TORTS TA SESSION

10/28 & 10/30

MARKET SHARE
Write a Note like Naomi Sheiner and you could be cited by the Ninth
Circuit
Market Share Liability

Key Issues

Qs to Ask

Hymowitz

Is it a signature disease?

Yes

Is the product identical?

Yes

Can the defendant be exculpated?

No

Can the plaintiff prove specific

Negligence?

Yes

How are missing defendants being dealt

with?

Several Liability

Which market?

National

LOST CHANCE
Holding a physician liable for damages when he diminishes or
destroys a patients likelihood of survival
Limited to malpractice cases
Reliability of experts and statistical evidence
A competent party is present on the liability side
There are common issues in the field
Further limited to actual death
Theoretically inconsistent
Not functional as a deterrent

PROXIMATE CAUSE SCOPE OF L

Second step of causation analysis weeding out some of the causes that
we caught in causation-in-fact net
Third Restatement 29 : HWF^R
Harms that result from the risks that made the actors conduct tortious

PROXIMATE CAUSE - FORESEEABILITY

Unforeseeable Plaintiffs
Think of people placed in a foreseeable zone of danger
Unforeseeable extent of harm
Thin skull rule take your plaintiff as you find them
Exceptions when the plaintiff would be the cheapest cost avoider
Unforeseeable type of harm
No liability for this now
Think of a plank scraping a ship v. causing an explosion
Unforeseeable manner of harm
This is likely to turn on issues of timing
The idea is you know the type of harm your N will cause, but it is
produced in a different way.

CHEAPEST COST AVOIDER

Calabresi - Proximate cause seeks to place the burden on the
cheapest cost avoider
The goal is to minimize (Plaintiffs accident costs + Defendants
mitigation costs)
Passing loss to whom?
Knows risk
Knows how to avoid the risk
Knows L
Getting the most bang for your buck approach
Whats missing?
Everything else. No discussion of morality and social norms

STRICT LIABILITY - EVOLUTION

Ultrahazardous activities

Rylands v. Fletcher
Two factors: degree of danger posed + commonness in the area

Second Restatement: Abnormally dangerous activities

Three dangerousness factors

Degree of risk
Degree of harm
Inability to reduce risk exercising reasonable care

Two commonness factors

Uncommonness
Appropriateness in the area

Final factor: value to community

Indiana Harbor Belt v. American Cyanamid

Third Restatement 20: three factors

Foreseeable risk of harm
Harm risked is severe
Not a matter of common usage

Dont forget: SL still requires causation

STRICT LIABILITY - MODERN

Theories of SL
Reducing information and error costs
Influencing activity level and research decisions
Promoting insurance / cheapest cost avoidance
Satisfying rights-based norms of responsibility
Negligence v. SL Whats at stake?