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Torts Outline, Fall 2010

I. DUTY a. General rule: one who creates a foreseeable risk owes a duty to all those foreseeably endangered i. Palsgraf. Cardozo rule: no duty to P, if RP would not have foreseen injury to P in circumstances. Must be in a foreseeable zone of danger. Andrews rule: D owes duty to anyone who suffers injury as proximate result of his breach to someone. b. Affirmative duty to act. General rule: no duty to rescue/come to someones aid i. Harper v. Herman: no duty to warn/prevent risk if no special relationship. Ds superior knowledge doesnt matter. P wasnt deprived of normal opportunities to protect self. 1. Assumed special relationships: innkeeper, common carrier, possessor of land who holds it open to the public, or one who takes custody of another and deprives the other of his normal opportunities for protection ii. Exceptions to No Duty Rule: D creates foreseeable risk (even non-negligently, Simonsen, 138); D undertakes to help victim (R(2nd)324), (Morgan v. County of Yuba, 145, sheriffs promise to warn woman before releasing dangerous man created reliance that led to her death) (Mixon v. Dobbs, 145, Eer created reliance and risk when he promised to tell Eee his pregnant wife called but failed to do so); K inducing reliance; D has special relationship with V (Farwell v. Keaton); D has special relationship with injurer (Ronald M. v. White, 144, passengers had no duty to stop drunk driver), (Andrade v. Ellefson, 135, county not immune to liability when it knew of overcrowding at daycare) (spouses generally have no duty to act based on special relationship. Policy reason: no undermine marriage. Exception: when spouse knows of sexual abuse, he must warn). c. Duty of Disclosure. General rule: No duty unless exception exists (R311), BUT absence of duty does not entitle one to speak falsely. i. Garcia (in Randi): one who neg. gives false info is liable to V. ii. Randi v. Muroc: one who neg. gives false info is liable to 3rd party V. iii. Note cases: Boon v. Rivera, 156, woman liable after falsely telling cop her husband wasnt violent (Dillbary: bad decision, cop should know); Jackson v. State, 156, state had duty to tell adopting parents about psychological problems of childs parents. d. Duty to control 3rd persons. General rule (R315): no duty to control 3rd person unless (a) special rela. w/ 3rd person imposes a duty, or (b) special rela. with V gives V right to protection. Even extends to therapists-patients. (Tarasoff v. Regent of Univ. of Cal) e. Exceptions to duty: policy considerations can negate duty. i. Utilities. Strauss v. Belle Realty: duty of care doesnt extend to non-customers (but does extend to family member of customer) 1. Libbey v. Hampton Water, 180, water company not liable in fire cases, dont want utilities to be insurers and increase costs for others. Insurance is available privately. ii. Social hosts. Reynolds v. Hicks: social hosts not liable to 3rd persons injured by intoxicated guest (even minor), even though comm. vendors are liable. iii. No exception. Negligent Entrustment (really just Negligence). Vince v. Wilson: one who supplies chattel to another who he knows will use it negligently owes a duty to those endangered. (R390) 1. Peterson v. Halsted, 191, father who cosigned loan for daughters car not liable; accident was 3 years after signing. Osborn v. Hertz, 192, car rental company owes no duty for not checking driving record of sober customer. West v. Page 1 of 16

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East Tenn. Pioneer Oil, 192, gas station owed duty for selling gas to drunk driver. Kitchen v. K-Mart, 193, K-mart liable for selling gun to a drunk. f. Landowners/Occupiers i. Full status system (Carter v. Kinney): 1. Invitee (public/business visitor) INSPECT/REPAIR: a. Inspect/repair dangers that exist if warning not sufficient to remove dangers b. regular duty test; 2. Licensee (family member/social friend) WARN: a. licensee of known dangerous artificial conditions creating an unreasonable risk of harm where b. he doesnt know about the condition and isnt likely to discover it. c. Same precautions owner takes for self; 3. Trespasser (enters/remains w/o permission) NOTHING: a. no duty, exception: i. frequent/known trespasser reasonable care, duty to warn of hidden artificial danger, duty take precaution in activities. ii. Children - reasonable care with regard to artificial conditions. If child knows of the danger, understands it, and can avoid it, then LO owes same duty as would owe adult. 4. People outside land a. Liability for artificial and natural conditions (like trees). Must inspect and maintain so to not fall on others property or public highway. ii. Modified (Heins v. Webster County): combines licensee & invitee duty to exercise reasonable care. iii. Attractive nuisance doctrine. Requires that landowners 1. Exercise ordinary care 2. to avoid harm to children (probably not > 12) 3. which is due to a reasonably foreseeable risk 4. caused by a dangerous artificial condition 5. in an area where children are likely to trespass 6. Also, risk of injury must outweigh the cost of remedying the dangerous condition iv. Criminal issues (Posecai v. Wal-Mart Stores): general rule Biz owners have duty to take reasonable measures to protect patrons from foreseeable criminal attacks. Approaches to foreseeability: 1. Specific harm rule O has no duty to protect patrons from violent acts of 3rd parties unless aware of specific imminent harm about to befall them. 2. Similar incidents test foreseeability established by evidence of previous crimes on or near premises. 3. Totality of circumstances test takes into account factors such as nature, condition, location, prior incidents and anything else bearing on foreseeability. Focuses on level of crime in the surrounding area. 4. Balancing test: foreseeability/gravity of harm are balanced against the burden to pro tect against harm (hand formula). Used in P v WM, but bad test b/c collapses duty & breach. v. Exceptions to crime & duty: no duty to comply with robbers demands in hostage situation. (Boyd v. Racine Currency, 216) (KFC v. Superior Court, 217) Page 2 of 16

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g. Intra-family duties i. Reasonable parent test (Broadbent v. Broadbent): what the reasonable & prudent parent would do/not do under like circumstances. Newest test. ii. Goller case (in Broadbent): abrogated parental immunity, but said parents not liable for ordinary discretion, like food and clothing iii. Sandoval case (in Broadbent): parent not immune if he had duty to world at large. iv. Mother-Fetus 1. Bonte v. Bonte (227) Duty. Court allows suit against mother who injured baby while in womb. Remy v. MacDonald (227) No duty. Court does not allow suit by fetus against mother. v. Religion. Lundman v. McKown (227) Child sick but mother didnt seek medical attention based on religion. Father sued. Tort overrules religious belief. vi. Parent liability for children: generally none. Exceptions: 1. Duty to control acts of child committed in parents presence. 2. Exercise reasonable care to protect against known tendencies 3. Warn others about childs known violent tendencies 4. Prevent childs foreseeable use of dangerous items. h. Emotional harm duties i. Plaintiff as potential victim 1. Old rule: compensation only when mental followed physical injury. Ward 2. Falzone rule: Compensation when physical impact/ZOD + physical injury/symptoms. Falzone v. Busch a. Lawson v. Management Activities (269) Cali court rejects recovery for Ps near plane crash rather than car crash. Doesnt want to extend liability further. 3. Metro rule: compensation if physical impact (exposure to carcinogen) + symptoms a. Potter v. Firestone Tire and Rubber Co. (279) Recovery allowed in toxic case w/o illness if P exposed to carcinogen b/c of Ds negligence & Ps fear corroborated by reliable medical/scientific opinion that P will probably develop cancer in future. 4. Gammon rule: compensation when Ds conduct created reasonably foreseeable risk that P would suffer ED. No impact/exposure required. a. Baker v. Dorfman (284): ED action permitted against D who incorrectly informed P he had tested positive for HIV. ii. Plaintiff as bystander 1. Portee Test: death or serious physical injury + marital or intimate familial relationship w/ V + observance of injury or death at scene + resulting severe ED a. Thing v. La Chusa (291) No recovery for ED when mother only viewed consequences of accident. Necessary to view actual injury. b. Scherr v. Hilton Hotels Corp. (290) No recovery for ED when wife sees hotel husband is supposed to be in burning on TV. P not within sensory perception requirement. c. Barnes v. Geiger (290). No recovery for ED when mother, who died from trauma of ED, mistakenly but reasonably though her child was horribly injured. d. Sell v. Mary Lanning Mem. Hosp. (291) No recovery for mom after hosp. told her her son had died, even though he didnt. Continual crying, Page 3 of 16

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trouble eating & sleeping, and some medication were inadequate ED. Dissent though she deserved recovery. e. Elden v. Sheldon (293) No recovery when non-family member injured. Dillbary: bad decision. f. Barnhill v. Davis (290) Recovery allowed when man sees mother in car crash but shes not injured. Serious injury not necessary; test is whether RP would believe there was serious injury. g. Dunphy v. Gregor (294) Recovery allowed for fiance in death of her fianc. Marital relationship not necessary looks at duration of the relationship, emotional reliance, degree of mutual dependence instead. Dillbary: better result than Elden. h. Pizarro v. 421 Port Associates (293) P witnessed V being decapitated by elevator after freeing her leg. No recovery b/c even though she was in ZOD, she was not closely related. 2. Johnson v. Jamaica Hospital Baby abducted. Parents cant recover b/c not in ZOD; didnt contemporaneously observe serious physical injury or death. Court distinguishes between direct duty to child and indirect duty to parents. Indirect duty = no recovery. Foreseeability doesnt matter. a. Kalina: precedent case; hospital has no duty to parents for ED caused by circumcising son against their instruction. Uses direct-indirect distinction. But son can sue. [different from Johnson, b/c daughter cant sue] b. Larsen v. Banner Health (299): P can recover. Baby switch directly injured parent (baby was different color). c. Note cases i. Lester v. Sayles & Adcox v. Childrens Ortho. Hosp. (304): mothers recovered large damages when deprived of enjoyment of childs company. i. Economic harm i. General rule: no recovery for pure economic harm (must be coupled with physical/property damage). ii. 532 Madison: uses general rule; could have used ZOD instead. 1. Dunlop v. FMC (320): Dunlop recovers b/c FMC explosion causes property damage and loss of profits. Beck v. FMC (320): Beck doesnt recover b/c claim is just EL. 2. Bishop thesis: economic loss situations involve no net social costs, disappointed buyers will buy elsewhere, some lose & some win; Dillbary doesnt agree: retailer invests 40m in seasonal goods and expects 40m in profits. As a result of explosion, cant sell goods and they lose their value. Total loss is (80)+40 = (-40). 3. Connecticut Mutual Life v. New York & New Haven RR (323): Insurance company cant recover for EL after Ds negligence forces it to pay out a life insurance policy to decedent. j. Vicarious liability: Tort (T) committed, EE of ER, T w/in scope of ENT (Christensen) i. Birkner test for scope: EEs conduct must (i) be of kind EE hired to perform (not wholly personal), (ii) occur w/in hours & spatial boundaries of ENT, (iii) be motivated in part by serving ERs interest. (Christensen)

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ii. Justifications for VL (Schwarz): incentive to effectively select & supervise EE, discipline negligent EE, consider alternatives (robots), ER is best risk avoider iii. Rule for Independent Contractors (IC): Hirer not VL for IC (allocate risk to tech. expert) iv. *Exception for Agency: principal may be VL for conduct of agent w/in course & scope of agency. (Roesller v. Novak). Two types: express & apparent agency (AA) 1. VL AA elements: a reprn by purported PR, reasonable reliance on reprn (belief that A is an EE or agent of PR), change in position in reliance on appearance of agency. Rationale for AA VL : gives PR incentive to internalize (1) to make sure there is no confusion, (2) to be careful about who they contract with 2. Non-delegable duty (AA alternative): Florida (Novak concur.): hospitals VL for activities w/in hospital where P has no realistic ability to shop market for another provider. New York (St. Andrews): w/o proof that P entered hospital seeking treatment from particular physician rather than hospital itself, hospital cannot avoid VL for dr.s neg on basis that he was IC. 3. Rest 2nd 416, 427: Principal VL for IC when doing work that involves special danger to others which P knows or should know is inherent to the work, and when IC causes harm to others by failing to take reasonable precautions. v. Note case rule: Risk may be predictably created by the nature of the employment. Warner Trucking (22): employer liable for actions of driver/employee who drove drunk. Lisa M. (22): hospital not liable when risk of sexual assault by technician was not predictable. Bad case: Maloney (29): car owner liable for mechanics negligence. vi. Joint venture VL: when Ds have common purpose and mutual right to control. II. BREACH a. Reasonable Person i. RP: test for breach is what a reasonable person would do under the circumstances. 1. Ordinary prevision required, not gift of prophecy. Facility of protection may impose a duty to protect. Adams v. Bullock. a. (Greene, 42, mechanic not negligent for bending down when it was reasonable for P to see where he was and not trip. 2. Four elements of reasonableness: custom, knowledge, franchise, foreseeability*. Foreseeability most important. a. (Braun, 42, circumstances made injury from exposed wires more foreseeable) ii. Exceptions to RP: 1. Children: held to standard of reasonable person of like age, intelligence, and experience under like circumstances. Distinct defect: size, immaturity. a. Mastland (58) two-part test (1) subjective: what was the capacity of this particular child to perceive and avoid the particular risk? (2) objective: how would a reasonable child of like capacity have acted under similar circumstances? b. Exception: child engaged in adult activity, like driving, is held to regular adult standard. Dellwo (59) c. 6-7 y.o. exception: in some juris, presumed unable to be negligent. 7-14 y.o. exception: in some juris rebuttable presumption. Price v. Kitsap (59). 2. Physically disabled: standard of conduct = reasonable person under like disability. Distinct defect: wheelchair, seeing eye dog

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b. c. d. e. f.

g.

h.

a. Ramsbottom (56) Disabled D liable b/c took risks beyond a RP in like circumstances 3. Intoxication: no excuse to RP standard if intoxication is voluntary 4. Mentally ill: insanity or mental deficiency does not relieve the actor from liability for conduct which does not conform to standard of a reasonable man in like circumstances. Bashi v. Wodarz (57). 5. Genetics: no distinct defect, so no exception 6. Superior knowledge: person with superior attributes intelligence, training expected to exercise those. Hand Formula: C < P*L. Take cost-justified precautions, and free to create reasonable risk. Foreseeable Danger Test: reasonably prudent person is expected to do everything possible to avoid creating foreseeable dangers (regardless of cost of taking precaution) Community Expectations Test: a reasonably prudent person conforms to the prevailing expectations in the community about consideration for the safety of others Utmost care: standard of care higher than RP. Used to limit activities/risks we dont like: guns (Wood v. Groh, 52); common carriers (Andrews v. UAL). Deciding breach: usually a question for jury. Exception: when judges at peak of learning curve they elevate factual questions to legal questions. (Baltimore RR later overturned by Pokora) i. Note cases: Atkins (64): Like Baltimore RR, judge created standard for height of baseball fences; bad decision, should have been jury question. Heller (65): Woman lit cigarette and caught her hair on fire and judge gave case to jury; bad decision, judge should have decided it himself. Customs i. General rule: customs are factors to be taken into account, but are not controlling where a reasonable man would not follow them 1. Social policy concern with custom: race to the bottom; torts acts as regulator 2. Note cases: The T.J. Hooper (72), tug sank in the storm, lost goods, b/c it had no radio; claimed lack of radio was standard of care; court rejected custom and applied higher standard of care. LaVallee v. Vermont Motor Inns (73), plaintiff feel in room during power outage, sues for negligence saying they should have had emergency lights; D claimed it wasnt custom to have lights and court found custom reasonable. ii. Exception: custom may define appropriate level of care when certain accident in an industry is dangerous only to that industrys customers. (no externalities) 1. Doctors standard is to apply customary standards of medical profession in area in which doctor practices b/c potential victim is customer, transaction cost low, K to provide customary level of care, industry is regulated (b/c there is a minimum standard, no race to the bottom), good service incentive to keep customers returning Negligence per se (breach per se) i. General rule: violation of applicable statute = breach per se. Rationale: democratic process (application of standards the people have chosen); efficiency (legislature has already invested time/energy); separation of powers. ii. Rest. 286. Breach per se applies when purpose of violated law is (a) to protect a class of persons which includes the one whose interest is invaded, (b) to protect the particular interest which is invaded, (c) to protect that interest against the kind of harm

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which has resulted, (d) to protect that interest against the particular hazard from which the harm results. iii. Exceptions (Rest. 288A) (a) The violation is reasonable because of the actors incapacity; (b) He neither knows nor should know of the occasion for compliance; (c) He is unable after reasonable diligence or care to comply; (d) He is confronted by an emergency not due to his own misconduct; (e) Compliance would involve a greater riskto the actor or to others. iv. Cases: Martin v. Herzog (buggy w/o lights, BPS), Clinkscales v. Carver (77, stop sign but no ordinance, BPS), (Sweet v. Sisters of Providence (78, statute outdated or wrong, no BPS); Platz v City of Cohoes (82, statute not relevant to injury, no BPS); Gorris v. Scott (84, sheep washing overboard isnt damage contemplated by statute, no BPS); Tedla v. Ellman (complying with statute more dangerous than not, no BPS); Levy v. Nardo (80, violated highway statute in emergency, no BPS); Bassey v. Mistrough (81, unable to comply with law b/c of electrical failure, no BPS); v. Rule re licensing: absence or presence of license not generally used to set standards of care (Brown v. Shyne, 84, chiropractor performed treatment that should only be performed by licensed dr.). But Brown rule changed by statute so that practicing medicine without license was prima facie evidence of negligence. vi. Rule re compliance - it can be a defense but doesnt always free one from liability; vioxx story: even though drug dangerous, it received FDA approval. i. Proof of breach i. Direct evidence: proves fact w/o inference or presumption; ii. Circumstantial evidence: evidence that allows us to infer that other facts exist. 1. Actual Notice: one step away from direct evidence 2. Constructive notice D should have known. Test: defect must be (a) visible and (b) exist sufficient length of time to be discovered. Negri v. Stop & Shop (broken baby food jars, yes CN), Gordon v. American Museum (napkin on step, no CN), Faricelli v. TSS Seedman (89, black banana insufficient, no CN). 3. Modus operandi: ex: evidence of doing the same thing at same time every day for a long time. Not necessarily relevant to narrow matter of breach on specific day, specific place (Moody v. Haymarket, 89) 4. Business practice rule: because of nature of business, owner should anticipate dangerous conditions (1970 Vermont case, 90, self-serve fruit displays) iii. Res Ipsa Loquitur: permits inference of breach. Shifts B/P to D. 1. Elements: (a) instrumentality must be under the control or management of D; (b) experience shows that such an accident would not have occurred unless D was negligent; (c) P's injury must have resulted from the accident. 2. Cases: Byrne v. Boadle (Man struck by flour barrel, yes RIL); McDougald v. Perry (Man injured by spare time, yes RIL); Watson (fishing boat disappeared, not uncommon, no RIL); Ybarra v. Spangard (P injured while unconscious during medical treatment, uses test of right of control not actual control, all Ds who had right of control presumed negligent); Firemans Fund American Insurance Cos. v. Knobbe (109): Ybarra & RIL not applied in case where P was unable to show which hotel guests had smoked negligently & caused hotel fire. Like hypo where P can recover from any tenants in multi-story building after flower pot falls on his head. Ybarra was for medical cases and cases where control is narrowly construed. Doesnt apply here. III. CAUSATION Page 7 of 16

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a. Cause in fact i. But for test: but for Ds conduct, P would not have been hurt; can be multiple but for causes; P has B/P for causation (50+% probability); statistical evidence can be used, but remember correlation is not causation. Stubbs v. City of Rochester 1. Anderson v. Minneapolis, 359, example of case where But For doesnt work; two fires burn separately and each is but for cause of house burning. ii. Substantial Factor: Use only when but for does not work, e.g. two fires burn separately and each would burn house; neither is 50+% but for cause. Ds breaching conduct was major contributor to Ps harm. Shift B/P to D inference of causation. 1. If a negligent act is deemed wrongful because that act increased the chance that a particular type of accident would occur, and a mishap of that very sort did happen, this is enough to support a finding by the fact finder that the negligent behavior caused the harm (Zuchowicz v. US, danocrine overdose causes PPH): 2. Hinman v. Sobociesnski (357): woman falling on dimly lit stairs adequate to allow inference of causation. iii. Lost chance theory: due to Ds negligence, P lost some chance for recovery. Albert v. Schulz. Limited to medical to medical malpractice situations. Hardy (369), Rest. (3rd) 26 cmt. n. 1. Damages calculated as Original Probability of Recovery [P1] minus Current Probability [P2] times Damages: P1 P2 x Damages. 2. Falcon v. Memorial Hospital (367): raffle ticket analogy: lost chance is like paying for someone for a raffle ticket lost in a fire. iv. Joint & Several Liability [indivisible harm, VL, or Ds acted in concert] 1. Joint liability: P can recover 100% from each of the Ds. All tortfeasors are responsible for the total damages, even if they only cause a portion. One tortfeasor may have to pay on behalf of others if theyre insolvent. 2. Several liability: Each D is (usually) responsible for his part, so P may bring a separate action against one D without joining the others. D1 pays for hand he hurt. D2 pays for leg he hurt. Some states require several liability by statute. 3. Joint & Several liability: may be apportioned either among two or more parties or to only one or a few select members of the group, at Ps discretion. Each D is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from nonpaying parties. 4. Joint tortfeasors: when two or more individuals either 1. Act in concert to commit a tort 2. Act independently but cause a single indivisible tortious injury 3. Share responsibility for a tort because of vicarious liability 5. Alabama doesnt recognize right of contribution v. Alternative Liability 1. 433B(3): when P proves that one of the Ds has caused harm but cannot prove which one caused it resulting in a shifting of the B/P to each 2. Rationale for AL: High chance (50/50) each D did it when 2 people; Fairness: Both Ds breached their duty of care to P; Access to info: Burden shifting increases access to info. Ybarra; Evidentiary damage (Dillbary rationale) w/o AL Ds would be rewarded for damaging the evidence of another breach by getting off. Summers v. Tice 3. Cases: Loui v. Oakley (378, P hurt in an auto accident by D, hurt same area of her body in three subsequent auto accidents. Court applies Summers rationale, Page 8 of 16

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holds all four Ds liable for injuries. Dillbary: bad decision. Should have decided that P was at fault for destroying evidence.) vi. Market share liability: 1. Liability imposed severally on each member of industry based on each members share of the market. Applies when P cannot trace harmful exposure to a particular seller/manufacturer/product. Several liability (to get 100% of damages you have to sue all Ds). Ignores causation. 2. Hymowitz v. Eli Lilly & Co. majority approach national market share. Even if D didnt sell in a particular place, still liable for damage there based on national market share. Rationale: not unjust, b/c over time everyone pays their share. Dissent approach Ds who can show they didnt sell DES in a market, shouldnt pay for damage there. If D cannot show whether they sold DES there or not, theyre included in the pool and have J&S liability. Dillbary likes this. 3. MSL v. Strict liability: SL is w/o fault but w/ causation. MSL is w/ fault but w/o causation. b. Proximate cause draws a line on BF causation i. General Rule: whether the D should have reasonably foreseen, as a risk of her conduct, the type of harm suffered by P would occur. 1. Foreseeability as to: a. Type of harm yes b. Manner in which harm occurred no c. Extent (magnitude) of harm no 2. Eggshell plaintiff rule: D must take P as he finds him, even if he must compensate P for harm an ordinary person would not have suffered, i.e. extent of harm wasnt foreseeable. (Benn v. Thomas) 3. Wagon Mound I: P owned a wharf, Ds ship leaked oil into the water, P took precautions in case oil was flammable, but eventually the oil caught fire. P cannot recover b/c D could not reasonably foresee, as a risk of its conduct, the type of harm created. Overturns Polemis, where direct causation was used, not proximate cause. 4. Darby v. National Trust (413) D failed to warn that lake contaminated, swimming could cause Weils disease. P drowned. No PC b/c injury was not the type of harm foreseeable from Ds breaching conduct. Restatement (3rd) 29: an actors liability is limited to those physical harm that result from the risks that made the actors conduct tortious. 5. Berry v. Sugar Notch Borough (415) D tram driver exceeded speed. Tram was further down track than normal, and tree fell on top of it (tree falling wasnt caused by speed).Type of harm was not expected, so no liability. ii. Superseding cause. Rule: an intervening force is only superseding if it is extraordinary not foreseeable under the circumstances. 1. Doe v Manheimer P meter reader claims D was negligent because his failure to cut his bushes back led to her assault and rape. Bottom line: if the intervening force, even if intentionally criminal, is foreseeable it is not superseding cause. Original breaching actor will be held liable. Based on Rest 442B. a. Hines v. Garrett, 423, D liable for rape b/c forced P to walk through a dangerous area where 3rd party raped her. [same test as Doe, but found rape foreseeable.]

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Torts Outline, Fall 2010 b. Pridham v. Cash & Carry Building Ctr., 406, D is liable for further injuries resulting from 3rd party efforts to render aid, even if theyre negligent. Ambulance crashed on way to hospital, killing plaintiff.

II. DAMAGES III. DEFENSES a. Comparative damages awarded based on percentage of fault as decided by jury (majority rule). Some juris = pure comp neg. Some = juris. modified P only recovers if fault no 50+%. b. Contributory no damages for P, if P also negligent. Elements same as tort of negligence, but duty is to ones self. Complete defense, all or nothing. (minority rule). i. Limitations: causation (cause in fact + proximate cause), not a defense to intentional tort or reckless conduct, last clear chance doctrine (442, if Ds neg was after Ps contrib. neg and D failed to use the last clear chance to avoid the injury, Ps neg is ignored and P gets complete recovery), certain safety statute exception c. Comp v. contrib.: comp neg leads to over-investment in precautions (Posner) or underinvestment (Calabresi). Comp neg led to 30% more deaths in states using it. d. Fritts rule: a physician may not avoid liability for negligent treatment by asserting that the patients injuries were originally caused by the patients own negligence. (Fritts v. McKinne). i. Exceptions: if patient (1) fails to reveal medical history, (2) provides false info, (3) fails to follow physicians advice, (4) fails to seek further recommended medical attention. ii. Contradiction of Fritts rule: (1) If P is neg driver, Dr. cant use comp neg against him. Dr. pays all damages for malpractice. (2) If P is passenger, he sues driver and & Dr. Driver & doctor J&SL for Drs malpractice. Dr. may pay less. Possible explanation: in (1) implied agreement b/t P & Dr shields P. iii. Wolfgang v. Mid-America Motorsports (463): B/c P was only suing for excess harm, its not relevant how the injury occurred in the first place. We just evaluate how the injury was aggravated. e. Assumption of risk P cannot recover if (1) P knows a particular risk and (2) voluntarily (3) assumes it. i. Express AOR: arises when agreement (written/oral), analyzed as matter of duty, not a defense a bar to claims. AOR agreements enforceable if (1) freely & fairly made, (2) between parties w/ equal bargaining power, (3) does not interfere with social interest. 1. Tunkl test on public policy. Express agreement is invalid if (1) business suitable for regulation, (2) D provides important/necessity service to the public, (3) D is willing to provide services to any member of the public, (4) advantage of bargaining power against members of the public, (5) standard agreement & no option to buy insurance (w/ price premium), (6) there is a foreseeable harm 2. Dalury v. S.K.I., Ltd.: no AOR. Policy rationale is to place responsibility for maintenance of land on those who own/control with ultimate goal of minimizing accidents. Dillbary: bad rationale, we want cost-justified accidents. 3. Cases: Bacchiocchi v. Ranch Parachute (471, option to pay more and not release the parachute company from risk), Leon v. Family Fitness Center (472, claim allowed despite release form b/c injury suffered bench collapsing in sauna wasnt anticipated by / related to the release.) ii. Implied AOR: implied from the circumstances Page 10 of 16

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1. Primary: arises when risk is inherent, analyzed as a matter of duty, not a defense a bar to claims. a. P assumed risk of falling when riding flopper. Murphy v. Steeplechase Amusement. Dillbary: bad, he didnt assume risk of injury b. Sport rules: i. No liability unless D intentionally injured another by engaging in conduct so reckless as to be totally outside the range of normal activity in the sport. Knight v. Jewett (478). ii. Liability if D engaged in sport breached duty of RP under circumstance. Lestina v. West Bend Mutual (478). iii. Drunk D liable in skiing injury b/c he increased risk beyond that which is inherent. Freeman v. Hale (479). iv. Ski company not liable when P hit ski lift tower b/c it is an inherent risk. Connelly v. Mammoth Mt. Ski Area (479). 2. Secondary: arises when P knowingly assumed risk created by D, real defense: comp neg juris would reduce Ds liability, contrib. neg juris would bar it completely. a. SIAR can be used in a comparison of neg in comp neg juris. Davenport v. Cotton Hope Plantation. IV. STRICT LIABILITY a. SL = liability w/o fault (no duty or breach, just causation) i. Categories: dangerous animals (wild R506, domestic R509, livestock R507), abnormally dangerous activities (R519-520), product liability 1. R520 factors: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. b. Fletcher v. Ryland 1: SL for activities on Ds land that injured neighbors land. i. Possible exceptions: Ps fault, Act of God c. Flether v. Ryland 2: SL for non-natural activities on Ds land. i. Turner v. Big Lake Oil (513): example of case where D not SL for water spill (opposite of Ryland) b/c court doesnt water to discourage water collection in TX. ii. Cities Service Co. v. State (513): applies SL in Florida dam breaking b/c didnt like the activity holding slime in a dam. d. Hay (in Sullivan): balancing of property right: better to deprive one of one use of his land than to allow his neighbor to be deprived of his use altogether. e. Sullivan v. Dunham: SL for non-natural activity on Ds land that results in injury or death of person on public property. Dillbary: bad rationale, we should compare value of activities, which one do we like more. f. Indiana Harbor Belt: neg is baseline, but when we cant prevent a type of accident by taking precaution, we may want to shift the activity OR reduce its scale, so we use SL to gives that incentive. When an activity is socially desirable, even if its dangerous, we want to incentivize precaution-taking through a negligence regime. Dillbary: good rationale V. PRODUCTS LIABILITY a. Product chain: M wholesaler/distributor retailer consumer 3rd party b. Manufacturing defect (SL): one irregular product when line of products is otherwise OK. Page 11 of 16

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i. Rule: M has duty to inspect and is responsible for the finished product. ii. Progression of cases: 1. MacPherson v. Buick (NY, 1916): car wheel breaks. no privity required to sue M. [negligence theory]. Rationale: M is best risk avoider, best decision maker, best risk spreader, more fair. Dillbary arguments for privity: extending duty beyond K forces M to insure everyonebetter if theres separating equilibrium. 2. Escola v. Coca cola (CA, 1944): coke bottle explodes in waitress hands. Traynor dissent said SL (not negligence) should be used in PL cases. Rationale: RIL doesnt work. D overcame inference of breach, but court still held them liable. Court is basically imposing SL, so lets call a spade a spade and use SL. More rationale: M is best risk avoider; public policy: even if no negligence, SL most effectively reduces hazards to life & health; M is best risk spreader, i.e. M can insure the cost of injury & distribute among public; trademarks have signaling effect of quality M should be held to the promise they make with their name/image. 3. Greenman v. Yuba, 561 (CA, 1963): SL actually applied in PL case. 4. Vandermark v. Ford, 561 (CA, 1964): SL for retailers in PL cases. Rationale: indemnification agreements allow M & R to spread risk between them; Rs are integral part of producing & marketing enterprise; R may be able to ensure safety; R may put pressure on M; R is convenient to sue (low litigation cost). 5. Elmore v. American Motors, 562 (CA, 1969): bystanders can also sue on SL. iii. Expanded Rule: It does not matter when the defect occurred in the chain of distribution every seller, member of the chain, is liable even if not at fault. [Welge v. Planters Lifesavers, 568 (peanut jar)] c. Design defect (foreseeable risk + could have been avoided by RAD): inherent flaw in the standard design of the product the whole line of products is flawed i. CALIFORNIA (Rest. 2nd 402A minus unreasonably dangerous). 1. Cronin v. JBE Olson Corp., 569, court applies R402A (one who sells any product in a defective condition unreasonably dangerous to the user or consumer) but removes unreasonably dangerous b/c rings of negligence. 2. Barker, 570, gives two prong test: a. Consumer Expectations Test: P demonstrates that the product failed to perform as a safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. (like RP standard). When using CET, expert testimony not allowed. Four CET elements in Soule v. GM [causation added]: i. Ms product failed to perform as safely as ordinary consumer would expect ii. Defect existed when product left Ms possession iii. Defect was a proximate cause of Ps enhanced injury iv. Product was used in a reasonably foreseeable manner b. Risk Utility Test: when product is complex. The risk of danger inherent in the design outweighs the benefits of such design. Factors: gravity of danger, likelihood danger would occur, mechanical feasibility of safer alternative, cost of an improved design, adverse consequence to product & consumer of alternative design. (like Hand formula). Need/allow expert testimony. Must show RAD. ii. COLORADO (Rest. 2nd but keeps unreasonably dangerous) Page 12 of 16

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1. Consumer Contemplation Test: Majority in Camacho: CCT not effective test in most cases just when danger is very clear. Dissent in Camacho: endorses CCT. article sold must be dangerous to an 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. [402A comt. i] 2. Risk Utility Test based on Ortho: balance risks & utilities using the following factors: a. Usefulness and desirability of the product b. Safety aspects of the product: probability of injury & potential gravity c. Availability of a safer substitute d. Ms ability to make the product safer w/o impairing its usefulness or making it too expensive e. Users ability to exercise care when using product f. Users awareness of dangers/existence of warnings g. Feasibility of spreading the cost of risk through pricing or insurance 3. Rest 3rd : No CET, just RUT, and must evaluate RAD a. Must compare comparable products (Dyson, 580), not Ford & Ferrari b. Price is relevant (Dreinstock, 580); market can have diff products with diff. levels of quality. Of course if an article can be made safer through alt design at no substantial increase in price, then fix it 4. Crashworthiness Doctrine: motor vehicle manufacture may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect , though not the cause of the accident, caused or enhanced the injuries. [you have to design your car to crash well.] (Camacho). iii. Reasonable Alternative Design (RAD) (Rest. 3rd PL 2 comt. F) (579): 1. Dyson v. GM, 580, must compare comparable products, dont compare Ford to Ferrari or hard top car to full frame sedan. 2. Dreinstock v. VW, 580 Price is relevant, market can have diff kinds of products with diff levels of quality, VW bus should be compared to similar vans. Of course if an article can be safer by an A.D. at no substantial increase in price, then they should make it safer. iv. Note cases 1. Misuse or unintended use of a product isnt a complete defense to design claims if the use was foreseeable (screwdriver to open paint can, cars that hit trees) (605) d. Warning defect (foreseeable risk + could have been avoided by reasonable warning): if foreseeable risk that could have been reduced or avoided with a warning, M must warn. Rest. 3rd PL 2C. i. Hood v. Ryobi: warning must be reasonable under the circumstances; doesnt have to warn of every possible mishap. Weigh the benefits of detailed warning against its costs. Sub-rule (for combined design defect & warning claims): M does not have a duty to predict that a consumer will violate clear and easily understandable warnings (603). But warnings dont defeat liability for a defective design (603). 1. Potential costs of warning: a. Too many warnings undermine effectiveness. More is less b. Diminishing marginal utility every additional warning will at some point reduce the value of the others. Page 13 of 16

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c. Exhaustive warnings: no one reads more dangerous d. Opportunity cost of having to sit down and read booklet for an hour. e. For perfume bottle, one cost might be the aesthetic cost of putting a warning on the bottle. 2. Exception: Moran (600): teenagers try to make scented candles by pouring perfume on candle. Moran Rule: the cost of giving adequate warning is usually so minimal only amounting to the expense of adding some printing to a label. 3. Note cases: a. Warning adults v. children. General rule: warnings must reach the person who is likely to use the product. Bean, 602: warnings on lighters need to be adjusted for kids. Kirk, 602: no duty to warn children about lighters when adults are the primary buyers. b. OBrien v. Muskin (582) dissent: if there is no RAD, an adequate warning may free M from liability. c. Camacho dissent (590): if a product is obviously dangerous, like motorcycle, use CCT. ii. Edwards v. Basel Pharmaceuticals 1. General rule: a M is required to warn consumers of danger associate w the use of its product to the extent the M knew or should have known of the danger. 2. Learned Intermediary Doctrine (LID): exception to Ms duty to warn when doctor acts as learned intermediary b/t patient and prescription drug M. (Dr. has duty to actively inform himself of the qualities characteristics of the products he prescribes.) a. Exceptions to LID: (1) Mass immunizations, (2) FDA requirement, (3) When product is advertised to consumer(3) comes from Perez v. Wyeth, p 610. (similar to the normal foreseeable risk test). KNOW THIS FOR THE TEST. ******* iii. SL v. Knowledge 1. Vassallo v. Baxter Healthcare Corporation a. Old Rule (Hayes & Beshada): Strict liability. M presumed fully informed of ALL risks associated with product, regardless of state of the art, and M is SL for failure to warn of a risk. i. Rationale: risk spreading, accident avoidance, reducing costly trials. From Beshada (614) b. New Rule: Negligence Standard: Rest. (3rd) on PL 2(c) & cmt. M. i. D will not be held liable under IWM for failure to warn about risks that were not reasonably foreseeable at time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. ii. M held to standard of knowledge of expert in appropriate field. iii. M subject to continuing duty to warn of risks discovered following the sale. c. Rationale: Goal of the law is to induce conduct that is capable of being performed. Dillbary: not a good argument. Doesnt cancel out Beshada. 2. Aquadot Toys (internet article): toys have chemical that turns into GHB. Recall Simonsen (138): even if M isnt negligent in selling the toy at first, once it knows about the risk, it has a duty to go back and fix it. 3. Lovick v. Wil-Rich (618): M has duty to warn of dangers after sale if: Page 14 of 16

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a. Seller knows or reasonably should know the product poses a substantial risk b. Those who would benefit from the warning can be identified & are likely unaware of the risk c. Warning can be effectively communicated and acted upon d. Risk of harm is sufficiently great to justify the burden of warning. e. Products Liability Defenses i. AOR, product misuse, comparative/contributory negligence are defenses to PL, even though they compare SL (apples) to negligence (oranges) ii. General Rule: M must design its product as safely as an ordinary consumer would expect and warn against (a) intended and (b) unintended but foreseeable use. (Barker from California, 570) iii. Old rule. Keen: Consumer has no duty to discover & guard against a product defect. iv. New rule: Consumer has no duty to discover or guard against a product defect, but a consumers conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. GM v. Sanchez (man killed after truck popped out of gear, rolled back). 1. Comparative Responsibility: used to compare respon. when one party is subject to SL and the other is subject to negl. 2. R3rd 17(a); comment d. p. 623: Ps conduct should be considered to reduce damages to recovery if it fails to conform to applicable standards of care. v. Missouri rule re consumer modifications of product (Jones v. Ryobi, design claim, printing press): P must prove she was injured as a direct result of defect that existed at the time the product was sold. M is not liable where a 3rd modification renders a safe product unsafe even if the modification is foreseeable. vi. New York rule re consumer modification (Liriano v. Hobart Corp., warning claim, meat grinder): 1. M is not liable for injuries caused by substantial alterations to the product by a third party that render the product defective or unsafe (Robinson, 634). 2. BUT, M has a duty to warn of danger of unintended but reasonably foreseeable uses of the product. Accordingly a. Where a product is purposefully manufactured to permit its use w/o a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety feature (Lopez, 634). vii. Arizona rule re consumer modification (Anderson v. Nissei, 638), design & warning defect). M liable when product defect required consumer to make a product modification for it to work effectively, mod was therefore foreseeable, and the mod led to the injury. viii. Illinois factors to establish foreseeability of consumer mod (Spurgeon v. Julius Blum, 639): machine guard is easy to remove, difficult to replace, must be removed frequently for cleaning, or the guard inhibits the task the machine performs. f. Warranties (560) i. Express warranty ii. Implied W of merchantability iii. IW of fitness for particular purpose g. OTHER/GENERAL i. R 2d 402A:

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(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. ii. R 3rd PL 2: 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: (a) 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; (b) 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; (c) 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.

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