Gilles Torts(Compensation, Fairness, Deterrence) Intro Negligence= conduct that unreasonably increases the risk of harm Social insurance

ce approach is to provide full compensation in every instance of harm to everyone Hammontree v. Jenner car drove through Ps bicycle shop accidentally bc D had a seizure at the wheel but he did everything possible not to have an issue. Liability by a driver suddenly stricken by illness rendering him unconscious of injury resulting from an accident occurring during that time rests on principles of N Strict liability doesnt require a fault finding, just need causation 3 functions of tort law: compensation, deterrence, and fairness (we want to treat all cases alike) Precedent is great bc it speaks to predictability, but precedent moves very slowly and we want to get creative ideas into the system. Contingency fee system- paid if you win; allows more ppl to access the system, many though lead to early settlement on good cases bc lawyers just want to get paid

Vicarious Liability
Respondeat superior= form of vicarious liability in which the employer is held liable for employee as long as they meet certain requirements, forces employers to take care in selecting employees; its a form of strict liability Justification: employer is more likely to pay, promotes fairness bc employer can spread its loss (raise price for prod or buy insurance) and also it provides incentive for employers to take due care. Basically saying employers policies and practices played a role in N (we clearly cant say that about parents and kids). Employee takes risks to benefi employer (to further employers goals) so intuitively it seems fair to impose liability upon the employer. Employer should pay bc he can select and control his employees and as such can prevent injuries from their N Can even be liable for employees intentional torts as long as it meet Birkner Christensen v. Swenson cup of soup case, we limit respondeat superior by the scope of employment. Crt said reasonable minds could differ in whether D was acting in the scope of employment.

Birkner test- Scope of Employment 1) employees conduct must be of general kind the employee is hired to perform, 2) employers conduct must occur during work hrs and on employers property; 3) employees conduct must be motivated in part by purpose of serving the employers interest. *If a reasonable mind can disagree on any factors, it should go to a jury. Employer must prove scope of employment
Apparent authority= a way to get vicarious liability for independent contractors on their employers, the person they are working for must appear to be in the apparent of an employer. Principle can be held liable for the acts of their agents that are within the course and scope of the agency and also within principles apparent authority INDEPENDENT CONTRACTOR EXCEPTION TO RESPONDEAT SUPERIOR! EMPLOYER DOESNT CONTROL CONTRACTOR, NO DIRECT SUPERVISION SO NO LIABILITY!

Roessler v. Novak misread scans, said SJ was improper, test for apparent authority: must have all three, 1) representation by purported principle, 2) reliance on representation by a 3rd party, 3) change in position by 3rd party in reliance on representation. A hospital may be held vicariously liable for acts of physicians, even if they are indep contractors, if these physicians act with the apparent authority of the hospital

Negligence Standard of Care

Historically, the Norman Conquest established the royal crts There used to be only the distinction b/t trespass and trespass on the case in tort law Trespass didnt require proof of actual harm, there was a direct harm (like being hit) and would allow you to recover damage; criminal underpinnings with intended torts Trespass on the case allowed a remedy for indirect injuries, required a proof of a duty and you had to show intentional fault or the act was unreasonably dangerous (similar to N) Then the writ system was abolished and we got modern day tort law The standard of care is ordinary, reasonable care not extraordinary care! Brown v. Kendall dog fight, crt re-clarified that the burden of proof is on P on direct claim elements; P must prove fault or intent this is not strict liability! No liability for accidents. If we didnt have it on P to show fault and claim elements we would never leave our homes, and its more efficient judicially. Landmark case estab fault princip. Greene no need for extraordinary care and to tell P that he was going to move. The mechanic was in plain sight and this case didnt even get to a jury (they jury would be too sympathetic). D only required to exercise ordinary care. Common and simple act Deterrence is probably better served by using rules bc its more predictable and efficient. It will also avoid litigation. Parents and their kids- can be held liable for parents N in permitting kids to something beyond their ability or in failing to exercise control over a dangerous kid. Kids are generally sued directly Parent-child is more difficult to regulate than employer-employee; less control The standard of care helps us decide when D was actually being N If the injury is so outside the reasonable realm of happenings and D had taken all reasonable precautions to prevent against it then they are not N (Adams v. Bullock)-Cardozo D was using the trolley line lawfully, and there was no way to foresee that a kid would come by and swing a wire and electrocute himself. Also this type of injury had never happened before and there is really no way to guard against it. Reversed jury verdict. Not liable for an extraordinary mishap that could not be foreseen. Adopted all reasonable precautions. Only had a duty to act reasonably! Also the question of reasonable care is usually a question for the juries Braun Cardozo rules for P b/c the wires were never inspected and were installed 20 ft above a vacant lot; its foreseeable that a building would be built there at some pt. reasonably anticipated the building. Usual harm, not exceptional. The standard of reasonable care is that its reasonable on the circumstances and so its very fact intensive Make sure to talk about every element even if there isnt an issue, just say theres no issue here with causation/breach/duty The HAND FORMULA! (US v. Carroll Towing Co)

B < P x L (or risk v. utility) b= burden of precaution; P= probability of harm; L= cost of liability If the burden is less than the injury and the probability then there will be liability; basically tries to quantify the standard of care because not meeting your burden is unreasonable. Helps lawyers know which cases to bring, what evi to produce and how the crt will analyze and it constrains judges to discuss N in clear understandable terms The burden in this case is small and it would not be unreasonable to have a bargee on deck at the time of the accident so no reasonable care If the loss times probability exceeds the burden, then the failure to take the precaution is N Eco view of N is good where there is a strong risk of hindsight bias bc these cases usually involve a small-to-moderate risk, serious injury, absence of fault by P and no probative costs assoc with safer untaken precautions Looks bad for D but if we look at it from an eco perspective we can see that maybe it was reasonable to be N bc the burden and probability is just so low. Posner had an economic view on the Hand Formula; B= cost of prevention If B is greater than PL then we should not hold people liable bc its not economically rational (they will just pay for the accident) When cost of accident is less than cost of prevention, a rational profit-maximizing enterprise will pay tort judgments to the accident victims Where B is less than PL, D was unreasonable. Its better for the cost prevention to be paid in accident prevention The expectation is that Ds going forward will pay cost of prevention in order to avoid higher tort judgment; we want to push people to engage in safety practices when they are reasonable! Foreseeability is subject to hindsight bias, and this formula doesnt help Is P the day of the accident or before it, and we are looking at liability now after the accident occurred. Hand formula also helps judges to explain their judgments very clearly Cons of this formula: How do we quantify the variables. Cost of obtaining reliable info of variables. Variables not comparable in all cases. Moisan v. Loftus care is the only variable we can quantify (although usually not) Would be even harder to apply this formula in non-biz scenarios (like in Greene) and also we dont think about cost and benefits in our everyday lives and reconstructing it after the fact is hard Also the variables dont seem the same (how can we compare losing your child with the cost of putting a lock on a turntable?) - This formula asks juries to make rough calls by weighing those costs

The Reasonable Person Standard

why? admin ease, concerns of fraud, comm norms, deterrence, jury comprehension. The standard of care= reasonable person standard unless there are certain duty rules applicable there If you are drunk that does not matter, held to reasonably sober prudent person! The standard is both external and objective Not the reasonable me! We consider conduct and not the state of mind (external)

If we allowed in peoples mental deficiencies then wed have 1 million reasonable person standards; plus you can be faking. Avoid subjective judgments about individ character, allows some measure of prediction and impartial application HOWEVER!! We are fine with holding someone to a higher standard (reasonably brilliant person, just not a lower one) Exceptions to objectivity- superior skill/intelligence or relevant info, physical disabilities/characteristics (height) Reasonable person under the circumstances (so therefore external stuff is always taken into account) We do take physical disabilities into account in the reasonable person We have a duty to exercise reasonable care!!! We gauge Ds actions against a reasonable persons action, not against Ds own capacity This standard helps to determine liability to hold everyone up to the same standard; it allows for administrative ease (subjective standard would be infinitely variable and not enable us to estab precedent). More fair to hold everyone to the same standard; if the standard was subjective people would just lie; public assurance of community norms (give public assurance on how to act). Can help to promote deterrence bc you know that your individual characteristics are not being taken into consideration and if you see people getting into trouble for specific things you will try to avoid those things. We push people to be the best they can be! However, its hard to gauge exactly who the reasonable person is An objective standard will help us gauge our own level of self-protection (ex: defensive driving) and it helps with predictability It enables the jury to judge D on their own knowledge and experience (how far does Ds actions deter from what I would have done), non-arbitrary and non-discrim standard (less confusing); allows jury to pull from its own experience and knowledge We have reasonable person standard bc of: admin ease, fraud/deception concern if dependent upon subjective standard, deterrence, community norms and juries We ask that juries do not look into the mind of D, as we do in crim, because in crim there is a higher BOP and the reasonable person is a law-abiding person but in crim we know that is not true. Also the stakes are higher in crim, so we want to be more precise. Physical characteristics are sometimes incorporated A blind person is held to a reasonable blind person standard (although that standard can expose them to more stringent standard) A physical limitation is not a defense, its just another thing that comes into play in drafting the reasonable person The law struggles with mental illness. Bashi v. Wodarz wigging out and history of mental illness was not taken into account for structuring the reasonable person How would we know whats real? If you are a child then mental illness will relieve you of liability but if not then it sucks for you unless conduct conforms to reasonable person standard. Policy arguments for keeping mental illness out of torts: Unsatisfactory character of evi in mental deficiency, plus its easily faked i. Mental defectives should pay for harms they do and its better their wealth be used to compensate victims

ii. Liability will stimulate those who are in charge of them to care for them better iii. Its hard to draw the line between mental deficiency and variations of temperament, intellect and emo balance which cant be considered when imposing liability MENTAL ILLNESSES ARE NOT TAKEN INTO ACCOUNT IN COMMON LAW AND IS NOT A DEFENSE Physical infirmities are taken into account; they are apparent and visible and cannot be faked. To breach a duty of care you have acted unreasonably under the circumstances Roberts v. Ramsbottom driver had a stroke before driving and didnt realize he had a stroke, judge said he will escape liability if at the time of accident the drivers actions were wholly beyond his control, but as long as some control is maintained then it sucks for him. Some control of your faculties and you will be liable; very diff than Hammontree WE NEED TO KEEP REASONABLE PERSON OBJECTIVE! For kids, juries must first ask what the capacity of the particular child (subjective) and then what would a reasonable child of like capacity have done (objective)- Mastland Inc v. Evans Furniture, Inc Age, experience and intelligence are fit into child standard of care; only N if you are less than that (its pro-D bc its subjective) If operating a motorized vehicle like driving a kid is held to an adult standard of care Professionals- must provide that degree of care as given by the average member of the same profession providing the same service (we subject it to other in the field, diff than regs reasonable person); like a standard of conformity Evi of what is customarily done is the standard of care here Emergency doctrine= a person confronted with an emergency not of his own making is required to exhibit only an honest exercise of judgment. For common carriers we have traditionally required a heightened standard for the reasonable person; the REASONABLE CARETAKER! Bethel v. NYC Transit rejects the old common carrier rule (which was somewhere b/t reasonable care and strict liability), but it only overturned common carrier standard for NY!! iv. The handicap chair on the bus collapsed Law treats phsy and emo characteristics very differently!

The Roles of Judges and Juries

NEGLIGENCE IS FAILURE TO EXERCISE CARE THAT WOULD HAVE BEEN EXERCISED BY A REASONABLY PRUDENT PERSON! When reasonable minds differ on the question of what constitutes reasonable care, that question should go to the jury, and if we have uncontroverted evi it goes to the judge! Jury Functions Determines facts Draws inferences from witnesses (whose lying, weighs credibility) Evaluates Ds conduct Standards Judge Functions have tremendous amnt of control! Determines the law, legal standards, and legal duties Sufficiency of the evi (ex: no jury could find for P) Jury instructions Rules

Baltimore & Ohio Railroad Co. v. Goodman Holmes. if you do not take all precautions at railway crossing you are N and liable for your own death; you must get out and look if you cannot tell if a RR car is near Crt here likes the rule so that we can judge these cases as a matter of law! Holmes wants consistency and predictability. Preference for rules over standards. However, the crt did not account for times when there would be a close call, what if it was unreasonable to get out and look? Ruling as a matter of law is nice because it helps us predict what our rights and responsibilities are Pokora v. Wabash Railway Co very similar facts to Goodman but Cardozo says this is a question for the jury! This case presents a fact-intensive inquiry and is best suited for the jury (but then again Cardozo also says only extraordinary cases should go to the jury). When its clear we can decide as a matter of law and where its close we need a jury. He does say that Goodman was rightly decided given the facts, but he thinks we should allow these cases on the question of reasonable care should be a jury question. Andrews v. United Airlines Inc crt said that a jury could find for P since netting installments and other ways to make safe the overhead baggage compartment was not too costly or inconvenient. Looked to the fact that common carriers owe a duty of utmost care Reasonable minds can differ and also theres a higher duty of care for common carriers so this is a jury question Duty is a legal question here and due to the heightened duty we think this case should go to the jury Proving N (1) what the D did, (2) what D did or failed to do did not constitute reasonable care, and (3) what would constitute reasonable care (some untaken precaution).

The Role of Customs

When we move from rules to standards (juries have standards), we lose that stability and predictability that we love about rules To prove N, we can look to customs, statutes and proof from circumstantial evi The general consensus today is that proof of custom should be relevant because it gives juries a sense of the business and structure to the reasonableness inquiry! Also custom gives us some sense of the burden in B>PxL, it helps jury determine whether D spent enough on the B. Custom evi is NOT dispositive Custom offers the judgment of many people and therefore suggests thats how the reasonable person would act. However, sometimes customary behavior is N (everyone is doing it is not always a good thing) Jury can decide whether the custom is a good custom! Trimarco v. Klein P tried to use custom that everyone is changing their shower glass doors in the industry to be safe bc the old glass is not safe! The custom must be widespread and nearly universal and also must be one that was in place for safety concerns or else it shouldnt come into show N. Custom= jury issues; custom tells us whats happening in the real world so it speaks to the role of the jury.

TJ Hooper most people didnt have radios so thats really the custom, but Hand is troubled by trusting the industry to set its own standards and just bc he was following the custom here he should have had a radio Crts should determine is N, custom evi or not If there is no custom evi, then it just avoids a jury question Custom can be used as sword (D fell short) or shield (D applied with custom) Adherence to customs and deviations from them help us decide if the conduct was reasonable Levine v. Russell Blainenon-conformity doesnt indicate sub-conformity; could have been that smooth rope was used for a different reason than safety reasons. A motion in limine is a motion to decide if evi comes in We care if a custom is created for purposes of safety bc it speaks to foreseeability, if the custom was in place to make something safe, its foreseeable that deviation from it will result in injury!

The Role of Statutes

Determining private right of action (Sheehy factors): (1) whether P is in the class for who the statute was enacted, (2) whether PRofA would promote leg purpose, and (3)whether PRofA would be consistent w/ leg scheme. We obviously want our statutes to be clear, but sometimes they are not Some statutes establish a standard of care; so if a person violates the statute they have ignored the standard of care (rationale for N per se)! Must be that the statute is aimed to protect the class of ppl P is a member to, and the accident must be in the class of risks the statute was trying to prevent! Statute must be aimed to protect against the type of harm P suffered Statutes do help to give clarity to the reasonable care notion, stronger indication of what constitutes reasonable care N per se= where a statutory provision provides a specific standard for what constitutes N and the crt adopts the statute as evi of reasonable care Statutory private right of action asks whether a statute can provide a cause of action or impose a duty not recognized by tort law. Once a crt decides there is a private right of action, that statute also provides what is needed to breach that duty! Clinkscales v. Carver just bc something limits criminal liability does not free you from tort liability Crts are all over the place as to what extent the statute is let in as evi Martin v. Herzog trial crt tells jury that the statute violation is allowed in as some evi, it can be taken into consideration (buggy from the gloom case) Evi of violation of statute is per se N unless excuse! Standard of care has been estab by leg; P MUST STILL SHOW CAUSATION! Cardozo says that violation of a statute establishes a violation of due care unless there is an excuse that satisfies the judge; such as: Emergency situations, Bassey v. Mistrough (car failed and had to get out to fix it, obvs couldnt have his lights on); inability to avoid Necessity Situations, if noncompliance would be safer then do so (violating the statute is more reasonable)

Tedla v. Ellman it was safer to violate the statute, and judge said this wasnt a safety statute; walking on wrong side of the st Capacity situations (children are excused) Takes this away from the jury, statute violation sans excuse is N Statutory purpose doctrine= similar to the customs evi, SPEAKS TO FORESEEABILITY! Gorris v. Scott sheep were washed overboard, but the Contagious Diseases Act statute was not in purpose to keep the sheep on the boat but to separate diseased sheep Can have a secondary purpose in statute which would be good for N per se Stat purpose doctrine is similar to prox cause bc prox cause asks if the harm is within the realm of foreseeability and stat purpose asks if the harm ws intended to be protected against by the leg; examines stat purpose to determine whether N violation may be used as per se evi of N Statute of repose= triggered by completion of the act, stricter than SOL, essentially the max amnt of time in which a legal claim can be brought SOL= varies from state to state, based on diff things, can be extended or stalled (filed, or exposure, discovery of injury, ect) Revival statute= can bring claim again, allows previously barred claims to be brought during a limited period of time, usually a years (ex: Hymowitz) All three may be nec for long latency mass torts for fairness! Licensing statutes; Brown v. Shyne D is held to standard of regular physician and jury isnt told about his statute violation (you want to act like a Dr? Ok were going to treat you like a Dr.) It would be prejudicial to tell the jury about statute violation, totally stacks the deck against you Evi of a failure to obtain a license is not probative (tending to prove a proposition) of the question of whether D failed to use reasonable care; it doesnt per se estab a causal rela b/t violation and harm We cant hold the licensee statute violators per se liable (N shown through statute violation); we dont want to deter so many people- if someone isnt licensed and can help we want them to Also the fact that you have a license doesnt mean you always act reasonably and visa versa Leg after Brown enacted a law for prima facie N for license violation for medicine. Statute evi can create a presumption that D rebuts with an excuse or can just be let in as evi of D not acting reasonably

Proof of Negligence
Tort law is a state common law creature Both custom evi and statute evi speak to whether conduct was reasonable In torts cases, direct evi (eyewitness testimony, comes from personal knowledge or observation) is usually unavailable and so it usually goes to a he said she said game Bad character evi is not probative, prior incidents isnt too relevant to the accident on that day (should object to it) Circumstantial evi= evi of circumstances and permit trier of fact to draw an inference P must carry both the burden of production( produc evi which goes to claim) and burden of persuasion (Ps view more lilely than not shows finding for P) to prove prima facie case Prima facie= P has met its burden, N per se involves an inference Negri v. Stop and Shop Inc slip and fall in baby food, there was evi to support that D had constructive notice of a dangerous condition which created Ps injuries. There was enough circumstantial evi to permit a jury to draw nec inference that a slippery condition was created

Gordon v. American Museum of Natural History said there was no evi to allow for constructive notice; the paper outside the museum was not dirty looking and no witnesses showed the piece of paper was on the ground for a while Constructive notice=defect is visible and apparent and existing for a sufficient amount of time prior to the accident to permit Ds employees to discover and remedy it. Past transgression evi can be allowed to show what precautions D could/should have taken to avoid the harm; CANNOT USE IT TO SHOW NO REASONABLE ON THE ACCIDENT DATE!!! It would show that the harm was foreseeable and what precautions should have been taken. Also if we had past transgression evi in Adams, we could find liability via Hand Formula! In cases of constructive notice, we care really only about the even that took place the day of the accident (we worry if we put evi in front of jury of past transgressions they will never be able to forget it) Moody v. Haymark Assoc evi of similar accidents or absence thereof may be circumstantially relevant in determining whether a dangerous condition, notice thereof, or causation existed (but first the judge has to decide if evi is relevant and whether the probative value is outweighed by countervailing considerations of state evi code) Business Practice Rule= no need for constructive notice for biz practices that create a reasonably foreseeable risk of harm to invitee Randall v. K-Mart Corp bc of the self service nature of supermarkets, there was a duty of care to use reasonable measures to discover and remove debris from floor Its still on P to show how the harm posed a risk (ex: how long it was there for) and D will have to show what steps were taken to guard against the harm Chiara v. Frys Food Store extended biz practice rule to rid P of proving notice if D could reasonably anticipate hazardous conditions would regularly arise (P showed crme spills regularly happened and that was enough)

RES IPSA LOQUITUR= the thing speaks for itself evi of accident allows us to infer N Res ipsa is a subcategory of circumstantial evi Can be invoked when: Injury is one that ordinarily occurs b/c of N, the instrumentality of harm was in exclusive control of D, and injury not due to any N on part of P. Presumption rule: D must present some evi in rebuttal in order to even get the jury. Permissible Inference rule. Bryne v. Boadle made out Ps prima facie case bc of mere fact that there was evi of the accident (had witnesses saying they saw the barrel come out of the window). Something fell out a window, thats prima facie N. Object should be contained/stationary but escapes and becomes source of harm. cntra: Swerving car- object supposed to move but unexpected course and N remains Larson v. St Francis Hotel no res ispa was granted when a chair was thrown out of the hotel window Cant show who was exclusively controlling the instrumentality of harm, this is a circumstantial evi case, not a res ipsa case (like Gordon and Negri) Connolley v. Nicollet Hotel the hotel knew that the guests were rowdy and causing trouble but decided to turn the other cheek (there was a memo instructing the staff to do as such).

Although the crt granted the res ipsa instruction this isnt really a res ipsa case bc the hotel had actual notice, not just constructive notice. More control over the instrumentality of harm in this case than Larson bc the hotel knew the guests were rowdy Sometimes cases start out as res ipsa but then progress through discovery and P is able to get real proof of N so you drop res ipsa bc its not as strong Res ipsa allows for an evidentiary presumption, but its rare so you try to get direct or circumstantial evi McDougald v. Perryfacts of injury are enough if coupled with causation, this is the spare tire incident case. D performed an inspection of the car, which just shows that it was under his control Res ipsa looks like strict liability but D can still prove to jury that he exercised reasonable care and then defeat P (which obvs cant happen in strict liability) Sometimes the instrumentality of harm can be something that moves, but moves in such a way that its unexpected Other times there are custodial cases in which P is in custody of D and instrumentality is unknown but res ipsa is still granted (the custody subs in for the control) Res ipsa gets you past SJ to a jury, but the jury isnt obligated to infer N. P will still need to convince the jury to draw the inference and will lose unless jury finds N was more likely than not No burden shift and no requirement that D puts up any evi Farina v. Pan American World Airlines, Inc this is rare to have a N case decided on the papers, but D had nothing to bring so judge said ok to SJ D will be forced to put forth some evi (smoke out the evi) with res ipsa; without it P has no evi so D doesnt need to put forth any evi Ybarra v. Spangard (custodial case) D said no res ipsa bc we cant show exclusive control or causation Ybarra went in for an appendectomy and remembers before being put down that he was on something hard, but there wasnt one defendant who was more prob than not N, but the crt uses res ipsa bc there is no other way to know what happened (P was unconscious!) No Dr or nurse is going to come forward and admit to seeing something happen (they will be black listed, they get no financial compensation for doing that anyway) Crt found against all D even though they said that they didnt know what happened, but the crt said that we dont have to believe it, thats not our role. Each D had control over one or more instrumentalities of harm at one time; here we have constructive control Another res ipsa requirement: the accident must not have been due to voluntary action or contribution of P Raber v. Tuman flower pot fell out of window and we can recover against all tenants; however this isnt fair bc theres no custodial rela like in Ybarra Inouye v. Black refused res ipsa bc it could have been the manufacturers fault that the wire didnt disintegrate (if the lawyer had sued everyone, then it could have been squared with Ybarra) Regs circumstantial evi allows us to infer a specific N act, whereas res ipsa allows us to infer some N act

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Permits an inference of N, but doesnt require inference of N Smoking out the evi: (1) one or more D must have knowledge of actual injury to P for evi and (2) D must be willing to lie under oath at depo but truth at trial.

Medical Malpractice There are some instances where res ipsa in medmal is ok (like where the clamp is left in the body,
sponge cases, burn from x-ray, or you operate on the wrong body part); we allow it when the accident is so obviously N that its common knowledge

Med-mal must be estab by experts (gen 2); we ask whether Ds conduct conformed to the medical
standard or custom in the relevant community. There is a massive med-mal crisis (some say its overblown) Custom evi here is much stronger than in reg N cases, and 2 doctors are required to provide expert testimony (in most jurisdictions); BRIDGE THE GAP! Jury doesnt know anything about common knowledge in the medical field We dont think the jury will figure out this stuff on their own Some crts are uncomfortable with experts bc it might turn into a statistical study vs. observational testimony Statistics are statistics, you cant unring that bell! Sheeley v. Memorial Hospital there used to be a strict locality rule in which the expert testifying had to be from the same community as D. This was to protect rural docs bc less adequate resources, few opp to keep abreast with profession, lacking modern facilities. Then that was expanded to the similar locality rule, in which the duty to exercise same degree of diligence and skill thats possessed by other members of the profession who are engaged in the same type of prac in similar localities having due regard for state of sci knowledge at treatment time and the expert had to be from a similar locality (allows experts who arent even in Ds specialty or locality). Origin of those rules were to protect the rural dr from the urban dr and we wanted to encourage people to work in small towns. The lower crt barred Leslie from testifying bc they said he was overqualified (he might know more and set the standard too high) The problem with the strict locality rule is that no one wants to testify Rids of similar locality rule in favor of national standard of care!! By allowed testimony of an expert who doesnt practice in Ds locality or even in the Ds specialty, the crt here is essentially requiring D to have provided the P with care that would be comparable to order care she would have received Sometimes if you have no other evidence than your injury (like you were under anesthesia) you have to bring a res ipsa claim D can bring their own expert to rebut the inference of N, but then it might become the battle of the experts! State v. Lourdes ovarian cyst, position of arm thing; judge allowed use of expert medical testimony in res ipsa cases (holding); We need experts to BRIDGE THE GAP b/t what the jury knows and the drs know INFORMED CONSENT!! These are not the traditional med-mal cases

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 Med mal cases seek to protect our bodies, whereas informed consent cases seek to protect our minds Its not possible to tell the patient everything!!! It used to be that informed consent only applied in cases of battery (non consensual touching) and invasive procedures, but now we need informed consent for everything Matthies v. Mastromonaco implemented the reasonable patient standard which obligates the Dr to disclose only the info material to a reasonable patients informed decision, so we dont overload the patient with info. 81 yr-old with the broken hip; the test for materiality (what risk is material) is whether a reasonable patient in the patients position would have considered the risk material (patient rule) value of indiv. Autonomy, patients quality of life, patients choice to make life-or-death decisions. The patient rule replaced the professional rule (in which we asked whether a reasonable physician would have disclosed the risk under the circumstances); value of professional ethics, docs should be making maj med decisions. it was hard to get other doctors to testify under professional rule and what doctor is going to want to expand what they have to tell people. Major Matthies concern: how can we ignore the idiosyncrasies of patients in trying to determine whats material in our objective reasonable patient standard? It seems odd and contradictory not to let in individual characteristics (the jury will always take in indivi charac anyway; birth complication but never get abortion hypo); also retrospectively the patient is going to say they wanted to know everything! A reasonable patient is going to want to have known everything! Also the reasonable person standard always looks to Ds conduct, but in informed consent cases the reasonable patient standard looks to P In informed consent cases we are protecting the patients right to make a choice; its a dignitary right (in Matthies, the Dr made her choice for her). However, how can we get a jury to compensate a dignitary right? No one will take that case We havent gotten informed consent to extend to the dignitary harm yet, now we only protect for physical harm As long as a patient has a right to know (which we judge by reasonable patient standard) they can get to a jury (taken from birth complication but would never get an abortion hypo) Informed consent today have to disclose any significant risks, nature of proc and invasiveness, continuing duty to disclose subsequently occurring risks even after the treatment occurred (continually remind your patients even when they stop being your patient); also physicians must disclose/describe reasonable alternatives, must say benefits/risks, obligation to inform family members of the risks Must disclose medically reasonable alternative (Moore v. Baker didnt disclose rare alternative and crt said you didnt have to)

The Duty Requirement: Physical Injuries Affirmative Obligations to Act

D must have owed a duty and breached it in order to have N! DUTY IS A JUDGE QUESTION!!! ELEMENTS OF A TORT CLAIM: Duty, breach of duty (unreasonable care), injury/damages, and causation (Chap 2 is about breach the duty) Duty= a legal obligation to take or refrain from taking some action. Everyone owes a duty to exercise reasonable care

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Duty can be analyzed as being foreseeable Public policy against imposing a duty: implies that people owe a duty of care to others at all times The traditional rule of no-duty is still universally enforced indiv free will,admin ease, overdeterrence, but there are a great number of exceptions: Non-N Injury= used to be if innocent injury and non-tortious then no duty, but thats changing; if you know impending plight and you do nothing there is a duty. If actor knows or has reason to know that by his conduct (whether tortious or innocent) he has caused bodily harm to another as to make him helpless and in danger of further harm, actor is under a duty to exercise reasonable care to prevent further harm. (Rest. 2d Section 322). Non-N Creation of Risk= there is a duty to exercise reasonable if you created the risk non-N. Simonsen v. Thorin knocked a pole into the rd without fault and drove on but the crt said he had a duty to warn or remove hazard (hard to square with Harper bc here its non-N so theres really not even misfeasance). Special Relationship= common carriers, innkeepers, possessors of public land, and ppl who have custody over others. D takes custody of P under circumstances that deprive P normal opp to protect himself. Note: ALL CASES IN THIS SECTION (A) INVOLVE THE SPECIAL RELA TO ESTAB A DUTY! Special Rela (1)other party has better means to protect the P, (2) voluntarily entered into rela, and (3) person who affirmative duty is placed has benefit, often economic. Land statuses are types of special relas Speaks to vulnerability and dependency Harper v. Herman (shallow water) special rela here through taking custody over another under circumstances which the other person is deprived of normal opportunities to protect himself. - Crt said no duty to warn of shallow water just bc of knowledge of the shallow water. There must be a dependent rela (which wouldnt even be established if P had said Im diving in right before he did). - If P had asked if it was safe to dive theres prob a duty bc D would have been an advisor. If D lied then there would be misfeasance (acting, but acting wrong=N), rather than what we had in the case, nonfeasance (not acting=N). Superior knowledge can estab a duty in some jurisdictions bc they saw that any P is lacking some degree of self-protection when with someone who knows more This is a minority view! We feel uncomfortable with imposing liability for nonfeasance probably bc of notion of fault Haben v. Anderson frat death on ritual night (def have misfeasance) Farwell v. Keaton drunken buddies case; two theories to impose duty- botched rescue (misfeasance), and buddy special rela (nonfeasance). Crt said there was a duty and Siegrist breached it; he knew/should have known of the peril and could have avoided it without endangering himself. There was a special rela bc if Farwell wasnt with Siegrist he probably wouldnt have gotten into the fight, and he also took care of Farwell. The special rela prob didnt add much bc it was formed probably at the time of the botched rescue. COMPANIONS OF A SOCAL VENTURE HAVE A DUTY TO AID EACH OTHER! THEY WERE KNOWING CO-ADVENTURERS THERE! Ronald M v. White SJ affirmed for nondrug users of car for not stopping the driver from taking drugs; possibly inconsistent with Farwell bc we have a social companionship (which should be enough to estab a duty) but there are more people involved so maybe its harder to realize who had the duty

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 Randi W. v. Muroc school district and letter case not disclosing he had issues with sexual abuse in the past; the fact that we had some action troubles us here, its misfeasance (similar to the botched resuce!). The crt said that it can be foreseen that the school district will read and rely on the letter sent by the previous employer schools. Reliance here mattered in imposing a duty. Schools have the right to remain silent and opt for nondisclosure and this opinion maybe pushes them to do so. If you know something and give an incomplete recommendation that yes thats a N misrep claim, but when you do not know theres no basis for N misrep (even though that might encourage schools to be willfully blind). Yes duty to student to not misrepresent; duty to disclose! (below are the Cali duty factors) - Foreseeable injury = yes - Moral blame = issue for jury - Available alternative course of conduct = yes (full disclosure letter or no comment letter) - Public policy: will employers decline to write LoR for fear of tort liability? no: open disclosure encouraged by statute Undertaking rule! Therapists owe a duty to third persons if the harm they are warned about in session is foreseeable! Doc-patient rela impose affirmative duty . duty to exercise reasonable care to protect foreseeable victim. Duty woven into prof ethics. Tarasoff v. Regents of University of Cali D therapist/school could have taken steps to prevent P from being killed by Poddar (sim to Randi W where the other schools should have told the truth or said nothing at all). Crt said the value of protecting the public is greater than the value of confidentiality. There is no common law duty rule application here; duty to protect the foreseeable victim No patient-doctor privilege if the psychotherapist has reasonable cause to believe the patient is in such a state to be a danger to themselves or others. Liability imposed if special rela b/t D and dangerous person or D and a 3rd person***if Dr can control the dangerous person too Although the Dr did try to step in and lock up Poddar, were not sure if he reached a level of real misfeasance The jury will decide if the Dr was reasonable in not predicting the violence v(like State v. Lourdes res ipsa jury issue) Policy concerns we dont want to breed conservatism in therapists not taking the really crazy clients, and we also dont want the patients to feel like they cant share-all (we want protection for this very vulnerable group), inability to predict violence Tarasoff concern about the dr-patient rela did not come true, CA codified Tarasoff, signif rate of warnings Tarasoff doesnt apply to self-inflicted harm or mere property damage Bellah v. Greenson psychiatrists patient kills herself, P had no failure-to-warn claim. More doctor owed duty to 3rd party cases: Reisner v. Regents of University of Cali Dr never told kid he was HIV positive and was liable to 3rd party for being infected by HIV despite lack of doctor-patient rela. Rationale is that had patient known, she would have told P, and P would not have gotten HIV. Maybe we can distinguish this case bc the victims were not foreseeable and in a partical manner it would be impossible for Dr to tell every person the patient was about to bang. However like Tarasoff patient was a danger to society Hawkins v. Pizarro Dr didnt tell hubby about Hep C, but she got married well after finding out about Hep C. Existence of 3rd party identity must be known for duty!

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 Albala v. City of NY protection of current life is valued more than protection that future life; we dont want defensive medicine where Drs try to avert liability instead of saving lives. Foreseeability is not enough in torts cases involving sensitive public issues. Tenuto v. Lederle court imposed a duty when father sued sons doc for failing to tell him that he could get polio if he had an open wound come in contact w/ his childs excretion who recently was immunized for polio. Spec-rela based on expanded duty of care. Leg statutes penalize those who fail to report crimes they witness Sherrice Iverson Las Vegas bathroom rape case, witness failed to report. NEED AN IDENTIFIABLE VICTIM! (should have known or know) Section 324 of Rest. 2d- no duty to take on the rescue but if you decide to then you have a duty to exercise reasonable care. Args in support of no-duty rule: rule promo value based on individualism and autonomy Cheapens rescue if its required by law, its the morally right thing to do (you not a hero if you have to rescue really) Lack of causal connection b/t conduct and harm Should focus on deterring ppl from doing wrong rather than forcing people to do good Its hard to determine whether someone callously decided not to act or froze in an emergency out of genuine fear Admin ease Deter people from entering a rela Doesnt meet the hand formula Args in support of finding a duty to rescue: law should reflect and shape societys moral values Value of encouraging rescue at small societal and personal sacrifice that avert enormous potential loss Simplification of tort system, its become way too bogged down in the exceptions to a no-duty rule Promising to be a designated driver DOES impose a duty, but that duty only takes effect if the performance begins (White v. Sabatino) A broken promise without any further action is not the basis for a duty DUTY IS A QUESTION OF LAW AND FACT(Farwell dissents issue bc it was given to the jury); on one hand its complex so jury may not be able to handle it, but on the other we want the experience from jury There is no duty to act without the above exceptions; ex: baby on train tracks hypo- no duty! We value individual autonomy and free will/liberty so we dont have an obligation to act Also its easier administratively to draw the line somewhere and if you had a duty to act then the question would be how many onlookers also had the duty 3rd rationale- if we impose a duty to act it will deter ppl from entering rela that will impose these legal obligations (we dont want a chilling effect on relas) Epstein article looks to abolish the duty to be a good Samaritan and says it doesnt meet the Hand formula; the eco interp of N doesnt permit a person to act on the assumption that he may as of right attach special weight and importance to his own welfare; applies only to when theres an easy rescue. SHOULD COMPEL ACTION WHERE NO DANGER TO ON-LOOKER Good Samaritan statutes protect Drs who try to help and mess it up, but no one else (EMT protection varies by jurisdiction). Statues can allow us to assume a duty (in which we look to conduct like in Martin v. Herzog- we never asked whether a duty is owed, we asked if they breached a duty). Statutes can also give us a basis for liability and impose an affirmative duty to act. Statutes can give basis for saying duty exists

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 Uhr v. East Greenbusch statutory silence on private right of actions for scoliosis, crt looked to the Sheehy factors for it. Scolios. P was of the class to benefit from statute enactment; whether a private right of action will encourage compliance with the statute (but its really expensive for school, wouldnt we rather they spend money on textbooks?); however the crt said the third prong is not satisfied (creation of right is not consistent with leg scheme) bc we have the commissioner in charge of making sure the statute is followed and it says in the statute no liability for making test and making the test includes failing to make it (the immunity to nonfeasance is important). Important to question if the crt is really the institution to impose a private right of action (the leg made the law, they should have done it) Determining private right of action (Sheehy factors): (1) whether P is in the class for who the statute was enacted, (2) whether PRofA would promote leg purpose, and (3)whether PRofA would be consistent w/ leg scheme. Distinguish from Martin: Martin estab a standard of care, Tedla can show you its hard to find a standard; really though Uhr is struggling just with a different question of whether theres a private right of action and Martin never gets there bc this of course estab a standard and private right bc why else would it be there? Book ends of one another, Uhr is very complex They are just acting very different questions Estab a breach of duty of care vs. are they even allowed to sue? Express statutory rights of action provide a duty that did not exist before! One of the biggest policy concerns in torts is the concern of massive, crushing litigation! (is the crt the right venue to decide on this issue?) Moch case water K with city, Cardozo said failure to supply water is nonfeasance, acts of omission can be liability where wrong-doer launched a force or instrument of harm or has stopped one where inaction is at most a refusal of a benefit. No liability b/c indefinite xone of duty. Privity= a contractual rela, or pseudo-K rela (used to be a defense to tort liability but isnt anymore). Straus v. Belle Realty the question was whether ConEd owed a duty to a particular P who is not in privity with ConEd in the location of the fall in the apt building. Privity would establish a contractual duty, but we dont have that here. Crt does some line drawing here saying we are only extending liability to foreseeable parties (dissent said hell yeah its foreseeable bc we know who the tenants are) Dissent argued that you can increase ConEd costs to cover these litigation costs and ConEd should be forced to prove that its ruined by an opposite ruling Also ConEd would face crushing litigation Sometimes the crt will be reluctant to impose a duty bc of a policy concern for the social glue and not deterring people from getting together (chilling effect of relas). Reynolds v. Hicks social host liability; social hosts will not be able to control their guests past a certain extent and they are not suited in the way commercial vendors are (crt also worried they were not the right institution to impose social host liability) The crt could have imposed a duty from a special rela that existed, like in Gilger v, Hernandez, but didnt

Policy Bases for Invoking No Duty

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Maybe can argue the alcohol was not a substantial factor or but-for cause in the injury Hansen v. Friend minor who drowned did have claim against social host bc of the violation of a statute (diff than in Reynolds bc although we have a statute, it doesnt extend to third parties) Can argue that social host liability will hurt the lower class more than the upper class bc the upper class can go out more, hire bartenders/bouncers, and upper class is linked with intelligence. However, maybe the lower class cannot sue. We dont have these issues with commercial vendors bc we have dram shop statutes= impose liability on vendors for harm resulting from intox when they serve a person to the point of intox or serve an intox person (some have strict liability and Gilles thinks thats where were headed with social hosts). Some require that there is knowledge that the person will soon be driving Will probs have to show knew or should have known they were drunk and will be driving. N Entrustment= liability arising out of combined N of both the N of one entrusting the instrumentality of harm to an incompetent person and the person in its operation. (Gilles is not entirely clear of what the policy concern is with N entrustment; thinks its just in the book so we can talk about guns). With N Entrustment its usually a necessity that the D had control over the instrumentality at the time it was turned over to the incompetent person West v. East Tennessee Pioneer Oil Co reversed prior decision that required control over instrumentality Vince v. Wilson Grandma gave ridic incompetent grandson car (provided financing) when he failed drivers test, and had substance abuse probs. P sued bc grandson got into a car accident with her and P was arguing to extend liability to granny even though she lacked control issue. Crt said the key factor in N entrustment requires a showing that entrustor know/should have known some reason why entrusting the item to the other is foolish. Therefore granny is liable! This is also a duty case bc granny had a duty not to give a car to an incompetent driver Crt also said it should go to a jury The relationship b/t the entruster and entrustee is important too bc the closer they are the more easily the entruster will be able to foresee the harm (although crts havent really held this) iv. Peterson v. Halsted dad co-signed loan for daughter, she made payments, drunk driving accident, No duty on dad. Accident happens 3yrs after co-sign. fairness under contemporary standards. Keys in the ignition cases (Palma v. US Industrial Fasteners) maybe stronger for imposing a duty than Vince b/c theres more foreseeability (maybe) and theres control over the instrumentality. Crts are across the board on these cases, some say the criminal act breaks the chain of causation (superseding cause). Palma required a lot of factors to estab duty (area in which the truck was left, the intent that truck remain in location for long pd of time, and that safe operation of the trust is not a matter of common knowledge). West v. Easte Tennessee Pioneer Oil Co. gasoline owner helps drunk driver buy gas and then driver gets in accident. crt rejected Ds claim that spec rela required before duty of reasonable care existed. *N entrustment applies to sales. Gun cases (Kitchen v. K-Mart Corp) leg in 05 immunized gun manufacturers from liability under N entrustment; leaving the gun cabinet open is N entrustment, crts say selling a gun in a way that breaks a statute results in liability and Kitchen had liability for selling a gun to a drunkie.

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First amendment cases (Weirum v. RKO and Rice v. Paladin Enterprise, Inc) D was responsible for a dangerous situation without ref to any specific risky person and Rice wrote a book on how to kill people. Spousal privilege Invitee= reasonable care about EVERYTHING, owner has a biz interest in or on premises for the benefit of the landowner. Duty to protect against dangers known about and dangers that would be revealed via inspection Licensee= make safe the dangers of which the owner is aware of and still must warn about hidden dangers, but does not have to eliminate them (which they do for invitees). No invitation to public at large, they are permitted on premises. Social guests are licensees, and you only need to make the premises as safe as you would for yourself. Trespasser= no express or implied invitation; very low duty (if any), some jurisdictions say that theres a duty not to wantonly or willfully hurt the other NO DUTY TO WARN ABOUT DANGERS ON NEIGHBORS LAND; THAT WOULD BE UNDUELY BURDENSOME! Carter v. Kenney D did not know it was slippery outside and if P was a licensee. Crt said in order for you to be an invitee person must be invited with the expectation of a material benefit from the visit or extends invite to public generally! An invitee can become a trespasser (ex: shopper in dpt store goes into an employee only room). In those situations the crts have said that in that scenario you are a trespasser unless there is a special rela (exceeded scope of biz invite). If you are in a hotel staying past check out time can argue not a trespasser bc you still have the option to buy the room for another night (some crts say that the injury could have occurred anytime and it shouldnt be held against you that it was after check out). Crts say you may make a purchase (like if you use McDonalds restroom bc those say customers only) and its good for the store to have ppl in it (although some crts say you are still a trespasser). Its nice to know our statuses bc then theres predictability and therefore low adjudication. However predictability is shot when the crts hold different things in similar situations, also reasonable ppl dont vary their conduct when they change status on land and ppl dont change the state of their house just bc a biz deal was going down. If we rid of categories adjudication will increase, and the harshness of the categories are lessened by the exceptions So why keep the categories? Ppl dont enter property on same circumstances every time Duty should depend on land entrant Can explain these categories on privacy terms (should only be as accident proof as they want it); your home is your castle!! Heins v. Webster County (where D slipped on the ice outside of the hospital entrance) goes over all the reasons above for keeping and getting rid of the categories. Heins abolished licensee/invitee status and kept trespasser, general duty of care, why keep the distinction or abolish it? Keep- greater protection for D l/o Abolish- it doesnt really make sense to determine the duty of care owed to a person on your property based on their status at the time they entered property Public policy- l/o may incur excess costs in making their home safer

Duties of Landowners and Occupiers

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Rowland v. Christiansen got rid of the categories! And a dozen crts followed in their footsteps toward a general duty of care owed; totality of circumstances approach. Most crts think Rowland was wrongly decided with getting rid of the trespasser category. Galindo v. Town of Clarkstown D realized storm loosened root of neighbors property. Tree killed someone but D not liable bc not on his property. Had he tried to remove the tree and failed, he could face criminal charges. Landlord/Tenant: -promise to fix requires a duty; landlord must act as a reasonable person under all the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and burden of reducing or avoiding the risk. Duty to protect against 3rd party criminal acts Kline v. 1500 Massachusetts Ave. Apt Corp crt imposed liability onto landlord to tenant for assault that happened in the hallway. Landlord is in the best position to guard against that kind of harm and could have taken steps to prevent against it. Posecai v. Wal-Mart commercial store is to take reasonable precautions to prevent against reasonably foreseeable criminal acts, crt found there was a duty to protect patrons from parking lot violence but then said trial crt applied wrong test and said as a matter of law P couldnt prove D was liable under totality of circ test Specific harm rule liable for harm if it was a specific imminent threat (like Tarasoff). Prior similar incidents test evi of previous crimes on/near premises; its similar to custom evi. It helps to establish foreseeability. It sucks though bc then the first one is free (Sharon P v. Arman, Ltd- attacked in commercial parking lot but it wasnt foreseeable) Totality of circumstances test take into account the nature, condition and loca of the land and any relevant factual consideration for foreseeability and generally on crime in the area. This is the test the trial crt chose Balancing test basically this is the Hand test; balance foreseeability with burden on imposing a duty to protect against it. Crt chooses this one, for it though well need some info that looks like the evi used for prior incidence test bc it estab foreseeability. Crt said most important factor in this test was the existence, freq and similarity of prior incidents of crime on the premises. The crt in Posecai and Willaims v. Cunningham Drug Store collapses the breach issue into the duty one and crts will sometimes say they get to decide duty questions even though its usually a jury question bc of the nature of the policy issue on the duty question Merchants have a duty to protect invitees from the criminal acts of a third party if the invitee is readily identifiable as foreseeably endangered. No duty to anticipate and prevent crim activity unless on notice that such activity is foreseeable. Only a present situ on the premises, not past incidents, create a duty to respond Specific harm rule, prior similar incidents test and totality of circumstances test are true duty tests WHEN REVIEWING THINK ABOUT WHY D WON OR LOST IN THESE CASES, WHAT MADE THEM VULNERABLE TO DUTIES?

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The Duty Requirement: Nonphysical Harm Emotional Harm

Sometimes treated as a question of duty to be decided as a matter of law. This way leads to bright-line rules during liability stage instead of damages stage. This section is not concerned with the intentional infliction of emotional dismiss Tests for ED: (1) Physical Impact, (2) Falzone-fright from reasonable fear of immediate personal injury, (2) Zone of Danger. IF THERE IS PHYSICAL IMPACT THEN YOU CAN GET EMO DISTRESS!!!!!! (no concern about fraud or flood gates there) We have no duty to avoid causing another emo distress (N infliction of emo distress would make life impossible- Lawson v. Management Activities, Inc). It used to be the rule that without physical injury, P could not recover for emo distress Falzone v. Busch rejecting phys impact rule, expanded the traditional rule to include emo distress where no phys impact, but fright is OK! This is where the woman watches her hubby get hit The fear is of fraudulent claims, flood gates and the subjectivity of the claims. Falzone Test: Where N causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damages had they occurred as a consequence of direct phys injury rather than fright.*physical manifestations. Leaves the question open as to what do we replace emo distress damages with?! Said to let the jury decide if fear caused emo distress and the flood gates problem did not happen in other jurisdictions which allow for non impact emo distress Airline passengers cases; two categories- one where the plane doesnt crash and two where the plane does crash Quil v. Trans World Airlines, Inc and Lawson v. Management Activities, Inc; we can square these cases b/c in Lawson they were just standing around and SO many ppl would be able to recover bc it prob looked like the plane was going to crash on them over the span of a large radius. In Quil we have specific people. Death cases; survival statute allows estate to bring claims that the deadie would have brought and thus can sue for emo distress for victims who realize they are doomed. We dont want Ds to say Oh this looks bad for me, I should just kill them to mitigate damages. Really hard to prove, how does this help deterrence. Will have to be aware of impending doom Zone of danger test= sustaining physical injury, and if no physical impact, so long as P was in the zone of danger in which phys injury is threatened and its a reasonable fear then we can say you are in the zone of danger and recover for emo distress! Test helps to limit the people that can recover for emo distress The rationale is they are in the zone of danger of the risk that D N created so they easily could have been hurt. (SIMILAR TO PALSGRAPH). However the line drawn b/t who can recover and who cannot is arbitrary which prompted crt like Dillon and Portee to expand it to include more foreseeable victims of emo distress

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Manifestations of the harm allows for recovery (Norfolk v. Ayers); ex: if no asthma and then devel it bc of sudden exposure to toxin then prob can recover! Asbestosis, claim must be P&S, fear is genuine and serious. Metro North Commuter RR Company v. Buckley asbestos case; crt here uses zone of danger test and says no to emo distress. Physical contact is not physical impact and so he was not in the zone of danger, MERE EXPOSURE IT NOT ENOUGH! Crts dont like to allow recovery without any symptoms (how would we know if you are actually going to get cancer, also theres a lot that can happen). P even kept smoking! We come into toxins everyday so the liability is endless. Concern with fraud and flood gates, bankrupting Ds, clogging courts, no $ for actual injured asbestos. Gottshall guy working in hot field and his peer dropped dead and company made him keep working next to the deadie and crt allowed for N infliction of emo distress analyzed through the zone of danger analysis The rules of evi and faith in our system might help with the flood gates concern, strong evi of some physical signs of emo distress should be enough Sometimes can recover even if not in the zone of danger if (1) bc Ds N, P exposed to toxin that threatens cancer, (2) Ps fear stems from scientific/medical knowledge that more likely than not cancer will develop, and (3) P has a serious fear.(Potter v. Firestone). CANCER!!!

Although maybe it should be based on a reasonable fear and not science. In the HIV cases, needle in order to recover for emo distress from fear of getting HIV (would a reasonable person believe they contracted AIDS; refused to require zone of danger) P entitled to recover for serious and genuine distress experienced by a reasonable person w/ level of knowledge coincides w/ public info of AIDS transmission Williamson v. Waldman One of the exceptions to the physical impact rule includes N sending death notice and mishandling a corpse; can always recover for that Gammon v. Osteopathic Hospital of Main, Inc psychic wellbeing is as much entitled to protection as physical wellbeing. Rejecting phys impact rule, and replacing it with inquiry into emo impact of Ds behavior on an ordinary sensitive person. The eggshell P will NOT recover for emo distress, can recover for a reasonably sensitive person Can recover for foreseeable emo distress He was an ordinary sensitive person thats the standard, NO EGGSHELL P! Bystander cases: Portee/Dillon Factors: dismantling zone of danger and brings us to reasonableness. Factors: (1) Proximity P was near scene where another was injured, (2) Visibility-P actually knew of or saw injury, (3) P was closely related to injured person. Portee adds severe physical injury. Portee v. Jaffe elevator shaft and crushing kids; no phys impact and not in the zone of danger. Traditionally bystanders cannot recover bc there was no notice to D Dillon v. Leg got rid of zone of danger test and went instead with a three factor test that Portee adopts: proximity to the harm, visibility of the harm, and closeness of the relationships. Portee adds that there must be severe injury or death. The closer P is to the accident, the more visible it was and the closer P is to the victim then the more foreseeable the emo distress was and therefore less issue with flood gates

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Thing court stated recovery should be limited to immediate fam member. Limiting Dillon guidelines. The problem with these tests is there issues with applying them to the facts, bright line rules are tough even though they allow for administrative ease Need more than just hearing it, need to see it (ex: 2005 fact pattern)

NY sticks with the zone of danger analysis and if Portee happened in NY then there probably would not be recovery. Hard to draw lines limiting actions w/ Dillion/Portee. Bovsun v. Sanperi no immediate threat, no recovery; Pizzaro v. 421 Port Assoc no recovery for bystanders Line drawing! Johnson v. Jamaica Hospitalabduction case, its a case of indirect harm bc the parents werent abducted and since it happened in NY they are in zone of danger land (wouldnt even satisfy Portee v. Jaffee bc she didnt see the abduction and there was no serious harm). Returning to a direct duty requirement. Crt here said no contractual duty bc the discharge ended a duty (opposite from Larsen). Crt views Johnson the same as Kalina where they did the circumcision wrong. Obvs did not think deterrence was a good enough reason to impose a duty Larsen v. Banner Health System can recover bc of contractual rela for services carrying with it a deep emo response in event of breach (baby switching) hospital Huggins v. Long Drug Stores Cal Incno recovery for overdose for baby (not direct victim), although theres an argument that theres no indirect harm bc parents read label (direct harm) Portee and Gammon speak to foreseeability, but Johnson does not; Johnson says foreseeability just doesnt estab a duty, even though we dont have a floodgates or fraud issue here. Maybe they want to encourage people to go back to their lives; they could be worried about disproportionate burden on D. Some infant victims have been able to collect in the abduction cases but rarely parents No emo distress for property loss- no PI or in zone of danger; Birmingham Coal v. Johnson Some courts allow for emo distress for pets (Campbell v. Animal Quarantine Station- yes to emo distress when learned of dog dying over the phone) Most dont and you can get money for your dog dying as property Unmarried couples and ED Elden v. Sheldon(CA) death of GF parallel to martial rela, dismissed claim bc 1) states interest in marriage, 2) diff burden on crts to prove relas, 3) limit # of ppl N D owes duty to. Dunphy v. Gregor (NJ) woman witnessed death of fianc, engaged 2yrs, life insur poli, joint car, Elden rejected, dependency on each otheryes recovery. Loss of consortium cases- family members who have emo harm in cases where loved one is injured and loss of consortium tries to compensate; brought bc injury prevents the other person from enjoying the usual satisfaction of their relationship Diaz v. Eli, Lily & Co gives us a good look at the history of consortium damages, woman used to have to bring claims under the hubby and hubby was entitled to cause of action for his own property and loss of sex; focused on wifes services. Then it was extended to emo connections and then in the 50s the wife can bring claims too. Now wife can bring claims and some jurisdictions even allow for same-sex couples to bring claims The question now is if kids can bring these claims (some crts allow for when kids can bring the claim, but not really when the parents brings it- theres a split)

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Borer v. American Airlines Inc drew line at kids bc there were 9 kids there Line drawing prob is easy to see, what about parents and best friends? CANNOT CLAIM LOSS OF CONSORTIUM ON AN INJURY BROUGHT BEFORE MARRIAGE, these claims are derivative (must be a finding that underlying D was N before you can bring your claim) Bystander emo distress (prove D was N in maintaining elevators) and loss of consortium are derivative Baker v. Dorfman NY permit ED for P who incorrectly informed that he tested HIV+ Emo distress claims are sometimes analyzed through duty lens which is nice bc the judge can decide on that case early and dismiss it (Johnson)

Economic Harm
There are really two types of claims with pure eco harm; (1) 3rd party N misrep claims: D N in providing service (legal, accountant, audit) and (2) creation of a dangerous condition: D creates dang cond or causes phys harm to 3rd party and P directly suffers eco harm even though no 3rd party beneficiary rela. N Misrepresentation P relied on false information that D N misrepresented Nycal Corp v. KPMG Peat Mark LLP accountant created a statement that P relied on and the stock he bought in Gulf was a bad choice bc they soon after filed for bankruptcy which means Ps stocks were worthless. The assumption is that these financial statements were made public which would lead someone to believe they are truthful; the audit gives the seal of approval. However, if Gulf misrep to KPMG then how would they catch that? Maybe the crt is trying to encourage Ps to use due diligence (they arent just passively owning, they are massively investing)

Three tests to determine N Misrep: 1) Foreseeability test: Potential liability to any person accountant could reasonably have foreseen would obtain & rely on info, including known and unknown investors. crt says exposes you to too much 2) Near- privity test: Requires specific knowledge of parties intending to rely on work product. liable to 3rd parties relying to their detriment on inaccurate financial report if accountant was aware that report was being used for partic purpose in furtherance of which a known party was intended to rely and if there was some conduct to create link to that party. 3) Restatement 3d Section 522: crt accepts this view, Liability extends to limited group whose reliance is foreseen and to a specific transaction where use of info in contemplated. if accountant fails to exercise reasonable care in obtaining or communication the info when party detrimentally relies on info; must have intended to guide that person bringing suit or knows recipient intends to supply it and knows info will influence. LIKE TARASOFF! Modified Foreseeability: doesnt explain, just less foreseeable? Crt rejected the foreseeability test bc accountant doesnt have control over his numbers Policy arguments for adopting 552 rewards accountants efforts for turning a blind eye (Rest. Will not support willful ignorance!)- hard to say if it was willful after the fact

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BE VERY CAREFUL WITH ANALYZING UNDER THIS TEST BC OF THE INTENDED PURPOSE AND THE ACTUAL USE; ex: goods on credit is diff than a takeover Substantial similarity test: ex: desire to purchase goods on credit and buy a piece of corp are not substantially similar so it wouldnt meet the 522 test; work the accountant prepares can be sued on if the thing it was actually used for was substantially similar to what its intended purpose was. Attorney malpractice cases: if nonjudgmental mistake then the lawyer messed up so they are liable. Grayson attorney induced P to settle for too little. Wileycant sue attorney if convicted for a crime cant get ED for medmal cases if attorney messed up Pleasant Diff than Nycal bc theres no 3rd party stuff If its just a disappointed client or the error was a judgment error its really tough for the client to win Lucas and Heyer failure of wills, yes attorney malpractice and Eco harm. 3. D creates situ of pure eco harm Economic loss doctrine: difficult to determine scope of potentially massive liability, D still faces physical/property damage liability, 3rd party eco losses distributed among large groups of ppl that experience some loss. a. These cases really struggle with the mass tort litigation concern b. 532 Madison Av Gourmet Foods, Inc v. Finlandia Center, Inc there was construction going on and a side of a building collapsed and a 15-block radius had to be closed for 2 weeks. The Ps here are businesses claiming eco loss bc customers couldnt get to their stores. Worried about fraud and disproportionate liability; like Straus v. Belle Realty. Crt denies recovery; eco loss doctrine= in absence of personal injury or property damage there can be no eco loss (NY adopts this)! Employed in claims for lost revenue due to biz interruptions; unknown number of claimants and potentially HUGE litigation (fairness concern) In a regs tort claim D will probably know how many potential claimants there are, the uncertainty here disables D from knowing how much to invest in precautions Wholly uninsured liability may deter Ds from engaging in valuable activities that, despite their value, entail a risk of enormous consequential eco loss Arguments for eco loss doctrine: amnt of liability D would be faced with is way too large and scope is too big (D might have some idea about who he would hurt but you cant insure against this and cant known the number of affected people and D will abstain from socially valuable activites). Arg 2 for eco loss doctrine: from distrib of loss perspective, losses are small and the biz are not debilitating, we allow these losses to lie (contrary to tort law). Most biz have biz interruption insurance Arg 3: biz can insure pretty well against these losses and its better to force them to do it Were ok with the deterrence gap (no recovery- D will not be more careful next time), its not huge and one can insure if theres phys/property damage. Self- insurance pool- if each of the numerous victims incurs a small loss, allowing those losses to lie is a form of insurance. c. BP Oil Spill if oil on your property you have a clear claim for damages from the compensation fund. The travelers to FL stopped going bc of irrational fear, and crts dont want to play into irrational fears. You waive your right to litigate in the whole BP mess if you accept the lump sum, which no one has done yet. Wrongful Death and Wrongful Life Back in the day there was no prenatal torts bc there was no duty owed to the unborn.

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Wrongful Birth= med-mal claim brought by the parents of a defective child who was wanted and allege injury bc they were denied option to make a meaningful choice about whether to abort; these are pretty frequent. Three theories of liability: (1) failure to inform parents of risk of conceiving child with genetic defects, (2) failure to perform prenatal diagnostic testing, (3) failure to report result of diagnostic testing accurately. Wrongful Life= med-mal claim brought by genetically impaired child. sue in their own name alleging that but for doctors N, child would never have been conceived and born to suffer how they are now; its not that N caused the injury. They wanted this child! Two theories: (1) failure to recommend tests for determining risks of conceiving a child w/ birth defects and (2) failure to recommend or perform prenatal testing. Crts are reluctant to recognize these claims bc how can we conceive of the value of not living? How can you prove you are better off not living? We have no clue what it means to not exist and we value existence more than nonexistence, and we would never want this to get to a jury. A childs parents can argue this via survival statutes CA, CO, NJ, and WA allow for this Wrongful Death statutes= allow the victims dependents to bring claims for continued economic support; can be brought by legally designated beneficiaries. Wrongful Pregnancy= claim for damages bc of N perf of sterilization procedure Parents will want the cost of raising the unwanted child. The wrong here is the pregnancy and delivery, not the child. Emerson v. Magendatz kid was born with defects and the crt said there was a cause of action for a healthy child, theres a clear case of duty involved. Crt adopted limited recovery rule- compensation for med expenses of ineffective sterilization procedure, med expenses for pregnancy, for new sterilization procedure, loss of wages and sometimes for emo distress and loss of consortium However this crt did not allow for emo distress and loss of consortium Full recovery offset- offset by benefits derived by parents from having a healthy kid Full recovery without offset- get everything. If birth defect then emo distress and can get full child rearing if Dr was on notice that you were trying to avoid having a kid with serious health issues A womans right to chose is constitutionally protected and so maybe it shouldnt matter if she just didnt want a kid bc she didnt want stretch marks It puts the woman in the position of aborting, adoption or sucking it up and dealing with the joys of having a child (constitutional right isnt affected bc she gets to choose still) Public policy- forcing someone to get an abortion Under Emerson, if put a healthy child up for adoption you can get emo distress; also can get emo distress during preg (included in med expenses) We wont have to worry about fraud/flood gates bc tubal lobotomy isnt botched too often, but we still have the concern that a little bit a N results in MASSIVE liability Allowing recovery for handicaps is bad bc then it says that the handicaps life is less valuable. Wrongful living is when an old person sues that their life shouldnt have been extended, like refusing to uphold a DNR, crts do not recognize these claims. Some crts allow for an offset in which we offset by the benefits of life For all nonphysical harm: Was D on notice, could they protect against it and is there a public policy argument to limit such a duty? No recovery for irrational fear

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Causation Cause in Fact

Three general principles in toxin cases: 1) exposure; 2) general causation: is agent capable of causing disease in humans?; 3) specific causation: did agent cause Ps disease? We want to see a very strong connection in determining whether the injury would have occurred without D, but in most cases causation is assumed Linkage b/t breach and injury Rebuttal to but-for is an even if; even if I was taking care you still would have gotten injured Stubbs v. City of Rochester typhoid fever caused by the water. Crt said P did NOT have to rule out all other causes, thats just way too high a burden. Crt said reasonable certainty that direct cause was Ds fault is enough P showed there was 50 more cases of typhoid this yr (30% increase)- but it might not be so signif bc the time P got typhoid was the usual time for it DO NOT CONFUSE CORRELATION WITH CAUSATION 180 of those cases occurred at the time P got it, but maybe there was more interaction that summer and more cases appear in summer every year. The 58 ppl who drank the water and got typhoid all did a lot of stuff together, but crt still finds there could be causation and reverses and remands. Its always going to be a public policy concern when it comes to future harm about whether we would have enough money (assuming we allowed for compensation) to pay people who need it now For medical monitoring you need symptoms Mauro v. Raymark industries, Inc Allows present recovery. P must show reasonable medical probability disease will develop to get full damages. Simmons v. Pacor, Inc(PA) 2-disease rule, no recovery for enhanced risk, recover for first disease, and then recovery only when anticipated, more serious disease occurs. Exception to the single judgment rule. MAJORITY RULE. Comes up in cases where D causes an injury and the potential for a future harm Arg against two disease rule: evi may be stale when second disease develops, better deterrence if current liability, awards compensation when it can still be enjoyed, possible D insolvency by time second disease develops. Dillon v. Evanston Hospital Allows present recovery for increased risk of future harm. Present probabilistic recovery, no apparent threshold. can recover for future injury not certain to occur but the compensation will reflect the low probability of its occurrence. Expert testimony can be brought to prove but-for causation, but there are def problems with it

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Zuchowitz v. US Danocrine case, here P was taking an incredibly high dosage and developed PPH. Very few women ever took that much which presents an evi problem The act of N was the overdose, so we need to connect the overdose to PPH to show causation. No evi that reg dose of Danocrine can cause PPH

Daubert Factors(expert witness starndards): (1) Whether a theory can be tested via sci method, (2) whether theory is subject to peer review/publications, (3) the known or potential error rate, (4) whether the theory is generally accepted in the field. Daubert expert witness standard= trial judge conducts prelim assessment of whether the reasoning/underlying methodology is scientifically valid and whether that reasoning/methodology can be applied on the facts of the case (best satisfied by real sci studies). More applicable to experts seeking to bring scientific evi or other studies, less applicable to testify on deviation from a standard of care; really technical inquiry. - Will be good if practice area and views are new and controversial to require a judge to ensure that theres a national standard in place and the testifying expert was a solid rep of the field. Trial judge is the gatekeeper! Crt says the rule should be flexible. Kumho Tire Co v. Carmichael Daubert applies to engineering knowledge as well as sci knowledge One Dr says it was reasonable certainty PPH caused by OD, another Dr said there was a chain of events evidenced by hormones. We dont have an epidemiological study on it, but maybe thats OK bc this is really rare. Williams v Utica College P sexually assaulted in dorm, sued college for intruder, intruder or dorm member? SJ for D b/c couldnt prove causation CRT SAYS N ACT INCREASES RISK THAT IS IN ITSELF A REASON TO ALLOW INFERENCE OF N. Wolf v. Kaufman decedent found at bottom of dark stairway but no recovery bc no evi suggesting darkness= fall. Increased Risk Presumption= as long as Ds N conduct increased the risk of harm to P we can allow the jury to presume causation. This is used where there is just no evi of what happened. We do not have solid proof of causation here, just strong causal link. Burden on D to disprove evi, can rebut inference of N (sim to res ipsa). That may not make sense bc D doesnt really have better evi Substantial factor test= for cause in fact; if but-for, was Ds N a substantial factor in bringing about Ps injury? P must show but-for, N was causally linked to harm and the N act/omission was prox to injury. Here she showed the OD signif increased chances of getting PPH and crt said this was enough Matsuyama v. Birnbaum docs neg was the but-for cause of P losing a fair chance of survival.

Loss of Chance claims: Justifications:

Life is precious and loss of even a small chance of cure deserves compensation; Negligence against patients with poor prognoses shouldnt go unredressed; Unfair to deny recovery where uncertainty of outcome created by D; Typically arises in failure to diagnose context. Courts approach to damages Step 1: full wrongful death damage = $600K Step 2: P had 45% chance of survival<med mal Step 3: Ds negligence reduced chance to 15% Step 4: Ps chance reduced 30% (45%-15%)

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Step 5: Ps loss of chance damages are $600K x 30% = $180K Third Rest. Rejected substantial factor test If we have multiple sufficient causes (ex: two fires) then crts will hold Ds liable either through substantial factor or from joint and sev liability bc but-for is impossible to prove, who knows which fire burnt down the house JOINT AND SEVERAL LIABILITY - When 2 Ds are responsible for 1 harm thats hard to divide the harm, then the Ds are jointly and severally liable - Each D is liable as if he is the sole D so P can recover against any D once judgment is made. - Helps with solvency issues bc it protects P from not being able to collect (P can pick which D to collect from and D can get money from other D) - Ravo v. Rogatnick crt says both Ds are liable for 50/50 even though jury said 80/20 bc of unfairness to D. - Changes to joint and several liability: - Now D obtain contribution from each other in proportion to their fault in the accident (would share loss in percentages if both solvent); several and separate- only liable for % which avoids taking advantage of the deep pocket D. - Question notion of joint and several liability bc of the unfairness if for ex the D who was only 25% to blame might have to bear 100% - Some abolish doctrine, leaving solvent D responsible only for his share - Some abolished doctrine where D is less than certain % (usually 50%); P can collect from whoever does most fault - A few retained joint and sev liability for eco damages, not for non-eco damages - Few have abolished doctrine when P is partially at fault, but retained it where not at fault, so if P brought some harm then P who was also N cant say P shouldnt bare any risk of insolvency. - Few retain joint and several liability but reallocate the percentage share of any insolvent D to other parties in case - Few abolished in many kinds of torts but retained it in some (toxic and envi) - Still debating whether N conduct and intentional harm can be compared in 7. - Veazey v. Elmood Plantation Assoc juries will apportion much of fault to the criminal, which creates a compensation gap. We dont tell juries about the compensation gap bc then they would be even more pro-P and lead them to reach their outcome first Alternative liability- burden shift! Available where identification is known and where Ds are before the crt (diff than mkt share). Forces Ds to speak, both Ds are clearly N and one is clearly responsible. The but-for test wont allow P to recover which isnt fair. Also D has better access to evi Must know for a fact that either one can be liable, its needs to be more than a guess Summers v. Tice quail hunting, Tice and Simonson N fire guns and Summers was shot in the lip and the eye but it was impossible to tell which Ds gun the shot came from. Where both Ds are N and that N led to harm, they can both be held liable Crt shifts the burden of proof!! D must show that he was not the cause of the harm (or major harm in this case); if he cannot, then joint and several liability!

Multiple Defendants

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P is so close (50% is close to 51%) and so it leads to a fairness concern. Both Ds are N, but conventional but-for analysis immunizes both Ds. Tries to smoke of evi like Ybarra? P is innocent victim and D should bear the loss. The more Ds there are the less comfortable we feel with alternative liability bc we worry about deterrence (dont want people to pay who arent the cause of the harm P is truly innocent here and we dont want to immunize both Ds bc but-for test fails Allows us to smoke out the evi (by shifting burden) and both Ds are N! Garcia v. XYZ crt refused the burden shift, one D here was completely blameless (diff than in Summers) Revival statute= when SOL runs out and there are a ton of cases about the same thing leg will allow people to bring those claims; revives the SOL basically. Crts are not so inclined to do this bc it raises concerns about fraud and floodgates; ex: anytime a worker is exposed to dangerous toxin he would have potential claim for medical monitoring. Market Share Liability= D is only liable for the market share proportion of their product in the market, think it gets to the exact harm they caused to Ps, joint and several liability for proportion, not based on joint activity. Proportional. NY Approach: National market share. No defense, even if D can conclusively establish it didnt manufacture DES taken by P, and several liability only. Hymnowitz v. Eli, Lily & Co DES cases where manu were entering and leaving the mkt constantly. Difficulty of IDing D, same chem comp, druggist filled w/ whatever on hand, precomp med records, long latency period. Most women didnt know manu of drug they took. Justifying market share: culpable D, fungible prod, long latency, share approx. of harm, near optimal deterrence, but while P recover, not necessarily recovering from D that injured them. Limited applicability of Mark share (1) signature disease w/ fungible product, (2) need good sales data, (3) substantial segment of markets has to be joined as D. Exposure SOL= NY did this here, SOL runs from the moment you are exposed to harmful substance for 10 years; every claim for DES expired by that time so crt did a revival statute. Discovery SOL= runs from the time you discover symptoms The goods here are FUNGIBLE (they all look the same), on deterrence perspective we are comfortable with mkt share as a guestimate, it feels theoretically optimal If you are focused on strict tort theories you will not be cool with mkt share liability Brown v. Superior Crt allowed for Ds to exculpate themselves (and said liability was several only, only responsible for their %) and Sindell didnt use a national mkt. Here the crt refuses exculpation and uses national mkt standard. P will always argue for a national mkt bc then they will def get compensated Crt made it seem like that if P had conclusive evi against just one known D they can proceed in DES cases against just the one D; liability is several only! We do not look at mkt share for exposure cases, sometimes bc of the fungibility issue (few diseases in which we know that x def lads to y). Sometimes the mkt share info isnt available like in the asbestos cases Its tough to get all Ds in the crt, espec in the asbestos cases so theres a relative mkt share theory where just a substantial amnt of the mkt must be represented. Collins crt forced the D to implead all other Ds bc they thought it was too high a burden for P; called risk allocation Thomas v. Mallet risk allocation too, said fungibility doesnt have to be chemcically identical in order to use mkt share (havent seen any awards in lead paint cases)

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 Methyl tertiary Butyl Ether once released into evi its hard to figure out where it started Concerted action= commun plan to commit a tortious act, need more than parallel activity. Need evi of them acting in concert.

Proximate Cause
Test for proximate cause: (1) Idiosyncratic reaction situations/Egg Shell P[Benn v. Thomas] (2) Foreseeability/Substantial factor [Wagon Mound and Palsgraph], (3) Harm within-the-risk[Doe, supersceding], (4) direct consequences rule[Polemis, most strict almost causation]. Was D neg at all? General inquiry into whether D (1) owed a duty; (2) breached the duty by acting unreasonably under the circumstances; and (3) was the factual cause of Ps harm. Was Ds neg the prox cause of injury? Specific inquiry into the nature of the relationship between the Ds negligence and what happened to the P. Prox cause is judge question (duty too), last hurdle to prove before you get paid! More policy-based than cause in fact

Unexpected Harm -can recover ED if harm would cause distress in the ordinarily sensitive person. Benn v. Thomas foreseeability approach, adopted the eggshell P- take P as you find him, you break it you buy it for whatever happens to P! Ps decedent died of heart attack 6 days after car accident from Ds N. idiosyncratic reaction situations D is liable for unexpected harm, its not enough that it was not foreseeable. Some harm is foreseeable, but the extent is not. Thats not important bc foreseeability sets the upper limit on whats recoverable. (idiosyncratic P) Dillon v. Twin State either would have died from fall or from the electric wire crt said D is still liable but the damage is reduced. We dont want to send a message that if someone is going to die you can kill them anyway, also we dont know 100% they would have died the other way Steinhauser v. Hertz schizo from car accident, allows recovery but reduces damages bc she was showing signed of schizo before accident (idiosyncratic P) Interesting bc we dont allow eggshell P in emo distress, but phys damage is provable Post accident secondary injury Secondary Harm Scenarios Stoleson munitions plant, N exposure to nitroglycerine. Got hypocondira even though heart prob was temp. and unable to function normally. Rational: driver ran someone over, hospital messed up can recover from driver for hospital mess up. Original wrongdoer liable. Pridham v. Cash & Carry Building Center, Inc ambulance accident, want to hold the original D (who caused Ps injury which is why P was in the ambulance in the first place) liable for all harm. We have a duty (no alternative liability bc we have two distinct harm). Substantial factor!! Ds N is a substantial factor in situation where P get injured further. Addis v. Steele guests at inn hurt when jumped out of window for fire- D liable bc didnt provide fire escapes. Didnt matter fire by arsonist -> oblig provide paths. Forseeable. Hines v. Morrow peg-leg case, on highway using in lawful manner, slipped into hole, created by Ds N and injured while trying to get out. Reasonably forseen that slip would cause appellee to be tangled in rope. Exact consequence dont have to be foreseen. Harm within the risk rule (Am. Driver, Secondary Harm, Direct consequences) = I was N in driving, not in causing the ambulance driver to have a heart attack. Didnt expect the massive damage

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Sometimes we have a similar theory to IHA, we look to the principle harm we anticipate Type of harm must be foreseeable, but extent does not have to be Unexpected types of harm to fully expected victims In Re Arbitration Between Polemis and Another and Furness, Wilthy &Co, Lts harm suffered is diff than expected, we think when dropping a plank it will land on someones head not cause a fire. We have a N act, and cause in fact bc we have evi that plank caused spark which caused fire, but the fire was unexpected (unanticipated). Direct consequences rule(Polemis, not used anymore bc of Wagon Mound)= rejects foreseeability bc then P cannot recover, so long as harm was direct consequence of Ds N act then Ds act was prox cause. Sim to eggshell P rule (but there we would see its foreseeable harm, but extent is not) HERE FORESEEABLE P BUT UNFORESEEABLE TYPE OF HARM (how to distinguish from Benn v. Thomas) Were not really sure why they dont use foreseeability Smith v. Leech Brain must take P as you find them so its foreseeable type of harm, question of whether reasonably foreseeable types of harm Overseas Tankship Ltd v. Morts Sock & Engineering Co, Ltd (WAGON MOUND) represents the AMERICAN RULE, very clear that D created oil spill, O was assured that the oil is not flammable Used foreseeability! This crt, unlike Polemis embraces fairness not just justice of responsibility Rest. 3d adopts foreseeability approach and calls it risk standard (similar to harm within the risk). Deals with extent of damage and harm within risk deals with type of damage.

Risk standard= D will be liable to extent of foreseeable damage, harm within risk asks if D will be liable AT ALL bc of if risk that D created didnt come about D isnt liable Wagon Mound 2 they said that the burning of the boats was foreseeable (better proof that the oil will lead to fire) Prima facie= P must prove duty, breach, causation, damage. Crts can be conflating prox cause with finding D wasnt N. could not have reasonably foreseen that the oil could have caused a fire Superseding causes- cut off liability to D1, like our keys in the ignition cases. Remote and not foreseeable Post 2ndary harm (like ambulance cases)- has D put P in a position so P can suffer that secondary harm and that 2ndary harm is foreseeable; is original D still responsible for all the harm Pridham (diff than intervening and superseding) Intervening-Keys in ignition Crim activity and acts of G-d; is there another actor that cuts off liability for the later harms Its about the extent of the damage, not the immunity Prox cause- is it fair to hold this D liable, its a policy question really Phan Son Van v. Pena *reconcile with Doe. rape from gang was not foreseeable harm so no prox cause from seller of alcohol; drunk driving foreseeable cause. no real break in causation Gets us to focus on foreseeability, harm that befall P is not foreseeable, but we must ask how helpful foreseeability is in determining prox cause bc we can say that everything was foreseeable. Crt will generally hold D1 not liable if the superseding cause and unforeseeable events give rise to a risk diff than the one D should have anticipated (kinda like scope of the risk) This argument is frequently made for subsequent intentional acts by 3rd parties

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Intervening misconduct= do not break the line of causation, active third party cuts off liability. Ex: D1 N driver says intervening causes is the car hitting the ambulance. These causes are foreseeable so they do not rid D1 of liability, a superseding cause is a type of intervening cause.

Doe v. Manheimer raped behind the bushes, crt uses harm within the risk and substantial factor which looks a lot like foreseeability, said wasnt a substantial factor! Not prox cause. Sim to Posecai in that both cases look to the factual circumstances of the area and whether it was such that similar crimes had previously occurred and the harm was foreseeable and both crts seem worried about overburdening D /os to make safe property for crim acts of 3rd parties Crt says no jury could have found for P bc they (maybe) think that this shouldnt extend to l/o bc well then have these crazy restrictions on l/o To be within the scope of the risk, the harm actually suffered must be of the same general type as that which makes Ds conduct N in the first place

Intervening Cause: foreseeable intervention by 3rd party; D1 still liable. Superseding Cause: D1s negligence not a proximate cause of Ps harm b/c 3rd party breaks causal chain Restatement 2nd 442 a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendants conduct. Comment C: the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him. criminal acts may be foreseeable, [however,] and so within the scope of the created risk.

Unexpected Victim Palsgraph v. LIRR fireworks package, D didnt just pay it bc they didnt want to set a precedent where theyd be liable for shit like this in the future! o Shes just such a remote P, first time were thinking about prox cause in terms of distance proximity o Cardozo decides on duty and said there is no duty owed, espec bc there was no way of knowing there were fireworks in that package. Conductors N only posed a risk to passenger and ppl within vicinity of passenger (Cardozo says) o A lot turns on our view of what N is o The dissent argues this was a prox cause case, we have an act and an injury o If you want to prioritize deterrence you will agree with Andrews dissent, he takes a really broad view of N and basically does away with duty (conduct was tortious and wrong to the world!). Andrews would still ask for a duty, but not to ask it again during prox cause Firman v. Sacia Time. where P alleged Ds N driving caused him to hit a boy who later shoots P (7 yrs later). Dismissed complaint, 7 years is a LONG time lots of shit can happen in 7 years. We want the parties to get on with their lives. Not a proximate cause of Ps injury.

Defenses
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(1) Contributory N, (2) Comparative Fault, (3) Avoidable Consequences, (4) Assumpt of Risk (E&I)

Contributory N
-Failure of P to exercise reasonable care to protect himself. Total bar to recovery. Affirmative Defense. Justifications: Unfair to impose liability on D where P has also been N. Line drawing- really easy to say all or nothing. Limitations on contributory N: Safety statute- Chainani v. Board of ed purpose of statute involving school buses and kids was to protect kids and that purpose would be thwarted by allowing kids to be contrib. N; kids are the class of people who the statute tries to protect Cannot use contrib. N if you were reckless. (then itd be contrib. R) Last clear chance- if N D had the last opportunity to avoid harming P then Ps own contrib. N was not a bar to recovery; D must have known that P was in danger in time to avoid harm by exercising due care Cannot impute contrib. N like in respondeat superior. In defenses D has the burden of pleading and proving all elements of the defense; will have to show duty (duty to protect oneself, breach, prox and cause in fact) Conduct of P contributed to Ps harm Juries were engaging in comparative N b4 statutes and jurisdictions enacted it

Comparative Fault
Pure comparative fault= P recovers % of Ds N, notwithstanding the seriousness of Ps N. Ex. P recovers 1% of her damages even if 99% at fault. D can also recover from P if injured. Criticism: its not fair to pay people who are mostly at fault for the injury Uniform Comparative Fault Act Fault= acts or omissions that are in any measure N or R towards the person/property of another or that subject a person to SL To consider %, must consider conduct of each party at fault and extent of causal rela Upon motion made no later than one yr after judgment, crt shall determine whether all of part of a partys equitable share of the obligation is uncollectible and shall relocate among other parties according to their percentages of fault; REALLOCATE TO EVERYONE RETAINS JOINT AND SEVERAL LIABILITY! A party paying more than his required contribution can recover it, UNLESS HE SETTLES! Most states have adopted one of two modified comparative fault Modified 1= Modified 1 P recovers so long as her negligence was not as great as Ds (P<D); If the Ps negligence is greater than the Ds, contributory negligence is a complete bar to recovery. If Ps negligence is less than the Ds, P recovers exactly what he would recover under pure comparative negligence. P CANNOT recover if at 50% Ex. If liability of all Ds is aggregated, the result is the same as under the pure statute Defendants combined liability > As liability. If liability of each D is determined separately, A gets nothing since As fault is greater than each of the individual defendants

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Modified 2= Modified 2 Plaintiff recovers so long as plaintiffs negligence was no greater than Ds (P<=D). If the Ps negligence is greater than or equal to the Ds, contributory negligence is a complete bar to recovery. If Ps negligence is less than the Ds, P recovers exactly what he would recover under pure comparative negligence. Section 668.3 of the Iowa Act (p. 443) is a Modified 2 system. So here, P CAN RECOVER if at 50% at fault or below Retaining J&S doesnt tell us about what to do with insolvency and allocation in P Contribution= an equitable sharing of the loss among joint tortfeasors Indemnification= a shifting of the entire loss from one tortfeaser to another either by prior agreement or based on equitable considerations. A lot also depends on whether you are in an aggregation jurisdiction (IF IN AGGREGATE JURISDICTION YOU ADD TOGETHER ALL DS %S AND IF THAT TOTAL IS LESS THAN YOUR PERCENT YOU CANNOT RECOVER UNLESS IN PURE). If you are in a non-pure comparative fault jurisdiction and an aggregation jurisdiction then you can recover from all the Ds as long as you are at 50% or below (or 49%); but if you are not in an aggregation jurisdiction then you can only collect from the Ds that are more N than you. If D is insolvent you reallocate the money If allocate to P just make the denominator the amnt (out of 10) of what all people will owe now If insolvent in a J&S jurisdiction you do not allocate burden to P! Majority approach is to not reallocate to P when one D is insolvent If no J&S each D is just liable for their amnts(several); no jurisdiction with J&S reallocates If you dont allocate to P then you take out the insolvents % (ex: Unknown Assailant was worth 10% so then the denominator becomes 9, but then we take out Ps fault which was 20% which then makes the denom 7. Then we take their original amntwhich for Macedonia was 200k and add in 2/7 of the 100k that Unknown owed; this is his new number). If we revoke J&S liability each D is responsible for their own percents, like the pure version If a D is harmed then that D can recover their amnt from P according to Ps fault % and can also recover from other Ds according to their %s If we are in an old J&S regime then P can demand the full amnt from any one D and B can then go after the others for their % Settlements Hypo: accident with 50k in damages, prior to trial B settles with A for 10k If C does litigate the case all the way we will want B to be able to seek contribution if B overpaid (we dont know %s before trial) If the jury comes back with a verdict for 30k for P and attribute 50% fault to B and 50% fault to C Under UFCA there is no contribution after settlement, however Ps judgment against non-settler is reduced by Bs equitable share of obligation (by the share B would have paid if he didnt settle, so here it would be 15k). NEW YORK DOES THIS!

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If the settler settled for less than they were found to be liable no contribution bc there would be nothing to contribute! (he got out easy) Pro Tanto Rule= reduced Ps judgment by the percent that settler already paid, so here B paid 10k and so P can collect 20k from C (this assumes J&S liability) Settling party can only get contribution if they overpay and can never contribute more (goes against why we have settlements), if paid out more they can seek comparative contribution Fritts v. McKinne wrong artery case where Dr. tried to put the blame on P for getting himself into this mess , intro evi of his prior problems with alcohol abuse for purposes of showing comparative N and for showing shorter life expectancy Everyone deserves good medical attn (PUBLIC POLICY) and it shouldnt matter how you got into the ER, the fact that you were N should not be held against you Did allow evi for shorter less bc that reduces damages We do allow comparative N if a passenger gets hurt. Passenger can sue driver and Dr for messing up and driver for causing the action We want to create the right incentives for Drs we dont want them to say Oh this guy came in for drunk driving put him on the bottom of the list. Open debate about whether we allow evi of clients N in getting into the sity when client sues lawyer for getting them deeper into the whole

Avoidable Consequences
Deals w/measure of damages. Even if D is negligent, Ps recovery reduced if P failed to mitigate harm Sometimes there is more than one possible cause of an injury. But if P is warned of a cause and doesnt heed warning, avoidable consequences Munn v. Algee religious beliefs/believer would not justify Ps failure to get blood transfusion. Criticized : should be held to reasonable believer Tanger v. Ackerman Investment Co you didnt lose weight so you dont get full recovery This defense is more about the fact that P could have done something to mitigate their damage. P must mitigate when D harms P It applies to seatbelts and helmet cases, also failure to get medical attention for religious reasons Champagne v. Rabestos- Manhattan, Inc he got asbestosis (clearly caused by asbestos so not a causation case) and P continued to smoke after he was diagnosed. Failed to mitigate!! If damages were 200k, but would have been only 20k if had been wearing a seatbelt then we subject the 20k to comparative fault and some jurisdictions just disallow the difference (so P would just get 20k)

Assumption of risk vs. Contributory Negligence

AOR-> D must show P knew of risk and chose to proceed CN-> D need only show that P knew or should have known of risk

Assumption of the Risk

Two types: express and implied Reasonable v. unreasonable A person is the master of their own of his own fate with the right to choose a course of action and the responsibility to accept the consequences of the choice.

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Here the P was not N, they just assumed the responsibility, deliberate choice with full knowledge of the risk If assumed an unreasonable risk then comparative N also Express AOR- involves an express K where P signs away their rights to sue basically, called an exculpatory clause or hold-harmless clause. If the exculpatory clause is really broad we do not uphold them CRTS WILL ASK WHETHER THE CLAUSE IS ENFORCEABLE GIVEN THE TYPE OF ACTIVITY INVOLVED (on what grounds) AND IF SO IF THE K IS SUFFICIENTLY CLEAR!!!!!!!!! AOR = D didnt breach any duty of care bc you knew the stakes and proceeded As a general matter these Ks are enforced as long as they meet certain requirements: Risk is obvious and inherent to the activity Bargaining power b/t parties is equal (certainly matters if D is providing an important service), wed feel less comfortable saying to P that they chose to enter K if unequal Consent P gives must be to actual injury suffered No coercion No social interest which the enforcement of this provision would interfere Dalury v. S-K-I, Ltd ski accident, crt held the K was unenforceable as per public policy concerns and goes into a bunch of ways to figure that out (Tunkl factors, Jones, VA crt). Crt said D must keep their property reasonably safe and a pole sticking out is not inherently dangerous within the risk of skiing (not obvious or to be expected and assumed by P). Hanks v. Powder Ridge Restaurant Corp.-> Snowtubing accident. Exculpatory agreement protecting D from Neg. Holds:Ds have knowledge to keep it safe. Doesnt uphold agreement. Dissent: 1st,2nd, 4th, and 6th Tunkl factors for D. To uphold agreement would remove incentive to maintain a
reasonably safe snowtubing environment. Agreement was a standardized adhesion contract, offered to snowtubers on a take it or leave it basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee; Ds had superior bargaining authority. Ds invited the public generally to snowtube at their facility, regardless of snowtubing ability; Snowtubers were under the care and control of the defendants as a result of an economic transaction; Ds (not recreational snowtubers), had the knowledge, experience to maintain the snowtubing runs in reasonably safe condition, and to guard against the negligence of its employees/agents; Ds were in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons;

Hanks Dissent: Business is a type suitable for regulationX; D is performing a service of great importance to the public/practical necessityX; Ds business open to the public; D has bargaining powerX; D uses standard adhesion contract, offering no negotiation or insurance against negligence; P is placed under Ds control, subject to risk Ds negligenceX.

Tunkl factors: 1. If business is a type suitable for regulation 2. D is performing a service of great importance to the public/practical necessity; 3. Ds business is open to the public 4. D has the bargaining power 5. D uses standard adhesion contract, offering no negotiation or insurance against negligence; 6. P is placed under Ds control, subject to risk Ds negligence. Policy arguments against of exculp agree 1) P consent to accept risk freely given? 2)P accept particular risk leading to injury? 3)social/public interest involved? Indispensible services?

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Policy argument for excul agree 1) Moral: people should be responsible for themselves (individuals freedom of choice); 2) Cultural: some people prefer a fun life to a safe life; 3) Economic: allocating risk through K is efficient

Implied AOR- we look to Ps conduct and whether they really did understand and assume the risk and took it on in doing that thing, subjective standard whereas comparative N is objective against reasonable person (bc its N)! 1. Primary: D didnt breach a duty. No N rather than defense to N. 2. Secondary: True defense P knowingly encounters risk created by Ds N.

Davenport v. Cotton Hope Factors for establishing assumption of risk defense. 1) P must have knowledge of dangerous condition, 2) P must appreciate nature and extent of danger, and 3) P must voluntarily expose himself to the danger. A lot of these cases turn on whether there was a duty Baseball cases if a bat flies out then you still cannot recover, its within the realm of risks we can assume Davidoff v. Mets awareness of the risk, if you do not sit behind the screen then something can hit you! IAR primary assumpt or normal risk If you were a foreigner and had no idea what baseball entailed then you still cannot recover bc you should have realized and seen that balls were flying into the stands B<PL If a hockey player takes off his skate and throws it into the stand you probs can recover (not within inherent risks) Ps AOR gets factored into the %, comparative fault doesnt change AOR Murphy v. Steeplechase trial judge agreed with P that the jerk was not within the expectation and therefore AOR, but Cardozo reverses and says theres been no breach (another way to think about AOR) Activity carried notice of risk involved and there just is no breach of duty Says we cant believe Ps testimony (questionable). Assumed the risk of falling, sucks for you that there was a jerk but you assumed it. Professional rescuers cannot sue for N maintenance of property if they hurt themselves while trying to save you (ex: firefighters) Levandoski. Sufficient evi to estab prox cause Based on the idea of we really believe in free will, if you engage freely in an activity and signed off on knowledge that the risk is in the activity. We have a P who has freely engaged in certain activities so we feel comfortable imposing liability Zanghi NO FAULT HERE, NO N!!! Firefighters Rule: 1) Limited liability of landowners, 2) firefighters, police assumpd risk bc they knew theyd encounter dangerous situations in their work, and 3)no duty owed by employer (workers comp)

Strict Liability
Doctrinal Development

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N applies to activities which we want to encourage, but we just want them done safely SL applies to the things that are lawful, socially valuable, but pose a risk of fairly serious injury Blasting cases (paradigmatic of SL) Valuable, but really hard to control. Cant really exercise so much due care in it bc its still really likely that someone will get hurt If we were to prohibit the SL activity or just have a lot of insurance people wouldnt do the activity which isnt good SL tells us we allow damages where P can show that D engaged in the risky activity and is injured P; NO NEED TO SHOW FAULT Risks of harm that are unusual, you have to pay to play- almost looks like a tax Abnormally dangerous activities are the ones we say are SL Risks are significant, clear and foreseeable Vicious animal cases and storage of water employ SL, sometimes SL in transporting radioactive materials The threat of the cost will cause at least some people to forego these activities (less high risk activity and fewer accidents). Encourages people to be safer and take all precautions to avoid injuries and paying! SL IS THE EXCEPTION NOT THE NORM Rylands v. Fletcher reservoir damaged Ps property, the harm wasnt direct and immediate (employees, land b/t P and Ds property, and no rushing water) so no trespass case; no nuisance bc nothing was offensive to the senses Test: Abnormally dangerous conditions and manufacturing defects. if you bring a dangerous thing on your land and it escapes and harms someone else you are liable for all consequences 2nd Restatement, 520 (1965, 1977) Abnormally dangerous activities 1. Degree of risk; 2. Probability of harm; 3. Inability to eliminate the risk by the exercise of reasonable care; 4. The extent to which the activity is uncommon; 5. The inappropriateness of the activity to the area; 6. The extent to which the value of the activity to the community is outweighed by its dangerousness.
Controversies surrounding 5201. Inconsistent decisions & unpredictable outcomes: difft courts focused on difft factors to reach difft decisions; 2. Factor 3: tends to dominate all other factors/creates a high evidentiary burden for Ps; 3. Factor 6: should value to community be part of the SL calculus at all?; 4. Catch-22: pleading negligence & strict liability in the alternative creates problems.

P will not have to show N Then when it was appealed the highest crt said non-natural flooding and it was foreseeable (NO ONE KNOWS WHAT NON-NATURAL MEANS AND ENGLISH COMMON LAW GOT SCREWED BY THAT DECISION) Core holding of Rylands even today stays linked to dangerous activities involving land American crts were initially very resistant to embracing SL Turner v. Big Lawk Oil Co seemed more like a reasonableness inquiry in which the crt looked to the quality of the activity within the location it took place to determine if the use was natural (looked like a rejection of SL)

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Losee v. Buchanan rejects Rylands. generator overheats and catapults onto Ds land, the stakes are really high to go the strict liability route. Virtues of fault principle in industrial society. From 1860-1910 crt moved away from extreme position and began to embrace SL; created specific and limited exceptions to N How uncommon is the activity in the area which it takes place; the more violent its likely to be, and more likely it is to force Ds to move the activity. SL causes Ds to relocate Liability flows from the decision to conduct the activity at all. By about 1950 everyone accepted SL Section 520 of Rest. Of Torts 2d- activity must be abnormally dangerous, 6 factors to consider for that determination: Existence of a high degree of some harm to the person, land or chattels of others Likelihood that the harm that results will be great Inability to eliminate the risk by exercise of reasonable care (OPPOSITE OF N) Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on, and Extent to which its value to the community is outweighed by its dangerous attributes D-f sound like reasonableness and balancing test 520 looks really fact-intensive and the essential question is really are the dangers in locality so great they outweigh the social benefits of the activity SL IS A QUESTION OF LAW FOR THE CRTS If you even have a glimmer of evi on N then you have to go with that theory (but a good advocate will argue both) Sullivan v. Dunham blasting case, is there to show us blasting it hard to control and is subjected to SL Indiana Harbor Belt RR Co. v. American Cyanamid Co crt said the transportation of this chemical was to be resolved on N theory, not SL The real kicker was part c of section 520, there clearly could have been a greater exercise of due care and as such there can be no SL, there was a leak it wasnt that the chemical like ate away at the container With more care it could have been prevented which means it was probs someones fault (once we get to fault we get to N) Posner says with SL we want D to consider relocating (which was not an option- RR are too deeply structural) or ceasing the activity (which we dont want) Blasting just blows away everything, no more evi so thats maybe why we hold gas transporters SL The ppl who are partaking in these activities can more easily spread the cost of the enterprise by adding the compensation cost to the price of the product or with like liability insurance Theories justifying SL: Fairness- as a matter of social policy they should pay their way bc of N, you as the producer are in the best position to guard against risks (doesnt explain much) Deterrence- obvs, imposing SL will promo greater safety to maybe the point of abandonment or relocation, additional accident reduction Not clear thats true, if you assume imposing N where it ought to be SL wont cause any activity to be conducted more safely than N. Threat of N liability sufficiently deters you Greater accuracy- in a class of cases in which we expect greater inaccuracy than in regs N, then we get more justice! Key is to identify which class of cases this might be true- like where evi is really hard to get, where we think that D is N but P cannot get over BOP to prove N (transportation of highly flammable material)

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Administrative cost savings- requires less times, money, resources than in proving N. May depend on generality in which we employ SL (case by case vs. general) Additional research incentives- D will want to try to figure out ways to do something that wont expose them to the liability a previous D was exposed to (same with N), but D has more to lose with SL so they have more incentives. Industry wide approach, diff than N bc thats more case by case Activity level effects- threat of N, D acts safer or performs diff activities entirely bc SL is activity and not fault based. Leads to a more efficient resource allocation among activities if there are readily available alternative More Loss Distribution- under SL, injurers are more likely to be large corps than victims, thus options to spread costs, buy insurance and pass costs along to customers. If a goal of tort law is spreading loss ditrib SL helps us to do this Posner on economic rationale for strict liability- By making the actor strictly liable by denying him in other words an excuse based on his inability to avoid accidents by being more careful we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident. (p. 522)

Products Liability
Introduction and History In the beginning we only allowed recovery under the privity doctrine= recovery only if in contractual rela Winterbottom v. Wright classic foreseeable P bc he was the driver of the coach but could not bring claim against manu bc there was no K, no privity Judges started to feel that was unfair bc the very people who use the prod are not able to bring suit so we start to see exceptions to the privity doctrine Thomas v. Winchester mislabeled poison, start to see a little of the inherently dangerous products; sale to druggist, druggist to customer. danger was foreseeable and theres a duty to avoid injury. Loop v. Litchfield exception to privity. Devlin v. Smith D builds the scaffold and knows exactly who will be using it, improperly constructed scaffold Statler v. George A. Ra Mfg Co coffee urn, exploding prod that crt said was inherently dangerous bc it could be very dangerous We got rid of privity for any inherently dangerous prod. Exception to privity. MacPherson v. Buick Motor Co abolishes privity doctrine but P must still prove fault D sold the car to a dealer who then sold it to P. The wheel was made of defective wood and P sues for N. D tries to say it wasnt within Thomas rule Cardozo never really tells us why we should get rid of the privity bar (could be to shift losses to manu); manu of anything that can foreseeably harm a 3rd party if N made is subject to Thomas rule (no more privity!) N LAW WILL DOMINATE After MacPherson were holding Ds feet to the fire to make sure stuff is coming out safely! Would still have a decent case if wear and tear as long as you can show it was normal wear and tear Warranty= a promise that if anything goes wrong its on the manu. Court says every product has a warranty.

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Bring a claim for breach of warranty if the prod doesnt live up to the expectation Uniform Sales Act= there was an implied warranty of merchantability (fair quality, safe) just bc the prod is sold Heres where K and torts overlap!! K supports tort recovery No need to show N Warranty is SL! Privity is still a bar, you wouldnt have a warranty without a K Ryan v. Progressive Grocery Stores, Inc pin case in the bread, this is really a torts case in the guise of a K Crt got rid of privity requirement for food cases bc its normal for people to buy food for other people and during this time (Indus rev) food was made in unsanitary conditions SL maybe bc its harder to prove Greenman v. Yuba Power Prod, Inc implicit in the prod is that is safe to do the job that it was built (similar to warranty promise). When the expectation is dramatically diff than the result and it results in PI it should be SL. Outright rejection of warranty approach bc its too technical (as with res ipsa). SL for products. Majority SL no N. Escola v. Coca Cola Bottling Co. of Fresno strict liability for defective products used res ipsa for N but clumsily, the concurring opinion is where its at. Wanted to apply SL Traynors Concurring justification for SL: 1) Deterrence in risk spreading (manu can better guard against hazards than the buyers) 2) Loss spreading to the public (manus can do that) 3) Changed rela b/w manu/consu. Close rela altered bc of mass production. 4)Modern Marketing: manu shouldnt escape liability bc marketing of a product has become so complicated as to require one of more intermediaries Consumer doesnt have access to evi in the way that manu does (just like Ybarra and res ipsa) Manu is more disposed to adhere to safety standards if there is SL (shifting loss to manu= more deterrence) Traynor Concurrence: Manu should have absolute liability. Responsibility to reduce hazard to life most effectively. Public policy for SL of food sales too. Price v. Shell Oil SL extended beyond pure commercial sellers to include a wide variety of suppliers and those who aid suppliers including commercial lessors, or people who give away free samples Section 402(A), Rest. 2d- unreasonably dangerous is the benchmark standard (if you sell a prod in a defective condition unreasonably dangerous to user you are subject to SL if you are engaged in the biz of selling that prod and it is expected to reach consumer without substantial change of condition in which its sold); factors to look at in risk/utility Usefulness and desirability of the prod (utility to user and public as a whole) Safety aspects of the product (likelihood of causing injury) Availability of a substitute prod which would meet the same need and not be as unsafe (a RAD) Manu ability to eliminate the unsafe character of the prod w/o impairing its usefulness or making it too expensive to maintain its utility Users ability to avoid danger by the exercise of care in the use of the prod Users anticipated awareness of the dangers inherent in the prod and their avoidability bc general public knowledge of the obvs condition of the product, or of the existence of suitable warnings or instruct Feasibility, on the part of the manu, of spreading the loss by setting the price of the prod or carrying liability insurance.

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Section 2 of Rest. 3d- separates types of defects which have basis for claim (manu, design and warning); applied SL for manu defect, RAD for design defect

Manu Defects
3 reasons for strict liability (1) spreading the risk, (2) satisfying reasonable buyer expectations, and (3) risk reduction. SL = no fault. These are where we still have SL with prod defect cases!!! Must have been using the prod in the intended way Normal wear and tear issues, failure to maintain issues, non-intended use issues (those are defenses to SL) Escola and Greenman gave us SL for defective prod; SL is approp in order to insure that the costs of injuries resulting from defective prod are borne by the manu that put such prod on the mkt and not by the injured persons who are powerless to protect themselves. Policy reasons for SL for manu defects: 1. Increasing sophistication of prod makes it hard to consumers to assess their risks, so the manu needs to do so 2. No personal rela b/t manu and consumer and so buyers cant rely on the rela to estab quality (will rely on distant manus info) 3. Manu can redistribute the liability through insurance 4. Encourage manus to make their product safer P can recover by showing the prod doesnt meet the manus own specifications for the prod and as a result the prod was dangerously defective! Defect exists, it made the prod unreasonably dangerous and caused injury (all P must show). Must show D was a merchant, prod was defective (subs in for breach in N), must prove prod wasnt altered after leaving Ds hands (its usually assumed if traveled in ordinary channels of distribution), P must be making a foreseeable use of the prod at time of injury (like prox cause in N). Used good sellers no held to SL. 3 reasons for strict liability (1) speaking the risk, (2) satisfying reasonable buyer expectations, and (3) risk reduction. Successors in business mergers not liable for predecessors torts bc deters business practices.

Design Defects
Design defect= designed improperly, it effects the entire prod line; its not just the one on the assembly line where the screw was misplaced or something Chemical compositions, badly conceived products that carry needless dangers (ex: no safety belt or pressure cooker without a lockable lid) Manu didnt take enough care in designing the product! We have two standards to measure design defects (both factual determinations): Plaintiff must meet: (1) Ordinary consumer expectations test: the produce failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; Or, (2) Risk-utility test: the products design embodies excessive preventable danger, such that the risk of danger inherent in the challenged design outweighs the benefits of such design.

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Evidentiary Burdens for Consumer Expec: 1) Publics knowledge safety of product, 2) Product labeling, marketing, advertising, and 3)no experts. Evidentiary Burdens for Risk-Utility: 1)Reasonable Alt,. Design, 2) working prototype, and 3) experts

Consumer Expectations Test= P must show failed to perf as safely as ordinary consumer expect it to perform We only use this test for VERY simple products, sim to med-mal with the need for experts, we want the jury to understand Good for demonstrable defects Risk-Utility Test= do the benefits outweigh the risks? Sim to the Hand formula! Cost of designing the prod to fix the prob Use of alternative that it wouldnt change the utility of the prod Level of risk as is What factors went into choosing design The evi burden b/t the diff tests are diff, its easier in consumer expectations bc the products are simpler and risk-utility is expensive and hard to prove DS BURDEN TO PROVE DESIGN MET RISK UTILITY STANDARD! Risk-utility factors- The jury may consider: The gravity of the danger posed by the challenged design; The likelihood that such danger would occur; The mechanical feasibility of a safer alternative design; The financial cost of an improved design; The adverse consequences to the product and to the consumer that would result from an alternative design. Problems w/ Risk Utility: w/ technical design asking jury to get involved in an area they have no expertise in and it only focuses on one feature of the design when there are often many ie safety, cost, attractiveness. Soule v. GM wheel fell off due to the placement of the bracket; too complex to use consumer expectations, just too many factors about a car being manu for a jury to understand An ordinary consumer has no idea what to expect, we never ask a car shop person about where the bracket should be Arguments against consumer expectations standard GM makes looks like a critique of any reasonable person standard (consumers dont know any legit things about prod and its safety, jury isolates to the partic P) Question of which test to employ is a legal question the judge decides Although the risk-utility test looks good on paper, there are problems with it in practice Jury has no experience with these technical determinations Looks like med-mal with the experts to show what the standard is (but in design defect THERE IS NO STANDARD) Force fact finder to focus on the one thing that caused the injury which is a skewed effect of the whole prod line (already looks bad for D)
GM and amici arguments for abolishing consumer expectations test (p. 576): It defies definition; It focuses on the subjective, unstable and unreasonable opinion of consumers instead of on the objective condition of products; Consumers dont know anything about how safe the products they use can or should be made; The jury focuses on a particular consumer, component, accident and injury instead of whether the product meets general expectations.

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Eliminates balancing of risks and benefits that are inherent in any product design.

Dreisonstock you knew what you were getting, a VW bus isnt made for safety (this was analyzed under risk-utility, but looked more like consumer expectation), price was considered a factor! i. Prob is impossible to completely separate the two! 3rd Rest Reasonable Alternative Design (RAD) a RAD would have decreased the risk of harm in the design To prevail on risk-utility will have to show a RAD Unrein v. Timesavers really hard to show that You have to get an expert to create a RAD, draw something to make it better and more costeffective. Expert should meet Daubert standards. You need a prototype (WAY harder than N, in N you can just throw stuff out there, this is more technical) Ds burden to show design meets risk-utility standard and then P rebuts with a RAD Factors to condifer when determining whether an alternative design is reasonable and whether iots omission renders a prod not reasonably safe: Magnitude and probability of foreseeable risks of harm Instructions and warnings accompanying the prod Nature and strength of consumer expectations regarding the prod Relative advantages and disadvantages of prod and its proposed alternative Camacho v. Honda Motor Co, Ltd. the leg guards were not on the bike and Ps injuries were more severe How relevant is cost? Well if the cost was so extreme that people wouldnt even be able to buy them then it would just be ridic to require they make that change Are we comf leaving these questions to the judge, determinations that will have signif eco consequences Judges are prob always taking cost into consideration with anything; like the Hand formula Maybe this question is better left to some other body bc what kind of evi is even good to show what an acceptable cost is Its insane to look at jurys determination and decide know how to redo your product b/c the jury resigns (with no expertise, thats a problem) P argues for risk/utility and the crt agrees, otherwise itd be too hard for P to recover (is that being too paternalistic?)
Colorados Risk-Utility - Usefulness and desirability of product; Safety aspects of product; Availability of safer substitute; Ability to make product safe without declining utility or higher cost; Users ability to avoid danger by exercising care; Open and obvious danger, warnings; Loss-spreading.

Dawson v. Chrysler Corp criticisms of Risk-Utility (1) case-by-case jury decisions on designs denies manu guidance of uniform standards. (2) may miss forest for the trees. Juries apply varying law for national standard. CRASHWORTHINESS DOCTRINE (2nd collision defect) P can bring claim for increased injury if the alleged defect didnt cause injury, but worsened it (i.e. P crashed car, but b/c of Ds defective design, Ps injury was worse) Crt here used section 402(A)s factors to asses risk/utility Enterprise liability= entire industry is engaging in wrongful activity; we can use mkt share liability to attack enterprise. Working in concert is a requirement, must be a small number of point Its joint and several

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D had joint knowledge of the risks inherent in the prod and possessed a joint capacity to reduce those risks, and each D failed to take steps to reduce the risks Most, if not all Ds must be before the crt

Warning Defects

N based inquiry
Restatement 2nd: consumer should be warned if a danger is not generally known or if known is one which the consumer would reasonably not expect to find in the product; Restatement 3rd: Warnings must be provided for inherent risks that reasonably foreseeable product users and consumers would reasonably deem material or significant in deciding whether to use or consume the product.

Similar to informed consent, hard to convey the info clearly, its a reasonableness inquiry!! open and obvious dangers. A prod is unreasonably dangerous without the warning Warn if the danger isnt generally known or not expected to find Its easier to prove warning was defective than it is to prove a design was defective The warning is something a consumer can relate to (for the jury) and its easy for th jury to understand the need for better warnings than it is with risk/utility There are some risks that are so apparent they do not need a warning (ex: knife, tequila) Maneely v. GM riding in the back of a pick-up truck. Consumer expec and risk-utility ive you same result. Brown-> tequila label didnt have warning that you could die from it. Consumer exp. Dangers apparent. Emery v. Federated Foods marshmallow; its obvs easy in hindsight to say marshmallows expand when exposed to saliva. Jury decides if it common knowledge. First question we ask deals with the obviousness of the risk and the second deals with the warnings adequateness THE FACT THAT YOU DID NOT READ THE WARNING IS NOT A GOOD DEFENSE! The big concern we see crts struggling with is the notion that more info on a label will actually deter people from reading the label; were already on info overload! This hasnt actually been studied. In defect cases the claim is that the manu defected the prod, here its an argument that the seller has failed in some way to commun adequately of known risks Sounds more like a prob with the manu Warning has to be prominent and warn the user of the real risks If manu warns of a lesser risk and didnt arn of a known greater risk thats not good for a manu Hood v. Ryobi failed to heed the warning, Hood argued that he had to take off the guard so it would do what he wanted it to do Crt does a cost-benefit analysis and rules for Ryobi and say more warnings arent nec good Crt often find vague warnings to be bad, they arent specific enough Cotton v. Buckeye Gas Products co eco talk; these judgments are good, info cost theory explains why more info isnt good and eventually stop reading bc the benefit of knowing isnt worth the effort The warning has to reach the person who was likely to use it So if Hoods son was injured by the saw while Hood was using it the son would have a pretty decent claim bc we have a sense that the person who reads the warning understood the risks (like AOR) but with 3rd parties we are less likely to hold to that bargain

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Crt do not look at these cases through superseding cause, they view it through AOR and comparative fault Adequacy of warning factors: Extent of risk Likelihood risk will arise Users likely understanding about the danger Means available to convey a warning Likelihood that more warnings will decrease effectiveness of the warning (like in Hood) General view of adequacy is that the warning will have to satisfy the needs of the ordinary consumer Look at how warning perf on average; gerenaly manu has pretty good evi of this Individ factors are pretty irrelevant (warning cannot be tailored to individ)

Defective warnings and safety labels: must warn of risks that reasonably foreseeable users would want/need to know.

Damages
Seffert v. Los Angeles Transit Lineswoman getting on bus. Ankle/heel injury. Jury review standards: 1) shocks the conscience of the court and 2) previous awards for similar injuries. Remittur-> ruling by judge to lower the amount of damages awarded by jury. Additur-> judge adding damages amount to jury verdict. NY-> excessive or adequate. Previous damages approach. Appellate crt can only review damages so high that it shocks the conscience. holding. Trial judge 13th juror, if he didnt change it then its fine. McDougald v. Garber wants distinctive element of loss of enjoyment of life. P shouldnt get poss of enjoyment of life b/c shes not conscious. Permanent comatose. NY: very high rate of remittur. Fantozzi-> more categories, more precise the reward. Compensatory damages. 3 components: 1)medical expenses, 2)lost income, and 3) Pain & Suffering 1 and 2 are special or pecuniary damages. 3 is general damage. Compensation is primary goal of tort law, deterrence is secondary goal, and punishment is not a goal. Past pecuniary damages not due to fed tax -> generally juries not told that its not taxable. Future pecuniary damages-> no documentation. Makes assumptions and predictions. Predicts life expectancy. Courts struggle w/ drug costs, lots of this is good lawyering. Single judgment rule -> only bring 1 case in one whole shebang. Admin ease, no malingering, peace of mind for D. past and future damages one case. Real action is in pain and suffering damages. Previous judgment jury standard: 1) skewed data set bc didnt settle so wrong inputs 2) may be wrongfully decided 3) BUT treating like cases alike does bring predictability. Some states statutory cap for P&S -250K. caps unfair to most seriously injured victims of N (young ppl seriously injured) regressive for future potential high earners. Per diem-> misleading. Tries to create a precise method but still arbitrary. Seems like law and based on something but its not. Collateral-> if $ from others is possible ie disability, workers comp, you get less money from D Bifurcated trial 1) liability and 2)damages

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Wrongful Death-> common law claim dies w/ you. Statutory claim. Emo less, companionship, anguish. Langan civil union wrongful death. Survival statutes-> statutes preserve cause of action if he hadnt died. Only for deterrence purpose. P&S from time of injury to the time of death.

Wrongful death: Typically provides that, upon the death of an individual caused by the wrongful act of another, the person or entity that would have been liable had death not ensued continues to be liable. Beneficiarys recovery is measured by losses she suffers as the result of negligent death (loss of financial support, other forms of economic loss, as well as loss of companionship, mental anguish, or any type of emotional losses). No P&S before death. Survival Statutes: Provides recovery of damages the plaintiff could have recovered before death (medical expenses, lost wages, P&S from the time of injury to the time of death). Things P could have recovered if he didnt die.

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