of foreseeable danger, and Palsgrafs injury
was not foreseeable.
b. Dissent:
i. Was there a natural and continuous sequence?
ii. Could the result have been foreseen?
iii. Pay attention to the remoteness in time and space
iv. His test is there really isnt a clear test. This is all a question of
expedience.
v. If P x L is reasonably foreseeable, then we should charge D liable
for all of those damages which are reasonably foreseeable and
which is beautifully proportional (notion of fairness)
vii. PETITION OF KINSMAN TRANSIT CO CASE ( text 258)
1. 3 Defendants
a. Shiras had boat moored at Buffalo River, broke free and knocked another
ship, Continental, heading towards the drawbridge
b. City of Buffalo doesnt open the drawbridge in time and the ships smash
into the bridge, and the ice coming up creates a dam, and floods the entire
town up the river?
c. How bizarre.
2. The court decided that Shiras could have foreseen that if they didnt moor the boat
correctly the river could dam up. Buffalo should have foreseen that if they didnt do
anything, flood could happen. But Continental could not have reasonably foreseen
that they would be negligent. Nevertheless, the Kings court, expressing sympathy
in POLEMIS Approach, looked at P x L approach.
a. THE COURT WILL GIVE LIABILITY EVEN IF THE DAMAGES WERE
NOT REASONABLY FORESEEABLE IF:
I. CONSEQUENCES ARE DIRECT
II. DAMAGE THAT OCCURS IS OF THE SAME GENERAL SORT
THAT WAS RISKED AND
III. THE DAMAGE CAME FROM THE SAME FORCES (CURRENT,
OTHER BOATS) THAT REQUIRED THE D TO EXERCISE DUE
CARE IN THE FIRST PLACE
viii. When deaing with Bizarre Cases, look at 4 categories
1. Weird Plaintiff
a. Most all American courts except the Cardozo view in PALSGRAF hold that
only those Ps within the zone of danger can recover damages
i. But, you have to recognize that what is reasonably foreseeable can
be defined broadly OR narrowly
ii. Wagon Mound 2 is example: the infinitesimal risk that was shown
through the cricket ball that was hit from outside the stadium and hit
someone outside the street.
iii. On the other hand, if you look at jury instruction in Delllwo, theres
only going to be foreseeable harm if it was probable according to
ordinary experience.
2. Weird Consequences
a. Narrow v. broad definitions of what consequences are foreseeable
i. Thin skull consequences (take your plaintiff as you find him)
3. Weird Harm
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a. If the risk you created was harm to people, but what occurred to property,
then that is not proximate causeCOURTS DONT BUY THIS
4. Weird Manner
a. If the harm is foreseeable to a P, does it matter that the way the harm
happens is unforeseeable?
b. Most courts say NO (United Novelty v. DanielsD goes to his employee,
hands him gasoline soaked rag and says, clean the room where the open
flame heater is. He takes the rag, cleans the refrigerator, gas dripping onto
a rat. Runs across the room to the gas heater.
c. D was found liable because the consequences were foreseeable, and that
it happened in a weird manner was immaterial.
d. Part II of Proximate Cause:
II.

Intervening Causes
I. Under what circumstances will a 2nd cause relieve the original, negligent
defendant of liability where his original negligence was the cause of the Ps
injury?
1. Intervening conduct can be by another individual, an event, or an act of
God.
2. Its important to remember that the intervening cause can also be held
liable. There can be more than one proximate cause.
II. A SUPERCEDING, INTERVENING CAUSE breaks the chain of proximate
cause between Ds negligence and Ps injury
iii. PROBLEM H
1. Ds truck carries untied logs which fall over and cause Ps car to stop.
He gets out and gets hit by another car. Is D liable for proximately
causing Ps injuries?
2. Should there be directed verdict in favor of D lumber company?
A. One could argue No and cite MARSHALL.
I. MARSHALL v. NUGENT (BB #2, 95)
1. Issue: Did Princes negligent driving
proximately caused the injury that P suffered
from Nugent, where P was passenger in car
that was traveling down a road packed with
snow, where oil truck driven by Prince was
coming in the opposite direction and merged
into Ps lane, where Ps car stopped on the
side of road, where at the time no one was
injured, where P went up the hill and warn
people that cars were stuck, where he was hit
by D driving down the hill?
2. Holding: Yes.
3. Reasoning: Even though the danger was
temporarily over after Soconys negligent
driving, the extra risks created by Princes
driving were not all over at the moment the
primary risk of collision between the turck and
Chevy happened. The injury P received by
being hit by Ds car was not remote from
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Princes negligent driving, and it occurred while

the traffic mix-up occasioned by Ds
negligence was still persisting, not after the
traffic flow had become normal again.
4. Rule of law: Where the action between one
partys negligence is direct to and
inseparable from a 3rd partys negligence,
and there is foreseeability that danger
could result from 3rd party negligence, the
primary tortfeasor is liable for proximately
causing Ps injury. Because it was
foreseeable that the P would try to warn
other motorists of the danger ahead
created by the initial accident, the D's
negligence is the proximate cause of the
P's injury when struck by a 3rd
(intervening) car. (If the injury had occurred
after the risk situation was gone, (five miles
down the road), then the D's negligence
would not be the proximate cause.)
II. This analogous fact pattern
III. MARSHALL court rules that lower courts ruling is right
in refusing to grant directed verdict. Hence if the case
in Problem in H was denied direct verdict, the court in
appeal should affirm the denial, too.
B. Conversely, one could argue Yes
I. Fact pattern is somewhat different considering that the
driver who hit P in Problem H was drunk. The driver in
Marshall was innocent. The intervening act in Problem
H is criminal; the intervening act in Marshall was
accidental.
C. DERDIARIAN
i. Issue: Is Dickens (3rd party) negligence a superceding
event that would break the causal link between Ps
injury and Ds negligence, where Dickens fell
unconscious, allowing his car to careen into the
construction site; where the car then hit P; where P
landed and 400 degree liquid fell on him; where D had
failed to take precautions; where P was injured?
ii. Holding: No.
iii. Reasoning: Liability turns upon whether the
intervening act is a normal or foreseeable
consequence of the situation created by the Ds
negligence.
1. If the intervening act is extraordinary under
the circumstances, not foreseeable in the
normal course of events, or independent of or
far removed from the Ds conduct, it may well
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be a superseding act which breaks the causal

link.
2. D negligently failed to safeguard the site. A
prime foreseeable consequence of Ds
negligence is to have car negligently enter the
work site and injure a worker.
IV. Rule of law: Where a 3rd partys negligent actions
triggers a succession of negligence, thereby
establishing a causal link between Ps injury and
Ds negligence, as long as the 3rd partys
intervening act is normal and a foreseeable
consequence, the causal link is not severed, and D
is liable for Ps injuries.
3. When determining proximate cause, look at the scope of the risk, i.e.,
the foreseeability of the consequences that might occur.
A. What makes you decide that D was negligent?
I. B < P x L
II. Is the harm that happened included in the P and L that
could be expected?
III. Restatement (2nd): if the intervening act is reasonably
foreseeable, then the intervening act does not break
the chain of causation. If the intervening is so extreme
or is not foreseeable, then it does not break the chain
of causation.
1. This is the majority approach
IV. Restatement (3rd) helps you ask, Was that intervening
damage foreseeable?
V. Split in the approach that the courts used
B. WATSON
i. Issue: Where Duerr, acting as 3rd party intervener, lit
the match and dropped it into the gas, did he just drop
it into the gas unknowingly, where the explosion
caused injuries to P which would hold D proximately
liable for the damages; or did did Duerr drop the match
into the gas purposefully and maliciously, which would
break the causal link between Ps damages and Ds
negligence, thereby finding Duerr instead liable for
wanton negligence?
ii. Holding: If Duerrs act was malicious, the explosion
was one which could not have been reasonably
anticipated or guarded against, and in such case the
act of Duerr, and not the primary negligence of D, was
the efficient and proximate cause of the Ps injuries.
III. Rule of law: If X acted negligently in lighting the
spilled gas with his match, then D would be held
liable because that would be foreseeable. If X
acted intentionally/criminally, then D would not be
held liable for the injury to P because such an act
would be unforeseeable.
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III.

SPECIAL CATEGORIES
a. Element (4): But, is there something special about these cases that pushes us to
not hold D liable for negligent conduct? (e.g., D had no duty to help a stranger
after a tree fell on top of him.)
b. Subpart (1) FAILURE TO ACT
I. HYPO
1. March 13, 1964; NY City. Kitty Genovese is walking home at night. She
passes by her apartment complex and is stabbed by attacker. She
screams. In the complex, the lights go on, and someone yells at
attacker. He leaves. Lights go on, he comes back and kills her. No one
helped her.
2. From the time of the initial attack to the first time police was called, 35
minutes elapsed.
3. If estate of Kitty brings lawsuit against those who failed to provide help,
can the estate recover?
4. There is no duty or obligation enforceable for someone to come to
the aid of another when in peril, even if its considered
unreasonable.
II. WHY shouldnt there be a tort rule that would be similar to MN statute on pg.
308 that says at least where someone can provide assistance w/o creating a
danger to himself or loved ones that they would then be liable in failing to assist
another whose life is in danger?
1. Theres no obligation to assist others even if its unreasonable. Tort law
will not impose an obligation or a duty to assist another. MORAL
2. YANIA v. BIGAN
A. Issue: Is D liable for not acting to rescue P, where D dug 8-10
feet deep hole to pump out water; where P helped him out;
where D taunted him to jump in; where P drowned and D did
not help him?
B. Holding: No.
C. Reasoning: P had jumped on his own volition. Had he been a
child or mentally disabled, then D would be liable, but Yania
was an adult in full possession of his mental faculties. D is not
liable.
I. In RE: to whether or not D had a duty to rescue P from
drowning, the court holds that D did not owe him a
legal obligation to save him. As from Brown v. French,
He voluntarily placed himself in the way of danger,
and his death was the result of his own act. That his
undertaking was an exceedingly reckless and
dangerous one, the event proves, but there was no
one to blame for it but himself.
D. Rule of law: Where an individual places himself in danger
based on his own volition, and is placed in peril, the D is
not required by law to save him.
III. Is this no-obligation idea stupid? Shouldnt there be something like the criminal
provisions on the MN statute that essentially imposes the duty of what Weinrib
calls the duty of easy rescue?
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IV.
Why are people essentially altruistic?
1. Positive reinforcement
V. We want to achieve some instrumental/utilitarian effect by being altruistic?
1. Will this utilitarian effect change peoples behavior?
2. Will this behavior be effective?
3. Notions of morality
c. PROBLEM I
I. Potter got into accident and let Harper die. Potter wants to cover up affair. Can
we take this case?
II. Under Ethics of Law, we cant the take because it would be perpetuating a
crime.
III. If we cant file an answer denying some of the complaints, which would be
against Rule 4.1 (BB 102), can we file summary judgment, that Blakes driving
was negligent?
1. Blakes negligence
2. D was there; D went to car and said Ill get help.
A. Potter had no obligation to help Blake and Harper.
B. Can Potter still win and get off the hook?
C. What are the exceptions to non-liability?
IV. You may be obligated to help if:
1. There is a SPECIAL RELATIONSHIP
A. What makes a relationship special?
I. If someone turns over his well-being over to another
party, then there is a fiduciary care
2. There is an UNDERTAKING + RELIANCE
A. Is going over to the car an undertaking?
B. As a result of Ds discontinuance of helping, Ps condition was
further worsened.
C. The Courts usually require two things:
I. (a) reasonable reliance
II. (b) knowledge on D that execution of rescue is
necessary to save the P
D. ERIE v. STEWART
i. Issue: Where P relies on the voluntary services of a
watchman, and D fails to operate a duty of care by
failing to notify passengers that the watchman is not
there, is D liable for injuries, where P relied on
watchman to guide Ps travels along the RR, where D
did not employ its watchman, where D struck P?
ii. Holding: Yes.
1. Responsibility for injury will arise if the service
be negligently performed or abandoned
without other notice of the fact.
III. Rule: If there is a reliance on the extra care, then a
failure to provide the care will result in negligence
when P is injured.
iv. Related Cases:
1. Crowley v. Spivey
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a. Facts: P let his parents take his

children away for a weekend to visit
their mother. Grandparents let the
children with the mother who was
mentally ill and she killed them.
b. Holding: Because the father had
relied on the grandparents assurance
that their children would be alright, the
court reasoned that the fathers
reliance on Ds gave rise to a duty to
protect the children.
2. Mixon v. Dobbs House
a. The court ruled that the P stated a
cause of action by alleging that her
husbands employer, D, had promised
to relay to her husband her messages
that she had gone into labor, but D
had failed to do so, leaving her to give
birth alone at home, unaided.
3. Wakulich v. Mraz
a. Facts: Girl drank hard liquor to the
peer pressure of some kids, and she
died the next morning. Her friends
tried to prop her head on a pillow.
They did not let anyone else help her.
They did not call ambulance
b. Holding: Appellate court admitted that
Ds did not become obligated to act
merely by exerting social pressure and
offering prize for Ps decedent to drink,
the court held that jury could find D
negligent for failing to rescue her after
they began helping her by removing
her shirt and propping her head on
pillow. By not calling ambulance,
taking her to the hospital, or allowing
others to aid her, D could have been
found liable in not following through in
helping her.
c. Rule: If you already engage in an
undertaking to help someone, youre
required to complete that assistance,
and you act unreasonably in the
course of that undertaking, you could
be held liable.
4. LACEY v US COAST GUARD: usually, you
cannot put a P back in a perilous situation if
youve brought the person to a position to
safety.
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3. INSTRUMENTALITY of D caused peril accident

A. AYRES v. HICKS
I. The instrumentality that was under the control of the D
aggravated the original accident.
ii. Issue: Where the D is not liable for the injuries since
the injury was a result of the Ps negligence, and where
the injury was not foreseeable that such an injury could
have occurred, is D liable for nevertheless aggravating
the injuries in failing to assist the P, where Ps fingers
were caught in the teeth of the escalator, where D
failed to take necessary duty of care to rescue the kid?
iii. Holding: While D should not be liable for all phases of
the injury, as the jury was improperly instructed, D
should only be liable for aggravating the injury after the
accident occurred.
1. Such an obligation to rescue someone who is
helpless may exist although the accident was
caused by Ps own negligence. Thus,
Appellant cannot be charged with its
anticipation or prevention but only with failure
to exercise reasonable care to avoid
aggravation.
IV. Rule: Where the accident was a result of Ps own
negligence, and where D could not have
anticipated such an injury from occurring, D can
only be liable for Ps injuries that were aggravated
as a result of Ds negligence following the
accident.
1. If an instrumentality under the control of D is
responsible for Ps predicament, even if P was
not negligent, then the D has an obligation to
provide reasonable assistance
d. Subpart (2) THE FAILURE TO PROTECT
I. We are dealing with situations in which the D is someone who failed to do
something to stop a dangerous person who hurt the P
ii. Two parts to Subpart (2):
1. (a) Under what circumstances must a potential D protect someone
else from this dangerous 3rd party?
A. There either has to be special relationship between D and 3 rd
party or between the D and the P.
B. 5 element test that determines whether a duty should be
imposed
I. (a) Foreseeability/severity (According to JS and
TARASOFF, this is the most crucial element or the 5part test)
II. (b) Opportunity to exercise care to prevent harm
III. (c) Comparative interests
IV. (d) Relationship b/t parties
V. (e) Public policy and fairness
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C. When you weigh the risks of injuries happening against the

slight costs of interfering with marital harmony, we opt for
imposing the obligation (standard B < P x L analysis)
2. (b) What must the D do in order to protect that someone?
A. If there is an obligation to protect P, what must D do?
I. The D must ACT REASONABLY
III. The special relationships have been limited
1. Doctor/patient
2. Therapist patient
3. Employer/employee
4. Parent/child
A. Parent has to know or should know of his ability to take care of
the child
B. The parent has to know of the necessity and the opportunity for
exercising control
C. Most often, the dangerous behavior has to be directed at a
specific person
D. But sometimes, courts are willing to include the P on particular
members of a class
IV. TARASOFF v. REGENTS of UC
1. Issue: Where D knew of the 3rd partys danger but failed to do so, is D
held liable for proximately causing Tatianas death, where Poddar
confided in Moore that he was going to kill her; where Moore knew of
the potential foreseeability but failed to take action to prevent her
death?
2. Holding: Yes, Moore is liable for breaching a fiduciary obligation to
protect 3rd parties from the harm caused by his patients.
A. The most important element in determining whether liability
should be imposed is the issue of foreseeability.
B. As a general rule, under common law, a person owes no duty
of care to another, but the courts have carved out an exception
to this rule in cases where the D stands in some relationship
to either the person whose conduct needs to be controlled
or in a relationship to the foreseeable victim.
C. P est. that there is relationship b/t Poddar and D therapist.
There is a SPLIT OF AUTHORITY as to what constitutes a
special relationship. (1) CA recognizes a relationship in which D
has relation to both the victim and the person whose conduct
causes the danger; (2) decisions of other courts hold that single
relationship of a doctor to his patient is sufficient to support the
duty to exercise reasonable care.
D. A psychiatrist must conform to his standard of profession and
must make the diagnoses.
I. While the therapist doesnt have to render a perfect
performance, the therapist need only exercise that
reasonable degree of skill and care is used.
E. Therapists obligation to his patient require that he not
disclose a confidence unless such disclosure is necessary
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to avert the danger of others, and even then that he do so

discreetly.
F. A physician may not reveal the confidence entrusted to him in
the course of medical attendanceunless he is required to do
so by law or unless it becomes necessary in order to protect
the welfare of the community.
G. Protective privilege ends with public peril begins.
3. Rule: Where D therapist is aware that a 3rd party is in danger from
his/her patient, D is required by fiduciary care to prevent that harm
if it is foreseeable. Physician may not disclose confidential
information entrusted to him unless he is required to do so by law
or unless it becomes necessary to protect welfare or individual or
community.
4. Notes:
A. Therapists have an obligation to defend because of their
relationship with the dangerous patient doctor/patient
relationship
B. The therapist has special training and probably what the AMA is
saying is that doctors really dont have specialized training in
predicting foreseeable danger.
V. JS & MS v. RTHThe wife is uniquely situated to foresee possible harm to the
P.
1. Issue: If a wife suspects or should suspect her husband of actual or
possible sexual abuse of their childrens, does she had a duty of care to
prevent the abuse, and if she fails to do so, does that breach of duty of
care constitute proximate cause of the harm, where Ps were abused by
John, where Mary knew or should have known of the abuse but did not
exercise a duty of care to stop the abuse because of her belief that she
did not have to do anything?
2. Holding: Yes; based on large measure on the strong social policy or
protecting children from sexual abuse, we conclude that there is a
sound, indeed, compelling basis for the imposition of duty on a wife
whose husband poses the threat of sexually victimizing young children.
3. Reasoning:
A. The ability to foresee injury to a potential P is crucial in
determining whether a duty should be imposed.
B. While the societal interest of protecting children is > marital
privacy and
C. On the issue of proximate causation, the harm from Marys
breach of duty is both direct and predictable. There is little
question, here, that the physical and emotional injuries
allegedly suffered by the girls are hardly an extraordinary result
of Johns act of molestation, and that their victimization is not
an extraordinary consequence of Marys own negligence.
4. Rule of law: when a spouse has actual knowledge or special
reason to know of the likelihood of his of her spouse engaging in
sexually abusive behavior against a particular person or persons,
a spouse has a duty of care to take reasonable steps to prevent or
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warn of the harm. Further, we hold that a breach of such a duty

constitutes a proximate cause of the resultant injury.
VI. Eaves Brooks v. YBH Realty (1990)
1. Issue: Was the D assumed a duty to exercise reasonable care to
prevent foreseeable harm to the P, where P made contract with D,
where D then made contract with sprinkler company and fire detection
company; where sprinklers malfunctioned; where P sued the 3 rd party
instead of solely D for its duty of care?
2. Reasoning: It is the responsibility of the courts, in fixing the ORBIT OF
DUTY, to limit the legal consequences of wrongs to a controllable
degree. The courts definition of an orbit of duty based on public policy
may at times result in the exclusion of some who might otherwise have
recovered for losses or injuries if traditional tort principles had been
applied.
A. Liability should be not imposed upon the sprinkler company
and fire detection company.
B. P is not precluded from seeking damages from D owner since
both are in a position to insure against losses such as those
sustained there. P and D know the value of the goods and can
negotiate cost of the lease and limitations on liability.
C. If the 3rd parties were held liable, however, they would be forced
to insure against a risk the amount of which they may not know
and cannot control. The result would be higher insurance
premiums passed along through higher rates to all who require
the sprinkler system and alarm services.
3. Notes:
A. QUESTION: why does the court conclude that there is no duty
on the part of the two Ds to behave carefully with RE: to the P?
B. (BB 105): The court is saying that ultimately it remains up to the
court to determine whether as a matter of policy the alleged
negligence should result in liability.
C. In general, when you hear yourself using the term duty,
immediately think of dog doodee because you aint sayin S***
when youre merely saying duty.
D. You have to look at the conclusions that the courts reach to
determine that there is a duty or not.
E. So in EAVESBROOK, why isnt there a duty between two Ds
and the P?
I. (1) Contract was solely between the owner and the
tenant and did not include the defendant companies.
They have to limit the legal consequences of wrong to
a controllable degree
F. (2) The court is suggesting here that compensation depends to
an extent of availability of insurance and the property owners
are in better position to insure because they know the value of
the property.
G. (3) Higher insurance premiums (I have to pay so much
insurance because the Insurance Co. has to jack the prices up)
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H. For example, Social work student and law student both get
injured from Honda Civic accident. They pay the same for the
car, but Russ gets more money in return from tort recovery
from Honda.
I. Why?
I. Just by coming to law school, you are significantly
worth more than you were before coming to law
school.
II. What tort law does is make the social student
subsidize for Russ injuries.

IV.

NEGLIGENT INFLICTION OF ECONOMIC LOSS

a. HYPO: Exxon Valdez Spill; who can recover?
I. Hotels beach fouled
1. An exception to the Dry Dock Rule is that where physical damage on
their property
II. Commercial fishers
1. Fishermen can recover damages although they didnt suffer physical
damages
III. Hotel inlands ruin tourist attraction
IV. Pipeline owners, because of the mess, lose money from lack of oil tankers
b. What are the downsides of holding the D liable for ALL of the damages?
i. Practical Administrative Reasons
1. Limitless liability
2. Process consideration that judges can used to adjudicate.
A. One of the concerns to deal with finding the D liable for ALL
damages is the disproportionality
ii. Disproportionality
1. Courts must be able to apply legal rules to distinguish cases based on
uniform rule rather than adjudicating on case-by-case basis.
c. Majority in TESTBANK
I. Liability for econ loss where there is property damage
II. Process concerns legal rules that are sufficiently clear that the courts and
juries applying them can make decisions with some degree of confidence.
III. Whats difficult to figure out: was the harm foreseeable?
d. Two things you have to ask yourself
I. (1) Is it true? Will the rule that the P is advocating end up in crushing liability
against the D?
II. (2) So what? We have companies that cause massive destruction and the only
reason that they will have a crushing liability on them is because they have
caused a lot of damage, and if they get crushed, then so be itthey deserve it.
e. STATE OF LA, EX REL GUSTE v. M/V TESTBANK (1985)
i. Procedural History: 41 lawsuits were filed. Suits presented claims of shipping
interests, marina and boat renal operators, wholesale and retail seafood
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ii.
iii.
iv.

V.
vi.
vii.

enterprises, and recreational fisherman. D moved for SJ. Ds request was

granted except for those asserted by commercial oystermen, shrimpers,
crabbers and fishermen who had been making a commercial use of the waters.
1. ROBINS DRY DOCK: D dry dock negligently damaged vessels
propeller. The commander of the ship was the owner of the ship, but
had contracted with the owner of the vessel. The propeller had to be
replaced, thus extending two weeks without the vessel and P sued for
economic loss (loss of profits). The court held that no authority need be
cited to show that, as a general rule, at least, a tort to the person or
property or one man does not make the tort-feasor liable to another
merely because the injured person was under a contract with that other
unknown to the doer of the we
2. James Facts- A guy rented a boat to use as a charter. He did not
own the boat and had no legal claim if it got damaged. The
defendant was a dry dock that negligently damaged the boat. The
renter, who had no claim over damages, tried to sue for economic
loss due to the boat being out of commission for two weeks, in
which time the renter could not use it.
Issue: Under the Robins Dry Dock Rule, can P recover for economic damages
when there was no physical harm, where Ds ship collided with another, spilled
PCP, and resulted in the economic damage of everyone in the MS area?
Holding: No, the Robins Dry Dock rule holds where there is no recovery if
economic damages are not accompanied by physical harm.
Reasoning:
1. With a disaster inflicting large and reverberating injuries through the
economy, as here, we believe that the more important economic injury
is that of the relative cost of administration, and in maritime matters
administration quickly involves insurance.
Rule: Ps may not recover pure economic loss in tort without accompanying
physical injuries. D should only be liable for those damages which are
reasonably foreseeable.
Notes:
1. Denying recovery for pure economic losses is a pragmatic limitation
on the doctrine of foreseeability.
Related cases:
1. J'AIRE CORP. V. GREGORY
A. Facts
I. P rents restaurant from X. X contracts with D to do
improvements on restaurant. D does slow & negligent
work. P sues D for Economic loss. (Loss of business
and heat)
B. Held
I. Contractor owes a duty of care to tenant of building
undergoing construction when diligence is not used,
and foreseeable economic loss incurred by other party;
P may recover damages for profits lost during time
necessary to repair/replace property.
II. Where a special relationship exists between the
parties, a P may recover for loss of expected economic
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advantage through the negligent performance of a

contract, although the parties were not in contractual
privity. Reasonable foreseeability is key!
C. The 6 factors the court should look at are:
I. (1) The extent to which the transaction was intended to
affect the P;
II. (2) The foreseeability of harm to the P; (these cases
turn on a narrow or broad interpretation
III. (3) The moral blame attached to D's conduct
IV. (4) The degree of certainty that the P suffered injury;
V. (5) The closeness of the connection between the D's
conduct & the injury suffered
VI. (6) The policy of preventing future harm.
D. PUBLIC POLICY: danger in allowing recovery: excessive
liability; creation of undue burden on freedom of action,
possibility of fraudulent claims and the often speculative nature
of damages. Central to these fears is the possibility that liability
will be imposed for remote consequences, out of proportion to
the magnitude of the D's wrongful conduct. Danger in denying
recovery: focusing judicial attention on the foreseeability of the
injury and the nexus b/w the D's conduct and the P's injury.
f. PEOPLE EXPRESS AIRLINES, INC. v. CONSOLIDATED RAIL CORP. (1985)
i. Issue: Whether a Ds negligent conduct that interferes with a Ps business
resulting in purely economic loss, unaccompanied by property damage or
personal injury, is compensable in tort, where chemical leakage from Ds
railroad car forced P to evacuate premises resulting in economic loss to P
ii. Holding: Yes.
1. Even in negligence suits in which Ps have sustained physical harm, the
courts have recognize that a tortfeasor is not necessarily liable for all
consequences of his conduct. Some limitation is required; that limitation
is the rule that a tortfeasor is liable only for that harm that he
proximately caused.
2. Countervailing considerations of fairness and public policy have leds
courts to discard the requirement of physical harm
3. Two common threads run throughout exceptions
A. (1) The element of foreseeability emerges as a more
appropriate analytical standard to determine the question of
liability than a per se prohibitory rule.
B. (2) The extent to which the D knew or should have known the
particular consequences of his negligence, including the
economic loss of a particularly foreseeable P, is crucial.
4. D owes duty of care to take reasonable measures to avoid the risk of
causing economic damages, aside from physical injury, to particular Ps
comprising an IDENTIFIABLE CLASS with respect to whom D knows
or has reason to know are likely to suffer damages from its conduct.
5. An identifiable class of Ps must be particularly foreseeable in terms of
the type of persons or entities comprising the class, the certainty or
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predictability of their presence, the approximate numbers of those in the

class, as well as the type of economic expectations disrupted.
III. Rule: D who has breached his duty of care to avoid the risk of economic
injury to particularly foreseeable Ps may be held liable for actual
economic losses that are proximately caused by its breach of duty.

V.

OWNERSHIP OF PROPERTY
a. RS 339, Duties Owed to Trespasser
I. Possessor of land is liable to child trespasser for physical harm resulting from
artificial condition on the lands when:
1. (a) the place where the condition exists is one upon which the
possessor knows or has reason to know that children are likely to
trespass, and
2. (b) the condition is one of which the possessor knows or has reason to
know and which he realizes or should realize will involve an
unreasonable risk of death or serious bodily harm to such
children, and
3. (c) the children because of their youth do not discover the condition or
realize the risk involved in intermeddling with it or in coming within the
area made dangerous by it, and
4. (d) the utility to the possessor of maintaining the condition and the
burden of eliminating the danger are slight as compared with the
risk to children involved, and
5. (e) the possessor fails to exercise reasonable care to eliminate the
danger or otherwise to protect the children
b. Licensees- people who are on the land with the consent of owner but are there for
their own purpose.
c. RS section 332 two categories of invitees (1) persons invited for business (2) people
who come as part of public when land is held open to public.
I. Duty owed to an invitee is essentially a full duty of reasonable care.
ii. Wilkes v. George- simply because a danger is obvious or warned against will
not eliminate risk of harm- nursery held liable when warned the floor was
slippery but plaintiff fell.
III. RS section 343a possessor liable for invitee when should have anticipated
injury despite obvious danger.
d. Determining the status of entrant is function of the court, not the jury.
e. HYPO 35:
I. (1) To determine the hospitals liability after P slipped on slush, figure out which
category the P fits in:
1. (a) Trespasser
A. P had the privilege to be there since his daughter worked there
2. (b) Licensee
3. (c) Invitee
A. P is not exchanging a material benefit to the hospital
II. (2) Once the category is defined, what is the type of duty owed to the P?
III. (3) Is there an exception to this notion that you just have to not be reckless or
intentional?
IV. (4) Determine the nature of the Ds negligence
f. GLADON v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY (1996)
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i.
Issue: Where an entrant upon anothers land exceeds the scope of the landowners
invitation, does the entrant lose his status of an invitee, thereby losing chance to
recover for damages caused by D, where the D train conductor liable for
running over P who was on the train tracks, when he was not invited to be on
the train tracks to begin with?
ii. Holding: No, D is not liable. We hold that where an entrant upon anothers land
exceeds the scope of the landowners invitation, the entrant will lose the status
of an invitee, and becomes either a licensee or trespasser.
1. Ds invitation of P to use their premises did not extend to the area on or
near the tracks. Even though Ps entry onto the tracks may have
been unintentional, since he was drunk and was beaten up, P
exceeded the scope of his invitation and lost his status as invitee.
Because P then became either a licensee or trespasser for the
purposes of determining the duty D owed to him, the trial court
erred.
A. RS Section 332- if invitee goes outside area of invitation, he
becomes a trespasser or licensee.
B. RS 171-172 Possesors duty, and liability, will be the same
regardless of the manner of entry, so long as the entry itself is
not priviledged.
2. A landowner owes a duty to an invitee to exercise ordinary care for
the invitees safety and protection. Conversely, a landowner owes no
duty to a licensee or trespasser except to refrain from willful, wanton,
reckless conduct.
III. Rule: where an entrant upon anothers land exceeds the scope of the
landowners invitation, the entrant will lose the status of an invitee, and
becomes either a licensee or trespasser, and thus the standard of care
that the property owner owes to the entrant is lowered.
g. ROWLAND v. CHRISTIAN (1968) (p. 374 ckbk)
i. Issue: If an occupier of land is aware of a defect, yet does nothing about it and
fails to warn an invitee about the defect, who subsequently is injured as a result
of that defect, is the D liable, where D had a broken faucet handle; where she
did not warn P of the defect; and where P was injured as a result?
ii. Holding: Yes.
1. The courts have departed from the concept that a man is liable for
injuries caused by his carelessness is with RE to the liability of a
possessor of land for injuries to person who have entered upon that
land.
2. Although the invitor owes the invitee a duty to exercise an ordinary care
to avoid injuring himthe general rule is that a trespasser or licensee
or social guests are obliged to take the premises as they find him
insofar as any alleged defective condition may exist, and that the
possessor of the land owes them no duty of care as long as its not
willful or wanton.
3. But a mans life or limb does not become less worthy of protection by
the law nor a loss less worthy of compensation under the law just
because he has come upon the land of another without permission or
with permission but without a business purpose. Reasonable people do
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not ordinarily vary their conduct depending on such matters, and to

focus upon the status of an injured party as a trespasser, licensee, or
invitee is contrary to our modern social mores and humanitarian values.
The common law rules obscure rather than illuminate the proper
considerations which should govern determination of the question of
duty.
III. Rule: Where the occupier of land is aware of a concealed condition
involving in the absence of precautions an unreasonable risk of harm to
those coming in contact with it and is aware that a person on the premises
is about to come in contact with it, the trier of fact can reasonably
conclude that a failure to warn or to repair the condition = negligence.
IV. Is the injured party a trespasser, lessee, or invitee?
v. NEW RULES
1. An owner shall be judged by a reasonable person standard.
2. Ps status as a trespasser, licensee or invitee may have some bearing
on the issue of liability, but is not determinative (this is the minority
view and only a few states have adopted it).
3. Rowland v. Christian: Liability may be determined by the status of the
entrant. If the P is a trespasser, then D may be less likely to be held
liable.
VI. Cutbacks- 1. moving train exception denies recovery for persons trying to
board moving train 2. felony exception denies revocery to person
commiting crome.
h. CARTER v. KINNEY (1995) (p. 380 csbk)
i. Issue: Does an occupier of land owe a licensee a duty of care to protect them
from injuries that they might not have knowledge of, where P argues he was a
invitee (which would have required D to protect P from dangers D was not even
aware of; where D argues that P was a licensee (which requires a lesser
standard of care for P); where P slipped and fell on ice that D was not aware of?
ii. Holding: No. The record shows that because P did not offer a material
benefit to D just by going to Bible study, P was merely a licensee; hence D was
not required to protect P from dangers that they were not even aware of.
iii. Reasoning: Generally, the possessor owes a trespasser no duty of care; the
possessor owes a licensee the duty to make safe dangers of which the
possessor is aware, and the possessor owes invitees the duty to exercise
reasonable care to protect them against both known dangers and those that
would be revealed by inspection.
1. Social guests are only licensees. An entrant becomes an invitee
when the possessor invites with the expectation of a material benefit
from the visit. The records show that P did not enter Ds property to
provide material benefit. He is therefore not an invitee but rather a
licensee (RS 332). Also D did not open their premises to the general
publiconly to church members.
2. While P argues that the court should abolish the distinction b/t licensees
and invitees, we are not persuaded by this suggestion. The possessors
intentions in issuing the invitation determine not only the statute of the
entrant but the possessors duty of care to that entrant. Moreover, and
despite the exceptions courts have developed to the general rules,
the maintenance of the distinction b/t licensee and invitee creates
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i.

j.

fairly predictable rules within which entrants and possessors can

determine appropriate conduct.
IV. Rule: Where an entrant does provide a material benefit to the possessor of
land, his status becomes that of licensee, and where he is injured, D,
according to RS 332, is not required to protect him from the dangers that
D is not even aware ofno liability.
v. Look at firefighter rule p. 386 ckbok
TAYLOR v. OLSEN (1978) (need to read)
i. Issue: Is D liable for injuries that its trees cause when they snap and break onto
the roads, both rural and urban, when they dont know of the condition of the
trees, where P drove on a road, and her car struck a tree?
ii. Holding: If D is not given reasonable notice that the tree is about to cause
latent harm to P, and the tree breaks and causes damages, D is not liable.
iii. Reasoning: Under what conditions does a tree owner have a duty to inspect his
trees to discover a latent danger?
1. The onus on a homeowner of inspecting a few trees in a yard is
modest, but the practical difficulty of continuously examining each tree
in the untold number of acres of forests or in sprawling tracts of
woodland adjacent to or through which a road has been built can be so
potentially onerous as to make property ownership an untenable
burden.
2. In this case, the evidence is that after the tree broke and fell onto the
road, the center of the tree at the point of the break proved to be
decayed. But the decay did not extend through the bark, and D would
not have been able to tell from the surface of the tree that it was rotting.
IV. Rule: In the absence of evidence that shows that a tree is decaying, when
P is harmed by a tree that broke off, D is not liable since he could not
foresee that the tree was to cause latent danger.
v. Duty owned by lessors p. 391
SARGENT v. ROSS (1973) (need to read)
i. Issue: Is D landlord liable under all circumstances for injuries by tenants, e.g.,
negligent construction and maintenance of the complexs stairway; where the
stairs were dangerously steep; where the railing was insufficient to prevent a
child from falling over; where P fell from the stairs of the second floor and was
killed?
ii. Holding: Yes, there is sufficient evidence to hold that use the steps by young
children and the danger exposed to them should have been anticipated by D.
iii. Reasoning: A landlord is generally conceded to be liable in tort for injuries
resulting from defective and dangerous conditions in the premises if the injury is
attributable to (1) hidden danger in the premises of which the landlord but not
the tenant is aware; (2) premises leased for public use; (3) premises retained
under the landlords control; (4) premises negligently repaired by the landlord.
1. There mere fact that a condition is open and obvious, as was this
defect, does not preclude it from being unreasonably dangerous, and D
is frequently held liable for creating or maintaining a perfectly obvious
danger of which Ps are aware of. Additionally, while the dangerous
quality of the steps might have been obvious to an adult, the danger
and risk would very likely be imperceptibly to a young child.
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IV.
Rule: Landlord must act as a reasonable person under all of the
circumstances including the likelihood of injury to others, the probable
seriousness of such injuries, and the burden of reducing or avoiding the
risk.

VI.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A. Mitchell v. Rochester (1896)- plaintiff suffered miscarriage

VII.

because a horse scared her.

I. Rule- There can be no recovery for fright alone, without
impact. (original impact rule)
B. RJ v. Humana (1995) Plaintiff took HIV test and told he was
positive, but turned out that test co. made a mistake.
I. Rule- Medical treatment he underwent due to false test
constituted impact.
C. Chambley v. Apple (p. 337 ckbk) 1998- woman became ill and
suffered ED after finding a condom in her salad
I. Courts lessen the requirements for impact element
Rule- Plaintiffs contact with other parts of contaminated salad could be found to constitute
impact.
a. Figure out first: did the victim suffer a (1) direct injury or (2) a bystander injury?
b. (1) DIRECT VICTIM RULE
I. JOHNSON v. STATE: a number of courts have recognized that some of Ps are
direct victims to whom Ds owe a duty of care directly
1. Facts: hospital notified the sister of a patient, Emma Johnson, that
patient had died. Sister notified the daughter. At the wake, the sister
and daughter discovered that it was wrong person in the coffin.
2. Held: The court of appeals ruled that the daughter could recover
A. In this case, the injury was inflicted by the hospital directly on
claimant by its negligent sending of false message announcing
her mothers death. P was not indirectly harmed by the injury
caused to another. Instead, she was one to whom a duty was
directly owed by the hospital, and the on who was directly
injured by the hospitals breach of duty.
ii. Direct victim can recover for emotional distress if she has enough ED; so
how do we figure out whats enough?
1. (a) Physical Impact Rule, OR
2. (b) ED leading to subsequent physical injury (DALEY), OR
3. (c) Just serious ED
III. (a) THE PHYSICAL IMPACT RULE
1. There must be some direct impact on the P
2. BURGESS v. SUPERIOR COURT
A. P sought to recover for mental distress, where doctor
performed C section on P during labor. A P left the recovery
room, someone told her that something was wrong with baby,
and gave her additional sedatives. The baby suffered brain
damage.
B. CA high court ruled that there is not only a physical
connection b/t a mother and her fetus, but also a special
emotional relationship as well.
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I.
(1) There is preexisting relationship b/t doctor and plaintiff
mother
II. (2) You could only reach this person physically through
the mother
III. (3) Doctors were aware of the emotional connection
that exists b/t the mother and the baby
3. OLD RULE (from WAUBE) Zone of Danger- Mother watched her
son get run down and died from shock
A. You must have been in zone of danger (as to feel the peril of
physical contact to have ed.
4. MAJORITY RULE (normal reaction)
A. Some subsequent physical injury must be shown.
B. There must be some Emotional Trauma that manifests itself in
injury.
C. This is found in AYERS.
5. RECENT MOVEMENT
A. MOLIEN
i. Facts: P husband brought action against the D for
negligently diagnosing his wife with syphilis. She tells
him; he suffers emotional distress, gets divorced, and
after the divorce he finds out that her wife was wrongly
diagnosed with the STD
II. This is the leading case in California for no Physical
Injury requirement. The recovery is for the ED a
reasonable person would need given these stimuli.
B. Serious Emotional Distress must be shown in order to recover.
C. Some courts say you can recover for just serious ED alone, do
not need any physical manifestation, anxiety attach not
enough; must be aware, not just pretty sure that something
happened to a loved one
D. MOLIEN is the leading case in California for no Physical Injury
requirement. The recovery is for the ED a reasonable person
would need given these stimuli.
IV. (b) ED LEADS TO SUBSEQUENT PHYSICAL INJURY
1. You can recover for emotional distress if it is manifested by a
subsequent physical injury.
2. DALEY v. LACROIX
A. Issue: Does the impact rule, which holds that there could be
no recovery for fright alone without impact, still have continued
vitality, where Ds car left the highway, traveled 63 feet in the
air, and knocked utility pole where a number of voltage lines
snapped, striking the electrical lines leading into Ps house and
caused great explosion resulting in considerable damage to
property; where Wife suffered traumatic neurosis, emotional
disturbance, and nervous upset; where husband suffered
emotional disturbance and nervousness as a result of the
explosion.
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B. Holding: No, reversed. (impact rule absolved)

C. Reasoning: Recovery for mental disturbance caused by Ds
negligence has been generally denied with the notable
exception of the sui generis cases involving telegraphic
companies and negligent mishandling of corpses. Where,
however, mental disturbance results immediately in physical
injury, the authorities divide.
I. We hold that where a definite and objective physical
injury is produced as a result of emotional distress
proximately caused by Ds negligence, the P in a
properly pleaded and proved action may recover in the
damages for such physical consequences to himself
notwithstanding the absence of any physical impact
upon P at the time of the shock.
II. However, there are limitations. (1) there should be no
recovery for hypersensitive mental disturbance where
a normal individual would not be affected under the
same circumstances; (2) the burden of proof that the
physical harm or illness is the natural result of the fright
proximately caused by the Ds conduct; (3) sufficient
evidence must be presented to create jury question.
D. Rule of law: We hold that where a definite and objective
physical injury is produced as a result of emotional
distress proximately caused by Ds negligence, the P in a
properly pleaded and proved action may recover in the
damages for such physical consequences to himself
notwithstanding the absence of any physical impact upon
P at the time of the shock.
3. POTTER V. FIRESTONE
A. Issue: Does P have cause of action for NIED, to recover
emotional distress award and award for medical monitoring
costs for punitive damages after the enhanced risk of
contaminated agents gave them the fear of cancer, where D
breached duty by sending their toxic waste to Class II dumping
site, when they werent supposed to?
B. Negligence: Fear of Cancer
I. Parasitic Recovery:
1. Parasitic Damages: Where a P can show a
physical injury caused by the Ds negligence,
anxiety specifically due to a reasonable fear of
future harm attributable to the injury may also
constitute proper element of damages.
(James note- the court seems to state that it may allow recover for damages to immune system, here in this case
due to toxic exposure, however the court found that not enough evidence was present to determine the issue.)
II. Nonparasitic Fear of Cancer Recovery
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1. (a) Unless D has assumed a duty to P in which

the emotional condition of P is an object,
recovery is available only if the ED arises out
of the Ds breach of some other legal duty and
the ED is proximately caused by that breach of
duty.
a. D did violate duty imposed on it by law
and regulation to dispose of the toxic
waste only in class I landfill.
2. (b) Likelihood of Cancer in the Future
a. There is a warrant requirement that
the P show the feared cancer MORE
LIKELY THAN NOT is to occur.
b. P favor the approached adopted by
the Court of Appeals, which requires
that P must prove the prima facie
elements:
i. (1) P must prove toxic
exposure
ii. (2) P must then est. that his
fear of cancer is serious, and
that the seriousness meets an
objective standard.
iii. (3) the finder of fact should
consider the evidence RE: the
likelihood that cancer will
occur.
iv. (4) finally, the fact finder
should test the genuineness
of Ps fear under the factors
discussed.
c. Permitting recovery for fear of cancer
damages based solely on Ps
knowledge that his or her risk of
cancer has been significantly
increased by a toxic exposure, w/o
requiring any further showing of the
actual likelihood of the feared cancer
due to the exposure, provides no
protection against unreasonable
claims based upon speculative fears.
III. Public Policy Reasons
1. (1) All of us are potential cancer Ps. With this
consideration in mind, we believe the
tremendous societal cost of otherwise allowing
ED compensation to a potentially unrestricted
P class shows the necessity of imposing some
limit on the class.
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2. (2) Fear liability on the health care field.

Amicus brief shows that access to prescription
drugs is likely to be impeded by allowing
recovery of fear of cancer. If new and negative
data are revealed about the drugs that Ps are
taking, one can expect numerous lawsuits to
be filed by patients who currently have no
injury but who nonetheless fear the risk of
cancer.
3. (3) To allow compensation to all Ps with
objectively reasonable cancer fears, even
where the threatened cancer is not probable,
raises the very significant concern that Ds and
their insurers will be unable to ensure proper
compensation for those victims who actually
get cancer.
IV. James Note- in present case, Sup Ct. found that
Firestone had acted with oppression, fraud and malice
and therefore allowed recover without proving more
likely than not possibility of cancer.
v. Medical monitoring costs
1. Recovery of medical monitoring costs is
supported by number of sound public policy
considerations
2. (1) There is imp. public health interest in
fostering access to medical testing for indiv
whose exposure to toxic chemical creates an
enhanced risk of disease
3. (2) There is deterrence value; allowing P to
recover the cost of this care deters
irresponsible discharge of toxic
4. Fairness argument- it would be unfair for
people exposed to carcinigen who cannot
prove that cancer is more likely than not to
have to pay for medical monitoring.
C. James likes the dissenting opinion
I. It is not right that majority used public policy as an
excuse to preclude recovery for those who could not
find that more than likely they would get cancer
what they are really saying is that negligent conduct is
afforded a greater shield from liability than conduct
possessing the potential to harm only a more limited
number of personsNo justification for limiting the
recovery simply because the defendants wrongful
conduct has endagenrd the personal safety of a large
number of individuals.
D. Notes:
i. Facts: D put toxic chemicals in P's water; P feared
cancer. Suit for NIED
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ii.
Held: Medical evidence must prove more likely than not
that injury will manifest itself.
III. RULE: no recovery UNLESS P proves more likely
than not that P will develop cancer in the future. P must
do more than simply est. knowledge of toxic ingestion
iv. POLICY: people are exposed to this stuff every day! If
everyone filed suit, liability would be unlimited. Allowing
compensation for fear alone will not adequately insure
those who actually have cancer.
v. WHY?
1. Genuineness of suits.
2. Definitiveness of injuries & their severity.
3. The amount of damages is more
ascertainable.
4. HARTWIG v. OREGON TRAIL EVE CLINIC (HIV needle case)
A. Issue: Does P have cause of action for NIED where she was
stuck by two needles which were negligently placed in trash
bags by D; where she did not know who the patient was that
used the needle; where she did not know if the needle was
HIV+; where suffered depression symptoms, where her friends
shunned her for possibly being HIV+?
B. Holding: Yes.
C. Reasoning: D argues that it is only when P is actually exposed
to HIV that such P suffers severe injury for which it is
reasonable to conclude that anxiety and mental anguish are
consequences. This argument is based on the actual
exposure rule, which has been the majority rule.
I. In order for one to have an actual exposure to HIV,
there is a necessary confluence of two factors: (1)
there must be exposure to tissue, blood infected with
HIV; (2) the exposure to the infected blood or tissue
must be by way of a channel of comm. or transmission
deemed medically sufficient to cause HIV.
II. Application of the actual exposure rule in this case is
irrelevant since it is not unreasonable to fear HIV
infection when P was exposed via a medically
sufficient means and when it is impossible to
ascertain whether that blood was HIV+.
D. Rule: A P may adduce proof and potentially recover
damages for the mental anguish of reasonably fearing
AIDS resulting from a physical injury when the P may have
been exposed (Physical impact rule?), via a medically
sufficient channel of transmission, to the tissue, blood, or
body fluid of another in circumstances where the identity
of the patient upon whom the contaminated needle or
instrument was used is unknown, and when it is
impossible to ascertain whether that blood, tissue, or
bodily fluid may be HIV+.
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E. A person who may have HIV is treated as if they have HIV.

5. WHY CREATE SUCH A LIMITATION ON SUBSEQUENT PHYSICAL
INJURY?
A. False claims
B. Flood of litigation
C. Arbitrariness
D. Limitless liability
I. It costs money to run the courts
v. (c) JUST SERIOUS ED
1. Recent Movement
A. Serious Emotional Distress must be shown in order to recover.
B. Some courts say you can recover for just serious ED alone, do
not need any physical manifestation, anxiety attach not
enough; must be aware, not just pretty sure that something
happened to a loved one
2. How is serious defined
A. Standard is "A reasonable man normally constituted would be
unable to cope with the Mental Distress".
B. NO Egg Shell Skull in NIED.
C. It must be so sever that no reasonable person could endure it.
3. Should the Courts go to (e)?
A. Yes, the courts can weed out fraudulent claims.
B. Genuineness (Do we need the requirement to guarantee
genuineness?)
C. P's lawyers also serve as a screening function because they
work on a contingent basis.
vi. Things to remember
1. The ED damages you can recover are those which a normally,
constituted person would suffer
2. The courts are not likely to award damages for egg-skull psyches as
opposed to egg-shell skulls
3. The courts may be providing special rules in cases involving where Ds
negligence caused ED from a fear of contracting a disease, e.g., HIVphobia (POTTER; HARTWIG)
c. (2) BYSTANDER CASESemotional distress occurs as a result of someone elses
injury
i. The Zone of Danger Rule NY APPROACH
1. Some courts take the PALSGRAF approach to this & have held that a P
who is not endangered by the D's conduct is owed no duty & cannot
recover.
2. WAUBE V. WARRINGTON
A. Facts: The mother (P) was watching her daughter out of the
window & saw her crossing the highway & get killed by Neg. D.
B. Held:
i. (a) A person who was not threatened with physical
injury cannot recover for NIED from watching another
person.
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ii.
(b) A line must be drawn & it should be done by balancing
the social interests involved. A person who sustains
physical injuries due to shock or fear of injury to
another has no cause of action.
iii. (c) The problem must be approached from a duty-risk
standpoint and not proximate cause.
IV. (d) Clearly, D had a duty to operate her vehicle so as
not to injure or cause fear of injury to any other person.
However, the social interests involved do not justify an
extension of her duty of care to those who would fear
for the safety of others.
ii. Reasonably Foreseeable Test
1. DILLON v. LEGG ( book points out arbitrariness and courts differ)
A. Facts: Mother and two daughters were crossing the street
when car hit and killed one of the children. The mother and
surviving child brought action against D for the emotional harm
they suffered as a result of observing the death of the other
daughter.
B. Held: Whether D owes P a duty of due care, the courts will take
into the following:
I. (1) whether P was located near the scene of the
accident;
II. (2) whether the shock resulted from a direct emotional
impact upon P from the sensory observance of the
accident;
III. (3) whether P and the victim were closely related.
IV. Mother cant recover damages because she was still
on the curb; sister can recover because she was off the
curb, and the danger to her getting run over was
reasonably foreseeable.
2. The legal test DILLON:
A. You can recover for ED you suffer as bystander if it was
reasonably foreseeable that you would suffer serious ED as
result of Ds negligence.
iii. 3 Factor Test, DILLON/THING TEST (majority opinion)
1. (1) Was P located near the scene of the accident?
2. (2) Did the shock result from direct emotional impact from the
observance of the accident?
3. (3) Close relationship b/t P and D
4. THING v. LA CHUSA
A. Issue: Does P have cause of action for NIED where her son
was killed in car accident, but where she did not observe it or
was not near the occurrence of the accident; where she finally
saw the body and suffered emotional distress?
B. Holding: No, court of appeals holding reversed.
C. Reasoning:
I. Damages for ED should be recoverable only if the P:
1. (1) is closely related to the injury victim;
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2. (2) is present at the scene of the injuryproducing event at the time it occurs and is
then aware that it is causing injury to the
victim;
3. (3) as a result suffers ED beyond that which
would be anticipated in a disinterested witness.
II. Persons unrelated to those injured or killed may not
now recover for such emotional upheaval even if
negligently caused. Close relatives who witness the
accidental injury or death of a loved one and suffer
emotional trauma may not recover when the loved
ones conduct was the cause of that emotional trauma.
III. In identifying those persons and the circumstances in
which the D will be held to redress the injury, it is
proper to restrict recovery to those persons who
will suffer an emotional impact beyond the impact
that can be anticipated whenever one learns that a
relative is injured.
D. Rule: P may recover damages for ED caused by observing
the negligently inflicted injury of a third person if, but only
if, said P (1) is closely related to the injury victim; (2) is
present at the scene of the injury producing event at the
time it occurs and is then aware that it is causing injury to
the victim; and (3) as a result suffers serious EDa
reaction beyond that which would be anticipated in a
disinterested witness and which is not abnormal response.
5. The legal, bright-line test in THING (this over-ruled DILLON):
A. (1) closely related to injured victim
B. (2) present at the scene and aware of the injury to victim
C. (3) as a result suffers emotional distress beyond what a
disinterested witness would suffer
IV. CONSOLIDATED RR v. GOTSHALL
1. Issue: Does P have cause of action for NIED against D employer,
where D subjected P and other employees to harsh heat conditions to
work, where P watched his friend John die of heart attack from the heat,
where P feared that he would die the same death and suffered from
post-traumatic depression?
2. Holding: Yes.
3. Reasoning: There are three major limiting tests to recovery for ED
A. Physical impact test: P seeking damages for ED stemming
from negligent act must have sustained physical impact (no
matter how slight) or injury due to the Ds conduct. Most
jurisdictions have abandoned this test, but at least five states
continue to adhere to it.
B. The Zone of Danger Test: limits recovery for ED to those Ps
who sustain a physical impact as a result of Ds negligence, or
who are placed in immediate risk of physical harm by that
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conduct. That is, those within the zone of danger of physical

impact can recover for fright, and those outside of it cannot.
C. Relative Bystander Test: In Dillon, the court suggested that
the availability for recovery should turn, for the most part, on
whether the D could reasonably have foreseen the emotional
injury to the P. There are 3 factors to be considered in RE: to
the foreseeability aspect
I. (a) Whether P was near the scene of the accident
II. (b) Whether the shock resulted from direct emotional
impact on P from the sensory observance
III. (c) Whether P and the victim were closely related
IV. The courts of nearly half the states now allow
bystanders outside of the zone of danger to obtain
recovery in certain circumstances (e.g., NY).
D. It is part of the duty to use reasonable care in furnishing its
employees with safe place to work. A railroad has a duty under
FELA to avoid subjecting its workers to NIED.
E. The zone of danger test is also consistent with FELAs central
focus on physical perils. Under this test, a worker within the
zone of danger of physical impact will be able to recover for
emotional injury caused by fear of physical injury to himself,
whereas a worker outside the zone of danger will not.
F. The bystander test is irrelevant. This test was not developed
until 60 years after FELAs enactment. It also limits recovery to
persons who witness the severe injury or death of a close
family member. Only railroad employees may bring FELA
claims, however, and presumably it would be a rare occurrence
for a worker to witness during the course of his employment the
injury or death of a close family member.
d. EVALUTION (Eddie, 54)
I. Key in this areayou need an analytical framework
ii. Compensation Reasons
1. More Ps get compensated under the Reasonably Foreseeable Test
A. (Counter) But, If the courts award damages to all injuries that
were reasonably foreseeable, there is the possibility of
unlimited liability. The damages are being spread to people who
may not even have been genuinely injured that the truly injured
P receives a disproportional amount.
B. Compensation doesnt work because no amount of money can
bring back Jimmys kid.
2. Are we giving P's True compensation for Emotional loss?
A. P's say: This is a real injury & I should be compensated. Says
D can spread losses.
B. D's say: No one buys insurance for Emotional damage so why
should P's recover for it. P is better to buy insurance and
crushing liability will leave no money for those who do get
physically injured
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iii.
Reduce Overall Accident Costswe want to keep the sum of accident costs &
accident avoidance costs as low as possible.
1. PRIMARY
A. We want to reduce the number of accidents & the severity of
those accidents that occur (deterrence).
B. The arguments focus on overdeterence v. underdeterrence.
C. D's will say there will be unlimited liability.
D. When you hear this ask: Will it really occur? & So what?
2. SECONDARY
A. Some accidents will happen
B. D's say: P's will be reliving their injuries over & over again.
C. These unfortunate accidents happen & people have to develop
a skin for them.
D. P's say: The money will help them to be able to deal with the
emotional harm. (P's can use the money for psychologists or
vacation, etc.)
E. A message will be given to society that relationships are
important. The law will decide who will bear the cost.
3. TERTIARY
A. Transaction costs can be kept down.
B. I believe that Tertiary costs are the transaction costs such as
lawyers' fees, the time lost in court and preparing for litigation,
and court costs.
iv. Process
v. Conclusions
1. When youre making your argument, what youre being asked most
often is, why one legal rule would be preferable to another?
2. Focus on the group of P and D that youre going to see in most sorts of
cases
VIII.

LOSS OF CONSORTIUM
a. What is loss of consortium?
I. Its basically all of the things that go into making a relationship, e.g., sex,
affection, guidance, moral support.
II. This is diff from NIED. You sue for NIED b/c of this thing you gained (emotional
distress and physical pain) as a result of someones negligence.
III. For loss of consortium youre suing for the thing which you had but which was
taken away from you (loss of companion, loss of companionship).
b. Issues:
I. Can you recover if youre married now for loss of consortium resulting from an
injury that was done to the other person before they were married?
II. Will there be recovery for loss of parents consortium if youre a child?
1. Most courts still do not allow recovery for loss of parental consortium
2. TX Supreme Court ruled that now 21 states allow children to sue for
loss of a parents consortium.
A. Were not going to allow recovery by the parent for loss of a
childs consortium because many courts hold that children are
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tremendously upon their children in a way that parents are not

dependent upon children.
III. Most states dont allow children to sue for loss of parents consortium, though
there is growing trend towards this.
IV. When the parent or child is killed, then a parent or child can sue for wrongful
death.
c. CLAIMS MADE BY ADULTS who are not married will be taken seriously
I. There needs to be a bright lineeither youre married or youre not (majority
ruling)
1. POLICY: a line must be drawn or anyone could recover. Transaction
costs would increase. Excess liability would devaluate the institution of
marriage. BUT, if you don't make them pay, there won't be deterrence.
ii. NJ Supreme Court expanded the NIED requirement, allowing same-sex
relationships and fiances to recover
III. ZWICKER v. ALTAMOUNT EMERGENCY ROOM PHYSICIANS MED GROUP
(p. 171 bb #2)
1. Issue: Does P have cause of action for loss of consortium, where her
husband lost his left testicle, where the misdiagnosis occurred before
they knew about it; where P found about the injury after they were
married; where this loss of consortium affected their marital
relationship?
2. Holding: No. Because the injury occurred before married, the wife had
no right to consortium at the time of the misdiagnosis, so she suffered
no actionable loss as a result of Ds alleged negligence.
3. Reasoning: Although most courts in the US have denied recovery for
loss of consortium based on injuries predating the marriage, there are
exceptions to this bar when the injuries were unknown until after the
marriage.
A. If the relationship did not exist at the time of the tort, then P
cannot recover for loss of consortium (BUTCHER).
4. Rule: A cause of action for loss of consortium does not lie if the
alleged tortious conduct and resulting injures occurred prior to
the marriage. If the relationship did not exist at the time of the tort,
then P cannot recover for loss of consortium (BUTCHER).
IV. HIGH v. HOWARD
1. Issue: Can a child maintain a cause of action for loss of parental
consortium against a tortfeasor who negligently or intentionally injures
the childs parent?
2. Holding: No.
3. Reasoning: P contends that we should now recognize such a cause of
action to eliminate the anomaly in the law that a child whose parent is
killed by a tortfeasor is permitted to recover for his or her loss under the
wrongful-death statute, whereas a child whose parent is severely
injured but is not killed cannot recover anything.
A. We believe the view of a majority of states refusing to
recognize such a cause of action in the absence of a legislation
is the better view and is consistent with prior decision in KANE.
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B. There are number of policy reasons for not creating a cause of

action in minor child for loss of consortium of a severely injured
parent:
I. (1) this invades the province of legis;
II. (2) danger of multiple suits;
III. (3) place the love and affection of the parent on
commercial basis;
IV. (4) fraud;
V. (5) absence of precedent;
VI. (6) possible overlap with parents recovery, i.e., double
recovery.
4. Rule: A child does not have cause of action for loss of consortium
because of social policy concerns and because the lack of
statutory provisional guidelines.
5. Notes:
A. High v. Howard - later overruled in Ohio by GALLIMORE
B. Can a child maintain a cause of action for loss of parental LOC
against a tortfeasor who neg. or intentionally injured the child's
parents?
C. RULE: there is no common law or statutory basis for a child's,
claim for loss of parental consortium.
D. DISSENT: a child can maintain a Cause of action. LOC of
parent should be defined as a loss of society, affection, comfort,
guidance, counsel. Loss of support is not an element of claim
for loss of parental consortium since the injured parent may
recover for his financial losses resulting from his physical
injuries directly from the tortfeasor.
E. RATIONALE
F. The reasons why most court do not allow parents to recover for
loss of their children are:
I. The injury is noncompensable by money;
II. Difficult to quantify damages;
III. Increase litigation & associated expenses; and
IV. The resulting burden on society of increased insurance
premiums would result in more people choosing to
forego insurance.
V. How do we know when to cut off liability?
d. CHILD-REARING CLAIMS
i. Claims by the parents
1. Wrongful death claims: Any unreasonable conduct which causes
injury and thus death to a pregnant womans fetus
A. WERLING v. SANDY
i. Issue: If a fetus is viable during pregnancy, does
childs parent have a valid cause of action for wrongful
death of an unborn child, where P alleges that it was
because of the doctors negligence that the baby was
stillborn?
ii. Holding: Yes.
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1. A cause of action may arise under the

wrongful death statute when a viable fetus
is stillborn since a life capable of
independence existence has expired. It is
logically stupid as well as unjust to deny an
action where the child is stillborn, and yet
permit action where the child survives birth but
only for a shot period of time.
2. The term viability is an elusive one since not
all fetuses arrive at this stage of their
development at an identical chronological point
in their gestation. Some people have
questioned the standard and suggest the
adoption of a causation test which permits
recovery for an injury sustained by a child at
any time prior to his birth if it can be proven
that the injury was the proximate result of the
wrongful act. But we believe the betterreasoned view is to recognize the viable
child as a person under the statute rather
than to designate the same status to a fetus
incapable of independently surviving a
premature birth.
3. Rule: Under the wrongful death statute, a
stillborn child, considered a viable child in
utero, is considered as a person, thereby
able to recover for wrongful death.
4. Look at treatment of Roe p. 355
iii. Notes:
1. Is there cause of action for wrongful death in
connection with the child who dies either (a)
after conception or (b) after viability or (c) after
birth?
2. WERLING adopts the majority approach, i.e.,
If fetus has attained viability, then parents can
bring action for wrongful death
3. Some courts require that the fetus must be
born; even when its alive for 10 seconds, then
they can make claim for wrongful death
4. A very few states (WV and S. Dakota) say that
if you do the negligent injury to a conceived
fetus, then the fetus is considered a person
under that statute parent can bring wrongful
death action
2. Wrongful birth claimsclaims brought by the parents
A. FASSOULAS V. RAMEY
i. Facts:
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1. P had 2 children prior with birth defects. Doctor

negligently performed vasectomy on father. 2
more kids were born. 1w/ defects 1w/o defects
ii. Held:
1. Only the extraordinary cost associated with
the child born with defects is recoverable.
2. The parents receive joy & happiness from the
kids; thus the Benefit rule outweighs the costs.
3. The courts are split on allowing recovery of
emotional costs.
4. The child rearing costs are cut off at majority
for a healthy child
iii. Majority view: the benefits to parents of any child
presumptively outweigh the ordinary costs of
upbringing
iv. Minority: economic burdens of raising children who
would not have been born if the D had not been
negligent should be borne by the D.
1.
B. Two main kinds of wrongful birth claims (claim is made only
by the parents)
C. (a) The Unwanted Child claims
I. What damages could the parents claim? (58)
1. The parents lost wages as a result of having
to stay home and take care of the kids
2. Expenses generally of raising the childRS
(2nd) 9: when Ds negligence has cause harm
to P and in so causing this harm has also
conferred a special benefit on the P, then that
benefit shall be considered in mitigation of Ps
damages.
a. Total offset (trend): Benefit Rule
i. The majority of courts say that
the benefits of having a child
are at least the same to the
costs of having a child.
ii. No recovery
b. Partial offset:
i. Benefits offset some costs
ii. A modest minority of courts let
the jury hear the evidence of
the benefits/costs of having
the child. Parents can recover
some, but not all of the costs.
We pay attention to Benefit
Rule but jury weighs benefits,
costs, and evidence.
c. No offset:
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i.
A minority of courts say that jury
determines expenses of
rearing a child and parents
recover through the age of
majority. Does not take
benefits into account and only
looks at costs of child rearing
ii. The parents didnt want this
kid anyway so there really is
no benefit in having this child
3. Emotional distressgenerally courts dont
award parents for ED.
4. Pregnancy costalmost all jurisdictions allow
recovery
D. (b) The Disabled Child Claims
I. Special costs (medical equipment, etc.). The majority
of courts adopt the ruling from FASSOULAS, i.e., you
get special costs of raising the child.
1. The issue is: for how long can you receive
those special costs? Until the kid dies, or until
the kid reaches the age of majority?
2. NY courts allow these special costs until the
kid turns 18.
II. Emotional distress
1. Split of authority
III. Watch out for the possibility of arguments from the
Defendant doctors that the parents have special
benefits in the midst of dealing with these claims, i.e., a
child.
IV. The courts want to hide from this argument.
ii. CLAIMS BY THE KIDS
1. 3 kinds of claims
A. Preconception injury claims
B. Prenatal injury claims
C. Wrongful life claims
2. PRECONCEPTION INJURY CLAIMS
A. DES cases: grandmother takes DES, and grandchildren wind
up with cancer. Damage was done to their reproductive
systems of the daughters, whereby the grandchildren were
affected.
B. The children make a claim that the doctor was negligent to
mothers reproductive system which caused injury to her.
C. All of this negligence happens before the child is conceived and
theres the evidence that (1) Doctor was negligence and (2) that
negligence did really cause the newborns physical problems
D. Split of authority
I. No preconception tortsif negligence was done before
you were born, no claim
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II.
Other courts recognize preconception torts in certain areas
and not in others.
1. NY Courts have this bright-line test.
E. Courts are most liberal in the blood sensitization cases,
where obstetricians were negligent in not diagnosing the
mother in a way that would have rid of the blood sensitization,
which turns the blood of the mother into an attack of some sort
of the blood system of the fetus that causes all sorts of defects.
3. PRENATAL CLAIMS
A. My mothers pregnant with me, she gets into car accident,
injury done to fetus, fetus born alive, and child makes the claim
B. Courts will award child plaintiff with prenatal claims
C. If the fetus is born alive, recovery for personal injuries will be
allowed even if the fetus was not viable at the time of the
accident. This is an easy recovery.
4. WRONGFUL LIFE
A. Is the doctor liable for wrongful life?
B. Whats the child seeking damages for?
I. Special expensescan be measured clearly
II. Pain and sufferingcomparing conditions between life
with pain versus non-life. No jury can handle this, no
court can handle trying to make this decision.
III. Emotional distress because his parents cant handle
his handicaps
C. How do you decide how to award damages?
I. P life
II. P life after Ds negligence
III. You give P the compensation based on the difference
between what the Ps life would have been w/o D never
having been negligent, and you give dollars to make up
the difference, by putting the P back as closely as
possible in the same position P would have occupied
had the D not been negligent.
IV. So you have to give them enough compensation so
that the kid was never been born
D. 3 states allow cause of action for wrongful life
I. Up until TURPIN, no highest state court in the country
allowed wrongful life causes of actions.
II. The cause of action for wrongful life arent necessary if
the parents in the wrongful birth action can recover all
those special expense damages. Since most courts will
allow recovery for all of these expenses under the
wrongful birth claims, the child doesnt need to file
claim for wrongful life.
III. But the reason why certain courts allow for wrongful life
is that where special expenses are awarded only until
the kid turns 18, the child may have to file claim for
continued expenses past the age of majority
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E. PROCANIK BY PROCANIK v. CILLO

i. Issue: Does P have valid cause of action for wrongful
birth, so as to recover (1) general damage for his pain
and suffering and for his parents impaired capacity to
cope with his problems and (2) also for special
damages related to the extraordinary expenses he will
incur for medical, nursing, and other health care, where
D failed to diagnose Ps mother with German measles,
where P was then born with congenital rubella
syndrome, where a proper diagnosis would have
convinced Ps parents to terminate the pregnancy?
ii. Holding: P can recover for the all the extraordinary
expenses, but cannot recover for the general
expenses.
iii. Reasoning: we recognized that extraordinary
medical expenses incurred by parents on behalf of
a birth-defective child were predictable, certain,
and recoverable.
1. When a child requires extraordinary medical
care, the financial impact is felt not just by the
parents, but also by the injured child. All the
money put into that care is funneled away from
money for clothes, food, or college education.
Whatever logic inheres in permitting parents to
recover for the cost of extraordinary medical
care incurred by a birth-defective child, but in
denying the childs own right to recover those
expenses, must yield to the inherent injustice
of that result.
2. However, sound reasons exist to not
recognize a claim for general damages. The
crux of the problem is that there is no way to
measure nonexistence with the pain and
suffering of his impaired existence. From that
perspective, it is simply too speculative to
permit an infant P to recover for ED from those
birth defects when P claims that he would have
been better had he not been born.
IV. Rule: Because it is impossible to measure the
damages awarded for nonexistence, an infant P
cannot recover general damages from wrongful
life actions; however, the interests of fairness and
justice are better served through more predictably
measured damagesthe cost of the extraordinary
medical expenses necessitated by the infant Ps
handicaps.
v. Notes:
1. Since life is better than no life, there really isnt
no damage
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2. Its too speculative to provide damages for

pain and suffering between life with negligence
versus no life
3. James Notes: why difficutly in recovering
wrongful Life: 1. no congnizable injury; 2. cant
value damages.
a. If parents would choose to have an
abortion, then cognizable injury
however, if they might have not
chosen an abortion knowing that the
kid would still be sick no cognizable
injury.
i. Courts wont allow a claim
where argument is no life is
better than life.
ii. Compensation made by
putting person back in place
before negligences.here
that place would be death
but since docs negligence
was not cause (because
parents wont have an abortin)
then no congnizable injury.
b. Speculative damages

F. TURPIIN:

IX.

i. Facts: P was a child who brought suit against a health

care provider for failing to warn parents that there was
a possibility of birth with hereditary problems. The child
was born deaf.
ii. Held
1. P was allowed to recover.
2. An impaired life is not always better than "NonLife".
3. Only Extraordinary damages were awarded.
III. Even where course of action for wrongful life is
recognized P can only recover for extraordinary
expense associated with birth defects.
IV. Parent of such a child in most jurisdictions can recover
extraordinary expense as part of their own wrongful
birth lawsuit (Fassoulas)
V. But some jurisdictions only allow some parents to
recover extra-ordinary expense until child reaches age
of majority.
VI. If youre going to make the child whole again he would
not be born so therefore the majority does not allow for
recovery. Cant kill child or give damages for life!
THE ANATOMY OF A TORTS CLASS, Jamie Boyle
a. PROBLEM K, BB# 157
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i.
Facts
1. Lizzy MgGuire driving and hit by Gant. Gant got drunk at a party held by
Madsden. They kept giving her drinks. Gant borrowed Urmans car.
2. P alleges two claims: (1) Madsden liable for serving Gant liquor; (2)
proximate cause for Urman giving the car to Gant knowing she had
history or drinking.
ii. Based on Boyles article, there are two types of arguments
1. Precedential
A. Formalist v. Purposive argument
I. Formalist: must serve liquor
II. Purposive: hold Madsdens liable for the purpose to
deter dangerous and drunken behavior
B. Broad v. narrow
I. Broad: picks up lots of cases
1. Anyone who makes available any mindaltering substance to another will be
responsible
a. Any vaguer, general manipulations?
i. One person hurt (our case) v.
many injuries
ii. Act v. omission
iii. In Problem K, host checked to
see if D was OK; in KELLY,
Zak didnt do so
iv. Difference in social gathering:
Madsdens held the party to
welcome in new graduate
students; KELLY was just
private gathering
II. Narrow: emphasizes the particular facts in the
precedential case
1. Each of those facts are essential to whether or
not the precedent will apply to the case at bar
2. Social host serves an intoxicating beverage to
a friend
C. KELLY v. GWINNELL
i. Issue: Whether a social host who enables an adult
guest at his home to become drunk is liable to the
victim of a car accident caused by a drunken driving of
the guest, where D went to friends house (Zak) and
had drinks with them, where he got drunk and drank
too much, went home, and got into serious car
accident, hitting P, where his blood alcohol level was
2X the legal limit. Holding: Yes, under certain
circumstances.
ii. Reasoning: When negligent conduct creates such a
risk, setting off foreseeable consequences that lead to
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Ps injury, the conduct is deemed the proximate cause

of the injury.
1. Under the facts here, D provided his guest with
liquor, knowing that thereafter the guest would
have to drive in order to get home. One could
reasonably conclude that the Zaks must have
known that their provision of liquor was
causing D to become drunk, yet they continued
to serve him even after he was visibly
intoxicated.
2. When the court determines that a duty exists
and liability will be extended, it draws judicial
lines based on fairness and policy. In a society
where thousands of deaths are caused each
year by drunk drivers, where the damage
caused by such deaths is RE: increasingly as
intolerable, where liquor licensees are
prohibited from serving intoxicated adults, and
where long-standing criminal sanctions against
drunken driving have recently been
strengthened, the imposition of such a duty by
the judiciary seems both fair and fully in accord
with the states policy.
III. Rule: A host who serves liquor to an adult social
guest, knowing both that the guest is intoxicated
and will thereafter be operating a car, is liable for
injuries inflicted on a third party as a result of the
negligent operation of a motor vehicle by the adult
guest when such negligence is caused by the
intoxication
2. Policy Arguments
A. Judicial Administration
i. Firm Rule v. Flexible Rule
1. Firm Rule: One rule set in stone where the
courts can easily administer a rule: social
hosts owe no duty of care to guests
a. Firm Rule provides consistency;
certainty in the existing rules makes
cases easier to settle
2. Flexible: KELLY says social host is liable
under certain circumstances
a. Flexible argument: bright line rules are
too rigid and they cant respond to
different situations and circumstances
B. Institutional Competence
I. Courts are not competent v. Court are competent
1. Courts are not competent
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a. Dissent from KELLY, Justice

Garibaldi: the legislature is the voice of
the people
2. Courts are competent
a. Courts are more objective, unbiased to
decide a case on the merits
b. Process of percolation, i.e., decisions
is being made all over the place in
many situations. Common law is
constantly being made in concrete
contexts
C. Moral Arguments
i. Morality as Form v. Morality as Substance
1. Morality as Form: I shouldnt be responsible for
what other people do. I served the drinks, sure,
but I didnt drive drunk.
ii. Morality as Freedom v. Morality as Security (an
argument of autonomy)
1. Morality as freedom: Madsdens should be
free to socialize as I see fit in the privacy of my
home, even if that means having liquor
2. Morality as Security: The Madsdens have a
responsibility to society so as not to release
dangerous instrumentalities or people on the
streets
D. Deterrence or Social Utility Arguments
i. Formal v. Substance
1. Formal: sheer deterrence in preventing drunk
driving
2. Substance: people wont really be deterred
because other people will keep drinking
ii. Flexibility v. Stability
1. Flexibility: Crushing Burden
E. Economic Arguments
I. How does B < P x L work?
1. The deterrence of social gatherings, no longer
done out of fear of liability from drunkenness,
is the loss of business meetings, connections
being made, thus continuing economic growth
3. What about Lizzy McGuires claim against Urman?
4. She makes a claim of NEGLIGENT ENTRUSTMENT the
greater the dangerousness of the instrumentality which is entrusted to
an individual, the greater the chance of the entrusted being held liable.
A. One who supplies the chattel is liable when she has reason to
know that the other is going to use it in an unreasonably and
dangerous way.
B. HAMILTON v. BERETTA
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i.
Issue: Did D owe P a duty to exercise reasonable care in
marketing and distributing the guns they made to
illegal, underground market, and is it proper to hold the
gun manufacturers liable based on negligent
entrustment to people who would use the guns to kill,
using market share liability, where P was injured by the
guns that D made?
ii. Holding: No.
iii. The Duty Equation
1. A D generally has no duty to control the
conduct of 3rd persons so as to prevent them
from harming others, even where as a practical
matter D can exercise such control. This
judicial resistance to the expansion of duty
grows out of practical concerns both about
potentially limitless liability and about the
unfairness of imposing liability for the acts of
another.
iv. Negligent Entrustment
1. Owner or possessor of dangerous instrument
is under a duty to entrust it to a responsible
person whose use does not create an
unreasonable risk of harm to others.
2. BUT, there are fatal impediments to imposing a
general duty of care here under negligent
entrustment theory.
a. The tort of negligent entrustment is
based on the degree of knowledge
that the supplier of the property has or
should have concerning the
entrustees propensity to use the
property in an improper or dangerous
fashion. Of course, w/o the requisite
knowledge, the tort of negligent
entrustment does not lie.
v. MSL
1. P cannot use MSL to find D liable.
2. In HYMOWITZ, MSL was required because
DES was a fungible product and ID of the
actual manufacturer that caused the injury to P
was impossible. The court carefully noted that
DES situation was unique. Key to that decision
were the facts that (1) the manufacturers acted
in parallel manner to produce an identical
product; (2) manifestations of injury were far
removed from the time of ingestion of the
product; (3) Legislature made clear policy
decision to revive these time-barred DES
claims.
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3. Here, unlike DES, the guns are not identical.

Even more so, Ps have never asserted that the
manufacturers marketing techniques were not
the same.

X.

NO DUTY CASES (James notes: need to see Hamilton v. Beretta

(p. 280 csbk) (and ch. 8 AJ)

The Duty Equation (p.282 csk) The threshold question in any negligence action is: does defendant
owe a legally recognized duty of care to plaintiff?
Courts traditionally fix the duty by balancing factors, including:
1. reasonable expectations of parties and society generally
2. the proliferation of claims
3. the likelihood of unlimited or insurer-like liability
4. disproportionate risk and reparation allocation
5. public policy affecting expansion or limitation of new channels of
liability
b. The concept of duty has been negligence laws principal mechanism of reining in juries
and thereby limiting the scope of negligence liability.
c. The judge decides that there is no dutyif there is no duty D wins on SJ
I. If the court decides that the makers of the BT have no duty to people riding the
trains, it doesnt matter how reasonable the action might have been.
d. Is it a good idea for judges to decide on negligence cases rather than the juries?
I. Kennards dissent from KFC: There are at least 3 reasons why negligence law
has allocated the judgment of Ds reasonableness to the jury:
1. (1) the irreducible variety of circumstances that may surround an event
that causes harm to someone.
2. (2) Doing so allows successive juries to reassess what precautions are
reasonable as social, economic, and technological conditions change
over time.
3. (3) The jury has the potential to bring a wider array of practical
experience and knowledge to that task than could a single judge. The
USSC has even held that 12 persons know more of the common affairs
of life than does one person, that they can draw wiser and safer
conclusions from admitted facts than can a single judge.
II. MONING: cases should be determined by the judgment of the community since
they articulates the voice of the community
e. The jury decides that if the Ds had a duty, did the D breach that duty by acting
unreasonably?
f. Majority of courts rule that D does not have duty to protect P.
g. Is this movement toward no duty dumb?
h. MCCARTHY v. OLIN CORP Black Talon (LOOK AT THIS CASE AGAIN
apprearently the federal court could not decide on duty because NY state Court of
Appeals offered no direction.
i. Issue: Is a manufacturer of dangerous instrumentality liable for 3 rd party injuries
where the intervener maliciously used the manufactured product, where D put
out the black talon bullet on the market, where Ferguson bought the gun and
blasted on P in the LIRR causing death and serious injury?
ii. Holding: No.
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i.

iii.
Reasoning: Recently, NY courts have had the chance to address issues similar to
this one. NY Courts held that the P could not state a cause of action upon which
relief could be granted against D for the manufacture and marketing of the black
talon bullet.
1. NY Courts do not impose legal duty on manufacturers to control the
distribution of potentially dangerous products such as ammunition.
Accordingly, although it may have been foreseeable by D that criminal
misuse of the BT could occur, D is not legally liable for such misuse.
There was never a special and specific relationship between P and D.
iv. SOCIAL POLICY CONCERN: to impose duty of ammunition on manufacturers
to protect against criminal misuse would force these manufacturers off the
market due to the threat of limitless liability.
v. Dissent, Calabresi: Could a NY Jury find that there was undue risk of harm in
advertising the BT bullet to the general public? YES.
1. Under NY Law, the P alleging negligence must prove that the Ds
breach of duty was a cause of Ps injury. The first of these, the
requirement that the Ds negligence was a but for cause of the injury is
met. P made this clear. Their allegations support the finding that but for
Ds marketing of its product, people like Colin Ferguson would not have
bought the bullet, thereby not injuring P on the LIRR.
vi. Notes:
1. The Scope of Duty Analysis
A. (1) Calabresis Traditional view: Past courts set general
rules of law from particular cases. Bad because judges can
use authority to fine tune legal rules.
B. (2) The new Duty analysis: Juries should play a more
important role in determining a duty. Jury needs to look at
totality of circumstances in determining if a duty is present.
Juries are better suited than judges to see if the D acted as a
reasonable person.
KFC v. SUPERIOR COURT
i. Issue: Is a restaurant, under a duty of care for its customers benefits, required
to comply with a robbers unlawful demands, where Brown was eating in KFC,
when a robber came in threatening for money while holding Brown to gunpoint
threatening to shoot her, where KFC employee did not initially comply with the
robbers demands, where this delay caused further damage to Brown?
ii. Holding: No.
iii. Reasoning:
1. KFC and amicus brief argue that there is never a duty to comply with
the demands of the robber even when the robber is holding and
threatening a hostage. We agree with KFC that no duty to comply with
a robbers unlawful demands should be imposed on a shopkeeper on
the theory that compliance may lessen the danger to other persons
i.e., just because youre complying doesnt guarantee safety for 3rd
party customers. If anything, a duty to comply to those unlawful
demands will work to the robbers advantage, who can run away
with the money every time he holds up the store.
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j.

IV.
Rule: An owner of premises has NO duty to comply with an unlawful act b/c
its against public policy (compliance to the unlawful act will allow robbers
the incentive to rob in the future knowing that employees, by public policy,
are required to comply with an unlawful act.) D is not liable.
v. Dissent, Kennard: Whether a D has a duty to use reasonable care to avoid
harm to the P is a matter of law by the court. If the court finds that duty exists,
the next question is whether the D used reasonable care. It is generally the jury
that decides whether the D used the care reasonably. By framing the issue as a
question of duty, the majority strips the jurys historic function in a negligence
case to determine the reasonableness of Ds conduct under the circumstances.
(james notes- here Kennard felt that there was a broad duty on party of
KFC to protect its patrons from foreseeable assault of third parties
Therefore, this duty should have been applied to this specific
circumstance and jury was needed to determine if actions of clerk were
reasonable in light of broad duty.)
1. (james) Duty example p. 207 BB #2- courts can always frame
standard of care issue as a question of duty----ex. Instead of
asking whether an car driver who failed to stop in time used the
care of a reasonable driver under the circumstances, we could ask
whether the driver had a duty to begin braking sooner. ---this
takes away flexibitly of reasonable person standard and juries
usage.
2. There are at least 3 reasons why negligence law has allocated the
judgment of Ds reasonableness to the jury:
A. (1) the irreducible variety of circumstances that may surround
an event that causes harm to someone. (james- by allowing
reasonable person standard, as opposed to duty, allows
for optimal level of care under specific circumstances to
be deduced, and not some generalized level of care.)
B. (2) Doing so allows successive juries to reassess what
precautions are reasonable as social, economic, and
technological conditions change over time.
C. (3) The jury has the potential to bring a wider array of practical
experience and knowledge to that task than could a single
judge. The USSC has even held that 12 persons know more of
the common affairs of life than does one person, that they can
draw wiser and safer conclusions from admitted facts than can
a single judge.
vi. Notes:
1. Broad general rules of general applicability
2. Judge Kennard & Calabresi: judges should opt for flexibility of jury to
assess situation for liability or no liability v. Justice Holmes approach
where, definite definition of negligence should be required. Give jury
ability to give attention to these cases.
STAGL v. DELTA AIRLINES Baggage Area Case
i. Issue: Does an airline have a duty of care to control the crowd at the baggage
area, where P was waiting to get her bags, where the other passengers were
rowdy, where she was knocked over by a bag, breaking her hip?
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ii.
Holding: Yes. (reversed and remanded to jury)
iii. Reasoning: This duty is a broad one, and it includes the obligation to take
reasonable precautions to protect patrons from dangers which are foreseeable
from the arrangement or use of the property, as well as to exercise reasonable
care in protecting visitors from the foreseeable, injurious actions of third parties.
1. Indeed, the NY court of Appeals held that it is particularly appropriate
to leave a finding of negligence to the jury because in the
determination of issues revolving about the reasonableness of conduct,
the values inherent in the jury system are rightfully believed an
important instrument in the adjudicative process.
iv. Notes:
1. Facts: 77 yr old passenger of Delta airline who was hurt at baggage
claim area of airport due to problem with crowd control.
2. Held: An owner or occupier of the premises owed a duty to take
reasonable steps to protect Ps against or warn of potential
negligent conduct by 3rd party within its premises, as well as
maintain the safety of its premises. D is liable
k. HOT COFFEE PROBLEM: The coffee was so hot that D failed to take reasonable steps
to warn P of the hot coffee
I. Ds argument to no liability: coffee is supposed to be hot; you drink it while its
hot; we didnt spill the coffee on you; we dont have a duty to protect you from
the food we serve to you.
II. P argues that the coffee was served unreasonably hot
III. There is no duty to protect P because its against public policy. The public
interest would not be served.
1. Fast food restaurants would be forced out of business with the looming
threat of unlimited liability.
2. MCCARTHY takes this approach. To impose duty on ammunition
manufacturers to protect against criminal misuse of its product would
likely force ammunition products off the market due to the threat of
limitless liability.
IV. But, as in DILLON v. LEGG, foreseeability is necessary to duty of care
V. Calabresi argues that we dont to determine liability on an ad hoc basis. Lets
keep these no duty cases within the well established categories of negligence
and duty

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DEFENSES
i.

What is the claim of negligence that P is claiming D is at fault for?

CONTRIBUTORY NEGLIGENCE
a. CONTRIBUTORY NEGLIGENCE: If P is at all at fault in causing the accident that harmed him, P is
totally barred from recovery.
i. R 463 defines contributory negligence as "conduct on the part of the P which falls below
the standard to which he should conform for his own protection, & which is a legally
contributing cause co-operating with the neg. of the D in bringing about the P's harm. Why
court have this rule:
ii. The burden on P is less the probability of the loss (B < P x L)
iii. This is a Complete Defense based upon a P who is negligent in the sense of not taking
reasonable care to protect his own safety, & whose negligence contributes Proximately to
his injuries, is Totally Barred from Recovery. (BUTTERFIELD V. FORRESTER)(Note this is
the old rule.)
iv. BUTTERFIELD v. FORRESTER (1809)
1. Issue: While D may have been negligent, can the P recover if she herself had acted
negligently which thereby contributed to the injury, where D placed a pole on the
road obstructing free passage, where P was riding his horse quickly in visible
sunset, where P missed the pole, hit the pole, and suffered injuries?
2. Held: Where Ps own negligence in conjunction w/ Ds negligence are the cause of
Ps injuries, P cannot recover. Ps negligence contributed proximately to his injuries.
3. RULE: For a P's to win, D must be at fault in placing an obstruction and P
must use ordinary care to avoid it. One person at fault will not dispense
another's using ordinary care for himself. Contributory negligence bars
recovery to P.
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v.
Why does the doctrine of contributory negligence exist?
a. Change Ps behavior
b. Fairness/Justice (P at fault shouldnt be able to recover)
c. Over-deter (not make D pay when they have the right to assume should be
more careful)
d. Reduce # of claims
vi. Why does court rejects contributory negligence:
1. Exception to general rule: last clear chance - way of ameliorating harsh effect of
this contributory negligence, which causes legislation to shift to comparative
negligence.
2. TYPES
a. LAST CLEAR CHANCE
i. A defense to contributory negligence, where P can recover despite
his contribution if the D was the person with the last clear chance to
avoid the accident.
ii. If, just before the accident, the D has an Opportunity to Prevent the
harm, & the P does not have such an opportunity, the existence of
this opportunity (this last clear chance) Wipes Out the effect of the
P's contributory negligence.
iii. Criticism:
1. All or nothing approach,
2. Neglect costs to each in avoiding accidents,
3. Doesnt make D responsible,
4. Denies Ps recovery who are only a little negligent.
iv. APPLICATION
1. If P is helpless and D discovers danger - All courts hold P is
not barred from recovery.
2. If P helpless, D is inattentive: Most courts apply the Last
Clear Chance Rule.
3. If P is Inattentive, D is aware: Most court apply the Last
Clear Chance Rule.
4. If both parties are inattentive: Virtually no courts apply the
Last Clear Chance Rule.
v. EVALUATION
1. This doctrine was brought into being to protect new
industries during the Industrial Revolution.
2. He used the Ex. of Phil & Dave and Phil not shoveling his
walk.
3. The burden on P is to measure B < P x L because it would
make the P more aware so that she isnt contributorily
negligent.
4. Yet while the P cannot recover, there is no deterrence
against the D. So D can do wrong, but is off the hook as
long as the P was contributorily negligent.
ii.

COMPARATIVE NEGLIGENCE
a. We take into account the Ps negligence in causing his own negligence. D still must prove the prima
facie elements of Negligence: (1) fell below standard of reasonable care; (2) Ps conduct proximately
caused the injuries
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b. MCINTYRE v. BALENTINE
i. Issue: Where both parties are negligent in their damages, is comparative fault approach
better to resolve a dispute than contributory negligence, where P and D were in car accident,
where both drank, and where the lower court, by jury, found both parties equally liable?
ii. Holding: Using comparative fault approach, we select the modified form of comparative
fault and hold that as long as Ps negligence remains less than the Ds negligence the P may
recover; in such a case, Ps damages are to be reduced in proportion to the % of the total
negligence attributable to the P.
iii. Reasoning: There are two basic forms of comparative fault: pure or modified
1. Pure: a Ps damages are reduced in proportion to the % negligence attributed to
him. (e.g,. A P responsible for 90% of the negligence that caused his injuries will
nevertheless recover 10% in damages).
2. Modified: Ps recover as in pure jurisdictions, but only if the Ps negligence either
(1) does not exceed 50% or (2) is less than Ds negligence.
3. Guidance to the lower courts in implementing this new system:
a. (a) the new rule makes the doctrine of remote contributory negligence and
last clear chance obsolete.
b. (b) P will be entitled to recover so long as Ps fault is less than the combined
fault of all tortfeasors.
c. (c) Contributory negligence allowed the entire loss to be borne by a
negligent P, notwithstanding that the Ps fault was minor in comparison to D.
Further, Ds avoid having to pay a disproportionate share of Ps damages.
d. (d) fairness and efficiency require that Ds called upon to answer allegations
in negligence be permitted to allege, as an affirmative defense, that a
nonparty caused or contributed to the injury or damage for which recovery
is sought. However, in order for P to recover judgment against such an
additional person, P must have made a timely amendment to his complaint
and caused process to be served on such additional person.
c. In Comparative Negligence, there three types
i. PURE COMPARATIVE NEGLIGENCE
1. P recovers no matter what % he is at fault, while reducing the award by P's % of the
fault. (e.g.) P is 90% fault, can still recover 10% in damages. 13 states have
adopted this.
2. Everyone pays for their share
ii. NOT AS GREAT AS
1. If Ps negligence is equal to or greater than Ds negligence, P cannot recover
2. A P who is attributed less than 50% negligent, thus not as great as the D's neg.,
may recover damages, reduced by his share of the Negligence.
iii. NOT GREATER THAN
1. The P can recover so long as his negligence does not exceed that of the others who
have caused him harm.
2. The Not Greater Than means not greater than the negligence of the Ds.
3. Under this system a P who is 50% Negligent can recover.
d. Problem L
Guyer Damages: $30,000 50% neg.
More Damages: $2,000 30% neg.
S.E.F. 20% neg.
A. More Sues

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a. M = G+S.E.F. (Pure)
i. $1,400 = 2,000(.5) + 2000(.3) = Pure
b. M = G (Comp. Not As Great As, cannot be equal to Split of Authority
on Adding the combined negligence of defendants)
i. Most States = $1,400
ii. Minority of States (Does Joint and Several Liability Exist?,
Most say No, some say yes)= $1,000
c. M = G (Not Greater Than; Same in this case as Not as great as)
B. Guyer Sues:
d. G = M+S.E.F.
i.
$9,000 + $6,000
e. Comp. NAGA
i.
$0 (even if aggregated the neg. of Guyer is as great as)
f. Comp. NGT
i.
$9,000 + $6,000
ii.
If S.E.F. neg. changed to 21%, then Guyer gets nothing under
NGT because combined the total neg. becomes 51%
-

In close cases, 50/50 decisions are more common

Difference b.ween Not Greater Than (NGT) and Not As Great As (NAGA) is
significant

X: If one partially at fault defendant is suddenly unable to pay will the court
make the other
defendant pay for the excess costs?
Y: In courts where Joint and Several liability no longer exists then the plaintiff
only will receive damages from the party who is able to pay. In courts where
Joint and Several liability exists, then one party is forced to cover for the joining
party who is unable to pay
Under joint and several liability, one party is forced to bear too much
loss (unfair) and in some cases the one party who covers for the other
party who is unable to pay was less negligent
C. UNIFORM COMPARATIVE FAULT ACT:
- Take the percentage of Ps negligence
- Add it to the negligence of the defendant who is able to pay
- Then place them into ratios
- Apportion by the percentage of negligence
Ex: G=50% negligence, M=20% negligence
o 50+20 = 70
o 50:70 = 5/7 for G
o 20:70 = 2/7 for M
D. WHICH SYSTEM IS BEST?
a. Pure
b. Not As Great As (cannot be equal to) I like this the best, unless a major
injury
c. Not Greater Than
E. WHO IS ASSIGNED THE FAULT?

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Majority consider fault of all relevant actors/entities involved in the accident

Some jurisdictions take into account just the fault of the parties to the lawsuit

e. Most states argue for the aggregate system of negligence

i. The P shouldnt walk away with zero when she was less than 50% at fault. Without an
aggregate system, P has little chance in recovering anything at all
f. Joint and Several Liability
i. If one of the Ds cant pay their damages, another D picks up that burden and pays for that
amount.
1. So if Moreland (30%) is bankrupt and cant pay his share, Ford (20%) picks up its
own liability share along with Morelands share, ultimately paying 50%
a. If you can pay your own liability, thats several liability
b. If you cant pay your own liability share, than it becomes joint liability and
you pay off the damages together.
ii. What happens when one of the parties cannot pay?
1. Split up that share according to the percentage fault of the others
2. (e.g.) Geyer (50%); Moreland (30%); Ford (20%)
a. Moreland cant make his payment of $9K.
b. Proportion out Morelands damages
i. Geyer pays 5/7th of $9K and Ford pays 2/7th of $9K, in addition to
what they initially had to pay
iii. Is fault assigned to all the parties in the lawsuit, to all the parties that were ever in the
lawsuit, or to all relevant actors?
1. Most courts consider the fault of all the actors. The actor who is absent is not bound
by that court determination
2. Uniform Comparative Act 2A: all parties, including released parties, share the fault
iv. What equals fault?
1. Do you take into account only the relative degree of unreasonableness or do you
also take into account the relative degree of cause?
a. Uniform Comp Fault Act says that youre to take into account both
2. Is the kind of fault that is involved comparable fault?
a. ALAMI v. VW: you cannot compare Ps fault with Ds fault when Ps fault is
a serious violation.
b. You dont compare Ds fault with Ps fault if Ps actions were negligent or
reckless.
3. At what time must the Ps fault occur?
a. (e.g.) Ps negligence was not following the advice of his physician. He had
heart attack. Doctors told him to go on diet and exercise, but he didnt do
so. Later, he has second heart attack, but the doctors dont correctly
diagnose it and as a result, P dies. He sues negligence. D argues that P
was negligent in not exercising.
b. The court ruled that there is no comparable fault because Ps negligence in
not working out and dieting came way before Ds negligence in not
diagnosing the heart attack.
v. ALAMI v. VW of AMERICA
1. Issue: Even when P was contributory negligent, if P makes a claim of Ds required
duty of care, can P recover damages from a different claim of negligence, where P
was killed in car accident after he struck a pole, where Ps blood alcohol level was
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beyond the required limit, where P allege that Ds defective manufacturing of the car
enhanced her husbands injuries?
2. Holding: Yes.
3. Reasoning: P contends that her husbands intoxication was not the direct cause of
the injuries for which recovery is sought. P argues that her husbands injuries were
caused by design defects in the vehicle that rendered it unsafe. Thus, P asserts that
under these circumstances, her claim is not precluded on public policy grounds
because the injuries upon which her claim is based do not have the necessary
causal link to her husbands serious violation of the law.
a. If VW did defectively design the Jetta as asserted by P, it breached the duty
to any driver of a Jetta involved in a crash regardless of the initial cause.
The duty she seeks to impose on VW originates not from her husbands act,
but from Ds obligation to design, manufacture and market a safe vehicle.
4. Rule: Where Ps claims would be dismissed under the doctrine of contributory
negligence, if P transfers the claim on an issue of duty that has no causal link
to the illegal contributory negligence, then P can recover.

iii.

ASSUMPTION OF RISK - DEFENSE

a. 2 kinds of assumption or risk
i. Express Assumption of Risk
ii. Implied Assumption of Risk
1. Primary
2. Secondary
a. Applied
b. Abolished
b. Elements of assumption of risk
i. P must know of the risk
ii. P must appreciate the magnitude
iii. P must know of the particular danger
iv. P must voluntarily encounter the risk
c. PROBLEM M
i. What does the P allege?
1. Coach hits fungoes into the outfield
2. Usher hits spectators with bamboo pole
3. No Plexiglas screen
a. B < P x L, the burden of paying to put up a plexiglass screen is probably still
less than the P x L of injury
ii. Whats Yankees defense?
1. They owed no duty to protect the people in the stands they cannot be held liable
for not protecting them
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2. Remember: The no duty defense is technically not a defense. When you argue
no duty, all youre saying is that the P has not est prima facie case for negligence
d. EXPRESS ASSUMPTION OF THE RISK: Before you can expressly assume the risk, you must know
that which you are expressing assumption of risk
i. (1) Did the P know of the express assumption of risk?
1. There might be a statuteNY Gen. Oblig. Law 526
2. In GROSS v. SWEET, the court does not exculpate the D from liability when the
injury occurred out of gross negligence where the clause does not mention
negligence (skydiving case)
ii. (2) Do the terms of the release cover this particular situation where the P was injured?
1. EVANS: An exculpatory agreement must contain, clear, explicit, and unequivocal
language referencing the type of activity, circumstance, or situation that it
encompasses, and for which P agrees to relieve D from a duty of care. The injury
must fall within the scope of possible dangers ordinarily accompanying the activity
and, therefore, reasonably contemplated by the parties
2. Courts do not like exculpatory clauses, but will enforce them only where the clauses
are absolutely clear (narrow read). After GROSS NY changed all clauses to include
the word(s) negligence
3. On the other hand, as JORST points out, the courts believe in the freedom of
contract and in absolving D from their negligence.
JORST v. DAMBROSIO Horseback riding case PVC PIPING
4. Issue: If P signs release that holds harmless D for any injuries P occurs while
engaging in specified activity on Ds property, and if P has assumption of that risk,
wherein P could not recover for damages, where P signed release that immunized D
from injuries related to horseback riding, where P actually was injured from an
activity not related to horseback riding, but from negligent handling of the property
on Ds part?
5. Holding: Refused to apply exculpatory clause because unclear and unambiguous.
Because the injury was not related to the activity signed off in the release, and
because she was injured in a way unforeseeable as a result of Ds negligence, there
is no assumption of risk, and P recovers.
6. Reasoning: A layperson reading the release would recognize that he or she could
not sue for injuries resulting from horseback riding, but he or she would not
presume that D could fail to maintain the premises in a safe condition
a. D could have foreseen injuries occurring from horseback riding such as a
fall caused by the horse. But the risk that D would negligently maintain its
premises is not one that is reasonably related to the purpose for which the
release was given. P was not injured as part of the assumed risk in riding a
horse; she was injured in an unforeseen, unrelated way when D failed to
maintain the area.
7. Rule: For a release form to be enforceable, so that P is aware of the assumed
risk of injury, the release must be clear and unambiguous, the act of
negligence must be reasonably related to the object or purpose for which the
release is given, and the release must not be contrary to public policy.
8. Notes
a. Getting hit with the bamboo pole is not a baseball activity, so Thor did not
expressly assume that he could suffer such a foreseeable injury.
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b. Were the injuries reasonably related to the purpose for which the release
was given? Would a reasonable person been able to foresee those injuries
occurring?
(3) Does the clause effect public policy?
(i) How necessary service or good is
(ii) Bargaining power discrepancy where someone might not get full tort protection by paying a little
more
(iii) Clause effects public safety
EVANS: Any person signing this clause would not be in violation of the exculpatory clause because
the clause was not a violation of public policy unless the public was placed in any danger
e. SECONDARY IMPLIED ASSUMPTION OF THE RISK (courts generally dont like this approach)
X: Bell throws ball over his head and it hits Ann. He wrote on the board that he would be throwing things.
What claim/result?
Y: Implied Assumption of the risk. Ann (1) was aware of the risk; (2) did not understand magnitude of the
risk; (3) was not aware of particular danger (did not voluntary take on the risk)
i. By going to the game, Thor impliedly assumed the risk that he could possibly get hit with a
ball while sitting in the stands
ii. What does the D need to do to show that P had implied assumption of the risk?
1. P must know of the risk
a. If Thor does not know that baseballs can fly into the park, he has not
assumed the risk
b. If the kids got hit, they have assumed the risk because they were
ready with their gloves
2. P understood the magnitude of the risk
3. Voluntary encounter (193, 194 from HACKER)
iii. Still, why are the Yankees not negligent?
1. So long as they consent to the activities that involve injury, if you let the negligence
run, there is limitless liability. These results in deterring injuries, which would lead to
fencing up the outfield, limiting the enjoyment of baseball.
iv. Implied assumption of the risk is basically a consent-based defense
v. (1) PRIMARY ASSUMPTION OF THE RISK (PAR) (majority view)
1. Instances in which the assumption of risk doctrine embodies a legal conclusion that
there is NO DUTY on part of D to protect the P from a particular risk, but cannot
behave intentionally or with reckless indifference with the well-being of the plaintiff
(e.g.) Yankees should not be liable
a. Thor assumed the risk
b. The ballpark never had a duty to protect.
2. This standard looks at OBJECTIVE STANDARD:
a. What did this general class of people know?
b. Objective Reasonable person in class.
3. Primary Objective Assumption represents a trend in area of recreational sport where
people who engage in this are not owed any duty of reasonable behavior (not
engage in intentional and reckless harm)
a. (e.g.) Fire-Fighters Rule
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4. The court moving increasingly to say that in some circumstances, D shouldnt be

liable b/c of certain policy considerations.
5. According to DelGato, the basis for any activity is that you cant recover damages is
the belief that you have consented to the existences of those risks, then we have to
be sure that you have consented knowing what those risks are.
vi. (2) SECONDARY ASSUMPTION OF THE RISK Subjective, Subjective, Subjective
1. reasonably implied assumption of the risk (RIAR) - a P is barred from bringing
an action:
a. Did P know of the risk (subjectively)?
b. Did P know of particular risk?
c. Did P appreciate magnitude?
d. P must voluntarily encounter the risk
2. Instances in which D does owe a duty of care to P but the P knowingly
encounters a risk of injury caused by the Ds breach of that duty.
a. This occurs where there would ordinarily be a duty on the D to protect
against a risk but the P's assumption of the risk has caused the duty to
dissipate.
3. This standard looks at SUBJECTIVE STANDARD, i.e., What did this tree-trimmer
know in respect to the A of R.
This assumption is based on consent (i.e. Thor seeing no plexi-glass,
seeing balls fly into the stands, etc.)
vii. RUSH v. COMMERICAL REALTY (Peeing through Roof case)
1. Women runs to the dangerous out house to pee, and she falls through the
floorboards and into the crap. P did not voluntarily encounter that risk because she
had to pee (confronting the risk was not voluntary)
viii. HACKER v. CITY OF GLENDALE (Tree Trimmer Case)
1. Issue: Where the nature of the activity that P is engaging is reasonably and
inherently dangerous, does D owe P a legal duty of care to protect P, where P was
in the business of trimming trees, where D hired P to trim his trees, where P was
aware of electricity running through the trees, where there were wires running
through the trees, where P was electrocuted and killed?
2. Holding: No. D owed no legal duty of care to P to protect against the hazard of
electrocution, GENERALY.
3. Reasoning: In KNIGHT v. JEWETT, the court concluded that a participant in an
active sport breaches a legal duty of care to other participants only if the participant
intentionally injures another player or engages in conduct that is so reckless as to
be totally outside the range of the ordinary activity involved in the sport. But
KNIGHT does not limit itself to the sports arena.
a. Applying the firefighters rule to this case, we conclude that P was employed
for work that carried with it certain inherent hazards, e.g., electrocution. The
firefighters get compensated in advance rather than afterwards.
b. After KNIGHT, it is clear that application of the primary assumption of risk
doctrine does not depend on the particular Ps subjective knowledge of the
risk. Rather than being dependent on the knowledge or consent of the
particular P, resolution of the question of the Ds liability in such cases turns
on whether the D had a legal duty to avoid such conduct or to protect the P
against the harm.
c. This P knew of that risk
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4. Dissent, Johnson:
a. Ps job is to encounter risk of negligence and remedy them.
b. Did P know of the particular risk. i.e. Electrocution of branch touching
electrical wire
c. There are triable issues whether P subjectively knew the facts and
appreciated the danger that these were high voltage power lines and that
he could be electrocuted merely by touching a tree limb.
5. RULE: relied on KNIGHT v. JEWETT which said that in terms of an active sport
breaches a legal duty of care to other participants only if the participant
intentionally injures another player or engages in conduct that is so reckless
as to be totally outside the range of the ordinary activity involved in the sport.
By objective standard, D owes no legal duty to P, objective standard.
Furthermore, the Fire Fighter rule-involves the question whether a person
neg. starts a fire is liable for injury to a firefighter. Rule provides that the
person who started the fire is not liable b/c the party who neg. started the fire
had no duty to protect the firefighter from the danger that the firefighter is
employed to confront. B/c the D owes no duty to firefighter, he has no cause
of action
ix. BLACKBURN v. DORTA
1. Issue: While contributory no longer serves as a bar to Ps recovery, since
comparative negligence has overruled it, where does the common law of
assumption of risk stand?
2. Reasoning: If assumption of risk is equivalent to contributory negligence, then
HOFFMAN mandates that it can no longer operate as a complete bar to recovery.
However, if it has a distinct purpose apart from contributory negligence, its
continued existence remains unaffected by HOFFMAN.
a. We note that assumption of risk doctrine is not favored by the courts. It is
said that this redundancy results in confusion, and denies recovery unjustly.
b. The kind of assumption of risk that we deal with here is that which arises by
implication of implied assumption of risk. This can be divided into two
categories: primary and secondary
i. Primary: another means of stating that the D was not negligent,
either b/c he owed no duty to P or because he did not breach a
duty owed.
ii. Secondary: an affirmative defense to an established breach of duty
owed by the D to the P.
c. Having dispensed with the primary-implied assumption of risk, we recur to
the secondary-implied assumption of risk which is the affirmative defense
variety that has been a thorn in the judicial side. This can be subdivided:
i. Pure or strict assumption: type of conduct which is reasonable but
nonetheless bars recovery (e.g., man returns to his house which is
on fire and runs into the house to get his child. He voluntarily
exposed himself to the fire and is barred from recovery).
ii. Qualified assumption: type of conduct is unreasonable and bars
recovery (e.g., same man runs into the house to retrieve his hat.
This unreasonable conduct could be seen as contributory
negligence)
x. TURCOTTE v. FELL Jockey Falling of Horse Case
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1. Issue: Where P is engaged in an activity where there is an assumed risk of injury, is

D liable for reckless or intentional conduct in causing Ps injuries, where Ps horse
clipped the heels of Walter Malone, where Ps horse fell over and crushed P,
where defendant NYRA negligently failed to water the tracks?
2. Holding: No, P consented that the duty of care owed him by Ds was no more than a
duty to avoid reckless or intentionally harmful conduct. Although a sports safety
rules are an important consideration in determining the scope of Ps consent, the
alleged violation of the rule in this case did not constitute reckless or intentional
conduct.
3. Rule: If participant in sports activity makes an informed estimate of the risks
involved in the activity and willingly undertakes them, then there can be no
liability if he is injured as result of those risks
xi. DELGADO ARTICLE:
- Ds want objective standard
Cubs Hypo: How are we to know each persons knowledge of the game?
-

f.

Ps (injured party) want subjective standard

Cubs Hypo: Why not go through some effort to let each fan know of the
risk(s)?
- The subjective standard is one of consent
SUMMARY OF ASSUMPTION OF THE RISK
i. When looking at someone who might be assuming the risk
1. Are we dealing with expression assumption of the risk or implied assumption of
the risk?
2. Express
a. Did P understand the risk?
b. Do the terms cover the situation (JORST)
c. Is there an exception to public policy
3. Implied (depends on the jurisdiction)
a. Primary AssumptionD owes no duty
b. Secondary Assumption - Applied
i. Does the state apply secondary assumption of the risk? Or has it
abolished it (BLACKBURN) because of the implementation of
comparative fault
1. If the secondary assumption applies, use the 3-prong test
from the HACKER dissent
a. P knows of the risk(s)
b. Did P appreciate the magnitude
c. Did P voluntary encounter the risk
2. If the state has abolished the secondary assumption of the
risk, you must still keep in mind that the consent of implied
risk will be taken into account as to whether the D had a
duty
3. The more hostile a judge is towards assumption, the
narrower the particular risk v. general risk

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iv.

IMMUNITIES NON CONDUCT BASED DEFENSE

a. HYPO: JL v. THE ARMY AND GRACE CITY
i. Counts of negligence
1. Against US Military
a. Not warning the participants on dangers of synthaturf
b. Fielding a team to play on the Synthaturf
2. Against Grace City
a. Installing Synthaturf (negligent installation)
b. Not warning of the turf
ii. USs immunity defense claim Military Immunity
1. military actions are incident to service (i.e., combatant activities arising during time
of war)
a. FERES doctrineimmunity to injuries to serviceman where injuries arise
out of or are in an activity incident to military to service.
b. Heavily criticized
c. There are some fairly clear activities which are/not subject to immunity
i. Medical malpractice claims by government sponsored doctors
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ii.
Sexual harassment of service members is a claim incident to service
iii. Claims by service members injured after discharged or while
theyre on furlowthose are not RE: as incident to service.
d. In issues of nonclarity, the courts consider
i. Location of inicident, etc.
2. Governmental Immunity - In the area of suing the US-federal government, all tort
claims run through the Federal Tort Claims Act (give up partial immunities)
a. The activity is one where the agent used the discretionary function (is the
non-conduct/negligenct conduct the performance of a discretionary
function?):
(BERKOVITZ test)
1. Action of choice for government employee:
a. Look for some policy that tells D what to do
There was no specific provision mandating Curtis to warn JL.
2. Judgment is protected by the discretionary function
exception:
a. Decision-making revolves around the nature of the
action; and
b. Whether decision revolves around policy analysis
(balance considerations of the situation)
(i)
Need to be able to make an argument that explains
why government officials should have these immunities
to prevent a fear of liability (usually primary function is
to promote the well-being of the general public and do
not want to sway them for doing what is best with the
fear of being held liable for making a poor decision
HIGHLY CONTROVERSIAL)
(ii)
Tie in discretion reasons
Army would argue that decisions affected military relations and relations of
the military with society
ix. Citys immunity defense claim
1. Governmental function (RISS)
2. Rules are too detailed and varied to go into in any depth.
3. Focus on negligent installation. City will claim municipal immunity. Municipal
immunity is not as widespread as state or federal government immunity has been.
See textual note, p. 452.
4. Like federal discretionary function immunity, courts often will grant
immunity for municipal governments policy-making functions.
a. Sometimes phrased as governmental v. proprietary.
b. Sometimes as planning v. operational.
c. For each pairing, there would be immunity if the allegedly negligent
activity fell into the former category and no immunity if it fell into the
latter.
5. Riss v. City of NY (452) (Lady attacked by hit-man, hired by stalker)
a. What was the rationale for immunity?
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i.
Tort liability for failure to provide police protection would be new step,
which presents difficult problems that are for the legislature.
ii. Not like traditional govt. provision of service and facilities for use
of public, such as public buildings. 2d full , p. 453.
b. How does that apply to our situation?
i. This is not vast new area.
ii. However, similar concerns about the government agency in charge
of an area (the schools) having its budgetary problems supervised
by the courts.
6. So, it is important to recognize in this area of immunities that policy considerations
as to why a municipal government should (or should not) be immune can play a
significant role in influencing whether the activity in question is regarded as
governmental (hence, immune) or as proprietary (hence, not immune).
h. TIPPET v. UNITED STATES (446) (Government Immunity) (Yellowstone Snowmobiler Case)
I. Issue: Where a moose attacked a previous group of snowmobilers in Yellowstone, where
Ranger Phillips knew of the mooses presence in the area, where he didnt close off the area
to prevent harm to the P, where he later shot and killed the moose after it severely attacked
P and Ps group, where failure to use discretion would find this governmental employee
liable?
II. Holding: No Government agent not liable
III. Reasoning:
1. (447) Under the FTCA, the US waives its sovereign immunity with respect to certain
injuries caused by government employees acting within the scope of their
employment
2. 2680, the Discretionary function exception, contains an exception to this
waiver of immunity for claims based on the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal agency
or an employee of the government, whether or not the discretion involved be
abused.
3. 2-PRONG TEST from BERKOVITZ to determine whether the discretionary function
exception applies in cases brought under the FTCA:
a. Whether the action at issue was one of choice for the government
employee; AND
b. if the conduct involved such an element of judgment, whether that
judgment is of kind that the discretionary function exception was designed
to shield.
4. Policies existed which presented the agent with a choice AND the agent weighed
the policies in making his decisions
IV. Rule: Under the FTCA, for the discretionary function exception to apply, the
governments action must satisfy the 2-prong Berkovitz test, and the action must be
done with the balance of social policy.
V. Notes:
1. IMMUNITY FOR TORTS IN A MILITARY SETTING
a. (450) FERES v. US provided the US sweeping immunity against such suits
i. Tort actions against the US that are incident to service in the
military are barred.
ii. What constitutes incident to service has been the subject of
contentious litigation.
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i.

VI.

b. (451) KITWOSKI v. US held the D not liable for the death of a plaintiff in
training for Naval Rescue Swimmer School
c. US v. STANLEY, a serviceman suffered serious injures arising out his
having volunteered to undergo an experiment with LSD. He was not
informed of the risks.
i. P argued that (1) this experiment and the militarys negligence had
nothing to do with the militarys discipline and that (2) this action
was not incident to service; the court barred recovery anyway.
RISS OF CITY OF NEW YORK (453)
I. Issue: Is a municipality liable in failing to provide special protection to a member of the
public who had been repeatedly threatened with personal harm and eventually suffered dire
personal injuries for lack of such protection, where P was stalked by Pugach, where Pugach
threatened to kill her if she didnt go out with him, where P had made repeated claims to the
police who treated her with indifference, where P suffered injuries as a result of the polices
indifference?
II. Holding: No, because the municipality owes duty to everyone, they essentially dont owe a
specific duty to anyone
III. Reasoning:
1. (453) The amount of protection that may be provided is limited by the resources of
the community and by a considered legislative-executive decision as to how those
resources may be deployed.
2. Before such extension or responsibilities should be dictated by the indirect
imposition of tort liabilities, THERE SHOULD BE A LEGISLATIVE DETERMINATION
that that should be the scope of public responsibility.
IV. Rule: (454) There is no warrant in judicial tradition or in the proper allocation of the
powers of government for the courts, in the absence of legislation, to carve out an
area of tort liability for police protection to members of the public.
V. Notes, CASES DEALING WITH NONIMMUNITY:
1. DeLONG v. ERIE COUNTY (911 Caller Case)
a. Facts: P was being robbed; called 911, and gave her address: 319 Victoria.
b. (458) The 911 guy wrote the wrong address down: 219 Victoria. By the time
the police got to the right house, P was dead. The court held D liable, citing
and distinguishing from RISS
2. (459) BRANDON v. COUNTY OF RICHARDSON (Boys Dont Cry)
3. Facts: county sheriff was held liable for negligently failing to protect a victim of a
crime from future harm by the same criminals whom that victim had reported
beforehand.
i. After P was raped, the sheriff knew who the assailants were, but did
not take P into protective custody or arrest the assailants. P was
later killed by the same assailants.
b. Held: Though the general rule was that law enforcement is immune in
failing to protect citizens from criminal acts, an exception existed when a
special relationship was created b/t the victim and the police.

STATUTE OF LIMITATIONS NONCONDUCT BASED DEFENSE

a. HYPO: HH v. HGC
i. Exposed to the cancer in 2008
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ii.
Didnt know that she had cancer until years later.
1. Feels sick 2010
2. Learns of exposure to TCE on Spring 2011
3. She gets diagnosed cancer in 2012
4. She finds out in 2013 that TCE is linked to her cancer
5. She finds out in 2014 that her father knew about the cancer in 2002
iii. Files complaint 2016.
iv. HH had to have brought the action within 3 years that the cause of action accrues (when
does clock start ticking?)
1. When could the 3-year statute of limitations begin to run (split of authority)?
a. Time of exposure - 2008
b. The time when the injury was diagnosable (the point where necessary
testing done would had discovered the illness) 2010
c. P discovered/reasonably should had discovered the injury - 2012
d. P discovers/reasonably should have discovered the injury and the
cause of injury (Majority of courts pick this Dissent in ANTHONY) early 2013
e. P discovers/reasonably should have discovered the injury, cause, and
the Ds misconduct (ANTHONY v. ABBOTT) Fall 2014
b. Whats the point/argument of statute of limitations?
I. Social Value
- Loss-Spreading
- Lesser deterrent effect in cases involving drug manufacturers (the CEOs have shortterm foci, probably the company wont even be around any longer, trouble getting
insurance bc difficult to predict future possibility of liability)
- Accident cost reduction(s) But do they really reduce?
II. Justice
III. Prevent stale claims Concern about judicial process coming to wrong result:
- Give the D peace of mind that the litigation could end (see statute of repose)
- We dont want Ps sleeping on their rights but we want them not to bear the loss
and dont want the plaintiff to bring a suit against an empty-party
- Ps are most affected because they have the burden of proof so loss of memory, loss
of documents, etc. hurt the plaintiffs
c. Can Hollys father claim parental immunity?
i. Maybe not.
ii. Parents are immune where the negligence involved the exercise of normal parental
discretion over such matters as providing food, housing, and medical services.
iii. But many of the courts have abolished parental immunity
d. ANTHONY v. ABBOTT LABS
I. The 5-pronged test in product liability actions requires:
1. (1) That the P has learned or reasonably should have learned of the injury;
2. (2) That the P has learned or reasonably should have learned of a possible causal
connection b/t the injury and the product
3. (3) That the P has learned or should have learned of some wrongdoing by the drug
manufacturer and the injury and the cause.
4. (4) First manifestation of the injury.
5. (5)Discovery of the injury and the cause.
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II.
Issue: In product liability suits, does the statute of limitations begin to run when the P discovers
the injuries and its cause or when the P discovers or should have discovered that the D was
liable for misconduct, where a class of action of Ps suffered injuries as a result of DES
ingestion in utero, where some realized their injuries 3 years before the suit, where some did
not realize the misconduct of D until three years before the suit?
III. Holding: Statute of limitations runs when the P realizes the misconduct of the D.
IV. Reasoning:
1. In WILKINSON, the court held that the SOL does not commence to run until the P
discovers that she has sustained injuries as a result of the doctors negligent
treatment. That court noted that it is manifestly unfair to bar the enforcement of
injury claims brought by a P who was not, nor could not have known that she was,
the victim of tortious conduct b/c the consequent harm was unknowable within two
years of the negligent act.
2. A better view, modifying the rule from WILKINSON, is that in a drug productliability action where the manifestation of an injury, the cause of that injury,
and the persons knowledge of the wrongdoing by the manufacturer occur at
different points in time, the running of the statute of limitations would begin
when the person discovers, or with reasonably diligence should have
discovered, the wrongful conduct of the manufacturer.
3. In extending the discovery rule in drug product-liability actions until the P discovers
or in reasonable diligence should have discovered the manufacturers wrongful
conduct, we believe such a rule will encourage their testing before a product is
placed on the market.
4. But the rule requires reasonable diligence in discovering the wrongful conduct
on the part of the manufacturer. Therefore, the statute shall start running when a
reasonable person in circumstances similar to Ps would have discovered wrongful
conduct. If the factfinder determines that the P did not exercise reasonable
diligence, then the earlier date will be used to start the statute running.
V. Rule: in a drug product-liability action where the manifestation of an injury, the cause
of that injury, and the persons knowledge of the wrongdoing by the manufacturer
occur at different points in time, the running of the statute of limitations would begin
when the person discovers, or with reasonably diligence should have discovered, the
wrongful conduct of the manufacturer.

VII.

STATUTES OF REPOSE:
a. No D can sleep peacefully and be assured that he will not be sued at some later time when his prior
negligence is discovered to have caused injury.
b. However, in several areas, legislatures have been successfully lobbied to enact statutes of repose to
protect Ds from long-tailed liability.
No cause of action 6-8 years after last action by D that gave rise to
Ps cause of action
c. Some states limit the liability of architects and engineers to a given number of years after a building
has been completed; others limit the liability of manufacturers to a number of years after the first
purchase by a consumer.
d. The P must bring the lawsuit within 8-10 years of the time that the product was put into the stream of
commerce
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VIII.

JOINT AND SEVERAL LIABILITIES (Liability Already Settled)

a. This does not have to do with whether or not the D is liable
b. Its about WHO PAYS and HOW MUCH when more than one D is liable, esp. when P does not or
cannot get full dollar damages from one or more of those defendants
c. What does it mean to be jointly and severally liable?
i. The Ds are each responsible for Ps full compensation and each one is fully responsible.
II. Several = liable, youre only liable for your share of negligence
III. Joint = liable, youre liable for the whole amount
IV. Joint and Several = responsible for own portion of fault, unless one D is insolvent
d. Theres been a major statutory assault on the basic doctrine of joint and several liability over the
course of several years
i. Some states have done away with joint and several liabilities
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ii.
Other states have eliminated joint and several liabilities but only in respect to non-economic
damages (lost wages, medical bills, emotional distress, etc.)
iii. Some will limit when the Ps fault is above a certain percentage or where the Ds fault is
below a certain percentage
ex. If D is less that 25% at fault
ex. Think of the Disney Bumper-Car Case as an example of injustice where Disney
paid full amount for only 1% of fault
iv. Some courts have held less than 50% at fault have to pay for non-economic loss
e. NATURE:
i. All Ds are held liable for the full amount.
ii. If there is more than one D and the harm is indivisible, the P may sue and collect from either
D or both of them. If one cant pay other is fully liable.
iii. The P can recover from either D or both whether the D's are Concurrent Tortfeasors (those
whose separate acts concurred to injure the P) or are Joint Tortfeasors (those who have
acted in concert).
IV. BIERCZNYNSKI V. ROGERS (Drag racing case) Mini Hypo
1. Facts
a. A and B are drag racing & A hits Ps car.
b. Ps cause of action: negligence
c. A is negligent b/c acted unreasonably by speeding and on the wrong side of
the road
d. A is liable for unreasonable action, which caused injuries.
e. B is negligent because accident probably would not had happened had B
stopped racing
f. A and B can be held jointly liable
2. Plaintiff argues: B is liable for unreasonable action, which caused injuries. Although
did not crash he participated in race and created an unreasonable risk of harm.
3. B argues he should not be held liable if A is unable to pay since A is the one who
actually caused the injuries (claiming unproportionality to fault)
4. Plaintiff argues: No its not unfair/disproportional because B also caused
unreasonable harm to others on the road
5. Held: Both wrongdoers, regardless of amount of participation, can be held liable
jointly because of participation in an act of concurrent negligence.

V. Reasons for joint and several liability: (Senator Larry Pressler SM p. 299)
1. Moral fault assigned
2. Innocent are fully compensated when would otherwise fall short in award of
damages if a D could not pay.
3. Spreading costs through society
4. Deep pockets/insured paid for what would destroy a poor person
vi. Look at risk of harm that D created, how unreasonable Ds action were
vii. Look at the seriousness of the harm--thats why Ds should be liable and should use joint and
several liabilities as compensation. Wisconsin uses strongly to all cases where D is more
negligent than P
VIII. TWO KINDS OF FAIRNESS ARGUMENTS:
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1. Proportionality: innocent v. wrongdoer, innocent shouldnt have to pay; one D

should pay for only his portion of the fault not the other Ds portion as well. That
would be out of proportion to my wrong.
2. Shifts loss on someone who does not deserve to pay
IX. Modifications and Suggestions
1. States: Vermont; Indiana, other 7 state got rid of this
2. Some modified only with respect to non-economic damages;
3. Reflects merger of discomfort (in emotional & negligent emotional distress cases
regarded as harder to get money) in awarding money...lost earnings, lost wages.
4. Dont do it in all cases, non-economic only where Ds negligence is lower than (less
than 50%), then Ds will pay for only their percentages.
5. Other states look at when P is contributory negligent - look at percentage at which P
is liable.
f. RATIONALE: The injured P should fully recover for his injuries & let the D's deal with the
apportionment. Due to the idea of compensation.
g. SUB-PARTS
I. SATISFACTION
1. A P is entitled to only one Satisfaction of her claim. 1 Bite at apple.
2. Doctrine of satisfaction: when one of 3 Ds settle for 100,000 out of a of total $1.5
million. Whats left is 1.4 million b/c 100,000 need to be reduced from original total.
Prohibit P from claiming the total 1.5 million because the P had already been
satisfied by the lump settlement of $100K from 1 of 3 Ds
II. RELEASE
1. Common Law: A P who has a cause of action against more than 1 D can settle with
one D and continue to sue the other. (Only Wash & Virginia.)
2. Majority Rule: Most states do not release the other D's but the written release must
state that the other Ds are not released.
III. CONTRIBUTION
1. This is when a D who has paid more than his Pro Rata share seeks to obtain partial
reimbursement from the other D's.
2. No contribution between intentional tortfeasors.
3. Three possible responses: Application
a. 1939 Uniform Act 4 allows contribution.
i. This discourages settlements because P feels he cant win either
way.
ii. A D will not settle unless he is fully relieved of liability.
b. 1955 Uniform Act 4 provides that a D is discharged from liability for
contribution, so long as he acts "in good faith.
i. This solution is conducive to collusion & productive of litigation on
the issue of good faith.
c. 1979 Uniform Comparative Negligence Act 4 provides that the
settlement with a D means the selling of half of the cause of action to him,
with a resulting pro rata reduction in the claim against D2. Does not change
Ps settlement perspective.
IV. INDEMNITY
1. This is a 100% shifting of liability (D pays for nothing), whereas Contribution is a
sharing.

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2. This is where P recovers from D1 for the entire damages, and if D1 can prove that
D2 is more negligent, the D1 can seek total indemnity (entire amount paid to P) from
D2 (most frequently occurs in vicarious liability suits.
3. RS 22, Indemnity
a. (a) When two or more persons are or may be liable for the same harm and
one of them discharges the liability of another in whole or in part by
settlement or discharge of judgment, the person discharging the liability is
entitled to recover indemnity in the amount paid to the P, plus reasonable
legal expenses, if:
i. the indemnitor has agreed by contract to indemnify the indemnitee,
or
ii. the indemnitee
- was not liable except vicariously for the tort of the indemnitor, OR
- was not liable except as a seller of a product supplied to the indemnitee by the
indemnitor and the indemnitee was not independently culpable
b. (b) A person who is otherwise entitled to recover indemnity pursuant to
contract may do so even if the party against whom indemnity is sought
would not be liable to the P.
V. Joint tortfeasor recover indemnity only w here: 4 factors SM p. 294
1. he has only a derivative or vicarious liability for harm caused by other tortfeasor
2. he has incurred liability by action and direction, interest of and in reliance upon other
tortfeasor
3. he has incurred liability b/c of a breach of duty owed to him by other tortfeasor
4. he has incurred liability merely b/c of failure, even though negligent, to
discover/prevent misconduct of other tortfeasor (tortfeasor seeking indemnity still
liable for damages commensurate w/ his relative culpability.)
h. AMERICAN MOTORCYCLE ASSN v. SUPERIOR COURT OF LA INDIVISIBLE ACTION
I. Issue: Does the adoption of comparative negligence in LI warrant the abolition of joint and
several liability of concurrent tortfeasors?
II. Holding: No.
III. Reasoning:
IV. Rule: A concurrent tortfeasor whose negligence is a proximate cause of an indivisible
injury remains liable for the total amount of damages, diminished only in proportion
to the amount of negligence attributable to the person recovering.
i. HERMAN v. WESTGATE CONCERT OF ACTION
I. Issue: If two or more people engaged in concerted action to cause Ps injuries, can P
recover from all the Ds, where multiple people threw P overboard to his refusal and suffered
injuries as a result?
II. Holding: Yes.
III. Rule: mere participation in a concerted activity that results in the Ps injury will
subject the D to liability.
IV. Notes:
1. RS 876, Persons Acting in Concert
a. For harm resulting to a third person from the tortious conduct of another,
one is subject to liability if he
i. (a) Does a tortious act in concert with the other or pursuant to a
common design with him, or

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j.

ii.
(b) Knows that the others conduct constitutes a breach of duty and
gives substantial assistance or encouragement to the other so to
conduct himself, Or
iii. (c) Gives substantial assistance to the other in accomplishing a
tortious result and his own conduct, separately considered,
constitutes a breach of duty to the third person.
MICHIE v. GREAT LAKES STEEL DIVISION NATIONAL STEEL CONCURRENT HARM
I. Issue: Under the law of the Michigan, may multiple Ds, whose independent actions of
allegedly discharging pollutants into the ambient air thereby allegedly creating nuisance, be
jointly and severally liable to multiple Ps for numerous individual injuries which Ps claim to
have sustained as a result of said actions, where said pollutants mix in the air so that their
separate effects in creating the individual injuries are impossible to analyze?
II. Holding: Yes.
III. Reasoning: In the MADDUX case, Justice Smith said where the independent concurring
acts have caused distinct and separate injuries to the P, or where some reasonable means
of apportioning the damages is evident, the courts generally will not hold the tortfeasors
jointly and severally liable. BUT, if the triers of fact conclude that they cannot reasonably
make the division of liability b/t the tortfeasors, we have an indivisible injury. So, where the
negligence of two or more persons concur in producing a single, indivisible injury, then such
persons are jointly and severally liable, though there was no concerted action.
IV. Rule: BUT, if the triers of fact conclude that they cannot reasonably make the division
of liability b/t the tortfeasors, we have an indivisible injury. So, where the negligence
of two or more persons concur in producing a single, indivisible injury, then such
persons are jointly and severally liable, though there was no concerted action.
PROBLEM N: Evan v. Private Plane Pilot (PP) and Air Malta (AM)
v. Two planes collide, Evan, young lawyer, gets injured
vi. What does Evan get from both Ds?
1. Under joint and several liability, where ATC defendant is absent, in a claim for
$1.5M, PP and AM would pay $750K each (liable for total amount in damages)
2. Without joint and several liability, P would receive 2/3 (if equally liable w.o joint and
several liability)
vii. Where Air Traffic Controllers (ATC) and AM v. PP, what do they get for compensation?
1. They each get $150K ($300K split 2 ways)
VIII. Evan sues all three: ATC, AM, PP SETTLEMENTS/CONTRIBUTIONS
Settlements is an area where lawyers get trapped in malpractice most
often
1. PP gives $100K to Evan; Evan release PP and settles with them
2. If Evan is executing a release, he must do it in the right form, i.e., when signing the
release, make sure that when youre settling that you use the right words so you
only release PP and dont by mistake release AM and ATC as well
3. So, at trial, once PP is released, what does Evan get from ATC and AM?
a. Nothing. Only one satisfaction per customer is allowed. (477)
i. What if Evan still argues for $1.5 million against ATC and AM after
PP settles for $100K? --> no, doctrine of satisfaction (cannot get
more than full damages after court has made a determination)
4. If AM and ATC each pay $700K, they now want to sue PP for contribution
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a. ATC and AM would end up paying $500K

b. PP receives an additional $400K on top of the settlement $100K = $500K
PP will argue for other options Uniform Contribution Among Tortfeasor to
release himself from paying anything more than the settlement
ix. What if settlement with PP for $700,000?
1. AM/ATC end up paying $400,000 each because P cannot receive any more than the
one claim
a. Uniform Comparative Fault Act seems fair when PP settled for $100K, BUT
when settled for $700K then it hurts P (I DISAGREE P STILL GETS $1.5
MIL AT MOST AT TRIAL)
X. EG v. PP; PP pays $1.5M; PP then goes against AM and ATC - INDEMNIFICATION
1. They dont want contribution, as in paying for their share. They want indemnification,
i.e., they want ATC and AM to pay ALL of it
2. RS 22 (477)
a. Probably will not get it when the fault is mostly on PP
3. What if AM sued pilot?
a. Could prob. get indemnity through suing employee (vicarious liability
holding liable for actions of another and only because of the actions of
another and not because of any bad behavior on part of the party being
held vicariously liable)

DAMAGES
I.

COMPENSATORY DAMAGES
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a.

One of the aspects of this is the accept legal view that an injured P has to get all of her
compensation for the losses she suffered as a result of some other person or entities tortious
conduct in a single trial (e.g., ANDERSON v. SEARS)

i.

b.

What that means is that youre looking at this persons injury at a moment in time that is long
before a lot of the effects become evident

ii.
iii.

Whats this persons life going to be in the future as a result of the tortious conduct?

iv.

Its difficult to assess these damages, but they are also speculative.

The law must assess future expenses, future loss of earnings, future pain and suffering and
enjoyment of life.

THINGS YOU HAVE TO DO TO CALCULATE COMPENSATORY DAMAGES

i.
ii.

Determine the persons earning capacity in the future

Determine the extent of the persons total disability

1.
2.
iii.

Temporary v. permanent

Determine the duration of the disability

1.

To determine the duration, most likely look at tables that can figure out life
expectancy, work-life expectancy

2.

REILLY v. US

3.

c.

Total v. partial

a.

Infant daughter was permanently injured because of military hospitals

negligence

b.

D argued that the trial court erred in rejecting work-life tables that showed
that the daughter would only work for 28 years.

c.

The court rejected this argument and accepted Ps expert testimony of a 48year work life: In an environment where more and more women workit
can no longer be assumed that women will absent themselves from the
work force for prolonged intervals during their child-bearing/child-rearing
years.

WHEELER TARPEH-DOE v. US (Nyanpen Case)

a.

Defense argued that the appropriate measure of future earnings for the boy
(mother is white and father is black) is the avg earnings of black men, not
those of all men.

b.

The fed. court rejected this position: It would be inappropriate to

incorporate current discrimination resulting in wage differences b/t the
sexes or races.

CLAIMS OF ERROR

i.
ii.

(1) The judge wrongly instructed the jury

(2) One of the parties argue: this issue should never have gone to the jury for their
consideration
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1.

iii.

ZIMMERMAN v. AUSLAND

a.

Issue: Whether the admission of a mortality table is proper to assess

damages for permanent injury when P had the chance to mitigate the
damages by undergoing surgery. Holding: Yes.

b.

Rule: Where a P suffers permanent damage, but the permanent

damage can be mitigated by surgical operation, if the P does not
unreasonably fail or refuse to submit to surgery, as would a
reasonable person would do, then the P can still recover damages.

(3) The amount is too great, excessive

1.

Most of the time the appellant is seeking remittitur (the appellate court will say,
11M is excessive, but 9.5M would have been ok. So P, if you accept 9.5M, end of
the case, but if you wont then there has to be a new trial)

a.

2.

iv.

Remittitur: If money damages awarded by a jury are grossly excessive or

shock the conscience as a matter of law, the judge may order the P to remit
a portion of the award. (either you except or we will reverse and remand for
a new trial cant say that P get this amount, court can say that P has a
choice between: 1) to take that amount or 2) remand for a new trial)

RICHARDSON V. CHAPMAN (Paralyzed Flight Attendant Case)

a.

Issue: Are the damages excessive, where the jury returned verdicts against
Tandem and Chapman to pay $22,358,814 and $102,215 to Richardson
and McGregor, respectively. Rollins had to pay Richardson $21,368,814
and McGregor $92,215. D claimed that the damages were excessive?

b.

Holding: The damages are reasonable for Richardson, but not for
McGregor

c.

Reasoning: Richardson had damaged spinal cord and became paraplegic.

She was helpless. The damages awarded to Richardson are not the result
of passion or prejudice. The record shows that Richardson suffered
devastating, disabling injuries as a consequence of the accident.

d.

The jury award for McGregors injuries of $100K for pain and suffering are
excessive. She was not seriously injured. A more appropriate figure for pain
and suffering is $50K, which would reduce he total damages to $52,215.

(4) The standard that the courts use to determine whether the damages amount is too
excessive

1.

STATE FARM MUTUAL AUTO INSURANCE CO v. CAMPBELL

a.

Issue: Whether, in circumstances we shall recount an award of $145M in

punitive damages, when the compensatory damages was $1M, is excessive
and in violation of the Due Process Clause of the 14 th Amendment, where P
failed to adequately represent and cover Ds insurance after getting into a
car accident?

b.

Holding: According to the three-prong test put forth by BMW v. GORE, the
damages award granted the by Utah Supreme Court was too excessive.
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c.

Reasoning: It was error for the Utah Supreme Court to reinstate the $145M
punitive damages award.

i.

We are instructed to review the punitive damages considering 3

guideposts:

1.

2.

(1) The degree of the reprehensibility of Ds conduct

a.

The courts have been instructed to determine the

reprehensibility of the Ds misconduct by
considering whether (1) the harm caused was
physical as opposed to economical; (2) the tortious
conduct evinced an indifference to a reckless
disregard of the health or safety of others; (3) the
target of the conduct had financial vulnerability; (4)
the conduct involved repeated actions or was an
isolated incident; (5) the harm was the result of
intentional malice, trickery, or deceit

b.

The Utah Supreme Court makes explicit that State

Farm was being condemned for its nationwide
policies rather than for the conduct directed toward
the Campbells.

c.

But a state cannot punish a D for conduct that may

have been lawful where it occurred.

d.

Any proper adjudication of conduct that occurred

outside Utah to other persons would require their
inclusion, and to those parties, the Utah courts, in
the usual case, would need to apply the laws of
their relevant juris.

e.

The courts are awarding the Campbells punitive

damages for something that State Farm had not
directly to them. A D should be punished for the
conduct that harmed the P, not for being an
unsavory business.

(2) The disparity b/t the actual or potential harm suffered by

the plaintiff and the punitive damages award

a.
3.

ratio of 145 to 1 of punitive to compensatory

damages is unreal.

(3) The difference between the punitive damages awarded

by the jury and the civil penalties authorized or imposed in
comparable cases.

a.

119

The most relevant civil sanction under Utah state

law for the wrong done to the Campbells appears
to be a $10K fine for an act of fraud, an amount
dwarfed by the $145K.

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d.

II.

Rule of law: To properly assess punitive damages, follow the 3pronged test by GORE: (1) The degree of the reprehensibility of Ds
conduct; (2) The disparity b/t the actual or potential harm suffered by
the plaintiff and the punitive damages award; (3) The difference
between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.

EXPENSES

a.

EXPENSES

i.
ii.
iii.
iv.
b.

Must be reasonably related to Ds wrongful conduct

Expense must be reasonable amount
Future and past medical expenses recoverable
Where covered by insurance P cannot recover medical expenses

MITIGATION OF DAMAGES:
- P must take reasonable and proper measures to mitigate damages

i.

RELIGION:
- Should not give damages to P where P could have avoided incident, however, in
considering whether actions were reasonable in this instance you CAN take into the
account the fact that he is a member of a religion
- Is this a legal determination which violates Constitution by making a decision on what
a reasonable religion is?
a) HYPO P:
- Lawyer has eggshell case
- Eggshell case where D takes P as he finds him because negligence causes lots
harm, real injuries (innocent v. wrongdoer) averages out over course of
discussion
- element of choice when dealing with religion
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a) WILLIAMS v. BRIGHT:
Facts: Jehovah witness refuses to mitigate damages and does not accept surgery.
Standard: Reasonable person standard by adding in the religious belief as a factor for jury
to consider.

c.

COLLATERAL SOURCE (CS)

i.

As long as payment for any aspect of harm is not made by the D, the P's recovery from D is
NOT DIMINISHED by the amount of these payments. (Bell v. Primeau) D still has to pay

ii.

CS RULE APPLIES WHEN

1.
2.
3.
4.
-

d.

Employment benefits
Insurance (Health)
Social Security & Welfare Payments
Free Services
NJ Statute abolishes CS rule except for wages received from workers comp and
proceeds from life insurance (in other words, the fees are NOT deductible)

COYNE says the opposite

i.

COYNE V. CAMPBELL (Whiplash Doctor)

1.

Facts

a.
b.
c.
2.

P is claiming the value of those services for his damages.

a.

Gratuitous services rendered by relatives, neighbors & friends are not

compensable - can only recover out of pocket expenses.

b.
c.

There is No recovery for P on services given gratuitously by colleagues.

Future moral obligations are not compensable.

3.

POLICY: to punish a D by requiring him to pay P for free services would be unfair in
compensatory damages.

4.

DISSENT: Use CS doctrine.

POLICY: a tortfeasor shouldn't be allowed to escape financial
consequences of his wrongful act merely b/c P got benefits from third party.
(Some states allow D to present evidence of payment to the P from CS, i.e.
insurance).

COYNE got its holding from DRINKWATER V. DINSMORE

1.
e.

P received Medical care & follow up from colleagues at no charge.

Held

a.
ii.

P was a physician & sustained whiplash injury.

Held that P can recover only so much as he paid or was bound to pay.

COLLATERAL SOURCE ISSUES

i.

PRO: COYNE says that you should be able to recover what you paid for insurance
premiums.
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1.

ii.

f.

a.

Subrogation: comes out of an agreement between you and your insurance

company.

b.

Blue Cross has the right to subrogate (step into the shoes) the D with
respect to any costs that are owed to the P.
i. Insurers should lower premiums!

c.

Money taken from one form of insurance i.e. liability insurance (pay 50% off
of premiums for compensation) to another form i.e. health insurance 1 st
party source (pay 90% off of premiums for compensation to people) so
what is best? If collateral source with subrogation then the health insurance
can recover more money and lower premiums unlike the case if no
collateral source rule nor subrogation where no money goes back into
health insurance unless people are paying higher premiums

CON:

1.
2.
3.

There is a N.Y. statute that abolishes the Collateral Source Rule.

4.

There will be less cost in the system if 1st party insurers take care of the P and then
go after the D

Those against the Collateral Source Rule say that it prevents P gets a windfall.
If there is no CS Rule it will be less attractive for P's to bring suits, therefore there is
less litigation costs to the system.

AVOIDABLE CONSEQUENCES

i.
ii.

The P has a duty to MITIGATE his damages.

iii.

WILLIAM v. BRIGHT

iv.

The P cannot recover for any harm that would probably been avoided had he sought
Adequate Medical Care.(same for religious reasons for failure to mitigate damages)

1.

Facts: P hurt by accident caused by father. Needed blood transfusion, but refused
b/c of religious (Johovah witness) belief.

2.

Court held that to avoid a purely objective or subjective standard in assessing the
reasonableness of a failure to mitigate medical damages on religious grounds, the
jury should be instructed to consider subjective beliefs only as a factor in risk-utility
balancing (particularize reasonableness to P)

REASONABLE CARE REQUIRED

1.
2.
g.

SUBROGATION: There is no double recovery. The insurer can be reimbursed by

the P for what the P receives from the D.

The P is only required to use reasonable care

In determining what is "reasonable" it should be particularized to the P.

BURDEN OF PROOF

i.

The burden is on the D to show that the P's harm could have been reasonably avoided.

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III.

LOST WAGES PAST AND FUTURE

a.

Melinda Kameo HYPO: 27 years old; she is permanently injured and can no longer practice as
lawyer (cannot concentrate for more than 20 minutes at a time)

i.
ii.
iii.
iv.
v.
b.
c.
d.

In 5 years, 2008, (she would have been paid $100K/year) $500K

5 years later (sr. associate), 2013, (she would have been paid $250K/year) $1.25M
10 years later (jr. partner), 2018, (she would have made $600K/year) $3M
20 years later (sr. partner), 2038, (she would have made $1M/year) $20M
She wants $24.75M in damages for lost wages

Should we settle? NO.

WHY SHOULD JUDGE AWARD THE AMOUNT?
WHAT ARE THE ARGUMENTS FOR DEFENDANT? EDDIE, 82
(1) $24.75M doesnt seem to be the right amount; WHY? (stuff known about the
specific person that, as our best prediction, will earn less than other people)

1.
2.

(a) speculative amount Courts recognize inherently speculative

3.

(c) Asian American attorney (1) inconsistent definitions by race; (2) conflated with
socioeconomic factors to begin with that it is already difficult to use race as an
indicator (courts eerie about these kinds of arguments)

(b) girl lawyer makes less money make 73% compared to male counterparts
(Courts eerie about these kinds of arguments)

4.

(d) doctrine of avoidable consequences: mitigate the loss of her wages by taking
another job (e.g. Florida toll bridge operator)
(2) ADJUSTMENT DISCOUNT THE PRESENT VALUE BASED ON NET INCOME NOT
GROSS INCOME
(a) PRESENT VALUE AMOUNT AVAILABLE THAT ONCE INVESTED WOULD
GIVE SALARY AMOUNT PER YEAR

a.

To offset a windfall of collecting future damages now, courts instruct the jury
to award the P only the "Present Value" of losses

i.

In other words, that are the sum of money which, invested at a given
rate of interest, will permit the P to withdraw a monthly payment for
the amount of years. Courts refer to the process of calculating its
lump sum as reducing the recovery to present value, calculated in
the first instance, from the standard charts ...
Discount to present value: why do we look at these charts (p. 646-47)? Need to
give her salary yearly, need to give her money now so she can invest it, so she can
get steady income from it. Need to consider inflation...Even accepting the $24.75M
figure is not enough because you want to discount to present value

b.

If youre trying to make her whole again, and you pay her $1M 15 years
from now, $1M today is not the same amount of money as $1M in 15 years.
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So you want the present value to equal what she would make as a senior
partner in 2043.
(b) TAXES

5.

c.

There is a split of authority on this (Fed. Court takes into account, Maj.
State Courts say no)

d.
e.
f.

Ordinary Taxpayers are usually calculated on a Gross earnings basis.

g.

Fed statute says that taxes to personal injury damages will not be taxed for
damages for personal injury awards

High Bracket Taxpayers are usually given after tax awards.

Most courts will not adjust the damages with taxes because the tax rate and
tax law consistently changes

(c) INFLATION

a.

TOTAL OFFSET METHOD (minority)

i.
ii.
iii.
b.

e.

It is easier to let them cancel each other out.

Has theoretical justification that this amount represent real rate of
return (value get over and above rate)

PARTIAL OFFSET METHOD (majority)

i.
c.

Some courts have refused to require Discounting an award to

Present Value, on the assumption that Inflation & Discounting cancel
each other out. This is called the TOTAL OFFSET METHOD

The Partial Offset Method uses a 1-3% interest rate to account for
inflation. Historical rate over time. Discount the calculated amount
by the interest rate

PERIODIC PAYMENTS

i.
ii.

One way to deal with inflation is through PERIODIC PAYMENTS.

iii.

But what if D disappears, goes bankrupt, or stops paying? Its

important to compensate victims because otherwise they will be
dependent on others and be unable to subsist.

P's recovery is paid in Installments over the years & is indexed

according to inflation.

ANDERSON v. SEARS, ROEBUCK (Sears Heater Case)

i.
ii.
iii.

Issue: whether $2M in compensation damages for future medical expenses is excessive for
the injuries infant Helen incurred as a result of Ds defective water heater.
Holding: No.
Reasoning

1.

Past Physical and Mental Pain

a.

She was almost burned to death. The undisputed testimony reveals that
one of the most tragic aspects of this case is the horrible mental and
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emotional trauma caused to this child occurred at an age that is crucial to

the childs entire psyche and personal formation. $600K is not excessive

2.

Future Physical and Mental Pain

a.
3.

Future Medical Expenses

a.
4.

f.

IV.

Treatment and counseling, plastic surgery, private tutoring for mental and
emotional needs. $250K is not excessive

Loss of Earning Capacity

a.
5.

She has to undergo 27 future operations. Inherent stress and tension of

each new phase of life will tax this little girls mental and emotional capacity
and she will be deprived of a normal life and not get married and have a
family. $750K is not excessive

This damage will prevent her from earning a living for the rest of her life. Not
only do the physical impairments disable her but her emotional limitations
require avoiding stress and the combined effect is the permanent incapacity
to maintain serious employment. $330K is not excessive.

Permanent Disability and Disfigurement

The jury could have awarded more than $2M, so the jurys $2M verdict is well within the periphery
established by the maximum award test.

NONECONOMIC DAMAGES (Eddie 83)

a.
b.

What can Melinda Kameo recover in noneconomic damages?

c.
d.

Pain: physical pain

e.
f.

Ps lawyers push for the Court to create separate recovery for pain, suffering and lost enjoyment

Lost Enjoyment of Life: loss in participating in rec activities, watching her children, b/c she can only
concentrate for 20 minutes, she cant enjoy an hour-long TV show
Suffering: people look at her scarred face and sneer. She goes to social gathering and no one wants
to talk to her (fears, disability, disfigurement)
MCDOUGALD v. GARBER C-Section Ends in Brain Damage MAJORITY LAW Must be
Cognitive to receive LEL

i.

Issue: Whether some degree of cognitive awareness is a prereq for loss of enjoyment of life
(LEL) and (2) whether a jury should be instructed to consider and award damages for loss of
enjoyment of life separately from damages for pain and suffering, where P suffered oxygen
deprivation while being operated under C-section by D, which left her with severe brain
damage and in coma.

ii.

Holding: Yes, there needs to be a degree of cognitive awareness as prereq for LEL; NO,
damages for LEL should not be separate from damages for pain and suffering.
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iii.
Reasoning:

1.

There is no point in awarding damages for pain and suffering when you cant even
feel the pain and suffering.

2.

There has been an attempt to split the suffering associated with physical pain apart
from the mental pain that stems from the inability to engage in certain activities and
to have juries provide a separate award for each. Some courts have resisted the
effort, primarily on the ground that duplicative and therefore excessive awards would
result.

3.

If the term suffering is limited to the emotional response to the sensation of pain,
then the emotional response caused by the limitation of lifes activities may be
considered qualitatively different. But suffering need not be so limitedit can easily
encompass the frustration and anguish caused by the inability to participate in
activities that once brought pleasure. The advocates of separate awards contend
that b/c pain and suffering and LEL can be distinguished, they must be treated
separately if the P is to compensate fully for each distinct injury suffered. WE
DISAGREE

4.

The estimation of pecuniary damages is not amenable to such analytical precision

and may, in fact, suffer from its application. Translating human suffering into dollars
and cents involves no math formula; it rests on legal fiction

iv.

Rule of law: There is no point in awarding damages for pain and suffering when you
cant even feel the pain and suffering, and damages for LEL should not be segregated
from pain and suffering damages.

v.

NOTE: Most courts now follow the view that LEL should be an independent recovery from
pain and suffering b/c p&s compensate for physical and mental discomfort while LEL
compensates for the limitations an injury places on a person's life.

1.
g.

LEL:

i.
h.

Almost all of the courts agree that you cannot recover for pain and suffering unless
you can prove that the P was conscious of the pain and suffering.

Should damages be instructed separately, together, or not at all?

How do you determine damages for Pain and Suffering?

i.

What is included?
- Fear (not necessarily E.D. because encompassed as a part of suffering, so it is
distinct), Disability, Disfigurement

ii.

Willingness to pay method: Measures people's consumption behavior to determine how

much they are willing to pay to reduce the possibility of dying, such as money spent on
smoke detectors, alarms etc.

1.

Have psychologist assess the extent to which the injury has affected the person's
life. In evaluation using this scale, compare the client's pre and post injury lifestyle in
four areas:

a.
b.

Practical functioning
Emotional and psychological functioning
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c.
d.

Social functioning
Occupational functioning

iii.

Willingness to accept method: measures the value people place on enjoyment of life
based on the idea that people are willing to accept more hazardous jobs with a higher risk of
death if they are compensated accordingly.

iv.

Societal willingness to spend: Look at what actually happens in the world with RE: to
situations where you are saving or reducing the risk of harm

i.

How would a defense lawyer counter a plaintiff lawyers defense of a video portraying a day in the
life of Melinda Kameo

j.

PER DIEM ARGUMENT PAIN AND SUFFERING

i.

Courts frown on the instruction for the jury to step into the shoes of the injured P and assess
a damage

ii.

The Per Diem Argument suggests in putting a price on daily pain & then multiplying it by
the number of days in the life expectancy table.

1.

D's say:

a.
b.
c.
2.

Juries Cannot Handle the formula.

If you're going to use a day to measure why not an hour or second?

P's say

a.
b.
c.
iii.

You should not use a mathematical formula.

It is fair & rational.

It helps juries visualize the amount of damages.
Awards will not be arbitrary.

ABOLISH OR LIMIT?

1.

P's say

a.
b.
2.

If you put a cap on the limit then D's will be able to assess the risk of liability
Caps are Unconstitutional.

D's say

a.
b.

You cannot effectively measure the damages.

c.
d.

There is more certainty, which leads to decreased transaction costs

Caps are necessary in order to allow D's to determine how much insurance
they need.
People dont buy insurance against intangible harms

i.

If we make people pay for tort damages, we are making them pay
for something they dont want

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V.

PUNITIVE DAMAGES: purpose is to punish and deter

a. What are the main issues that come up?
i. Whats the basic standard?
ii. If Melinda Kameo (exposed to carcinogen at fathers job-site) sues for injuries, it must be
iii. She sues the company that expose her to cancer
b. Should they exist?
i. A study has shown that over the last 25 years, most corporations have not had to pay $ 1 in
punitive damages.

ii.

D argues

1.
2.
3.
4.
iii.

Compensatory damages are enough

There will be a bonus/windfall to the P
There are no protections given to P like there are in criminal cases
This is double punishment; it goes to the point of vengeance

P argues:

1.
2.

We need punitive damages to punish and deter DETERRENCE.

3.
4.
5.

Windfall to P (P get this on top of full compensation)

Facing multiple of punishment, punishment will be excessive; no $ left to later

compensate others; dont need this to deter wrongdoing by D
Concern for lack of procedural safeguard that we have in criminal cases
Constitutionality of punitive damages?

a.
b.
c.
c.

Disparity b/w the harm or potential harm suffered by P and punitive award
Difference b/w this remedy and the civil penalties authorized or imposed in
comparable cases

burden of proof: (Owen case) conduct that actually be clear and convincing evidence (Geressy
case; more likely than not) OWENS v. ZENOBIA

i.
ii.
iii.
d.

Focus need to be on reprehensibility

Requires clear and convincing evidence of actual malice as opposed to implied damages.
There must reckless and conscious disregard.
The court says that conscious disregard to do just isnt enough

What conduct is enough?

i.

Punitive damages are usually awarded only where the D's conduct was "reckless" or "willful
and wanton."
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ii.
"Deliberate disregard of a high probability of injury" is the conduct required in order to receive
punitive damages. (Taylor v. Superior Court)

e.

THE STANDARD FOR PUNITIVE DAMAGES

i.

Can P establish that the defendant was aware, willfully, and deliberately failed to avoid
those consequences (recklessness, conscious disregard of high risks of harm, gross
negligence)

ii.

Implied Malice and willful misconduct:

OWENS-ILLINOIS v. ZENOBIA DEFINITION OF ACTUAL MALICE

1.

Rule: in a non-intentional tort action, the trier of fact may not award punitive
damages unless the P has established that the Ds conduct was characterized
by evil motive, intent to injure, ill will, or fraud, i.e., actual malice.

2.
3.

Does not allow award b/c there has to be actual malice, and wanton disregard.
Split authority.

a.
4.
f.

Majority will go with standard that P est. that D was aware and willfully. This
is the actual malice standard including intent which the majority considers
as evil.

Instead of having just to prove to a preponderance of evidence that D did something

with malice, the court requires for punitive damages that the P present clear and
convincing evidence

INSURANCE COMPANIES PAYING FOR TORTFEASORS DAMAGES?

i.
ii.

Many insurance policies exclude payment of punitive damages

There is a split of authority on allowing coverage of punitive damages, b/c some courts say
that it is against public policy and should not be paid, but the majority allows recovery saying
it is not against public policy (insurance company, though can put into contract to not
account for punitive damages)

1.
iii.

Reasons against

1.
iv.
v.
vi.

First look at the K, does it say that it will pay for punitive damages as well as
ordinary liability
If you allow insurance companies to pay for punitive damages, it cancels out any
deterrent value.

In NY, no insurance against punitive damages.

If does cover, is it void as against public policy? Some courts say yes, it is void, insurer not
required to pay for punitive removes punishment and prevents what punitive punishment is
all about. Some courts say no because premium are paid and insurance should pay out in
return
PRICE v. HARTFORD ACCIDENT AND INDEMNITY CO.

1.

Issue: Is it lawful for the insurance companies to pay for the punitive damages that
the P is required to pay, where P have $1M covered for auto insurance, where she
was in lawsuit where she was sued for $25K in punitive damages, where D refused
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to pay for the punitive damages, and where, under AZ public policy, the trial court
held that the insurance company was not obligated to cover punitive damages?

g.
h.

2.

Holding: Yesif the premiums have been paid and accepted, the insurance
company is required to pay for the damages.

3.

Rule: It is out holding that the premium has been paid and accepted and the
protection has been tendered, and that under the circumstances public policy
would best be served by requiring the insurance company to honor its
obligation.

ISSUE: How should a jury be charged to decide punitive damages award?

RULE: In NY, the burden of proof should be applied with a preponderance of the evidence std, not
the clean and convincing evidence std. Three factors for determining whether punitive damage
award is GROSSLY EXCESSIVE:

i.
ii.

(1) Degree of reprehensibility of the non-disclosure

(2) ratio b/t harm and punitive damages

1.

What ratio b/t compensatory and punitive damages are reasonable so as not
to shock the conscience?

a.
2.
3.

Lots of courts stick to the 9:1 ratio

Should the punitive damages only be used to punish within the state?
When compensatory damages are substantial, then a lesser ratio, perhaps
only equal to compensatory damages could reach the outer limits of the due
process inquiry.

iii.

(3) the difference b/t his remedy and those imposed in comparable cases (other
jurisdictions). (i.e.) What other civil and criminal penalties are imposed by some state
statute or governmental regulation

iv.
v.

Punitive damages are rarely awarded outside of asbestos cases

If awarded, punitive damages are awarded if the Ds conduct is egregious

i.
j.

Would city of Miami be vicariously liable for the Melindas damages?

k.

Split of authority:

Ds who are vicarious liable have a stronger argument if the actual tortfeasor caused an intentional
tort, because then the damage is not within the scope of employment

i.

l.

RS 909: Ps ability to have punitive damages against the master if he/she/managerial

agent authorized or ratified the Ds actions, or if the wrongdoer was some kind of
high-up agent in the company or possibly even that there was some kind of reckless
disregard in hiring the D.

Should punitive damages exist?

i.
ii.

Bad thing, criminal punishment with no amorphous amount

Many states have put caps on them in certain situations
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iii.
Posner: argues that in most cases where dealing with substantial compensatory damages adding
punitive will not add that much and might make closer to full compensation

iv.

Putting a company out with punitive damages prevents some from collecting compensatory
damages in other cases
D can bring in evidence of other punitive damages

m. Constitutionality of punitive damages: SEE STATE FARM 3 FACTOR TEST (BELOW)

-

What to tell the jury when defendant claims unconstitutional award?

a. Due Process (14th Amendment) cannot award grossly excessive
amounts of punitive damages

STATE FARM MUTUAL AUTO INSURANCE CO v. CAMPBELL

i.

Issue: Whether, in circumstances we shall recount an award of $145M in punitive damages,

when the compensatory damages was $1M, is excessive and in violation of the Due
Process Clause of the 14th Amendment, where P failed to adequately represent and cover
Ds insurance after getting into a car accident?

ii.

Holding: According to the three-prong test and the damages award granted the by Utah
Supreme Court was too excessive.

iii.

Reasoning: It was error for the Utah Supreme Court to reinstate the $145M punitive
damages award.

iv.

Rule of law: To properly assess punitive damages, follow the 3-pronged test by
GORE: (1) The degree of the reprehensibility of Ds conduct; (2) The disparity b/t the
actual or potential harm suffered by the plaintiff and the punitive damages award; (3)
The difference between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.
STATE FARM CASE:

1.

Nationwide policy to pick attorney and to pick whether or not go to trial/settle

because if they go to trial and win no payment, if they lose then only pay settlement
amount because of the policy, forcing the insurer to cover rest of damages
UTAH COURT UNABLE TO PUNISH FOR THINGS OUTSIDE OF THE STATE OF
UTAH

2.

Ratio compensatory to punitive was 1:145

Where ratio is 9:1 or lower is more likely than not to follow due process and is
inherently suspect (most likely they should be 1:1)

n.
VI.

Burden of Proof:
- P needs clear and convincing evidence to show proof for punitive damages

VICARIOUS LIABILITY

a.

Under vicarious liability, you are holding D liable for something that somebody else did wrong, no
proof that the person liable actually did something wrong

i.

It is a form of strict liability

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ii.
The diff with vicarious liability is that we dont hold the D liable unless someone who is closely
linked to the D has wrongfully injured or done some conduct that subjects them to liability,
too.

1.
b.

Why sue somebody for something who didnt even do anything wrong?

i.
ii.
iii.
iv.
c.

(e.g.) Employers are held liable because somebody with whom they have a
relationship did something wrong

DEEP POCKETS
Better compensation and regulation of safer behavior
Fairness
Deterrence

There are 3 principle issues in vicarious liability

i.

(1) Is the wrongdoer, i.e., the person who behaved badly an employee or an
independent contractor?

1.
2.

(a) Does that party have significant control over the details of the Ds wrongdoing?
(b) Whats the method of payment?

a.
b.
3.

Hourly basis vicariously liable.

If its by the job independent contractor

(c) Is this employee engaged in a distinct occupation

How to decide

ii.

a.

Look at the amount of control: The control required to make a person an

employee rather than an independent contractor is usually held to be
control over the physical details of the work. (control over employees
work vs. details of work; courts look at this most)

b.

Look at the Payment: Job as a whole is likely to be an independent

contractor

c.

Look at Occupation: Is it distinct?

(2) If the wrongdoer is an independent contractor, is there an exception to the general

rule that one is not vicariously liable for the actions of an independent contractor to
whom he/she is paying money?

1.

You have to look at 3 exceptions

a.

(1) Employer will be responsible if you are negligent in hiring, training,

employing, supervising, etc. the particular actor (BUT IF NEGLIGENT IN
HIRING, THEN NOT REALLY AN EXCEPTION BECAUSE ALLSTATE
WOULD BE MERELY LIABLE FOR NEGLIGENCE)
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b.

(2) Non-delegable duties FIRST REAL EXCEPTION

i.
ii.
iii.
c.

If the party who is the actual wrongdoer is doing a task that you are
not allowed by the law to delegate to others to do, then you will still
be liable for those actions even if they are an independent contractor
Look for a statute or regulatory obligation
Many states have statutes impose liability on drivers for the safe
condition of their cars

(3) If the party you hired is engaging in inherently dangerous work, two
things you want to remember RESTATEMENT CREATES VERY BROAD
EXCEPTION AND PRACTICALLY GETS RID OF INDEP. CONTRACTOR
RULE

i.

(a) Remember that the court is always looking at the situation in a

context in which someone has gotten seriously injured

1.

This will make it look like the task of work was dangerously
done

ii.

(b) Remember the inherent characteristics of things of blasting

versus driving
Exceptions to Rule of Independent Contractor

d.

Non Liability

i.

An employer who hires an IC is NOT generally liable for the torts of

that person. HOWEVER, there are a number of significant
exceptions to the rule where an employer WILL be held liable:

e.

(1) Was the employer negligent in hiring or training, etc. (This is not really
VL, but it's negligence).

f.

(2) Inherently dangerous work: This rule applies EVEN If every

precaution was taken. RS 416 work which create risk physical harm to
others. Cannot always tell who is liable, but can tell who is fiscally
responsible who could afford the costs -- and could then sue for indemnity
(because one is not at fault at all can always seek indemnity from a party
who is at fault)

g.

(3) Non-delegable duty: This is where there are some duties of care that
are deemed so important that the person owing them will NOT be allowed
to delegate them to anyone. Look for something that involves a federal or
state statute or regulation that impose responsibility on an owner for the
condition of the car that the person cant escape.

(3) If the wrongdoer is an employee, was he/she acting in the scope of his/her employment?
HYPO: Suppose instead Mimi was employeeIs AllState Vicariously Liable?
YES, SO LONG AS EMPLOYEE ACTING WITHIN SCOPE OF EMPLOYMENT

2.

What kind of conduct is within the scope of employment?

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a.

(RESTATEMENT TEST) Enterprise/Serve the Purpose Test: was the

employee acting in furtherance of the Defendants business in the context in
which he/she was acting? Was the employee working towards the
furtherance for the benefit of the employer? How was what she did
connected to the employment?

i.

Most states use this test

b.

Control test: Does D have the actual control of the activity of the employee,
or have the opportunity to control to the employee?

c.

Characteristic (foreseeable)/Engenered By Employment test: Was the

employees activity characteristic of the activities engaged in by the
Defendants employees?/

d.

i.

Ira Bushy employees action characteristic of the type of action from

Ds employees.

ii.

Test that should be used because of the justice/fairness

reasons

IRA BUSHEY v. US Drunken Seaman

i.

ii.
iii.

Issue: Was Seaman Lanes actions, in turning the wheel and

releasing water onto Ps drydock, which ruined the drydock and the
ship, characteristic of his employment under the US government,
where the US would be vicariously liable for the damaged caused by
his negligence?
Holding: Yes
Reasoning:

1.

A policy analysis thus is not sufficient to justify this

proposed expansion of vicarious liability. This is not
surprising since respondent superior, even with its
traditional limits, rests not so much on policy grounds
consistent with the governing principles of tort law as in a
deeply rooted sentiment that a business enterprise cannot
justly disclaim responsibility for accidents which may fairly
be said to be characteristic of its activities.

2.

Lanes conduct was foreseeable enough to sue the

government for vicarious liability. Here it was foreseeable
that crew members crossing the drydock might do damage,
negligently or even intentionally, such as pushing a Bushey
employee or kicking the property into the water. Moreover,
the proclivity of seamen to find solace in the bottle is
enough foreseeability that negligence might result. If Lane
had set fire to the bar where he had been drinking, then the
government would not be liable.

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iv.
Rule: where an employee engages in negligent conduct is
foreseeable to result in damage, the employer is vicariously
liable.

e.

JOHN R. v. OAKLAND UNIFIED SCHOOL DISTRICT

i.
ii.
iii.

Issue: Can a school district be held vicariously liable for a teachers

sexual assault onto a school boy under the doctrine of respondent
superior, where the teacher molested the boy in his apartment
during an officially sanctioned tutor session?
Holding: No.
Reasoning: Although it is unquestionably important to encourage
both the careful selection of these employees and the close
monitoring of their conduct, such concerns are better addressed by
holding school district in such matters and subjecting them to liability
only for the own negligence.

1.

3.

Imposing such vicarious liability on school districts will

result in deterring school districts from encouraging
extracurricular contacts b/t students and teachers.

iv.

RULE: The connection b/w the authority conferred on teachers

to carry out their instructional duties arid the abuse of that
authority to indulge a personal, sexual misconduct is simply
too attenuated to deem a sexual assault as falling within the
range of risks allocable to a teacher's employer.

v.

POLICY: insurance would be more costly; funds would be diverted

from educational purposes; similar programs that are beneficial
would end.

An employee is considered to be acting w/in the scope of employment if he was

acting with the intent to further his employer's business purpose, even if the means
he chose were indirect, unwise and perhaps even forbidden.

a.

Tests

i.

Trips from home (CONTROL)

1.
ii.

(1) Where the employee is traveling from home to work,

the employee is NOT acting within scope, based on the
theory that the employer has "NO CONTROL" over the
employee at that time.

FROLIC AND DETOUR: (ISSUE FOR THE JURY)

1.

(1) Traditional view: While an employee is on the first leg

of F&D, she is NOT within the scope, but as soon as she
begins to return toward the path of her original business
trip, she is once again within the scope of employment.

2.

(2) Modern view: The employee is within the scope of

business if the deviation is "reasonably foreseeable"
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iii.
ACTS PROHIBITED BY EMPLOYER: Employer liability will still exist
even if the acts done were in furtherance of the employment.

4.
5.
d.

If Mimi worked for All State, All State is liable.

So how do you understand if someone is within the scope of employment?

HYPO:

i.

Mimi works for All State, and is driving home one night and gets into accident with Patrick.
Mimis law firm is struggling and cant pay, and so Patrick sues Allstate since it has deeper
pockets

ii.

AllState is going to argue that one is not vicariously liable for the wrongdoing of an
independent contractor

1.

All State could be liable since they are financially responsible. If All State pays for all
of the damages, All State could file a cross claim against Mimi and file for
indemnification.

iii.

What if the accident happened while Mimi was driving to the bar? Is this such a gross
deviation, a frolic and detour, from the business of the employer?
(a) Courts may determine as either a frolic/detour

e.

SO WHY HOLD EMPLOYERS VICARIOUSLY LIABLE?

i.

ii.

iii.

Justice concerns:

1.

Fair to make employers bare the costs that generally go along with doing this type of
business.

2.

Just as they benefit from their employees, the employers should also be expected to
bare the costs if harm occurs while the employee is acting in furtherance of
employers interest.

Deterrence:

1.
2.

Encourage safety by being more selective in hiring employees, training, etc.

3.

Safety idea is a false one, b/c employers can be held liable for their own negligence
in hiring, supervision, and/or training.

4.

Could be a false reason because employers will only behave reasonably and there
is no way to ensure full deterrence.

Compensation/Loss spreading:

1.
2.
iv.

It cost a lot to take precautions in hiring the right employees, supervision, and
training, to the degree that is just right. (B<PL)IF B is not met or equal to PL then
can hold employer directly negligent

Deep pocket of employers could pay for injury if D1 was their employee
If the employers is benefiting from whatever the employee is doing, it is only fair for
the employer to pay for the liability that comes with whatever the employee does.

Law and Policy Note: p. 158 It may be very difficult for P to show that D was negligent so it
is much easier to recover under vicarious liability. (Comes up again in strict liability)
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VII.

STRICT LIABILITY

a.

The D engages in a certain activity, e.g., blasting, keeping wild animals at home, driving a car, and
because the D engages in that activity, the D is liable for any injury that is caused and proximately
caused

b.

We are asking 3 principle questions

(1) What are the preconditions for strict liability?
(2) Is this really something different from negligence? (always ask when you see courts are
doing something other than holding a D liable for doing something when acting reasonably
under all the circumstances)
(3) If it is different than negligence, then why do we have this aberrant mode of liability and
what is it?

c.

STRICT LIABILITY ON ANIMALS

i.

GENERALLY

1.

2.

The owner of Livestock or other animals is liable for property damage caused by
them if they Trespass on another's land.

a.

This applies even if the owner took the utmost care in preventing their
escape.

b.

Some states have eliminated distinctions between livestock and

domesticated animals

c.

Courts also tend to be tougher on Ps who knew of inherent risks involving

activities with certain animals

Generally, dog owners are primary group.

a.
ii.

iii.

Liability if knew or should have known that the dog is dangerous. Rules are
modified by statute imposing liability for any biting done with certain limits.

EXCEPTION

1.

An owner may be strictly liable for actions of a domesticated animal if the owner
knew or should have known of its dangerous tendencies. (See BARD)

2.
3.

PRIOR KNOWLEDGE is the key here.

4.
5.

Defense of provocation is used for these cases by D's.

The saying "Every dog has one bite" is not specifically true, but its the general point
(though most courts say there are other ways than an attack to know a dog or other
animal is violent.)
Note many states have dog statutes which specifically convey liability to dog owners
regardless of prior knowledge of violent tendencies.

RELEVANT CASE LAW

1.

Andersen v. Two Dot Ranch: open range policy immunizes owners from liability
when their livestock enters anothers land. In affirming the trial courts grant of SJ in
favor of D, the Wyoming high court refused to impose strict liability. Instead, both
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motorists and livestock owners simply owe a reciprocal and general duty to each
other in posted open range zones.

2.

Filburn v. Peoples Palace and Acquarium: Elephant went crazy and ran over P.
The jury held that the D did know beforehand that the elephant might go crazy, b ut
the trial court entered judgment in favor for P: It cannot possibly be said that an
elephant comes within the class of animals known to be harmless by nature.

3.

Zinter v. Oswskey: appellate reversed trial, courts grant of SJ holding that a jury
could find Ds rabbit that injured Ps finger to either be a wild species of rabbit, and
thus a wild animal, or domesticated species.

4.

Gallick v. Barto: the court held that a pet ferret that unexpectedly bit a child was a
wild animal with domestic propensities.

a.
5.

Even if a P can prove that the animal that injured him was a wild animal, he
still has to est that the D in fact owned and controlled the pet.

Leber v. Hyatt Hotels: Lady was attacked by a mongoose that came from a swamp
not owned by D. The court held that since the hotel did not own the swamp area
behind the hotel in which the mongoose lived, it did not control the animal, and thus
could not be held strictly liable for damages that the animal caused.

6.
-

BARD:
P asked to fix cattle mattresses
Ds unaware P was going to be in the barn fixing the mattresses
Bull attacks P
ISSUE: Whether P could recover under the COLLIER rule or under the
RESTATEMENT rule for negligence of potentially dangerous animals where the bull
used for breeding attacked P.
RULE:
1. COLLIER est. that the owner of a domestic animal that
either knows or should have known of that animals vicious
propensities will be held liable for the harm the animal
causes as a result of those propensities. Vicious
Propensities include anything that that might endanger the
safety of persons and property of others in a given situation
2. RESTATEMENT (action for negligence): Owner is
nonetheless liable if the owner intentionally causes the
animal to do harm or is negligent in failing to prevent the
harm
HOLDING: NO,
When harm is caused by a domestic animal, its owners liability is determined solely
by application of the rule articulated in Collier

QUESTION 1: What are the preconditions for strict liability?

The precondition for strict liability is ABNORMALLY DANGEROUS ACTIVITY (ADA)

iv.

HYPO: A toxic landfill in Van Buren, NY. (storage and disposal facility)
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1.

Homeowners group comes to you with leukemia and with fear of leukemia because
it turns out that toxic substances have leaked from the landfill into the wells that
comprise of the drinking water. It turns out that the landfill operator followed all the
state and fed regulations.

2.

Strictly liable?

a.
3.

No.

How do you determine if an activity is abnormally dangerous so as to be liable for

strictly liable?

a.

NON-NATURAL USE is the STANDARD

i.

RYLANDS v. FLETCHER: If something brought onto the land

which causes mischief then you are strictly liable (appellate
court reaffirmed by saying liable if the thing was something
non-natural/extraordinary)

1.

Facts:

a.
b.
2.
3.

ii.

D hired contractor to build them a reservoir.

Subsequently it broke, flooded, & ran onto &
damaged property.

Test: D is liable for non-natural use of the land

Held:

a.

Ds are liable because they put land to a nonnatural use.

b.
c.

The use was non-natural in England.

d.

If you bring something onto the land that may

cause mischief if it escapes, you are answerable
for the damage that is caused. Bring on at own
peril p. 489

e.

Was the use of land ordinary or general in light of

the attendant of circumstances and conditions.

f.

Courts have problems determining what is the

normal or abnormal use of the land. RS 520
gives some guidance in determining whether an
activity is abnormally dangerous...

Storing water was found to be an unusual use

because water was plentiful in England. This may
not be true everywhere (see TURNER v. BIG
LAKE)

TURNER v. BIG LAKE: Influenced by environment in which

activity takes place (expected)

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1.

Ordinary or general use of the land depending on the

conditions existing in that area at that time

2.

Is it general or ordinary use such that it was within the

general contemplation of the usage of the land?

3.

Issue: If Ds use of the land is natural-usage and within the

contemplation of the grant, whereby it causes damage to
Ps property, is D liable for those damages, where D owned
oil business, where it made salt deposits, where the salt
deposits spilled over to Ps property and damaged the turf?

4.
5.

Holding: No.

6.

Reasoning: RYLANDS is distinguishable from the instant

case. Artificial storage of water was not natural, and the
landowner was bound at his peril to keep the waters on his
own land.

a.

Here, the impounding of water in stream-ways,

being an obvious and natural use, was necessarily
within the contemplation of the parties to the
original and adjacent grants, and damages must
be predicated upon negligent use of a granted right
or power; while things not within contemplation of
the parties to the original grants, such as unnatural
uses of the land, the landowner may do only at his
peril.

b.

As to what use of land is or may be a natural use,

one within the contemplation of the parties to the
original grant of land depends on the
circumstances.

c.

In TX, there is no rainfall. Without water storage,

livestock in TX will die. Unlike in England, where
there is no need to store water, one of the byproducts of oil production is salt water.

Rule: Where Ds property causes damage where its

intended use is contemplated within the grant, D is not
liable for damages caused.

b. Indiana Harbor Belt R.R. v. American Cyanamid

Co. (Another way to analyze)
-

Acrylonitrile leaked from container on a train

6-Factor Test Provided by RS 520 DOMINATE TEST

i.
ii.
iii.

The risk of harm

The harm that would ensue if the risk materialized
Could the accident be prevented by the exercise of due care?
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iv.
Was the activity a matter of common usage?

v.
vi.

vi.

Reinforcing the values to the community of the activity

Then, how do we consider what is a common usage?

Need to consider (1) the seriousness of the harm (can be as careful as can be and
accidents will still occur) and (2) The unusual circumstance(s)
The idea of common usage is an activity normally engaged in the community
People expect the common risks, we hold strictly liable for the risks are not
a matter of common usage because risks imposed on others are different
than the kind in nature being posed upon them (need a way to create nonreciprocal risks)

v.

Was the activity inappropriate to the place in which it took place?

20 abnormally dangerous activities

1.

an actor who carries on an abnormally dangerous activity is subject to strict liability

for a physical harm resulting from that activity

2.

an activity is abnormally dangerous if

a.

the activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors and

b.

the activity if not one of common usage

Foster v. Preston Mill Co.: Not liable for all that happens for something ultrahazardous

1.

Issue:

a.
2.

Facts:

a.

3.

The vibrations on the land excited the mother mink who proceeded to kill
her young. The D continued blasting but at a lesser amount throughout the
remainder of the whelping season. If they had stopped, the logging
operation would have been delayed and the companys log production
disrupted.

Rule:

a.
4.

Is the risk that any unusual vibration or noise may cause wild animals,
which are being raised for commercial purposes, to kill their young, one of
the things which make the activity of blasting ultrahazardous?

The doctrine has quite uniformly been held to establish liability, irrespective
of negligence, for property damaged sustained as a result of casting rocks
or other debris on adjoining or neighboring premises.

Holding:No

a.

It is the disposition of the minks rather than the normal risks inherent in
blasting operations, which therefore must, as a matter of policy bear the
responsibility for the loss sustained. Also, the policy of the law does not
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impose the rule of strict liability to protect against harms incident to Ps

extraordinary and unusual use of land
QUESTION 2: IS THIS DIFFERENT THAN NEGLIGENCE?
QUESTION 3: WHY HAVE STRICT LIABLITY?
- Posner suggests not trying to increase duty of care but trying to force into taking
other courses of action
VIII.

PRODUCTS LIABILITY:

ii.

1.

A. PRIVITY: Contract Agreement b.ween parties

a) No longer bars a plaintiffs personal injury claim for negligence

2.

B. STRICT LIABILITY:
(1) 402A: This applies even though the seller may have acted reasonably or
if there is NO privity
- One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or consumer, or to his
property, if
a. The seller is engaged in the business of selling such a product, and
b. It is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold
Comment 1: Unreasonably Dangerous is defined as the extent beyond that
which would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its
characteristics
- A product is considered defective if the product departed from the standard
as required by the manufacturer and the manufacturer would therefore be
subject to liability even if reasonable care was exercised (easiest for courts
to agree with)

WELGE v. PLANTERS LIFESAVERS CO.

1.

Issue:

a.
2.

Facts:

a.
3.

When was the defect introduced?

P liked his peanuts. His roommate bought peanuts for P. She used Knife to
cut out a proof of purchase but no evidence that it harmed the glass
containter. One day as P was putting the peanut lid back on the jar it
exploded in his hand causing cuts and severe injuries to his hand.

Rule:

a.

An accident can itself be evidence of liability if it is the kind of accident that

would not have occurred but for a defect in the product and if it is
reasonably plain that the defect was not introduced after the product was
sold.
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b.

PRODUCTS LIABILITY RESTATEMENT 3:

a) It may be inferred that the harm sustained by the P was caused by a product
defect existing at the time of sale or distribution, without proof of a specific
defect, when the incident that harmed the P:
b) (a) Was of a kind that ordinarily occurs as a result of product defect; and
c) (b) Was not, in the particular case, solely the result of causes other than
product defect existing at the time of sale or distribution

4.

Holding:

a.

The court held that to a virtual certainty the accident was not due to
mishandling after purchase but to a defect that had been introduced earlier.

EXPRESS WARRANTY AND MISREPRESENTATION:

a) P may bring a products liability action even when the product was not
defective but the D represented characteristics of the product or its ability to
perform in a certain manner
b) Malevolence that often attends misrepresentation may serve as a predicate
for punitive damages
c) Courts do not recognize sales-talk puffery as express warranties even if the
P argues that she was influenced by the ads to buy the product
d) Express warranty is a form of strict-liability, the P needs not prove any fault
on Makers part

iii.

BAXTER v. FORD MOTOR CO.

1.

Issue:

a.
2.

Facts:

a.
3.

Whether the trial court erred in refusing to admit in evidence, as against

respondent Ford, the catalogues and printed matter furnished by Ford to the
other respondent, St. John Motors to be distributed for sales assistance.
P purchased vehicle from St. John Motors (Ford Dealer). A pebble from a
passing car struck the windshield of the car causing small pieces of glass to
fly into Ps eye.

Rule:

a.

TORTS, RESTATEMENT 310:

a) An actor who makes a misrepresentation is subject to liability to another for
physical harm which results from an act done by the other or a third person
in reliance upon the truth of the representation if the actor
b) (a) Intends his statement to induce or should realize that it is likely to induce
action by the other, or a third person, which involves an unreasonable risk of
physical harm to the other, and
c) (b) knows the statement is false or that he has not the knowledge which he
professes

4.

Holding:
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a.

The catelogues and printed matter furnished by respondent Ford were

improperly excluded from evidence because they set forth representations
by the manufacturer that the windshield of the car which appellant bought
contained specified, shatterproof, glass

3 TWERSKI/HENDERSON ARTICLE:
(1) Defect Free Liability:
- SOCIAL UTLITY ARGUMENTS:
A. Might reduce the consumption of relatively risky products by increasing their monetary costs to users and
consumers, thereby placing such products at a competitive disadvantage in the market
The current products liability system, which requires that a defect be established as a predicate for
liability, allows many products that create substantial but unavoidable hazards to escape liability
B. A system for all product-related injuries would promote more appropriate levels of investment in product
safety because manufacturers would be more likely to be held liable thus forced to ensure the public is
protected (deterrence)
C. Might help to reduce certain dislocation costs that occur when individual victims are required to bear the
full brunt of their accident costs (loss-spreading)
- FAIRNESS ARGUMENTS:
A. Victims of injuries caused by hidden production defects legitimately argue that their reasonable
expectations for product performance have been disappointed

iv.

SANDY v. BUSHEY

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