Torts Fall 2011 Outline

Negligence
A. Defendants conduct imposes an unreasonable risk upon another, which results in injury to that other
Four elements to a prima facie case 1. DUTY A legal duty requiring D to conduct himself according to certain standards, so as to avoid unreasonable risks to others 2. BREACH failure to conform his conduct to this standard: lack of reasonable care 3. CAUSATION showing that Ds conduct was the cause (in 2 ways) of Ps injury i. Cause in Fact: Ds failure to act with reasonable care was the cause-in-fact of the injury to the P a but-for cause a cause without which the injury would not have occurred ii. Proximate Cause: a close causal link between Ds act of negligence and the harm suffered by P; D is liable as a matter of policy 4. DAMAGES the injury suffered by P; returning the P to the condition they were in before the harm. 5. Hammontree v. Jenner: Liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence. B. Vicarious Liability 1. Shifting liability from A onto B because of some special relationship between the 2; 2. respondeat superior doctrine: if an employee commits tort during the scope of his employment, the employer is jointly liable. 3. Employee (applies) vs. Independent Contractors (does not apply) i. Independent Contractor is hired to produce a certain result but is not subject to control of the one who hired him ii. Employee one who works subject to the control of the person who hired him 4. Scope of Employment- acting with intent to further employers business purpose (still applies when this intent is coupled with personal intent, and if act is forbidden by employer because doctrine is irrespective of employers negligence) 5. Christensen v. Swenson: Security guard hits plaintiff car outside gate. The fact that an employees tortious act was committed outside the property of the employer is not a per se bar to recovery under respondeat superior. i. Birkner Test: 1. what was agent doing? (duties to secure area, driving within area) 2. when and where? (she was within hours of employment and in the area of plant) 3. why? (take lunch breaks, better for morale serves employers interests) ii. Arg. FOR Vicarious Liability 1. incentive for employers to use practices to minimize accidents 2. incentive for employers to be stricter when hiring 3. employers can afford to pay for the damages 4. E. Independent Contractors (exceptions) 6. Roessler v. Novak: P went to SMH hospital from referral, radiologist at hospital misread scans and P was injured. P sued hospital and all doctors under vicarious liability (radiologist is agent of SMH), SMH says radiologist is independent contractor therefore not vicariously liable. New trial, different standard for doctors portraying as employees. i. 3-prong scope of employ. test: (1) yes, (2) yes, **(3) reading for hospital OR for radiology company contracted by hospital? 1

ii. Apparent authority vs. actual authority- the easiest way to be an agent is to be an employee of the company--- apparentauthority which the principal knowingly tolerates or permits, or which the principal by its actions or words hold the agent out as possessing 1. only where the principal created the appearance of an agency relationship 2. if reasonable person believes they are acting within reason of authority iii. Restatement of Torts (3)- Apparent Agency--- agency standard: principal may be held liable for acts of its agent...only if 3 elements are present: 1. representation by principal: hospital never explicitly told P that radiologist worked for them 2. reliance on that representation by 3rd party 3. detriment: change in position by 3rd party relying, caused his detriment

C.

BREACH- Ds conduct imposed an unreasonable risk of harm on P due to Ds carelessness

(NOT about what happened; only about Ds actions without hindsight to what actually occurred were they reasonable or not) i. P has burden of proof that D was negligent D. Standard of Care 1. Ordinary Care i. Brown v. Kendall: Dogfight Stick to the eye. D not negligent because it was an accident (lawful and unintentional & exercising ordinary care under the circumstances. 1. Ps burden of proof to show LACK of due care: a. burden of production of evidence to allow a rational fact finder to find that the facts prove the breach b. burden of persuasion you must persuade the jury by a preponderance of the evidence D No Fault D - Fault P No Fault D wins P wins P Fault D wins D wins 2. Reasonable Person Standard i. Objective standard ii. whether a reasonable person of ordinary prudence would have conducted himself as D did under the circumstances; would he have: (a) recognized the risk, and (b) have striven to avoid it iii. Foreseeability of the risk: could D have foreseen that type of risk, therefore should have prevented against it? iv. Adams v. Bullock: Boy electrocuted by wire on trolley line when playing. D has a reasonable care duty: if P exercised ordinary caution accident would not have happen. No breach. couldnt foresee that type of harm, therefore shouldnt be held liable for not protecting against it v. US v. Carroll Towing: Ds barge broke away from its ties due to bargees negligence. the barge collided with another which caused it to sink and the cargo was lost (cargo belonged to the US P); D was negligent, had bargee been aboard during the busy time and business hours the accident could have been prevented. 1. Learned Hand Theory: liability exists if the BURDEN (B) on D to prevent the risk is LESS than the GRAVITY (L) of potential injury times the PROBAILITY (P) that harm will occur from Ds conduct, and D fails to take the precaution to prevent that risk B < L(P) 2. if the B is less then L(P) = D was negligent in not doing B 2

vi. common carriers: 1. Bethel v. NYC Transit Authority: my seat collapsed on the bus. No breach; 2. Utmost care standard no longer applies, it was determined at a time when common carriers were more dangerous. There is no difference between utmost car and strict liability. The Court decided that the reasonable person standard allowed for flexibility of the circumstances. 3. Railroad Cases i. Baltimore & OH RR v. Goodman: Didnt look before crossing the tracks. View was obstructed so Goodman drove slowly & hit by train and died. D was contributory negligent D should have gotten out and looked for train ii. Pokora v. Wabash RR: DISTINGUISHED GOODMAN; Looked and listened before crossing the tracks, still got hit. Reversed from Goodman because it is a question for jury cant set rules like Goodman because each case is different; too broad in Goodman to require drivers to get out and look CIRCUMSTANCES consideration 4. Industry customs i. Andrews v. United Airlines, Inc: The bag fell from the overhead compartment and hit P in the head. Summary judgment for UA reversed, question for the jury. Could have been foreseeable and D didnt prove that using the netting was too expensive; others in industry were using nets, therefore could be Ds negligence; under the circumstances considers industry practices 1. Ds knowledge of the potential risk potential duty of D to discover risks that are unknown to it to begin with ii. Trimarco v. Klein: P tenant injured when he fell through glass door in Ds building. Standard of reasonableness based on industry standards of shatter proof glass, or conduct under circumstances? New trial ordered; there was no common law duty on the landlord to replace the glass unless given prior notice- by way of notice or similar accident question for the jury. E. Statutes/ Negligence Per Se 1. Negligence per se doctrine: when safety statute has a close application to the facts of the case, an unexcused violation of the statute is negligence per se and D cannot argue it was too-high a standard of care i. Third Restatement 14- an actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actors conduct causes, and if the accident victim is within the class of persons the statute is designed to protect ii. Three requirements: 1. D violates statute 2. The statute was designed to protect against the same type of accident that occurs 3. The accident victim falls within the class of persons the statute was designed to protect iii. Martin v. Herzog: Car crash with buggy; no headlights and crossing the middle lane. Plaintiff violates statute requiring lights on buggies. P cant recover because of his own negligence per se in causing the accident. iv. Telda v. Ellman: Junk collectors walking on wrong side of highway in violation of statute saying pedestrians must follow traffic laws and gets hit by D; Doesnt follow Martin; the statute is NOT a safety to protect others and themselves, just rules of the road; cannot assume legislature wanted strict adherence when following statute would have put P in their own danger: valid excuse 3

F. Proof of Negligence

1. Plaintiffs burden of proving that Ds conduct fell below standard of reasonable care i. P must show Ds (actual or constructive) knowledge of the defect 1. Constructive Notice defect is (1) visible and apparent, AND (2) existed for sufficient length of time for Ds employees (or D) to discover and remedy it 2. Slip and Fall Cases i. Negri v. Stop & Shop, Inc: P slipped on dirty broken baby food jars in the aisle and fell & was injured. D had constructive knowledge of dangerous condition which caused Ps injuries it was foreseeable that someone would slip and fall if the mess wasnt cleaned up the jars were there for over 2 hours. Stores duty is to clean it up if they had knowledge.. ii. Gordon v. American Museum of Natural History: P slipped and fell on wax paper on steps of Ds museum; D did not have constructive notice of danger 1. yes paper was visible, BUT 2. no evidence it was there long enough that D should have cleaned it 3. Business Practice Rule: mode of operation- Alternative to Constructive Notice: if the way a business is run creates foreseeable risks, the business duty is to take steps to protect against them P does not have to show D had notice; Ds burden of proof to negate negligence (that it was taking reasonable precautions under the circumstances) i. Note Case- Kelly v. Stop & Shop- P slipped on wet, slimy piece of green lettuce at a selfservice salad bar. Customer doesnt need to prove notice when the business practice of the store provides a continuous and foreseeable risk of harm to customers. G. RES IPSA LOQUITUR: the thing speaks for itself P can point to the fact that an accident occurred to allow an inference that D was probably negligent (lower burden for P to prove Ds negligence use it when you cant state exactly what D did that was negligent).. Burden shift to D to disprove negligence. Factors of prima facie case 1. No direct evidence of Ds conduct 2. Seldom occurs without negligence 3. The instrument that caused the injury is in the exclusive control of the defendant 4. Plaintiff is completely free from blame 5. Evidence is more accessible to the defendant i. Byrne v. Boadle (92): P injured by falling barrel from Ds window. D has the duty to prevent barrels from falling out of the window and P doesnt have to prove negligencethe act in of itself is negligence. The only people who can prove negligence is D and they wont do that. (P has made its prima facie case through res ipsa loquitur inferring negligence) ii. McDougald v. Perry (95): P driving behind Ds truck when tire came loose and hit Ps car; res ipsa case. This type of accident doesnt happen except for someones negligence, (2) tire was completely in Ds control, and (3) P was not negligent in any way jury can infer Ds negligence and now D must disprove it iii. balancing of burdens: P shows little bit of evidence of Ds negligence shifts burden to D to disprove it (with res ipsa); in CA if D can create a rebuttable presumption with evidence that casts doubt on P, burden back to P to prove negligence (D wins); other states say the inference is stronger than rebuttable presumption, then Ds burden and P wins. iv. Ybarra v. Spangard: P patient underwent surgery and sued all Ds (doctors, nurses, etc.) when he suffered injuries after surgery; P couldnt show WHO was negligent, but SOMEONE was (1st requirement of res ipsa), P was unconscious (3rd requirement); using res ipsa all those who were in control of P (2nd req.) and the instrumentalities that caused 4

the injury (all Ds) should be called upon to disprove their negligence P cannot be required to point to which individual caused the injury; was unconscious, unreasonable burden for P BUT Ds are in the position to disprove their own negligence H. Medical Malpractice: if D has superior level of knowledge/skill due to field, they must act within that standard commonly possessed by members of the profession in good standing 1. The professional will not be held to guarantee a successful result. Liable for malpractice only if he acts without the requisite minimal skill and competence. 2. expert testimony requirement in these cases so jury knows what the standard SHOULD be is proper to allow the use of expert medical testimony to inform the jurys decision on the standard of care for res ipsa loquitur P cant point to what caused the negligence but the jury has no common knowledge of that type of procedure therefore they need expert testimony to bridge the gap) 3. Sheeley v. Memorial Hospital: P underwent procedure and suffered injuries from it, at trial judge erroneously denied testimony of another doctor as to the knowledge/practices of that type of doctor and the procedure; use NATIONAL standards (no longer strict locality rule) any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard i. justification for National Standard: medical technology and education of doctors is advanced far enough to allow doctors outside that specific town or field to testify as to the standard of care 4. Sides v. St. Anthonys Medical Centeri. Restatement (2) 328D- that a plaintiff in a medical malpractice case can proceed on a res ipsa theory where the plaintiff offers a medical experts opinion that the injury would not have occurred in the absence of negligence by defendant. ii. The P got E.coli infection in the surgical site. Case was dismissed because only expert testimony could prove that this was something that happens only in negligence. D argued that P cant claim res ipsa & have an expert witness. Restatement changes that. Reversed.

I. DUTY & ITS LIMITATIONS

1. Duty of behaving towards the plaintiff with the degree of care that a reasonable person would in like circumstances. 2. Failure to Act- Law does not impose a general duty to act- generally a person cannot be held liable for not acting. 3. Exceptions to the No Duty to Rescue- Affirmative Obligations to Act BUT there are duties to act where a special relationship exists between the parties; special relationship types: i. common carriers & inn keepers ii. public land holders and their invitees (landlord/tenants, school/students, business/ invitees, employer/employees in imminent danger or injured) iii. undertakings- those who have custody of another who has no avenue for self-protection 4. Social Hosts normally no duty to act i. Harper v. Herman: P dived into three feet of water off of Ds boat, D didnt warn him. P erroneously claims that he was in Ds custody which was his special relationship. Rejected by the court; superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. ii. Voluntary Aid: Farwell v. Keaton: P & D were friends out drinking and D left P in the backseat to die after a fight. D had a duty to get help because created a special relationship with P, an undertaking--- by putting him in the car, giving him ice, and trying to wake him up. D also CREATED a special relationship of companions on a social 5

venture. D knew or should have known of Ps peril, he has a duty to render reasonable care under circumstances D was the proximate cause [NOT cause-in-fact attacker] = Ds negligence proven iii. most states have good Samaritan laws to encourage people to help without fear of being held negligently liable if they dont do enough 5. Duty to Third Parties: Randi W. v. Muroc Joint Unified School District: P is 13-year old girl who sued D (employers of teacher who sexually abused her) for putting affirmative recommendations in his file therefore he was hired by her school. Liability may be imposed if the recommendation may account to affirmative misrepresentation half-truths are believed to amount to the whole truth by future employers with recommendation letters = lie (was NOT nondisclosure [which carries no duty without a special relationship] because the future employers relied on the recommendations and where there was SOME recommendation, it should have been complete and not misrepresentation of the truth) dont have to offer recommendation so once they do, it must be honest. i. Restatement 310, 311, 315- one who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results to the other, to such third persons as the actor should reasonably expect to be put in danger by the action taken. ii. duty to prevent others from future harm through their actions considerations (factors): 1. foreseeability of harm: evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party (NOT specific to the facts of the case) 2. degree of certainty that P suffered the injury 3. closeness of connection between Ps injury and Ds conduct 4. moral blame of Ds conduct: to be determined at trial could be: recommendations + failure to disclose facts reasonably necessary to avoid or minimize risk of further harassments or abuse could be characterized as morally blameworthy 5. policy of preventing future harm: definite public policy interest in preventing sexual assault on children yes a duty to the third party to prevent possible harm exists for former employers when writing recommendation letters to not misrepresent facts in describing qualifications and character of former employees 6. extent of the burden on D and consequences on community of imposing a duty of care with resulting liability if breached, AND 7. insurance coverage: availability, cost, and prevalence of insurance for the risk: should have written no comment or full disclosure letters BUT liability cant be imposed only for a failure to act or nondisclosure in the absence of some special relationship iii. Tarasoff v. Regents of the UC: D Therapist failed to warn P that patient was obsessed and threatened to kill her. D requested he be detained, his supervisor ended detainment, nobody warned P. D (university) had a duty to warn P of the possible danger rule: once a therapist has determined or should have determined under professional standards 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 danger; consider 7 factors, especially foreseeability; special relationship requirement to impose a duty; the special relationship was between the therapist and the man extends to the 3rd party. 6

1. Special relationship (Rest. 315-320): : a duty of care may arise from either a special relation between the actor and the 3rd person which imposes a duty upon the actor to control the third persons conduct or a special relation between the actor and the other which gives to the other a right of protection 2. There is an affirmative duty to protect the 3rd person when a therapist knows a patient is going to harm the 3rd person (consider: is the 3rd person easily identifiable by therapist?) 3. Professional inaccuracy in being able to predict the patients behavior does NOT negate the duty to protect threatened victim b/c of gravity of possible harm (public policy argument) J. Policy for NO Affirmative Duty to Act: 1. Policies that can determine that no duty exists, even when the actor was negligent. Courts limit crushing liability Restatements (3) 7b categorical, bright-line rules of law applicable to a general class of cases. 2. Non-customers: Strauss v. Belle Realty: P felled on dark steps in the basement in D apartment building when Con Ed had a power outage. P sued both D and Con Ed. Court held Con Ed owe no duty to P even though his injuries may have been foreseeable, when Con Ed was not in a contractual relationship with P. To prevent crushing liability to any tenant of any building that Con Ed was in contract with the owners of, court limits liability to only the owners of the building. i. Note- Moch case- denial of benefit not a commission of the wrong (company didnt provide adequate water supply to the city, so P building burned downed when enough water wasnt supplied to fire hydrants). 3. Social Hosts: Reynolds v. Hicks: P was injured in car accident because of an intoxicated minor who was drinking at a weeding. The P sued the social host (bride & groom) for furnishing liquor. Social hosts are NOT liable to 3rd parties because they are not commercial vendors therefore (dram shop) laws placing liability on vendors to 3rd parties do not apply because social hosts are not as capable of handling their guests and consumption of alcohol to be liable to 3RD PARTIES (Hansen v. Friend Social hosts liable to MINORS who injure themselves as a result of being given alcohol; Burkhart v. Harrod NOT liable to those of age) i. Implications of social host liability: so much more wide sweeping and unpredictable in nature than are the implications of commercial host liability 4. Kelly v. Gwinnell: Zak (employer) served Gwinnell (employee) alcohol and then allowed him to drive home. Gwinnell hit and injured Kelly on his way home. Kelly sued Gwinnell and Zak for negligence. Zaks summary judgment was reversed. Social hosts who allow guests to become intoxicated and then drive, may be liable for injuries caused by the guests negligent drunk driving. K. DUTIES OF LANDOWNERS 1. Trespassers no duty to a trespasser 2. Licensees enters with permission--- owed the duty to make dangers that are known safe through a warning or fix it--- no duty to inspect 3. Invitees have reason to believe that the premises has been prepared for home owed the duty of inspection to find hidden dangers, and affirmative action to remedy such conditions i. No duty to open and notorious dangers except attractive nuisance ii. Open to public iii. Business purposes or visitors iv. Some type of interest in the visitor 7

4. Carter v. Kinney: P slipped on the ice at Ds house for bible study; D shoveled the snow, but didnt know that there was ice. P was licensee D only had duty to warn him of known dangers; social guests are only licensees therefore D had no duty to discover unknown dangers and protect P from them P wasnt there for any material benefit of D 5. Heins v. Webster County: P slipped in entrance of Ds hospital when went to visit his daughter who worked there and also was discussing with hospital about playing Santa there. Court should abolish the common law distinction of licensee-invitee & use a general duty of reasonable care to all non-trespassers foreseeability--- 7 factors for the fact finder if owner took reasonable care to protect lawful visitors from harm: i. foreseeability of harm ii. Ps purpose for being there iii. time, manner, and circumstances for which P entered iv. use of the premises v. reasonableness of the inspection, repair, and warning vi. opportunity and ease of repair or giving warning vii. burden on owner in terms of inconvenience/cost of protection (** like Learned Hand B<L(P)) viii. Note- Sargent v. Ross---Landlord liable in tort only if the injury is attributable to 1. A hidden danger in the premises of which the landlord but not the tenant is aware 2. Premises leased for public use 3. Premises retained under the landlords control, such as common stairways; or 4. Premises negligently repaired by the landlord 6. Posecai v. Wal-Mart: P was robbed (of all expensive jewelry) at gunpoint in Ds parking lot. Stores DO NOT have a duty to protect customers from criminal acts of 3rd parties. Balancing test--- only 1 previous similar accident not easily foreseeable i. 4 tests for determining foreseeability: ii. specific harm rule: a landowner does not owe a duty to protect patrons form the violent acts of 3rd parties unless he is aware of specific, imminent harm about to befall them iii. similar incidents test: foreseeability is established by evidence of previous crimes on or near the premises past history of criminal conduct will put the landowner on notice of a future risk iv. totality of the circumstances test: takes into account other factors such as the nature, condition and location of the land as well as any other relevant factual circumstances bearing on foreseeability v. balancing test: consider interests of both parties by balancing both foreseeability of harm and burden of imposing a positive duty of prevention of criminal acts of 3rd parties, where when breached the store is held liable; difficult to prove in absence of evidence of similar accidents previously 1. Ps burden to prove D had a duty 2. The greater the foreseeability of the risk the higher the duty; BUT high degree required for burden of more security guards (lower degree required for duty of surveillance cameras, etc.) 7. A.W. v. Lancaster County School District 0001: 5 year old little boy sexually abused in school bathroom. Court entered summary judgment for D because the accident wasnt foreseeable. Court decided that this was an issue for the jury and summary judgment was inappropriate. Duty to protect. Foreseeable risk is an element in the determination of negligence, not legal duty L. Governmental Entities 1. Used to have sovereign immunitylater changed 8

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3. 4.

5.

6.

i. grounds for govt liability: where a govt activity provides services and facilities for the use of the general public (highways, buildings, etc.) in the performance of the municipality, the ground for liability is in the provision of the services for the general use of the public Riss v. City of NY: P said police failed to protect her because her ex was harassing her and they did nothing. Municipality is NOT liable to P for failure to protect member of the public--- courts cannot create an extended duty to protect the entire public from every possible harm i. Cuffy (neighbors fight, police didnt show up) factors to consider in establishing a special relationship between municipality and the people which may allow liability: 1. assumption by the municipality through promise or actions, of affirmative duty to act on behalf of injured party 2. municipalitys agents knowledge that inaction could lead to harm 3. direct contact between municipalitys agents and injured party 4. partys justifiable reliance on municipalitys undertaking vicarious liability for its agents? Lauer v. City of NY: Citys Medical examiner ruled 3-yr.-olds death homicide, city investigated his father; M.E. later changed the death cert. but never alerted police or father. 17 mos. later father found out and sued. City is not vicariously liable; P did not establish a duty that D owed him since P wasnt of the special class of persons that the statute requiring M.E.s behavior required a duty for; its not enough to say that as a citizen the govt owed you a duty need special relationship that shows a specific duty; though ministerial act of M.E. eliminated immunity, did not CREATE liability i. discretionary acts: conduct that requires exercise of reasoned judgment if its this type of act agent was participating in, NEVER vicarious liability on municipality ii. ministerial acts: conduct requiring adherence to a governing rule with compulsory result doesnt guarantee vicarious liability, ONLY eliminated govt. immunity qualified immunity (Weiss standard)----- find this in the textbook i. Freidman v. State of NY [247]: 3 cases involving personal injury due to unsafe road conditions where P alleged D did not maintain them; rule: when considering a municipalitys duty to the public to maintain roads, court gives QUALIFIED immunity to protect against courts over-reaching intrusion into how municipalitys spend $/allocate resources; may be held liable when study is inadequate, if it has been made aware of a potential danger, it has a duty to study it and potentially remedy it, and duty to re-evaluate previous problems 1. No second guessing the government Federal Tort Claims Act (1946) [248]: where the US, if it were a private person, would be liable to P in accordance with the law of the place where the act occurred, then district courts have exclusive jurisdiction of civil actions for money damages for injury or loss of property or death caused by a negligent or wrongful act or omission of an employee of the federal government while acting within the scope of his employment i. Waiver of sovereign immunity ii. Negligent & wrongful conduct iii. Cope v. Scott: P injured on highway that govt. knew was dangerous and didnt put signs up about or maintain the road; issue: is road maintenance and signing discretionary (govt. immunity)?; hold: maintenance yes (immune), signing no (liable); discretionary exemption in FTCA used to prevent courts from 2nd-guessing govt.s balancing of economic, social, and political factors; test to determine if the action is exempt from suit under discretionary exemption: 9

1. if a statute, reg., or policy specifically prescribed a course of action for an employee and the employee follows it it is a discretionary function (immunity); if employee doesnt follow the rule, govt. not exempt 2. where employee has a choice of action (no policy exists), the action is of the general nature and quality that Congress intended to shield from tort liability only those grounded in social, economic, or political goals M. CAUSATION- Was Ds negligence the cause of Ps harm 1. Cause-In-Fact the actual cause BUT-FOR Ds negligence, the injury would not have occurred i. Rest. 26: liability only exists where Ds actions were a factual cause of Ps injury a but for cause (cause in fact) is ALWAYS a factual cause ii. NY Central RR v. Grimstad: D (originally P) was barge master, knocked overboard, wife went to throw lifesaver but there was none, he drowned; P (barge owner) CAUSED Ds death P didnt show that Ds negligence (in not having a lifesaver) CAUSED the death because but for the lifesaver, P may have died anyway cant prove that if the lifesaver had been there, P wouldnt have drowned 1. Haft v. Lone Palm Hotel note case: father and son drowned at pool b/c no lifeguard was on duty but hotel didnt post sign warning not to swim w/out lifeguard had a lifeguard been there, cant guarantee that the deaths wouldnt have occurred; ALSO: burden of proof on D to prove NOT causation (also comes in b/c nobody was around to see the deaths therefore if burden is on P [like in proximate cause] it hinders P because the lack of proof was Ds fault since nobody was there to see it) 2. burden of proof on P to prove that D actually caused his injury by preponderance of the evidence just has to show it is PROBABLE that the injury would not have occurred without Ds act 3. with more than 1 cause, reasonable certainty rule: If 2 or more possible causes exist, for only 1 of which a D may be liable, and a party injured establishes facts from which it can be said with reasonable certainty (essentially same as preponderance of the evidence) that the direct cause of the injury was from Ds act of liability, then P has complied with burden of proof (Stubbs) iii. Stubbs v. City of Rochester: P contracted typhoid fever from contaminated water because of Ds negligence. Trial court issued a nonsuit. Reversed for new trial because there is enough evidence to show that D MAY have been the cause of Ps disease. Its too high a requirement for P to DISPROVE all the other possible causes that may not yet have been ascertained. 1. expert testimony: question of courts discretion as to admittance of expert testimony 2. JUDGES AS GATEKEEPERS: GE v. Joiner: decision to admit expert testimony is left to discretion of trial judge and will be overturned when determined manifestly erroneous made the courts more strict on allowing certain expert testimony 3. Daubert tests at first only science extends to specialized knowledge: a. admissibility test: expert testimony must be BOTH: i. reliable, AND ii. relevant 1. can theory be tested with scientific method (and has) 2. has theory been subjected to peer review 10

3. for a specific technique, what is the known rate of error 4. is the theory generally accepted b. sufficiency test: is the evidence sufficient/clear enough to prove the case iv. Zuchowicz v. US: Dr. at naval hospital told P to take 2x max dosage of medicine and P developed PPH (very rare) which causes death without transplants, put on list, became pregnant, 1 month after birth died. Expert testimony admitted follow Daubert P proved that the dosage was more than likely the cause of Ps death. 1. Ps burden of proof to show that Ds action was a SUBSTANTIAL FACTOR in bringing about Ps injury: if (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm 2. but-for cause: Ds act in giving P was the source of Ps death AND D made negligent overdose a. if the causal link is proven strong enough by P, burden to disprove it shifts to D to deny but-for cause, showing in the actual cause, the negligence was NOT a substantial factor b. Ds negligence was proximate cause of harm v. Loss of Chance Doctrine: prior to the negligence, there was a chance that P would have been better off with adequate care and BECAUSE OF DS NEGLIGENCE, that chance has been lost; the injury is NOT furtherance of injury, BUT IS the lost opportunity of a BETTER result (with adequate care) 1. Matsuyama v. Birbaum a. Dr. did not refer P patient for further care for pains he was complaining of until the chance of living was reduced to 37.5%. b. it was too late for the tests ordered to detect the problem that was developing and potentially save the leg; issue: does lost chance doctrine apply?; hold: NO yes should recognize it as a claim, BUT, P did NOT prove it on these facts expert testimony could not state to a REASONABLE DEGREE OF MEDICAL PROBABILITY that with immediate use of the exams (without Ds negligence), the leg would have been saved therefore P did not suffer loss of chance of a healed leg Ds negligence fails on but-for causation (injury was more than likely NOT the cause of Ps injury [loss of chance]) reasonable probability = preponderance-of-the-evidence standard for Alberts c. loss of chance claims would be VERY rare for something outside of medical malpractice vi. Joint & Several Liability- Traditionally: pre-comparative fault defense/liability) joint & several liability = if multiple Ds are found to be the proximate causes of an indivisible (no apportionment of the harm) harm to P, each D is found to be responsible for the ENTIRE harm to P; P can sue Ds together OR separately and recover the full extent of the damages from EITHER one 1. where Ps total damages = $50, P can get the TOTAL $50 from either D1 or D2 insolvency of 1 D does not matter b/c P can get full recovery from the other (but cannot collect twice, obviously) 2. this also puts burden of pursuing other tortfeasors (Ds) on D contribution suits to recover percentages of fault from other Ds do not involve P anymore once P has recovered the full amount from 1 D 11

3. unfairness argument against J&S: insolvency: jury determined fault to be D1 75% and D2 25%, if D1 was insolvent, P could get 100% recovery from D2 where he was only 25% liable for the damages 4. new jurisdiction changes: a. about 12 states abolished J&S entirely solvent Ds responsible ONLY for their percentage of fault share of damages b. about 12 states abolished J&S in cases where D is less than a certain percentage at fault (generally, threshold = 50%) c. CA (and others) retain J&S for ECONOMIC damages but NOT for noneconomic damages d. some states abolished completely when P is partially at fault e. some retain J&S but reallocate the percentage share of any insolvent D to the other parties in proportion to their respective shares of fault (UCFA) f. some have abolished in many areas, but keep it in only specific torts (toxic & environmental torts) 5. Theories of J&S Liability: (1) Alternative Liability (Summers), (2) Concerted Action (Drag Racing) 6. Alternative Liability: Summers v. Tice: P and Ds were hunting and both Ds shot P; one in lip and one in eye; could not identify which shot from which gun injured his eye; both Ds were the legal (proximate) cause of Ps injury?; Ds burden to divide proportional liability or point to who was more liable then the other (they are in a better position to be able to prove it) a. alternative liability puts burden on D to either defend themselves or identify the more-at-fault D b. kind of like res ipsa loquitur in Ybarra b/c SOMEONE was negligent, P doesnt have to say who to recover at all; different from Ybarra, there P was unconscious so COULDNT say who was negligent 7. Several Liability (vs. J&S): future Plaintiffs: Hymowitz v. Eli Lilly & Co.: P are children of mothers who took DES, a drug produced by D though there were many manufacturers of the drug, D are some of them (all are unknown), drug caused latent defects on children; issue: summary judgment for P?; hold: YES a. potential problems: (1) difficulty of identifying the manufacturer of the drug each mother took, and (2) statute of limitations bars recovery from many future Ps because the harm doesnt become apparent until after years run out b. why alternative liability does not work: too many manu., many of whom are no longer identifiable or out of business, cant tell whos pill was what color and what woman took what color pill, etc. Ds are in no better position to identify which D is at fault in which case then P is c. Concerted Action liability: J&S liability based on Ds all having an understanding, express or tacit, to participate in a common design/plan to commit a tortious result (drag racing cases) would not work here b/c though companies may have had same goal of selling the drug, they were not working together and did not intend to commit a tort d. ONLY WITH LATENT INJURY CASES (where injury doesnt become 12

apparent until time passes and P cannot tell immediately that it will happen if it could, P should be able to identify the specific D manu.) court applies MARKET SHARE THEORY: several liability ONLY (if companies that contributed the most are bankrupt, P can only recover what remaining companies shares are): limit Ds share of liability to its market share contribution of the drug belief that it will in the long run be roughly equal to the harm it caused, based on NATIONAL not local market (local doesnt work maybe Ps mother moved, etc.) i. to correspond to the overall culpability of each D measured by the amount of risk of injury each D created to the public-atlarge equitable way to provide P with the relief they deserve while also rationally distributing the responsibility for Ps injuries among Ds ii. market share liability applies ONLY WHERE GOODS ARE FUNGIBLE: products are exactly identical in make-up making it unreasonable and impossible to give P burden of identifying which manu. made it iii. will NOT hold a D liable if it can prove that it did not participate in the marketing scheme of DES for pregnancy iv. D CANNOT avoid liability by trying to prove Ps mother didnt ingest their specific pill v. court gets around statute of limitations with statute of repose: allows P 1 year of time to discover injuries are related to DES and therefore join lawsuits to recover vii. Environmental Torts Toxic Harms (in NJ, environmental torts have several liability); Problems: 1. Identification: toxic harms have time-lag issues and its a costly enterprise that relies on types of evidence and probability judgments which can be regarded as ill-suited to traditional resolution through the adversary process to try an identify which caused what a. question becomes: did P suffer an identifiable harm that can be isolated from risks of everyday life 2. Boundaries: the accident/disease distinction victims of exposure to some toxic harm not yet sick fear that it is only a matter of time before they show signs of pathology, in utero exposure is an overriding concern, and generations not yet conceived may suffer genetic damage a. cant define aggregate exposure for future b. extent of harm is hard to measure b/c of need for post-exposure treatment c. huge amount of unidentified victims 3. Source: who to blame? Who is the cause? So many producers and insurers 4. medical monitoring recovery in class actions?: Bower v. Westinghouse Electric Corp. [390]: issue: can a P who does not allege a present physical injury assert a claim for recovery of future medical monitoring costs where such damages are the proximate result of Ds tortious conduct?; hold: YES refused to treat physical harm as a necessary condition to allowing medical monitoring costs to be granted; allowed because: (1) public health interest for monitoring individuals exposed to toxins to decrease risk of disease spreading, (2) deters irresponsible discharge of toxins by Ds, (3) availability of a substantial remedy before the consequences of 13

Ps exposure are manifest may have beneficial effect of preventing serious future illness (reducing overall costs in future), and (4) societal notions of fairness and justice a. to make a medical monitoring claim, P must show: i. P, relative to the general public, has been significantly exposed to ii. a proven hazardous substance iii. through the tortious conduct of D iv. as a proximate result of the exposure, P has suffered an increased risk of contracting a serious latent disease v. the increased risk makes it reasonably necessary for the P to undergo periodic diagnostic medical exams different then what would be described in absence of exposure vi. and monitoring procedures exist that make the early detection of disease possible 2. PROXIMATE CAUSE- the legal cause an actual cause that is a substantial factor (foreseeability test) in the resulting harm; where a cause may be too far-fetched to be considered by the court to be the legal cause of Ps injuries (does NOT presuppose that D was not negligent [they were] however it is too far down the chain of causation for P to blame THAT Ds negligence for Ps injuries): 2 views of Proximate Cause i. Direct Causation (old view)/Hindsight Theory-(Dellwo v. Pearson): a D is liable for all consequences of their negligent act, provided that these consequences are NOT due in part to superseding intervening causes (that cancel Ds liability) no matter how far-fetched or unforeseeable, D is still held liable for Ps injuries 1. In Re Polemis: P chartered ship to D, D negligently dropped a plank into the hold while unloading ship, plank struck a spark, and spark ignited the petroleum ship was carrying which created a fire that destroyed the ship; issue: Ds negligence in how it unloaded the ship the proximate cause of Ps injury (destroyed ship)?; hold: YES it is immaterial that the causing of the spark by the falling plank could not have been reasonably foreseen; GIVEN THE BREACH OF DUTY WHICH CONSTITUTES THE NEGLIGENCE, AND GIVEN THE DAMAGE AS A DIRECT RESULT OF THAT NEGLIGENCE, THE ANTICIPATIONS OF THE PERSON WHOSE NEGLIGENT ACT HAS PRODUCED THE DAMAGE ARE IRRELEVANT a. direct causation often attacked b/c it creates limitless liability for D b. OVERTURNED BY WAGON MOUND ii. Foreseeability View (new): D is liable ONLY for those consequences of his negligence which were reasonably foreseeable at the time he acted (NO HINDSIGHT) 1. Wagon Mound: Ds ship spilled oil into the bar which touched Ps wharf, Ps manager stopped work then saw it was safe and resumed, 2 days later molten metal dropped from Ps ship while working and it touched a cotton rag floating in the water causing a fire that burned the ship (and later dock in Wagon Mound 2 strange result: P wins; how can it be foreseeable that a dock would burn but not a ship?); issue: was Ds negligence in spilling oil the proximate cause of Ps injuries?; hold: NO REJECT DIRECT CAUSATION (Polemis) IN FAVOR OF FORESEEABILITY RULE: a. can a reasonable man foresee the consequence? i. Yes liability ii. No NO liability DESPITE D being proven negligent b. P argued here that it was NOT foreseeable to D because if it was 14

foreseeable, why was P working with torches when there was oil in the water? could lead to contributory negligence argument 2. Linking Principle: although the Ds negligence undoubtedly served to place the injured P at the site of the accident, the intervening act was divorced from and not the foreseeable risk associated with the original negligence (Ventricelli v. Kinney System Rent A Car [notes]) a. causal link: even if Ds wrong was a but for cause of the injury, no liability ensues UNLESS Ds wrong INCREASES the LIKLIHOOD of SPECIFIC HARM i. speeding car cases speeding Ds who but for their velocity would not have been at the particular spot when children darted out into the road, etc. and were hit, are NOT LIABLE because the injury of hitting a person was NOT the type of injury foreseeable to a speeding driver reasoning: had they been driving at a normal speed, hitting a person who runs out into the road is NOT a foreseeable consequence iii. Superseding Causes: a force which takes effect after Ds negligence, and in addition to Ds negligence in produced Ps injury and is sufficient to prevent Ds negligent act from being the proximate cause of the injury 1. Foreseeability Test: a superseding cause is one where NEITHER the intervening cause NOR the harm was FORESEEABLE D has no liability; the risk of harm due to the intervening cause (which does NOT necessarily eliminate Ds liability) must be INCREASED in order to be a superseding cause (and THEN it eliminates Ds liability) 2. Scope of the Risk: does the risk of harm created by Ds negligence extend to an intervening criminal act by a 3rd party? a. Doe v. Manheimer: P was raped by unidentified 3rd party when meterreading on Ds property; alleged that because D negligently created a safe spot for criminal activity with not maintaining their bushes, in an area prone to crime, D should have foreseen that a violent crime could have occurred there and not been negligent to prevent it; D is not the proximate cause of injuries--- too far an application of the scope of the risk i. to be within the scope of the risk, the harm ACTUALLY suffered must be of the same GENERAL TYPE as that which makes the Ds conduct negligent in the first place might have been some injury from coming in contact with overgrown bushes but NOT criminal acts of 3rd parties ii. court will NOT create catalyst liability iv. Unforeseeable Victims and prevailing Reasonable Foreseeability View: only foreseeable consequences may be recovered for; if Ds negligence DID impose an unreasonable and foreseeable risk of harm on X (it was the proximate cause of Xs injuries) but did NOT pose an unreasonable risk of harm on P, can P tack on Ds negligence against X and hold D liable for Ps injuries as well? NO 1. Palsgraf v. Long Island RR: a man was running with a package of fireworks (wrapped in newspaper nobody could see it had fireworks in it) to catch Ds train, almost fell, Ds employee pushed him on and the package fell and exploded, P was waiting for a train down the platform when the explosion knocked scales off the wall of the platform and hit P and injured her; issue: if D was negligent toward someone (the man with the package), could that negligence hold D liable 15

to P (someone else where the injury that she suffered was NOT foreseeable from Ds negligence, nor was her being a victim foreseeable)?; hold: NO a. Ds conduct may have been negligence to the man, but NOT a wrong to P (it was no negligence at all to P) i. foreseeability and duty: if the harm was not willful (intentional), P must show that the act as to him had the possibilities of danger so many and apparent (foreseeable) as to entitle him to be protected against the doing of it (duty) though the harm was unintended 1. nothing in package gave notice that it had the potential to cause harm to anyone else foreseeability 2. duty: P must show a wrong to HERSELF by showing that D had a duty of care to protect P from foreseeable risk and by pushing the man, D breached that duty (a) no breach of duty (to P) when the risk is not within the range of apprehension (b) question: was the risk within the range of apprehension yes = D is liable; no = no liability 2. Andrews Dissent: duty of care is to society at large, not just an individual person; similar to direct causation view from Polemis: when an act imposing an unreasonable risk of harm to the world at large occurs, not only is he wronged to whom harm might reasonably be expected to result, but he also is harmed if he is in fact injured, even if he might be outside the general danger zone 3.Substantial Factor and Eggshell Plaintiffs: rule: D takes the P as he finds him liability is created for all consequences of Ds actions i. Benn v. Thomas [401]: D rear-ended Ps car, P had risk of heart attacks, had had one previously, died 6 days later of complications, after suffering a bruised ankle and chest bruising, in the hospital; issue: jury instructions on substantial factor and eggshell Ps?; hold: YES instruct on eggshell Ps 1. eggshell P rule allows that once P has established that D caused some injuries to P, D is liable for the full extent of those injuries, not JUST those that were foreseeable a. cause in fact issue would he have died anyway without the accident? (cant tell) but the stress FROM the accident DID cause the heart attack which ultimately killed him b. proximate cause issue D argued the heart attack was an unforeseeable consequence of the accident caused by his negligence; REJECTED by court with eggshell P rule c. Eggshell P does NOT apply to emotional distress cases because to make claim for negligent infliction of emotional distress, the test is whether the ORDINARY person (objective test) would be caused emotional distress eggshell P is the exact opposite because its subjective to the individual P 2. substantial factor: original jury instruction made it TOO EASY to relieve D of liability by saying that the real substantial factor causing Ps death was the heart attack, not the accident must instruct jury on eggshell P therefore 4. Rescue: if D creates a situation in which a rescue is necessary, he is liable to any injuries that come to P in an attempt to rescue from that negligence (in ADDITION to being liable to the P who needed rescuing) deciding to rescue someone is NOT a superseding cause (which would 16

relieve D of liability) BECAUSE D CREATED THE NEED FOR A RESCUE i. Wagner v. International Railway [notes 434]: even if D could not foresee that a rescue would be needed, by creating the situation in which one WAS needed, he can be held liable danger invites rescue rescue is the child of the occasion ii. Fire rule unique to NY: Ryan v. New York Central RR [437]: D is not liable for a fire that spreads from its building to another and burns it down because the spreading depends on accidental factors (superseding causes) and D will not be held liable for them iii. Professional Risk Takers rule: a professional risk taker (firefighters, police men, or other public employees who are paid to assume risks) may NOT recover for injuries caused by anothers negligence where the negligently-created risk was the very reason for Ps presence on the scene

N.

DEFENSE
1. D claims that b/c of some fault of P their liability should be eliminated (contributory negligence, and assumption of the risk), or reduced (comparative negligence) 2. Contributory Negligence: Plaintiff is negligent in not taking reasonable care to protect himself, and whose negligence contributes proximately to his injures barred from recovery a complete defense most states have replace it with comparative negligence i. Elements of the defense that D must prove: 1. Ps duty owed is to HIMSELF (rather then a negligence claim where D owed a duty to others) the standard of care of this duty is determined by the triers adapted risk calculus to determine the reasonableness of Ps conduct 2. P breached that duty 3. Ps negligence is a proximate cause of Ps injuries/harm 4. burden on D to prove Ps contributory negligence 3. Limitations on Contributory Negligence defense: i. Recklessness: if the misconduct of D was more serious then mere negligence (ie. reckless or willful misconduct), the appropriate defense can ONLY be contributory recklessness or contributory willful misconduct ii. Last Clear Chance: P behaved carelessly and got into a dangerous situation leading to his injury BUT D had an opportunity to avoid the injury to P that P did not have (Ds last clear chance), then D cannot assert contributory negligence defense 1. D has to have actual knowledge of Ps danger in time to avoid the harm by exercise of due care to invoke this doctrine to defeat contributory negligence claim iii. Ds failure to utilize their last clear chance to avoid injury to P acts as a superseding cause to Ps negligence thereby eliminating Ps negligence from being the proximate cause (without proximate cause, a negligence claim fails contributory negligence claim fails without D proving Ps action were a proximate case of his injuries) iv. cannot impute contributory negligence onto Ps (like you can with negligence of Ds respondeat superior vicarious liability): 4. Comparative Negligence: divides liability between P and D in proportion to their relative degrees of fault allows P to recover but his recovery is reduced by his potion of negligence in contributing to the accident (only 4 states still have contributory negligence schemes still: AL, NC, MD, VA and D.C.) i. ask yourself: what kind of jurisdiction are you in? ii. Pure Comparative Negligence: P can recover whatever percentage of total damages 17

based on Ds percentage of fault (whatever was not their percentage even if P was more than 50% at fault) literally based on percentage of fault of P vs. Ds CA uses this approach: P is 90% to blame for accident can recover 10% of the damages from D who is determined to be 10% at fault; D who is hurt also in that accident could recover 90% of his damages from P------ 13 states only: AK, AZ, CA, FL, KY, LA, MS, MO, MI, NY, NM, RI, WA iii. Modified Systems (Thresholds) iv. Not As Great As: P can recover under pure system only if their percentage of fault is NOT AS GREAT AS Ds 1. P = 49%; D = 51% YES recovery 2. P = 50%; D = 50% NO recovery 3. P = 51%; D = 49% NO recovery v. No Greater Than: P can recover under pure system only so long as their percentage of fault is NO GREATER THAN Ds 1. P = 30%; D = 70% YES recovery 2. P = 50%; D = 50% YES recovery 3. P = 51%; D = 49% NO recovery vi. In modified systems with MORE THAN 1 D in a lawsuit, it is UNANSWERED whether P can recover if it is less percent at fault then ALL of Ds combined, but MORE percent at fault then each D individually vii. What to do about J&S jurisdictions, not everyone is at fault equally, and there are more than 1 D, or only 1 D per lawsuit? 1. traditional J&S would say that where its only 1 of many Ds in a lawsuit, and he is only partially responsible for Ps loss, that 1 D is STILL 100% liable for ALL DS percentage of Ps total damage (not 100% of damage just Total DamagePs percentage fault) 2. reforms to deal with J&S and comparative negligence: 5. Uniform Comparative Fault Act: pure comparative negligence: P can recover whatever portion of damages less their own percentage (even if P = 70%, D1 = 20%, D2 = 10%, P can still recover 30% of total damages) i. INSOLVENCY: if 1 D is insolvent, the insolvent Ds portion of payment will be spread among other PARTIES (INCLUDING P) according to their respective percentages of fault ii. in J&S liability states with pure comparative negligence systems) where 1 D is insolvent, the apportionment is NOT spread b/c P can recover 100% of all of Ds portion from any of the Ds Ds bear the risk of insolvent Ds, NOT P 1. BUT insolvent Ds are NOT free from contribution claims from other Ds 6. Common Law: Fritts v. McKinne: Ps decedent was in an accident where it was unsure if he was driving but was drunk at the time, went to hospital b/c of injuries, D dr. negligently performed procedure and P died 3 days later from blood loss from that procedure, D asserts comparative negligence defense in that Ps negligence (drinking habits and potentially drunk driving) were the proximate causes of Ps death, NOT Ds procedure; issue: comparative defense allowed?; hold: NO doctors cannot impute negligence onto P; Ps possible negligence in causing the accident cannot bar him from recovery from injuries/death sustained once in the hospital; negligence of any party that necessitates medical treatment is IRRELEVANT to possible further medical malpractice; history of drugs/drinking irrelevant to negligence claim, ONLY pertinent in discussing damage awards based on life expectancy O. Assumption of the Risk: P has assumed the risk of certain harm if they voluntarily consented to taking 18

their chances that harm will occur if D can prove that P assumed a risk, P is completely barred from recovery 1. 4 factors to be proven by D in asserting this defense (Davenport) i. P has knowledge of facts constituting a dangerous condition ii. P must know the condition is dangerous iii. P must appreciate the nature and extend of the danger iv. P must voluntarily expose himself to the danger 2. Express Assumption: exculpatory agreements: P signs an agreement with D before acting that he will not hold D liable for injuries to P all parties agree (written or oral) in advance that D has no duty of care to P (therefore cant be negligent); if P is later hurt by what he is claiming was Ds negligence, these agreements are the center of litigation; Questions: 1. will the courts enforce a K given the type of activity involved (consider public policy arguments) 2. if yes, is the K sufficiently clear so that P definitely made an express assumption of the risk? (must be express and unambiguous in terms) ii. Hanks v. Powder Ridge Restaurant Corp.: P signed a contract stating that he releases the snow tubing company from liability even if they are negligent. P was injured because of Ds negligence. Court entered summary judgment. P appeals: 1. Ordinary person would not know they are signing away liability 2. Agreement is unenforceable because it violates public policy- where the P paid for services but must sign a standard exculpatory agreement 3. Reversed on second claim. --- The law does not favor contracts provisions which relieve a person from his own negligence 4. Hyson case: same resort but the contract didnt have the negligence on behalf of the D 5. noted in the opinion guided by but not controlled by- Tunkl v. Regents of UC factors where agreement is INVALID if it meets some or all: a. concerns a business suitable for public regulation b. service is of great important to the public practical necessity c. party willing to perform for any member of the public who seeks it d. exculpated party possessed a decisive advantage of bargaining strength against public members who seek it e. standardized adhesion K of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection from negligence f. person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or its agents 6. Followed in the opinion-Dalury v. S-K-I, Ltd (Vermont): P collided with metal pole at Ds mountain while skiing, sued D for negligence in not having padding on pole, when P bought lift ticket, he signed waiver stating he released mountain from liability; the agreement was express & unambiguous but it violates public totality of circumstances approach a. (B) CO factors: i. existence of a duty to public ii. nature of service performed iii. K was fairly entered into iv. intention of parties is clear and unambiguous in language 7. VA rejects pre-injury release from liability entirely b/c it is wrong to put a party to a K at the mercy of the others negligence 19

a. reject Ds argument that ski resorts dont provide essential public service therefore exculpatory agreement should be valid Ds area is open to the public and where you invite public onto your property, a legitimate public interest arises SKI AREA HAS BECOME A FACILITY OF PUBLIC ACCOMODATION, SERVICE IS THAT OF COMMON CARRIERS/INNKEEPERS just because a skier assumes some inherent risks in skiing, does NOT allow D mountain owner to be negligent in warning/correction of dangers it can reasonably foresee (premises liability argument) b. notes case unilateral disclaimer signs NOT valid unless brought to Ps attention 3. Implied Assumption of the Risk: to make an implied assumption of the risk defense, D must show that P both (1) knew of the risk in question and (2) voluntarily consented to bear that risk i. Murphy v. Steeplechase Amusement Co.: P went to amusement park with friends, went on ride flopper, fell and shattered kneecap, sued D owner of park; P assumed the risk of the ride therefore going on it was the superseding cause (proximate cause) of his injuries NOT Ds negligence in the functioning of the ride (going up and down) P watched the ride before he got on it, knew of the risks (knew it went up and down), and went on anyway (consented to bear that risk); did NOT claim that not having padding was negligence, only that the shaking was Ds negligence 1. volenti non fit injuria one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary 2. Types of Implied Assumption (Davenport): a. Primary: when P impliedly assumes those risks that are inherent in an activity NOT a true affirmative defense question: did D have a duty based on that specific risk that it breached? (Murphy) b. Secondary: when P knowingly encourages a risk created by Ds negligence IS a true affirmative defense because it is asserted only AFTER P has made prima facie case of Ds negligence question becomes did Ps conduct AGGRAVATE the risks created by Ds negligence? i. Ps conduct reasonable NOT a defense b/c P acted reasonably in the circumstances ii. Ps conduct unreasonable Ds defense upheld ii. Secondary Implied Assumption vs. Contributory Negligence: 1. Davenport v. Cotton Hope Plantation: P was renting apt. from Ds building and complained of broken floodlights in the stairs he used but continued to use them (1 of 3 he had access to) and then he fell b/c he thought a shadow was a step; Ps assumption of the risk does not completely bar to recovery in SCs comparative negligence system?; P is barred from recovery ONLY WHEN his secondary assumption of the risk is unreasonable exceeds Ds percentage of fault from negligence a. RI: objective/subjective distinction btwn. 2nd implied assumption and contributory negligence retains assumption of the risk as complete bar to recovery b. WV: main purpose of comparative negligence system is to apportion fault rejects assumption of the risk as total bar to recovery and only allows jury to consider Ps negligence in assuming the risk (if it exceeds or equals 20

that of D, then P is barred from recovery) i. question becomes: should P be barred from recovery for assumption of the risk based on whether or not his behavior was REASONABLE under circumstances follow WV ii. Ds fault in creating the risk is not diminished simply b/c P assumed that risk

P. STRICT LIABILITY
1. liability without fault (no intent or negligence required to hold D liable) those who engage in certain kinds of activities do so at their own peril and must pay damage that foreseeably results, even if they took due care in that activity i. Fletcher v. Rylands: P is tenant mining working for landowner next to Ds cotton mill; Ds workers built reservoir to divert water to Ds land and discovered defect in soil but did not alert D; reservoir broke free and destroyed Ps mine; P can recover damages from D although D was NOT negligent not required in strict liability claims ii. Absolute Duty Rule: the person who lawfully brings something dangerous onto his land, and fails to keep it contained (even through no negligent fault of his own), is responsible for all the NATURAL consequences of its escape BECAUSE HE BROUGHT IT THERE 1. different from reasonable care duty to take prudent care negligence claim where D would not be liable for latent defects they could not prevent against which caused the dangerous things escape 2. under strict liability, taking even the utmost care doesnt matter 3. Causation: but for Ds bringing it there, the damage wouldnt have happened iii. different than negligence: if youre walking down the street and a falling barrel hits you in the head, it is NOT strict liability because as someone walking down the street, you accept some risks with walking there make a negligence claim based on Ds failure to follow duty to take due care to contain barrels in his warehouse (Byrne) 2. situations that lead to strict liability claims must be ABNORMALLY DANGEROUS: i. Escaping Water ii. Escaping Animals iii. Handling Explosives 3. Indiana Harbor Belt RR v. American Cyanamid Co: D manufactures chemicals and hired P RR to transfer the chemical; one of the cars leaked and the RR yard hard to evacuate b/c of high flammability of the chemical costing almost $1 Million in damages; issue: strict liability or negligence claim applicable? Should the shipper of a hazardous chemical by RR should be strictly liable for the consequences of a spill or other accident?; hold: NO; negligence i. SL if abnormally dangerous condition based on 6 factors (Guille v. Swan- balloon landing- strict liability for damage because it was his fault w/o negligence) and (2) Restatement 520: 1. great possibility of harm? (Y - SL) 2. harm that if happens would cause great damage? (Y - SL) 3. accidents of this type preventable through due care? (N- leaked b/c someone didnt take due care somewhere along the way N) 4. not a common activity? (Y SL) 5. activity inappropriate for location? (N N) 6. value to community of the activity outweighs the risk? (N N) ii. Posner says most important factor is economic benefit to society (just like Learned Hand cost/benefit analysis) imposing SL might mean that companies will stop producing dangerous but necessary chemicals like here, or the cost of rerouting the line 21

around the city would be too great and RRs would transport the chemicals anymore, etc. must use negligence sounds like res ipsa loquitur BUT isnt b/c doesnt meet requirement that dangerous instrumentality was in sole control of D (only that someone was negligent and the accident wouldnt have happened if they werent, and P wasnt at fault)

Q. Products Liability
1. theory: seller of chattel which, b/c of a defect, causes injury to its purchaser, user, or bystander 2. 3 Main Questions: a. Does the product do what its supposed to do? (water guns are supposed to shoot water when you pull the trigger, they are NOT supposed to have the trigger break off and hit you in the eye b/c of defective manufacturing or design liability) b.Was it a reasonable or unreasonable design for the product? c. Should the manufacturer have warned customers? 3. old theory: privity doctrine: a K relationship between the parties was the basis for the duty of due care; without privity, cannot hold product manu. liable began to be eliminated with: 4. MacPherson v. Buick Motor Co.: P bought car from dealer who bought it from Buick, P was injured when in an accident, the wheel collapsed (though not made by D); Ds duty of care (negligence, not SL claim) and vigilance extends to anyone OTHER THAN the original purchaser i. rule: manufacturer have a duty to someone injured by their product even if that person is not the original purchaser; products liability is NO LONGER limited to things that are inherently dangerous (in their normal operation are implements of destruction) if the nature of the thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is a thing of danger ii. duty is no longer in the contract but as a matter of law is not limited to privity all parties have a duty to exercise reasonable care iii. Rule: If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists. iv. 3 factors determine duty of vigilance for manufacture of dangerous products: 1. knowledge of a danger that is PROBABLE (not just possible) 2. added knowledge that in the usual course of events, the danger will be shared by OTHERS than the buyer, AND 3. proximity/ remoteness of relation btwn. original buyer and injured v. if manufacturer is negligent in making a product and puts it on the market, and the danger is foreseeable, he is liable for the damages that result *** because if the product was SAFELY made, the damages wouldnt have come about 1. wheel maker? NOT liable b/c even though the defective wheel may have been a cause-in-fact of the accident, it was NOT a proximate cause b/c Ds negligence in not inspecting the wheel was a superseding cause which breaks the chain of causation vi. not quite strict liability but more than negligence: 2nd Rest. 402A: rule applies despite manu. taking all possible care to manu. the product ONLY applies where product is defectively made OR unreasonably dangerous vii. determining unreasonable danger factors: 1. industry standards 2. foreseeability: how costly? Learned Hand theory 3. circumstances of the accident unreasonably dangerous in THOSE 22

circumstances, in what actually happened? (driver in brand new car steps on breaks and it doesnt stop accident clearly unreasonably dangerous to make a car with defective breaks = liability) 5. res ipsa loquitur and SL for products liability: 6. Escola v. Coca Cola Bottling Co. of Fresno: P waitress injured when took soda bottle from fridge and it shattered in her hand; issue: does res ipsa apply to products liability where D that actually caused the defect in the product is unknown b/c cant tell when defect occurred?; hold: YES (1) accident wouldnt have happened despite SOMEONES negligence, (2) P was not negligent in handling the bottle, and (3) D was in complete control of the bottle when it bottled the soda = res ipsa allows jury to infer Ds negligence i. A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to humans. ii. even though D had a duty to test bottles if they were going to reuse them and the bottle broke which seems like it was Ds breach of duty to inspect, you cant know for sure when the defect in the bottle came about case would fail on causation use res ipsa iii. CONCURRENCE: a manufacturer incurs an absolute (strict) liability when an article that he has placed on the market, knowing that it is to be used without inspection proves to have a defect that causes injury to human beings there is an implied warranty of fitness for (1) proposed use, and (2) merchantable quality iv. STRICT LIABILITY BECOMES the law later 7. Notes Cases: i. Henningsen v. Bloomfield-NJii. Greenman v. Yuba Power Products- CA- if there is a defect that injures human being then you are strictly liable iii. Vandermark v. Ford Motors- case of bad breaks- seller and manufacturer will be liable iv. Elmore v. American Motor Corp.- the drive shaft fell out of the car and caused an accident with another vehicle. Bystanders were permitted to recover under strict product liability 1. Exceptions- for Policy issues a. Used goods, successors, rd R. 3 Rest.: 3 types of defects: manufacturing- individual malfunction; design- inherently danger designed, warning- notified of danger 1. Manufacturing Defects: when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; almost always strict liability easy cases i. difficulty comes in determining at what time the defect occurred when the product was being made? When it was sitting on a shelf for a year? Etc. too far removed from manu. in time, then P cant recover from them, maybe seller ii. BUT if you SELL a defective product, doesnt matter who made it defective, youre still liable iii. Note case: Welge v. Planters Lifesavers Co.: P hurt when jar of peanuts smashed when he tried to put the lid back on; couldnt find when in the life of the jar the fracture that caused the shattering occurred BUT both the makers of the jar AND the sellers (Kmart) could be held liable because of STRICT LIABILITY IN MODERN PRODUCTS LIABILITY LAW even if through no fault of either party they failed to discover the defect and protect consumers against it 1. basic idea behind SL for products liability: dont want to put defective products 23

on the markets for consumers manu. and sellers are the best people to detect the problems and therefore prevent the harm OR warn consumers if the product is dangerous that harm might result from misuse or unintended use 2. Design Defects: 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 the omission of the alternative design renders the product not reasonably safe 1. note cases: Cronin v. J.B.E- bakery truck driver accidentii. Barker- used in the intended or reasonably foreseeable manner 1. 2 Tests: a. Consumer Expectations: as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (Barker) b. Risk Utility: the risk inherent in the design outweighs the benefit of such a design i. Ds (manu.s) burden to prove the product should NOT be judged defective ii. P has burden of showing a REASONABLE ALTERNATIVE DESIGN exists that: 1. would have been safer, AND 2. was reasonably expensive in light of what the product is used for iii. Soule v. General Motors Corp. : in a car accident the floorboard crushed Ps ankles; if using the Consumer Expectations test to determine defective design, there should be no expert testimony b/c it should be common knowledge to the jury & if you need expert testimony to understand the accident, cant use this test crucial question: whether the circumstances of the products failure allow an inference that the products design performed below the legitimate commonly accepted minimum safety assumptions of its ordinary consumers? VERY rare; risk utility appropriate here---4 elements of consumer expectations test 1. the product failed to perform as safely as expected 2. the defect existed when the product left manufacturers possession 3. the defect was the legal cause (proximate) of the enhanced injury 4. product used in a reasonably foreseeable manner a. note cases: i. Pruitt v. GM- doesnt apply to airbags deploying in a low impact accident ii. Morton v. Owens- applicable in an asbestos case causing cancer because it fell below the minimally accepted standards iii. Banks v. ICI Americas- availability of alternative designs 1. RAD- reasonable alternative design- Products Liability Restatement 2- plaintiff must prove that an RAD would have reduced the foreseeable risk of harm iv. Camacho v. Honda Motor Co. (584): P injured in motorcycle accident bought from Honda that didnt have leg guards; other motorcycles have leg guards, could have bought them to put them on, trial Honda granted summary judgment and appeal said P assumed the risk: use risk utility test. Summary judgment not appropriate because expert witness are in disputes 1. The crashworthiness doctrine-manufacture may be liable in negligence or strict liability for injuries sustained in a car accident where a manufacturing or design defect enhanced the injury, even though it was not the cause of the accident. 24

2. consideration: where a product is dangerous to begin with (here), P may NOT want a consumer utility test b/c jury may not be able to see past the dangerousness of the motorcycle itself P might actually want risk utility (usually the opposite) 3. UNREASONABLY DANGEROUS TEST: was there a reasonable way the product could have been made safer?: a. Barker (CA): MANU. has to show they couldnt have made it safer b. Camacho (CO): P has to show there was a reasonable alternative design that wasnt too expensive 4. Ortho Pharmaceutical Corp v Heath- factors in balancing the risk a. Usefulness- utility to the users and public as a whole b. Likelihood that it will cause injury; probability for serious injury c. Availability of a reasonably safer substitute d. Manu. Ability to eliminate unsafe characteristics without impairing it e. Users ability to avoid danger by the exercising of care f. Users anticipated awareness of dangers g. Feasibility of spreading the lost through setting the price of the product v. Bystanders Expectations- to vi. Products liability Restatements rejects consumer expectations vii. Food products- exception- allows for consumer expectation test viii. Inferring the Existence of an Unidentified Defect, page 596 1. 3- Circumstantial evidence ix. Potential Defenses: 1. Assumption of the risk 2. Faces of Misuse 3. Warnings: failure to warn: (1) duty: to warn, (2) breach: not a good enough warning/no warning at all, (3) causation: not very clear; (4) damages: injury i. 3rd Restatement: with a product that is unreasonably dangerous, the manu. cannot waive liability by warning consumers that it is; the manu. is supposed to design it so it is NOT unreasonably dangerous & whatever danger that they cant get rid of (inherent in the product, its necessity to consumer, etc.) they have a duty to warn the consumers of ii. Hood v. Ryobi America Corp.: P takes guard off of saw despite warning to never remove b/c couldnt use it effectively with guard on, it flies off and hurts P, sues D on grounds that warning was not sufficient enough to warn him of the danger that could happen; summary judgment for the defendant affirmed: 1. Standard for adequacy: a warning need only be reasonable UNDER THE CIRCUMSTANCES the manufacturer need NOT warn of every possible mishap or source of injury that can happen. iii. Causation Problem: to prove causation, MUST prove BUT-FOR cause: 1. Heeding Presumption: requires D (party responsible for inadequate warning) to prove the user (P) would not have heeded an adequate warning either very difficult: courts give P benefit of the doubt iv. Vassallo v. Baxter Healthcare Corp. (MA) (612): P sued manu. of breast implants for failure to warn her of their dangers; D uses state of the art defense; hold: D ONLY has duty to warn of dangers they KNOW of or should have known about IF they had discovered the defects through research, THEN they would have had a duty to warn but at the time, they had no idea; questions: 1. Old rule: stict liability/ hindsight rule- 622, 2. reasonableness standard: how expensive would the research to find out have been? does it outweigh the benefits of doing it? (Learned Hand); was it 25

foreseeable? 3. NO MORE STRICT LIABILITY (use negligence standard now) under implied warranty of merchantability: risks HAVE to have been reasonably foreseeable AT THE TIME of sale OR could have been discovered by way of reasonable testing prior to marketing the product a. manu. held to the standard of knowledge of an expert in the appropriate field and are subject to a duty to warn FOLLOWING the sale of the product at issue (once they discover defects) S. EMOTIONAL HARM- Emotional damages only if physical impact or physical symptoms (but if extreme situation of mishandled corpse, then foreseeability). If no physical effect, then recovery if in zone of danger. Bystander Recovery: either zone of danger OR close relative directly observing death/injury (NY adds the zone of danger requirement as well). Loss of Consortium for spouse or for child, some states allow for loss of parents companionship. 1. Can recover for emotional harms if accompanied by negligently inflicted physical harm; real issue is emotional harms that cause physical harms. [Policy concerns: fraudulent claims, floodgates, how can D defend itself when they dont know if a claim will be raised later and no chance to collect evidence] 2. Old Rule: No physical impact on plaintiff barred recovery 3. New Rule: Zone of Danger [P must be aware of the danger] i. Falzone v. Busch: P watched D hit her husband and swerve toward her, she became physically illRejects physical impact requirement; recovery under new test: fright from reasonable fear of immediate personal injury, fright adequately shown to have resulted in substantial bodily injury/sickness, recoverable if regarded as damages that might have occurred under direct physical injury rather than fright a. Note: this was prior to eyewitness/bystander recovery 2. Limitations: a. Zone of danger must be immediate b. Fear must be reasonable c. Injury/sickness must be substantial ii. Metro-North Commuter RR Comp. v. Buckley: D (originally P) worked for D RR under asbestos conditions for 3 years, developed stress that he would develop cancer from the conditions; sued RR for negligence in creating conditions therefore causing his distress; sued for negligently-inflicted emotional distress under Gottshall def. of physical impact, denied P argued to follow Gottshall where emotional distress recovery is permitted where the distress accompanies some immediate traumatic harm; BUT simply coming in contact with asbestos dust is not enough of a physical impact to allow emotional distress liability (since harm is not guaranteed, and in the future); NEW TESTS FOR EMOTIONAL HARM RECOVERY: 1. permits recovery for emotional distress where: a. PHYSICAL INJURY: distress is accompanied by a physical injury (Simmons v. Pacor) b. ZONE OF DANGER TEST: recovery for emotional injury by those Ps who sustain a physical impact as a result of the Ds negligent conduct or who are placed in an IMMEDIATE risk of physical harm BY that conduct i. Ps claim in Metro-North fails to meet this req. 26

2. to recover in emotional distress-toxic injury cases, P needs to prove: (1) reasonable fear of injury (Norfolk & Western RR notes cases got asbestosis fear of cancer, exposure proven), and (2) more likely then not youll develop what youre in fear of (Potter) iii. HIV Cases: recovery for negligent diagnosis cases (Chizmar v. Mackie); recovery for negligent exposure to infected needle (Williamson v. Waldman) Recovery only for window until find out diagnosis was wrong? This is foolish b/c people cant just shut off emotions Needle standard: reasonable person of ordinary experience who has a level of knowledge that coincides with then-public info about cause/transmission of AIDS iv. Gammon v. Osteopathic Hospital of Maine: Ps father died, D sent bag of his belongings to funeral home, P opened it, inside was a bloodied leg P had nightmares and relationship with wife & kids deteriorated: summary judgment for D reversed previous requirement of (a) physical impact, (b) objective manifestation, (c) underlying/accompanying tort, or (d) special circumstances; TOO ARBITRARILY RESTRICTIVE abandon requirements and rely on trial process to weed out fraudulent claims 1. Allow FORESEEABILITY of harm to be a jury question: could D reasonably foresee the emotional harm befalling a reasonable person under those circumstances? a. exceptional vulnerability of family members of recent deaths makes them more susceptible to this type of harm b. limit on special relationship: SEVERE emotional distress requirement v. Portee v. Jaffee- Plaintiff watched 7 year old son die in an elevator shaft while waiting to be rescued due to Ds negligence. Mother attempted suicide and many psychological issues resulting. Judgment for D reversed. 1. Dillon Factors: Proximity to accident; resulted from direct emotional impact from eye witness of impact; close relationship 2. Elements: a. The death or serious physical injury of another caused by Ds negligence b. Marital/ familial relationship between injured and P (not unmarried) c. Observation at the scene of the accident d. Resulting severe emotional distress 4. Negligent Interference with Consortium, page 294 i. Diaz v. Eli Lilly & Co. Justice Kaplan explores the fact that any claims against or for the wife had to be brought in the husbands name and now that is vice versa. The spouse loses something too. 1. Loss of companionship involving injured parents and children, social benefits and/ or money 2. In some states extends beyond physical injury

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(1) Prerequisites to a claim?

(2) Limits on recovery? (to control liability for negligently inflicted emotional distress)

Direct or Endangered P a) impact rule (traditional) b) zone of danger (Falzone) c) foreseeability d) special relationship (death) Falzone limited to physical symptoms of distress Gammon severe emotional distress (no eggshell psyche)

Bystander P (Portee) a) familial or marital relationship to deceased b) have to see it first hand c) must be severe emotional distress Portee (NJ) must have SEEN the death occur Some courts use reasonable belief Dillon (notes) NY uses strict rule zone of danger test

A. Exceptions to Reasonable Person Standard: 1. children: Dellwo v. Pearson children must adhere to adult standard of care when engaging in adult activities; but in child activities, standard is a reasonably careful person of the same age, intelligence, and experience; minority view: based on age of child (0-7 no liability, 7-14 rebuttable presumption of no liability, 14+ open question of liability) 2. mental disability: not definite that mental disability relieves D of negligence; must conform to standard of care of a reasonable person under similar external circumstances (Rest 283B unless child, mental deficiency does not relieve D from liability that does not conform to the standard of reasonable person under circum) 3. physical disability: with the physical attributes of D, would a reasonable person have behaved as D did (depends on Ds physical disability if another with that disability would have done it) (Rest 283C reasonable man under like disability) 4. emergency doctrine: if D was forced under the circumstances to act quickly b/c of an emergency, the standard of care MAY be lower; but just as another actor under the SAME circumstances would have

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