Torts Outline - Fall 08, Spring 09

TORTS OUTLINE Fennell/Miles Fall 08/Spring 09
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Introduction a. Tort definition i. Civil wrong. Violation of some obligation proposed by law, but doesnt arises out of a contract b. Frameworks of Tort Law i. Corrective justice setting right wrongs, wronged and law trying to set this right ii. Compensation people suffer losses in society, how should we deal with it iii. Incentives creating the right incentives to engage in certain actions, deter would be from committing an action, takes two to tort, maybe things can be done on both sides c. Intentional Torts i. Assault creating a reasonable fear of imminent contact, doesnt require contact ii. Battery Requires harmful or offensive contact 1. Usually hear assault & battery because when you suffer from a battery, usually there is some apprehension that occurs beforehand iii. False imprisonment iv. Intentional Infliction of Emotional Distress v. Trespass to Land vi. Trespass to Chattels (moveable/personal property) vii. Conversion Intentionally Inflicted Harm: The Prima Facie Case and Defenses a. Physical Harms : Trespass to Person, Land and Chattels i. Battery: 1. RST 13. Battery: Harmful Contact a. acts intending to cause a harmful or offensive contact with the person of the other or a third person, OR an imminent apprehension of such a contact AND b. Harmful contact with the person of the other directly or indirectly results. 2. Intent Requirement a. has burden of proof b. RTT 1. Intent: A person acts with the intent to produce a consequence if: i. The person acts with the purpose of producing that consequence; OR ii. The person acts knowing that the consequence is substantially certain to result c. Intent is also created when the causes an imminent apprehension of a harmful contact d. Not necessary to intend harm e. Once intentional tort is established, is responsible for all ensuing harms, foreseeable and unforeseeable 3. Intent to cause contact in a setting where contact was unlawful non-consensual touching a. CASE: Vosburg v. Putney (1891) i. FACTS: Boy kicks other kid in the shin while sitting in the classroom; causes extensive damage ii. ISSUE: If no intent to do harm, does have a cause of action for assault and battery proceeding? iii. HOLDING:
1 (* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
iv. OTHER ISSUES: 1. Deciding Damages he could recover damages for the time of healthiness of limb lost 2. Poor v Wealthy depending on jury, argument could go either way. Poor taking advantage of s wealth, or Wealthy spoiled brat used to getting his way 3. Egg Shell Skull Rule - holds an individual liable for all consequences resulting from his or her activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a pre-existing vulnerability or medical condition). must "take their victims as they find them" 4. Pls Negligence: Should he have been wearing a shin guard? Not in classroom a. Implied License in classroom is different than on playground. Had the boys been on the playground and the was free of malice, wantonness or negligence and intending no harm, outcome would have been different b. CASE: White v. University of Idaho* i. FACTS: Piano teacher touches student on her back 1. Intending contact or intending a strange or inappropriate act can be treated as wrongful. 4. Intent Requirement satisfied if is substantially certain that contact will follow from his act a. CASE: Garratt v. Dailey* (1955) i. FACTS: Boy pulls chair out from under old woman who is in the act of sitting 5. Battery Hypotheticals a. A struck in eye by a stick that B threw at C & D, who were trespassing. (Talmage v. Smith) i. Battery. B liable because he intended to hit someone and it caused an unwarranted injury, for which B is still responsible. Transfer of Intent (intent can be transferred amont people and sometimes among torts) b. A intends to shoot just over Bs head, wants to shoot behind him. Misses target and hits B. i. Battery. Act created imminent apprehension (intent) and causes injury c. A smoking in apartment, tosses lit cigarette out of window. B is walking on street and get hit with the cigarette. i. Battery. If crowded street, substantial certainty that you could cause harm ii. No Battery. If empty street, no substantial certainty that act would cause harm. ii. Trespass to Land 1. CASE: Dougherty v. Stepp (1835)
a. FACTS: enter on, surveyed and claimed s land as his own. No physical damage to property. b. ISSUE: i) What actions constitute trespass to land? ii) If trespass to land has occurred, under what circumstances can damages be recovered? i. Unauthorized (unlawful) entry (or use that interferes with possession) onto another persons property (NOTE: No trespass in instances where theres a necessity (i.e. taking someone to the hospital) ii. For every unlawful entry, landowner is entitled to damages of varying degree depending on the level of harm done. Some value in being able to keep people off. Even if no damage caused, people can receive nominal damages (courts recognize rights to exclude) 2. Coase Theorem - when trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. In practice, obstacles to bargaining or poorly defined property rights can prevent Coasian bargaining a. Trespass individuals crossing boundary lines; low bargaining price b. Nuisance harder to make deals to make efficient things happen, high bargaining price 3. Ad coelum if you own the soil, you own the area above and beneath it a. Smith v. Smith* - was found to be trespasser when the eaves of his barn overhung the plaintiffs land (trespass of real property can occur on, above or below the surface of the land. b. Neiswonger v. Goodyear Tire and Rubber Co.* found guilty of trespass because airplane overflights within 500 feet of the ground violate air traffic rules i. Government set regulations for airlines to allow them to fly at a particular level in the sky to prevent lawsuits and because transaction costs would be too high to get everyones permission for a service that benefits the public on the whole 4. Intangible Trespass (pollution, radiation, etc.) a. Case: Public Sevice Co. v Van Wyk* i. Intangible trespass. must prove physical damage to the property caused by such intangible intrusion. Intangible trespass must be intentional. ii. can pollute but will have to pay damages. iii. Example of nuisance b. Property rules v. Liability rules i. Property rules protects our property from people going on it. 1. can take preventive measures or 2. Take action once trespass has occurred ii. Liability rules Violate right 1. cant prevent it, but can get damages after act has been committed iii. Trespass to Chattels (personal property, not real estate) 1. If no damage to chattel then claim not actionable
a. RST 218 Illustration: If A climbs on Bs dog and pulls its ears, no harm has occurred to the dog or any legally protected interest of B. A is not liable to B. b. B can take dog to property and prevent A from pulling dogs ears 2. CASE: Intel Corp. v. Hamidi (2003) a. FACTS: Former Intel employee sent distracting emails to Intel employees, no harm or disruption to Intels computers b. ISSUE: What constitutes trespass to chattel? c. HOLDING: Trespass to chattels occurs only when action causes damage to, impairs functioning of or interferes with the possessors use or possession of object i. Epstein disagrees: says server isnt like dogs ears. You cant take it home. Its accessible to anyone, shouldnt be treated like a chattel ii. Brown dissent Intel deserve injunction (make stop) because this is Intels private property and they should be able to exclude unwanted mail for any reason, including content (see Rowan v. U.S. Post Office Dept.) 3. Case: CompuServe, Inc. v. Cyber Promotions, Inc.* Trespass to chattels in case where spam caused damage to the ISP and ISP customers computer systems (leaving a tangible presence) 4. Trespass to Chattels Hypotheticals a. Gas company retains title to meter on hous, you change readout on meter i. Trespass to Chattel? No. No harm to property ii. Trespass to Land? Meter is a fixture, not a chattel. Gas company cant move it. (Blondell v. Consolidated Gas Co.) b. A using companys PA system to make offensive jokes. Not authorized to use system i. Trespass to chattel? No. No damage to PA ii. No tort remedy, but may be other forms of remedy (fire A. If they fire A and he sneaks on property and use it, trespass to land) c. A put a contraption on Bs seat to prevent him from reclining. Is this actionable? i. Contraption interferes with functionality of the chair. (Intel v. Hamidi) ii. Who could bring action? Airline iii. Recovering Damages? Interim loss of use? No lasting damage on the chair. iv. Defense? Self defense to protect knees or laptop? d. A hacked onto companys computers and turn machine into zombies (spam producing machines). Doesnt impair computers during office hours, but does during off hours i. Trespass to chattels? How can this case be distinguished? ii. Coase Theorem. Engage person in contract? 5. Damages a. Limited to reduction in the value of the chattel. Def. could force pl. to take chattel back, so that only in case of complete destruction could the full price be awarded. b. Physical Harms: Conversion
i. RST 223(b) Conversion is always an intentional exercise of dominion over chattel. Mere non-feasance or negligence, without such an intent, is not sufficient for conversion. ii. CASE: Poggi v. Scott (1914) 1. FACTS: Poggi stored wine in basement under lock & key. Scott allowed two men to take the wine. 2. ISSUE: What constitutes a claim of conversion? 3. RULE: Conversion is the unwarranted interference by with the dominion over the property of the from which injury to the latter results. (Ex. of breach of absolute duty. Act itself is unlawful and redressible as a tort) iii. Conversion Hypotheticals 1. A rents house from landlord B. B says theres junk in basement I need cleaned out. Do with it what you want. A goes in basement finds camping equipment uses it for rugged camping trips(does a lot of damage) and tries to see lit on eBay. Equipment belongs to C, who got permission to put this equipment in basement. C wants to bring action against A. Conversion? a. Yes. A intentionally exercised control over chattel that belongs to another person. b. When did conversion occur? Point when A acted as true owner. Selling property? Maybe.Using it might not mean conversion because people use things without thinking its their property. c. Gift from B to A? Confusion about word junk d. Conversion v. Trespass to Chattel i. Trespass to chattel interference of possession; if out of owners possession no trespass 1. In hypothetical did trespass of chattel occur from A to C? No. Chattel in Bs possession (C could possibly claim trespass to chattel against B) 2. If Cs equipment in locked room? Trespass; A would be interfering with Cs possession 3. Trespass, not conversion. If A removes Bs horses off the ferry without intention of making further use of it, this can be considered trespass de bonis asporati (asportation of chattels). Fouldes v. Willoughby* ii. Conversion acting as the owner or in a manner consistent with the title of owner 1. Is B liable for conversion of Cs property? Yes, when he offered junk in the basement to A. 2. Dry cleaner B wears As jacket, but then cleans and gives it back to A. a. Conversion? No. b. While wearing jacket, B runs into A. Says jacket is his, when A asks about it. i. Conversion? Maybe. Could be acting as true owner, but no interference with possession because damage is minimal. 3. A get spleen removed by Doctor B. B uses it to find cure. A consented to surgery and assumed spleen would be thrown out.
a. No conversion claim against doctor for failing to disclose plans for spleen. If conversion stood, would be able to bring claim against anyone who used his spleen cells. Too many transaction costs. iv. Case: Maye v. Tappan* - mistakenly told he owned land. dug up land and found gold 1. converted s land. Used s property as his own. Its not necessary that one intends to deprive another of ownership. v. Damages 1. may return the property, if it hasnt suffered substantial damage, conditional upon payment for the loss of interim use or for repairs. vi. c. Defenses to Intentional Torts i. Consensual Defenses 1. Consent is limited and cant exceed the consent given. 2. CASE: Mohr v. Williams (1905) a. FACTS: defendant diagnosed plaintiff with obstruction in right ear, during operation discover that left ear was worse, operated on left ear b. ISSUE: Does acting without authorization constitute as battery? c. HOLDING: A has committed battery when he performs an action s consent, unless the circumstances are such to justify action without consent d. Medical procedures Action without consent can be battery even if doctor meant no harm. Unauthorized intentional contact = battery i. Cant assume that would have consented, b/c after operation hearing was bad. e. This has been solved by release forms, but it wont necessarily negate possible torts 3. Consent can be expressed or implied by conduct a. Explicit - Written release or verbal interchange b. Implicit i. Implied consent in emergency settings where patient is unconscious and surgery is needed to preserve life. There is reasonable belief that consent would be given (Allore v. Flower Hospital*) ii. Inferred from nonverbal communication ( OBrien v. Kennard *) consent implied for the vaccination case. Woman held up her arm to get the vaccination. Action was deemed sufficient to be a manifestation of consent. c. Substituted Consent Someone consents on another persons behalf (ex. minors and people with limited mental capacity) 4. Hypotheticals a. thinks wants to have sex when she pushes away and says no i. No consent. Not enough that thinks has consent b. If someone is inwardly consenting, but giving no outward indication of consent, then must reasonably rely on manifestations of consent. Court will decide what sort of manifestations are enough c. Fraud in the factum v. fraud in the inducement i. Fraud in the factum - fraud is really contemplated, doctor that sexually assaults a patient when hes supposed to check a pelvic bone.
1. Vitiate (make ineffective) consent. d. Fraud in the inducement. A convinces B to have sex by saying hell love her forever. A left B next day. i. not enough to vitiate a consent 5. Limits on Consent Defense (Consent can be ineffective protected by statute, child, drunk, lack of capacity, fraud, duress, nondisclosure of a material fact) a. CASE: Hudson v. Craft (1949) i. FACTS: illegal boxing match with minor ii. ISSUE: Can be held liable for assault and battery injuries inflicted to minor by 3rd party (W) in an illegal prize fight between adult (W) and minor (L) when both parties consented? iii. HOLDING: W Liabile. Consent no good because violation of statute designed to protect the class, a member of protected class was injured, was enough to constitute aiding and abetting. Court says promoter liable regardless for promoting contact that was harmful or offensive. There is substantial certainty that something bad will occur (similar to Garratt v. Daly* (Majority Position Rule favors L) 1. Minority and Restatement Position: No liability. Nothing W did was tortuous. Consent is good. (Rule favors W) a. Volunteers suffer no wrong - volenti non fit injuria iv. PUBLIC POLICY: Most fighters believe they will win. High chance of hurting someone else, low chance of getting hurt. Liability is a good public policy tactic to decrease incentive for promoters to hold illegal prizefights b. Athletic Injuries formal and informal settings i. Before a party may proceed with a cause of action involving injury resulting from a recreational or sports activity, reckless or intentional conduct must exist. 1. RTT 2. RECKLESSNESS. A person acts recklessly in engaging in conduct if: a. The person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the persons situation, and b. the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the persons failure to adopt the precaution a demonstration of the persons indifference to the risk. ii. Insanity 1. CASE: McGuire v. Almy (1937) a. FACTS: Insane patient struck nurse with a lowboy b. ISSUE: Can an insane person be held liable for assault and battery? c. HOLDING: Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable. Insanity not a defense in intentional torts.
2. People with certain incapacities may be able to use consent as a defense. Due to mental incapacities couldnt give consent 3. PUBLIC POLICY: Not allowing insanity as a defense for intentional tort may encourage those who watch over them to be more care. a. Good autonomy enhancing for people with mental illnesses. Encourages caretakers willingness to do job (if no ability to recover, would have to increase their pay) 4. Not allowed: want people with resources to have to pay for their harms; litigation argument too difficult to determine whats going on in peoples minds. 5. Insanity Defense Hypotheticals a. Hitting someone while have a seizure i. No battery. Involuntary act no intent. b. Hitting someone while sleepwalking and dreaming about baseball i. No battery. Sleepwalking treated as involuntary act. c. Hitting A while under delusion that A is a bad nurse and perceived need to defend self i. Battery. Intent even though person is irrational d. Delusion, lowboy is a laser beam that cant touch anyone. i. Liable or not liable? Arguments for both sides. e. Thinks is a piata? Liable i. Difficult, How do you prove intent in this case? Does intent require knowing youre going to hit a human or knowing youre going to make an action? ii. Similar to situation where A moves into apartment finds out his boxes will be delayed, kicks a box that B is in. Harms B. (Similar to throwing a cigarette out the window) 1. No liability. Unreasonable to think someone is in the box. iii. Self-defense - c 1. Case: Courvoisier v. Raymond a. FACTS: jewelry store owner shot police officer, thinking he was a threatening robber b. ISSUE: c. HOLDING: No liability for defending yourself if the situation is such that would lead a reasonable man to believe that his life was in danger or that action is necessary for protection 2. Self- Defense Hypotheticals: a. Child advancing toward large adult saying Im going to kill you. If adult shoots child, can he claim self-defense? i. No need for force. A reasonable man wouldnt feel life is in danger b. Same situation except older child with baseball bat? i. Can go either way depending on the level of threat c. A home asleep and hears someone breaking into house. A sees B intruder. B is armed. A is by door and hasnt been seen by B. He could leave but shoots instead. Self-defense?
i. Yes. If youre outside you would have a duty to retreat if possible. Home is a protected space, courts apply different standard of duty. Not as much of a duty to retreat. ii. If no one else is in home, harder case for self defense. d. A opens fire at B for no reason. B returns fire and hits a bystander i. Negligence standard of whether you knew you were creating an unreasonable risk of causing harm. (Morris v. Platt* - court said not actionable because force reasonably intended to repel attack by 3rd party.) 1. RST 75 the is only liable to the innocent 3rd party only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm. e. A sees B about to hit C with a torts, can A shoot B? i. Depends. Only if situation warrants risking death or bodily harm. B and C could be playing. ii. RST 76 a person is entitled to defend a 3rd party if he correctly and reasonably believes that his intervention will protect the 3rd party. f. A is insane has delusional belief that all people with red hair are trying to kill her. B has red hair and is trying to kill her. A shoots be because of the red hair but b presenting the threat i. When someone actually presenting threat, then you should always be able to use this defense. It was reasonable to shoot in this instance. iv. Defense of Property No right to use deadly force in defense of property 1. Case: Bird v. Holbrook a. FACTS: spring gun set to shoot those who entered walled garden; hits minor recovering loose chicken b. ISSUE: Under what circumstances can defense of property be used as a defense to intentional tort? c. HOLDING: A man who uses means of protection to protect his property without giving notice of the use of those means can be found liable for any injury that occurs to someone as a result of those means d. If you had used a sign, that would be like molitera valid warning. In that case, even if the force is unreasonable, its no longer an intentional tort. e. What tort did Bird commit? i. Battery: Intent to commit action? Yes. Substantial certainty? Yes. If someone enters the device will activate. 2. Attack dog would be better mechanism to protect party. Gives intruder opportunity to run away. Built in proportionality. 3. The court in Katko v Briney*(shotgun bedroom trap wounded intruder) affirmed jury instructions that the lawful protection of property could not include means of force that would take human life or inflict great bodily harm. 4. RST 85. Use of Mechanical Device Threatening Death or Serious Bodily Injury a. The actor is so far privileged to use a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm that the actor,
were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm. 5. MIlovy v. Cockran* the def. (MIlovy) shot and severly wounded pl while he was tearing down a fence on pls land. Court held that it is lawful to handle force with force, where force is not being used in a trespass, the persons who owns the property may not use force but must request the trespasser to leave and then he can lay hands on him. v. Recapture of Chattels - Can use force if taken by force, fraud or without claim of title. If claims title, must seek legal redress 1. CASE: Kirby v. Foster (1891) 2. FACTS: Bookkeeper given money by manager from which he took what he thought was owed him. Manager and son tried to take money back 3. ISSUE: Were the s justified in using force to retake the companys money? 4. HOLDING: Right of recapture requires 1) possession by the owner AND 2) purely wrongful taking (No possession of owner because gave money to . Not a purely wrongful act because had claim of right consulted his counsel) 5. Any privilege of reacapture must be exercised promptly 6. Recapture of Chattels Hypothetical a. Same facts as Kirby except took money from s wallet i. Right of recaptured allowed because act interferes with possession of owner and this is a purely wrongful taking without claim of right 7. Policy Concerns (if worried about breaches of peace) a. Cant use right of racapture i. Positive because party out of possession wont resort to force ii. Negative - Knowing that people cant use force gives other incentives to take things that dont belong to, causing people to have to resort to legal process which is costly, delays return, and has uncertain result b. Can use right of recapture i. Positive deters people from taking things that dont belong to them; Avoid legal process ii. Negative Party out of possession might breach peace 8. Right of Recapture Hypotheticals a. A asks B to take picture of her family. B takes the camera and runs away? i. Right of recapture. B has no claim of right even though peaceful transfer Hot pursuit. b. A sees shell game on the street and decides to play. Ends up losing money. Can he reclaim it when he finds out the scam? i. No claim of right if activity is legal. Game is fraud, but ii. Assumption of risk. A just as culpable for participating vi. Necessity - valid defense if done to preserve property or life must pay compensation for damaged property in private necessity a. Ploof v. Putnam (1908) i. FACTS: Sloop moored to s dock seeking shelter from storm and s servant unties it. ii. ISSUE: Should the be held liable for not allowing to moor his ship? Was this act wrongful, negligent, or careless?
iii. RULE: vicarious liability- actions of the servant are the actions of the master; necessity will permit trespass and servant may not resist entry iv. Servants cant resist but arent required to help b. Vincent v. Lake Erie Transportation Co. (1910) i. FACTS: ship tied up at dock caused damage to the dock during the storm ii. ISSUE: Is liable for injury to property that results from an act of necessity, over which he had no control. iii. RULE: A person will be held liable for damages that result from an act of direct intervention in a situation where property rules are suspended by forces beyond human control; only when injury is attributed to an act of God will that person be not held liable for damages. c. Public v. Private Necessity i. Public complete privilege, dont have to pay damages 1. PUBLIC POLICY REASONS: Theres no upside for official and dont want to create a downside; Gives an incentive to act in time of danger; prevents inaction ii. Private incomplete/conditional privilege (generally); required to pay damages d. Reasons for necessity allows people to do what they need to do without feeling like a law breaker; prevents responsibility for punitive damages; Creates incentives to save the most valuable property e. Given Coase, Theorem, why need for necessity defense? i. There may not be anyone present to bargain with ii. Some may not want to bargain or will try to take advantage of situation by charging exorbitant fees. Prevent bilateral monopoly iii. You can override objections f. Rubric of general average contribution (Mouses Case* - throwing casket off ship to save lives is a necessity) i. In emergency, all are treated as joint owners of property in question. People who lose property are given pro rata compensation from the other parties. g. Necessity Hypothetical: A is driving and swerves to avoid a child, hitting B. i. A committed battery, but could claim necessity. He would have to pay B (under Vincent) ii. Trolley Problem draw a line between property and life. Necessity to kill one person instead of four, but necessity to have organs trumps saving four lives. d. Emotional and Dignitary Harms: Assault i. I. de S. and Wife v. W de S. (1348) 1. FACTS: W. pounded on door with hatchet and swung at her when she stuck her head out of the window, tavern keepers wife sued for assault a. Swinging at her head is assault. Tapping on the door isnt 2. ISSUE: Can a person be liable for an act when no harm has been done?
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3. HOLDING: Assault does not require a touching; There is harm for an assault, and damages are recoverable, even though there is no touching. fear of an unconsented to touching is all that is required for assault. ii. Tuberville v. Savage(1669) 1. FACTS: Man places hand on sword and says if not for assize-time, he would not take certain language from him 2. ISSUE: Can a declaration be considered assault? 3. HOLDING: Assault requires the intention to assault and an act that fails to touch the other party. iii. RST 21 Assault 1. An actor is subject to liability to another for assault if a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. The other is thereby put in such imminent apprehension iv. Assault Hypothetical 1. A points a gun at B thinking its loaded; B knows its not. a. No assault, b/c no apprehension created. Strict Liability and Negligence: Historic and Analytic Foundations a. Debate: which is best to apply? i. SL places losses that cannot be avoided cost-effectively on the tortfeasor, whereas neg. places them on the victim. ii. Strict Liability: subject to liability for all harms caused by your act no matter how careful you were. If contributed to harm then may not be held liable iii. Negligence (usual approach taken): liability on if you fail to exercise reasonable care to avoid injury or damage. b. Formative Cases i. CASE: The Thorns Case (1466) - lays out the SL v. Neg debate. 1. FACTS: cut thorns, some fell on property of , came and took them, trampling s crops 2. ISSUE: Can a person be held liable for damages for committing a lawful act that requires him to enter onto anothers property to retrieve his property? 3. HOLDING: Littleton: must compensate those you injure(STRICT LIABILITY); Choke: falling (principle act) was not lawful, therefore taking away(thing which depends upon it) was not lawful (STRICT LIABILITY with escape in instances where you can prove act happened against your will) 4. Action of recapture? a. No. Only applies when A takes from B. Then B has right to recapture. Here, didnt have anything to do with thorns. 5. Necessity? a. Maybe. Even so, he would still be liable for damage. Must take into consideration how careful he was in cutting. Did the thorns have to fall on the s property? (Vincent) ii. CASE: Weaver v. Ward (1616) 1. FACTS: and were soldiers, accidentally shot during exercises 2. ISSUE: Is liable for accidental action when it causes another harm?
3. HOLDING: committed no negligence, as ran across his piece while it was discharging; not intentional, so no battery iii. Historians debate about whether this is strict liability or negligence standard 1. Inevitable accidents no liability, negligence narrowly defined. iv. Difficulty fitting Accidental Injury into matrix 1. Problems for a. Strict liability rules involved. Very difficult to win b. Issue with language: utterly without fault & inevitable accident how inevitable does it have to be 2. Problems for a. Had to choose between 2 writs: trespass vi et armis(direct and forceful) or trespass in case (indirect) i. Trespass throw a log and hit someone ii. Case throw a log on ground and someone falls on it. 3. Problems with vicarious liability v. RELEVANCY: direct and indirect distinction no longer governs pleading, but comes into play in deciding causes. c. Forms of Action i. CASE: Scott v. Shepherd (1773) 1. FACTS: threw a lighted squib into crowded marketplace, thrown multiple times, and ultimately landed with , in whose face it exploded 2. ISSUE: Is the action of trespass maintainable for throwing dangerous object that causes injury to when there are intermediate intervening actors? 3. HOLDING: Nares liable for trespass for committing unlawful acts that cause mediate or immediate harm. Focuses on unlawful nature of act. If its unlawful then must fit within trespass. Blackstone not liable. A trespass will lie only if the action causes immediate rather than consequential harm? (distinguishes this case from raised ox that gets loose, similar to a rock. Intervening actor changed movement of something that stopped) De Grey action maintainable when intends mischief and commits a wrongful act, responsible for all that follows. Any innocent person remving danger from himself is not liable. 4. Modern Application assault and battery a. Intent Shephard meant to create an imminent apprehension of a harmful contact i. Even if no, substantial certainty that lit squib would create an apprehension or contact ii. Similar to A shoots B, B shoots back, and hits C. Negligence. b. Could Potentially have: battery action; trespass action property interests; negligence action lack of reasonable care i. Battery or Negligence actions most likely. ii. CASE & TRESPASS HYPOTHETICALS 1. Lit squib thrown by in market place; lands on floor; someone trips and falls over it. a. Indirect, example of case 2. Intervening actor throws squib out window toward countryside; causing injury to truck driving on the road
a. Like cigarette out of the window case, was it reasonable to foresee risk, liability depends on road traffic? b. Indirect, example of case??? iii. CASE: Williams v. Holland* (1833) Court of Common Pleas held: could sue in case, if harm was immediate or consequential as long as could show that harm occurred as a result of s negligence. Writ of trespass available for all immediate harm, whether willful or negligent and only trespass would lie in cases of willful and immediate harm. d. Strict Liability & Negligence in the Last Half of the Nineteenth Century i. CASE: Brown v. Kendall (1850) court sets out negligence standard. 1. FACTS: 2 dogs fighting, took stick and tried to separate them, accidentally struck in eye 2. ISSUE: Under what qualifications is liable for the damage that results from an unconscious act? 3. HOLDING: if was exercising due care (ordinary care) and unintentionally harms , no liability for the striking, has burden of proving negligence, carelessness, or want of prudence to recover. a. Not an intentional tort of battery, because he didnt intend to hit or make contact or create apprehension. Didnt have substantial certainty that he would hit him in eye. ii. Due Care: The kind and degree of care that prudent and cautious men would use, such as required by the exigency of the case. Also: whether the D took cost-effective precautions. 1. Negligence Regime P using due care P not using due care D using due Not liable Not liable care D not using liable Not liable due care (contributory negligence rule) a. must show not using due care to prevail (prima facie negligence) b. If using due care, cant make prima facie case c. doesnt need to do anything to win. Doesnt matter if using do care. (s preferred regime) 2. Strict Liability Regime P due care P not using due care D using due Liable Not liable care D not using Liable Not liable due care (comparative negligence rule) a. doesnt have to make any showing about s care b. in position to show that wasnt showing due care. has burden. c. Comparative negligence reduces amount can recover 3. Burden of Loss when both parties exercising due care. In SL and in Neg. iii. Which regime is better for big business and industry?
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1. Business would prefer a negligence standard, since no liability if due care 2. To industrialists it matters if you think youll always be a or could sometimes be a . If sometimes , want strict liability since you could win. Significance of Debate 1. Procedural Reasons choose one regime over other a. SL more possibilities that will bring a case, could impact # of lawsuits i. Eliminate due care element. Costs of litigation might decrease, still costly for s that lose. 2. Corrective justice/fairness trying to get people to act towards others how they would act in their own affairs a. SL get people to treat others stuff like its their own. Break it, you bought it idea. Puts cost on , leading that person to make the right decision b. Neg. trying to get to make same calculation. Sets a standard. If you dont meet it, youre liable. If you meet or exceed it, youre not liable. CASE: Fletcher v. Rylands (1865) leading case about what actions are subject to SL 1. FACTS: constructed reservoir which flooded s property 2. ISSUE: Is liable for damage to s property when they didnt know damage would occur? 3. HOLDING: Bramwell liable for all acts that cause damge to another, whether they have knowledge that act will lead to such damage or not (SL). Martin & Pollock not liable for damage caused as a result of an act he did without knowing the damage that would ensue, unless negligent in committing that act (Neg.) CASE: Fletcher v. Rylands (1866) famous rule; most important 1. HOLDING: The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the pls default or the consequence of vis major (act of war) or an act of God. CASE: Rylands v. Fletcher (1868) 1. HOLDING: Cairns: liable for any non-natural use of land that damages anothers property. Cranworth SL standard a. Rule in Rylands v. Fletcher is a sub-species of nuisance, which is itself a tort based on the interference by one occupier of the land with the right in or enjoyment of land by another occupier of land as such i. No claim in nuisance under the rule can arise if: 1. Events complained of take place on a single property or 2. Claim includes a claim for death or personal injury. ii. When acts of God combined with a defendants action leads to damage on the pls property, it is sometimes difficult to assess what damage arose from the acts of God and what arose from the s action 1. has burden of proof to show evidence to distinguish the too. If he cant then liable for all damage Fletcher v. Rylands compared to Brown v. Kendall. Should real property be treated differently from injury? 1. Hypothetical: same facts as Brown v. Kendall, except stick breaks a window.
a. Difference between land and people? i. Land passive element in accidents. Cant move. People take on risk of injury and are subject to risk of accident ii. Bringing or keeping something on land that could cause mischief b. Natural v. non-natural use of land Cairns i. Natural = ordinary, usual, typical; Unnatural = unusual ii. Relevance? 1. SL if act doesnt benefit community then could use SL standard 2. Neg. if everyone does particular act could just as easily be injurer or victim a. Act could be beneficial to community b. More costly to shift costs to when many s c. Binging/collecting on land capable of mischief (Blackburn/Cranworth) i. Language suggests intentionality ii. Choice to engage in an unnatural use of land ix. CASE: Brown v. Collins (1873) 1. FACTS: owned a stone post, riding along highway, lost control of horses when they became startled which smashed into stone post 2. ISSUES: Is liable for damage to post located in the public way that was struck by horse? 3. HOLDING: Principles in Rylands v. Fletcher not extended; Negligence standard given circumstance. People must assume some risk of living in an industrial society. a. Blackburn distinguishes Rylands from public way cases i. Brown: When people enter public way, they must take more care because aware of greater probability that something could happen. In civilized society, almost everything could be dangerous, so need to use negligence standard. You must assume risk or do something to reduce risk. ii. Rylands - land on land injury; people think less like something bad will happen 4. Possible Defenses owing to s default or acts of God, war (for land on land injury) a. Rylands pouring water is an active act, so not an act of God x. CASE: Powell v. Fall (1880) 1. FACTS: running steam engine on highway, gave off sparks which set fire to s hay 2. ISSUE: Should be held liable for damage done while operating machine with due care under statute rules? 3. HOLDING: using a dangerous machine will be held liable for any injury it causes to s property, even if using due care, no negligence, and following statute guidelines. a. Distinguishable from Rylands - property along public way. 4. RATIONALE: SL standard b/c if train cant pay its own way for damage it cause and still make a profit, it should be running. Loss shouldnt be borne by the community or injured party.
a. No reciprocal causation here. Train causes harm to train, but hay cant harm the train. 5. Significance: Powell didnt have enough influence to introduce strict liability back into the law of ordinary highway accidents. 6. Impact of Statute of common law liability a. CASE: Vaughn v. Taff Vale Ry. (1860) held that because the defendant operated the railroad under statutory authorization, plaintiff had to show negligence to hold it liable for damages. b. CASE: River Wear Commissioner v. Adamson (1877) when following statute owners not liable withot proof of negligence. the owner of the injured property must bear his own loss, unless he can establish that some other person is in fault and liable to make it good on property adjoining to a spot on which the public have a right to carry on traffic is liable to be injured by that traffic xi. Holmes The Common Law 1. Makes argument for negligence standard. Neg. offers a guide for action and standards of conduct because you know to act with due care. 2. Rejects SL once we accept SL, we get to point where people will always be liable for actions because people continually act. How do you act when you know that any thing you could make you liable for harm. a. Counter-argument - any party can decide what precautions to take if instructed from the outset that he or she is responsible for the harms that are caused either by the direct application of force or the creation of dangerous conditions e. Strict Liability and Negligence in Modern Times i. CASE: Stone v. Bolton (1950) 1. FACTS: s were playing cricket, ball flew a really long way and struck 2. ISSUE: Was striking someone with a fly ball the realization of a reasonably foreseeable risk? 3. HOLDING: will be liable for damage that occurs from an act where there is a reasonably foreseeable risk of harm, there is duty to prevent harm a. Calling for strict liability for things that are forseeable 4. Rylands doesnt apply to this case. Could make public way or natural use arguments a. Public way chose to live next to cricket field, chose to go out on road. Assume risk that something could happen b. Natural use might consider cricket natural use of land if field located there a while ii. CASE: Stone v. Bolton (1951) decision looks more like negligence standard 1. ISSUE: What is the nature and extent of duty a person who promotes on his land operations which may cause damage to persons on an adjoining highway. 2. HOLDING: Careful man must not create a substantial risk and must take reasonable care to avoid injuries. a. Reid considers the risk and magnitude of harm. Also consider the remedial costs cost that could be taken to prevent injury 3. Efficiency Hypotheticals
a. Farm = profits 50 (before damage); Railroad profits of 10 (before having to pay); Perfect Spark Guard (no damage if used) = 2, If no spark guard, there is a damage of 3 (annual damage) i. Negligence regime Railroad installs guard b/c 2 is less than 3, assume reasonable person will make cost-justified decision to prevent injury. ii. Strict Liability regime Yes. Still cheaper. iii. No Liability regime No. (Negotiation might occur to create incentive to do right thing Coase Theorem) iv. Farmer prefers Neg. and SL regimes b. Farm = profits 50 (before damage); Railroad profits of 1 (before having to pay); Perfect Spark Guard (no damage if used) = 2, If no spark guard, there is a damage of 3 (annual damage) i. In Negligence & Strict Liability regime, railroad will choose to stop running, only loses 1 in that case ii. No Liability Regime continues to run; no cost to railroad. Farmer might pay him to shut down c. Farm = profits 50 (before damage); Railroad profits of 10 (before having to pay); Perfect Spark Guard (no damage if used) = 2, If no spark guard, there is a damage of 3 (annual damage);Crop shield cost 1 i. Negligence & Strict Liability Regime (no contributory negligence) Railroad will bargain with farmer to use crop shield or buy a spark guard 1. If contributory negligence farmer would by spark guard; cheaper cost avoider (Calabresi when theres a transaction cost, cheapest cost avoider should pay) ii. No liability Farmer has to buy crop shield because hes the cheaper cost avoider iii. CASE: Rinaldo v. McGovern*. golf ball hits the window of a woman driving by. Golfers not held liable because there was no duty to warn people not in direct line of fire. 1. To establish liability in tort, there must be both the existence of a recognizable risk and some basis for concluding that the harm flowing from the consummation of that risk was reasonably preventable. 2. The risk of a mishit golf ball is not a fully preventable occurrence. 3. Injured person must show that golfer failed to exercise due care, for example, aimed so inaccurately as to unreasonable increase the risk of harm. iv. CASE: Hammontree v. Jenner (1971) 1. FACTS: has seizure while driving, crashes into bike shop; previous seizure occurred 15 years prior since was on medication (s base reasoning on strict liabilities for products) 2. ISSUE: Can a person be held strictly liable for injury that results after suddenly struck by illness? 3. HOLDING: doctrine of strict liability does not apply to automobile drivers; especially not absolute liability which applies to products; instruction was especially wrong because it did not except those people who had no reason to anticipate the seizure or illness.
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4. Distinguished this case from products liability a. Strict liability for products applies when a manufacturer or retailer puts an article on the market knowing it will be used without inspection for defects, proves to have a defect that causes harm to a person. Expect manufacturer to know whats going on with product b. People not always in control of bodies, sometimes no way of knowing whats going on 5. Hold Physicians liable for injury to third party? a. No because the physician will become overly restrictive and will exercise role of reporters to DOT in an inflexible manner and not in their patients best interests to prevent liability. Schmidt v. Mahoney (2003)* v. Why tension btw negligence and strict liability 1. Courts seek to identify some social gain to justify the manifest social costs of litigation 2. Case for tort liability rests on the need to fashion incentive that reduce the costs of accidents and their prevention. a. Negligence liability seems unproblematic, provides incentives to avoid costs that exceed benefits they generate. i. Imposes liability only when it spots a shortfall in the def. behavior. b. Strict liability defendant-injurer must take the optimal level of precaution by treating the pls loss as his own. i. Makes defendant bear pls loss vi. Choosing between the two 1. Reciprocity incentives effect are same when view from ex ante perspective (before the harm) 2. SL eliminates the need to make a nice determination of the standard of care and eliminates the need to ask whether the defendant complied with that standard 3. Negligence cuts out some expensive lawsuits since pl has to do more to win, although remaining ones are more complex The Negligence Issue (Negligence is approach usually taken) a. Elements of Negligence Action i. s prima facie case must show: 1. Duty owed a duty of care to such that he was obligated to take reasonable precautions to prevent an unreasonable risk of harm to . a. Duty - An objective standard of care that a reasonable person would exercise. 2. Breach: failed to meet this duty 3. Causation: s failure to take precautions was causally connected to s harm a. Often divide into two parts: i. Causation in fact ii. Proximate causation 4. Damages: suffered personal injury or property damage due to s breach. b. Definition of Negligent engaging in conduct which falls below the standard establishe by law for the protection of others against unreasonable risk of harm. RST 282. i. Necessary to balance interest to determine whether the risks taken by are justified by ends sought
1. RTT: LPH 3, comment e: [c]onduct is negligent if it disadvantages outweigh its advantages, while conduct is not negligent if its advantages outweigh its disadvantages. c. The Reasonable Man i. CASE: Vaughan v. Menlove (1837)- objective standard of reasonable behavior 1. FACTS: stacked hay such that there was a good chance that it would spontaneously combust. Ignored warnings 2. ISSUE: subjective vs. objective standard for reasonable man? 3. HOLDING: Objective standard. When a man uses his own property in a way that injures s property, he will be held liable for negligence if he did not use caution which would have been observed by a man of ordinary prudence ii. Special Considerations for Reasonable Standard 1. Mental Acuity (Menlove) no break 2. Consensual agreements a. Bailments (arrangement where goods delievered to another with the intention that they be redelivered at some future time) require a greater degree of care. In bailment, bailee is subject to a standard of care varying in proportion to the benefit that he derives from the bailment. Liable for slightest negligence when the loan is for his benefit or use, but liable for gross negligence when he undertakes saftekeeping for bailor. If both parties benefit, ordinary care required. 3. Holmes, The Common Law 107-109 (1881) jury considers what would be blameworthy in the avg. man of ordinary intelligence and prudence to determine prudence. a. Exceptions i. When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them, i.e. blind man or an infant have different standard of care. Insanity is more complex. An insane person can be held liable unless he has insanity of a pronounce type that manifestly incapacitates the sufferer from complying with the rule which he has broken. He may use it as an affirmative defense. 4. Kids v. adult activities and Old Age a. CASE: Roberts v. Ring (1919) child doing kid activity. Boy of seven not held at adult standard. Old man held liability, couldnt use age as a defense i. FACTS: 77 year old man with bad eyesight and hearing driving at 4 or 5 mph, hits boy ii. ISSUE: Was negligent for striking boy with his car? Was negligent for running out into street? iii. HOLDING: Negligence standard makes allowance for children sometimes, but all adults are treated equally. Age or infirmities dont relieve person from negligence iv. RTT:LPH 11, comment c. refuses to take old age, into account , but does take into account such infirmities associated with old age by using the standard of a reasonably careful person with the same physical condition.
v. Contributory negligence standard is care ordinarily exhibited by a seven year old boy but negligence standard for is not fitted to his circumstances. b. CASE: Daniels v. Evans (1966) child driving car. Boy acting like adult. Unable to distinguish him from an adult in a car. Others cant adapt behavior. i. FACTS: s decedent son (19 years old) was killed when motorcycle collided with s truck ii. ISSUE : Should standard of care applied to minors prevail when minor engaged in adult activity? iii. HOLDING: minors must exercise the same standard of care as adults when engaged in adult activities iv. RTT: LPH 10 holds child to the standard of a reasonably careful person of the same age, intelligence, and experience. In addition to the exception for adult-like activities, it also provides that a child under five years of age is incapable of negligence. c. PUBLIC POLICY: Should minors be held to an adult standard of care when they are but a lower standard when they are s? i. Maybe so b/c doesnt place burden of accident loss resulting from the extra hazards on innocent victims of substantial behavior 5. Beginners v. Experts a. General rule holds beginners to the standard of care expected of those who are reasonably skilled and practiced in the art. i. Exception - has a assumed the risk that the defendant will exercise a lower standard of care, i.e. when an experienced driver agrees to teach a novice how to drive. 1. Inexperienced driver gets the benefit of the lower standard against his driving instructor but not against an injured pedestrian who did not assume the risk. b. RTT: LPH 12, comment b., avg skills and judgment are ignored to prevent the multiplication of separate standards and to forestall the risk of fraud. c. RST 299A is required to exercise the skill and knowledge normally possessed by member of that profession or trade in good standing in similar communities, unless he represents that he has greater or less skill than average. d. RTT: LPH 12 similarly holds that the case for the higher rule is strongest when the two parties have agreed to it, or when the defendant is engaged in dangerous activities. But it does not issue any categorical rule, noting that skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful 6. Insanity a. CASE: Breunig v. American Family Insurance Co. (1970) i. FACTS: was driving car, experienced delusions (God pulled her steering wheel to the left) crossed lane and hit ii. ISSUE: Under the negligence inquiry, did the defendant have such foreknowledge of her susceptibility to such a mental aberration,
delusion or hallucination as to make her negligent in driving a car at all under such conditions? iii. HOLDING: cant be held liable for negligence when 1)insanity affects persons ability to understand and appreciate duty of care or affects ability to control actions in an ordinarily prudent manner and 2) person doesnt have forewarning or notice that he may be subject to mental illness or insanity b. CASE: Ramey v. Knorr* had prior notice of mental illness and defense of sudden mental incapacity was rejected. c. Breunig has been narrowed in custodial setting. In Gould v. American Family Mutual Insurance*, court wouldnt apply Breunig when institutionalized patient with Alzheimers injured his caregiver. Court didnt want to place unreasonable burden on the negligent institutionalized mentally disabled. Paid caretaker can foresee risk. 7. Physical Disabilities a. CASE: Fletcher v. City of Aberdeen (1959) i. FACTS: city workers failed to replace barriers around an open hole in the sidewalk, blind man came walking along and fell into hole ii. ISSUE: What is the standard of care imposed on the city for negligence and on a person with disabilities? iii. HOLDING: A city is obliged to afford the degree of protection which would give notice to a disabled person. Standard of negligence for a disabled is the level of care engaged in by a reasonable person with same disability. iv. RTT:LPH 11(a). the conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability. v. CASE: Poyner v. Loftus* legally blind man was injured when he looked away while walking forward. Court affirmed summary judgment for because was negligent for not being more watchful given his poor eyesight 8. Intoxication a. CASE: Robinson v. Pioche, Bayerque & Co. (1855) i. FACTS: s left uncovered hole in sidewalk, was drunk and fell in. ISSUE: Can s use s as a defense of contributory negligence because he was drunk when he fell in a hole in front of their premises? HOLDING: s action constituted gross negligence- no contributory negligence defense to gross negligence b. Intoxication Hypotheticals: i. left a hole uncovered because he was drunk, falls in. 1. Drunkenness doesnt entitle you to a different standard of care. ii. jumped over a barricade and fell into a hole 1. Contributory negligence if person so drunk that a reasonably safe street isnt enough to prevent injury c. Wealth i. CASE: Denver & Rio Grande R.R. v. Peterson (1902)
ii. ISSUE: Does wealth make a difference in determining duty of care? iii. HOLDING: Wealth is irrelevant. Want to make sure that people take cost effective precautions, not that rich take more non-cost effective precautions than poor. 1. 2 purposes for awarding compensatory damages: deterrence of socially undesirable conduct and compensation of the victims of such misconduct a. Wealth is irrelevant to deterrence. i. s existing assets do not increase the expected value of a given future action. b. Wealth is irrelevant to compensation aims. i. In a successful tort is entitled to recover for all losses proximately resulting from the action for which the is held liable. ii. Irrelevant to s right to recover, may be important practical concern in settlement negotiations. 9. General principles of way law applies reasonable person standard a. Why? Easier to administer, help people choose which activities to engage in, but tension with notion of negligence. Sometimes hold people to a standard they really cant meet. b. Forewarning of own ability to meet the standard i. No fault seizure, heart attacks, kids being kids (slightly different) c. Cheapest cost avoider i. How much experience/expertise does party have? d. Cost (feasibility) of not doing the activity i. Cost of kids not doing adult activities low ii. Cost of people not doing activities - high e. Ability of other party to adapt i. If disability visible, kid doing kid thing, greater ability of others to adapt ii. Harder to tell when kid driving a car or motorcycle f. Administration/proof i. Mental & physical disabilities g. Effects on other parties i. Untaken precaution identify some specific activity could have done, which would have prevent the accident from happening 1. Barricade case act was putting up barricades 10. To what extent should we take into reasonable care when the person is a in comparison to if they were a ? a. Generally court wants unitary standard, but when plaintiff is a child want to tailor standards when a , but not when youre a (Robert v. Ring) b. If you have a who cant meet objective standard, you are holding them liable when the y cant meet the standard. are innocent. This is why objective standard is more appropriate. However, when you have a then you want a more flexible standard of reasonable care.
c. Hypothetical: 10 year old client driving a snowmobile across a frozen lake, kid driving at a skill level for a kid but not for an adult i. Scenario 1: kid () falls in hoe in ice that ice fisherman negligently left. When claim against who wasnt exercising due care, should be treated like an adult or a kid? 1. Argument: Like drunk guy falling in the hole case, many can use lake so you need use care to protect all who might use it 2. If not a lot of people use lake and those who do are 15 & up? Arguments both ways ii. Scenario 2: Kid () runs over ice fisherman who wasnt acting negligently 1. liable and should be held to an adult standard d. Calculus of Risk determines how a reasonable person would behave i. CASE: Blythe v. Birmingham Water Works (1856) 1. FACTS: s had statutory duty to lay water mains and fire plugs. fireplugs built according to the best known system. Exceptionally cold winter caused the fireplugs to freeze, flooding s houses 2. ISSUE: Do the facts proved show that the s were guilty of negligence? 3. HOLDING: Negligence is not doing something a reasonable man would do or doing something a prudent or reasonable person would not do. The reasonable man would ask with reasonable standard of what happened on the average circumstance. a. Should it be reasonable for company to think that something extraordinary might occur and prepare for these circumstances as well? b. Was it reasonable for the company to remove the ice when they saw that average circumstance wasnt occurring? i. Court says there was a mystery about what was happening to the pipes and also question of who was best positioned to fix problem ii. CASE: Eckert v. Long Island R.R. (1871) cost justified level of care (precaution) 1. FACTS: child on tracks, s decedent ran to get him off, saved child but was killed by train 2. ISSUE: Did the s gross negligence (unreasonable conduct) contribute to the injury that caused his death? 3. HOLDING: no contributory negligence on the part of the deceased- when the exposure to a risk is for the purpose of saving life, it is not wrongful and therefore not negligent, unless such as to be regarded either rash or reckless. Assumption of Risk: Doesnt apply to a reasonable assumption of risk. a. He acted reasonably b. We value life so highly we arent going to call his act reckless c. No A of R b/c we dont want to discourage rescuing d. Let potential injurers know that they might be liable to both rescuer and injured. e. Restitution: saved the LIRR the cost of paying for the kid. 4. DISSENT: When a person put himself in a dangerous position by his own choice, he must take the consequences of this act and cant maintain an action for a wrong. 5. Linking reasonable person standard with cost-justified level of care Expected Gain > Expected Loss
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Gain from saving X the net probability Harm to rescuer X probability of being able to save the childs life with rescue without rescue Terry, Negligence. 1. Reasonableness of a given risk may depend upon 5 factors: a. Magnitude of risk. Higher magnitude =more likely risk is unreasonable b. Value or importance of that which is exposed to the risk, the object that the law desires to protect (principal object). c. Value of collateral (object the risk taker is pursuing) is properly considered Utility of risk, probability that collateral object will be obtained d. Probability collateral object wouldnt have been obtained w/out taking risk 2. If a kitten or car on track, wouldnt be justified for saving it unless train was going slow and very far away. (Exception maybe, if resuer is a child) a. Might give child a break in probability of harm. b. Adult or child activity? In emergency setting, apply child or more lenient standard. 3. Suppose the child wasnt saved, different outcome? No. Must decide if rescuer was negligent from ex ante perspective. Cant base decision on outcome of behavior. Seavey, Negligence Subjective or Objective? 1. Terry calculus a. Magnitude of risk X Value of the exposed object = the expected loss from the relevant conduct. b. Principal object X (Probability of success with the risk the probability of success without the risk) = the expected gain. c. Negligence = expectant loss >expectant gain CASE: Osborne v. Montgomery (1931) 1. FACTS: opened car door while double-parked, striking boys bike and causing injury 2. ISSUE: Was there an error in the instruction on the definition of negligence? 3. HOLDING: The social interest must be balanced to determine whether the circumstances of a particular case warrant liability of the actor for the consequences of his conduct CASE: Cooley v. Public Service Co (1940) argued for other untaken precaution 1. FACTS: power company maintained uninsulated wires, one fell and struck a phone line, which created a loud noise, causing to faint and suffer a rare neurosis 2. ISSUE: Was the negligent in its duty of care to protect from noise that resulted from uninsulated wires? 3. HOLDING: reasonable alternative standard- not required to take a precaution which will create a new danger to someone else a. owe a greater duty to all the pedestrians rather than to this one, unforeseeable i. Necessity case can show that if precaution taken something worse would happen to get out of the untaken precaution claim United States v. Carroll Towing Co. (1947) FAMOUS CASE BY L. HAND 1. FACTS: moving line of barges, one broke free and was damaged. no bargee on board (hadnt returned to work)
2. ISSUE: Is a barge owner slack in the care of his barge if the bargee is absent? 3. HOLDING: If the burden of adequate precautions is less than the probability of the injury x the gravity of the injury, then you must take the precautions. 4. Learned Hand Test: If B(urden of precaution) < P(robability of harm) x L(oss), then negligence a. Problem: If you take the precaution, then youre screwed, because it shows that you thought the precaution was necessary, and if it fails, thats neg. b. Criticism: Sometimes too difficult to quantify elements; sometimes break points arent obvious; assumes that some accidents are worth having. Someone loses and cant be compensated. i. Assumes risk neutrality. If people are risk averse, losing something is a lot more painful than gaining something of equivalent value, then the formula may not be the right one. Might want to say that dont want B to be too much greater than P x L 5. B < (Pwo Pw) L(fixed loss in both cases) a. Burden > Expected Loss w/out Precaution Expected Loss w/ precaution b. Equation tries to see how much good the precaution does 6. Alternatives: a. Bolton v. Stone Dont look at how much precaution costs, just look at foreseeability and the harm that results. b. Strict liability c. Have people use common sense 7. RTT: LPH takes balancing approach to negligence: a. 3. Negligence: A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the persons conduct lacks reasonable care are the foreseeable likelihood that the persons conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. 8. Additional precautions should be tested at the margin and only taken so long as an additional dollar of precautions reduces the expected costs of injury by at least a dollar. On this analysis, establishes negligence by showing a net social gain from taking the precautions. In principle, the should be allowed to show that some lower level of precaution would have generated a higher net social return 9. viii. CASE: Lyons v. Midnight Sun Transportation Services, Inc. (1996) 1. FACTS: s wife killed in a car accident with . pulled out of parking lot in front of s driver who was driving on the road 2. ISSUE: Should the court have instructed the jury on the sudden emergency doctrine? 3. HOLDING: Person must use standard of care of a reasonable person under the circumstances. Sudden emergency instruction - only when the court finds that the particular and peculiar facts of a case warrant more explanation of the standard of care than is generally required. a. Reasonable person standard already accounts for specific circumstances, no need for special instruction.
4. RTT: LPH 9 If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actors resulting conduct is that of a reasonably careful person. ix. CASE: Andrews v. United Airlines (1994) 1. FACTS: passenger hit by baggage falling from overhead compartment; airline only provided warning 2. ISSUE: Did United Airlines take adequate measures to deal with the notion that what goes up must come down? 3. HOLDING: common carrier and thus owes a duty of utmost care and vigilance of a very cautious person; diligence is only that which is consistent with the mode of conveyance and practical operation a. Utmost care requires care a little higher than normally expected b. Why higher standard of care? Probability low but injury would be high; cant hold other travelers responsible for injury. 4. Untaken precautions a. Nets; telling passengers they couldnt put heavy objects in overhead compartments 5. Applying Hand Formula B<PL=negligence a. Difficult to know probabilty and severity. b. Need to know the success rates with and with precautions to determine if necessary c. Nets might stop things from falling but could cause other risks increase time needed to board, peoples hands could get stuck (like Cooley problem) d. If both argue that when adding other factors B>PL, could argue that since this is a common carrier, its ok to require a burden even though its greater than expected loss. Take precaution unless the burden is grossly disproportionate in cases where the utmost care is needed or required e. Custom i. If we look at standards of a particular industry we can find the cost efficient practice. 1. Customary practice can use as a sword by argues that is negligent because his conduct fails to conform to custom a 2. s can use it as a shield by claiming no negligence because s conduct conforms to custom a. Just because youre doing what others are doesnt preclude negligence, could be an instance of industry lag i. Can be persuasive if is doing opposite of what others are doing ii. Stranger v. consensual (relationship) actions 1. Stranger cases one party might not be informed about the customs of the industry 2. Consensual assumption of risk and knowledge of what could happen since both parties are likely to know custom. Involve interaction; if there is a great degree of industry lag, people will demand better customs. This might not always work if a party isnt aware of lag, wont agitate for shift iii. CASE: Titus v. Bradford B. & K. R. Co. (1890) takes dispositive view 1. FACTS: railway containers with curved bottom; decedent followed common practice and used wedges secured with wire to hold them steady, wires came untied causing the train to tip and the decedent to fall
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2. ISSUE: Was the company negligent for using standard car bodies on a narrow-gauge road? 3. HOLDING: Common practices of the business control; jurors shouldnt set those standards. deceased also had full knowledge of the risks of his job CUSTOM HYPOTHETICAL: industry-wide custom of loading broad gauge on a narrow gauge. first one to use Nypano cars 1. s shield broadly define custom followed custom of loading broad gauge onto narrow gauge 2. can turn shield into sword narrowly define custom customary to load flat cars but not round Nypano cars CASE: Mayhew v. Sullivan Mining Co (1884) says custom is irrelevant 1. FACTS: cut a hole in the platform was working on, no precautions taken. fell 2. ISSUE: Can the be held liable for doffing a ladder hole in the platform without guarding or placing a barrier around it or warning the contractors if this is the ordinary custom? 3. HOLDING: custom does not allow a gross lack of care, even though that lack of care is universal a. What if court allowed to bring in evidence of custom? i. would want to know details about customary practice to combat this claim of custom. Want to examine anything else that is customary warnings signs or telling workers CASE: The T.J. Hooper (1931) says custom is evidence and not dispositive 1. FACTS: Tugboat lacked radio, lost cargo in a storm which they would have had warning of if it had a working radio. 2. ISSUE: Does the ordinary care standard require that the tugboats have effective radio sets to pick up weather reports broadcast along the coast? 3. HOLDING: Another tugboat line equipped all its boats with radios. Custom controls and the should have equipped his boat as well CASE: The T.J. Hooper (1932) 1. HOLDING: The practices of one line do not dictate the general custom. Instead, court should drive custom in cases where a whole calling may have unduly lagged in the adoption of new and available devices. (L. Hand) (positivism) although radios were not customary, still negligent b/c cost effective to have a radio. CASE: Trimarco v. Klein (1982)* - slipped in bathroom and received cuts from crashing against a shower door made of glass. Door installed before new custom established that termpered glass should be used. NY Court of Appeals allowed to reach jury and reversed decision of the Appellate division. 1. Complicated since custom has changed since the time the glass door was installed and when the injury occurred. Jury given responsibility to determine liability in this case. Medical Malpractice 1. Custom is dispositive. Custom rules in medical malpractice and can be used as a sword and a shield. a. Sword - Judges, juries, and patients dont have knowledge of what is reasonable thing for doctor to do, so give more weight on custom. Experts in medicine are best prepared to say what is the reasonable standard
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b. Shield If doctor followed custom, not responsible for resulting harm, if no other negligence CASE: Lama v. Borras (1994) a. FACTS: suffering from back pain, went right ahead with the surgery without attempting conservative treatment, got infection b. ISSUE: What degree of skill must a doctor use to avoid liability? c. HOLDING: A doctor must use that degree or skill and learning which is normally possessed and used by doctors in good standing in a similar practice in similar communities and under like circumstances. on other issues of divergence question was left to jury. No reason to worry about industry lag because of consensual relationship between doctors and patients. Market mechanism would cause advances in direction of due care. What counts as customary? a. Locality rule used to have this, eroding with idea of national standard. Adoption of national standard allows you to draw on doctors around the nation and not just the people around you b. Type of facility walk-in clinic in rural areas may not have the equipment to do the same practice done in a major university research hospital c. Doctor ability (skill level, years of practice) doctor wont get a break for being new or not as experienced d. Two schools rule multiple schools of thought have different standards to take; if following any accepted schools of care that going to work. There must be considerable number of respectable physicians that hold that view. MEDICAL MALPRACTICE CUSTOM HYPOTHETICALS: a. worksin a small walk-in clinic in rural place. Patient comes in with snake bite. Person had gone to Central America and transporting snakes to Canada. Kills snake and bring it in. Doctor never seen snake before or this snake bite before. Individual whose been bitten didnt say anything about the transnational snake smuggling scheme. Doctor treats wound by cleaning it and bandaging it. If he had been up to the national standard he would have known that you needed to administer serum X within 30 minutes. Small clinic didnt know and didnt have serum X. Most small clinics dont have this. Larger hospitals would have this. Patient dies a week later. Estate sues doctor for malpractice. How do we analyze this problem? i. Several reasons patient didnt get right care. Doctor didnt have knowledge. Had he known, the clinic doesnt have serum x. we would then want to know the location of nearest place. If close enough could be argument that doctor was still negligent ii. We could say reasonable for this type of facility. iii. Could say that the was negligent per se because he was violating statute by smuggling state. also didnt tell him where he got the snake and where its from. Counterarguments. b. What if doctors have custom of leaving filled syringes in treatment room. What if kid is left in room alone and injects himself? Doctor sued from doing
this. Doctor says that all he did what was customary. He makes a claim for custom, how will this play out? Shield to liability? i. Custom and negligence is obvious to a layperson. Something about leaving dangerous objects on the surface and not about anything medical. It might not be dispositive. Example of narrow category that is not related to medical treatment and obviously negligent to a layperson c. What if patient wants new treatment? Should person be able to have a contractual agreement to allow them to have treatment, waive right to sue later for negligence. i. Duty for doctors to obtain informed consent from their patient. Without it, there still could be possible negligence case. d. Doctors have separate duty to inform patients of risks of treatments. i. Dont have to tell them things that are obvious (infections) ii. Dont have to tell them things that are remote, very unlikely chance of remote side effects iii. Material, but not obvious iv. To bring cause of action has to prove that had a reasonable person known about the risk they would have made a different decision about the surgery, looking at it ex ante. f. Statutes and Regulations statutes add additional duties i. Reasonable person doesnt go around breaking law, if a person breaks law then that person is unreasonable ii. Statutes can be used to decide 1. Negligence per se if you violate the statute then you are negligent. Third Restatement Approach. Even when per se some excuses can come into play 2. Evidence of negligence a. Presumption (rebuttal, takes a lot to rebut it) California Code deals with this. b. Evidence mixed in with other evidence 3. No evidence sometimes statute will see that it means to give rise to negligence for evidence, other instances it will say that it cant be used as evidence of negligence. Other times its not clear. When its a safety statute that is meant to protect people like the and tendency to prevent the risk that happened, it will treat it as negligence per se iii. How do you decide between the three? 1. Have to look at what statute says/kind of rule 2. Safety? 3. Protect who? 4. Against what? iv. CASE: Osborne v. McMasters (1889) 1. FACTS: drug store clerk gave bottle of poison to s intestate without labeling it poison; statute requiring poisons to be labeled 2. ISSUE: Is the liable for negligence for not following a statute when there was no right of action for the alleged negligent act under common law? 3. HOLDING: violation of statute constitutes negligence per se if purpose of statute was to prevent that type of harm
a. sets out 3 factors i. safety statute meant for protection or benefit of others ii. meant to protect class of which is a member iii. meant to protect injuries of the class like the one that is suffered here b. Safety statute, no excuses, designed to prevent this risk and designed to protect people from consuming poison c. STATUTE HYPOTHETICALS: i. like Osborne case except takes home poison, sets it on the stove and the bottle of poison explodes 1. Question about what kind a risk of requiring labeling is created to protect against 2. could say that statute was designed to prevent people from ingesting poison, would people know if it was labeled poison that it was inflammatory. ii. State law that requires all elementary school to only have safety scissors. Teacher orders sharp scissors. Someone trips over box scissors and breaks leg. 1. Theres nothing about this risk that was brought about by this statute iii. What if teachers assistant was hurt by sharp scissors 1. - Statute wasnt meant to protect adult. 2. injuries to kids animated legislation, but shouldnt construe the legislation so narrowly to not include the teachers assistant v. RST 286. When Standard of Conduct Defined By Legislation or Regulation Will Be Adopted 1. The court may 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 be exclusively or in part a. (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results. vi. RTT: LPH 14. Statutory Violations of Negligence Per Se 1. An actor is negligent if, without excuse, the actor violate 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. vii. Who is protected. In some cases, see Stimpson V. Wellington Service Corp.* court found that statute had a dual purpose and extended it to protect property. However, the court took a narrower view of the scope of regulatory protection in Burnett v. Imerys Marble, Inc.* deciding that a regulation intended to protect miners could not be extended to an employee who was not a miner. Employee was not a member of class Act was designed to protect and therefore didnt meet the elements of RST 286.
viii. In Gorris v. Scott*, court decided the could not recover when their sheep fell overboard b/c didnt put them in a pen by claiming that violated statutory regulation. The statute was not designed to prevent sheep from falling overboard but to prevent animals from contracting disease. Two separate issues so cant use this Act to prove negligence per se. ix. Hudson v. Craft illegal prizefighter match. Violation of statute. Could promoter be held liable if not found liable for intentional tort. 1. Safety statute? Yes 2. Kind of /injury meant to protect? Yes. x. CASE: Martin v. Herzog (1920) case about causation 1. FACTS: killed in an auto accident. s vehicle lacked headlights, violating a statute 2. ISSUE: Was the lower courts instruction correct that omission of statutory rules is some evidence of negligence and not negligent in itself? 3. HOLDING: A who commits an act that violates statute and that is a contributing cause to injury may forfeit right to recover damages for committing contributory negligence; violation of the statute was direct negligence, but there must be a causal link between violation and the injury . 4. Negligence per se - negligence itself; not just something that is evidence of negligence a. Applies to contributory negligence also 5. CASE: Tedla v. Ellman* a. Overrules Martin? (statute says must walk facing oncoming traffic along highway, common law practice that you can walk with traffic if traffic is lighter on that side) i. Court treats it as statutory interpretation because there was a background common law about customary exception. What does the law really mean? Court says it isnt overruling Martin, talking about what is statute? Dont limit the statute to what is written down. Take into consideration customary law. xi. Restatements provide that violation of a statute may be excused by necessity or emergency, or be reason of incapacity, and when the actors compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance (RTT:LPH 15(e) xii. The Third Restatement states that statutory cause of action should be judged by negligence, and not strict liability standards, by providing that a statutory violation is excused when the actor exercises reasonable care in attempting to comply with the statute. RTT:LPH 15(b). Accordingly, the common law recognizes that person can rebut negligence per se by showing that he person made a reasonable effort to comply with the statute.Id., comment c 1. Ex. driver who inspects/maintain brakes that fail xiii. If the statute says the consequences for tort actions, then its easy. Sometimes statute will say no civil liability (no private right of action). i.e. California statute regarding sales to drunkard and intoxicated person is a crime but seller cant face civil liability if drunk person gets injured. 1. Case: Vesley v. Sager, p.270: Drunk driver and tavern owner. a. The opinion convicting tavern owner turned on the idea not that the drinkserving was the proximate cause, but rather that the tavern owner owed a duty
of care to people who would possibly be hit by a drunk driver. Key: Foreseeability of the harm and proximate cause. i. Hard to monitor drunkenness for tavern owner. Lots of suits and legal costs will go up. 2. Who is in best position to avoid this action? Various perspectives a. Monitoring b. Knowledge c. Least cost avoider i. Before drinking person drinking ii. During drinking session person serving 3. Difference when drunk hurts self (assumption of risk/contributory negligence arguments) and when hurts 3rd party 4. Differences between social hosts & bartenders a. Different incetives. Bartender has conflict of interest. Primary concern is turning a profit. Less concerned or aware of a persons well-being. b. Bars have incentive to be in business. Social host benefit community by having parties, dont have to worry about what people would be doing instead xiv. Issue of causation determined by: 1. Did the violation of statute cause harm? 2. Was there an intervening actor might show a break in the chain of causation a. Ex. violating law against leaving keys in ignition of car not an example of intervening factor. xv. CASE: Brown v. Shyne (1926) 1. FACTS: went to chiropractor, after several treatments she became paralyzed, chiropractor not licensed medical practitioners 2. ISSUE: Was the defendants violation of statute evidence of negligence? 3. HOLDING: statute not designed to protect against trained professionals practicing medicine; for statute to be evidence of negligence it must be something statute was designed to protect against; standard of care: qualified chiropractors a. License as a proxy for experience? Now statutes saying that that not having license is a prima facie evidence of negligence 4. DISSENT: Law didnt recognize as physician, so the court should not. His act, which violated law, was the direct and proximate cause of injury, so he should be liable irrespective of negligence. 5. General principles of proximate cause allow a to defeat recovery in some instance when the wrong of a third person sever causal connection between the s negligence and the s injury. 6. CASE: Ross v. Hartman (1943)* - s agent left keys in ignition of unlocked car parked in an alleyway. Car was supposed to be taken to garage. Thief stole the car and negligently ran over . s agent breached statutory ordinance by leaving an unlocked car unattended in a public place. a. Court held that deliberate intervention by the thief did not take the case outside the statutory prohibition. Violation of safety measure is negligence. Negligence was proximate cause of harm. b. If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is the legal
cause of the harm. s act was negligent precisely b/c it created a risk that a third person would act improperly. c. Was statute meant to protect against theft or accidents? i. Primarily about theft, but also about prevent thieves from driving and getting into accidents while being negligent ii. could argue for exception. Custom to leave keys in the car so that someone else can park it, so no negligence. Legislation didnt mean to not leave keys in the car when giving it to garage guy. 1. Not acceptable since facts of case state that didnt tell anyone about the car and left it sitting for a while. 7. RTT:LPH 14, comment h: In light, then, of the combination of the statutorypurpose doctrine and ordinary principles of scope of liability, the lack of a license is not negligence per se on the part of the actor, nor is it evidence tending to show the actors negligence. 8. LICENSING/ CAUSATION HYPOTHETICALS a. You are driving with an expired license and you observe all rules and someone darts out in front of you. i. Not liable, b/c the statute was meant to protect against bad drivers, not drivers w/out licenses. ii. Or causation arg.had he complied with the statute, he would have been driving w/a valid license. No causal connection between not having a license and having an accident b. Driver w/suspended license? i. Causation no longer works. The point of suspension isnt to prevent injuries, but to punish you. Not really a public safety measure. xvi. CASE: Uhr v. East Greenbush Cent. Sch. Dist. (1999) 1. FACTS: School failed to check for scoliosis. By the time it was discovered, surgery needed to fix it 2. ISSUE: Does the Education Law 905(1) statute authorizes a private right of action? 1. HOLDING: A private right of action can be brought when: is one of the class for whose particular benefit the statute was enacted; recognition of a private right of action would promote legislative purpose; creation of such a right would be consistent with the legislative scheme. Here the failed on the 3rd element a. Court held that in past no right of private action and the legislature hasnt changed rule. Legislature would have changed rule if it didnt like the decision. i. Weak rationale legislature could be preoccupied with other issues, cant always say that not changing a law means legislature approves of court decision. Legislature might not be aware of courts decision. b. No liability for misfeasance (doing a bad job); logical that there shouldnt be liability for nonfeasance (failing to do the job) i. Not obvious that these are the same logically c. Private right of action action in tort law; individual people hurt will be allowed to sue i. Public right of action duty to create a test, enforceable under public law
2. OSHA case Hammond v. International Harvester Intl a. Just because no regulation at the time, later regulation could provide some evidence of what would be reasonable. ii. MORE STATUTE HYPOTHETICALS 1. Law against parking in front of fire hydrant. A perks in front of one. B smashes into it. A sues B. B responds that A was parked illegally, this was an example of negligence per se. Is it? a. No can argue that B statute was about getting access to hydrant. b. Could be a different story if B was a fire truck. 2. State statute says all buildings must provide access for people with disabilities. All buildings must has a ramp that cant be steeper than specified degree. B has a build with ramp thats steeper than whats specified by ordinance. A doesnt have disability but uses ramp because he has suitcase with rollers. He sleeps as a result of steepness of ramp? Negligence per se? a. No. Person isnt a member of the class statute was designed to protect b. Yes. Broaden statute to a higher level of abstraction and say that statute was meant to provide access to people. As needed to use ramp because she had a rolling suitcase. This statute is about access for everyone who needs it? i. If judge responds saying that access isnt goal of statute? 1. want to think about everyones protection, so in deciding steepness of the ramp, its meant to protect everyone who uses it. f. Judge and Jury i. Jury trial available in damages actions 1. Advantages of juries a. sympathetic to s plight b. might be some instances where will do better before a jury when considering assumption of risk 2. Both parties can decide to waive right to jury and have bench trial ii. American legal system divides responsibility for deciding questions of fact between judge and jury prevents either from taking complete control over a case unless both parties waive jury trial. iii. Forms of judicial control a. Judges instructions to jury at the close of the case are b. Instructions embody the relevant principles of law. c. Substantive law made when the lawyers for either party challenge those instructions on appeal. i. Stops being good instruction when judge instructs jury to think about what they would do in a given situation. Want juries to be objective 1. Arguably this is impossible. Jury members may draw from own experience to determine what is reasonable 2. Courts power to keep certain questions of fact from the jury a. Jurys traditional role to find facts to which it then applies the law i. Negligence is a mixed issue of fact and law. 3. Judge can grant summary judgment before the trial or judgment as a matter of law assumes that no reasonable jury could come but to one conclusion
iv. Holmes, The Common Law 110-11, 120-124 (1881) 1. Since the cases with comparatively small variations repeat themselves, a judge who has long sat at nisi prius (trial court) ought to acquire a fund of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury. He should be able to lead and to instruct them in detail, even when he wants to take their opinion. a. Exception when standard is rapidly evolving, i.e. medical malpractice In this case want juries. v. Pros & Cons of leaving tort action to jury to decide 1. Pros juries can bring sense of the community to difficult estimations of reasonable care required under a negligence system. Juries provide a check against the domination of the legal system by government officials and professional people. Cases are usually not exactly the same and rule cant take into consideration subtle variations of facts. 2. Cons expensive jury system only runs by taxing the unwilling individuals who are paid a fraction of their market wage for jury duty (large financial and opportunity costs and costs). Juries may be subject to passion or prejudice vi. CASE: Baltimore and Ohio RR v. Goodman (1927) stop, look and listen case 1. FACTS: s decedent killed by train while crossing track. Failed to check for train when he had no practical view, 2. ISSUE: Did the court err in not directing for a verdict of contributory negligence? 3. HOLDING: A driver must take the necessary precautions (get out and check) to check to see that a train is not coming before crossing a train track. If he doesnt, he does so at his own risk. Question of due care usually left to jury but court says since its dealing with a clear standard of conduct, which should be laid down once for all by the courts. vii. CASE: Pokora v. Wabash Ry. (1934) 1. FACTS: approached four tracks and stopped, tried to look, and listened for train, heard nothing. He could not see main track because a boxcar was stopped on the first track. He didnt get out of his car to get a better view. Hit by train when he crossed. 2. ISSUE: Should the precedent set by Baltimore & Ohio R.R. v. Goodman stand as way to determine due care when crossing train tracks? 3. HOLDING: It should be up to the jury to decide suitable conduct for traveler caught in a situation where the ordinary safeguards fail him. Need for caution in framing standards of behavior that amounts to rules of law, especially when there is no background experience out of which the standard emerged. viii. Despite Pokoras disapproval, Goodman has been cited hundreds of times, often with approval. In Ridgeway v. CSX Transportation, Inc. (1998)*, court upheld a contributory negligence defense as a matter of law in a single track wrongful death case. 1. Same outcome in Jewell v. CSX Transportation, Inc.* where Jewell family injured while crossing track on an elevated portion of the road. -appellants argued for an extrahazardous instruction. Court affirmed trial judges decision not to give the extrahazardous instruction in the absence of any physical obstruction to the drivers view of the train. ix. s have greatest success in case when its not clear that the railroad has the right of way.
1. Toschi v. Christian (1944)* hurt when truck was struck at crossing by s train. s normally have flagmen to alert people that tracks werent clear. In this incident, flagman was playing with mirrors, blinded , who stopped on first track and was struck. x. RTT: LPH 8, comment c rejects idea that uniform rules can decide concrete cases: what looks at first to be a constant or recurring issue of conduct in which many parties engage may reveal on closer inspection many variable that can best be considered on a case-by-case basis. xi. bears the burden of proof in negligence cases - Duty of a party to substantiate an Allegation or Issue, either to avoid dismissal of that issue in the trial or to convince the court of the truth of that claim and hence to prevail in a civil or criminal suit. 1. To establish cause of action - Duty of a Plaintiff, at the beginning of a trial, to make a prima facie showing of each fact necessary to establish the existence of a cause of action 2. Of production - duty upon a party in a legal proceeding to introduce enough evidence relating to an assertion of fact to have the issue be considered by the fact-finder rather than summarily dismissed or decided; part of the burden of proof. 3. Of persuasion - onus on the party with the Burden of Proof to convince the trier of fact of a preponderance of evidence for his or her case a. If 50-50 (equipoise) def. will win, must be more than 50 % likely for to carry the day g. Proof of Negligence i. Res Ipsa Loquitor the thing speaks for itself burden-shifting device that shifts the burden of production from to the to respond; allows liability to be based on circumstantial evidence 1. If established, burden of proof shifts to . If silent, question would go to jury. Jury has permissive inference meaning jury can draw an inference of liability for circumstantial evidence but doesnt have to. (In this case likely that will win). Court may also treat silence as rebuttal of presumption, they wont give case to jury and decide it as a matter of law 2. In some cases presents enough circumstantantial evidence to obtain a directed verdict under res ipsa loquitor a. California S.Ct. upheld trail courts decision to take the case from the jury and to direct a verdict for the in Newing v. Cheatham. s decedent was killed in a plane owned and piloted by s decedent. All circumstantial evidence pointed towards s negligence not having enough fuel, flying while drunk and no circumstantial evidence proved s contributory negligence. b. Circumstantial evidence alone may authorize a finding of negligence. Where the evidence of such facts and circumstances is such as to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima faice case is made ii. Purpose 1. Necessary for cases where isnt in best position to come forward with evidence, as is case in Byrne v. Boadle. (Doctrine created before current discovery process, with discovery less important) 2. Used in cases where there are multiple s
a. Ybarra v. Spangard - sued all people in operating room, getting appendix remove but something went really wrong. Since no way for to know what happened when he was under, used res ipsa loquitor to try to get some information about what happened a. Break a conspiracy of silence by requiring everyone to be potentially liable 3. Cases where doesnt even know what happened, vicarious liability. May view tort system as compensation where since someone injured were going to allow circumstantial evidence to prove negligence iii. Conditions for res ipsa loquitor 1. Wigmore Prosser (smost straightforward idea) a. Event ordinarily doesnt occur without negligence b. has exclusive control c. didnt cause/contribute to injury 2. Restatement Approach (courts dont have to follow this but may use it as a guideline) a. RST 328D. Res Ipsa Loquitur. i. It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when 1. the event is of a kind which ordinarily does not occur in the absence of negligence; 2. other responsible causes, including the conduct of plaintiff and third person, are sufficiently eliminated by the evidence; and 3. the indicated negligence is within the scope of the s duty to the . ii. It is a function of the court to determine whether the inference [of negligence] may be reasonable drawn by the jury, or whether it must be necessarily drawn. iii. It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may b,e reasonably reached. b. RTT: LPH 17. Res Ipsa loquitor The factfinder may infer that the has been negligent when the accident causing the s physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the is the relevant member. iv. CASE: Byrne v. Boadle (1863) 1. FACTS: struck with a barrel of flour while walking past the s premises. Injured. 2. ISSUE: Is the required to show proof of s negligence that resulted in flour falling on him to recover from an injury resulting from this action? 3. HOLDING: There are certain cases of which it may be said res ipsa loquitor, where the mere fact of the accident having occurred is evidence of negligence. * If there is any state of facts to rebut the presumption of negligence, must prove them.* a. Exclusive control: employees and agents fall within s exclusive control i. As owner he has exclusive control has right to determine who is and isnt there. Exclusive control even if chance that someone else might be under control
ii. can escape this by showing that even when due care sometimes this injury will occur v. CASE: Colmenares Vivas v. Sun Alliance Ins. Co (1986) 1. FACTS: s were injured on an escalator owned by and maintained by 3rd party. 2. ISSUE: Under what circumstances does res ipsa loquitor apply? 3. HOLDING: 3 part test: accident must be of a kind which ordinarily does not occur w/o negligence; caused by an agency or instrumentality within the exclusive control of ; not due to any voluntary action on part of a. There are some non-delegable duties which airports are required to provide and maintain for their customers even if you have an independent contractor, there is vicarious liability for a servant. i. Exception: Hospitals not VL for Independently contracted doctors (Ybarra). But they are for the foul-ups of their own doctors. vi. Hotel Cases: 1. In Larson v. St. Francis Hotel*, was not liable for injury suffered by when a chair was thrown out of a window and hit who was walking on the sidewalk. a. Court refused to apply res ipsa loquitor: This occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the s used reasonable care and were totally free from negligence. 2. Connolly v. Nicollet Hotel* court reinstates jury verdict for and reversed trial courts judgment. Distinguished this case from Larson as a case with a surprise celebration. hit by falling object during a party that got out of hand. Management had time to control the situation. 3. Difference is exclusive control. Control could have been exercised in Connolly case but wasnt. They had reason to believe that someone could get injured vii. Res Ipsa Loquitor Hypotheticals: 1. A walking past bowling ball factory. Bowling ball falls out window and hits him a. Like Byrne case, res ipsa loquitor b. What if defect in machine i. Was this a non-delegable issue? Delegable duty (like when car fairs) 2. A walking by alley. B walking by hit in shin. a. Spontaneously instance of throwing ball out, sort of like someone throwing out window in hotel. If people had been doing this all day long, then might have a different argument. Court would have to determine whether it should have been controlled 3. A walking in store and falls over strawberry yogurt. Storeowner liable if didnt regularly cleaned. a. Event ordinarily doesnt occur w/out negligence? i. attorney would want to know how long its been there ii. Depends on how you frame the event 4. A walking through downtown Chicago, window widget falls and hits a. Construction crew working on the window. a. If installed with due care, will still fall off 1 in 100,000 b. If installed negligently, will fall off 1 in 2 times
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c. 99% of time uses due care, 1% negligent ( if want to show a very big ratio between what would happen with due care and what would happen if know due care 5. How to determine event ordinarily doesnt occur w/out negligence a. Ratio between two b. Want to look a big ratio when not using due care 6. Hypothetical a. A sneaking into amusement park after hours. Sky drop box drops on him i. Might say its a non-delegable duty ii. on their illegally. Assumption fo risk by . In instances of trespass you may need to show more than just negligence. iii. May not want to apply res ipsa loquitor since didnt have a duty to the 1. RST might be a base for an argument b. A jogging in front of condo complex. Barbeque tongs fall and hit A on the head. Different groups of people barbecuing not easy to tell who dropped the tongs. Sue all 15 who were barbecuing i. is this an even that ordinarily occurs without negligence. Duty to make sure that barbecue implements dont fall. How often does a thing happen without negligence? ii. Exclusive control of ? Argument that when we have all these they have exclusive control over their area, but it might 1. could make an argument like Ybarra. collective enterprise knew that someone in the room did this, no way to know who did it. Plaintiffs Conduct a. Types i. Contributory Negligence established when the has not taken reasonable care, and in consequence of her default has suffered injury. 1. At common law s negligence, barred from recovery in ordinary negligence cases if established on the facts (even if is negligent), subject to exceptions regarding the s last clear chance (last actor) to avoid the harm, or to his recklessness, wantonness, or willfulness in causing it. 2. bears burden of showing contributory negligence a. Must show: Duty, Breach, Causation, and Damages i. Must look at whether breach duty of care or if failed to meet all requirements 3. doesnt have to use this affirmative defense, if can show: a. Didnt have anything to do with incident b. using care (if in negligence regime) c. Affirmative defense gives them an extra shot if not using due care ii. Assumption of risk asks whether has deliberately and voluntarily encountered a known risk created by the s negligence and if so, it hold that the should not be allowed to recover for the consequent harm
iii. Legislation and common law have moved toward comparative negligence s negligence should not typically bar her cause of action, but should only reduce the amount of damages recoverable proportionate to s negligence. b. Compartative Negligence i. Controversy 1. Leaves potential for hurt to not be compensated, even when did something for which he isnt held responsible 2. Argument: CN is unnecessary, b/c P knows D will be subject to a neg. rule, and so P will not be careless b/c he knows Ds incentives, and P cant recover unless he was careful. ii. Why have it at all? 1. Corrective justice makes sense to have a standard of care for both parties if moving money from to 2. Gives both sides incentives to prevent accidents. iii. CASE: Butterfield v. Forrester (1809) 1. FACTS: obstructed highway, coming along at high speed was injured 2. ISSUE: Was the lower courts instruction correct saying that cant recover for an injury that resulted from his contributory negligence? 3. HOLDING: if you cast yourself on an obstruction which reasonable care would have avoided, your action is blocked iv. CASE: Beems v. Chicago, Rock Island & Peoria R.R. (1882) 1. FACTS: RR worker uncoupling cars, signaled engineer to stop, engineer didnt stop, RR workers foot caught in tires, died. 2. ISSUE: Did the engage in contributory negligence for going between the cars without checking to see if the speed slowed down? 3. HOLDING: act of not checking to see if the cars had stopped was not contributory negligence, since he was authorized to act without checking, dependent upon others to follow signal a. Workplace compensation regime usually provides exclusive remedy i. FELA casestake away contributory negligence defense (Wilkerson v. McCarthy) reluctance to look into the fault of the employee. Want employers to figure out the correct approach to take v. Difference between stranger cases (accidents on highway) and consensual cases (employer/employee) 1. Butterfield stranger a. Ability of each party to act prudently doesnt depend on cooperation with one another b. More likely that standards of care imposed on and will be the same c. Want things to be reciprocal 2. Beems consensual a. Parties may have differential access to knowledge and a different ability to take care. b. More like a Coasean world where people can communicate and signal to each other; more opportunities for bargaining vi. CASE: Gyerman v. United States Lines Co. (1972)
1. FACTS: was stacking fishmeal aware that sacks were in an unsafe pattern, didnt follow protocol and report this to supervisor, they fell down and injured him 2. ISSUE: Does the s contributory negligence bar his cause of action? 3. HOLDING: s negligence is a contributing cause only if it is a substantial factor in bringing about his harm.- contributory negligence must be proximate cause vii. Cases when difficult to establish contributory negligence 1. Safety statute (Koenig) a. CASE: Koenig v. Patrick Construction Corp (1948)* court refused to allow the defenses of contributory negligence or assumption of risk when the ws a member of the class of person for whose benefit a particular statute the state Scaffold Law was enacted b. Rigor of Koenig has been tempered. Weininger v. Heagedorn & Co. (1998) * liability could not be established under the scaffolding statute if the was the sole cause of the accident. If you break scaffold law, you cant claim contributory negligence of people hurt on scaffold. 2. Custodial cases cant claim contributory negligence b/c want to protect vulnerable group a. Padula v. State (1979)* two patients at drug rehab snuck into printing room through negligence of guards. Found ditto fluid mixed it with tang and drank it. One died the other went blind. Court first held that actions done under an irresistible impulse, even without specific proof of a mental disease, do not sever causal connection and that the suit wasnt barred when a person is in custody of drug treatment program 3. Medical malpractice differential in knowledge, hard to blam patient from not knowing what to do a. CASE: Dunphy v. Kaiser Foundation Health Plan of Mid-Atlantic States (1997)* suffered amputation after failed to diagnose his bone infection. 4. Private necessity/emergency running into traffic a. Raimondo v. Harding (1973) * runs into the path of a negligently speeding car on public highway to escape from gang attack court reversed decision below stating that a person faced with an emergency who acts without opportunity for deliberation to avoid an accident may not be charged with contributory negligence if he acts as a reasonably prudent person would act under the same emergency situation, even though it appears later that he didnt take the safest course or exercise the best judgment b. Distinguished from Vincent v. Lake Erie (intentional tort private necessity defense). In that case, knowing appropriated something. Running into traffic, doesnt know whats going to happen. Other party is a bad actor. i. RTT: LPH 9 law of negligence takes into account an unexpected emergency requiring rapid response for and . No party can rely on an emergency created by her own negligence viii. Restatements 1. RST 463 (1965) Contributory negligence is conduct on the part of the which falls below the standard to which he should conform for his own protection and which is a legally contributing cause co-operating with the negligence of the in bringing about the s harm.
2. RST 465. Causal relation between harm and s negligence a. The s negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it. b. The rules which determine the causal relation between the s negligent conduct and the harm resulting to him are the same as those determining the causal relation between the s negligent conduct and resulting harm to others. ix. CONTRIBUTORY NEGLIGENCE HYPOTHETICALS: 1. Recovering Alcoholic (A) attends parent-teacher conference. A sees supply room and sees some ditto fluid. Violation of state statute which says taht hazardous materials be locked up. A goes in finds tang and drinks it. a. Safety statute? argument not meant to protect A, because hes not a child b. Custodial relationship? argument not a custodial action, school has no way of knowing that he might have this irresistible impulse, depends on being knowledge and setting where party can control 2. A told not to eat 10 hours before surgery. A does eat, then asked. A lies. D gives him an overdose. A under longer than expected. A dies. a. A Lies about a crucial fact; doctors only in best position to figure things out when the patient lies. 3. A meter reader runs into a truck when trying to run away from a dog whos attacking her. Forgot work issued pepper spray a. Emergency but contributory negligence because she could have prevented emergency. 4. A driving 85mph B veers over to As lane. Little damage but A runs over guard rail and fatalities result side swiping then losing control a. Mahoney v. Beetman (340-341), sideswiping found to be caused accident. Example of where comparative would be better x. CASE: LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., 1. FACTS: had stacks of hay near s RR. Sparks from s train spread to flax and all flax was destroyed. 2. ISSUE: Should s use of land be limited b/c close to RR? Is there contributory negligence? 3. HOLDING: The rights of one man in the use of his property cannot be limited by the wrongs of another. Doctrine of contributory negligence is entirely out of place 4. Holmes CONCURRENCE: Right to place stacks where he wishes but RRs liability is tempered by location of stacks. Question for jury to determine if there was substantial certain that risk could occur. 5. Have to consider likelihood of fires starting. If likely, then cheaper to have store hay at a safe distance. That way RR can carry on business taking necessary precautions of course and no real burden on . 6. Not allowed as a defense in SL cases. xi. CASE: Derheim v. N. Fiorito: 1. FACTS: s not wearing seatbelt when s car collided with s car. made a left turn in violation of driving rules. 2. ISSUE: Is failure to wear a seatbelt CN?
3. HOLDING: Since there is no statutory law requiring duty to wear a seatbelt, should not be able to use seat belt defense for an accident for which the was in no way responsible. a. There will usually be a fine for failure to wear, but not liable for CN in tort actions. (Seatbelt-specific) b. You can only collect damages, as a rule, for the harm that would have occurred anyway (damage to the car, etc.). xii. Last Clear Chance - generally occurs when the is in a heightened level of blameworthiness xiii. CASE: Fuller v. Illinois Central R.R. 1. FACTS: killed by oncoming train. wasnt paying attention when crossing tracks. s train could have slowed or stopped but didnt. 2. ISSUE: Should the be held liable for having the last clear chance of avoiding s injury when is contributorily negligent? 3. HOLDING: The contributory negligence of the party injured will not defeat the action if it is shown that the might by the exercise of reasonable care and prudence have avoided the consequence of the injured partys negligence. doctrine of last clear chance xiv. RST 479 Last Clear Chance: Helpless A plaintiff who has negligently subjected himself to a risk of harm from the s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) The plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and (b) The is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he (i) Knows of the s situation and realizes or has reason to realize the peril involved in it or (ii) Would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the to exercise. xv. RST 480. Last Clear Chance: Inattentive A who, by the exercise of reasonable vigilance, could discover the danger created by the s negligence in time to avoid the harm to him can recover if, but only if, the (a) Knows of the s situation, and (b) Realizes or has reason to discover his peril in time to avoid the harm, and (c) Thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. xvi. Basic insight in this area is that once the becomes aware of the s peril, he becomes obligated to react to that danger by taking steps to avoid it. The conduct that was optimal without that knowledge of the peril is no longer so. c. Imputed CN i. Usually limited to some sort of pecuniary joint venture. Imputed in both a master/servant relationship and a joint enterprise/venturehas nothing to do with a familial relationship. Dont impute CN of parents to their children. Usually applies to personal damage, but not for property damage ii. CASE: Mills v. Armstrong
1. FACTS: 2 ships collide due to mutual neglect of those on both sides. Employees died. Trial court imputed contributory negligence of those in charge of their ship to the decedents so as to bar their recovery. 2. HOLDING: Rejects Thorogood v. Bryan where a man killed when the omnibus didnt pull up to the curb to drop him off. Thorogood court imputed drivers negligence to . The neg. of the driver will not be imputed to the passenger due to the driver/passenger relationship alone. 3. Both Ways Test: If A can be held vicariously liable for the torts of B, then the CN of B should be imputed to A to bar As recovery. 4. Dashiell v. Keauthou-Kona (1973) Mr. Dashiell was injured. Jointly through the negligence of his wife, who was driving a golf cart in which he was a passenger and the negligence of the . Court held the joint enterprise defense inapplicable as a matter of law. Dashiell reflects courts dissatisfaction with the both ways test a. Joint enterprise: When the can establish that the passenger and the driver have entered into some relationship that makes the passenger vicariously liable for the drivers torts, the courts may impute the negligence of the driver to the passenger. (courts typically require more than simple driver-passenger relationship, sometimes dwelling on the community of interest that such an enterprise presupposes) d. Assumption of Risk i. CASE: Lamson v. American Axe & Tool Co. 1. FACTS: works for . Complains of unsafe working conditions. says either shut it or get out. is injured. 2. HOLDING: If voluntary assume a known risk you cant recover from it. 3. Fellow Servant Rule = If is employed by and is injured by one of s employees, cant recover, b/c has assumed the risk. Didnt matter whether was aware of risk or not. a. Since couldnt quit job might want to bargain with employees for more pay given unsafe work conditions. This would give workers incentive to make workplace safer if its more efficient to do so. 4. Meistrich v. Casino Arena Attractions, Inc. (man knew that hadnt prepared ice correctly but skated anyway) a. Primary assumption of risk: It occurs when the plaintiff has either expressly (when, by contract or otherwise, a plaintiff explicitly agrees to accept a risk) or impliedly (exists when the plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent) relieved the defendant of the duty to mitigate or relieve the risk causing the injury from which the cause of action arises. It operates as a complete bar to liability on the theory that upon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part. b. Secondary assumption of risk: where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty . Must ask: would a reas. prudent man have assumed the risk, and if so, would he have acted in the way the P acted?the doctrine is merged into the comparative fault scheme, and the trier of fact, in
apportioning the loss resulting from the injury, may consider the relative responsibility of the parties i. In situations where the knew, but it was important to take the risk he did. Emmanuels says many courts have abolished the AR defense in this situation because it is unfair. ii. CASE:Murphy v. Steeplechase Amusement Co. 1. FACTS: Amusement park ride called the Flopper. Ride involves moving belt which causes passengers to fall down. watches people on the ride and then decides to try it. Falls down and hurts his knee. claims ride stopped and started, was not properly equipped to prevent injuries, was operating at a fast and dangerous rate of speed and was not supplied with a proper railing. 2. HOLDING: Even if you establish there was a jerk, fall was still a foreseen hazard. assumed the risk. Would have been different if there were many accidents of this type. Would be a different situation if padding had been gone. 3. NOTES: Police officers and Public employees (like firemen) usually dont have an A of R defense because they have knowingly and voluntarily confronted a hazard. 4. Assumption of risk is the only defense in a strict liability tort action. e. Comparative Negligence i. Terminology 1. Contributory negligence common law all or nothing rule , complete bar to recover 2. Comparative negligence proportioning fault so that you would not have a complete bar but a reduction in damages ii. Forms 1. Pure: Damages apportioned strictly based on jurys assessment of P and Ds fault percentages (CA, NY, FL) 2. Modified: is not barred as long as they dont reach a threshold (usually around 50%). If they reach threshold cant recover at all. a. recovers if fault is less than i. can recover if fault is 50-50 b. recover if fault is not greater than i. can still recover at 50-50 ii. Less than/not greater than wording could make a big difference. Creates a cliff effect that is similar to contributory negligence idea) c. Wrinkles when multiple in a modified system. Assume not greater than rule i. P = 40%, D1 = 30%, D2 = 30% (wouldnt bar recovery 40 is less than sum of two s negligence majority rule; Wisconsin statute minority rule bar s recovery, looks on by basis. 40>30 ) iii. How it works: Even if both parties believe that the outcome will be 70-30 proportion of fault, it still works as long as people agree on an equal split of the fault %. Injurer will expect the victim to be careful under his perception, so it will be better for injurer to take the precaution. iv. What becomes of the doctrines weve studied? 1. Elevated levels of blameworthiness on rule same under comparative negligence. No comparative negligence defense under intentional torts. Could be incorporated into the comparative negligence regime
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2. Last clear chance usually ditched entirely under comparative negligence regime. Doesnt make sense to have it 3. Assumption of risk vary by jurisdiction how to deal with it a. Primary - goes to the initial question of whether was negligent in the first place. Was a duty breached? If no prima facie case, then still has 0% of fault. i. Ballpark case & agreeing that will have a lower duty of care. agrees to take on the risk. Unaffected by shift from contributory negligence to comparative negligence. b. Secondary comes into play after established that has breached duty. could tell and went on and did it anyway. acting unreasonably following s breach. Subset of contributory negligence so it becomes subset of comparative negligence because unreasonable conduct by . It becomes absorbed in the comparative negligence regime v. CASE: Li v. Yellow Cab Co. of California 1. FACTS: attempted to cross three lanes of oncoming traffic in order to enter a service station. s driver was traveling at an excessive speed when he ran a yellow light just before he struck thes car. Was barred from recovery b/c of contributory negligence? 2. HOLDING: Problem w/ all or nothing quality of contributory negligence. How about comparative negligence? Problems with comparative negligence: (1) cases involving multiple parties are difficult to figure out, (2) administrative costs are high for fact finding process, (3) what happens to last clear chance and assumption of risk?, (4) should this even be considered in cases where one party is guilty of willful and wanton misconduct.This court opts for pure comparative negligence b/c other option is just another form of contributory negligence. Multiple Defendants: Joint, Several and Vicarious Liability A. Joint and Several Liability i. Definitions: 1. Joint liability: implies that each of several Ds is responsible for the entire loss that they all caused in part. 2. Several liability: holds each D responsible only for his proportionate share of the loss. 3. Joint and several liability refers to any situation where the s are joint to the meaning each can be held responsible to the whole, but bear several liability amongst themselves, if all are available to pay. (means joint) ii. Common law background: hostility toward apportionment in contributory negligence cases, so P could decide which D would bear all costs with no right of contribution (ability to recover from other parties who are about at equal fault as you). 1. A wrongdoer could not bring suit against another party whose wrong is greater than its own. 2. could decide which of two solvent had to bear the entirety of the loss. If one made only partial payment, could then sue the 2nd for the remainder. 3. Only option for D: to seek an indemnity from codefendant for the full amount of the loss. This only allows to recover from someone who is much more guilty than you were.
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a. Merryweather v Nixan (KB 1799): P sued two Ds for conversion. Ruling: if P recovers all of damages against one D, that D cannot recover a part from the other. CASE: Union Stock Yards v Chicago, Burlington & Quincy RR (US 1905): Faulty nut in switching car caused injury to Ps employee. Either P or D could easily have found and rectified problem. Employee recovers full amount from P who wants contribution from D. 1. Held: usual rule = one D cannot recover against another D, but exception is when one D is less culpable than the other b/c the second D is principally responsible for the damage. E.g. Gray v Boston Gas & Light (MA 1873): D attached telegraph cable to Ps chimney w/o Ps permission. Cable pulled chimney down and it injured passerby on the street. P can recover against D b/c parties were not in pari delicto (in equal fault). But in this case, the two companies were guilty of like neglect of duty, so exception doesnt apply. 2. For all joint tortfeasors, including those who did not act in concert, the traditional common law rule treated a release of one as a release of all, regardless of the amount of consideration received in exchange, unless the obtained an express reservation of rights from the settling . Recent cases have tended to reject the automatic release rule. Law presumes that only releasing 1 unless you go out of your way to say youre releasing more. a. When 1 settles the amount can recover from other is reduced by the proportionate fault share. can only recover the remaining proportion of share. (This can be unfair to unsophistcated s) Sometimes the amount is not reduced. (This can place a heavy burden on who dont settle, but not have that much fault). i. Suppose 2 equally culpable (damages = $100). First settles for $30 ($70). can only seek $50 from 2nd defendant. has to take $20 loss ($20 gain). Partial Indemnity: If you are 10% guilty and you have to pay 100%, then you sue the other guilty party for 90% Pro Rata: If there are 4 Ds, then each automatically liable for 25%. Each D has opportunity to disprove causation. Statute adopted a regime of pro rata liability that allowed each to recover from his cos any amount above his own share. (Statutory contribution wasnt available for intentional harms and did not displace any available indemnity actions.) 1. These changes to rule of contribution didnt change joint and several liabilty CASE: American Motorcycle Association v Superior Court (CA 1978): P, a minor, injured in motorcycle race organized by AMA. AMA sought to file cross-complaint against Ps parents for improper supervision of their minor son, and asked that its portion of judgment be reduced by the amount of the allocable negligence of the parents. 1. Held: Ct. allowed cross-claim against parents and upheld joint and several liability of joint tortfeasors(a) the simple feasibility of apportioning fault on a comparative negligence basis does not render an indivisible injury divisible for purposes of the joint and several liability rule. The mere relative culpability of one negligent D as compared to another does not in any way suggest that each Ds negligence is not a proximate cause of the entire indivisible injury. (b) A P may be completely free of liability, but if you abolish the joint and several doctrine, the P will have to bear burden
of damages if one of the Ds cant pay his proportionate share. (c) a concurrent tortfeasor may seek partial indemnity from another concurrent tortfeasor on a comparative fault basis.The allocation of the judgment among tortfeasors should be based on each persons % of fault viii. Some states have gotten rid of joint and several liability, turning it into several liability where can only recover share of fault of each . bears loss if one of the is insolvent. 1. Under AMA if one is insolvent the other would be responsible for the fault. 2. Evangelinos rule if party is insolvent and unable to bear their fair share of loss, the shortfall created by such insolvency should be apportioned equitably among the remaining culpable parties s and s. ix. In joint liability only regime, cant be held jointly liable unless their fault was above 50%. Otherwise, is only responsible for self. B. Vicarious Liability i. Vicarious liability is not personal liability. It is not based upon the Ds own fault, but only in situations in which he is held liable for the wrongs of another. ii. Respondeat superior: employers are jointly and severally liable along with the tortfeasor employee for the torts of employees committed within the scope of employment. 1. Applies to all torts: The doctrine applies to all torts, including intentional ones and those in which strict liability exists, provided that the tort occurred during the scope of the employees employment 2. From employers perspective vicarious liability is strict liability since employer is liable without personal fault 3. In theory, employer has right of indemnity against tortfeasor employee, but this is rarely exercised since employee is usually judgment proof. iii. Employer is liable even if the employee acts in a way the employer had expressly forbidden. iv. Scope of employment 1. Employee has to be acting under employers control 2. Servants conduct is within the scope of his employment if it is of the same general kind as authorized or expected, or incidental to such conduct, and 3. The Servant was acting within the authorized time and space limits. a. Master is still vicariously liable if servant acts outside scope of employment if employment aided him in accomplishing the tort. 4. Bright line rule: if you are on work time & on the premises of the worksite, you are under the liability of the employer. v. A person can be held responsible for acts by: 1. Self gives rise to liability based on your own negligence, independent of vicarious liability 2. Employees 3. Sometimes independent contractors 4. Borrowed servant 5. Partners in joint enterprise (sometime expanded to include people engaged in joint activity) vi. CASE: Bushey & Sons v. United States: Drunk seaman turned wheels on the drydock, Ship slid off the blocks and fell against the wall. Parts of drydock sank and the ship partially did. Drydock owner sued for compensation. Govt. objects on grounds that Laness acts were not w/in scope of his employment and so employer cant be held responsible.
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1. Held that there is vicarious liability b/c action was foreseeable and related to sailors duties. 2. Lisa M v. Henry Memorial Hospital technician assaulted in an exam room. No vicarious liability because what he did had nothing to do with the scope of employment even though his employment gave him access. Most courts hold that where an accident occurs where the employee is travelling from her home to work, she is not acting within the scope of her employment. If the employee is returning home after business, courts are divided. Frolic and detour: Even a detour or side-trip for personal purposes by an employee may be found within the scope of employment if the deviation was reasonably foreseeable. 1. Deviation had to be slight, or is usual, expected, tolerated 2. Employee is acting in part in service of employer 3. Frolic: usually longer period of time or far from employment Even if the act done was expressly forbidden by the employer, it will be "within the scope of employment" if done in furtherance of the employment.\ An intentional tort does not relieve the employer of liability if it relates to the employment. 1. But if the employee merely acts from personal motives, the employer will generally not be liable. 2. Intentional torts: where supervisors act is not directly related to his duties, but P can prove that employer was negligent in not stopping the conduct b/c it knew or should have known it was going on, this makes employer liable. Sometimes employers may be held responsible for negligent hiring or supervision, even for intentional wrong that fall outside the employees scope of employment. 1. Schechter v. Merchants Home Delivery, Inc, two workers hired by robed while installing a new washing machine in her house. Court held that action fell outside the course of employment, but allowed the to reach the jury on the theory of negligent hiring, on the issue whether failed into its duty to supervise, train and maintain its delivery personnel. a. Doesnt matter whether independent contractors or employee since work falls out of scope of employment. Sexual harassment is not conduct within the scope of employment, but employers are vicariously liable for the creation of a hostile environment by a superior with direct or successive higher authority over victim. Affirmative defenses available to employer: 1. employer that takes reasonable care to prevent and promptly correct any harassment 2. employee who unreasonably failed to take advantage of preventive or correctiveopportunities provided by employer Employees v. Independent Contractors 1. An employee is one who works subject to the close control of the person who has hired him. 2. An independent contractor, by contrast, although hired to produce a certain result, is not subject to the close control of the person doing the hiring. 3. 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, not just the general manner in which the work is turned out. a. Consider whether the person works for a lot of people, how compensation works, length of relationship, who provides tools
xiv. One who hires an independent contractor is not generally liable for the torts of that person. 1. Exceptions: a. First, if the employer is herself negligent in her own dealings with the independent contractor, this can give rise to employer liability. b. Second, there are some duties of care that are deemed so important that the person doing them will not be allowed to delegate them to anyone. i. Duty of lateral support, cant be delegated, blasting or cutting electrical conduits, water pipes or gasoline lines below ground. c. Finally, one who employs an independent contractor will also be liable where the work is such that, unless special precautions are taken, there will be a high degree of danger to others, the work by its nature poses a risk. i. R2T 427: Negligence as to danger inherent in the work: One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the K, is subject to liability for physical harm caused to such others by the contractors failure to take reasonable precautions against the danger. ii. This special rule of vicarious liability applies only to "peculiar risks," i.e., risks differing from commonly-encountered risks. iii. Employer only liable if the independent contractor is negligent. d. Petrovich v Share Health Plan (IL 1999): Decedent sued HMO and physician for malpractice. HMO claims it cant be held vicariously liable b/c the doctors with which it contracted were independent operators. Ct. allows liability to go to jury on doctrines of apparent and implied authority. i. Apparent Authority: a principal will be bound not only by the authority that it actually gives to another but also by the authority that it appears to give. Functions like estoppel. Where the principal creates the appearance of authority, court wont allow it to deny agency. 1. Elements to prove: a. Holding out by principalgiving appearance of authority b. Justifiable reliance by P on that apparent authority consistent with ordinary care and prudence. i. Where person has no choice but to enroll with HMO, the person justifiably relies on HMO to provide health care ii. Implied Authority: whether the alleged agent retains the right to control the manner of doing the work. Where a persons status as independent contractor is negated, liability may result under doctrine of respondeat superior. 1. When HMO controls doctors exercise of medical judgment and that control is negligent, the HMO is liable. xv. Borrowed servant doctrinewhen an employer hires a sub-contracting employee:
VII.
1. Traditional rule: as long as the servant is furthering the business of his general employer by serving another, there is no inference of a new relationship unless command has been surrendered, and surrender is not to be inferred from mere fact of its division 2. Modern rule: holds both the general and the special employer liable xvi. Joint enterprise: rule that holds each partner to a joint enterprise vicariously liable for the wrongs of another partner. 1. Four Requirements for joint enterprise: a. an agreement, express or implied, between the members; b. a common purpose to be carried out by the members; c. a common pecuniary interest in that purpose; d. and an equal right to a voice in the enterprise, i.e., an equal right of control. xvii. Justification for vicarious liability: 1. Deep pocketsloss-spreading, employer can better pay 2. Efficiencyemployer is superior risk bearer b/c of access to insurance, reduces chance of an uncompensated risk to P, and P knows someone in the company will be responsible for damage without having to know who. 3. Employer can go after employee where appropriate 4. Gives employer incentive to hire best, most competent employees 5. takes away risk of injured party being undercompensated Causation A. Introduction i. Once has established that the has engaged in some wrongful conduct, she must link that conduct to her harm. Requirement of causal linkage raises 2 issues, which must show to satisfy causation: 1. Cause in Factdid Ds negligent conduct cause Ps harm. 2. Proximate Causethe appropriate scope of Ds legal responsibility for negligence that has in fact caused harm. (Not really about cause at all, but about consequences we know what caused the harm, we want to know if D is liable.) ii. Cause in fact physical or scientific inquiry; the cause that, as a factual matter, contributed to Ps harm. 1. But for test: Ds conduct is a cause in fact if the s harm would not have occurred but for the conduct; conversely, Ds conduct is not a but for cause of the harm if the harm would have occurred without it. a. s act doesnt have to be sole but for cause b. Counter factual inquiry look back to figure out what woul have happened had that negligence or wrongful act never occurred. 2. Substantial factor test use this test in quirky cases wehre but for test gives the intuitively wrong answer. iii. Proximate cause question of whether it is a legal cause, appropriate within the scope of liability. 1. To pass substantial factor tests whether any of the intervening or concurrent human actions or natural events that occur after s conduct but before the s harm sever the causal connection between them. 2. Two approaches
a. Forward-looking asks whether the chain of events that in fact occurred was sufficiently forseeable, natural or probable at the outset for the to be held liable for the harm. Judgment is made from the standpoint of the at the time the tortious act was committed, and denies recovery for those harms that are not within the risk. b. Starts with the injury and works back toward the wrongful action of the , seeking to determine whether any act of a 3rd party or the , or any natural event, has severed the causal connection between the harm and the s wrongful conduct. B. Cause in Fact i. CASE: NY Central RR v Grimstad (2nd Cir 1920): Barge was hit by another ship, decedent falls into water and cant swim. Wife goes to get a small line but husband dies. Was negligent in not equipping the barge w/ life-preservers? Could life preservers have saved decedent from drowning even if they were there? 1. In order to hold liable there must be something to show that the s injury would not have occurred without negligence. 2. Here, no evidence to show that s negligence caused decedents death (that if life preserver had been available he would have made it given he couldnt swim). 3. Normally has burden to show causation, but duty shifts to in absence of evidence. 4. Case: Haft v. Lone Palm: Drowning in swimming pool, and there was a violation of a statute requiring a lifeguard or a sign. Court focuses on absence of lifeguard. It would frustrate the purpose of the legislation to allow the D to just focus on the absence of a sign. You could imagine situations where there would be other people around and it wasnt clear that one of them wasnt a lifeguard. Dont require Ps to establish causation to a great certainty, but rather place burden on D who had violated statute in the first place, to show that its negligence was not the cause. ii. CASE: Zuchowicz v United States (2nd Cir 1998): P had prescription filled. Prescription erroneously told her to take twice the maximum dosage. She immediately started having bad side effects, ended up being diagnosed with primary pulmonary hypertension and dying. Prior to taking the drug, she was healthy. Expert testified that the drug side effects were same as those of PPH and that he thought the overdose caused the PPH. 1. Held: If (a) D was deemed to have acted wrongfully b/c the act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did occur, this is enough to support a finding that the negligence caused the harm. The D then has to show evidence denying the but for cause. iii. CASE: General Electric v Joiner (US 1997): P worked in proximity to dielectric fluids that turned out to have PCBs and dioxins in them. P got lung cancerhe had been a smoker, but argued that the PCB exposure hastened the onset of cancer. Ps experts alluded to inconclusive research. Trial judge disallowed their evidence, saying it was too tenuous. Issue: whether judge can decide to admit expert testimony. 1. Held: judge is the gatekeeper to ensure that scientific testimony is both relevant and reliable (Daubert standard). Abuse of discretion is the proper standard of review a district courts evidentiary rulings. 2. Concurrence/dissent: Not unscientific for experienced professionals to arrive at a conclusion by weighing all available scientific evidence.
3. Daubert v Merrell Dow (9th Cir 1995): P assembled recognized experts to testify that a drug caused birth defects by reinterpreting research that said it didnt. Daubert overturned Frye v United States (DC Cir 1923) standard which allowed as admissible only expert testimony generally accepted as reliable by the scientific community. Said focus should not be on general acceptance but on reliability and relevance. 4. Some criticize Frye because it may exclude cutting-edge but reliable evidence whereas Daubert stresses a more liberal and flexible approach to admission of scientific testimony. 5. Lowered standard about who can be an expert, but cant be just anyone: court has to ask if the expert is qualified. An unclear standard. 6. Want judge to serve as gatekeepers because this is complicated info. Want to filter it to decrease the errors made by jurors. 7. Kumho Tire Co v Carmichael (US 1999) expanded gatekeeper role to technical evidence. iv. Herskovits v Group Health Cooperative (WA 1983): D negligent in not diagnosing Ps cancer on first visit; b/c of this, Ps chance of short-term survival decreased 14%, but P still would have had less than 50% chance of survival anyway. Issue: is such a decrease in chance of survival enough to go to a jury. 1. Held: yes, P doesnt have to show there was better than a 51% chance if D had been negligent. A person who negligently renders aid and consequently increases the risk of harm to those he is trying to assist is liable for any physical damages he causes. Here the increased risk of harm (the decrease in decedents chance of survival) and the decedents death is sufficient to hold Group Health responsible. Damages limited to award of premature death (14% of expected lifetime earnings, etc.). Full amount of emotional distress. 2. Concurrence: Causation is not an all or nothing proposition. What caused the loss is a separate question from what the nature and extent of the loss are. Allow recovery for the loss of the chance of cure even though the chance was not better than even. 3. Dissent: allowing a lower standard would be too loose. P in a malpractice case must prove that Ds negligence, in probability, caused the death. 4. The Lost Chance doctrine in medical malpractice actions refers to the injury sustained by a patient whose medical providers negligently deprived the patient of a chance to survive or recover from a health problem, or where the malpractice lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the patient. It allows a plaintiff to recover in proportion to her chance of survival prior to the allegedly negligent treatment. To prove loss of chance, the plaintiff must show: that the decedent had in fact been deprived of a chance for successful treatment and that the decreased chance for successful treatment more likely than not resulted from the defendant's negligence. v. There are some instances where the but for test doesnt give the right answer or give an answer we dont want. Problem scenarios in cause in factexceptions to the use of the but for test: 1. Overdetermined causation: Where two Ds act negligently and either ones act would have sufficed to have caused Ps injury. (Fires) a. Apply substantial factor test
b. Kingston v Chicago & NW Ry.: s property destroyed by 2 fires. One from NE caused by . One from NW caused by unknown origin. Both fires proximate cause of damage. Either fire could have caused destruction by itself. Should be liable since we dont know who the second tortfeasor is? doesnt have burden of specifically identifying the origin of both fires in order to recover damages. i. cannot escape liability on grounds that damage would have happened without his fire b/c impossible to apportion damage and to permit each of two wrongdoers to plead the wrong of the other as a defense to his own wrongdoing would permit both wrongdoers to escape and penalize the innocent party who has been damaged by their wrongful acts. ii. Granting that the union of that fire with another of natural origin, or with another of much greater proportions, is available as a defense, the burden is on the to show that by reason of such union with a fire of such character the fire set by him was not the proximate cause of damage. iii. If fire and fire by natural cause converge to destroy property and either could have caused harm, no liability. Lucky ! iv. Sequential fires 1st is natural fire, 2nd is negligent fire; destruction is already done, 2nd is superfluous no liability 1. 2 sequentially negligent fires. Liability for 1st not 2nd 2. 1st neg; 2nd natural unfortunate that you got their first, liability v. has burden to prove which caused the injury. If they cant both are liable b/c alternative is no recovery for . 2. Alternative causation: Where two or more Ds simultaneously commit the same act, one of which caused Ps injury, but P cannot ascertain which one. (bullets) a. Ds share damages pro rata b. Burden of proof shifts to each D to show that he did not cause the harm focal point liability c. Summers v Tice (CA 1948) D1 and D2 each fired a bullet at the same time, one bullet hit P, and it is not clear from which gun it came. Both Ds held jointly and severally liable on theory of alternative liability. A has 50% probability of doing harm, and B has 50% probability of doing harm (drugs/toxicity) i. The court said the two were not in concert, but nonetheless liable because they are both wrongdoers and were both negligent. ii. R2T 433B(3): Alternative Liability: Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the P only by one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. The theory of alternative liability dictates that tortfeasors who act in concert will be held jointly and severally liable for the Ps injury unless the tortfeasors are able to prove that they have not caused the harm.
3. Marketshare liability: not able to tell who cause s injury, but caused a universal harm of which was a part. a. Court reluctant to extend beyond DES (even when can show they didnt do it, they can still be held liable as part of market that collectively caused s harm b. Levels of causation that must be established in toxic torts: i. substance sourcesubstance for which D is responsible caused his harm ii. exposure causationhe was in fact exposed to the substance is a way that caused the disease (often a signature disease) c. Criteria laid out in Sindell v. Abbott (Cal. 1980): i. All defendants named in the suit are potential tortfeasors (that is, they did produce the harmful product at issue) ii. The product involved is fungible (substitutes are available) iii. The plaintiff cannot identify which defendant produced the fungible product which harmed her in particular, through no fault of her own iv. A substantial share of the manufacturers who produced the product during the relevant time period are named as defendants in the action d. Skipworth v Lead Industries Assoc (PA 1997): P sued all manufacturers of lead paint for lead poisoning. P cant identify whose paint it was, when it was applied in the house, etc. P sued on theory of market share liability, which court refused to apply in products liability action. But PA requires P to identify exact D. i. Market share liability is a bad idea here b/c (1) the possible time period is too long (100 years), (2) it is impossible to determine when the poison paint was applied, (3) lead paint is not fungible. Thus MSL would distort liability. vi. Settings with multiple with but for causation 1. in concert working in team to cause harm together, joint and several liability usually, but for tortious teamwork harm wouldnt happened 2. Independent actors combining to create harm without the negligence of both parties acting negligently, then harm would not occur (two cars that crash into each other and hurt another party) joint and several liability, both necessary to cause accident 3. Two actors acting independently and cause different proportions of harm not joint and several liability, because causation can be broken apart. 4. Person harmed by a cricket ball hitting head and leg injury due to a squib exploding C. Proximate Cause: the appropriate scope of liability for harm i. Introduction 1. DirectnessVosburg v Putney; liable for the harms caused as a direct result of neg. 2. Foreseeabilitynot liable for unforeseeable harms a. Duty (aka foreseeable plaintiff): If there is no duty, not liable. b. Harm within the risk: as D, liable for harms within the risk of your tortious conduct. ii. Physical Injury 1. Natural and Probable
a. CASE: Ryan v. New York Central R.R. (Natural and probable) , by careless management of their engines set fire to their woodshed. s house situated at a distance of 130 feet from the shed caught fire. Is the owner of the first building liable to the second owner for the damage sustained by such burning? How far do you go in attributing the harm to all injured parties? i. Court holds that the immediate result was the destruction of the s building and any damage beyond that is remote. Therefore, the is prohibited from recovery from . The damage done to the s building is remote because it resulted from a concurrence of accidental circumstance not upon any necessity of a further communication of the fire. It was not a result of the initial firing. ii. Court reasons it would be destructive to civilization to make men liable for his own loss by fire and the security of neighbors also. By living in a commercial location, everyone risks the hazards of his neighbors conduct. Each person can purchase insurance against these hazards to obtain security against loss is cheapest way to handle this rather than litigation. iii. Jones v. Boyce - problem of intervening action also arises whenever sudden emergency requires s immediate action . allowed to recover when he broke leg after jumping from s coach after it had gotten out of control. has right of action to recover for physical injury and the mental disorder naturally incident to its occurrence if s conduct puts under reasonable apprehension of personal physical injury and in a reasonable attempt to escape, sustains physical injury. (If acts in good faith to minimize the risk of loss from a dangerous situation of the s making , then those action do not sever the causal connection. Some courts have invoked a foresight limitation to bar recovery. Both the and must be able to foresee the danger. 2. Coincidence: type of risk being created by s negligence. Harm suffers is harm youd expect a. Case: Berry v. Sugar Notch Borough: was driving above speed limit when a tree fell in a windstorm causing s injury. Court allows to recover. i. s speeding does not increase the risk of being struck from above. argues that the excess speed meant that the car was under the tree when it blew down; court refuses theis argument as coincidence. The speeding only becomes causally relevant when is unable to control the vehicle after impact because of excessive speed, when any damage attributable solely to the original impact is allowed. The decision might have been different if the tree had fallen before the car reached it, and the excessive speed disallowed moving out of the trees way. b. Central of Georgia Ry. v Price (Ga. 1898) rejected defendants liability for missing the plaintiffs train stop and escorting her to a hotel where the kerosene lamp exploded. Stated that there was the interposition of a separate, independent agency, negligence of hotel, which the railway company neither owned nor controlled.
i. Another intervening act, risk realized is not risk foreseen by leaving him at a railroad station. Too far removed, risk of harm is different than the injury that actually happened. Risk of passenger being let out is the risk that they will be victimized by criminals, distinguishing fact between Price and Hines c. Hines v Garrett (Va. 1921) found defendant liable for driving a mile past the plaintiffs train stop and requiring her to walk through an unsettled area where she was raped. Whenever a carrier has reason to anticipate the danger of an assault upon one of its passengers, it rests under the duty of protecting such passenger against the same. 3. Third Party Interveners: a. Introduction: i. There can be multiple wrongdoers who are proximate causes of the harm. If 2nd wrongdoers conduct intervenes after Ds act is complete. This new cause would be a superseding cause, and D would not be liable. ii. Dependent causation: each of 2 successive acts is sufficient to harm P, but P is exposed to the 2nd cause only b/c of the prior negligence of the 1st. The 2nd cause is dependent on the first, so that 2nd D is usually liable only for the additional damages caused by his action. b. CASE: Brower v NY Central & HRR (NJ 1918): and collided killing the s horse, destroying the wagon and empty barrels and a keg of cider were scattered and stolen. s driven shaken up and s railroad detectives protected train from 3rd thieves. did nothing to protect s property. i. It holds that a 3rd persons act intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the 1st wrongdoer if such act ought have been foreseen. The thieves act didnt intervene between s negligence and the s loss. The two causes were simultaneous and concurrent. ii. Dissent: dont confound proximate cause with opportunity for crime. The collision gave thieves and opportunity which they took advantage of, but proximate cause requires unbroken continuity between cause and effect, which is broken when an independent criminal actor intervenes. iii. Maliciousness usually breaks the causal chain (b/c relates to likelihood): Watson: Recently discharged employee throws a match into a puddle of gas. Rule: If negligent and unforeseen, then liability. If he acted maliciously, that was unforeseeable, so not neg. The degree of likelihood is key. c. Rescuers i. Wagner v International Ry (NY 1921): Ps cousin falls out of train, P goes searching for his body and is injured. Is train liable? Held: danger invites rescue, Ps dangerous rescue does not necessarily eliminate Ds liability. D negligently creates a risk of harm A but harm B that is not foreseeable results to P.
1. is third party in this case. Foreseeable that such a thing would happen so liability. A reasonable rescuer who gets hurt in rescue attempt can still get damages from person who created the original rescue situation. 2. Rescue negates contributory negligence and assumption of risk, as long as the attempt is not rash or reckless. To achieve rescuer status one must demonstrate: a. was negligent to person rescued and such negligence cause the peril or appearance of peril to the person rescued, b. The peril or appearance of peril was imminent c. A reasonably prudent person would have concluded peril or appearance of peril existed d. Rescuer acted with reasonable care in effectuating rescue. 4. Directness Testex post: trace the harm back looking for breaks in the chain of causation a. CASE: In re Polemis & Furness, Withy & Co. (KB 1921): Appellants chartered a vessel from respondents to carry cargo including gas. While unloading, plank fell into hold, gas exploded, destroying ship. Falling plank found to be cause of the fire. Falling plank was negligence, so appellant is liable for the consequences of the negligence, and since plank caused fire, for the fire. i. Polemis rule: what one can foresee is important and may be decisive in determining negligence, but it is not decisive in determining proximate cause. If act is negligent then guilty party is liable for all the direct consequences of the act, foreseeable or not. Natural and proximate = consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act. Basically foreseeable that some harm, no matter how freakish, would result from the neg. dropping of the plank. Therefore, liable for unforeseeable harm to a foreseeable P. 5. Foreseeability Test a. Case: Palsgraf v. Long Island R.R 162 N.E. 99 (N.Y. 1928): hit by weight while standing down train platform after man dropped a package carrying explosives dropped package and it went off. i. Rule: There is no duty to people whom you couldnt foresee hurting. (aka foreseeable plaintiff rule) Liable for unforeseeable harms to a foreseeable P, if they are direct, but not to unforeseeable plaintiffs. In Palsgraf was negligent to passenger with package and could foresee harm coming to him, but Mrs. Palsgraf, standing at the other end of the platform, was not a foreseeable plaintiff. (This is forward-looking approach.) ii. Under Polemis rule, Paslgraf would be able to recover. Andrews dissent says its not about who you expect to injure, but who you in
fact injure. He suggests a substantial factors test. Conduct is proximate cause if it was a substantial factor in producing the harm. b. Case: Marshall v. Nugent: s truck cut corner on an icy highway, forcing s son-in-law off the road. The truck driver offered to help pull Harrimans car back onto the highway and suggest the go around the corner to the south. As the was getting into position, the saw his way blocked by the oil truck on one side of the road and the two men on the other. Pulled car over to the left side. It skidded, hit a plank guard fence and severly injured . i. Rule: Harm within the Risk--You are liable for the consequences of foreseeable risks, but not for the consequences of unforeseeable risks. This is the type of harm the youd expect to result from the s negligence. The risk resulting from the oil companys neg. is any sort of collision accident-related harm. Liable for foreseeable harms even when they happen in an unforeseeable manner. 1. Also, if harm within the risk occurs due to unexpected cause or neg. of a third party, D will still be liable. (Phone booth too close to the road, so D liable even though it was a drunk driver that hit it.) D not liable if he violated a statute that was not meant to protect against the type of harm that P suffered. 6. Reasonable Foreseability a. Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Col, Ltd. (Wagon Mound No. 1): spills oil which drifts under a wharf. Oil company told it would be okay to continue welding. resumes welding above, and then the oil catches fire and burns the wharf. i. Polemis doesnt govern, because the harm that resulted was not a direct resultthere were intervening causes like the decision to resume welding, the cotton rag that caught fire. The decision to resume welding was reasonable, so for both parties it wasnt foreseeable. ii. Palsgraf Test (no help to D): Wharf owner is a foreseeable P b/c hes close to the oil spill (if nothing else he would have to clean up the muck). iii. Harm within the risk Test: Foreseeable risk doesnt include fire. iv. New Test ask whether the injury is the result of conduct that could be foreseen by the negligence. The harm realized needs to stem from the foreseeable risk. The court ruled that people must be liable only for the probable consequences of their actions. b. CASE: Virden v. Betts and Beer Construction Company - was asked to reinstall an angle iron that had fallen from ceiling. fell from top of ladder while doing job and sustained severe injuries. sued , the contractors who had installed the ceiling. i. The court found that s injury doesnt fall with the scope of probable risk created by s failure to install ceiling properly. Fall was neither reasonably foreseeable nor probable consequence of s negligence. assumed risk by getting upon ladder
c. CASE: Herbert v. Enos - received an electric shock while lawfully on the s lawn to water s flowers. claimed that s faulty repairs of a toilet caused it to overflow. The flooding water reacted with the homes electrical system, creating an electric current that shocked and injured Herbert when he touched the outside water faucet. i. Court applied a foreseeability test. Summary judgment is still appropriate if has no reasonable expectation of proving that the injury to the was a foreseeable result of the s negligent conduct. s injuries were the type of unforeseeable consequences of the type of unforeseeable accident for which we do not hold the responsible in tort. Rejects directness argument. iii. Emotional Distress 1. CASE: Mitchell v. Rochester Railway - As was boarding s train, s horse car came close to the so that she stood between the horses heads when they were stopped. She said the fright cause her to have a miscarriage and consequent illness a. cant recover because there is no immediate personal injury. A person cannot recover from injuries that are the direct consequences of fright. Parasitic rule: idea that emotional harms can only be recovered when they attach to a physical harm. Idea if we let them stand on their own, this will open the floodgates of litigation. Premise that people will be more legitimate if they actual suffer a harm. i. Maybe under-inclusive. Those with legitimate injury cant recover and those who suffer physical injury might fake it. b. Dulieu v White & Sons (KB 1901)P gave birth prematurely after almost being run over by Ds horses while she was working behind the counter of her husbands public house. Ct rejected requirement of physical injury, and damage can be proximate if it follows as direct and natural consequence of the injury. Problem: what is zone of danger? Behind, next to, in front of harm? How close? 1. CASE: Dillon v. Legg - Child struck by driver while crossing the street. Three law suits: Decedents mother and sister sued for wrongful death, mother sued for nervous shock and serious mental and physical pain suffered by s negligence. Sister sued for emotional and physical suffering . Mother close to daughter but out of zone of danger. Sister in zone of danger. a. Amaya court held that you cant recover unless youre in a zone of danger, close enough where you think you could be harmed. The court holds that the could reasonably foresee that a mother standing near the scene who watched her daughters death would suffer emotional pain. Court develops three-prong test to determine whether owes a duty to : (1) whether plaintiff was near the scene, (2) whether the shock resulted from observance of the accident, and (3) whether the plaintiff and the victim were closely related. Look at these factor together to decide and duty and determine liability b. Burkes dissent says its not clear where to draw the line in each case, making life more difficult for trial courts. VIII. Affirmative Duties a. Introduction
i. Deals with nonfeasance (failure to act) as opposed to misfeasance (misdeeds). 1. In misfeasance cases, the basic duty is for all individuals to abstain from hurting others, strangers and people has relationship with. 2. For cases of nonfeasance, care refers to taking precautions to avoid contact, to rendering material aid or support to others. ii. Duty of affirmative care is divided into two halves: 1. Duty to strangers 2. Duty to individuals with whom the has a special relationship a. Duties to landowners and occupiers owe to persons who enter their premises. Distinction between: i. Social guests (licensees) lower duty, merely to warn of known latent defects ii. Business visitors (invitees) take reasonable care to both discover danger and to keep the premises safe. b. Gratuitous undertakings by the to benefit or assist the . In some snese contractual as the rest upon the s promise, express or implied, to the c. Whenever the owes a duty to prevent harm to the s person or property because the stands in some sort of special relationship either with the or with the person who threatens harm to the . b. Duty to Rescue i. CASE: Buch v. Armory Manufacturing Co. - trespassed in s mill, where weaving machinery was in operation. An overseer instructed him to leave, but he didnt. Although this was a clearly hazardous situation, the overseer didnt put the boy out and he injured his hand while his brother taught him how to use the machine. 1. have no duty to protect the minor boy against the dangers he faces after committing a trespass. wasnt required to warn against hidden or secret danger arising from the condition of the premises or to protect him against any injury that may arise from his trespass. This is case where a child exposes his or herself to open and visible dangers which he or she is unable to appreciate risk. ii. CASE: Hurley v. Eddingfield - Appellee refused to render aid to the appellants intestate who suffered violent illness. No other physician could be procured. The doctor had no reason why he refused to provide treatment. 1. Physician has the right to choose whether he will engage in practice at all or on other terms that he may choose to accept. a. Patient could try to bargain to get the doctor to go save the decedent 2. Yania v. Bigan P and D were strip miners. P visits Ds mines to talk business. D cajoled P into jumping into cut filled with water. P drowned D did nothing. D not liable b/c P knew the danger and as an adult was capable of withstanding verbal taunting. iii. CASE: Montgomery v. National Convoy & Trucking Co.: Ds trucks stalled on icy road without any negligence, blocking the road. Ps car came over crest of hill and was unable to stop b/c of ice. D failed to place warning at top of hill even though they knew no car would be able to stop once it was in position to see the roadblock. 1. Held: Ds clearly owed duty to other highway users in such a way as to prevent harm because they created the risk, even though D wasnt negligent. Putting flares around
the trucks was not sufficient to warn. No duty to help, but required to not do a harm to someone 2. Zelenko v Gimbel Bros: D moves P from public to private place, doesnt provide medical care, which P might have gotten if she had remained in the public place. Rule: if a D undertakes a task, even if under no duty to undertake it, D must not omit to do what an ordinary man would do in performing the task. 3. Soldano v ODaniels: V was in imminent peril of being shot, when another person ran across the street to Ds bar and asked to use the phone to call the police. D refused, V was killed. Held: D, though not required to aid himself, was required to allow the police to be called. c. Duties of Owners and Occupiers i. CASE: Robert Addie & Sons (Colleries), Ltd. v. Dumbreck: Coal ash haulage system, dangerous and not well protected from public including children, but D warned public to stay away. Small child killed in wheel mechanism. 1. Child held to be trespasser, so s had no duty to prevent the accident. Proprietor has no duty to fence his land under sanction that if he doesnt the public become licensees. 2. Invitees s owe highest of care, must take reasonable care that premises are safe. a. Business - someone who goes on land for some purpose in which he and the proprietor have a joint interest. b. Public - the place is held open to the public for a particular purpose, not going to discriminate in way that you socially decide wholl be a guest . open to all 3. Licensees Occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or allow a concealed danger to exist upon the premises, which is not apparent to the visitor but is known to the occupier a. someone whom the proprietor has not invited, but has either expressly permitted him to use his lands or knowledge of his presence more or less habitual, he has then given permission or shown no further action to prevent him from frequenting the lands i. Social guest (people who in our colloquial understanding is invited ii. People who come on your land, before you tell them to get off (canvassers, Jehovahs witnesses) 4. Trespasser occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger (no duty to warn). Trespasser enters at his own risk. Occupier is only liable when injury is due to some willful act involve deliberate intention to do harm or recklessness (i.e. sets a trap). a. Trespasser someone who enters without consent/privilege of landowner or possessor of land, someone who doesnt have privilege. Someone who if the landowner knew was on the land, the landowner would make it known to them that their presence wasnt welcome. 5. Excelsior Wire Rope v. Callan (A.C. 1930): two children had hands crushed in haulage mechanism. Held to be trespassers, but ct found D liable. Distinguished from Addie b/c Ds employees acted in reckless disregard of Ps welfare. 6. RST 339 says attractive nuisance only applies to artificial condition on the land and takes no position on whether it should apply to natural conditions. RST possessor should have known or have reason to know: that kids are likely to trespass and that
conditions creates risk of death or harm, that kids cant discover the condition or appreciate the risk, and burden of eliminating risk is less than risk to children. Move from three categories where legal consequence follows, to a hand formula-type negligence sort of inquiry. ii. Rowland v Christian (CA 1968): D invited P to her house, porcelain handle of faucet broke severing nerves and tendons in Ps hand. D knew of the crack, but didnt warn D of danger. Danger was not obvious. 1. Ct decides to abandon 3 classifications of visitors to land b/c they are not reasonable and its difficult to classify, and to apply general liability principles of duty owed not to harm others. The court ruled that the was negligent for not warning the when she was aware of the defective and dangerous faucet and the high probability of harm to the when he used the bathroom. 2. Counterargument: This is a freak accident. She was negligent in not warning him. Didnt fulfill duty of care but who would have foreseen that this would have been a consequence. This is not the kind of outcome we would expect from a broken faucet. You wouldnt expect severe injury to his hand. She could argue that this wasnt a hidden danger. The nature of the object itself should have warned him. She shouldnt need to warn him. a. Burke says classification system provided stability and predictability. Legislatures job to modify tort liability. 3. TYPICAL TORTS POLICY ARGUMENTS a. Bring stability lacks flexibility b. Flexibility (connect to modern notions) - risks being arbitrary c. Potential for Unlimited liability courts can distinguish meritorious cases from unmeritorious ones d. Job for Legislature (better able, have peoples vote, institutional competence, may not respond in way it should) court (responds more rapidly, fills in gaps left by legislature d. Gratuitous Undertakings issue is whether or not D assumed duty of care i. Coggs v Bernard (KB 1703): D moved casks of brandy owned by P and in process some split open a brandy was lost. D moved for arrest of judgment b/c there was no consideration and he was not doing this as his job. Judgment for P b/c D had begun to act. Any man that undertakes to carry goods is liable to an action regardless of his relationship to the if through his neglect the goods are lost or damaged. The owners trusting him with the goods is sufficient consideration. 1. Thorne v Deas (NY 1809): D & P are co-owners of a ship. D promises gratuitously to insure the ship, P sets sail. D fails to insure, ship is wrecked. D is not liable in action for non-feasance b/c promise was unsupported by consideration This case can be distinguished from Coggs because the didnt do anything to undertake getting the insurance (nudum pactum) ii. Erie RR v Stewart (6th Cir 1930): P = passenger in a truck struck by train at crossing where guard was not doing his duty in giving warning. Held: Where custom established usage, RR had created a positive duty for itself by establishing a standard of due care upon which the relied (concurrence says it doesnt matter if a particular has knowledge of the custom, the duty is still owed.). Once established the duty cant be discontinued without warning.
iii. Marsalis v La Salle (La App 1957): P scratched by Ds cat in Ds store while P was shop[ing there. P asked D to keep cat locked up to be sure it didnt have rabies. D agreed, but after 5 days, cat escaped. So P was vaccinated for rabies, P allergic to treatment. Rule: one who voluntarily undertakes to care for, or to afford relief or assistance to an ill, injured, or helpless person is under a legal duty to use reasonable care and prudence in what he does. Held: P relied upon D to fulfill a voluntary duty, D obligated to use reasonable care; D did not take any precautions to keep cat locked up and is liable for Ps damages. 1. is an invitee. owes the utmost duty of care. Why is this not the end of the case? The cat did not have violent or aggressive tendencies so owner not going to be negligent. Animals usually given one free bite before owner will be found negligent. 2. R2T 323: Negligent performance of undertaking to render services: One who undertakes, gratuitously or for consideration, to render service to another which he should recognize as necessary for the protection of the others person or things, 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 increases the risk of such harm, or b. the harm is suffered b/c of the others reliance upon the undertaking. iv. Moch Co. v. Rensselaer Water Co. (NY 1928): D contracted with city of Rensselaer to furnish city with water. While K was in effect, a building caught fire, spread to and destroyed Ps warehouse. D failed to provide sufficient water to the hydrants to extinguish the fire. Point: city paid for the water, P only contributed in the form of taxes. City had the K with the water company. City had no legal duty to protect citizens from fire. Extending Ds liability to those not in privity of K means Ds liability is being increased without its compensation being increased. 1. RTT:LPH 42 imposes liability for gratuitous undertakings when a failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking, or harm is suffered by reliance upon the undertaking. (have to show reliance or increase of risk of harm, almost as if saying you can just show negligence) e. Special Relationships i. Restatement (Second) of Torts 315. General Principle: There is no duty so to control the conduct of a 3rd person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the 3rd person which imposes a duty upon the actor to control the 3rd persons conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection. ii. Covers all cases in which D is put in charge of PD is assuming some charge or protective role over P directly or over the premises P uses. 1. Carrier-passenger: utmost care, but doesnt have to be armed guards 2. Innkeeper-guest 3. Landowner-invitee [see below]: shopping malls, hotels a. Business and invitee of business: reasonable care to discover dangers and to warn or protect b. Example: a landowner whose invitee becomes ill may have a duty to summon aid or at least provide shelter until invitee improves. 4. Custodian-wardschools, hospitals, universities a. Example: operator of day-care center has duty to use reasonable care to obtain medical care for ill or injured child in his care.
iii. iv.
v.
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5. Employer-employee 6. Parent-minor child 7. Doctor patient 8. Courts may find other relationships: social companions, landlord-tenant Level of care= reasonable care under the circumstances (negligence standard) Contingencies against which D must guard: 1. D must take reasonable steps to free premises under his control from latent hazards 2. D must inspect and repair and correct dangers quickly when brought to his attention 3. D must maintain facilities to help rescue P in case danger arises 4. Newer standard: duty arises when there is a probable and predictable danger a. Older rule: the first event of its kind is not foreseeable, so there is no liability. Often replaced with a totality of the circumstances approach, which is giving way to requirement that three be a high degree of foreseeability of the crime to indicate that D should be taking precautions. Weirum v. RKO General Inc. (Cal 1975): Disk jockey promotional stunt caused listeners to drive recklessly to win prize. Special imposition of duty under theory that you are liable for actions of 3rd parties if you inspire them to act in dangerous ways. Kline v 1500 Massachussetts Ave Apartment Corp (DC Cir 1970): tenant robbed and assaulted in hallway of her apt building. When she first moved in provided a variety of security services, but stopped over time. Robberies became common. Landlord has duty of reasonable care in providing safe building b/c he is The best risk avoider and only landlord has power to take action in common areas. Doctrine: tenants ability to provide for own safety is limited b/c tenant has submitted to partial control of landlord, the duty is imposed on the one with control and thus power to act to take reasonable precautions to protect the tenant. Provided that the violence is 1) foreseeable, and 2) not by an employee of the landlord 1. MacKinnon argued that the did not negate that it was a tenant, guest, or person properly on the property who committed the offense, and therefore failed to prove that the negligence was the proximate cause of the assault. MacKinnon argued that the plaintiff could not have expected a 1959 standard of protection in 1966, especially with a month- to-month lease. 2. Let market determine what kind of security she wanted. By imposing this duty, court requires everyone to purchase a certain degree of security. Cross-subsidy - People who dont want higher security have to pay for people who want it but dont want to pay for it. Everyone is going to have to pay for it. when landlords raise rent and when they do people like Ms. Kline wont be able to afford it and will have to move somewhere else. The very people we are trying to help were going to hurt when theres a mandatory term of contract. 3. Posner held in Shadday v. Omni Hotels Management Corp. that a hotel didnt violate any duty of care because it was highly unlikely that a male guest would rape a female guest whom he accosted in an elevator. (Court views these claims more skeptically when the tenant has some responsibility in bringing about the harm.)
Buyers:
Losers Pay higher price than would prefer (pay lower price and not get insurance)
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Do not buy but otherwise would (as a result of increase in price) vii. Tarasoff v Regents of Univ of California (CA 1976): Poddar killed Tarasoff, 2 months before he had told his psychologist he planned to kill her. Psychologist had police detain him but he seemed sane. No further action taken to detain Poddar. No one warned Tarasoff. Held: Once a therapist determines, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. (interest in patient privacy is overcome by public interest in safety from violent assault.) 1. In Merchants Nat. Bank & Trust Co. of Fargo requirement to warn when someone with violent proclivities is given to another who will have custody. 2. Rule: D has duty to warn against potential foreseeable harm posed by 3rd party if he has a relationship with the 3rd person or with the person to be protected. 3. Courts try to limit circumstances to those where theres an identified victim and the harm is imminent. Traditional Strict Liability a. Animals i. Gehrts v. Batteen: had her dog restrained in the back of her truck, the asked if she could pet him and the allowed her to do so. The dog bit causing injuries requiring extensive medical treatment. 1. The court held that owners of domesticated animals may be held liable for harm caused by their pet if the owner knows or has reason to know that the animal has abnormally dangerous propensities. 2. Wild animal strict liability 3. Domesticated animal: dangerous propensity? a. If yes, then strict liability regardless of amount of care exercised by owner. b. If no, then negligence regime. Liability if negligent. 4. Distress damage feasant is the taking of chattels, whether animate or inanimate, that are doing damage to or encumbering land, or depasturing chattels and the retaining of them by way of security until compensation is paid. ii. Fencing out v. Fencing in 1. The American West used a fencing out rule because the federal government owned nearly all the land, and a fencing in rule would have eliminated grazing. But now as Western land is being used more intensively, the system is shifting to the closed range fencing in system. Under a closed-range rule farmers can participate in a voluntary agreement to allow some ranchers limited grazing rights without opening the land up to all ranchers. Closed-range system encourages more specialized land uses. a. Animals cant trespass because they cant form intent. b. Ultrahazardous Activities
Winners Receive insurance they otherwise would not receive (especially the injured without receiving compensation they otherwise would not Buy but otherwise would not
i. Consider following factors to decide if activity is abnormally dangerous (RST 520) 1. existence of a high degree of risk of some harm to person, land or chattels of another 2. likelihood that the harm that results from it will be great 3. inability to eliminate the risk by the exercise of reasonable care a. when safety cannot be attained by the exercise of due care there is reason to regard the danger as an abnormal one 4. extent to which the activity is not a matter of common usage (undesirable activity?) a. e.g. driving is hazardous but so common that it doesnt meet this criterion 5. inappropriateness of the activity to the place where it is carried on 6. extent to which its value to the community is outweighed by its dangerous attributes a. if the utility of carrying on the activity doesnt justify the risk it creates, it may be negligent even to do it b. D does not have to get a monetary benefit from the activity c. If the value to the community is great, the risk will not be considered abnormal i. Courts disagree about importance of this factor b/c utility is a subjective measure ii. RTT: LPH 20. 1. An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the 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 is not one of common usage iii. CASE: Spano v Perini Corp: Ps garage and car damaged by Ds blasting. 1. Court held one who engages in blasting must assume responsibility and be liable without fault for any injury he causes to neighboring property. The court overruled Booth v. Rome which distinguished physical invasions and damages setting the air in motion: if physical debris, strict liability; if no, then negligence regime governs. 2. Rationale: D is best risk bearer, risk avoider and absolute liability will encourage blasters to find alternative methods iv. CASE:Indiana Harbor Belt RR v American Cyanamid Co: D shipped hazardous chemical into train car (owned by Missouri Pacific RR), which was carried to Ps switching yard, where it was found to be leaking. P sues D in strict liability to recover cost of clean-up. Ct refuses to apply strict liability because 6 RST 520 criteria not met (see above). It wouldnt necessarily be safer to route train away from metropolitan areas; it is possible to be safe using reasonable care. [Epstein: Posner got it wrong, case of negligence per se; Posner doesnt respect residents property rights. Posner: Coasean view: tries to figure out terms of agreement in Coasean world to determine tort rule to follow to get people to act in socially optimal ways] 1. Deciding between strict liability and negligence a. Administrative costs i. Costs to litigant ii. Legal error b. Residual risk i. Desist from the activity
ii. Substitute/alternative activity iii. Option 1 & 2 are a change in the activity level c. Evidentiary aspect of dangers should push us in the direction of strict liability d. Strict liability might create moral hazard for victims not to take care themselves. Greater need for contributory negligence in strict liability c. Nuisance i. Private Nuisance 1. CASE: Vogel v. Grant-Lafayett Electric Cooperative: stray voltage released by Ds system harms Ps cows. D promptly remedied problem when it was told about it. Held: stray voltage can be nuisance b/c interfered with private use and enjoyment of land. But it was an unintentional nuisance. 2. Trespass v. Nuisance: a. Trespass requires physical presence, interference with possession, i. No tolerance for trespass regardless of whether there was a harm b. nuisance nontrespassory or nonpossessory intereference, doesnt involve sense of physical invasion. i. High tolerance for nuisanceP has to show actual and unreasonable harm 3. Elements of Nuisance: a. P has to have a possessory interest in the land. b. It must be substantial enough to get beyond live and let live i. Unreasonableness measured by the reasonable expectations of the normal person occupying Ps land. 1. Higher standard of living, lower tolerance for nuisance ii. Factors to consider: 1. Non-reciprocal: one harm is much greater and outside ordinary use a. Some activities are annoying but were just as likely to be annoyed by them as much as we are likely to impose them on others. If youre doing an activity that is atypical given the environment, then well say its a nuisance. We also say that interference should be substantial 2. Character of the neighborhood or social expectations a. nuisance is location specific 3. Magnitude, frequency, or duration exceeding neighborhood norms 4. Priority in time or priority in space: coming to the nuisance 5. Gravity of harm 6. Lack of utility of Ds activity a. even if Ds activity is properly conducted in a proper location, if it is of no social utility, it may still be a nuisance. 7. Utility of Ds activity
4.
5.
6.
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a. social value is a factor, but if harm outweighs the utility, courts will find a nuisance, if the activity would also count as a nuisance if its utility were disregarded b. If social utility is high, P might reasonably be expected to put up with a higher level of nuisance i. Nuisance is simultaneously a public good and a public bad, so you aggregate all the gains and losses to establish the benchmark of harm. R2T 826 Unreasonableness of Intentional Invasion: An intentional invasion of anothers interest in the use and enjoyment of land is unreasonable if a. the gravity of the harm outweighs the utility of the actors conduct, or b. the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. CASE: Michalson v. Nutting: roots from s tree penetrated s land filling up sewer and drain pipes and causing cracks in cement of s cellar. s requested s to remove roots, but they refused a. Court holds as against adjoining proprietors, the owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to them by the mere shade of the tree [or by the invasion of roots] is damnum absque injuria. It is no violation of their rights. Court extends precedent to include invading roots, saying that underlying principle is that an owner is at liberty to use his land as he desire. has right to cut intruding roots, but not worth spending time and effort and arguing these cases in court. CASE: Fountainebleau Hotel Corp v. Fort-Five Twenty-Five, Inc.: : in process of building 14-story hotel on beach, will block light and air to s building on adjoining property. aee sought to enjoin - ants from continuing construction of building. a. A cannot bring a cause of action for damages or injunction under the maxim sic utere tuo ut alienum non laedas (one must not use his property so as not to injure the lawful rights of another) if the structure serves a useful and beneficial purpose even though it may cut off the light and air and interfere with the view that would otherwise be available over adjoining land in its natural state. It doesnt matter that the structure was built partly out of spite. No legal right to the free flow of light and air from the adjoining land, either by common law, contract or statute. Extra Sensitive --CASE: Rogers v Elliot: Elliot operated a church bell. The Rogers was recovering nearby from sunstroke and suffered from convulsions when he heard the bell. The s doctor asked the to stop ringing the bell, and the refused a. court ruled that a persons right to use his property does not depend on the peculiar temperament of nearby people, because legal rights would be left to uncertainty. The court ruled that nuisance must be determined by the effect of noise upon people generally. If prevails private nuisance would change depending on who was around at a particular time. i. Some courts arent concerned with aesthetics. b. If we allowed this recovery, there would be
i. Uncertainty about how you could use your land. We dont know everyones particular sensitivities. ii. Concern about fraudulent claims. If someone is extrasensitive, there might be likelihood that people would bring fraud claims. Difficult to provide evidence. iii. Belmar Drive-In Theater v Illinois State Toll Highway commission (Ill. 1966) relied on extrasentive test to deny liability for a toll center that shined bright lights near the s outdoor movie theater making it impossible for to exhibit his outdoor movies. 8. Coming to the Nuisance CASE: Ensign v. Walls: The Walls bred St. Bernard dogs. The dogs released odors, attracted rats and flies, and escaped into the neighborhood. The owner property in the neighborhood, who claimed the breeder manner of conducting business, was a nuisance. Most of the property owners moved into the neighborhood in recent years. a. Court ruled that nuisances must move as the city grows. The court ruled that the health and comfort of the population demand this rule. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid in the neighborhood, to the occupant of which and travelers upon which it is a nuisance. b. Coming to nuisance is not a bar to recovery but a factor court will consider when trying to decide whether later comer can recover. Must consider: i. What are the potential factors 1. Who is the highest value user a. As between parties b. 3rd party benefits 2. Harms/ Externalities that arise from conflicting uses. 3. Lowest Cost Avoider a. Mitigation ability to coming up with some mitigating technology b. Relocation issue of whether something is appropriate to location 4. Administrative costs a. Decision costs borne by court itself b. Litigation Costs borne by the parties and litigants c. Enforcement Costs 5. Transaction costs, e.g.: a. Collective action problem, b. Bilateral monopoly parties will be strategic to get the bargaining surplus that lies between the two c. Credibility building - Implication of this transaction on subsequent transactions, so parties want to be really tough to establish credibility d. Endowment effects idea that if I dont possess something I value it a certain amount, once it gets into my possession I value it much more
6. Error Costs c. In the world where the transaction costs are zero, the parties will bargain. It doesnt matter who has the initial entitlement. We only worry about the court when transaction costs are high. 9. CASE: Boomer v. Atlantic Cement Co. - Atlantic Cement operates a large cement plant. The s are neighboring land owners alleging injury to property from dirt, smoke, and vibration from the plant. a. The court granted injunction conditioned on the payment of permanent damages to the s which would compensate them for the total economic loss to their property. Remarkable solution in the case. b. The tradition solutions are: i. (Property Right)Injunctions property rights 1. Permanent a. Issues to consider i. Risk of Ds insolvency ii. Protecting other innocent 3rd parties not joined in suit iii. Lower administrative costs because court doesnt have to assess damage amounts 2. Conditional - conditional on parties reaching agreement or one party buying out the other (E.g. Boomer, Spur) ii. (Liability) Damages Liability rule. Court separates the two types of damages: 1. Periodic more accurate damages, but will have to deal with the issue over and over 2. Permanent less accurate damages, but will get done over and over a. Error cost v. decision (administrative) costs iii. (Property Right for ) No remedy 1. Weigh incentive to mitigate v. decision costs c. Court also says that making them pay at once, will give companies incentives to reduce pollution. d. DISSENT: Jasen argued that the incentive to reduce the pollution will be eliminated once the permanent damages are paid. If they have to pay these damages periodically, then they would have an incentive to find ways invest in mitigation technologies. Jasen argued that inverse condemnation should not be invoked for private gain. In other cases where courts awarded money damages and denied injunction, the property benefited the public. This is not so in the instant case. He says court is licensing a continual wrong e. Should there be a delayed injunction impose injunction until they come up with a mitigation technology or buys out by permanent damages. Court dismisses the mitigation technology. f. Temporary damages allow the court to make an accurate assessment of actual harm without having to speculate on future events; but they have high administrative costs and burden with having to bring multiple actions to redress one continuing wrong. Permanent damages run risk of one inaccurate
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valuation but avoid a multiplicity of subsequent actions. Permanent damages do not offer a once and for all solution if the increases its interference with the s land beyond expected levels. g. may enjoin the but only if she prepared to compensate the for the loss incurred. Spur Industries v Del E. Webb Development Co. (Ariz. 1972) found for the when the development corporation developed land near a cattle feedlot on the outskirts of town; the court noted that it had not applied the coming to the nuisance defense because the sold some units to individual purchasers. The court suggested that Webb might be liable to Spur for bringing people to the nuisance. Court says it doesnt seem harsh to require a developer who has taken advantage of vacant and cheap land to indemnify those who are forced to leave as a result. ii. Public Nuisance 1. CASE: Anonymous: used to have a way from his house to a close over the kings highway. stopped the Kings highway so that couldnt pass a. Rule: General damages from public nuisance are controlled only by direct public action, usually administrative regulation or criminal prosecution. The private action is maintainable only for special, peculiar, or disproportionate harm to the individual P. 2. Two classes of special damages: a. total loss of access to private land i. blocked road, polluted water ii. partial loss and/or inconvenience not sufficient b. personal injury that is different in kind from injuries suffered by general public i. example: Ds pollution causes everyone respiratory problems, and Ps problem is the same, P has no special private cause of action. 3. Difficult to assess who has standing to bring private suit. 4. CASE: 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.: Sections of an office tower at 540 Madison Avenue collapsed and bricks fell to the street. The city closed fifteen blocks on Madison Avenue and many businesses including s were forced to close. a. Court ruled that private action for a public nuisance requires special injury beyond that suffered by the general community. The injuries should be special and different in kind, not merely in degree. 5. CASE: Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp.: Camden County sued the Beretta for marketing and distributing handguns that created and contributed to the widespread criminal use of handguns in their county. a. Public nuisance is an unreasonable interference with a right common tot the general public. For the interference to be actionable, the must exert a certain degree of control over it source. If independent third parties cause the nuisance, parties that have not controlled or created the nuisance are not liable. (no proximate cause) Economic Harms a. Inducement of Breach of Contract
i. Statute of Labourers (1351) - If you dont have a job and someone offers you a job, youre bound to take it. You cant haggle over the wage; you have to take the prevailing wage. Once you have that job, you cant leave to take another job. If you offer someone a job, you receive a penalty. ii. CASE: Lumley v. Gye (1853) - contracted with Johanna Wagner to perform in his theatre for a certain time with condition that she couldnt sing elsewhere during that period. enticed and procured Wagner to refuse to perform even though he knew of the terms and the agreement was still in effect. 1. The court holds that a person may bring an action against a who entices a servant, who is under a valid contract to give exclusive personal services to the for a specified period, to refuse to give such services during the period for which the services have been contracted, whereby the is injured. a. Ms Wagner isnt servant in same sense used in Statute of Labourers, but court doesnt rest decision on merchant/servant relationship or beginning of service b. Requirement for liability: maliciously procure party to breach i. Malicous procurement - a person who wrongfully and maliciously, or, which is the same thing, with notice. (Intent to ruin a rival trader) b. Interference with Prospective Advantage i. CASE: Tarleton v. MGawley: s owned ship called the Tarleton that was off African cost, positioned to trade with Africans. , seeing that some Africans approached s ship for trade, shot at and killed an African causing the Africans to not trade with s. He did this knowing of the trade agreement and was contriving and maliciously intending to hinder and deter the natives from trading with s commander. said Africans owed him a debt and wouldnt let them trade without settling. 1. Distinguish form Lumley a. Lumley tryin to take away relationship from Gye b. Tarleton doesnt want totrade with or Africans, just wants to punish them. This is more malicious. 2. Act of trading is not itself immoral and the trade law is not binding on foreigners. The government and not the should have executed the law. If this was an accident, no action could be brought, but it is proven that had expressed intention not to permit any to trade, until a debt due from the Africans was satisfied. ii. CASE: People Express Airlines, Inc. v. Consolidated Rail Corp. - Fire began in s freight yard when ethylene oxide manufactured by escaped from a tank car, punctured during a coupling operation with another rail car and ignited. The was part of group ordered to evacuate in case of explosion. claims that it suffered business-interruption losses due to the evacuation. The suffered no physical damage to property or personal injury. 1. The court ruled that a owes a duty of care to take reasonable measures to avoid the risk of causing economic damages to identifiable classes of s whom the has reason to know are likely to suffer such damage from its conduct. s cause of action had been established by facts including the close proximity of the terminal, the foreseeability of the economic losses, the knowledge of the ethylene oxides volatility, and the evacuation plan. 2. Court says you have to do analysis on a case-by-case basis:
a. Particular foreseeability court says old rule is arbitrary. To do better is to require courts to figure out who is particularly foreseeable. i. In this case, the company had an evacuation plan. They did foresee this type of accident. ii. Economic loss rule XI. Products Liability a. Introduction i. Three classes of products liability: 1. Manufacturing defectsstrict liability 2. Design defectsnegligence 3. Warning defectsnegligence ii. Issue is design defects and warnings: how to set standards on what is reasonably safe iii. Most modern products liability cases fall into the last two categories iv. Why do we not need products liability law? 1. Whats the different between ultrahazardous activity and products liability? a. Ultrahazardous activities injury occurs on your land, bound to uses of land b. Products liability party who created object no longer has control over it because it leaves their possession (object traveling through society) 2. Can the marketplace solve this problem for us a. People will stop buying bad products. Too bad for the 1 person who has to bear the costs. It could be anyone. i. No capacity to inspect ii. No Information, now information is easily accessible about products. The market will work 1. Long-term latent risk product might cause long term harm 2. Conflicted and self-interested sources of info which consumers are unable to process and determine true risk iii. Consumers might not be able to process this information. (for example, optimism bias) iv. No substitutes// no technology available to consumers thats of equal quality. Manufacturers might not be able to make other things. v. Market competition. There might be a monopoly b. Exposition i. PHASE ONE: privity limitations prevented the injured party from suing the remote supplier of the product. 1. Rule: the liability of the contractor or manufacturer for negligence in the construction or sale of articles which he makes or vends is limited to the persons to whom he is liable under his contracts of construction or sale. 2. Winterbottom v Wright (Ex 1842): D contracts with Postmaster to supply and maintain coaches for mail delivery. 3rd party contracts to supply horses and drivers. P is a driver, injured b/c of defective coach. Held for D b/c P not in privity of contract with D, so there is no cause of action. Rationale: allowing such an action would make D liable for actions by any user of the coach no matter how remote. Court is afraid of floodgates of litigation, also a line drawing problem manufacturers dont know whos going to use products. Difficult to foresee who is
harmed and how. Privity rule allows manufacturer to know qualities of person who could bring lawsuit. Allows manufacturer to communicate dangers of the product. a. Levy v. Langridge court allows this action even though the wasnt privy to contract. Father bought gun for son, said that dad was proxy for son. The son couldnt enter into the contract himself. 3. Three exceptions in American cases: (Huset) a. When negligence of manufacturer or vendor is imminently dangerous to life and committed in preparation of product intended to preserve, destroy, or affect life. (mislabeled poison) b. owner invites user to use defective product on owners premises and user is injured, owner may be liable. (badly built scaffold) c. one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its dangerousness, is liable for any injury that might have been reasonably anticipated, with or without contractual relationship. (knowledge of defect, fraud, misrepresentation) d. Huset v J.I. Case Threshing Machine (8th Cir 1903): P injured by defective threshing machine which D sold knowing that one of the parts would not serve the purpose for which it was meant. e. Kuelling v Roderick Lean Manufacturing Co (NY 1905): P injured by defective roller D made out of bad wood and with a knot that D had tried to hide by putty and paint. Action allowed as fraud. ii. PHASE TWO: reject privity limitation and impose liability in negligence on a remote seller. 1. Rule: a. If a product is reasonably certain to cause harm if defective, it is a dangerous thing. b. Manufacturer of dangerous thing is liable when: i. it is foreseeable that it will be used by those other than the purchaser without undergoing further tests ii. the danger inherent in a defective thing is probable, not merely possible 2. MacPherson v Buick Motor Co. (NY 1916) Cardozo, J. P=car dealer injured when defective wooden wheel of new car crumbled. Issue: does manufacturer own duty of care to anyone but immediate purchaser. Held: in this case, the one person not likely to use the car is the dealer. Silly to prevent buyer from having cause of action. Maker of finished product has duty to test parts made by sub-manufacturers. a. Rule: If danger was to be expected as reasonably certain, there was a duty of vigilance, and this applies whether the danger is inherent or imminent. The company that sells a product that will reasonably be used by others without inspection will be held liable for damages and injuries occurred to the people using the product. [Cardozo combined exceptions 1 and 3 and used negligence standard, turning exception into the rule.] iii. PHASE THREE: strict liability should govern manufacturers liability. 1. Escola v. Coca-Cola Bottling Co (CA 1944), Traynor, J.: P injured when Coke bottle exploded in her hand. P = waitress, so not in privity of K with bottler.
a. Held: manufacturer is absolutely liable b/c he is the best risk avoider, the best loss-spreader, it is in public interest to discourage manufacturers from marketing defective products, too difficult for P to prove negligence, the issue is not a K warranty issue but a tort issue, so privity is not necessary. Doesnt want to use res ipsa loquitor, so we should have strict liability i. Traynors two limitations 1. Defect narrowly defined as latent miscarriage in the manufacturing process 2. Normal and proper use by P where the defect is traceable to the product in the condition in which it reached the market. ii. Traynor assumes market can bear the costs of strict liability. b. several justifications here: loss minimization, loss spreading, elimination of proof complications, food analogy, corrective justice i. Loss minimization Traynor says the manufacturer is the least cost avoider. Strict liability will get manufacturer to change their activity level ii. Loss spreading wants manufacturer to increase products slightly so everyone pays a little bit more to allow the injured person to be compensated 1. Service providers are better able to provide this insurance. (Kline) The waitress can buy health insurance 2. Cross-subsidy argument iii. Proof complications for certain kinds of accidents evidence is obliterated by accident itself, so we need strict liability. 1. We dont need to move to strict liability when we have res ipsa loquitor to help get over these complications iv. Food stuff analogies it speaks for itself, we dont need strict liability. Strict liability, we dont need to litigate. Why make s litigate when the food was sealed in a container. v. Corrective justice all things being equal, if one party does something awful and the other person is injured and hasnt done anything wrong, then injuring party should do something. 1. How does it increase justice when there is no fault. You take due care. Negligence might give you all the degree of care you need for you to decide that person isnt at fault. vi. Parallel set of developments in warranty c. The Restatements: 1. R2T 402A provides: a. 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 i. the seller is engaged in the business of selling such a product, and ii. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. b. The ruIe stated in Subsection (1) applies although
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i. the seller has exercised all possible care in the preparation and sale of his product, and ii. the user or consumer has not bought the product from or entered into any contractual relationship with the seller. RTT:LPL 1: Liability of Commercial Seller of Distributor for Harm cause by Defective Products a. One engage in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. RTT:LPL 2: Categories of Product Defects a. A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: i. Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; ii. Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe iii. Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. Caveat: no opinion expressed whether the rules may not apply to harm: a. to persons other than users or consumers, b. to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer, c. to the seller of a component part of a product to be assembled. A defect is that which is not what the consumer expected. a. Defective condition: rule applies only where product is already defective when it leaves sellers hands, and when the ultimate consumer doesnt expect that, and where defect will be unreasonably dangerous to consumer. i. Unreasonably dangerous: dangerous to 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. Not something dangerous in excess or in an abnormal use. Seller a. Seller may be required to give directions or warning to prevent product from being unreasonably dangerous. Seller allowed to assume that warning will be read and heeded.
b. Seller who supplies inherently dangerous but useful product (e.g. medication) is not held strictly liable for harms as long as proper warnings given, proper packaging and marketing. c. Seller not liable for defect that occurs in subsequent mishandling. Burden of proof of defect is on P d. Seller not liable when consumer uses product in abnormal way 7. No distinction between problem with the product or with its packaging 8. Warranties not the basis for the cause of action. 9. Contributory negligence doesnt apply to failure to discover defect or guard against it, but does apply to voluntary assumption of risk if user discovers defect and uses product anyway. ii. Phase Four: Modern product liabilitydefective design and duty to warn are the primary issues 1. What are products: tangible personal property, but not blood and tissues; in some cases real property and electricity 2. Distinction between services and products a. Products fall under strict liability, services under negligence. i. Negligence covers service b/c the success or failure of the service performed depends not only on competence of D but also on thing or person on which service is being performednegligence standard prevents D from having to insure the thing/person being worked on. ii. Products fall under strict liability insofar as D had complete control over them and is in a position to avoid risk b. Cafazzo v Central Medical Health Services (PA 1995)P wants to sue Dr. for defective prothesis. Held: Dr was only performing a service and is not strictly liable for a product defect. 4 part test: i. Are there other members of the market exchange available? No denture manufacturer is bankrupt. ii. Would strict liability provide an incentive to safety? No iii. Would the supplier be in better position than manufacture to restrict the circdulation of defective products than doctors? Yes. iv. Whether the supplier of the product can distribute the cost of compensating for injuries resulting from defects by spreading the charges? Supplier is better. c. Murphy v E.R. Squibb & Sons, Inc. (Cal. 1985) ruled that a pharmacist was providing a service, not selling a product, because of the educational and professional requirements of obtaining a license. Didnt want to make pharmacists liable because it might cause them to refuse to dispense medicines out of fear and they might only dispense the most expensive ones by established manufacturers and be afraid to use cheaper substitutes. 3. Potential Dsall sellers from manufacturer on downall held to same standard, all held to same liability as manufacturereven when intermediaries have been entirely passive. a. Vandermark v Ford Motor Co. (Cal. 1964) held a car dealer strictly liable for product defects. Traynor argued that making retailer strictly liable serves an added incentive to safety, because retailer will exert pressure on manufacturer.
Product liability has been extended to the builders of mass-produced homes, wholesalers and distributors, and to lessors and bailers of personal property. b. Exception: casual sellers & dealers in used products not in business of selling. i. Dealer in used products is liable for any defects it introduces in rebuilding, remanufacturing or reconditioning the product 4. Potential Psall users and consumers of products a. Modern law also allows bystanders to recover from manufacturer i. Rationale: bystander harmed by process which he did not make 5. What harms are covered: physical harms but not economic harms a. line between them is difficult to draw i. Economic losses: disappointed economic expectationscontrolled by K, essentially the product damages itself ii. Tort losses: harm above and beyond disappointed expectations b. Casa Clara Condo Assoc v Charley Toppino & Sons (FL 1993): homeowners cant sue in tort maker of defective concrete used in building their houses b/c this was an economic harm. No other product involved, just the house as a whole. Homeowners not in strict privity with concrete supplier. i. From perspective of Seely v. White Motor, there is no physical damage, the concrete is just of lower value/ quality. Peters dissent in Seely is important. Peters has a proximate cause argument. He says that the nature of the damage sustained is by the is immaterial, so long as it proximately flowed from the defect. It doesnt matter if we think about this as a whole product or pieces of a product 1. Toppino knew that this concrete would be used to make homes and that the concrete needed to have a certain amount of salt. The harm is foreseeable so they should have to pay. d. Product Defects i. Manufacturing Defects 1. RULE: manufacturers liability for a defective product is predicated upon negligence in the manufacture or design of the product. a. P has to prove that injury resulted from a condition of the product which was unreasonably dangerous and which existed at the time the product left the manufacturers control. i. Defect doesnt have to manifest itself at once ii. Have to show that defect renders product dangerous 2. Complication: food cases where some natural ingredient is both natural and dangerous, Example: fish bone in fish chowder a. Test becomes consumer expectations: natural ingredient is defective if not expected. 3. CASE: Speller v. Sears, Roebuck and Co.: s child Sandra Speller was killed in a house fire, and their seven year old son was injured. The fire marshal decided that a stove top grease fire was the cause of the fire, but the Spellers claimed that the fire was caused by faulty wiring from a refrigerator sold by the Sears, Roebuck and manufactured by Whirlpool
a. must prove that the product did not perform as intended and exclude all other causes for the products failure that are not attributable to to proceed in the absence of evidence identifying a specific flaw. b. R3T 3 allows P to recover without specifying defect responsible for the harm if other causes of the harm can be excluded. 4. R2T and R3T impose strict liability when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. ii. Design Defects 1. Concealed design defects are treated like manufacturing defectsrequire manufacturer to make his product design meet his own performance standard. a. You can never have a design defect case where you cant point to whats wrong b/c with design issues you have perfect knowledge. If it is unclear what the defect istry it under construction defect. 2. Crashworthiness cases expanded design defects liability. Defect lay in cars failure to protect occupant [P] against crashed caused by P or by 3rd party a. Decided on negligence: It doesnt make sense to hold D strictly liable when D is being required to protect P from a 3rd person. i. Use Hand formula: are the burdens of precautions worth taking in light of the risk to be averted? b. Base expectations of safe operating on intended use of the carincluding foreseeably risk of accidents. c. Volkswagon of America v Young (MD 1974): P killed in second collision when 3rd party hit his car and he was thrown b/c seat brackets broke. Issue: does crashworthiness fit into intended use of a car? Rule: under negligence, manufacturer is liable for a defect in design which it could reasonably have foreseen would cause or enhance injuries on impact, which are not obvious to user, and which in fact lead to injuries in a collision. No recovery if danger is obvious to user. Safety features only have to be reasonabledont have to protect against every contingency. 3. Standards of design defect liabilitytheories a. Open and obvious dangersoffer and acceptance model. Shifts blame to consumer. i. Once P has manifest notice of the danger, he can decide whether to use the product or seek out a safer one. ii. Campo v Scofield (NY 1950)Ps hands injured when caught in onion topping machine. Recovery denied b/c user could see the danger and manufacturer not obligated to make the machine accident proof or foolproof. Rule: manufacturer is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. (This case stands for open and obvious dangers) Consider cost of manufacturer to take extra precaution as compared to the cost of user to be more careful. Manufacturer might be least cost avoider 1. Risk-utility standard
a. may try to offer evidence to show that if you increase precaution you undermine utility (introduce another risk, impractical, prevent proper functioning) iii. But, Micallef v Miehle Co (NY 1976)lack of safety mechanism on printing machine. Held: machine design could be defective even if danger was obvious b/c manufacturer in best position to improve the design and liability gives him incentive. Rule: manufacturer is obligated to exercise that degree of care in his design se as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which it was intended as well as unintended yet reasonably foreseeable use. Reasonableness = balance of cost, likelihood of harm, gravity of harm, function. iv. Rationale: simplified litigation, clearly delineates spheres of responsibility between manufacturer and consumer, D doesnt have to justify design to jury.But jury will still find for P when a simple safety feature could have prevented injury. b. Reasonable alternative designsnegligence standard generally used. i. R3T PL 2(b): A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller and the omission of the alternative design renders the product not reasonably safe. ii. Courts are divided over the standard. 1. Doesnt require alternative design be one in general userelies on experts to establish safe alternative. 2. Turns on a cost-benefit analysis iii. Barker v Lull (CA 1978): high lift loader incorrectly used by inexperience driver. [Should have been settled as a workers comp case.] P claims there should have been more safety features. D says those features would not have been safer and that they are not industry standard. P only has to show that some condition made the product unsafe, but does not have to show a specific defect. iv. Held: The court ruled that a product is defective in design when (1) the product fails to perform as safely as an ordinary consumer would expect when used as intended or as is reasonably foreseeable, or (2) the benefits of the challenged design do not outweigh the risk of danger of the design. In deciding (2) jury may consider the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consider that would result from an alternative design, among other factors. (approach looks at foreseeability from hindsight) v. Cf. Risk-utility testmakes everything relevant and nothing dispositivefavors P.
1. Usefulness and desirability of the productits utility to the user and to the general public 2. The safety aspects of the productthe likelihood it will cause injury and the probably seriousness of the injury 3. Availability of alternative product which would meet the same need and not be as unsafe 4. Manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive 5. Users ability to avoid danger by the exercise of care in the use of the product 6. Users anticipated awareness of the dangers inherent in the product and their avoidability based on general public knowledge and accompanying information 7. Feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. vi. Linegar v Armour of America (8th cir 1990): P killed when bullet entered chest under his arm where bullet-proof vest did not cover. No recovery allowed b/c the limited coverage of the vest was patent. The choice in vest style was based on a trade-off with comfort. Law doesnt obligate manufacturers only to make the safest possible design, b/c other factors like cost and consumer preference are involved. 1. OBrien v Muskin Corp. (N.J. 1983) allowed the jury to consider a claim that a vinyl pool should have used latex instead even though no other above ground pool used latex, stating that it was not necessary for to prove the existence of alternative, safer design c. State of the artproducts are reasonably safe when Ds product design conforms to state of the art of the relevant trade or industry. In setting the appropriate design standard for product safety, many courts look in part to the state of the art in the product suppliers trade or business. Most courts dont allow compliance with the state of the art to resolve the design defect question in s favor but treat it as a factor to consider what is necessary and probative on the issue of unreasonably dangerous. d. Consumer expectationstotality of the consumers knowledge about product i. Looks to appearance, common knowledge about products use and limitations, literature that accompanies it. 1. Tries to determine if design reflects its safe and intended use any other use is at consumers risk ii. R2T 402A seems to use this test defective condition unreasonably dangerous taken to mean that article must be dangerous to an extent beyond that which would be contemplated by ordinary consumer with ordinary knowledge of how it works. (looks at foreseeability at foresight)
iii. Example: everyone knows cigarettes are dangerous, butter causes high cholesterol. iv. CASE: Halliday v. Sturn, Ruger & Co.: Jordan Garris was a threeyear-old child who shot himself while playing with his fathers handgun. The gun was manufactured by the defendant Sturn, Ruger & Co. The father disregarded warnings from the retailer and left the gun under his mattress with a loaded magazine on the bookshelf in the same room. The child assembled the gun and shot himself in the head. 1. Court ruled that no cause of action existed under the consumer expectations test, and the court refused to apply a risk-utility standard on a broad, general basis. The gun did exactly what consumer expected. No malfunction her and guns arent illegal. e. Problemspolicy issues: i. Present system of design defects requires manufacturers to guard against many forms of user neglect, deliberate misconduct, or natural catastrophe as long as these are foreseeable ii. Suits try hypotheticals b/c P has to reverse engineer the product to establish how harm could have been prevented 1. System is unnecessarily expensive and unpredictable iii. No evidence that litigation leads to safer designs. 1. Designs have to be set from ex ante perspective, and tradeoffs made. iv. Law doesnt take into account cost of the design featuresif products cost too much, people wont buy them and will continue to use older, more dangerous products. iii. Duty to Warn 1. Relation to design defects a. RULE: as long as D has no duty to design out obvious features of his product, then he is under no duty to warn of them. b. Warnings and design features = substitutes for each other i. Manufacturer will make designs safer rather than use warnings on apparently safe products with latent dangers ii. But some products need warnings to supplement design features c. R2T rule = too broad: where a warning is given, the seller may reasonably assume that it will be read and heeded. 2. CASE: Hood v. Ryobi America Corp.: Wilson Hood removed the blade guards from a miter saw manufactured by the Ryobi America. While cutting without the guards, the blade flew off the saw and amputated Hoods thumb and lacerated his leg. Hood had been warned not to remove the guards, but argued that he should have been warned that removing the guards permitted the blade to detach from the saw. a. The court ruled that the provided warnings sufficiently clear and specific to apprise the ordinary consumer that it is unsafe to operate the saw without guards. i. Warning is adequate because you dont want to provide too much information because people might ignore it. b. Possibilities
i. Liability ii. Warning 1. Best solution for cost spreading reasons 2. Might want to have different levels of information a. There might be excessive fear of loss that will discourage people from using, or there might be optimism bias and people will use it too much. b. If the nature of product is such that it will always cause danger, then you need to provide warning. iii. Banning 1. Or Limit Access 3. Drugs and chemicals: deadly but useful poisons, drugs beneficial in isolation but deadly in combination with others, products safe when properly stored but otherwise dangerous. Bans are inappropriate so warnings and instructions are used to control risk. 4. Reasonableness standard for warnings: a. R3T PL 2: A product(c) is defective b/c of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced by the provision of reasonable instructions or warnings by the seller or a predecessor in the commercial chain of distribution and the omission of the instructions or warnings renders the product not reasonably safe. 5. Scope of the Dutywho should warn whom? a. Manufacturer of finished product has to create warning and all downstream distributors have to transmit it with the product. i. Manufacturers of component parts upstream are insulated from the requirement. b. Retailer is liable when manufacturer fails to include warning in a sealed package i. Why impose this on retailers who would have to open the package to discover the defect? Retailer is ill-suited to avoid the risk, whereas consumer will discover warnings are missing. c. Problem: when manufacturer markets product directly to consumer. d. CASE: McDonald v. Ortho Pharmaceutical Corp.: Carole MacDonald was prescribed contraceptive pills manufactured by the Ortho Pharmaceutical Corp. The prescription was filled annually after visits to MacDonalds gynecologist. After three years of using the pill, MacDonald suffered a stroke and was permanently disabled. i. The court held that the birth control manufacturers duty is to provide the consumer written warnings conveying reasonable notice of the nature, gravity and likelihood of known or knowable side effects, and advising the consumer to seek fuller explanation from the prescribing physician or other doctor of any such information of concern to the consumer. The court ruled that oral contraceptives have peculiar characteristics from other prescription drugs: (1) consumers are actively involved in the decision to use the pill, (2) the patient does not
have the regular opportunity to consult with a physician, and (3) the pill is subject to its own federal regulations. ii. In instances where a trier of fact could reasonably conclude that a manufacturers compliance with FDA labeling requirements or guidelines did not adequately apprise oral contraceptive users of inherent risks, the manufacturer should not be shielded from liability by such compliance. 6. Scope of the Duty: How? a. Instructions/warnings have to be transmitted in a way calculated to reach the consumer in its ordinary use of the product i. Broad range of distribution patterns makes this complex b. Usual RULE: reasonable efforts should be made to bring the risk to the attention of the actual users, or, if that is not possible, to qualified intermediaries who then can either act on the information required or pass it on to those who need it. i. Example: drug manufacturer warns doctor who warns patient c. Mass vaccination: Where downstream product control is extensive, any duty to warn should attach not to the manufacturer but to the administrator of the program. i. Davis v. Wyeth Laboratories (9th Cir 1968): mass polio vaccination program, not run by doctor, aided by vaccination producer, there was a duty to warn of risks of using the live polio vaccine, especially b/c risk, though small, would have a very significant effect. 7. What are adequate warnings? a. Identify the risks for which warnings are required i. Where there are serious risks, seller is more likely to know about them than user ii. Where risks are minor, seller is not required to produce information/warnings iii. Hard cases: intermediate levels of dangers 1. E.g. allergies known to affect a small fraction of the products users. b. Balancing test: i. Frequency of harm ii. Severity of harm iii. warning needs to be in lay terms people can understandMacDonald v Ortho Pharmeceutical: the adequacy of such warnings is measured not only by what is stated, but also the manner in which it is stated. 1. E.g. has to be appropriate level of urgency. 8. CASE: Vassallo v. Baxter Healthcare Corp.: silicon breast implant leaks, causes damage to D. Ds held liable in part b/c they knew of potential for leakage and did not warn either doctors or users. The court announce new rule that is not liable to warn of risks that were not reasonably foreseeable at the time of sale, or could not have been discovered by reasonable testing prior to marketing. iv. Plaintiffs Conduct
1. Current regime adopted by most courts and R3T favors comparative negligence rule a. Daly v General Motors (CA 1978): decedent killed when car he was driving hit divider and he was thrown from car. Sued D for defective door lock design. But, decedent was drunk, wasnt wearing seatbelt, and didnt have doors locked. Court holds that CA will switch to a comparative fault regime even though product defect is strict liability. This creates incentives on both sides, since D still cant avoid liability if the defective product is at fault. b. Mosk dissented that negligence should not be injected into products liability, because the should be relieved from the burden of proof. Mosk also dissented that assumption of risk should be retained as a total defense. c. Whats at stake here? i. It doesnt matter for the incentives of care. Either strict liability or negligence will work. ii. Concern about proof 1. About decreasing litigation cost 2. Strict liability rule is better at saving on litigation costs. When come forward here, they can achieve recovery at lower costs. a. The cost per case will be less, but more cases will be brought because strict liability makes it easier for s to bring them. There will be much greater volume of litigation. iii. Concerned with the conduct of the and the . If you believe the court will work accurately and only looking at the aggregate you might feel indifferent about whether to use strict liability and negligence. 1. Judge v. jury a. Judge strict liability b. Jury negligence iv. What about justice? Which is better? 1. In strict liability regime, there will be greater cross-subsidies to cover the laiblity. They will pass on to consumers a higher cost for product. Those who arent negligent will have to pay for the negligence of others. a. If we increase liability on manufacturer, they will be less likely to reduce. They price will be higher for consumers and the quantity produced will decrease. i. The reaction of the consumers and producers increases the price in all circumstances. v. Federal Preemption 1. The Supremacy Clause of the Constitution provides that any federal statute or regulation shall take precedence over an inconsistent state law. 2. The doctrine of implied preemption can apply in three circumstances: 1) when the state law is inconsistent with the federal statute; 2)when the federal statute is sufficiently comprehensive to occupy the field; and 3)when the enforcement of the state law frustrates the federal scheme. 3. CASE: Geier v. American Honda Motor Co.: was driving a Honda Accord and was seriously injured when she collided with a tree. The car was equipped with manual
XII.
seat belts, but no airbags or passive restraint devices. Geier sued Honda for the design defect of not installing an airbag. The Federal Motor Vehicle Safety Act of 1966 contained a preemption provision that no state has the authority to establish safety standards applicable to the same aspects of performance as the federal standard. a. The court held that the federal act pre-empts the lawsuit. The no airbag lawsuit conflicts with the objectives of FMVSS 208, a standard authorized by the Act, and is therefore pre-empted by the Act. The Court, in preempting the state tort claims, opined that a state tort damage award would effectively set a mandatory airbag standard that would obstruct the objective of the federal regulations, which was to achieve safety through a phasing in of passive restraint devices. Misrepresentation a. Introduction i. is required to show that she was misled by the s misstatements or misrepresentation and that knew that statements or representation were false or at least that he was indifferent to truth or falsity. ii. RST 525. Elements of Fraud: 1. One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation. b. Fraud i. CASE: Pasley v. Freeman 1. asks about John Falchs financial condition. assured that he could be trusted. gave Falch goods on credits and he never paid. Argue that knew all along that Falch was a bad credit risk a. If no injury is occasioned by the lie, then it is not actionable, but if it be attended with a damage, then it becomes the subject of an action. (Requires proof of deliberate lying. 2. In Peek v. Derry, to sustain an action of deceit there must be fraud. Fraud is proved when a false representation has been made knowingly, without belief in its truth or recklessly, careless whether it is true or false. One who makes a statement under such circumstances can have no real belief in truth. A false statement is NOT fraudulent, if person honestly believes statement is truth. If fraud is proven, then persons motive is immaterial. ii. CASE:Vulcan Metals Co. v. Simmons Manufacturing Co.: sold all of its things to manufacture cleaners, During negations made two types of representations to the about commendation of the cleanliness, economy, and efficiency of the machine, saying that it was superior to others and that the company hadnt try to sell the machine to anyone. 1. Misrepresentation regarding quality of the machine. The buyer has reason to suspect that seller will stretch the truth to make the sell. Puffing is not fraud to bring action of misrepresentation. Buyer could have gotten this information by testing it out. 2. Misrepresentation regarding vacuums having never been put on market. The actual test of experience in their sale might well be of critical consequence in s decision to buy the business. The jury would has right to accept that his reliance upon this information was determinative of his final decision.
iii.
iv.
v.
vi.
3. A retraction of a false statement before contract is executed would be a defense to action. must make sure the was in position to read retraction. CASE: Swinton v. Whitinsville Savings Banks: sold house with termites. knew the house was infested, but didnt tell . couldnt observe termites when inspecting the house. Learned of termites about two years later. There was no false statement or representation by or indication that he prevented the from finding out this information about the condition of the house. 1. has no duty to provide any information regarding non-apparent degects known to him in the subject of the sale which materially reduces its value and which the buyer fails to discover. The charge here is concealment, a failure to reveal, with nothing to show that had any particular duty to speak. a. Other cases have held that actions by to cover up some defect count as fraud, even in the absence of words to that effect. s verdict sustained in case where set back cars odometer without making any verbal misrepresentations. CASE: Laidlaw v. Organ: learned that war was ending, bought tobacco from before info had been made public. Before the sale was complete, asked if knew of anything that might affect price. either didnt reply or court doesnt know what he said. When the peace was announced the price of tobacco rose between 30 & 50 percent. took tobacco back by force. 1. No duty on buyers of goods to disclose information to sellers. If both parties are engaged in this industry, then we shouldnt require them to divulge information to the other. 2. wasnt bound to communicate information to CASE: Edgington v. Firzmaurice: bought bonds from corporation of which the s were directors and officers. s made false statements in circulars: 1. Installments or whether lenders could recall mortgage early. Held no to be false statements, but rather non-disclosure, not fraud 2. Outstanding mortgage also non-disclosure, which isnt fraud 3. Use fo funds This is crucial because investor will want to know how youre going to use money. This case is about statement of future intentions whereas the others are about statement of fact about present or past actions. Future intentions are crucial in determing decision to invest. Verdict for CASE: Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc.: Union has health plan created under ERISA with workers. Workers suffering medical problems from the tobacco company. Tobacco company selling cigarettes causing workers health problems leaving union with all these financial problems to cover the health problems of their workers. Union () suing Tobacco Co () arguing that is fraudulent for misrepresenting the dangers of smoking. 1. Court says injuries are not sufficiently direct. Claims are derivative of the workers claims. a. Policy consideration: difficult to calculate damages. If you allow indirect liability it would explode potential for lawsuits, risk multiple recoveries. b. Workers should sue instead and the plan should sue the works by subrogation. Health plan should seek compensation for whatever workers collect from tobacco companies.
c. Negligent Misrepresentation i. CASE: Ultramares Corporation v. Touche: Fred Sterns hires Touche accountants to audit financial statements. Banks took statements from Fred Sterns. Banks () bring claim against accountants for negligence and fraud. 1. No fraud because no mal intent to deceive. 2. This case can be distinguished from Glanzer v. Shepard (the service rendered by the in Glanzer was primarily for the information of third party) whereas in Ultramares ( the service was primarily for the benefit of the Sterm company and only incidentally use of those who Sterm disseminated it to later) a. Commercial relationship was much closer in Glanzers. Weighters knew who they were dealing with, direct communication between and . Ultramares the accountants might be able to guess what theyre being used for but dont know b. Glanzer much easier to calculate damages, Touche also doesnt have knowledge about the nature of the transaction, the gravity of the damage and the nature of the damage. XIII. Damages a. Introduction i. CASE: Sulivan v. Old Colony Street Ry.: Purpose od damages is compensation. The object is to give the equivalent in money for the actual loss caused by the wrong of another. The idea is to place the in position in she would have enjoyed if the tort had never been committed. ii. 3 elements of damages: pain and suffering, medical expenses, and lost earnings attributable to the accident. Damages are implicit in every case. 1. Pecuniary damages - economic consequences of the injury(medical expenses, lost earnings and cost of custodial care) 2. Nonpecuniary damages - damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities iii. Damages establish the implicit price payable for a violation of a legal right. 1. Damages set by the expected cost of Ds act, which depends on probability of D being found liable and the damage awarded. a. Damage award too high: D will spend too many resources trying to avoid causing harm. b. Damage award too low: D will have no incentive not to harm. iv. Problem: how do we set optimal damages when ex ante we dont know what the harm will be? 1. Possible that damage awards dont influence primary conduct of Ps very much, but they do influence Ds b/c awards are so large. v. Easy cases: property damage, b/c P can recover market value. vi. Hard cases: personal injuries, especially serious ones. vii. With injuries and death, this cant happen, so system has to find a way to approximate even though money is insufficient replacement for life and health. 1. Ergo: money damages are neither necessarily efficient, nor are they necessarily just, which throws a wrench into the intended purpose of the tort system: to be just and efficient.
viii. Goal of damages: compensation, deterrence, and insurance 1. Insurance want to make those who suffer harm whole. Mimics insurance. 2. Deterrence - court in McDougald created a perverse incentive because the amount of damages will increase as the harm is greater. At point, where the harm renders the person unconscious then theres a major drop off ix. Compensable damages 1. Nonpecunary injuries, including both bodily harm and pain & suffering 2. Medical expenses 3. Lost earnings a. Cover period before the trial and some estimate of future losses. b. Pain and Suffering i. Strategy is assessing damages: break down losses in order to come to some rational measure. (Belli measure: have jury break down the persons life into minutes and ask themselves how much the pain and suffering of each minute is worthnot favored in courts.) 1. But how do you create a monetary value for pain and suffering a. McDougald v Garber (NY 1989): woman made comatose vegetable by negligent administration of anesthesia. Issue: since P cant enjoy life can she get damages for loss of enjoyment and pain & suffering? Held: to get these, there has to be some minimal level of awareness. The court also held that pain and suffering and loss of enjoyment should be considered together as nonpecuniary damages. i. Argument on the other side. We want to compensate for lost positive and the actual negative that she suffered thats why we should require jury to decide how far below they were from neutral and also how much c. Economic Losses i. OShea v. Riverway Towing Co.: plaintiff Margaret OShea was coming off duty as a cook on a tugboat, and sustained an injury while getting off the boat. After the injury, she was no longer able to work as a cook. 1. Held: The court held that calculation of lost earnings can and should be analytical rather than an intuitive undertaking and asked district court judges in the circuit to indicate the steps taken to arrive at damage awards for lost figure earnings. Posner ruled that previous wages do not put a cap on future wages, because tort victims are entitled to damages based on what they would have earned in the future. The court ruled that lost future wages could be calculated by either (1) taking inflation out of the wage and the discount rate, or (2) using a higher discount rate based on the current risk-free interest rate, and applying that rate to an estimate of lost future wages that includes expected inflation. (Interest rate, salary/wage, work life, and alternative employment mitigation inflation) 2. has a general duty to mitigate damages. But McGinley v United States (1971) ruled that a plaintiff did not have to undergo further surgery with a two-thirds chance of success of alleviating pain in his back. ii. Duncan v Kansas City Southern Railway: The three Duncan sisters were riding in a church van when it was struck by a locomotive of the defendant Kansas City Southern Railway. One sister was killed, one sister was rendered a quadriplegic, and one sister suffered less serious injuries.
1. The court says that the trier of fact has a lot of discretion, but reign them in by looking at other courts The court ruled that the court had abused its discretion in fixing the general damages award, and reduced the pain and suffering award to $6.0 million after a review of cases involving similar injuries. The court also reduced the award of medical expenses to $10.5 million, because the treating physicians life expectancy estimate of 57 years was more realistic than the plaintiffs experts estimate of 81 years. 2. Should be present in the courtroom or is it prejudicial to the . a. Salient bias seeing girl in wheelchair makes jury feel like suffering is greater than it is. b. If staring at numbers on a sheet you might not be able to appreciate the s harm. c. Strategically showing could contriute to the shock 3. Damage caps a. Want companies to think about the average when deciding what level of degree to take. If you have a damage cap, it will skew what the average damage award will be. The average will shift down. They will take them not to take extreme care, because in really extreme cases you will be capped and wont have to be paid the actual amount 4. Under remittitur, the plaintiff can avoid the cost of a new trial by accepting a reduction in the size of the jury award. Under additur, the defendant can avoid the cost of a new trial by accepting a larger verdict. d. Contingency Fees, Fee-Shifting Devices, Sales of Tort Claims and Litigation Insurance i. Harding v. Town of Townshend: sued for injuries caused by reasons of an insufficiency of a highway of the . received payment of $130 from an insurance policy that he purchased for $7. 1. The money received by the from insurance company doesnt serve as a defense for the to prohibit s recovery from when the insurer and arent joint tortfeasor or joint debtors so as to make a payment or satisfaction by the former to operate to the benefit of the latter or where there is no legal privity between the and the insurer so as to give the former a right to avail itself of a payment by the latter. Insurance is collateral to the remedy against the , and was procured soley by the and at his expense and to the procurement of which the was in no way contributory. 2. Collateral source rule the fact of this 3rd party compensation should not be something admissible in s torts action. a. Fear that will be able to recover twice. 3. Subrogation and Indemnification a. Indemnification - arises from insurance company. In event of jury award that covers things like medical expenses and the insurance company also recovers, the have to reimburse insurance for the protection. i. Insurance is like a loan. Premium of the insurance will be lesser with an indemnification provision than it would be without one b. Subrogation - indemnification plus. Insurance company steps in the sues in the s behalf. ii. Lawyers for personal injury claims receive a contingency for their services (1/3 of damages)
1. Dont pay by hour because some s cant afford this. Hourly pay may give attorney to work more slowly. 2. If takes case on contingency fee, they have more control about what happens than they would if they allowed subrogation 3. only pays if he wins. This allows broke s to bring suits to court e. Punitive damages i. Kemezy v. Peters: sued policeman claiming that wantonly beat him with a nightstick in an altercation in a bowling alley where worked as a security guard. Jury awarded 10,000 compensatory damages and $20,000 punitive damages. 1. Given the various reasons for punitive damages court that the does not present evidence of s net worth when assessing damages. This may give incentive to plead for punitive damages, especially when they think opponent is a deep pocket. a. Reasons why punitive damages are awarded: i. Compensatory damages dont always compensate fully. Some things are more difficult to assess what exactly the right compensation is. ii. Punitive damages are necessary to make sure the the tortious conduct isnt underdeterred 1. Juries usually overcompensate 2. Have to say compare to what. iii. When a tortious act is concelaable, a judgment equal to the harm done by the act will underdeter. Aperson who only gets half the time will not be confronted by the full social cost of his activity. 1. Use damage multiplier to ramp up costs so the probability that they will get cost doesnt matter. iv. Retribution 1. Punish someone when theyve done something wrong v. Expressing societys abhorrence 1. Signaling rationale, want to communicate to others what we think the right penalities are and that we impose them vi. Self-help 1. Give people injured by relatively minor outrages a judicial remedy in lieu of punitive damages vii. Make sure that people channel transactions through the market when the costs of voluntary transactions are low. 1. Bargain for what you want rather than steal if, if youre forced to pay punitive damages. b. Should we tell jury about the wealth of the s? i. What do you say when its beyond the capacity of to pay c. When do we impose punitive damages? a. Conduct must be reckless and wanton, malicious, reprehensible, when there is disregard for the harm they will cause. ii. State Farm Mututal Automobile co. v. Campbell - Ospitals estate sues Campbell (who attempted to pass six vans). State Farm subrogated s claim. Subrogation is where the insurer steps in the shoes of the litigant and runs the litigation for them. s wanted to settle for policy limit ($50K), but State Farm decides not to settle. State Farm told Campbell that there assets were safe. Jury awarded $185k to s. Campbells make a deal with Slusher and
Ospital saying that they werent going to make Campbells pay. Campbell sues State Farm for bad faith and fraud and intentional infliction of emotional stress. Ospital agrees to drop judgment against Campbells if they sue State Farm and give Ospital 90%. 1. State Farm committed fraud by telling false statements on which the Campbells relied Appellate courts may review DE NOVO awards of punitive damages, adhering to the following three considerations: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Court goes on to suggest that "few awards exceeding a SINGLEDIGIT RATIO between punitive and compensatory damages ... will satisfy due process."

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