II.

COMPENSATION FOR INJURIES Casebook: pp. 853-895; 214-15; 961-62; 980-83

McDougald v. Garber- need awareness for pain and suffering- loss of enjoyment of life. O'Shea v. Riverway Towing- inflation, assume she would stay at this job, not an issue even if she has never made this before. Duncan v. Kansas City Southern Railway- issue w/jurys review of compensation. Not based on previous award, sympathy, inaccurate life expectancy. Remittatory offer a P lower for a new trial or D a higher to avoid a new trial. Ross, Settled Out of Court Benefits Under the Worker Compensation Statutes- lower amount, easy to get. No fault, get around AOR, couldnt sue employer if harmed by a fellow employee.

III.

NEGLIGENCE

A.

The Reasonable Person Casebook: pp. 169-94 Roberts v. Ring- no contrib for kids-held to someone elses standard, old man held to the same standard as everyone else, cant say you are too stupid, contractor, held like a contractor. Paying attention- neg or not paying attention neg. Daniels v. Evans- adult activites, licensing, intelligence, Breunig v. American Family Ins. Co.- insanity liable if foreseeable 1)person who caused it should bear liability 2)Put it on his estate 3)Would lead to false complained. Fletcher v. City of Aberdeen- held to the same standard as the blind person, safe for foreseeable

person.

B.

Risk Calculus

Casebook: pp. 194-201; 206-17; 220 Blyth v. Birmingham Water Works- protectionist, risk was not foreseeable-unprecedented frost., b)Duty to install, not a duty to maintain. Eckert v. Long Island R.R.- 1)Human life not contrib neg, not wrongful. 2)Thought he would have made it out ok Had to act instantly. Terry, Negligence Seavey, Negligence -- Subjective or Objective? United States v. Carroll Towing- B>PL, absence was unexplained, glaucoma. Lyons v. Midnight Sun Transportation Services, Inc- no more emergency doctrine. Problem 2

C.

Custom- evidence of reasonable person, Casebook: pp. 221-23; 224-261

The T.J. Hooper (2)- most had done it, something are so imperative, universal disregard wont excuse it. Lama v. Borras- same degree of skill of basic norms and medical care, expert testimony, failure to provide conservative treatment. Canterbury v. Spence- informed consent, material to decision, too common, crazy, even had told you patient it would not have changed their decision. Lack of care could be causation BPPOE, gravity of potential harm. Error in judgment must have known that it would have been erroneous, reasonable patient, Hazards, alternatives, results, incidence of injury and degree of harm, if patient is unconscious or emergency you use your best judgment. Small chance of death or disablement would be significant. Disability outweighing benefit would hold back therapy D. Statutes and Regulations Casebook: pp. 261-85 Thayer, Public Wrong and Private Action Osborne v. McMasters- standard of care, or duty. Martin v. Herzog- unexcused, causation, negligence, Cort v. Ash- if use a federal law. interest

invaded, kind of harm(if not discernable judges decide), particular hazard,

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Brown v. Shyne- license does not mean extra skill, must be caused by carelessness or lack of skill, difference between renewing license and failing drivers exam. Uhr v. East Greenbush Central Sch. Dist.- commissioner and they want to save the district money. Statute fixed standards of negligence. Applies to regulations and ordinances. Must be great risk of harm, than non-compliance. Public safety statute is usually a private right of action applies more to obscure statutes. Proximate cause is person who drinks alcohol, not the one who sells it. No private right of action and licensing statute is not negligence per-se.

Problem 3

E.

Proof of Negligence: Res Ipsa Loquitur- looks like negligence, circumstantial evidence, Casebook: pp. 298-326

Colmenares Vivas v. Sun Alliance Insurance Co.- 1)Wouldnt happen w/o neg., exclusive control(exclude other causes), duty, not Ps fault. Ybarra v. Spangard- vicarious liability might be an exception to 51. Anderson- extended it to manufacturer. Unconscious, unusual injury, medical, all Ds controlled, vicarious liability they were all working for the surgeon. Courts more likely to allow it if it will allow people to testify against each other.

IV.

Causation

A.

Cause in Fact Casebook: pp. 449-496

New York Central RR v. Grimstad- substantial factor, more probable than not, wouldnt have happened w/o D, couldnt prove the buoys is what caused him to drown. Zuchowicz v. United States- overdose, known risk and the kind of suspected harm did happen thats enough of a reason, harm that makes it neg. actually happen.

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General Electric v. Joiner- admissible evidence, question of causation, Herskovitz v. Group Health Cooperative- reduced chance of survival, increased risk of disease. Kingston v. Chicago & N.W. Ry.- acting concert either or both, would be JS&L, can be differentiated, apportioned, damages of leg and the arm. Summers v. Tice- alternative liability, 2 may be 3 people, either one could have caused the harm, they could be JS&L. Concert more than 2 ppl, implicit or explicit, Skipworth v. Lead Industries Assoc.- market share- must all be joined-all tortfeasors, fungible, within a share of time, P cant identify through no fault of her own who did it, * Allen v. United States- Haft- negligence deprives the P of evidence, burden is on D, in Allen since they did not let everyone know about testing burden is on them. Problems 4-5

B.

Proximate Cause Casebook: pp. 497-532; 536-45 Ryan v. New York Central R. Co.- not remote, spark a fire 100 feet would be liable. Berry v. Borough of Sugar Notch- violation must be the cause, wrong means.

Brower v. New York Central Ry.- liable for TP if foreseeable- more relevant if known, unforeseeable its TPs issue. Let her off in the wrong part of town the RR was liable. Natural act not liable. Even if malice is not foreseeable. Wagner v. International Ry.- liable for reasonable rescue efforts. TREMP CHIGI- Independent, Culpability, Same Harm, Gap in time, intervening actor. In re Polemis- directness The Wagon Mound- foreseeability alone determines liability. Palsgraf v. Long Island RR- could not have been foreseen and not wrongful. * Kinsman Nos. 1 and 2- wrong type of harm is ok if its included 2 purely economic too tenuous.

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Problem 6

V.

The Duty of Care

A.

The Good Samaritan: Failure to Act Casebook: pp. 563-65; 568-84; 607-24; 634-44

Yania v. Bigan- No peril here for unreasonable risk- affirmative duty- parent, special relationship, no physical contact- no taunting, he knew of the danger, did not create the peril. Ames, Law and Morals Epstein, A Theory of Strict Liability Posner, A Critique of Epstein=s Tort Theory Bender, A Lawyer's Primer on Feminist Theory and Tort Montgomery v. National Convoy & Trucking- even if omission caused the issue. Hazardresponsibility to minimize the risk. Erie R.R. v. Stewart- undertaking over a long period of time, liable.

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Marsalis v. LaSalle- agreed to do s/t but never did it, detrimental reliance. Moch Co. v. Rensselaer Water Co.- no duty of privity, when its a contract. No undertaking bc they did not provide a benefit they took away. Statutory- not providing water, wrongful to the city not the individual. Tarasoff v. Regents of University of California- must warn TP being threatened by a patient. Special relationship w/victim, you must protect victim, special w/attacker you may have a duty to warn, there it was a specific person, it was foreseeable.

B.

Owners and Occupiers of Land Casebook: pp. 584-606; 631-34 Robert Addie & Sons (Collieries), Ltd. v. Dumbreck- invitees-safe premises, licensees-social guest, not there for benefit of the host, no concealed dangers trespassors-no permission-wanton. Rowland v. Christian- ordinary negligence, most j/ds still lower duty to trespassors.

Attractive nuisance- even lower duty to trespassers- if you have created an attractive nuisance you have a duty to kids. Artificial condition(river would not work but pool would, kids will likely trespassors, involves death or risk of serious harm, not an obvious risk to children, utility or maintaining or removing it is slight, and owner fails to take reasonable care.

Economic Harm 1)Ultramares- just $$ strong duty is needed, undertaking where it was unknown(Erie), not a risk to person or possessions, just for Stern & no one else. Emotional Harm 1)Mitchell 2)Dillon- 1)Related 2)Sensory 3)Near 3)Zone of Danger- fear of personal safety. 4)Emotional fear of future harm like cancer must show more likely than not to get it, rarely viewed favorably. 6)Wrongful Death- survivors or estate, hard for proof 7)Consortium spouse(pain & suffering), parents, s/t kids, reduced quality of life. Defenses 1)Contrib neg. Same rules, b)Wanton negligence d)Timing is key. E)Failure to wear a Seatbelt- statutory req- per se, some say no causation for accident but

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there is for injury, some allow mitigation resulting from injury and after would be the same thing. d)Helpless P- regular torts e)Inattentive- even if P was neg. if D had time to be aware he is liable. F)General- if D was first P cannot recover & vice versa. 2)Assumption of Risk a)Lamson- knew of hatchet cant recover. B)Murphy- he assumed obvious and inherent risks, no defense if risks were extreme, modern courts might require greater warnings if they are not entirely obvious. C)SKI- no excuse that P assumed risk, if risks are intense, still duty to warn/correct if reasonable. D)6 factors 1)Suitable for reg. 2)Public Nec.(very common & popular-s/t less frequent might be different.) 3)Willing to serve whole public(license) 4)Essential nature & D has bargain power in economic setting. 5)Adhesion where no one can pay and get an exception from negligence. 6)Seller is in control of buyers person or property. e)Implied vs. Express f)Primary v. Secondary-D was somewhat neg., but you go along w/it.(still duty for P). G)Health care exception- no AOR if P had no choice. H)Ought to have known not enough & they must show he consented. I)Can be a D to reckless conduct. J)Spectator is primary at sports- unless foul balls into concession, must do s/t for foul balls. 3)Comparative Negligence- Li- Pure v. 50% system. B)Comparative gets rid of LC. C)Wanton- Ps might still have recovery reduced. D)AOR becomes a type of Comparative Neg. E)Doesnt apply to intentional torts. F)Primary would bar recovery. B. Immunities(Ill. And FTCA) 1)Parents- a)Relation alone wont do it-supervisory function exists, contrib neg. is a Q if kid runs in front of the truck. B)New rule cannot dissolve it. C)Few states allow spouse. D)Pre-existing for collusion. 2)Municipal gov. governmental v. proprietary(only gov does) may be allowed w/liability ins. 3)US- FTCA allows discretionary(gov to be sued) for judgment not policy. B)States s/t same s/t gone. C)May allow gov. official based on job function. 4)Olsen- gov like private person 5)Berkovits- discretionary(challenging the policy itself), not statute(unless statute itself). 6)Clinton- sep. of powers does not apply to s/t separate from carrying out his job. C. Joint Tortfeasors: Contribution and Indemnity 1)AMA- no more pro rata, comparative fault. B)If one D settles dif approaches. C)No dividing for intentional, property or death. D)Contribution- go to guy who

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did not pay. E)Insolvent. G)Joint for economic, several for non(in some states). H)SeL works if his portion isnt SeL. I)Concert J)Successive Harms. K)Pro tantosettled still responsible for his share. VII.TRADITIONAL STRICT LIABILITY A. Vicarious Liability 1)Scope of employment(except intentional or SL), main thing is forseeable characteristic risk of employment, courts are divided on the way home from work, battery or larceny out of scope. b)Contractor- liable if he controls physical, not just outcome, negligent if she caused or w/o precautions high-risk, nondelegable duty, supervising, directing, uniform. B. Animals and Abnormally Dangerous Activities 1) Gehrts- Wild dog neg., FS even if barks a lot, one bite theres a presumption of neg., Wild animal if possessor should know SL(not the zoo, AOR & kids should go) if out of dangerous propensities, type of domestic can be relevant. b) SL for physical trespass harm except cats and dogs. C)Even w/utmost care, SL exists. 2)Spano- liability for explosives w/o regard for trespass or fault, even vibrations enough bc its inherently dangerous. B)RS 2nd- AD liable to person, land, chattels if resulting even utmost care, if possibility makes AD. C)RS 3rd - AD SL resulting if FS & serious risk of phys. Harm, even reasonable care, & not common usage. Inapprop place & social value outweighs danger 3)Cynamid- SL for AD activites, not substances, SL avoided if neg. could be brought. 3a)Purpose is irrelevant, location is irrelevant, court determines, not jury. VIII. NUISANCE- CAN EVEN BE OMISSION. Nuisance- significant harm kind suffered by normal person/property, in normal condition for a normal purpose, can be an act or omission. B)Not a type of tort, but an injury sustained, intentional infliction, neg. or AD or other SL. 1)Private Nuisance- non-trespassory invasion in anothers interest in the private use & enjoyment of the land. Liability only to those who have property rights, and privileges w/respect to use and enjoyment of land affected including a)possessors b)Owners of easements C)non-possessary estates affected. 1a)Must be intentional(gravity of the harm outweighs the utility of the actions), unreasonable or negligent, or abnormally dangerous or anything else giving rise to SL. 1a1)For SL must be intentional, unreasonable, and non-commercial. 1a2) Multiple unintentional would be considered intentional, should have known

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would be enough. 1b)Harm must be serious and financial burden would not make continuance unfeasible- substantial. 1c)Gravity of harm- a)Extent b)Character c)Social Value d)Suitability of use to location invaded. E)Burden of person harmed to avoid the harm. 1d)Social value law attaches to primary purpose B)Suitability of the conduct to the character of the locality. C)Impracticability or preventing or avoiding invasion. 1e)Damages or injunction. 1f)Defenses- if based on neg- contrib neg will work(not if intentional or reck) b)AOR is gen. applicable(Ensign- old risk) 1g)Vogel- even annoyance would be enough, stray voltage not always a nuisance. 2)Public Nuisance unreasonable interference w/a right common to the general public B)Interference w/public health, safety, peace, comfort or conv, proscribed by a statute C)Is the conduct continuing, permanent, and actor should know of its affect on the public. D)Must have suffered s/t diff than the general public. E)Need a right to recover, be a govt official or class rep. F)Intentional if the actor does it on purpose or knows the result is certain to occur. G)Courts look to duration, neighborhood, degree of damage and social value. H)Boomer did not have to close it down when weighing risks against each other- but D must pay regardless of utility, pay instead of nuisance. I)If permanent one recovery is justified. J)Madison- do not have to pay if harm is purely economic. K)Only liable if different from what the public had suffered. L)Allegation of be handled dangerously not enough for SL. IX. Products Liability A. Tort or Contract? 1)UCC 2-318- Warranty extends to foreseeable guest, person or company. 2)RTT 402A- Sells in defective condition unreasonably dangerous to the user/property liable for physical harm if a)This is sellers business b)Expected & reaches user w/o substantial change in condition 2)Even if seller exercised all care b)User has no privity. C)No opinion on non-user 2)Seller expected to be changed before it reaches user 3)Seller of a component. 3)Defective if when sold has manu, design or inadequate warnings defect, a)Manu when product is not intended design, even though all possible care was

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10

exercised in the prep & marketing. B)Design- FS could have been reduced by alternative design, & omission makes it unsafe c)Inadequate warnings when FS could have been reduced by warnings 4)Casa Clara- a)For a tort must be more than let down expectations. B)Not liable for consumers standards but can be for bad standards. C)Economic1)Inadequate value 2)Cost of repair/replacement 3)Loss of profits. 5)MacPherson- reasonably certain to place life and limb in peril when negligently made, now liable for proximately caused, insure, omit or invest. Restatement 1)Market power 2)Insurance ability 3)ability to internalize cost. B)Greenman- if s/t wont be inspected you are held strictly liable. 1)Negligence-anything foreseeable even outside privity 2)Breach of Warranty 3)SL 2)Manufacturers 1)Neg design 2)Manufactured 3)Inspected 4)Shipped poorly 5)Got bad components. 3)Retailers usually warranty or SL, bailors, sellers/lessors of RE, servers of products may be nailed on neg. 4)Issue with products not as advertised look in UCC, household, guests, company or anyone if FS 5)Express if not met UCC 1)Stated fact about goods. 2)Description of goods 3)Use of sample or model. No privity needed. IF you can show it wasnt met, even if D could not have known he could be liable if proven to be not true. 6)Implied warranty just from being up for sale. B)UCC implied warrant of merchantability, goods must be fit for ordinary purpose, seller must be in business w/goods of that kind. C)Also if buyer wants them for a purpose, seller knows that and buyer relies on seller D)Most states reject privity. 7)Seller can disclaim if it says Merchantibility and its visible. 8)Sellers can try to limit but it wont work for personal goods. 8)SL suit usually better exceptions 1)Pure economic harm 2)Faster SOL. 9)SL only if it departs from its manufacturing design, not if unavoidably safe & benefits outweigh dangers. 10)Some courts allow even if safe only for one group of patients.

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11

11)Design defect only when foreseeable risks could have been avoided by alternative design. 12)Food is unreasonable if it has an ingredient a reasonable consumer would not expect it to have. 13)Obviousness depends on type of defect a)Manufactured- wont stop P from collecting from obvious defect. B)Design depends if benefits outweigh if they dont P can collect. C)Failure to warn P usually can(not) collect. 14)P must prove it was manufactured by D, defect usually cannot be proven by the fact that the D later fixed it, mass tort often epidemiological evidence, must prove that is the cause. 15)Toxic tort16)It can be inferred that defect was present at the time of sale if it was a kind that ordinarily comes from product defect and wasnt only bc of causes other than the defect at the time of sale or distribution. 17)Sears- 1)Can collect when it is a substantial factor. 2)Circumstantial must prove product did not perform as intended & exclude all other possibilities. 18)Campo- not responsible for obvious design defects. 19)Barker- 1)Defective if risks outweigh benefits or product fails to perform in FS manner. 2)SL when a product he puts out there has defects and he knows it will not be inspected further. 3)Defective is when its different from what manu wants or comparable products. 4)Not safe could lead to SL 5)Can still be defective even if it meets consumers expectations. 6)Feasibility mechanically and economically for a safer design and adverse results. 7) A product is defectively designed (1) if it doesnt perform as safely as the ordinary consumer would expect, when used in an intended or a reasonably foreseeable manner or (2) if the benefits of the products design are outweighed by the risk of danger inherent in such design.