TORTS OUTLINE

Table of Contents
Whats a tort?........................................................................................................ 11
Whats a legal wrong?........................................................................................ 11
What is tort law?................................................................................................... 11
Why Shift Losses?............................................................................................... 11
When should Unintended Injury Result in Liability?...............................................12
Hammontree v. Jenner, 1-9................................................................................12
The Litigation Process, 9-17..................................................................................12
Restatements..................................................................................................... 13
The Structure of Tort Law................................................................................... 13
The Parties and Vicarious Liability.........................................................................14
Christensen v. Swenson, 17-24..........................................................................14
The Negligence Principle.......................................................................................... 15
A. Historical Development of Fault Liability...........................................................15
Brown v. Kendall, 30-39...................................................................................... 15
BOP (Burden of Proof/Persuasion)..........................................................................15
B. The Central Concept......................................................................................... 16
Prima Facie Claim of Negligence (and Defenses)..................................................16
1. The Standard of Care........................................................................................ 16
Adams v. Bullock, 39-43..................................................................................... 16
Braun v. Buffalo General Electric Co...................................................................17
United States v. Carroll Towing Co., 43-49..........................................................17
2. The Reasonable Person..................................................................................... 18
Bethel v. New York City Transit Authority, 49-60................................................18
Miscellaneous Rules.............................................................................................. 18
C. The Role of Judge and Jury................................................................................19
1. In General.......................................................................................................... 19
Baltimore & Ohio Railroad Co. v. Goodman, 60-61.............................................19
Pokora v. Wabash Railway Co., 62-65.................................................................19
1

Andrews v. United Airlines, 65-68: bridge b/w breach and role of custom..........20
2. The Role of Custom........................................................................................... 20
General Rules of Custom....................................................................................... 20
Trimarco v. Klein, 68-74...................................................................................... 21
3. The Role of Statutes.......................................................................................... 21
Martin v. Herzog, 74-77...................................................................................... 21
Whats per se negligence?..............................................................................21
Tedla v. Ellman, 77-83 (through n. 9).................................................................22
Only Relevant Safety Issues Count........................................................................22
Rushink v. Gerstheimer...................................................................................... 22
Breach and Negligence Per se...............................................................................23
D. Proof of Negligence.............................................................................................. 23
1.

Real/Direct Evidence (Most convincing forma of evidence).............................23

2.

Circumstantial Evidence..................................................................................23
Constructive Notice............................................................................................ 24
b) Business Practice Rule:................................................................................ 24
Negri v. Stop and Shop, Inc., 85-86....................................................................24
Gordon v. American Museum of Natural History, 86-90.....................................25

Res Ipsa Loquitor (the thing speaks for itself")......................................................25

To show breach using the doctrine of RIL, the pff must show that........................26
Byrne v. Boadle, 90-92....................................................................................... 26
Larson v. St. Francis Hotel..................................................................................26
Restmt 3rd: Liab for Physical Harm 17..............................................................27
Connolly v. Nicollet Hotel, 92............................................................................. 27
McDougald v. Perry, 92-97.................................................................................27
Ybarra v. Spangard, 99-106................................................................................27
Medical Malpractice.................................................................................................. 28
Medical Malpractice: General Rules.......................................................................29
Sheely v. Memorial Hospital, 106-115................................................................29
Rule Progression.................................................................................................... 29
Rhode Island G.L. 1956 9-19-41......................................................................30
Why drop locality requirement?.........................................................................30
Expert Testimony in Action................................................................................. 30
2

Matthies v. Mastromonaco, 119-126..................................................................31

Therapeutic Waiver............................................................................................... 31
Duty.......................................................................................................................... 32
Physical Injuries..................................................................................................... 32
Restmt (Third) of Torts: Liab for Physical Harm 7..............................................32
Affirmative Obligation to Act................................................................................. 32
No-affirmative-duty rule........................................................................................ 32
Acts of commission v. omission (n. 3, p. 136)........................................................32
Harper v. Herman, 129-136................................................................................ 32
Duty Rule............................................................................................................... 33
Restatement 2nd 322: Non-negligent injury.....................................................33
Restatement 2nd 321: Non-negligent creation of risk......................................33
Restatement 2nd 323: Negligent performance of undertaking to render.........34
Farwell v. Keaton, 136-142................................................................................. 34
Restatement 2nd 324: Duty after Initiating Rescue............................................35
Restatement 326: Rescue................................................................................. 35
Restmt (Third): Liab for Physical Harm, 43 (44 in updated version) (n. 2b and
n. 4, p. 141)........................................................................................................ 35
Ronald M. v. White.............................................................................................. 35
Tarasoff v. Regents of U. of Calif., 151-161........................................................35
Policy Bases for Invoking No Duty.........................................................................36
Prima Facie Claim Review................................................................................... 36
Strauss v. Belle Realty Co., 168-176...................................................................37
Reynolds v. Hicks, 176-182................................................................................ 37
Punting to Legislature............................................................................................ 38
Vince v. Wilson, 182-188.................................................................................... 38
Duties of Landowners, Occupiers, and Family Members........................................39
Prima Facie Review............................................................................................. 39
Pff must show four elements.............................................................................. 39
Traditional Scheme............................................................................................. 39
Carter v. Kinney, 188-194 (skip n. 8, 9)..............................................................39
Standards of Care for Active negligence Cases (as opposed to condition of
premises)(note 7, p. 192)...................................................................................... 40
3

Logic of Classifications: invitee v. licensee............................................................40

Heins v. Webster County, 194-201 (skip n. 8, 9)................................................41
Rstmt (3rd).......................................................................................................... 41
Criminal Activity (Trespassers)..............................................................................42
Posecai v. Wal-Mart Stores, inc...........................................................................42
Intrafamily Duties.................................................................................................. 42
Broadbent v. Broadbent, 217-225 (skip n. 4, 8).................................................42
Non-Physical Harms.................................................................................................. 43
Emotional Harm..................................................................................................... 44
Physical Injury + Emotional Harm......................................................................44
Emotional Harm................................................................................................. 44
Falzone v. Busch, 260-266, (n. 1-5, 9)................................................................44
Examples of Thresholds (vary by jurisdiction).......................................................45
Metro-North Commuter Railway Company v. Buckley, 268-276............................45
Portee v. Jaffee, 280-289 (n. 1-6).......................................................................46
Stand-Alone Economic Harm................................................................................. 46
Prima Facie Review................................................................................................ 46
Introduction, 298-299............................................................................................ 47
Is there a legal duty to protect from risk of pure economic harm? (e.g., economic
harm caused by bridge collapse, which led to lost profits of gas station located
near bridge)....................................................................................................... 47
Generally, courts limit legal duties owed when it comes to pure economic harm
(i.e., no physical injury to person or property)...................................................47
Sidenote: one exception..................................................................................... 47
532 Madison Ave. v. Finlandia Center, 310-317.................................................47
General Justifications for Limits.............................................................................48
Wrongful Birth and Life.......................................................................................... 49
Emerson v. Magendantz, 319-332......................................................................49
Is recovery of emotional harm for wrongful birth of disabled child consistent with
general rules for emotional harm?.....................................................................50
CAUSATION............................................................................................................... 50
Prima Facie Review................................................................................................ 50
Cause in Fact......................................................................................................... 50
Actual Cause: The Rule....................................................................................... 50
4

Easy Cases......................................................................................................... 51
Technique: Downplay other causes....................................................................51
Basic Doctrine....................................................................................................... 51
Stubbs v. City of Rochester, 333-343.................................................................51
Zuchowicz v. United States, 343-355.................................................................53
Matsuyama v. Birnbaum, 355-364......................................................................54
Loss of Chance................................................................................................... 55
Multiple Defendants: Joint & Several and Proportionate Liability...........................55
Recall Stubbs...................................................................................................... 56
Multiple Causes.................................................................................................. 56
Multiple Defendants........................................................................................... 57
Introduction to Joint and Several Liability, 364-367............................................57
Summers v. Tice, 367-372..................................................................................57
Hymowitz v. Eli Lilly & Co., 372-384 (skip n. 7-8)...............................................58
Restmt 3rd (Allocation): Factors for Assigning Shares of Responsibility for
Indivisible Injuries.............................................................................................. 59
Proximate Cause................................................................................................... 60
Prima Facie Review............................................................................................. 60
Proximate Cause: The Basics.................................................................................60
Restatement (Third) 29: Limitations on Liability for Tortious Conduct..............60
1. Unexpected Harm............................................................................................. 61
Benn v. Thomas, 393-399................................................................................... 61
Silverstein v. United States................................................................................ 61
Polemis, 399-401................................................................................................ 61
The Wagon Mound, 402-408 (skip n. 10-11).......................................................62
2. Superseding/Intervening Causes......................................................................62
Doe v. Manheimer, 408-418............................................................................... 62
3. Unexpected Victim............................................................................................ 64
Palsgraf v. Long Island Railroad Co., 418-430.....................................................64
Proximate Cause Review....................................................................................... 64
NEGLIGENCE DEFENSES........................................................................................... 65
Prima Facie Overview............................................................................................ 65
The Plaintiffs Fault................................................................................................ 65
5

Contributory v. Comparative Negligence............................................................65

Contributory Negligence, 433-438........................................................................65
Trend/Demise of Contributory Negligence..........................................................65
Comparative Negligence, 438-452........................................................................66
Flavors of allocation under comparative negligence (aka comparative fault).66
Comparative and J&S Liability............................................................................ 66
Examples of Allocation Practices........................................................................66
This provision encourages settlement in these sorts of cases AND no need to
determine Bs comparative fault...........................................................................67
Avoidable Consequences (aka duty to mitigate), 455-458....................................67
How to Apportion Damages...............................................................................67
Traditional Apportionment Rules........................................................................67
The Modern Rule of Comparative Negligence....................................................68
Assumption of Risk................................................................................................ 68
Prima Facie Overview............................................................................................ 68
Basic Categories.................................................................................................... 69
1. Express Agreements.......................................................................................... 69
Hanks v. Powder Ridge Restaurant Corp., 458-470............................................69
2. Implied Assumption of Risk...............................................................................70
Caution when using Doctrine................................................................................ 70
Murphy v. Steeplechase Amusement Co., 470-475 (example of above)............70
Davenport v. Cotton Hope Plantation, 475-483..................................................71
Traditional Rule of Implied Assumption of Risk......................................................71
Levandoski v. Cone, et al. 483-489....................................................................72
Modern Rule.......................................................................................................... 72
Strict Liability........................................................................................................ 72
Overview............................................................................................................... 72
Doctrinal Development, 507-516, n. 6 on p. 520, n. 3 on p. 527...........................73
Introduction........................................................................................................ 73
Rylands v. Fletcher............................................................................................. 73
Trespass and Nuisance According to Old English Law...........................................75
Road to Modern Doctrine.................................................................................... 75
Theoretical Perspectives, 530-546.....................................................................76
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Whats the Social Optimal Level of Care............................................................76

LIABILITY FOR DEFECTIVE PRODUCTS......................................................................76
Strict Liability........................................................................................................ 76
History................................................................................................................... 77
Contract versus Tort for Product Accidents............................................................77
MacPherson v. Buick Motor Co., 551-557...........................................................77
From Contracts to Tort........................................................................................... 78
Escola v. Coca Cola Bottling Co. of Fresno, 557-569 (skip n. 6-7, 9)...................78
Cases Following MacPherson and Escola...............................................................78
Restatement 2nd 402A........................................................................................ 79
Restatement 3rd of Products Liability....................................................................79
Rise of Warranty.................................................................................................... 79
Uniform Sales Act............................................................................................... 80
Defects..................................................................................................................... 80
Manufacturing Defects.......................................................................................... 80
Introduction, 569-571............................................................................................ 80
Modern Products Liability Doctrine........................................................................80
Manufacturing Defects: Difficulties........................................................................81
Design Defects...................................................................................................... 81
Evolution of Design Defect Doctrine..................................................................81
Cronin and Barker, 571-573...............................................................................81
Aftermath of Cronin............................................................................................ 81
Barker v. Lull Engineering Co. p. 572..................................................................82
Soule v. General Motors Corp., 573-585.............................................................82
Design Defects Flowchart...................................................................................... 83
Difficulties with Consumer Expectations............................................................83
Open and Obvious Dangers...................................................................................84
Camacho v. Honda Motor Co., Ltd., 585-599......................................................84
Products Liability Overview................................................................................ 85
INFORMATION DEFECTS: SAFETY INSTRUCTIONS AND WARNINGS........................85
Doctrine............................................................................................................. 85
Nuances............................................................................................................. 85
Non-obvious Dangers......................................................................................... 86
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2. What Makes a Warning Adequate......................................................................86

Hood v. Ryobi American Corporation, 599-610...................................................86
Adequacy Rules.................................................................................................. 87
3. Exceptions......................................................................................................... 87
State v. Karl, 610-620......................................................................................... 87
Learned Intemediary Exception (from Karl)........................................................88
Rstmt 3d, Section 6(d)....................................................................................... 88
Vassallo v. Baxter Healthcare Corporation, 620-628..........................................88
Normative Inquiry.............................................................................................. 89
More Rules............................................................................................................. 89
Prima Facie Overview............................................................................................ 89
DEFENSES............................................................................................................. 90
General Motors Corporation v. Sanchez, 628-635..............................................90
Disclaimers............................................................................................................ 91
Employee Exception.............................................................................................. 91
Tort Claims and Workers Comp............................................................................. 91
Other affirmation defenses, 635-637.................................................................91
WORK-RELATED INJURIES AND MISUSE (PART OF CLASS 20).................................91
Jones v. Ryobi, 637-641...................................................................................... 91
Normative Inquiry.............................................................................................. 92
Modifications to Products................................................................................... 92
Liriano v. Hobart Corp., 641-651........................................................................92
Post-Sale Duty to Warn.......................................................................................... 93
Heeding Presumption............................................................................................ 93
INTENTIONAL HARM.................................................................................................. 94
Basic Doctrine....................................................................................................... 94
Prima Facie of Intentional Torts..........................................................................94
1. Intent................................................................................................................. 94
Garrett v. Dailey, 897-904.................................................................................. 94
2. ASSAULT AND BATTERY..................................................................................... 95
Battery............................................................................................................... 95
Intent to do What?................................................................................................. 95
Assault............................................................................................................... 96
8

Picard v. Barry Pontiac-Buick, Inc., 904-907.......................................................96

Wishnatsky v. Huey, 907-911.............................................................................96
Restmt (2d) Section 18 (p. 908-9).........................................................................96
FALSE IMPRISONMENT........................................................................................... 97
Elements............................................................................................................... 97
Basic Elements...................................................................................................... 97
Lopez v. Winchells Donut House, 911-917........................................................97
More Basic Rules................................................................................................... 97
Prime Facie for Intententional Harm Overview......................................................98
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.............................................98
Introduction, 918-919............................................................................................ 98
Elements............................................................................................................... 98
Womack v. Eldridge, 919-923 (n. 4-6)...................................................................99
Recklessness......................................................................................................... 99
Outrageous Conduct............................................................................................. 99
Proving Severe Emotional Distress......................................................................100
DEFENSES........................................................................................................... 100
Hart v. Geysel, 945-949.................................................................................... 100
Courts Treatment of Consent..............................................................................100
Demonstrating Consent....................................................................................... 101
Courvoisier v. Raymond, 949-952....................................................................101
Defense of Self-Defense...................................................................................... 101
Katko v. Briney, 952-957..................................................................................101
Defense of Property............................................................................................. 102
Ploof v. Putnam................................................................................................ 102
Vincent v. Lake Erie Transportation Co., 957-963.............................................102
Coase Theorem................................................................................................... 103
DAMAGES AND INSURANCE.................................................................................... 103
DAMAGES............................................................................................................ 103
Public Necesity.................................................................................................... 103
Punitive Damages: The Basics............................................................................. 103
COMPENSATORY DAMAGES................................................................................. 104
Seffert v. LA Transit Lines, 710-728 (skip n. 4, 6, 9, 12)...................................104
9

Per Diem Calculations......................................................................................... 105

CA Jury Instructions............................................................................................. 105
Judging Awards.................................................................................................... 105
Additional Methods for Reducing Variation..........................................................105
McDougald v. Garber, 728-736 (skip n. 7)........................................................106
Loss of Enjoyment of Life.................................................................................... 106
Damages in the Event of Death, 736-742...........................................................106
Survival Actions v. Wrongful Death Actions......................................................106
Recovery.......................................................................................................... 107
Whats Recoverable......................................................................................... 107
What Happens after Death of Defendant.........................................................107
Arambula v. Wells, 742-750............................................................................. 107
Damages Overview............................................................................................. 108
PUNITIVE DAMAGES............................................................................................. 108
The Basics........................................................................................................... 108
Taylor v. Superior Court, 750-760.....................................................................108
Normative Inquiry................................................................................................ 109
State Farm Mutual Automobile Ins. Co. v. Campbell, 760-776..........................109
Phillip Morris v. Williams................................................................................... 110
INSURANCE.......................................................................................................... 111
Introduction, 776-785....................................................................................... 111
Damages............................................................................................................. 111
Basics of Insurance.............................................................................................. 111
Collateral Source Rule and First Party Insurance.................................................111
Frost v. Porter Leasing Corp., 785-792 (skip n. 6-9).........................................112
Liability Insurance, 798-803.............................................................................113
Lalomia v. Bankers & Shippers Insurance Co., 803-811 (skip n. 3, 4, 9, 11). . . .113
Insurance Overview............................................................................................. 114
A SURVEY OF ALTERNATIVES............................................................................... 115
Tort Reform, 820-829........................................................................................ 115
Tort Reform: Does it Work?..................................................................................115
Alternative: Sorry Works...................................................................................116
Theoretical Benefits of Sorry Works.................................................................116
10

Some Evidence................................................................................................. 116

Workers Compensation, 829-846 (through n. 8).................................................116
Quid Pro Quo: Benefits for EEs and ERs.........................................................117

INTRODUCTION: THEORY OF TORT LIABILITY

Whats a tort?
A tort is conduct that amounts to a legal wrong that causes
harm for which courts impose civil liability (as opposed to
criminal sanctions)

Whats a legal wrong?

Conduct that falls below some standard (established perhaps by
social norms or for the purpose of furthering some social
interest)

What is tort law?

Tort law is a set of rules that determine when losses should be shifted,
and if so to whom
Why Shift Losses?
Primary purposes
Deterrence: Discourages legal wrongs
Compensation
Secondary purposes
Fairness (corrective justice)
Loss distribution
Promote stability
Civil redress
Gather information
Retribution

When should Unintended Injury Result in Liability?

Hammontree v. Jenner, 1-9
Facts: Jenner (D) suffered seizure in 52 and was diagnosed an epileptic. With
medication seizures were brought under control. Had to report his condition to the
Department of Motor Vehicles on a periodic basis. Since seizures were under
control, was allowed to keep license. In 67, suffered a seizure while driving, lost
11

control of car, hit Hammontrees (Ps) shop striking Mrs. Hammontree. Ps sued
personal injury and property damage. Trial judge instructed jury on negligence
rather than strict liability.

Whats at issue? (What does the appeals court need to decide?)

Did lower court err when it refused to grant pffs motions for summary
judgment and direct verdict?

Did lower court err when it instructed the jury on the rule it should
apply?

Whats Hammontrees argument re: jury instructions?

How

The judge should have instructed the jury that the pff need not
demonstrate fault on the part of the def (fn. 1, p. 4); causation of harm
is all thats required
does the court rule on the appeal?
trial court was correct in rejecting pffs proposed jury instructions
Precedent: fault required
Rationale
Switch would slow things down
If we change the rule, it should be through legislative action

Negligence - Negligence is the failure to use ordinary or reasonable care; the doing
of something which a reasonably prudent person would not do, or the failure to do
something which a reasonably prudent person would do, under the circumstances
similar to those shown by the evidence.

The Litigation Process, 9-17

A. When an injury occurs, the courts are available for the injured party
to redress the injury. The injured party who seeks to recover is
called the plaintiff. P will usually be seeking damages for injuries to
person or property. The person who is sued for the injury is called
the defendant.

1. Evolution of a Lawsuit
a) Pretrial Prior

to the trial, both parties contract

attorneys and try to settle the matter. If it cannot be settled,
the issues must be litigated.
b) Trial To initiate the trial, the injured party files a
complaint. This complaint lists the bases for the claim. The
person who is sued must file an answer. D may make a
motion to dismiss, called a demurrer, on the grounds that
even if the allegations of fact are true, there is no sound legal
theory upon which P is entitled to relief. P must respond with
counter-argument. Any factual disputes must be tried to a
jury for decision. After the jurys verdict is returned, the trial is
over.
12

Burden of proof is on plaintiff. If the jury is in equipoise

cannot decide between the sides they must rule in
favor of D.
c)Post-Trial If either party is dissatisfied with the trials
conclusion, an appeal may be taken. The appellate court,
however, only reviews issues of law. Appellate decisions
explain the proper legal principle and are usually published
2. Damages Categories of personal injury damage for plaintiff are
meant to compensate for both tangible and intangible loss.
a) Tangible loss items such as doctors bills, hospital bills,
loss of income, etc. Intangible loss pain and suffering.
3. Court structure Trial Court Court of Appeals Supreme Court
(except in NY where the structure is Superior Court Appellate
Division Court of Appeals).
Restatements
Unofficial codification of what some people working for the American Law
Institute have decided might be the majority rules
Only law if jurisdiction adopts
Tort law has been restated a number of times:
First restmt in 1934
Second restmt in 1965, 1977, 1979
Third restmt in parts
Liability for Physical and Emotional Harm
Vol 1 (2009)
Vol 2 (2012)
Apportionment of Liability (2000)
Products Liability (1998)
The Structure of Tort Law
Tort law is a combination of judge-made law and legislation (fed and state)

It varies considerably from state to state, is in constant flux and is often

difficult to rationalize

Our focus: argumentation strategies!

Figuring out the rule is merely the starting point

We want to learn how to convince the court that our client wins given
the rule OR

that the rule should be changed (and that our client should win) OR

that the rule does not apply to our case (e.g., its a case of first
impression and our client should win)

13

The Parties and Vicarious Liability

Christensen v. Swenson, 17-24
Facts: Swensen (D), a Burns employee, assigned to guard gate at their plant. While
on 15 minute lunch break, went to pick up food and when returning collided with Ps
motorcycle just outside Burns property. Suit brought against Swensen and Burns on
basis of respondeat superior (doctrine which says employers are vicariously liable
for torts committed by employees while acting within the scope of their
employment (scope is a question of fact that must be submitted to jury unless the
employees activity is so clearly within or outside the scope of employment that
reasonable minds cannot differ. Then the court can decide the issue as a matter of
law). Summary judgment for D on basis that Swenson acting outside scope of
employment.

Why did lower courts rule in favor of def?

Employee (EE) not acting within the scope of employment
Not substantially within in the spatial boundaries of her
employment (not on employers (ERs) property)
On what procedural grounds does the Supreme Court reverse?
Lower court erred when it granted defs motion for SJ
Genuine issues as to material facts
Jury must decide
Does this case suggest that tort law imposes absolute liability on ERs when
their EEs cause harm?
(n. 9, p. 9) No, limitations apply under vicarious liability (aka
respondeat superior); pff required to show more than cause and harm
pff must show that the EE acted negligently
pff must show that the EE acted within the scope of
employment
(n. 7) Strategy Sidenote: Pff can also sue employer for negligent hiring,
negligent supervision, etc.
Whats best?
depends on evidence
negligence on part of ER might be difficult to prove
What does it mean for the EE to have acted within the scope of employment?
Conduct of general kind EE hired to perform (not personal endeavor)
Conduct occurred substantially within the hours and ordinary spatial
boundaries of employment
Conduct motivated, at least in part, by the purpose of serving ERs
interest

Negligence

14

The Negligence Principle

A. Historical Development of Fault Liability

Conventional wisdom

Courts generally applied SL prior to mid-19 th century

They used different categories than we use today

trespass for direct harms (e.g., throwing log that hits pff)

action on the case for indirect harms (e.g., throwing log that
lands on road that later causes pff to trip and fall)

But see Schwartz: its difficult to know exactly what the trends were given the
nature of the documents

Brown v. Kendall, 30-39

Facts: two dogs belonging to P and D fighting; D tried to separate dogs with stick;
while doing so unintentionally hit P in eye w/ stick causing grave damage

n. 2, p. 37-8: According to Shaw, how does the jury instruction misstate the
law?
Instruction says liability should be imposed unless def used
extraordinary care
Appellate court: the law requires only due care
Instruction places BOP on def
App ct: burden on pff
How might we state the rule established in Brown?
If an act is unintentional, the def is liable for harm only if he failed to
exercise ordinary care to guard against the danger
Pff has BOP
How do we determine whether the def exercised ordinary care?
What a prudent and cautious man would do
It depends on the circumstances

BOP (Burden of Proof/Persuasion)

What does it mean to prove something?

Pff must introduce evidence (burden of proof) sufficient to prove
(burden of persuasion) each element of the case by a preponderance
of the evidence (i.e., more likely than not)
Types of evidence
Direct evidence (e.g., an eyewitness)
Circumstantial evidence (i.e., evidence of one fact that permits
an inference of another fact)

15

What if the jury decides the facts can be used equally well to show
def was negligent and to show he was not negligent?
Pff fails to prove negligence by preponderance of the evidence!

B. The Central Concept

Prima Facie Claim of Negligence (and Defenses)

PF claim: Pff must show four elements

Duty of care
Breach of that duty of care (negligence with small n)
Causation
Cause in fact
Proximate cause
Damages (negligence with BIG N)
Def can defend himself by
Arguing that pff has not shown one or more of the four elements,
and/or
Forwarding affirmative defenses (def has BOP)

Richard Epstein, Intentional Harm [tension between negligence and strict liability]
Divergent treatment where D has taken reasonable (but unsuccessful) steps to
avoid harming P. Under negligence, D is not held liable. Question is who should bear
the costs for the injury. Strict liability says that D should not be allowed to force
others to bear his costs because prior to the accident he made a decision that was
rational in the case. As a matter of fairness, D should be required to treat the harms
which he has inflicted upon another as though they were inflicted upon himself.

1. The Standard of Care

Adams v. Bullock, 39-43
Facts: Pff was shocked and burned after a wire he was swinging contacted an
exposed trolley wire (verdict for pff, appeal ct affirms)
Court overturns the jury verdict. How can this be?!?
TC likely denied the defs motion for judgment notwithstanding the
verdict (JNOV)
JNOV: given jurys factual determinations, no reasonable jury could
render such a verdict
High court overturned ruling on motion, which overturns jury verdict
According to Adams, Braun and Greene, what makes a risk unreasonable?
Harm must be foreseeable
Not limited to harm to plaintiff; consider general risk of harm
Foreseeable not to def, but to a reasonable person
Risk of harm must be reducible at a reasonable cost
There was no breach of duty of reasonable care.

16

Duty to exercise all reasonable precautions to minimize resulting perils

(did so).
This accident was extraordinary not within the area of normal
prevision. No special danger at this crossing, no like accidents, no
custom dictating D operate otherwise. Only way to prevent strange
accident like this is to completely dismantle system.
To hold D liable here would be to charge it as an insurer.

Was there a less costly way to reduce the risk than burying the wires
underground??

Yes!! Post warning

Strategy: pff should lean toward relatively low cost ways a RP might
have reduced foreseeable risk (so court doesnt go down wrong road
with respect to possible precautions)

Braun v. Buffalo General Electric Co.

Facts: D strung electric wires above vacant lot, insulation allowed to erode exposing
wires, 15 years later building begun on lot and carpenter killed by contact with
exposed wires
This type of injury was foreseeable in that was foreseeable that
building would go up on this lot potentially exposing the construction
crew. D bound to anticipate what was usual (not what was exceptional)
and act accordingly.
Difference b/w Adams and Braun:
o Adams (injured boy) will argue not distinguishable
o Bullock (def) will argue distinguishable
United States v. Carroll Towing Co., 43-49
Facts: What gives rise to the claim?
Cargo owner (U.S.) and barge owner (Connors) claim that CTs
negligent conduct caused loss of cargo and barge
CT argues that the barge owners agent, the bargee, acted negligently,
and his negligence caused at least part of the harm
Issue: was the bargee contributorily negligent? In other words, did he create
an unreasonable risk when he had a duty not to?
TC says no and CT appeals
Bargee was negligent in being ashore and that negligence contributed to the
loss of the barge.
Barge owners liability depends upon whether his burden of adequate
precaution (B) is less than (<) the probability that the barge will break away
(P) multiplied by the gravity of the resulting injury if it does (L) [the Hand
test].
If B<PL, the barge owner is negligent.
Reasonably foreseeable that some sort of negligence might occur, bargee should
have been present during daylight hours unless had some excuse (look to custom to
see if should have been present at night).

17

What does Hand say about what exactly gets taken into account when
considering each term?
Nothing!
Most jury instructions dont provide guidance on how to quantify the
terms (n. 5, p. 42)
Most judges accept that they cant be quantified
They merely are helpful in determining which factors to take into
account to roughly estimate the relationship between the variables

2. The Reasonable Person

Bethel v. New York City Transit Authority, 49-60
Facts: P hurt on Ds bus when the wheelchair accessible seat collapsed under him. P
said D had constructive of defect

Court rejects the application of a duty of highest care to common carriers

and instead requires the traditional, basic negligence standard of reasonable
care under the circumstances. This standard is an external objective one
defined by the actions of the reasonable person of ordinary prudence a
fictional legal creation.
The court lays out the generally accepted rule of the RP. Is the standard
objective or subjective?
o Objective
What does this mean??
o Defs state of mind is irrelevant
o Consider only what a RP would have perceived/done in the same or
similar circumstances
Generally, do we care about the defendants capacity to avoid unreasonable
risks?
o No! Generally, we ask whether a RP would have had the capacity to
avoid the unreasonable risk
Does this rule comport with our everyday understanding of fault? (n. 4)
o Probably not, we dont normally assign blame in the absence of
capacity
What justifies holding individuals without capacity responsible for damages
they cause?
o Incapacitated person relatively more blameworthy
o Deterrence: encourages family members to take steps to protect
others against harm
o Desire to impose community standard uniformly (legitimates law)
o Might help with integration of the incapacitated
Society less likely to call for institutionalization
But what about family members?
Exceptions?
o Physical impairments judged using (partially) subjective std (e.g.,
reasonable blind person)
18

Miscellaneous Rules

Also partially subjective:

n. 10, p. 57: superior attributes (e.g., RP with superior knowledge of
how dangerous machines work)
n. 11, p. 57: age of risk creator
Reasonable child of same age, intelligence and experience,
unless engaged in dangerous adult activity (e.g., snowmobiling,
speedboating, etc.)
Many jurisdictions follow rule of 7s (n. 11)
Younger than 7: conclusively presumed to be unable to
comprehend risk sufficiently
7 14: rebuttable presumption (unable to comprehend)
Older than 14: usual standard

C. The Role of Judge and Jury

Prima Facie Claim of Negligence
Pff must show four elements
Duty of care (for now, assume a duty exists)
Breach of that duty of care
Def did not act as RP would have in SSC
If pL > B and reasonable precaution not taken, then def
acted negligently (leads to efficient precautions!!)
Analyze general risks of untaken precaution (not only what
might have happened (or did happen) to the pff)
Defs state of mind irrelevant (but defs age, physical
disabilities and expertise count as relevant circumstances)
Causation
Damages

1. In General
Baltimore & Ohio Railroad Co. v. Goodman, 60-61

Facts: P run down at grade crossing. D says Ps own negligence caused

death. P driving truck across crossing, no practical view beyond section
house; was driving slowly; daylight and P familiar w/ crossing
Nothing is suggested by the evidence to relieve Goodman from
responsibility for his own death.
o If a driver cannot be sure otherwise if a train is dangerously near
he must stop and get out of his vehicle to look. It seems that if
he relies upon hearing the train or seeing signal and takes no
further precaution he does so at his own risk.
o Question of duty of care generally left to jury, but
question of standard of conduct is a question for the
court.

19

Whats the general rule regarding the role of the jury in the breach
determination?

o Generally, jury decides whether alleged wrongdoer breached a duty of

care

o But, if the appropriate conduct is clear (i.e., no reasonable jury would

decide otherwise), the judge decides

Pokora (majority rule)

o Cardozo: The jury gets to decide what a RP would have done and
whether alleged wrongdoer acted reasonably
Pokora v. Wabash Railway Co., 62-65
Facts: P crossing railroad tracks no good view of tracks, no bells or whistles, struck
by train

Rejects Goodman statement that driver should get out and look as being
ridiculous (train arrive while getting back in car, no better off). Standards of
prudent conduct should be taken over from the facts of life (no one gets out
and looks).

Andrews v. United Airlines, 65-68: bridge b/w breach and role of custom
Facts: Briefcase fell from overhead compartment and seriously injured P. No one
knows what caused fall. P alleges only that the injury was foreseeable and the
airline didnt prevent it

United is a common carrier and owes both a duty of utmost care and the
vigilance of a very cautious person towards its passengers. Even so, it is not
an insurer of its passengers safety.
In 1987 the airline had received 135 reports of items falling from overhead
bins and as a result decided to add a warning to its arrival announcement
that passengers should use caution in opening bins as items might have
shifted during flight.
o Could have taken further measures.
Question is whether or not having only the warning was sufficient to protect
passengers
o No because United did not demonstrate that retrofitting bins with
netting would be prohibitively expensive or grossly interfere with the
convenience of its passengers. (at least one other airline has retrofitted
with netting.
o Summary judgment not appropriate here b/c jury could have found
either way.

20

Warning seemed to be customary, so why wasnt the warning sufficient to

warrant summary judgment for the airline? (clue: see Trimarco (p. 68))
o Compliance with custom is insufficient to prove reasonable care
o Why?
Custom might be unreasonable
I.e., even if the custom is to take no precaution, it might be that
the benefits of some precaution outweigh the costs

Restatement 2nd 288A: excused violations

An excused violation of a legislative enactment or an administrative regulation is
not negligence. Unless the enactment or regulation is not negligence, its violation is
excused when (a) the violation is reasonable b/c of the actors incapacity; (b) he
neither knows nor should know of the occasion for his compliance; (c) he is unable
after reasonable diligence or care to comply; (d) he is confronted by an emergency
not due to his own misconduct; (e) compliance would involve a greater risk of harm
to the actor or to others.

2. The Role of Custom

General Rules of Custom

Compliance (and non-compliance) with custom generally is treated as mere

evidence for purposes of the negligence determination

Compliance or non-compliance with custom, however, might allow inferences

about whether alleged wrongdoer created an unreasonable risk (e.g., cost of
precaution? foreseeability?)

To be considered a custom, the practice must be widespread and notorious.

Some courts require universal adoption.

Only customs generated by safety concerns count (e.g., custom of having

radios on board tug boats to entertain workers does not count)

Trimarco v. Klein, 68-74

Facts: P injured when fell through glass door that enclosed his tub in Ds apartment
building. Door was ordinary glass rather than tempered glass, meaning it no longer
conformed to safety standards
o

When proof of an accepted practice is accompanied by evidence that

the defendant conformed to it, this may establish due care; conversely,
when proof of a customary action is coupled with a showing that it was
ignored and that this departure was a proximate cause of the accident,
it may serve to establish liability.
Customary practice and usage need not be universal. Is enough that it
be fairly well-defined and in the same calling or business so that the
actor may be charged with knowledge of it or negligent ignorance.

21

The fact that it is customary is not enough though, must also be

reasonable for the jury to decide whether, at the point of time when
the accident occurred, the modest cost and ready availability of safety
glass and the dynamics of the growing custom to use it for shower
enclosures had transformed what once might have been considered a
reasonably safe part of the apartment into one which, in the light of
later developments, no longer could be so regarded.

3. The Role of Statutes

Martin v. Herzog, 74-77
Facts: P and husband driving at night in buggy, struck Ds auto at curve, husband
killed; P says D negligent in straying from side coming around curve; D says P
negligent in not using lights in violation of statute
Once again, the issue is whether the pff breached a duty (i.e., was pff
contributorily negligent?)
On what procedural grounds does the court overturn the lower courts
decision?
Incorrect jury instructions
What jury instruction did the TC give?
Bottom of p. 74: violation of statute is just some evidence of breach of
duty
According to the high court (including Cardozo!), what jury instruction should
have been given?
Violation of safety statute (or administrative regulation) is per se
negligence
Whats per se negligence?
Safety statute violation constitutes breach
i.e., no need for extraneous evidence related to costs and benefits of
taking some precaution
So, if pff shows a safety statute violation, then pff demonstrates breach? End
of story?
No, the court suggests excuses can be offered as a defense
Allowing for excuses makes the per se rule look a lot like a prima
facie rule (i.e., violation triggers rebuttable presumption of breach)
Technically, per se rules do not allow for excuses or defenses of any
kind (but were stuck with the name!)
Restatement 2nd 286: standard of conduct
The court may adopt as the standard of conduct of a reasonable man the
requirements of a legislative enactment or an administrative regulation whose
purpose is found to be exclusively or in part (a) to protect a class of persons which
includes the one whose interest is invaded and (b) to protect the particular interest
which is invaded, and (c) to protect that interest against the kind of harm which has
resulted, and (d) to protect that interest against the particular hazard from which
the harm results.

22

Tedla v. Ellman, 77-83 (through n. 9)

Facts: Two junk collectors, brother and sister, walking down highway. No sidewalk
and couldnt push junk down grass center. Lots of traffic on westbound side so
walked on eastbound side. Struck from behind by Ds car; D argues contributory
negligence b/c Ps in disregard of statute dictating pedestrians should walk against
traffic.

When the legislature has spoken, the standard of care required is no longer
what the reasonably prudent man would do under the circumstances but
what the legislature has commanded.
Court tries to argue this isnt a safety statute but a rule of the road.
o A general rule of conduct and, specifically, a rule of the road may
accomplish its intended purpose under usual conditions, but, when the
unusual occurs, strict observances may defeat the purpose of the rule
and produce catastrophic results.
Court says they cannot assume reasonably that the legislature intended that
a statute enacted for the preservation of life and limb of pedestrians must be
observed when observance would subject them to more imminent danger.

Only Relevant Safety Issues Count

What

makes a statute a relevant safety statute?

Enacted to protect a particular class from a particular kind of harm,
Victim was a member of the protected class, AND
Harm victim suffered was of the type the statute was meant to protect
against
Only (1) criminal statutes and regulations and (2) administrative regulations
apply
i.e., rules the violation of which lead to punishment or fine of some sort
by the state
not statutes granting rights to harmed parties to sue (e.g., if one does
X, then injured party can sue)

Rushink v. Gerstheimer
Facts?
Car owner left keys in ignition and psychiatric patient drove off, got
into an accident and was killed
What statute does patient-victim use to try to establish breach?
Unlawful to leave keys in the ignition of an unattended car
The car owner clearly broke the law. So, she breached her duty, right?
No, court decides that the purpose of statute was to deter theft and
injury to others from operation of motor vehicles by unauthorized
persons, NOT to protect such unauthorized persons from the
consequences of their own actions

23

Breach and Negligence Per se

Q: Assume the court concludes that the statutes sole purpose was to deter
theft in an effort to reduce the price of auto insurance, does the car owner
win on the issue of breach?

No! The victim can argue car owner engaged in common law
negligence (i.e., car owner created an unreasonable risk, i.e. pL > B)

But, victim must prove that the car owner created an unreasonable
risk, which might be more difficult than showing violation of the statute

Pff must show four elements

Duty of care (for now, assume a duty exists)
Breach of that duty of care
Def did not act as RP would have in SSC (e.g., pL>B and def did
not take precaution)
Custom just some evidence (might be helpful in arguing
about cost of precautions or what a reasonable person might
foresee)
Negligence per se: violation of safety statute or
regulation creates rebuttable presumption of breach
Jury gets to decide what a RP would have done and
whether the alleged wrongdoer did what a RP would
have done (unless no reasonable jury would decide
otherwise)
Causation
Damages

D. Proof of Negligence
1.

Real/Direct Evidence (Most convincing forma of evidence)

Real Evidence: Documentary evidence e.g., videotape of an automobile

crash

Direct Evidence: Eyewitness testimony

2.

Circumstantial Evidence

Circumstantial Evidence: Unlike direct/real evidence, circumstantial

evidence that does not conclusively establish some fact; rather, implies
that some fact obtains
a) Mere probability that a particular D (rather than someone else)
breached a duty is insufficient to establish negligence e.g.,
Hypothetical based on Rapid Transit: P is hit by a bus; D's bus company
owns 51% of buses, bus owner B owns 49% of buses D is not liable

24

i.

Justification: worry that P is withholding evidence that could

exonerate D or that P has not conducted a thorough investigation

ii. Exception: Howard: If damages at stake are low (e.g., <$20,000),

mere probability that D was the negligent actor may be sufficient to
sustain liability low damage amount does not warrant coercing
parties into finding more conclusive evidence because finding such
evidence would be too expensive
Constructive Notice
Sufficient conditions exist for the law to assume D had notice (even though
actual notice is absent) circumstantial evidence may be used to
establish (see Negri, Gordon, infra.)
a) Slip & Fall Cases: Constructive notice if the following obtain:
i.

"Defect [is] visible and apparent" (Gordon); and,

ii. Defect existed "for a sufficient length of time prior to the accident
to permit D's employees to discover and remedy it" (Gordon)
b)

Business Practice Rule:

i. Applies to self-service operations where "proprietor can reasonably
anticipate that hazardous conditions [will] regularly arise."; thus, no
need to provide evidence of actual or constructive notice
Examples:
o 1970 Vermont Case (name unknown): D liable for injuries
suffered by P when P slipped on produce even though P was
unable to provide evidence of constructive notice merchant
used a self-service method of selling produce and was thus
obligated to anticipate these conditions.
o

Randall: D not liable for injuries suffered when P slipped on

loose birdseed in an aisle of D's store P provided no
evidence of the packaging of the birdseed, thus failing to
establish "self-service" of birdseed P was required to
provide evidence (e.g., time) of constructive notice

Burden of proof: D has burden of proving that reasonable steps

were taken to avoid foreseeable risk of a self-service operation
"a merchant that uses such a self-service method of sale must
bear the burden of showing what steps were taken to avoid the
foreseeable risk of harm

25

Negri v. Stop and Shop, Inc., 85-86

Facts: Negri (P) slipped and hit her head on the floor in a Stop and Shop (D) grocery
store. There were broken jars of dirty and messy baby food nearby. A witness had
not heard any jars break in that area for approximately twenty minutes before the
accident and the aisle had not been cleaned for one or two hours. The trial court
found in favor of P and D appealed. On appeal, the Appellate Division reversed in
favor of D and P appealed.

Both courts require pff to prove constructive notice. Whats the constructive
notice rule?
Constructive notice shown if defect was visible and apparent and it
existed for a sufficient length of time prior to the accident to permit def
to discover and remedy it
Commonly used in slip-and-fall cases
Why require a showing of constructive notice in these types of cases?
Breach generally requires a showing of foreseeable risk
In Hand formula terms, if risk is unforeseeable p = 0 RP would
perceive that benefit of taking precaution (pL) = 0
Can probability of harm be positive in the mind of reasonable person even if
no actual or constructive notice of particular risk??
Yes, see Kelly (n. 7, p. 89): business practice rule (i.e., the practice,
itself, created an unreasonable risk)

Gordon v. American Museum of Natural History, 86-90

Facts: P fell on Ds front entrance steps; says slipped on white waxy paper from
concession stand and that D negligent insofar as its employees failed to discover
and remove the paper before he fell

No evidence in the case indicating how long the paper could have been on
the steps.
o This absence of evidence offers no way to determine whether Ds
employees should have had constructive notice of its presence.
In the absence of evidence on a material issue, a court should not submit the
case to the jury.
To constitute constructive notice a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit
defendants employees to discover and remedy it. (no constructive notice).
What if we knew that an employee of the museum dropped the paper on the
steps? Would this fact change the analysis?
o

Yes, but pff still must demonstrate a reasonable person would have
foreseen harm

26

Res Ipsa Loquitor (the thing speaks for itself")

Very strong form of circumstantial evidence description of the

cause of an injury serves as a presumption/inference (see Burden Shifting,
infra.) that a duty was breached "[P]resumption of negligence [arises]
from the fact of an accident" (Byrne); "In rare instances an injury may
permit an inference of negligence if coupled with a sufficient showing of
its immediate precipitating cause" (McDougald)

Majority rule: can use res ipsa loquitur and specific negligence
simultaneously

Three elements must be obtained for res ipsa to be shown:

a) "The accident is one that would not, in the ordinary course of events,
have occurred without negligence on the part of the one in control"
(McDougald)
i.

"Common experience" and "general knowledge" are used to

determination whether an accident falls within this category,
although expert testimony and party evidence are also allowed

*0 Often a framing question that boils down to frequency (i.e. cradled spares
rarely fall off tractor trailers, but chains fail all the time McDougald)
*1
Need not preclude other possible explanations

To show breach using the doctrine of RIL, the pff must show
that

A showing

Defs negligence can be inferred from the accident that

caused the injury (i.e., had the def acted reasonably, the
accident (and injury) would not have occurred), AND
The def had exclusive control over the instrumentality of
harm (e.g., the barrel, the chair)
of RIL implies a showing of
Breach of a duty of care, and
but-for causation (in blue above; more later)
BUT, pff must still show legal cause and damages

Byrne v. Boadle, 90-92

Facts: P walking down street when flour barrel rolled out of Ds window striking him
and injuring him. No other evidence except D was a dealer in flour.

What explains the courts decision in Byrne?

Court holds that the accident that caused the injury would not have
occurred in the absence of negligence on the part of the def
The accident, itself, allows us to infer that the def breached his duty of
care
27

The barrel was in the custody of the defendant, and who is responsible
for the acts of his servants who had control of it
Pff not required to produce evidence of specific conduct
if there are any facts inconsistent with negligence it is for the
defendant to prove them.

Larson v. St. Francis Hotel

Ped is struck by a chair, which was thrown out of a window of one of the defs
hotel rooms

Doesnt the thing speak for itself in Larson??

The incident that led to injury is insufficient to infer defendant

was negligent

Restmt 3rd: Liab for Physical Harm 17

(n. 2) The factfinder may infer that the defendant has been negligent when
the accident causing the plaintiff's physical harm is a type of accident that
ordinarily happens as a result of the negligence of a class of actors of which
the defendant is the relevant member.

Comment b of 17 recognizes that some jurisdictions continue to use the 2prong test

the restaters argue that the second element is unnecessary

Connolly v. Nicollet Hotel, 92

Facts
Ped seriously injured when hit by an object thrown from hotel window
Management aware of on-going bad behavior and did little to stop it
Does the court conclude that the def had control over the instrumentality of
harm?
RIL irrelevant to this argument!!
Pff simply argues defs conduct created unreasonable risk
If you can produce evidence sufficient to demonstrate unreasonable
conduct, best to produce it (see Posner, n. 6, p. 89)
McDougald v. Perry, 92-97
Facts: P driving behind D; D crossed railroad tracks, spare tire came loose and
crashed into Ps windshield; tire was secured in cradle w/ chain and nut and bolt; D
said had checked before left but didnt check every link

Pff argues RIL. What are defs arguments about why pff failed to establish
[the] element of exclusive control?
1. Pff did not eliminate with certainty all other possible causes or
inferences
2. pff did not show that no direct evidence was available
Evidentiary standard according to the court?
28

1. Pff required to show only that its more likely than not the accident
would not have occurred in the absence of negligence
2. pff did not have access to sufficient evidence (unlike in Goodyear)
Truck manufactured in 1969 or before; accident occurred in 1990
Would the pff have had a harder time using RIL doctrine to demonstrate
breach if the accident happened six months after the truck was
manufactured?
1. Yes, it might be reasonable to infer that the manufacturers negligence
caused the accident
2. Might be able to bring a RIL claim against manufacturer, but
manufacturer liability is now grounded in products liability doctrine

Ybarra v. Spangard, 99-106

Facts: P entered hospital for appendectomy, woke w/ severe pain between neck and
right shoulder; condition worsened after release to paralysis and atrophy; sues all
doctors and nurses who were involved in his treatment for medical malpractice

Res ipsa may be applied here (departure from rule of exclusive

control).
Without the aid of the doctrine a patient who received permanent
injuries of a serious character, obviously the result of someones
negligence, would be entirely unable to recover unless the doctors and
nurses in attendance voluntarily chose to disclose the identity of the
negligent person and the facts establishing liability.
Would be unreasonable to require P to identify the negligent D, insofar
as he was unconscious throughout the operation.
In a modern hospital a patient is likely to come under the care of a
number of persons in different types of contractual and other
relationships with each other.
Every defendant in whose custody the plaintiff was placed for any
period was bound to exercise ordinary care to see that no unnecessary
harm came to him and each would be liable for failure in this regard.
Where a person is rendered unconscious to receive medical treatment
and an untreated part of his body is injured, those entrusted w/ his
care have the burden of initial explanation.
Holding: despite these weaknesses in the pffs case RIL applies
To break the conspiracy of silence (without the aid of the doctrine, a
patientwould be entirely unable to recover unless the doctors and
nursesvoluntarily chose to disclose.)
This expansion of the doctrine allows the pff to implicate the group even
though he is unable to show exclusive control by a particular defendant
For this reason, the holding has been interpreted quite narrowly (usually
applies only in medical malpractice cases)
RIL as information-forcing device: Encourages defendants to reveal
information to get themselves off the hook

29

Ybarra rules applies to individual Ds

Medical Malpractice
Prima Facie Claim of Evidence
Pff must show four elements
Duty of care (for now, assume a duty exists)
Breach of that duty of care
Def did not act as RP would have in SSC (e.g.,
pL>B)
Custom just some evidence
(except medical malpractice)
Constructive notice rule helps
injured party demonstrate that a
RP would have perceived risk in
cases in which proving actual
knowledge of risk is difficult
Negligence per se
Res ipsa loquitur (injury implies breach;
only when conduct is undiscoverable)
Jury gets to decide what a RP would have done
and whether the alleged wrongdoer did what a
RP would have done
Causation
Damages

Medical Malpractice: General Rules

To demonstrate breach, the pff must show

Customary practice used by physicians in the same or similar
circumstances, AND
The physician departed from the customary practice
Role of expert testimony
Unless the facts are sufficiently straightforward such that a lay person
could readily appraise the defendants conduct (e.g., healthy leg
amputated), expert testimony is required
Expert must testify as to what the relevant medical community
considers to be customary practice (not what the expert would have
done in SSC)
Sidenote: experts also testify as to causation (whether the breach
caused the patients harm)

Sheely v. Memorial Hospital, 106-115

Facts: P gave birth; D performed episiotomy; P developed complications from this
and sued; at trial the judge excluded the testimony of Ps expert witness

30

According to the courts description of Dr. Leslies qualifications, he seems

perfectly qualified to testify in this case. Whats the defs theory regarding
why the pffs expert testimony should be excluded?
Did not have same knowledge and experience
def = second-year family practice resident
witness = long-time, board-certified OB/GYN
Did not practice in same field (expert retired for 20 years)
Did not practice in same community (expert in NY, def in RI)

Rule Progression

Traditional Rule: Strict Locality Rule

Expert must practice in the same field and the same
community
Seemed fair for providers practicing in sparsely
populated areas (e.g., technology with high
fixed costs not available)
We dont want to discourage docs from
practicing in these areas
Second Version: Modified Locality Rule
Expert must practice in the same field and the same or
similar community
We dont want to legitimize lower std of care in
rural areas
Expands the set of potential experts from which
pff could choose (more on this later)
Modern rule: National Rule
Expert must be qualified to testify about what a RD in defs
class would have done in SSC
This reflects the modern breach rule:
A def-doctor is negligent if the provided care
deviated from the degree of care exercised by
reasonably prudent physicians in the same class
to which the def belongs, acting under the SSC
What does it mean to be in the same class?
Expert has sufficient knowledge, skill,
experience, training, and education related to
defs field to know what a RD in the defs SSC
would have done
No need to be currently practicing in same
field and in same or similar locality
Sometimes same class is defined by statute

Rhode Island G.L. 1956 9-19-41

Expert witnesses in malpractice cases
In any legal action based upon a cause of action arising on or after January 1,
1987, for personal injury or wrongful death filed against a licensed physician,
hospital, clinic, health maintenance organization, professional service corporation
31

providing health care services, dentists, or dental hygienist based on professional

negligence, only those persons who by knowledge, skill, experience, training, or
education qualify as experts in the field of the alleged malpractice shall be
permitted to give expert testimony as to the alleged malpractice.
Why drop locality requirement?
Makes it easier for pffs to find experts

Docs often reluctant to testify against other docs in their communities

Avoids establishment of substandard local practices by small groups of docs

Technological advances in information dissemination and nationalization of

training have reduced variation in the practice of medicine

Although we still have significant variation

Expert Testimony in Action

What if pff and def expert witnesses provide conflicting testimony
regarding the customary std?
Question for jury
What if the pffs expert testifies that the customary standard is a
particular procedure the def did not provide, and the defs expert
agrees, but also testifies that the procedure used by the defendant is
based on new technology currently used by only a handful of docs?
multiple schools of thought rule (n. 5, p. 113): no breach if
procedure recognized by reputable and respected,
considerable number of medical experts in the field, even if
a minority
Allows standard to adjust to advances in medicine
Matthies v. Mastromonaco, 119-126
Facts: Elderly P fell in apartment and broke hip; doctor decided for bed rest rather
than surgery b/c though it would be too risky; Ps femur displaced, her right leg
shortened, and never regained ability to walk; sued for malpractice in that D did not
get her consent for foregoing the option of surgery.
As a general rule, physicians must obtain informed consent before
commencing treatment
What standard does the court use for determining what the defendant
should have told the patient?
Objective std: the doc must present facts about medically
reasonable treatments that would be material to a
reasonable patient in the same or similar circumstances
Assume that a reasonable person under the same or similar circumstances
would have chosen surgery if given all the material information. What
outcome here if the def can convince the jury that pff would have submitted
to bed rest even if the doc had informed her of all material facts?

32

No liability because breach did not cause harm

Whats the role of the expert in this case?
To testify only to the standard of care (i.e., reasonable
options), not what information a reasonable patient would
find material
Rationale for requiring no expert testimony re: material
information?
Jury doesnt have any gaps in knowledge that
need to be filled
Jurisdiction split
Roughly half of the states require (by common law or
statute) disclosure of information a reasonable doctor would
disclose (n. 1, p. 124). Is expert testimony required??
expert testimony is required to educate the jury
about what a reasonable doc would disclose
under the same or similar circumstances
The others apply the reasonable patient rule
Rationale grounded in value of patient
autonomy (i.e., physician should not substitute
his preferences and level of risk aversion for the
patients); expert might testify to medically
reasonable treatments but not materiality

Therapeutic Waiver

Certainly some patients will turn down necessary treatment out of fear after
learning about all the material information related to risks? Should we build in
an exception if the doc knows something about the patients personality that
will lead him to reject necessary treatment?

current law generally does not allow such an exception

price we pay for autonomy

Duty
Physical Injuries
Restmt (Third) of Torts: Liab for Physical Harm 7
The general rule: Ordinarily a duty to exercise reasonable care exists with
regard to causing physical harm
triggered if one creates risk (consider entire course of conduct)
duty issue is a question of law (i.e., judge decides with help from
jury on necessary factual determinations)

For reasons of principle or policy, however, courts carve out exceptions

33

Affirmative Obligation to Act

No-affirmative-duty rule

If def did not create risk, then no duty to act affirmatively

Knowledge of dangerous condition generally is insufficient to give rise to a

legal duty of care

Acts of commission v. omission (n. 3, p. 136)

Whats the distinction and how might it be relevant to the duty

question?
if one commits an act of commission (acting badly), then we
should impose duty
if one commits an act of omission (failing to act), then we
should not impose duty
This distinction is sometimes troublesome (e.g., failing to stop at red
light; were you driving badly or did you fail to apply your brakes?)
Modern approach: consider the defs entire course of conduct to
determine whether def created a risk of harm to others (reasonable or
unreasonable!)
If so, then duty of reasonable care

Harper v. Herman, 129-136

Facts: P (20) guest on Ds boat. Was not invited by D, but by another guest on boat.
D was an experienced boat owner and had spent hundreds of hours operating boats
on Lake Minnetonka. P had some experience swimming in lakes, but no formal
diving training. When D stopped the boat and was lowering the boats ladder, P
unexpectedly and without warning dove into the water, severing his spinal cord and
being rendered a C6 quadriplegic

An affirmative duty to act arises only when there is a special relationship

between parties.
o This relationship is generally found only on the part of common
carriers, innkeepers, possessors of land who hold land open to
the public, and persons who have custody of another person
under circumstances in which that other person is deprived of
normal opportunities to protect him.
Here, P was not vulnerable and he had the ability to protect himself.
o D did not hold power over his guests welfare, and the guests did not
expect Ds protection. In the absence of a duty to provide protection,
superior knowledge of a dangerous condition by itself does not
establish liability in negligence.
D owed no affirmative duty of care.
(n. 4, p. 136) Would the court have decided differently if Harper had
announced he was going to dive into the water and Herman had remained
silent?
34

o
o

What
party
o
o

Probably not, no special relationship

Knowing about potential imminent danger is insufficient to trigger duty
of care
if Herman ran a charter boat service and Harper was a member of the
chartering the boat?
Pff: Herman is common carrier; Herman enjoyed economic gains
Def: Harper was not deprived of normal opportunities for selfprotection (see final paragraph of excerpted opinion)
Common carrier is on the list because safety is out of the
passengers control (not true in this case)

Duty Rule

Generally, when it comes to physical harm, a risk creator owes a duty to

act as a RP would in the SSC
Thus, no duty to act affirmatively (i.e., if entire course of conduct
does not create a risk of harm, then no duty)
Two exceptions
#1: Special relationship between pff and def (n. 2a)
#2: Duty of injurer to act reasonably to avoid further harm (n.
2c)

Restatement 2nd 322: Non-negligent injury

If the actor knows or has reason to know that by his conduct, whether tortious or
innocent, he has caused such bodily harm to another as to make him helpless and
in danger of further harm, the actor is under duty to exercise reasonable care to
prevent such further harm
Restatement 2nd 321: Non-negligent creation of risk
D has affirmative duty to remove hazard or to warn others of it, though he was not
liable for creating the hazard (Simonsen v. Thorin).
One who has done an act and subsequently realizes or should realize that it has
created an unreasonable risk of causing physical harm to another, is under a duty to
exercise due care to prevent the risk from occurring even though at the time the
actor had no reason to believe that his act would create such a risk.
Restatement 2nd 323: Negligent performance of undertaking to render
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the others person or
things, is subject to liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking if (a) his failure to exercise
such care increases the risk of such harm or (b) the harm is suffered because of the
others reliance upon the undertaking.

35

Farwell v. Keaton, 136-142

Facts: D and Ps son drinking liquor. Chased girls, P got severely beaten by some
boys; D drove P around for several hours before driving him home and leaving P in
the backseat of the car; he wasnt found until next day; died from beating. Ps father
sued saying D had duty to render aid to P

D and Farwell were companions on a social venture. Because of this common

venture, a special relationship arose between them.
Why is pff suing Siegrist in addition to the attackers?
Might be only solvent defendant
If jury determines Siegrist caused some of pffs injuries and the injuries
are divisible from the attacker-imposed injuries, the attackers might
not be held liable for all the injuries (more on this when we get to
multiple tortfeasors)
Holding
Siegrist had affirmative duty to come to Farwells aid. Why?
He started a rescue
He was in a special relationship with Farwell
If Siegrist had never returned to the scene, but knew that Farwell had been
physically attacked, how would the court have come out on the duty issue?
Special relationship triggers duty to act as RP under SSC
But query whether claim is weaker if we eliminate defs voluntary
rescue attempt
Court doesnt say much about which theory is most powerful or if both
are required or one is sufficient
How about under the Harper courts special relationship rule?
Probably no duty
Harper defines special relationship narrowly
Farwell includes companions on social venture based on
expectations
Courts usually dont go as far as the Farwell court did in expanding the
definition of special relationship. Commonly, only the following
relationships count as special:
Landowners and lawful entrants (e.g., common
carriers, innkeepers)
Custodians and their wards (e.g., wardens and their
prisoners)
School officials and their students
Spouses; parents and children
Employers and employees
Where might this go?: The restmt suggests a move by courts towards
imposing duties for any relationship of dependence or mutual
dependence

36

Restatement 2nd 324: Duty after Initiating Rescue

One who, being under no duty to do so, takes charge of another who is helpless is
subject to liability caused by (a) the failure of the actor to exercise reasonable care
to secure the safety of the other while within the actors charge, or (b) the actors
discontinuing his aid or protection, if by doing so he leaves the other in a worse
position than when the actor took charge of him.
Restatement 326: Rescue
One who intentionally prevents a 3rd person from giving another aid necessary to
prevent physical harm to him, is subject to liability. Barnes v. Dungan duty not to
interfere w/ a rescue.
Restmt (Third): Liab for Physical Harm, 43 (44 in updated version) (n. 2b and n. 4,
p. 141)
if victim reasonably appears to be imperiled and unable to protect himself,
voluntary rescuers owe a duty to exercise reasonable care during the attempt
(b) If the rescuer abandons the rescue, he owes a duty of reasonable care to
refrain from putting the victim in a worse position than he was found and, if
the victim reasonably appears to be in imminent peril of serious bodily harm
at the time of termination, to exercise reasonable care with regard to the peril
before terminating
Ronald M. v. White
If Farwell wins against Siegrist, why do we get summary judgment for
defendants in Ronald M.?

Farwell = coming to aid

Ronald M. = acting to prevent harm in the first instance

Rule: generally one owes no duty to control others

Tarasoff v. Regents of U. of Calif., 151-161

Facts: Ps daughter murdered by a patient of a psychologist employed by the
University of CA. Ps allege that the murderer confided his intent to kill their
daughter to the psychologist 2 months before the killing and that although the killer
was briefly detained, no further action was taken to restrain him or to warn Ps or
their daughter

When prevention of a foreseeable harm requires a defendant to control the

conduct of another person or to warn of such conduct, the common law
imposes liability only if the defendant bears some special relationship to the
dangerous person or to the potential victim. Ds therapist had such a
relationship with the murderer.
Once the existence of a serious danger of violence is determined or should
have been determined, the therapist has a duty to exercise reasonable
37

care to protect the foreseeable victims. If such care includes warning

the victim, the therapist is liable for his failure to do so.
Potential damage to relationship between patient and therapist outweighed
by peril to threatened victim. The containment of such risks lies in the public
interest.
What about the special relationship rule from Harper and Farwell?
Doctor has no relationship with victim
What exception does the court apply here?
Exception #4: Duty established by special relationship between
doctor and injurer
What factors did the court use to determine whether a duty should be
extended to these sorts of cases?
See bottom of p. 151
Was the therapist morally blameworthy?
Should the court include this as a factor?
Does imposing a duty prevent future harm?
On one hand, docs might warn more often
OTOH, patients might disclose less to docs
Strategy: Consider change in behavior of ALL players
Did the court reach the right balance between benefits of warning v.
cost of lost confidentiality?
Huge impact on therapists and their practice
psychology and psychiatry students are taught about its
requirements, even in the few states that have not yet
addressed the question
California legislature responded to the ruling to protect therapists from
exposure to liability where patient has not communicated serious threat
of physical violence against identifiable victim (n. 5, p. 159)
Also provides guidance as to what doc must do to avoid
liability if threat is communicated

Policy Bases for Invoking No Duty

There are specific policy reasons for when courts determine when no duty exists,
thereby withdrawing the possibility of the defendant being held liable for harm,
even if negligent.
Prima Facie Claim Review
Pff must show four elements
o Duty of care (FOR PHYSICAL HARMS)
General rule: those who create risk of physical harm owe
a duty to act as RP in SSC
Corollary: If defs entire course conduct did not create
risk, no duty to act affirmatively
Exceptions
38

Special relationship between pff and def

Duty to act reasonably to avoid further harm
Rescues
Special relationship between def and
victimizer
Exception: no duty for policy reasons. Examples:
o Dont impose a duty that generates possible
crushing liability and negative social
consequences
o Dont impose a duty on those ill-equipped to
satisfy the duty (e.g., social hosts)
o Dont impose a duty to control others, but do
impose duty not to negligently entrust
Exception: no duty for policy reasons
Breach (i.e., negligence)
Causation
Damages
o
o
o
o

Strauss v. Belle Realty Co., 168-176

Facts: P a resident of an apartment building that had its electrical power supplied by
Consolidated Edison (D). Both Ps own apartment and the common areas of the
apartment were supplied power by D. During the power blackout of NYC in 1977, Ps
apartment building lost its power. P fell in a dark stairway and sued D and Belle
Realty Company.
Whats at issue?
Did Con Ed have duty of care?
How does court come out on the issue?
No duty
What rationale does the court use to justify its no duty (i.e., no liability)
holding?
Policy rationale #1: Imposing unlimited liability might
financially crush def, causing widespread negative social
consequences
Same result if the pff had been in his apartment when he was injured?
No, would have been in privity and def would have had duty
of care
Is the privity test normatively appealing??
Any line is arbitrary; court needs some bright line to limit
liability
The contractual relationship to light the common area was with the
apartment owner. D had no contractual relationship with P to light that area.
Under these circumstances, D owes no additional duties outside of those
defined in the contract. Substantial public policy lends aid to Ds claim of no
duty. The blackout was system-wide and had an impact on millions of people.
Although P may be a foreseeable plaintiff, he was not a member of a narrow
class. To allow recovery here would extend liability to millions of people (issue
of unlimited liability). No duty of care owed.

39

Reynolds v. Hicks, 176-182

Facts: Alcohol furnished to minor at wedding; drunk driving accident w/ plaintiff; P
sue the couple whose wedding it was
Pffs settled with underage minor. Why are they going after social hosts?
Thats where the money is!!
Precedents
Burkhart (1988): injured adult guest cant recover from
social host for serving him too much alcohol
Hansen (1992): minor who drowned from intoxication can
recover from a social host who violates a statute
Plaintiff wants court to extend the ruling of Hansen (a minor who is
injured as a result of alcohol intoxication has a cause of action against
the social host who supplied the alcohol) to allow a cause of action for
third persons who are injured by an intoxicated minor against the
social host.
Court declines expansion not warranted by the statute or
Washington case law.
When we consider the entire course of the defs conduct, did they create
risk?
Probably yes, to minor and others minor might injure
So, then why does the court decide that they had no duty to others??
Satisfying the duty of care would be too difficult for social
hosts!
Policy rationale #2: potential defendants ill-equipped to prevent
harm
Public policy reasons to withhold common law liability for social
hosts (cant monitor guests alcohol consumption).
What role does the criminal statute play in the courts decision?
Statute not a safety statute b/c not enacted to
protect third persons (meant to protect minors from
themselves)
Evidence: Parents who give alcohol to children who might
then hurt others are exempt
Alternative interpretation?
Exemption for parents allows introduction to alcohol in
controlled setting (to enhance safety!)
Everyone except parents are punished in an effort to
maximize protection of minors and people they might
injure!!

Punting to Legislature

Another potential policy rationale (#3) for imposing no duty as a matter

of law is that the relevant issues are best left in the hands of the
legislature (the judiciary is ill equipped to impose social host liability)
Query: Is the court correct in arguing that its best to leave
this one to the legislature?

40

Vince v. Wilson, 182-188

Facts: P was injured in an auto accident. P sued Wilson (D), who had provided funds
for her grandnephew, the driver of the car at the time of the accident, to purchase
the vehicle. Later, Ace Auto Sales, Inc. and its president were added as defendants.
D had communicated with Ace and Pres prior to the sale of the vehicle that her
grandnephew had no license and had failed his drivers test. D also knew that he
had abused alcohol and other drugs
Outcome: TC was correct in deciding that def owed duty of care not to
negligently entrust; sent back to lower court
This is sort of like Tarasoff. Is this a stronger or weaker claim?
Perhaps stronger here
Def knew potential injurer clearly high risk
Def helped to get instrument of harm into his
hands
Policy rationale #4 (n. 7, p. 187): Some courts have held that we dont
owe duties to protect others against the actions of third parties

But, courts have created so many exceptions to this rule (see Vince, Tarasoff,
Hansen (cited in Reynolds)), that the exceptions might now be the general
rule

Duties of Landowners, Occupiers, and Family Members

Prima Facie Review
Pff must show four elements
Duty of care (FOR PHYSICAL HARMS)
General rule: those who create risk of physical harm owe a duty to act as
RP in SSC
Corollary: If defs entire course conduct did not create risk, no duty to act
affirmatively
Exceptions
o Special relationship between pff and def
o Duty to act reasonably to avoid further harm
o Rescues
o Special relationship between def and victimizer
Exception: no duty for policy reasons. Examples:
Dont impose a duty that generates possible
crushing liability and negative social
consequences
Dont impose a duty on those ill-equipped to
satisfy the duty (e.g., social hosts)
Dont impose a duty to control others, but do
impose duty not to negligently entrust
Exception: special duties for some categories of defendants (e.g.,
landowners, occupiers, family members)
Breach (i.e., negligence)
41

Causation
Damages

Traditional Scheme
1) Trespassers:
a) Definition: No permission to be on property
b) Landowner's Duty: Duty not to willfully or wantonly injure trespasser
2) Licensees:
a) Definition: Landowner gives permission to be on property, but permission
not extended to the public, not given with expectation of material benefit
b) Landowner's Duty: Duty to protect against known dangers
3) Invitees:
a) Definition: Landowner gives permission to be on property, extends the
permission to the public, and expects material benefit from the visit
c) Landowner's Duty: Duty to protect against known dangers and those that
would be revealed by a reasonable inspection
Carter v. Kinney, 188-194 (skip n. 8, 9)
Facts: Ds hosted bible study at house; snowfall; shoveled snow but unaware that ice
formed overnight; P slipped and broke leg
According to the court, what distinguishes licensees from invitees?
Licensees enter with permission of owner, but are not
invitees (most courts classify social guests as licensees)
Invitee entrance is coupled with material benefit for owner
or result of invitation extended to general public
What turns on the classification?
If licensee then def owes duty to make safe known dangers
If invitee then duty to exercise reasonable care to protect
against both known dangers and those that would be
revealed by inspection
How does the court categorize the pff?
Licensee, so what outcome?
No duty b/c def unaware of danger
Different result if court decided Carter was an invitee?
Duty of care for dangers he should have known aboutlikely
would have survived motion for summary judgment
An invite to visit does not make a visitor an invitee b/c invitation not
tendered w/ any material benefit motive and not extended to public in
general in such a way that would imply a warranty of safety.
Here gave permission to limited class of persons (church
members) and no material benefit.

Standards of Care for Active negligence Cases (as opposed to

condition of premises)(note 7, p. 192)
1. Invitee

Duty to carry on activities with reasonable care, but only

if, he should expect that invitees will not discover or
42

realize the danger, or will fail to protect themselves

against it. (Rstmt 2nd, Section 341A)
2. Trespasser and licensee
Traditional rule: no recovery for active negligence
One version of modern rule:
if licensee, duty to act as rp in ssc if and only
if (a) occupier should expect that the
licensee will not discover danger, and (b)
licensee does not know or have reason to
know of the activities and the risk involved
(Rstmt 2nd, Section 341)
If trespasser: duty not to willfully or wantonly
harm (Rstmt 2nd, Section 333)

Logic of Classifications: invitee v. licensee

Imagine that I invite you all over to my apartment for a party! Would you be
considered invitees or licensees?
Licensees!!
Implication with respect to dangerous conditions in my apartment?
No duty to inspect; I need only take reasonable steps to make
safe known dangers

Heins v. Webster County, 194-201 (skip n. 8, 9)

Facts: P went to hospital, visited daughter but said was also to talk about being
Santa at hospital, on way out of main entrance slipped and injured hip b/c of
snow/ice

Policy reasons against abolishing classifications: predictability of

common law, establishment of a system devoid of standards for
liability, each case would be settled on the facts making it more
difficult for landowners to guard against risks.
Policy reasons for abolishing classifications:
entrants status should not determine the duty that landowner
owes to him or her
would eliminate the complex and unpredictable state of the law
necessitated by the harsh nature of the common-law rules.
Court decided that distinction between licensees and invitees should be
eliminated in favor of a standard of reasonable care for all lawful visitors
(trespassers remain separate category).
Factors to be considered in evaluating whether a landowner or occupier has
exercised reasonable care for the protection of lawful visitors:
(1) the foreseeability or possibility of harm
(2) the purpose for which the entrant entered the premises
(3) the time, manner, and circumstances under which the entrant entered
the premises
(4) the use to which the premises are put or are expected to be put
(5) reasonableness of the inspection, repair or warning
43

(6) the opportunity and ease of repair or correction or giving of the

warning
(7) the burden on the land occupier and/or community in terms of
inconvenience or cost in providing adequate protection.
Modern Reform/Rejection of Traditional Categories
1) Heins: Abandons invitee/licensee distinction, holding that landowner owes
duty of reasonable care (i.e., duty to protect from foreseeable harm) to all
nontrespassers
a) Rationale:
i.

Distinction is contrary to the typical behavior of the reasonable

person ("reasonable people do not vary their conduct
depending on [the distinction]") and to "modern social mores
and humanitarian values" (quoting Rowland)

ii. Eliminate complexity/unpredictability of the traditional rules

2) Some jurisdictions have followed Heins, Rowland, others have retained
traditional classifications split about 50/50 (p. 204)
Rstmt (3rd)
Section 51: Land possessors have duty of reasonable care (regardless
of entrants status unless flagrant trespasser) for
Active conduct
Artificial and natural conditions on the land
Section 52: If entrant is flagrant trespasser, duty not to act in an
intentional, willful or wanton manner
If FT reasonably appears to be imperiled and helpless or
unable to protect himself, then duty to exercise reasonable
care
BUT, still lots of variation across jurisdictions

Criminal Activity (Trespassers)

Posecai v. Wal-Mart Stores, inc
Facts: P, a customer, robbed at gunpoint in Ds parking lot

Although business owners are not the insurers of their patrons safety, they
do have a duty to implement reasonable measures to protect their patrons
from criminal acts when those acts are foreseeable.
o However, there is generally no duty to protect others from the criminal
activities of third persons.
This duty only arises under limited circumstances, when the criminal act in
question was reasonably foreseeable to the owner of the business.

44

To determine if reasonably foreseeable, court applies the balancing test

(seeks to address the interests of both business proprietors and their
customers by balancing the foreseeability of harm against the burden of
imposing a duty to protect against the criminal acts of third persons more or
less the Learned Hand theory).
o P has burden of establishing duty owed by D.
The foreseeability of the crime risk on the defendants property and the
gravity of the risk determine the existence and the extent of the defendants
duty.
o The greater the foreseeability and gravity of the harm, the greater the
duty of care that will be imposed on the business.
The most important factor to be considered in looking at
foreseeability and gravity of harm is the existence, frequency, and
similarity of prior incidents of crime on the premises, but the location, nature
and condition of the property should also be taken into account.

Intrafamily Duties
Broadbent v. Broadbent, 217-225 (skip n. 4, 8)
Facts: D left 2 yr-old son unattended in family pool, drowned, was ultimately
revived, suffering severe brain damage because of lack of oxygen

Exceptions to immunity: (1) if the parent is acting outside of his parental role
and within the scope of his employment; (2) if the parent acts willfully,
wantonly, or recklessly; (3) if the child is emancipated; (4) if the child or
parent dies; (5) if a third party is liable for the tort, then the immunity of the
parent does not protect the third party; (6) and if the tortfeasor is standing in
loco parentis, such as a grandparent, foster parent, or teacher, then the
immunity does not apply.
Public policy reasons in support of immunity:
Suing ones parents would disturb domestic tranquility.
Suing ones parents would create a danger of fraud and
collusion.
Awarding damages to the child would deplete family
resources.
Awarding damages to the child could benefit the parents
if the child dies before the parent and the parent inherits
the childs damages.
Suing ones parents would interfere with parental care,
discipline, and control.
Court believes all of these provide weak justification for
immunity.
Court rejects parental immunity saying parents always owe a duty to their
minor child. The issue of liability should revolve around whether parents have
breached this duty and, if so, whether their breach caused the injury.

45

Court adopts the reasonable parent test, in which a parents conduct is

judged by whether that parents conduct comported with that of a reasonable
and prudent parent in a similar situation.
Chief Justice Feldman in concurring opinion: parents have duty only to
avoid palpably unreasonable conduct

Other Courts
Courts disagree on whether children can sue parents for negligence
Some jurisdictions protect parents against negligence claims by their
children
Others allow for parental immunity with exceptions (see list on p. 219)
Others, like Arizona, have abolished the traditional rule of immunity
and now allow children to sue their parents for negligence
Parental creation of risk can trigger duty
Special relationship can trigger affirmative duty when parent
does not create risk
Courts like Arizona, have abolished the traditional rule of immunity and now
allow children to sue their parents for negligence
Parental creation of risk can trigger duty
Special relationship can trigger affirmative duty when parent
does not create risk
Goller (NY; bottom p. 219): rejects parental duty where the parent is
exercising ordinary daily functions (e.g., preparing meals)
Holodook (NY; bottom p. 221): impossible to construct reasonable parent
given diverse cultures/backgrounds
o Given diverse cultures/backgrounds, is Arizona crazy for trying to
locate the reasonable parent??

Non-Physical Harms
Prima Facie Review
1. Pff must show four elements
1. Duty of care
1. FOR PHYSICAL HARMS
1. General rule: if risk created, duty to act as RP in
SSC
2. Corollary: If no risk created, no duty to act
affirmatively
3. Exceptions (special relationships, avoid future
harm, rescue)
4. Exception: no duty for policy reasons
5. Exception: special duties for some categories of
defendants (land owners, occupiers, family
members)
FOR NON-PHYSICAL HARMS
Emotional harm
Stand alone economic harm
Breach of that duty of care
46

Causation
Damages

Emotional Harm
Physical Injury + Emotional Harm
Courts allow pff to recover for emotional harm caused by defs negligence as
parasitic damages
General rule: once a tort resulting in physical injury is established,
all proximately caused damages are recoverable, including those
related to emotional harm
What happens if pff suffers only emotional harm?...
Emotional Harm

Most jurisdictions limit recovery for stand-alone emotional harm using various
thresholds
Most jurisdictions retained the impact rule until relatively recently
Impact Rule: recovery for emotional harm denied unless physical
impact occurred

Falzone v. Busch, 260-266, (n. 1-5, 9)

Facts: P thought she was going to get hit in her car by Ds negligently driven car
that had just run over her husband; emotional distress resulted in illness and the
need to seek medical attention

Holding by lower court?

Lower court granted SJ for def, holding that recovery for emotional
harm requires the showing of physical impact

What reasons does the court offer to support the traditional rule requiring
physical impact to recover for emotional harm?

Def responsible only for injuries that are the probable and natural
consequence of his negligent act. We do not expect physical harm
to flow from fright.

No previous claims of this type brought, so the bar must have

assumed recovery would be impossible

Floodgates; potential for fraud; causation difficult to determine;

damages are speculative

Rule: Where negligence 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
47

bodily injury or sickness would be regarded as proper elements of damage

had they occurred as a consequence of direct physical injury rather than
fright.
Fright must have been caused by reasonable fear of immediate
personal injury (i.e., bodily injury) (known as zone of danger)
Fright resulted in substantial bodily injury or sickness (physical
manifestation), and
(injuries regarded as proper element of damages had direct
physical injury occurred)

Examples of Thresholds (vary by jurisdiction)

Traditional rule for NIED requires impact
Some jurisdictions counted near-misses as impact
Modern rule: impact not required
BUT
Some courts require physical manifestation (e.g., nausea,
dizziness, loss of appetite, nervous disorder)
Some require expert testimony or medical diagnosis of
emotional distress
Some allow pff to bring any kind of evidence

Metro-North Commuter Railway Company v. Buckley, 268-276

Facts: P worked as a pipefitter for D and for three years was exposed to asbestos.
Went to an asbestos awareness seminar where he learned that asbestos was a
carcinogen. Feared he would develop cancer. P sued under the Federal Employers
Liability Act for negligently inflicted emotional distress

Worker cannot recover unless, and until, he manifests symptoms of a

disease under FELA.
What limitation does the Gottshall court impose on recovery in cases in
which the pff sustained no physical injury?
Either pff sustained physical impact or was placed in immediate
risk of physical harm (in Z of D)
The law permits recovery for emotional injury by those plaintiffs who
sustain a physical impact as a result of a defendants negligent
conduct, or who are placed in immediate risk of physical harm by that
conduct.
Physical impact does not include a simple physical contact w/ a
substance that might cause a disease at a substantially later time
where the substance, or related circumstance, threatens no harm other
than that disease related risk.
Words physical impact dont include all physical contact in
particular dont apply to mere exposure to a substance that
poses some future risk of disease and which contact causes
emotional distress only because worker learns he may become
ill after a substantial period of time.
48

Generally, courts deny recovery to those who are disease and

symptom free (policy reasons: special difficulty judge and jury in
separating valid, important claims from those that are invalid or trivial;
a threat of unlimited and unpredictable liability; and the potential for a
flood of comparatively unimportant or trivial claims).
OTOH, some courts count contact as impact and allow recovery for
emotional distress caused by fear of future harm
E.g., fear of contracting cancer from negligent exposure to
excessive x-rays
Some require evidence that some harm will actually occur in the future
Concurring opinion: exposure = impact, but allow recovery
only if there is some objective evidence of severe emotional
distress.

Portee v. Jaffee, 280-289 (n. 1-6)

Facts: Ps son trapped between doors of elevator and smashed against ceiling for
hours; died during the rescue attempt; after witnessing death, P became depressed
and suicidal

Dillon: mother recovered from negligent driver for emotional harm she
experienced from witnessing the driver hit her daughter
What are the factors the Dillon court used to establish a liability
threshold?
Pff located near scene
Pff contemporaneously observed accident
Pff and victim closely related
How does the Thing court change the Dillon rule (n 4, p. 285)?
Changes factors from guidelines into required elements
Does the Portee court adopt the Dillon/Thing factors?
Yes, but combines a couple and adds to the list (and turns
factors into requirements)
Portee rule: bystander can recover for ED if
defs negligence caused the death or serious physical
injury of another,
pff and injured person were in a marital or intimate
familial relationship
The pff directly observed the death or injury at the
scene (close proximity implied), and
The emotional harm suffered by pff was severe
Dillon: allowing recovery will not open floodgates. We need boundaries,
but we also need to match culpability with exposure to liability
Portee: liability should not be excessive; but the court must protect the
fundamental interests of potential victims (i.e., potential victims
emotional stability)

49

Stand-Alone Economic Harm

Prima Facie Review

Pff must show four elements

Duty of care
FOR PHYSICAL HARMS
FOR NON-PHYSICAL HARMS
Stand alone emotional harm (courts impose a variety of
thresholds)
1. Impact
2. Zone of danger (reasonable) fear of immediate bodily
injury
3. Some physical manifestation of emotional harm
4. Expert testimony or medical diagnosis of emotional
distress
5. Objective evidence of severe emotional harm
6. Distress caused by fear of future harm sometimes
actionable
7. Bystander emotional harm (Portee factors)
8. Death or serious physical injury of another caused by
defs negligence
9. Marital or intimate familial relationship
Observation of death or injury at the scene, AND
10.
Severe emotional distress
Stand alone economic harm
Breach of that duty of care
Causation
Damages

Introduction, 298-299
Is there a legal duty to protect from risk of pure economic harm? (e.g., economic
harm caused by bridge collapse, which led to lost profits of gas station
located near bridge)
Generally, courts limit legal duties owed when it comes to pure economic harm (i.e.,
no physical injury to person or property)
Sidenote: one exception
Some courts impose legal duty to use due care to acquire and
communicate information (i.e., negligent misrepresentation)
Generally, def is liable for limited measure of damages to a limited group
of plaintiffs if her negligent misrepresentation induces justifiable reliance
on the information that leads to economic loss
Some thresholds
Special relationship between pff and def (or some implicit
undertaking to exercise care, e.g., by a lawyer, accountant,
notary, etc.)

50

If def intended to reach or influence a group of persons

distinct from much larger group that might reasonably be
expected to have access to the information, liable only to
group intended to influence
def need not know who, specifically, is a
member of the smaller group
If contract exists, some courts require recovery of pure
economic harm through breach of contract claims
But. some courts allow tort claims by
unsophisticated pffs even when a contact exists

532 Madison Ave. v. Finlandia Center, 310-317

Facts: A section of the south wall of an office tower partially collapsed. 532
Madison Avenue Gourmet Foods, Inc., (Plaintiff) had to remain closed for five
weeks. Plaintiff sued Defendant for public nuisance.

Issue?
o Did defs duty to keep their premises in reasonably safe condition
extend to all reasonably foreseeable victims of pure economic loss?
How does the court come out?
o No recovery for pure economic losses
Rationale?
o Court worries about unlimited liability and unpredictability (need to
draw line somewhere)
What if a business next door was physically damaged by falling debris.
o Under the 532 Madison Ave. rule, would the def be liable for economic
losses resulting from the necessary closing of the business for repairs?
Yes, see n. 1, p. 314
o Same rule as in emotional harm cases; pff can recover economic
losses that are the proximate result of physical injuries to
person or property (e.g., medical expenses, lost wages resulting
from physical injury, etc.)
Okback to facts of the case. The court discusses and then rejects the rule
set out in People Express (pp. 313-14). What does the People Express court
hold?

Was the court correct when it rejected this approach?

Def has duty to protect against pure econ loss if loss is particularly
foreseeable and predictable (e.g., not passersby)

It comes down to balancing administrative difficulties (e.g., flood of

litigation, crushing liability) against desirability of shifting losses of
blameless victims

The People Express approach has been rejected in most jurisdictions

51

General Justifications for Limits

1. If a duty is imposed, liability could be enormous and, more importantly,
unpredictable
might make it difficult for potential defs to insure against these losses
inability to shift risk might discourage participation in valuable
activities
2. While deterrence is diminished, potential def still faces liability when pff
incurs personal or property damage, so we dont lose full deterrent impact of
tort law
3. Loss distribution justification for liability fails
economic losses tend to be distributed already
if def (building owner) is made to pay, expected losses will get spread
over tenants, who will distribute losses to their customers, a group
which may or may not include potential pffs
4. There is no social loss
Private costs occur, but they are in the nature of transfer payments
from disappointed suppliers of goods and services to others who fill in
(assuming short term excess capacity) (see n. 7, p. 317)

Wrongful Birth and Life

As reproductive technology has developed, courts have expanded this

relatively new doctrinal branch

A majority of jurisdictions recognize a cause of action for wrongful birth

(e.g., mother denied chance to end pregnancy) and wrongful conception
(e.g., negligent sterilization)

but not wrongful life claims by children (very few jurisdictions allow)

Because its new, rules vary widely from jurisdiction to jurisdiction, especially
with respect to computation of damages

Emerson v. Magendantz, 319-332

Facts: P went to D to perform a sterilization procedure; performed it but got
pregnant afterwards; baby born w/ congenital defects; P got second sterilization
procedure done after birth and sued

Claim gets in: Doc had duty to protect parents against losses from unwanted
child
Court decides on damages

How does court come out on emotional distress claim for birth of healthy
child?
No recovery (majority rule)
How does the court come out on claim for normal rearing costs?
No recovery
52

How about rearing expenses that go beyond normal expenses?

Recovery granted, minus offsets for economic assistance
If doc on notice (or s/b on notice) that parents reasonably
expect to give birth to disabled child, then pff gets ALL
rearing costs (minus offsets)
How about emotional distress related to having to raise disabled child?
Recovery granted
Medical Malpractice
Wrongful Birth
Wrongful Conception
Pff claims doc
Pff claims doc negligently
Pff claims doc negligence
negligently injured
denied chance to end
led to unwanted
mother or child
pregnancy (negligence
pregnancy (negligence
following conception)
preceding conception)

e.g., doc negligently

performs a prenatal
procedure, injuring
healthy fetus and/or
mother

e.g., doc negligently fails

to diagnose an unhealthy
fetus early enough to give
parents opportunity to
abort

e.g. Emerson (botched

sterilization)

Causation: had doc

acted non-negligently,
child (mother) would
not have been injured

Causation: had doc acted

non-negligently, parents
would not be stuck with
unwanted child (here pff
must show she would
have aborted or avoided
conception)

Causation: had doc not

botched procedure,
unwanted child would not
have been born

Is recovery of emotional harm for wrongful birth of disabled child

consistent with general rules for emotional harm?
Assume no physical harm to mother
Was there an impact?
No, emotional distress not caused by emotional response to
impact
Any evidence of physical manifestation of emotional distress?
No
Was mother within the zone of danger?
No, no apprehension of immediate physical harm to her
person
So, what justifies recovery in jurisdictions that allow it??
The court says psychic harm reasonably could be expected
to befall the ordinarily sensitive person. Is that a reasonable
justification?
What else might justify recovery here when no usual
thresholds for emotional harm have been met?

53

CAUSATION
Prima Facie Review
Pff must show four elements
Duty of care
1. FOR PHYSICAL HARMS
2. FOR NON-PHYSICAL HARMS
3. Emotional harm
4. Stand alone economic harm
Generally courts do not impose duties to protect against pure economic
losses
Exceptions:
1. Duty not to negligently misrepresent information
2. Duty to use due care to avoid wrongful
conception/birth
Breach of that duty of care
Causation
Actual cause (cause in fact or a but-for cause), AND
Proximate cause
Damages

Cause in Fact
Actual Cause: The Rule
Proving but-for causation requires a showing that the pff would not have
been injured had the def not breached his duty
i.e., breach was a necessary condition to trigger the injury
If def had not breached, then injury would not have occurred
Requires demonstration of a counter-factual (what would have happened
had def not breached his duty?)
Easy Cases
Breach was a but-for cause of harm
Def acted negligently, ran a red light and smashed into pffs
car
Breach was not a but-for cause of harm
Def negligently failed to carry a life buoy on his boat
(satisfying all other duties); the pff falls into the water and
immediately sinks below the surface and drowns
What if pff had bobbed up to the surface a few times before
drowning?
Question of fact for jury (had the def not
breached, its more likely than not that the harm
would not have occurred)
In many cases, jurors rely on their own
experiences and knowledge of how the world
works
54

Technique: Downplay other causes

Elderly woman, hurrying down a dark flight of stairs in the Amtrak station to catch
the shortly-departing final train of the day, fell down the stairs and suffered injury
Duty: duty to act reasonably to protect invitees
Breach: Amtrak breached its duty of care by failing to properly light the stairway
(although she might have also argued that the gate agent acted negligently .its a
strategic choicemore later)
Actual cause:
pff: its more likely than not she would not have been injured had Amtrak
installed proper lighting in the stairwell
def: she likely would have fallen even if she had hurried down a well-lit
stairwell
Question of fact
Pff will argue that she (and others) do not frequently fall when they hurry
down well-lit stairs

Basic Doctrine
Stubbs v. City of Rochester, 333-343
Facts: The City of Rochester (D) supplied clean water for drinking, and water known
to be contaminated with sewage for fighting fires. The drinking water became
contaminated with the unclean water through Rochesters negligence. At the same
time the city saw an increase in cases of typhoid fever. Stubbs (P) contracted
typhoid fever and sued D for negligence. The trial court entered a nonsuit for D,
which was affirmed by the Appellate Division, and P appealed.

50

Presents common issues that arise in modern toxic tort cases

1. Was the pff exposed to the agent (contaminated water)?
2. Given exposure, is the agent capable of causing disease
in the human population (i.e., is it a potential cause), and
3. Did the agent cause this pffs disease?
Are there any facts that support the exposure requirement?
Dr. Golar: the source of the contamination [had] been
discovered
How about the capability of the agent to cause the disease?
Dr. Golar: outbreak due to contaminated water
The consumption of contaminated water is a very frequent
cause of typhoid fever. (338)
How about whether exposure caused this pffs disease?
Drs. Dodge, Brady and Culkin testified that pff contracted
disease from drinking the water
Pff testified he drank water only in Rochester
Table of statistics (337) suggests possible link between
water and outbreak
more cases the year pff contracted than in any of the previous nine years?
55

If no contamination, how likely is it that we would observe 50 more

cases?
if the likelihood is very low evidence supports hypothesis that
contamination caused the disease
If likelihood is relatively high evidence suggests large number
due to chance (outliers are possible without contamination, and
one just happened to come up during the year pff contracted
illness)
BUT, maybe contamination is correlated with unrelated increase in
number of houseflies (alternative cause)
180 of 223 cases occurred during contamination period
How many (what percentage of) cases of exposure occur during the
summer/fall months every year?
Its at least plausible that some other cause might produce more cases
during these months
58 residents of the pffs district drank water and contracted the disease
We need to know proportion of total district residents that
contracted the disease relative to the proportion of those
living outside the district to determine whether 58 is
excessive
In addition, its likely that district residents share much in
common besides contaminated water (e.g., many buy milk
from same store); doesnt help us rule out alternative
explanations
We need a control group: a group of residents who are similar in all
important respects to the pffs group except for exposure to contaminant
(or a sophisticated study with proper controls that allow us to rule out
alternative explanations)
None of the evidence is conclusive....only persuasive
Def mentions many other potential causes. When two or more possible
causes exist, what does the pff need to establish according to the court?
Defs negligence was one of the causes with reasonable certainty
Likely meant reasonable probability
Pff does not have to eliminate every conceivable alternative
explanation.likely impossible
See n. 8, p. 364 for interesting discussion of BOP confusion
Most courts require preponderance of evidence
Does the court decide that the defs breach caused the harm?

No.remands to lower court

Inferences deducible from facts justify submitting the question of fact

on causation to a jury

56

Zuchowicz v. United States, 343-355

Facts: Ds agents at naval hospital negligently directed P to ingest 1600 milligrams
of Danocrine double the maximum dosage. She took this dosage for 1 month after
which time her dosage was reduced to the maximum for over two months. 4
months after stopping she was diagnosed with primary pulmonary hypertension
(PPH) a rare and fatal disease. While on the waiting list for a lung transplant
caused by PPH she became pregnant, which made her ineligible for treatment and
exacerbated the condition. One month after giving birth she died

Why wasnt the pffs demonstration that Danocrine caused the injury
sufficient to show but-for causation??

Must establish link between breach and injury

More strategy: need to balance difficulty of demonstrating breach with

difficulty of demonstrating but-for causation
Whats the rule set out in Daubert?
Scientific evidence admissible only if the expert testimony
rests on a reliable foundation
Daubert factors (guidelines)
Theory can be, and has been, tested using scientific method
Theory or technique has been subjected to peer review and
publication
We are sufficiently confident of conclusions drawn from
scientific studies
Theory is generally accepted
Most easily satisfied when expert testifies about epidemiological studies,
etc. (absent in this case)
According to Daubert, what arguments might the def make against allowing
the experts to testify that a causal link existed between the overdose and the
injury?

Dr. Matthey doesnt go beyond the claim of a temporal relationship

(and ruling out some alternative causes). Clearly, given the rarity of
both the illness and overdoses, there is no demonstrated
association between the two

Dr. Tackett offers only conjectural evidence, linking the two using
only a biologic mechanism theory (i.e., hormones caused dysfunction
and imbalance)

Despite this, court admits evidence

Substantial Factor Test

Court mentions substantial factor test

57

Courts used to use substantial factor to encompass but-for cause

and proximate cause

Some courts use substantial factor in lieu of but-for test

n. 5, p. 351: trend away from SF test and the terminology

Sometimes it comes in handy (e.g., multiple sufficient causes). E.g., why

not just apply but-for test in cases involving two negligently set fires?

Had either party acted non-negligently, the house still would have
been destroyed!

Pff loses against both negligent defs, but only because there were two
of them

The majority of jurisdictions require showing only but-for cause and proximate
cause

Some jurisdictions replace but-for cause requirement with the

substantial factor test in awkward cases

Matsuyama v. Birnbaum, 355-364

Facts: Birnbaum (defendant) was Matsuyamas physician from 1995 to 1999.
Birnbaum was aware that Matsuyama had suffered gastric pain since 1988, and
carried several risk factors for gastric cancer, but did not order any tests. When
Matsuyama later developed moles on his body and reported severe stomach pain,
Birnbaum ordered a test for a bacteria associated with gastric cancer. The test was
positive, but Birnbaum failed to order further tests to determine whether
Matsuyama had gastric cancer. In May 1999, when Matsuyama complained of
severe gastric symptoms, Birnbaum ordered tests that confirmed a cancerous mass
in Matsuyamas stomach, from which he died in October of 1999.

Matsuyamas estate (plaintiff) brought suit against Birnbaum.

Whats at issue?
Can pff recover for loss of a chance when chance of survival is less than even
in the absence of negligence?
At trial, an expert testified that Birnbaum breached the applicable standard of
care in diagnosing and treating Matsuyama, and that as a result Matsuyama
lost the chance to have his cancer diagnosed and treated at a point when it
may have been curable.
Outcome of but-for test given injury is death?
o not more likely than not that he would not have diedonly 37.5%
chance of survival in the absence of negligence!
How does this court distinguish this type of case from other cases?
o Causation is not determined differently
o Injury is not death but rather loss of a chance of survival
What must pff show?
58

More likely than not that negligence caused reduction of the chance of
a favorable outcome
Damages calculation?
o $875,000 (full wrongful death damages) x 37.5% (lost chance of
survival) = $328,125
The jury found Birnbaum negligent, and awarded Matsuyamas estate loss-ofchance damages. The jury calculated the damages as the percentage of full
wrongful death damages
corresponding to Matsuyamas chance of survival in 1995 (37.5 percent of
$875,000), along with damages for pain and suffering.
o

Loss of Chance

Damages are generally awarded proportionally

E.g., if pff had 40% chance of recovery and breach reduced
it to 10%, pff awarded 30% of the value of the full damages
(e.g., lost life or limb)
What if ex ante chance was greater than 50% but less than
100%?
Some award 100% of damages
Some discount as above
Some courts reject these sorts of claims altogether
n. 5: Most courts require that the disease process, in fact,
results in physical harm (increased chance of future harm is
insufficient)
Generally applied only in medical malpractice claims

Multiple Defendants: Joint & Several and Proportionate Liability

Prima Facie Review

Pff must show four elements

Duty of care

Breach of that duty of care

Causation

Actual cause (cause in fact or a but-for cause), AND

Had the def acted non-negligently, the injury would not

have occurred

Pff needs to convince jury of counterfactual (what

would have happened in absence of negligence)

Pff will try to down play alternative causes; def will

emphasize them
59

Correlation does not imply causation!!

Some jurisdictions allow claims for loss of a chance

Causation same as other claims but injury

characterized as loss of some chance of survival
(whole or partial)

dmgs = lost probability of recovery x full damages

Restricted to med mal cases

Proximate cause

Damages

Recall Stubbs
Even if the City of Rochester created an unreasonable risk of harm, if Stubbs had
contracted typhoid fever from house fliesso that even if the City had acted
reasonably, harm would have occurredStubbs loss would not be shifted to the
City.
Multiple Causes
1. Pffs house is burned down by two independent negligently-set fires that
arrive at the house at the same time
Multiple sufficient causes (both negligent). What happens when we
apply the but-for test?
But-for cause test doesnt work well
Courts resort to substantial factor test (i.e., if defs negligence
was a substantial factor in causing the pffs harm, then defs
negligence is considered an actual cause of the injury)
Iowa jury instruction: Substantial means the partys conduct
has such an effect in producing damages as to lead a reasonable
person to regard it as a cause
Damages allocated between tortfeasors (much more on this later)
2. Assume the same facts, except a lightening strike caused the second fire
Multiple sufficient causes with some non-negligent causes. What
happens when we apply the but-for test?
But-for cause test doesnt work well
Jurisdictions differ
Some impose liability on the negligent party despite failure to
show but-for causation (for policy reasons or substantial factor
test)
Others do not (pffs house would have been destroyed by the
non-negligently set fire in any event)
Normative inquiry: does imposing liability lead to efficient precautions?
60

Might lead to over-deterrence; were better off if risk creators

account for the likelihood that harm will occur regardless of their
precautions
3. Assume the same fire facts as 1, except one negligently-set fire arrives first,
burns the house down completely and then the other negligently-set fire
passes through one minute later
Multiple sequential and sufficient causes (first fire often referred to as a
preemptive cause)
But-for cause test?
Still doesnt work well
So should we hold either negligent fire-starter liable?
Most courts hold liable only the starter of the fire that arrives first
(usually based on substantial factor)
Rationale: nothing remained to be harmed by the second fire
The second fire risked harm, but simply was not the cause of the
harm, no matter how the concept is defined
The second fire setter just gets lucky in this case
Damages given in multiple sequential and sufficient causes
Whats the best argument for the starter of the first fire when it comes to
damages (assume the court aims to set damages to make the pff whole)?

House had no (or very little) value when it was destroyed by the first fire
Damages = loss of value of the house for the few minutes it would have
remained standing before the second fire destroyed it

Multiple Defendants
Introduction to Joint and Several Liability, 364-367
Summers v. Tice, 367-372
Facts: Ds hunting w/ P. Negligently shot in Ps direction, hitting him in eye w/shot.
Both shot at same time but only 1 person fired shot that hit; impossible to tell who
b/c same gauge shotgun and same size shot

Outcome of but-for test?

Neither deemed actual cause
No way to know which bullet hit pff then equally likely that
either of the bullets hit pff then pff cant meet BOP (i.e.,
more likely than not that defs negligence was a but-for
cause)
Were the defs acting in concert?
Not really.court says it would strain the concept
How does the lower court rule?

61

Imposes liability on both negligent defendants, each of

whom is equally likely to have harmed the pff (i.e.,
alternative liability)
Essentially, this is a burden shifting rule: each def can get off
the hook by showing that he was not a but-for cause
Supreme Court agrees! Rationale?
Defs more likely to have information (think Ybarra)
Otherwise we would exonerate both even though both were
negligent and injury resulted from negligence
Does this make sense??
No strong evidence that shooters had more info (Tice argues
Simonson made admission to 3rd party, but how could
Simonson have known??)
We require showing of both breach and causation by a
preponderance of the evidence for good reason. Why stray
here?
Traditionally, exception applied only if 2 defs (50% likelihood is very
close to just over 50%)
3rd restmt suggests some courts have applied in cases
involving 3 or more defs (makes rule harder to justify on
courts grounds)
Garcia (n. 3, p. 370: defective saber): how different?
Only one possible causer acted negligently
Holding: no liability

Hymowitz v. Eli Lilly & Co., 372-384 (skip n. 7-8)

Facts: DES was marketed to prevent miscarriages; FDA banned it when studies
showed DES caused vaginal cancer and precancerous vaginal or cervical growth in
offspring of mothers who took the drug; Ps seeking relief in court faced two barriers
to recovery: (1) identification of the particular manufacturer of the drug, and (2)
claims barred by the statute of limitations before the injury was discovered

Note: no issue of agent causation--i.e., in utero DES exposure clearly caused

disease (signature disease)
Issue: Can pff recover when identification of the producer of the specific drug
that caused injury is impossible?
o Sindell (CA) decided nine years prior. Why is NY so late to arrive on the
scene?
NYs exposure statute of limitations effectively barred all claims until the rule
was modified to include an injury discovery trigger
Sindell was first to impose market share liability. It held defs liable (even
though pff cant show actual cause) on a market share basis so long as the
defs:
o Produced a common product, and
o Represented a substantial share of the market
Sindell left questions unanswered
o Can defs representing less than 100% of the market be held
responsible for 100% of the damages?
62

o Are defs jointly and severally liable?

o Is the relevant market national or some smaller unit?
Brown resolves these questions (and Hymowitz follows)
o Liability limited to market share (pff does not recover 100% of
damages)
o Liability is several only
o Relevant market is national market
Brown does not address possible defenses. How does Hymowitz handle this?
o

NY doesnt recognize a defense even if def can conclusively establish it

didnt manufacture the DES taken by pff

In essence, this rule establishes a compensation fund to which all

manufacturers must contribute in expectation
Rationale?
o Matches responsibility with risk-generating activity level
Does that seem right??
o If just one state does not follow, we wont get accurate matching
What if pff can identify the manufacturer that produced the pills she
consumed?
o Regular ole products liability claim
o Must show that the defect was a but-for cause of the harm
o

63

Restmt 3rd (Allocation): Factors for Assigning Shares of Responsibility for

Indivisible Injuries
1. Nature of partys risk-creating conduct
Was party aware of risks? Indifferent toward them? Acting with intent?
Unreasonableness of conduct
Extent to which conduct failed to meet the legal standard
Circumstances surrounding conduct
Defs abilities and disabilities
2. Strength of causal connection between the defs risk creation and the harm
(including timing)

Proximate Cause
Prima Facie Review
Pff must show four elements
Duty of care
Breach of that duty of care
Causation
Actual cause (cause in fact or a but-for cause), AND
64

Had the def acted non-negligently, the injury would not

have occurred
Some jurisdictions allow claims for loss of a chance
Difficult cases (where but-for test disadvantages pff)
Multiple simultaneous sufficient causes (substantial
factor test)
Multiple sequential sufficient causes (first to
damage is liable)
Indeterminate causes (Summers; alternative liab)
Market share liab (Hymowitz)
Who pays and how much? Joint and several liab;
proportionate liab
Proximate cause
Damages

Proximate Cause: The Basics

This is not about causation
Used to limit the scope of the defs liability (similar to the duty element)
Modern rule formulated in one of two ways:
Foreseeability test: pffs harm was a reasonably foreseeable
result of the negligent behavior (i.e., ppffs harm > 0)
e.g., def negligently runs red light and hits pffs
car
Harm-within-the-risk test: pffs harm is included on the list of
potential harms that characterize the defs behavior as
negligent (i.e., ppffs harm > 0!!!)
Question of fact for the jury; often judge decides as matter of law

Restatement (Third) 29: Limitations on Liability for Tortious Conduct

An actor's liability is limited to those physical harms that result from
the risks that made the actor's conduct tortious

The term proximate cause is a poor one to describe the rules limits
on the scope of liability

Employing the term proximate cause implies that there is but

one causethe cause nearest in time or geography to the
plaintiff's harmand that factual causation bears on the issue of
scope of liability

The term causation should not be employed when explaining this

concept to a jury

65

1. Unexpected Harm
Benn v. Thomas, 393-399
Facts: P was injured and died after Ds vehicle rear-ended the van in which decedent
was a passenger. P had a history of coronary disease and insulin-dependent
diabetes, and had previously suffered from a heart-attack and was considered at
risk of having another
Was any harm foreseeable by a reasonable person??
Yes, just not the full extent of the harm
THIN SKULL RULE (def takes his victims as he finds them): When an
actor's tortious conduct causes physical harm to a person that, because
of preexisting physical or mental condition or other characteristics of the
person, is of a greater magnitude or different type than might
reasonably be expected, the actor is nevertheless subject to
liability for all such harm to the person
Every jurisdiction has adopted this rule!
Some jurisdictions also apply in property damage cases

Silverstein v. United States

Facts

United Airlines ran the only security checkpoint in Portland, Maine

Two 9/11 hijackers took United flight from Portland to Boston, where
they connected to the AA flight that flew into 1 WTC

Debris from that impact damaged tower 7, which collapsed several

hours later

On proximate cause, the fed judge decided: It was not within Uniteds
range of apprehension that terrorists would slip through the security
screening checkpoint [in Portland], fly to Logan, proceed through another air
carriers security screening and board that air carriers flight, hijack the flight
and crash it into 1 World Trade Center, let alone that 1 World Trade Center
would therefore collapse and cause Tower 7 to collapse.

Polemis, 399-401
Facts: The owners of a vessel chartered its use to the Appellants for the purposes of
carrying, among other things, petrol to Casablanca. While unloading the cargo in
Casablanca, a wooden plank fell into the hold containing the petrol and caused an
explosion. The fire completely destroyed the vessel. The owners, charging the
chatterers with negligence, claimed the value of the vessel from the charterers. The
charterers responded that the fire was a remote consequence of their actions, so
they are not responsible. The case was referred to arbitration and the arbitrators
found that the fire was caused when the wooden plank hit metal and caused a
spark. The arbitrators agreed with the charterers that the spark was an unforeseen
66

consequence of the original negligence and therefore the destruction of the vessel
was a remote consequence. The only damage the charterers should be liable for is
the approximate damage done to the vessel by the falling wooden plank, not the
damage done by the fire. The owners sought review.

Issue: Whether the charterers negligence was a proximate cause of the fire.
Synopsis of Rule of Law. The exact way in which damage or injury results
need not be foreseen for liability to attach, the fact that the negligent act
caused the result is enough. Liability for unforeseeable harm, so long as
harm was direct consequence of defs negligence
Overturned by Wagon Mound

The Wagon Mound, 402-408 (skip n. 10-11)

Facts: Ds ship negligently discharged oil which spread across the harbor and under
Ps wharf. Ps workers were welding on the wharf. Molten metal from welding set fire
to oil floating on the water; ensuing fire damages the wharf and two ships docked
alongside
Issue: Is a tortfeasor liable for all damage, even that which is unforeseeable, directly
resulting from a negligent act?
Holding
No. Court rejects Polemis rule, and holds that tortfeasors are liable only
for foreseeable types of harm
Modern rule: an actors liability is limited to those physical harms that result
from the risks that made the actors conduct tortious
More specifically, a RP in the defs position must have been able to
foresee at the time of the negligent act that harm of the sort
suffered by pff could result from the negligent act
Focus on specific risks created, not just harm
If I negligently fail to warn you of the deadly poison in my lake and you
go swimming and drown, not from the poison, but from your inability to
swim, no proximate cause (even though type of harm is the same:
death)
Death by poison was foreseeable, not death by drowning

2. Superseding/Intervening Causes

Generally, unforeseeable intervening causes get the def off the hook

E.g., Gibson v. Garcia (p. 408): negligent driver knocks negligently

maintained utility pole onto pff

Court holds that the intervening factor (car hitting pole) does not
get the utility company off the hook (the intervening cause was
foreseeable!!)

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Doe v. Manheimer, 408-418

Facts: P was working as a meter reader and was raped on property owned by D.
There were overgrown bushes and tall grass that shielded the area from view. The
neighborhood was a high crime area. Another rape had occurred about three
months earlier and Ds mother had been robbed 14 months earlier near Ds
property. Ps expert claimed that the physical configuration of the specific site
increased the risk of violent crimes between strangers by creating a protective zone
that reduced visibility and thus created opportunities for crime to occur.

Issue: Is D landowner liable for a rape that took place on his property behind
overgrowth that shielded the view from the street?
What happens at trial?
o Jury returns verdict for pff
o TC overturns
Duty (created risk by placing shrubsan active choice)
Breach (RP in SSC would not have positioned scrubs there)
o But for the breach, assault would not have occurred on defs property
(n. 2: does this demonstrate but-for causation??)
o BUT not proximate cause (perp caused injury; shrubs not substantial
factor)
What does the TC mean by substantial factor?
o Proximate cause! (harm within the risk)
Whats at issue on appeal?
o Did TC correctly decide no proximate cause as a matter of law?
What liability-limiting rule is adopted in this caseforeseeability or harmwithin-the-risk?
o Both! (different versions of same rule)
o Despite the presence of an intervening cause, the Doe court employs
the same proximate cause test the Wagon Mound court uses
role of the intervening actor is SIMPLY to frame the question of
whether the defs negligence included failing to take reasonable
care to protect against risk of assault by 3d party
i,e., was assault by 3d party within the scope of the risk created
by the negligent conduct?
How does the court come out on the issue of proximate cause?
o LC decided correctly on issue of proximate cause
o negligence was not proximate cause of injury
o Assault by 3d party is not within the scope of the risk created by failing
to maintain shrubs
What about expert testimony??
o They are not reasonable people!
o A RP with defs experience would NOT have foreseen
What about previous robbery and rape?
o A RP, knowing that they both happened indoors, would not envision a
crime happening outdoors behind his shrubs
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3. Unexpected Victim
Palsgraf v. Long Island Railroad Co., 418-430
Facts: Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform
when two men ran to catch a train. The second man was carrying a small package
containing fireworks. He was helped aboard the train by one guard on the platform
and another on the train. The man dropped the package which exploded when it hit
the tracks. The shock of the explosion caused scales at the other end of the
platform many feet away to fall, striking and injuring Palsgraf. Palsgraf brought a
personal injury lawsuit against Long Island Railroad and the railroad appealed the
courts judgment in favor of Palsgraf. The judgment was affirmed on appeal and
Long Island Railroad appealed.

Cardozo v. Andrews
Views?
What factors does Andrews point to?
To recover under negligence principles, plaintiff must show that
1) the defendant was under a duty to act as a reasonable person
2) defendant failed in that duty
3) defendants conduct was the proximate cause of plaintiffs
injury.
Modern rules:
Andrews view on duty has prevailed (duty is not analyzed in
relation to the pff)
Cardozos emphasis on foreseeability of pffs injury wins when it
comes to proximate cause (the Andrews factors have faded into
the background)
Under modern tort law, the pff must show that she was a reasonably
foreseeable victim
How might these facts be analyzed under the harm-within-the-risk test?

RP would not foresee that negligence in helping passenger onto train

would possibly result in the pffs harm

The pffs harm is not one of the foreseeable saved harms that enters
the BpL calculus of the RP in SSC

Andrews, however, suggests that a reasonable jury might conclude

that injury to someone standing on platform was reasonably
foreseeable

Proximate Cause Review

What must be foreseeable??

Pff must be foreseeable victim
69

Harm must be of a type that foreseeably results from

unreasonable creation of risk
If some harm is foreseeable, then def is liable for the full
extent of the harm (even if the full extent is unforeseeable)
Intervening Causes
Generally, unforeseeable intervening causes get the def off the hook

NEGLIGENCE DEFENSES
Prima Facie Overview

Pff must show four elements

Duty of care
Breach of that duty of care
Causation
Actual cause and
Proximate cause
Doesnt involve causation, but limits the scope of
liability
Foreseeability test and harm-within-the-risk test
(equivalent)
What must be foreseeable? (pff and type of harm
must be foreseeable, extent of harm need not be if
some harm was foreseeable)
Intervening causes require same analysis (i.e., was
intervening cause foreseeable to a reasonable
person?)
Damages (skip for now)
Once pff establishes PF claim, def can raise affirmative defenses
Pffs fault
Assumption of risk

The Plaintiffs Fault

Contributory v. Comparative Negligence
Contributory negligence: if the def can make out a PF claim of
Negligence against the pff, the pff cannot recover damages in any
amount from def
Comparative negligence: if the def can make out a PF claim of
Negligence against the pff, the jury is asked to allocate damages
between them
Rstmt (Third): pffs negligence is defined by the applicable standard for
a defs negligence (BOP on def)

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Contributory Negligence, 433-438

Trend/Demise of Contributory Negligence
The inability to reach satisfying outcomes using contributory
negligences all-or-nothing approach has led to its (almost complete)
demise
Only DC, VA, AL, NC and MD still use it (IN for med mal cases
only)
These jurisdictions often employ work-arounds
Statute meant to protect victim against his own
predicted negligence (e.g., statute intended to
protect school children from harm when crossing
street without due care)
Pffs negligence irrelevant if def was reckless,
etc.
Last clear chance (shift loss despite pffs
negligence if def had last clear chance to reduce
risk of harm to pff)
Refusal to impute negligence of other (e.g., auto
renter) to pff (e.g., auto rental company)
Or juries reduce damages instead of denying recovery

Comparative Negligence, 438-452

Flavors of allocation under comparative negligence (aka comparative
fault)
Pure comparative fault
Pffs award reduced by the portion of the damages
attributed to the pffs fault
Modified comparative fault
If the pffs proportion of fault is greater than (as great
as in some jurisdictions) the defs proportion of fault, then
pff is completely barred from recovering. Otherwise, award
is reduced by the portion of the injury attributed to the pffs
fault
n. 14, p. 449: outcomes might differ depending on whether
juries are informed of how its apportionment determination
impacts recovery
States disagree about whether to inform jury
about how their allocation decision will translate
into awards
Comparative and J&S Liability
When states make the switch from contributory to comparative negligence,
they usually drop J&S liability

Each def is required to pay only the portion of total damages related to
the share of his fault (or responsibility) (i.e., proportionate liability)

71

UCFA
Section 2(d): Ds share gets reallocated among A, B and C:
A = 50% = 40 / (40+30+10)
B and C portions calculated similarly

IOWA
Section 668.4: no J&S liability
B PAYS 12,000 AND C PAYS 4,000
A FACES FULL RISK OF INSOLVENCY

B PAYS $12,000 + [30/80 (i.e., 37.5%) * (8,000)] = $15,000

C PAYS $4,000 + [10/80 (i.e., 12.5%) * (8,000)] = $5,000
Pff must collect from each defendant and, thus, bear the risk
TOTAL OF $20,000
be of
judgment
Main point: A bears somemight
of the risk
insolvencyproof
(again, Section 2c allows for
J&S liability, so pff is allowed to collect from B and/or C, but now up to total of
$20,000 rather thanIn
$24,000).
some jurisdictions that have switched to proportionate liability, if
D subject to contribution if he obtains assets.

that some
pff is not

at fault then multiple defs are held J&S liable

In many jurisdictions, the rules are set by statute

Examples of Allocation Practices

Print out of slides 7, 9, 11, 13, 15
Q: A suffers $50,000 in damages and has claims against B and C. If A settles with B
for $10,000, can B sue C for contribution under the UCFA? (YES OR NO)
A: Section 4(b) applies
If the settlement with B extinguishes liability of C (i.e., A promises not to
go after C) and the amount paid in settlement is deemed reasonable,
then YES
Litigation issues might arise as to whether the settlement was
reasonable, and the appropriate allocation of fault among the parties to
the contribution action (i.e., B v. C).
Usually, however, a settlement will include a joint tortfeasor release,
which settles only the pffs claim against the settling def and leaves the
pff free to pursue the other joint tortfeasors
n. 12, p. 449: A suffers $100,000 in damages and has claims against B and C (both
45% at fault). A settles with B for $25,000, the maximum A expects to get from B.
Suppose Cs liability was not extinguished by the settlement, and A obtains a
judgment against C. Under the UCFA, should A have settled with B?
Section 2(a)(2) says apportion to persons released under Section 6. So,
Bs equitable share is allocated to B ($45,000). $10,000 is allocated
to A, and $45,000 is allocated to C.
Bad strategy for A!! Why? If A sued both B and C, he could collect in
any way he pleases! (J&S) C would have to pay the rest of Bs share.
This provision discourages settlement in these sorts of cases.
What if were in California (note 12(c)). Assume CA does not allow allocation of fault
to settling parties.
Under the pro tanto rule, A allocated 10,000 and C gets stuck with the
rest minus the amount paid by B (90,000 25,000 = $65,000). In effect,
A enjoys the benefits of J&S liability if he settles with B.
This provision encourages settlement in these sorts of cases AND no need to
determine Bs comparative fault

Avoidable Consequences (aka duty to mitigate), 455-458

General rule: Recovery is reduced to the extent pff failed to exercise due care
to mitigate the harm caused by the defs breach
72

The hard part is figuring out how to apportion damages when the pff
breaches the duty to mitigate damages

How to Apportion Damages

Traditional Apportionment Rules

Avoidable consequences doctrine was applied when the pffs breach
of the duty to mitigate damages was considered to be the sole cause of
a portion of the damages.
E.g., if the pff, initially injured by the defs negligence,
negligently failed to comply with prescribed medical
treatment and that failure resulted in a long hospital stay,
the pff could not recover the costs of the hospital stay
Defs negligence was a but-for cause of the hospital stay,
but courts held that the defs negligence did not proximately
cause the hospital stay
Rationale: a RP would expect an injured person to comply
with prescribed medical treatment, therefore the pffs
negligence was considered an unforeseeable intervening
cause
This treatment was consistent with the courts propensity to
craft all-or-nothing type rules
Generally, under contributory negligence, failure to mitigate
anticipated avoidable consequences (e.g., by negligently failing to
wear a seat belt or motorcycle helmet), did not result in a complete bar
to recovery because that negligence had nothing to do with causing the
event
The Modern Rule of Comparative Negligence
Restatement of apportionment: for avoidable consequences use the
standard apportionment rules
If injuries are divisible, then apportion based on causation
If not, then apportion based on fault (or responsibility)
e.g., if the def negligently drives through a red light and hits the pffs
car causing injuries

73

def will be held solely liable for the cost of the ambulance and
the initial surgery
but costs related to extra care necessary due to pffs failure to
follow the prescribed physical therapy protocol are divided
between pff and def according to responsibility (unless the
factfinder determines there is a reasonable basis for
apportioning based on causation)
States do not agree on how to treat anticipatory avoidable consequences
Most states prohibit (by statute) reduction for negligent failure to wear
seat belts (or bike/motorcycle helmet); but some allow reduction of
damages
Some statutes exclude any evidence about whether seat belts
(or helmets) were worn
Possible rationale?
Legislatures are reacting to realitya substantial number of
people refuse to wear seatbeltsand lawmakers dont want to
lose the deterrent impact of negligence by releasing negligent
drivers from liability (or reducing awards against them)

Assumption of Risk
Prima Facie Overview

Pff must show four elements

Duty of care
Breach of that duty of care
Causation
Actual cause, and
Proximate cause
Damages
Once pff establishes PF claim, def can raise affirmative defenses
Pffs fault
Most states have abandoned contributory negligence and
adopted comparative negligence (def must make out PF claim
against pff); states have adopted various versions (e.g., pure,
modified)
Damages allocation rules vary by jurisdiction
Duty to mitigate damages
Avoidable consequences: ex post breach by pff causes
a portion of harm
Anticipated avoidable consequences: ex ante
behavior enhances harm (but does not cause event that
led to harm)
Traditional rule: if pffs breach was sole cause of a
portion of damages, no recovery for that portion
74

(anticipated avoidable consequences did not reduce pffs

recovery)
Modern rule: use standard appointment rules (states
mixed on how to treat anticipatory avoidable
consequences)
Assumption of risk

Basic Categories
Express assumption of risk
Triggered by exculpatory clause in contract (hold harmless
agreement)
Ubiquitous feature in rental agreements, hospital service
agreements, transactions involving recreational activities,
etc. until early 60s
Courts began invalidating them, finding them
contrary to public policy
Courts also will invalidate the clause if its
ambiguous, indefinite or unclear
Implied assumption of risk
No express agreement

1. Express Agreements
Definition: where parties agree in advance that D need not exercise due care for
the safety of plaintiff. Usually done through formal written contract, usually called
an exculpatory or hold-harmless agreement.
Hanks v. Powder Ridge Restaurant Corp., 458-470
Facts: Powder Ridge Restaurant Corp. (Powder Ridge) (defendant) operates a winter
sports facility. Hanks (plaintiff) was injured while snowtubing at Powder Ridge.
Powder Ridge is open to all members of the public over the age of six or taller than
44 inches. Before snowtubing, Hanks and all other patrons were required to sign an
agreement which purportedly released Powder Ridge from liability for any
negligence. The trial court dismissed Powder Ridge on summary judgment, finding
that by signing the agreement Hanks had expressly released Powder Ridge from
liability for its own negligence. Hanks appealed on the basis that the agreement did
not release Powder Ridge from liability, and that the agreement is unenforceable
because it violated public policy.

Court folds Tunkl factors (p. 463) into its totality-of-the-circumstances rule

What activity did the release apply to in Tunkl?

Release absolved def-hospital from any and all liability for the
negligent or wrongful acts or omissions of its employees.

How might the Tunkl court have analyzed the circumstances in Hanks?
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2. Implied Assumption of Risk

Davidoff, n.6 pg. 474
Court seems to suggest that the key to implied assumption of risk is
awareness of the risk
In choosing not to sit behind the screen, the spectator
proceeded in the face of a known danger
Suppose the pff had been a foreigner who knew nothing about the
game. Would the Davidoff court allow recovery for his injuries?
Probably notnot really about awareness
The batter (and baseball park managers) did nothing to
create an unreasonable risk!!
This has nothing to do with any affirmative
defense
Its about whether the pff has shown that the
def breached a duty
As a general matter, courts have been folding implied
assumption of risk into pffs PF claim and comparative
negligence

Caution when using Doctrine

Doctrine is under transition

Courts can be sloppy with language (see introductory paragraph)

E.g., a court might purport to rule in favor of def under the affirmative
defense of implied assumption of risk, but effectively its arguing:

That def had no duty or did not breach duty (primary implied
assumption of risk), or

That pff was negligent (secondary implied assumption of risk)

Murphy v. Steeplechase Amusement Co., 470-475 (example of above)

Facts: P hurt on amusement park ride the flopper w/ moving belt that made
people fall; P fell and injured

P clearly saw the dangers of the ride. No additional warnings were necessary,
since P could observe all risks. The whole point of ride was to fall down. There
had been no other bad injuries or broken bones ride not so dangerous as to
require that it be closed.
One who takes part in such a sport accepts the dangers that inhere in it so far
as they are obvious and necessary.
o Would be different case if the dangers inherent in the sport were
obscure or unobserved.

76

Would also be different is accidents were so many as to show that the

game in its inherent nature was too dangerous to be continued w/o
change.

Although the (implied) issue is whether pff proceeded in the face of

obvious danger, Cardozo decides that the def did not breach any
duty owed to the pff

We find no adequate basis that the belt was out of order.

Davenport v. Cotton Hope Plantation, 475-483

Facts: one of the staircases that gave access to Ps apartment was unlighted; P
continued using stairway after reporting problem; tripped and fell

Whats at issue?
Whether assumption of risk bars recovery after change to comparative
negligence
Whats the difference between Murphy and Davenport in how the court
assesses the pffs negligence claims against the defendants?
Murphy: court decides def did not breach
Davenport: def breached, and breach caused harm
So, we dont have case of primary assumption of risk here
The court distinguishes primary assumption of risk from secondary
assumption of risk and holds that
Secondary assumption of risk will NOT completely bar recovery
Its best to fold assumption of risk into the comparative negligence
determination
If pffs degree of fault is greater than defs, no recovery
Note that court explicitly retains complete bar for express assumption of
risk and primary implied assumption of risk, but this is not surprising
Parties bound by contract terms (unless against public policy)
Def not liable if no duty or no breach

Traditional Rule of Implied Assumption of Risk

The traditional rule (still applied by some courts) denies recovery if:
Pff had specific knowledge of the risk posed by the defs
negligence,
Pff appreciated the nature of the risk, AND
Pff proceeded voluntarily to encounter the risk, nonetheless
Note that this is a subjective test!!

Levandoski v. Cone, et al. 483-489

Facts: Officer injured by dangerous condition on land while chasing negligent
fugitive on property not owned by def

Outcome in lower court?

77

Verdict in favor of officer; denial of defs motions

Whats the basis of defs appeal?
Professional rescuer rule should be extended to non-premises
liability claims and bar the pffs claim
What is the professional rescuer rule?
Professional rescuers = licensees with respect to landowner
Landowners duty: not to injure willfully or wantonly
Rationale? Why not treat them as invitees?
Matches reasonable expectations of landowners
Professional rescuers voluntarily assume risk
Avoid double taxation
i.e., once through liability and once through property taxes to
pay for workers comp
How does the supreme court come out?
Professional rescuer rule does not extend to non-premise liability
cases; affirms jury verdict for pff
Rationale?
Non-landowners have no expectations
Assumption of risk abolished by statute
Def doesnt own land and is not a taxpayer (if he is, it would be wholly
fortuitous); plus, insurer can join the suit so no double taxation!!

Modern Rule

Trend away from professional rescuer rule

Courts generally will not shift professional rescuer losses caused
by negligence that leads to the need for rescue (i.e., call to
duty)
Applies to landowners and non-landowners
Some exceptions. E.g.,
Active (or subsequent) negligence unrelated to the risks
creating the need for the call to duty (e.g., negligently
restrained dog bites firefighter)
Violation of safety statute meant to protect professional
rescuers
Lots of statutory action

Strict Liability
Overview

Pff must show four elements

Duty of care, breach, causation, damages
Once pff establishes PF claim, def can raise affirmative defenses
Pffs fault
Assumption of risk
78

Express assumption: hold harmless agreements upheld

unless against public policy (Hanks and Tunkl) or
ambiguous, indefinite or unclear
Implied assumption:
Traditional rule: recovery denied if (1) pff had
specific knowledge of the risk caused by the defs
negligence, (2) pff appreciated the nature of the
risk, and (3) pff proceeded voluntarily to encounter
the risk.
Modern rule (folded into negligence
determinations)
Primary implied assumption of risk: def had
no duty or did not breach duty
(i.e., pff
assumes inherent risks unrelated to defs
negligence)
Secondary implied assumption of risk: pff was
negligent (apply jurisdictions apportionment
rules)
Professional rescuer recovery
Professional rescuer rule applies to landowner-defs
only (professional rescuer is considered licensee)
Trend toward no liability for injury to prof rescuer
when negligence triggers call to duty

Doctrinal Development, 507-516, n. 6 on p. 520, n. 3 on p. 527

Introduction
Until the mid-19th century, most liability for todays torts was based on
strict liability (SL)
If one caused damages, loss was shifted
Recall Brown v. Kendall (1850)
Def injures pffs eye with a stick he was using to beat
fighting dogs
Court changed general liability rule to require fault
Ever since, courts have attempted to carve out meaningful
exceptions to the shift-losses-only-when-at-fault rule
Rylands v. Fletcher
Facts: Plaintiff was damaged by his property being flooded by water, which, without
any fault, broke out of a reservoir constructed on Defendants land. Water in the
reservoir would not have escaped from Defendants land and no mischief would
have been done to Plaintiff, but for a latent defect in Defendants subsoil. Plaintiff
sued Defendant for trespass.
Court of exchequer (n. 2)

79

Issue: Is Defendant liable to Plaintiff in trespass for damage caused as a

result of a defect in Defendants land if they were not aware of the defect?
Judge Martin argued that loss should not be shifted because
o Def was not negligent (no trespass on the case)
o No trespass (b/c injury not direct; shafts intervened and harm was not
foreseeable.sounds a lot like proximate cause)
o Def did not create a nuisance (b/c pond was lawful and harm resulted
from single occurrence)
Chief Barron concurred with Martin, and so his opinion became the majority
(Rylands wins 2-1)
Historical interpretation: courts wanted to support industrial revolution
So, Martin (and Rylands) are happy.until Exchequer Chamber reverses
Whats Blackburns test for SL?
o One is SL if he brings onto his land anything likely to do mischief if it
escapes, it escapes and causes harm
How do you think Blackburn would have come out if the escaping water had
injured someone walking on an adjacent public highway?
o Perhaps no liability
o All of his examples (p. 509) involve harm to neighbors
o Going out and about exposes one to inevitable risks that potential
victims must bear (unless the other acts negligently) (p. 510)
o Strategy: narrow/broad framing of precedent
Whats Blackburns rationale for settling on this test?
o Inevitable risks exist when we venture out in public, and venturers
knowingly take on this risk
o Owners of land dont know of dangers posed by neighbors and do not
take on this risk
Is this a legitimate distinction? (n. 8, p. 511)
o Arent there inevitable risks involved in owning land?
o No direct explanation.maybe some notion of fairness? (The general
ruleseems on principle just. (p. 509))
Court holds Rylands liable, and he appeals to the House of Lords
What rule does Cairns apply?
o Landowner liable for harm caused by non-natural uses of the land
n. 1: Is Cairns rule (non-natural use) narrower or broader than Blackburns
rule (not naturally there)?
o Same result is arrived at on the principles (512) suggests Cairns saw
his rule as different from Blackburns
o Some courts have read non-natural to mean ultrahazardous, which is
certainly narrower than Blackburns test
House of Lords affirms Exchequer Chamberloss is shifted to pond owner
Held: Yes.
Synopsis of Rule of Law: The person for whom his own purposes, brings on
his lands and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril, and, if he does not do so, is prima facie
80

answerable for all the damage which is the natural consequence of its
escape.
Judge Bramwell favored SL, arguing that the issue is either trespass (as
opposed to trespass on the case) or nuisance, so fault not required to shift
loss

Use in U.S. Courts

Rylands has not been widely followed by U.S. courts and has been expressly
rejected in some jurisdictions (esp. western states)

Losee v. Buchanan (n. 3, p. 513): rejects Rylands, arguing that injuries of this
sort are part of the price we pay for industrialization

Courts were willing, however, to hold non-negligent defendants liable for

injuries caused by blasting accidents, which they characterized as a nonnatural or ultrahazardous activity

Trespass and Nuisance According to Old English Law

Trespass

Nuisance

writ of trespass: brought when the def applied direct

physical force (e.g., def throws log and it hits pff)
trespass on the case: brought when def indirectly harmed pff
(e.g., def throws log and it lands on roadway and pff is
injured when he later trips over it)
SL was imposed for trespass, but some kind of fault had to
be found for trespass on the case
Unlawful and continual interference with the use and
enjoyment of ones land

Road to Modern Doctrine

First Restmt (n. 6, p. 520): particular activities are ultrahazardous only where the
activity
Involves a risk of serious harm that cannot be eliminated by the exercise of
utmost care, and
Is not a matter of common usage
Common usage = activity that is usual and normally practiced; customarily
carried on by the great mass of mankind or by many people in the
community.
Courts have characterized transmitting of electric power and driving of
automobiles as usual and normal practice
Blasting, the storage and use of explosives and oil drilling have been deemed
not to be matters of common usage
Second Restmt (n. 6, p. 520): lists several additional factors used by courts to
determine whether an activity is abnormally dangerous:
High risk
Inability to eliminate risk by ordinary care
Uncommon nature of activity
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Activitys inappropriateness to the place where it is carried

on
Extent to which the activitys value to the community is
outweighed by its dangerous attributes
BUT, some of these factors were deemed to be too related to
negligence, so the Third Restmt takes a step back
Third Restmt (p. 526): a def who carries on an abnormally dangerous activity is
subject to SL for physical harm caused by the activity
Activity is abnormally dangerous if
If creates a foreseeable and significant risk of
physical harm even when reasonable care is
exercised, and
Is not a matter of common usage
Risk can be significant either because the probability of
harm is great or the magnitude of the harm will be great if it
occurs

Theoretical Perspectives, 530-546

Whats the Social Optimal Level of Care

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LIABILITY FOR DEFECTIVE PRODUCTS

Strict Liability

Generally, tort law shifts losses only when the def was at fault. Courts have
carved out exceptions for certain types of cases.
Rylands v. Fletcher provides historical background
Court draws rather fuzzy distinctions (e.g., natural v. non-natural uses
of land)
Eventually translated as ultrahazardous activities
Modern day doctrine carves out exceptions from general fault rule for
abnormally dangerous activities
An activity that creates a foreseeable and significant risk of
physical harm even when reasonable care is exercised, and

Is not a matter of common usage (i.e., the activity is unusual or

not normally practiced)
Economic analysis of SL v. negligence
Both SL and negligence create incentives to take efficient precautions
BUT, only SL leads to efficient activity levels in all cases
Relies on several assumptions (perfect information, rational actors,
etc.)

History

Prior to 20th century, no tort law for products liability. Injured partys recovery
limited to breach of contract claims.
Winterbottom (p. 555 and n. 1)
Winterbottom, an agent of Postmaster-General, injured by stagecoach
Wright, under contract with Postmaster, allegedly negligently
maintained the stagecoach
Recovery denied due to absence of privity
Injury not enough; breach of contract required
AND If contract did not specify buyers rights given injury, courts
followed caveat emptor (i.e., buyer beware)no recovery
Gradually, courts created exceptions to the privity requirement
E.g., Thomas v. Winchester (cited in MacPherson)
Label affixer druggist consumer; consumer sues label affixer (no
privity)
Privity not required when pffs injury was caused by imminently
dangerous product
Foreseeability of imminent danger triggers duty of care!

Contract versus Tort for Product Accidents

MacPherson v. Buick Motor Co., 551-557
Facts: P driving car manufactured by D but sold by retail dealer - when tire
suddenly collapsed; wheel was defective not produced by D; evidence that defect
could have been discovered by reasonable inspection and that inspection omitted

What gives rise to the claim?

Injured pff bought from retailer, but sued manufacturer
83

What rule does Cardozo formulate in this case?

No privity required if
The product is reasonably certain to place life and limb in peril
(danger is foreseeably probable, not merely possible), and
Knowledge of danger, in the usual course of events, to
individuals other than buyer
The court establishes a duty of care (a move from contract to tort!), at
least for some products
Since MacPherson, privity has not played a major role in limiting recovery in
cases involving products

From Contracts to Tort

MacPherson establishes a general duty of product manufacturers to

product users and others that is based in tort
Cardozo: We have put the source of the obligation where it
ought to be. We have put its source in the law.
Despite this, products liability cases reflect the dual
influences of tort and contract, as the notes suggest
While MacPherson opened the door for claims against manufacturers,
pffs still faced an uphill battle
Difficult to prove product was defective and that it left
defendants hands in defective condition
Difficult to prove negligent conduct; hard to gather evidence
on inspection methods, etc.
How to get around this?
Res ipsa loquiturmaybe
(restricted and hard to show
exclusive control)
Sometimes difficult to prove defs breach caused harm

Escola v. Coca Cola Bottling Co. of Fresno, 557-569 (skip n. 6-7, 9)

Facts: P injured when soda bottle broke in hand for no reason

Court affirms lower court holding that pff wins under res ipsa, but this
case is most famous for Traynors concurring opinion
Traynors suggested form of liability?
Manufacturers should be held strictly liable for product defects!
Rationale? (n. 2)
Deterrence (manuf in best position to reduce risk)
Loss spreading
Difficult access to evidence
Insurance
Administrative cost savings (no need to sue up the chain)

Cases Following MacPherson and Escola

Henningsen (n. 4, p. 561)

Stuck with warranty as avenue for imposing liability, but
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allowed claims against the manufacturer rather than

just the retailer even though retailer is not manufacturers
agent
invalidated the express disclaimer limiting liability that
was imposed on the consumer (note that UCC allows
waivers)
Some interpret as imposition of SL dressed up in warranty
clothing
Greenman v. Yuba (n. 5(a), p. 562)
Another Traynor opinion.20 years after Escola
Move away from warranty (contract) to SL (tort)
Rationale: costs should fall on manufacturer, which is in a better
position to protect potential victims
Elmore (n. 5(c), p. 563)
Entitles bystanders to same SL protections buyers enjoy

Restatement 2nd 402A

One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property if (a) the seller is
engaged in the business of selling such a product and (b) it is expected to and does
reach the user or consumer w/o substantial change in the condition in which it is
sold. The above rule applies although the seller has exercised all possible care in
the preparation and sale of his product, and the user of consumer has not bought
the product from or entered into any contractual relation with the seller.

Restatement 3rd of Products Liability

One engaged in the business of selling or otherwise distributing products who sells
or distributes a defective product is subject to liability for harm to persons or
property caused by the defect. Three types of defects: manufacturing defect (when
the product departs from its intended design even though all possible care was
exercised in the preparation and marketing of the product), design defect (when
foreseeable risks of harm posed by the product could have been reduced or avoided
by the adoption of a reasonable alternative design by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe), and defect b/c of
inadequate instructions or warning (when the foreseeable risks of harm posed by
the product could have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller of other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the instructors or warnings
renders the product not reasonably safe).
Note that only section 2(a), dealing with manufacturing defects, follows
Section 402A in imposing liability even though all possible care has
been taken
Caution: some states continue to apply contract doctrines of warranty
to resolve these disputes
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Rise of Warranty

Courts also developed implied warranty doctrine to allow claims

when the contract was silent on buyer rights given injury
This doctrine also made it easier for pffs who could not point to specific
conduct, which is required for showing negligence in most cases
Warranty law constituted its own contract-based form of SL within tort
law
implied warranty of merchantability: required goods to be fit
for the ordinary purposes for which they were sold
E.g., food cases
implied warranty of fitness: required goods to be fit for
particular purposes of the buyer known to the seller

Uniform Sales Act

Model law enacted in many states in early 1900s

Gave rise to implied warranty liability by essentially inserting into some
contracts of sale an implied warranty of merchantability
Exception: No warranty if seller does not normally sell the good
Good required to be of fair average quality
Some courts held seller liable for personal injuries caused by the good
(rather than just replacement cost) regardless of whether seller was
negligent
Recovery remains limited
Generally, liability extends only to the immediate seller (e.g.,
retailer rather than manufacturer)
But, if retailer is held liable, it could bring claim against
wholesaler, who could bring claim against manufacturer,
etc.
So, at least in theory, cost would fall on entity with most
control over risk reduction
Traynor liked SL, in part, because it streamlines the system
Damages often limited to difference in value between what was
promised and what was delivered
But see Ryan (n. 9, p. 556) in which Cardozo awarded higher
damages
Typically only the buyer can file a claim (other users and bystanders
are out of luck)
But see Ryan, in which Cardozo characterizes buyer (wife) as
agent of pff (husband)
Waivers are allowed (no recovery)

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Defects
Manufacturing Defects

Product contains manufacturing defect if it departs from its intended

design

No need to show negligence!

Victim may sue any seller along distribution chain

Introduction, 569-571
Modern Products Liability Doctrine
Prima facie elements for products liability claims:
1. Defendant is seller
2. Product was defective when it left defs hands,
3. Defect was actual and proximate cause of pffs harm, and
4. Damages

Manufacturing Defects: Difficulties

Its sometimes difficult to prove the defect was the cause of the injury
Proof gets more difficult with passage of time
E.g., pff drives her car 78,000 miles over several years and is injured
when her brakes fail
Its also sometimes difficult for the pff to prove how the weakness was
created
Pff must show that defect was present at time the product was
purchased
If weakness was created after purchase (e.g., pff dropped peanut jar at
home), seller is not liable

Design Defects
Evolution of Design Defect Doctrine
Restmt (2d) 402A imposes liability for physical harm on one who sells
any defective product that is unreasonably dangerous to the user or
consumer or to his property
The exercise of all possible care on the part of the seller is
irrelevant (i.e., SL is applied)
Privity is not required
Cronin and Barker, 571-573
What the basis for the defs appeal?
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Lower court erred when it charged the jury on strict liability by leaving
out the requirement of unreasonable dangerousness
What does the court decide?
Unreasonable dangerousness not required!
Rationale?
This element is too close to negligencemanufacturers should be held
SL for injuries caused by defective products
Eliminating this requirement does not create absolute liability b/c
pffs still must show that a defect existed and that the defect caused
the injury
A large number of states followed the Cronin court.

Aftermath of Cronin
Contrary to the Cronin courts interpretation of unreasonably dangerous,
comment i. of the Restmt (2d) defines unreasonably dangerous in terms of
consumer expectations:
The article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its
characteristics.
Requiring unreasonable dangerousness ensures that risky products are not
automatically considered defective
e.g., knives are not defective just because they are sharp; guns are not
defective just because they propel projectiles
Most jurisdictions that apply 402a retain the unreasonable dangerousness
prong
not meant to import negligence thinking
merely meant to distinguish risky products from defective products
Barker v. Lull Engineering Co. p. 572
Facts: P hurt when operating loader. Design defect was loader did not have support
which caused it to overturn.

Court offers a general test and an alternate test for determining design
defect. What are these?
general test: design is defective if the product failed to meet
consumer expectations
alternative test (aka the risk/utility test): if consumers would
have no idea how safe the product could be made (i.e., no
expectations), the design is defective if the product created
excessive preventable dangers
Excessive: risks inherent in the design outweigh
its benefits, and
Preventable: the risk is avoidable through safer
alternative
88

NOTE: Baker holds def has BOP, but this is the minority rule
According to the court, is the R/U test the same as negligence?
NO!
Test focuses on condition of the product, NOT on the
manufacturers conduct

Soule v. General Motors Corp., 573-585

Facts: Ps ankles badly injured when wheel broke free, smashing floorboard into her
feet; ankle injury allegedly not natural consequence of accident but caused by
negligent collapse of wheel

What rule did the lower court apply to determine whether the design was
defective?
Ordinary consumer expectations rule
Whats at issue in the appeal?
May a products design be found defective on the grounds that the
products performance fell below the safety expectation of the ordinary
consumer if the question of how safely the product should have
performed cannot be answered by the common experience of its
users?
How does the court come out?
consumer expectations are irrelevant
instead, the court should have applied the R/U test from Barker (i.e.,
excessive preventable danger?)
What sorts of factors are juries allowed to consider when applying the R/U
test (clue: see Barker)?
See list on bottom of p. 572
According to the court, when is the pff allowed to rely on consumer
expectations?
use CE if the circumstances of the products failure permit an
inference that the products design performed below the legitimate,
commonly accepted minimum safety assumptions of its ordinary
consumers
RULE: failed to perform as safely as an ordinary
consumer would expect when used in an intended or
reasonably foreseeable manner (consumer expectation
test),
Some have interpreted this to mean that consumer expectations test will be
used when the defect is obvious to everyone
E.g., in a 1956 Florida case re: finger severed by lawn chair
This is a slam dunkno one expects that a lawn chair will severe a
finger under these circumstances. Therefore, apply CE.

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Design Defects Flowchart

Difficulties with Consumer Expectations

Although some courts continue to apply the consumer expectations test,
courts recently began to discover difficulties with applying it in design defect
cases

It can be vague and ambiguous, especially in highly complex cases

like the one we saw in Soule

Commentators have argued that the test is overly broad: liability will
follow from almost all product injuries if the test means that any injury
consumers would not expect demonstrates a product defect

Some have argued that consumer knowledge of dangers

precludes liability in cases in which a safer design is in fact cheap
and effective in reducing risk

e.g., consumers have not been able to show that cigarettes are
defectively designed b/c the reasonable consumer does not
expect them to be safe
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Open and Obvious Dangers

What makes open and obvious dangers so difficult to analyze under the
consumer expectations test?
If danger posed by product is open and obvious, def wins because
product users expect risk
Courts have reacted to this difficulty differently
a few courts throw out claims
most abandon CE in these types of cases and adopt other tests (e.g.,
R/U test)
Some legislatures have adopted R/U test for these cases

Camacho v. Honda Motor Co., Ltd., 585-599

Facts: Camacho (plaintiff) suffered leg injuries when the motorcycle he was driving
was in an accident. Honda Motor Co., Ltd. (Honda) (defendant) designed and
manufactured Camachos motorcycle. Camacho sued, claiming that Honda was
strictly liable for a defective product, based on Hondas failure to provide crash bars
or other leg protection devices that were available. The trial court dismissed Honda
on summary judgment. The court of appeals affirmed, finding the danger to be
within an ordinary consumers contemplation when purchasing the motorcycle.

How does the court feel about the consumer expectations rule in this
context?
We should not provide seller a defense just because dangers
are open and obvious
How does dissent feel about the rule?
Consumer had choice and decided on obviously less safe
product

What rule does the majority decide to apply?

Risk/Utility analysis
Whats the test?
Balance risks of product as designed against costs of making
safer product (including production costs and loss of product
utility)
Factors?
Usefulness and desirability of product
Probability and magnitude of potential injury
Manufs ability to eliminate unsafe character without
impairing its usefulness or making it too expensive to
maintain consumer utility (RAD) (#3, 4)
The users ability to avoid danger when using the product
The users probable awareness of the danger
Feasibility of spreading loss by increasing price or carrying
insurance

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Products Liability Overview

Prima facie elements:
1. Def is seller
2. Product was defective when it left defs hands
A. Manufacturing defect: product departs from its intended design
B. Design Defect
i.
Restmt (2d) 402A (SL): defect if product is unreasonably
dangerous (i.e., fails to meet consumer safety expectations)
ii.
Restmt (3d) 2 (negligence-like std): risk/utility calculus
product created excessive preventable dangers (i.e., avoidable
risks outweigh benefits)
iii.
Note: jurisdictions varysome apply only 402A ; some apply
only 2; some apply 402A only if jury able to infer something
about CE from failure (e.g., when defect is obvious), otherwise
2; some apply 402A only to food cases; some apply 2 in all
obvious danger cases
C. Information Defect
3. Defect was actual and proximate cause of pffs harm
4. Damages

INFORMATION DEFECTS: SAFETY INSTRUCTIONS AND

WARNINGS
Doctrine
Purpose: to establish the conditions under which requiring the seller to
provide information about risk is feasible and normatively desirable
Allows purchaser to decide whether benefits of using product outweigh risks
Issues:
When is a warning required?
Generally, no warning required if risks are apparent (i.e.,
danger is obvious)
Sometimes referred to as patent danger rule
Obviousness is a question of fact (e.g., Emery p.
600)
What makes a warning adequate?
Pittman Factors
What are the exceptions to warning requirements?
Nuances
Even when danger is obvious, warnings might be required if they can provide
information about methods to avoid danger that might not be obvious

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See e.g., Liriano v. Hobart Corp (p. 641) (seller should warn that
obviously dangerous meat grinders should be used only with safety
devices attached).well discuss in detail next time
Even if the danger is so obvious as to require no warning, the pff can bring a
defective design claim
Although obviousness works against the pff
might be difficult to show that a RAD would reduce or prevent
injury (seller reasonable in assuming users will take steps to
protect themselves)
difficult to show consumer expectations were not met

Non-obvious Dangers
As with design defects, the trend is a move from strict liability (402A, Restmt
2nd) for inadequate warning to a test that resembles negligence (2, Restmt
3rd)
402A, comment j
In order to prevent the product from being unreasonably dangerous,
the seller may be required to give directions or warning, on the
container, as to its use.
seller is required to give warning, if he has knowledge, or by the
application of reasonable, developed human skill and foresight should
have knowledge, of the presence ofthe danger.
not required to warnwhen the danger, or potentiality of danger, is
generally known and recognized.
Restmt (3d) requires warning if
Danger is reasonably foreseeable, AND
Warnings expected benefits exceed expected costs
Benefits: reduced probability and/or magnitude of harm
Costs: determining what info to provide, providing info
(designing labels, printing labels, etc.), cost of information
overload

2. What Makes a Warning Adequate

Hood v. Ryobi American Corporation, 599-610
What gives rise to the claim?
Pff injured when he removed blade guards from saw
Describe the warning
Dont use saw without blade guards
If you do, you might be seriously injured
Lower court grants SJ for def

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A manufacturer may be held liable for placing a product on the market that bears
inadequate instructions and warnings or that is defective in design.
P wants more detailed warning label but must look at the social cost of
such a label proliferation of label detail threatens to undermine the
effectiveness of warning altogether.
Ds warnings were clear and unequivocal sufficient to appraise
ordinary consumer that unsafe to operate a guardless saw.
Would have prevented this accident if P had followed warnings. Vast
majority of consumers do not detach this critical safety feature before
using this type of saw.
Adequacy Rules
Content must be adequate
must contain facts necessary to permit reasonable person to
understand the specific nature and extent of the danger and in some
cases how to avoid it
some courts have developed criteria (e.g., n. 1, p. 603)
criticized for being too vague and subjective
Expression must be adequate
some courts have held that when non-English speaking consumers
are foreseeable, warnings must be provided in languages other than
English
if illiterate consumers are foreseeable, symbols might be required
(e.g., skull and crossbones)
Warning must be conspicuous (Johnson, n. 4 p. 605)
n. 1, p. 603: question of fact

3. Exceptions
State v. Karl, 610-620
What gives rise to the claim?
Pff died May 1999; drug voluntarily pulled from U.S. markets in 2000
What exception to the warning rules does the court consider?
No warning required if a learned intermediary (e.g., physician)
is adequately warned of dangers
Rationale behind this rule?
Does this exception get def off the hook?
No!
The rationale for the doctrine are outdated!
On what grounds does the dissenting judge base his objection to the
majoritys holding?
The majority was too quick in casting aside the rationales for the
learned intermediary exception

94

Some drugs are not heavily advertised and doc IS in the best position
to help patient wade through the information
BUT, why not warn patient too??
On the one hand, it couldnt hurt
On the other, warning to patient might not impact patients decision
(waste of resources) and might increase the doctors cost of informing
the patient of the material facts (recall informed consent rules)

Learned Intemediary Exception (from Karl)

Some courts have adopted the learned intermediary exception
Exceptions to the exceptions

Must directly warn consumers if FDA requires direct warning to

consumers

If manufacturer engages in direct-to-consumer advertising, it

must provide adequate warning in advertising

Some courts also require a direct warning if consumers make

independent judgments about risks/benefits without relying on
physician advice (e.g., contraception)

Warning prior to vaccination (now regularly administered by

providers other than licensed physicians with duty to get
informed consent)
Rstmt 3d, Section 6(d)

A [brand name] prescription drug [or medical device] is not reasonably safe
due to inadequate instructions or warnings if reasonable instructions or
warnings regarding foreseeable risks of harm are not provided to:
(1) prescribing and other health-care providers who are in a position to
reduce the risks of harm in accordance with the instructions or warnings; or
(2) the patient when the manufacturer knows or has reason to know
that health-care providers will not be in a position to reduce the risks of harm
in accordance with the instructions or warnings
Vassallo v. Baxter Healthcare Corporation, 620-628
Facts: pff injured by silicone gel breast implants

Whats at issue (re: implied warranty claim)?

Whether manufacturers should be charged with knowledge of new

information about the risks associated with the product available at the
time of trial but not reasonably available at the time the product was
marketed to the pff

Holding?

Abandons hindsight approach: presumption that manuf was fully

informed of all risks regardless of the state of the art at the time of sale
95

Adopts restmt (3d) approach: seller required to give warning

against danger if it had knowledge or should have had knowledge of
the danger at sale

Normative Inquiry
Consider goals of compensation, deterrence, loss-spreading, fairness,
alleviating difficulties of proof, minimizing administrative costs, etc.

Which rule seems most appealing?

More Rules

Many jurisdictions require reasonable warnings of dangers discovered after

distribution

Restmt (3d) Section 10 of the products liability restmt: when a

warning under this circumstance is reasonable (elements listed in n. 5,
p. 625)

If injury from defect was not foreseeable at the time of sale, seller generally
is not required by tort law to recall, repair or retrofit the product after
discovering the risk

this is sometimes required, however, by statute or regulation

Prima Facie Overview

Prima facie elements:
1. Def is seller
2. Product was defective when it left defs hands
A. Manufacturing defect
B. Design Defect
C. Information Defect
i.
When is a warning required?
a. Patent danger rule (but warning about methods to
reduce risks might be required if they are not
obvious)
b. For non-obvious dangers, warning required if (1)
danger is reasonably foreseeable and (2) warnings
expected benefits exceed expected costs
c. Generally, warnings are insufficient to protect
against design defect claims
ii.
What makes a warning adequate?
a. Content and expression must be adequate
b. Warning must be conspicuous
iii.
Exceptions to warning requirements
a. Learned intermediary exception (unless govt
agency requires direct warning to consumer or the
seller advertises directly to consumer or consumer
might not rely on intermediarys advice or mass
immunization, etc.)
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3. Defect was actual and proximate cause of pffs harm

4. Damages
Defenses (and employment-related injuries)
Under 2nd Restatement

Under 3rd Restatement

DEFENSES
General Motors Corporation v. Sanchez, 628-635
Facts:

Was the truck defective?

Yes, defective design and inadequate warning
Prior to passage of the statute (i.e., Chapter 33 of the Civ Prac and Rem
Code), what was the common law rule regarding possible affirmative
defenses against product liability claims?
2d restmt (and Keen holding): negligent failure to discover or
guard against a product defect is not a defense to strict
liability
All is good for victims until the 1987 statute revision comes along. How does
the revision change things?
Changed comparative negligence to comparative responsibility
and expressly allowed for apportionment in strict liability
cases if D could show P was comparatively responsible
Does this mean that decedents failure to take steps to discover and guard
against product defect requires the court to apportion damages using the
jurys 50/50 determination?

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No! Reduce recovery if pffs conduct fails to conform to

applicable standards of care, but pff did not owe duty to
protect against the defect
Rationale for not imposing duty to protect against defects??
Doing so would defeat purposes of strict liability
How so?
How does the court come out on the issue of whether decedents conduct
failed to conform to the applicable standard of care?
He did not take reasonable steps to secure his vehicle before
stepping out (e.g., a RP would not have left it running, would
have engaged parking brake, etc.); thus award reduced by
50%.
Some states (including TX) do not allow affirmative defenses grounded in
negligence in failing to discover or protect against the defect
The Restmt (3d), however, suggests that the majority of jurisdictions
allow such a defense
Although the restmt recognizes that reasonable people have
little reason to expect a defect (comment d)

Disclaimers

Generally express waivers of products liability are not allowed

Rationale is grounded in the assumption that consumers generally lack
sufficient information and bargaining power when they agree to terms
Exceptions
sale of used goods
sophisticated buyers with adequate information and sufficient
bargaining power

Employee Exception

Courts that continue to apply traditional assumption of the risk doctrine have
carved out an exception for employees
Generally, these courts do not allow an A of R defense against employees
who are injured by products (usually big machines) that are obviously
dangerous
Rationale: EEs have little choice but to deal with the risky products and so
should not be completely barred from recovery even though they proceeded
in the face of known danger
Does that seem right??

Tort Claims and Workers Comp

Were moving on to cases that consider harm to employees who are

injured by a product purchased, and oftentimes modified, by the
employer
These cases are complicated by the existence of workers
compensation systems (details later). For now,
98

Generally, workers who have access to WC benefits are not allowed to

sue employer in tort
For this reason, victims tend to sue manufacturers even when the
employer likely is the most blameworthy party

Other affirmation defenses, 635-637

WORK-RELATED INJURIES AND MISUSE (PART OF CLASS 20)

Jones v. Ryobi, 637-641
Facts: EE removing guards from printer

How did the lower court resolve the claim?

Granted def motion for judgment as matter of law
Applied consumer expectations testdanger was open and obvious, so
reasonable consumer would have expected to be injured
How does the appeals court resolve the appeal?
Decision on motion affirmed, but on different grounds
When a third partys modification makes a safe product unsafe, the
seller is relieved from liability even if the modification is foreseeable

Normative Inquiry
The court rejects liability even though the manufacturer knew that virtually
all of its customers were removing the safety guards
Court implies that fault actually rests on the employer for removing or
allowing removal of the guards
From a normative standpoint, should a design be considered defective if the
safety devices can be removed and the manufacturer knows employers
and/or employees commonly remove them?
Modifications to Products
General rule regarding modifications is akin to the rule on misusei.e., courts
sometimes consider modification when deciding:
Whether product was defective
Whether defect was a proximate cause of the injury
Whether pff was comparatively negligent
Jones reflects minority rule; majority of courts impose liability if modification
is foreseeable
But, need to check statutes
Liriano v. Hobart Corp., 641-651
Facts: Plaintiffs hand was caught in a meat grinder while he was working. He was
severely injured. He sued the manufacturer then brought a third-party action
against plaintiffs employer. At the time of sale, the machine came equipped with a
safety guard, but the guard was removed while in possession of Plaintiffs employer.
The apparatus carried no safety warning indicating that it should be operated only
with the safety guard attached. The issue that went before the jury was the failure
99

to warn claim. The jury found for Plaintiff, and liability was apportioned among all
three parties.
Issue: Does a reasonable manufacturer have a duty to warn even when the
danger at issue is an obvious one?

Held: The court affirmed the judgment, concluding that failure-to-warn

liability was valid and applied as a matter of law to the facts of the present
case.

How does Lirianos claim differ from Joness claim?

Liriano claimed that the product was defective because it did not
come with a warning about the dangers of using the machine
without the safety guards
Hobart relies on Robinson. What did the Robinson court hold?
Suppliers are not liable for harm caused after substantial
alternations or modifications by a third party that render the
product unsafe (minority rule)
How did the Robinson court justify this holding?
Manufacturers should not be made to try to anticipate all
modifications; its too burdensome
Does the Liriano court worry about this concern when it comes to
warnings?
No! Burden of warning about modification dangers is much
less costly than designing a perfectly safe, tamper-resistant
product
So, does the Liriano court hold the manufacturer liable?
No, it merely answered the certified question: Robinson does not
preclude pffs information defect claim
It also provides advice about how the lower court should
evaluate the claim
If danger was open and obvious, no duty to warn
Rationale: If manufacturer had to warn of all obvious
dangers, the users would not read and understand
warnings related to latent dangers
What if a modification was made to get the machine to work as it was
intended to work by the manufacturer?
n. 3, p. 646 (AZ): court considered reason for modification when
it determined that product was defectively designed

Post-Sale Duty to Warn

The court imposes a post-sale duty to warn. Why?

Manufacturer is in best position to learn of dangers
This type of justification is sometimes referred to as the least
cost avoider rationale (see Calabresi, The Cost of Accidents)

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Heeding Presumption

Calabresi invoked a heeding presumption on the causation issue. Whats a

heeding presumption??
to show but-for causation, the pff must prove that he would have
heeded the warning had one been given
this can be very difficult to show, so courts allow the jury to presume
pff would have heeded warning if one had been given
this shifts burden to def to show that its more likely than not that the
pff would not have heeded the warning had one been given

Prima Facie Overview

Prima facie elements:
1. Def is seller
2. Product was defective when it left defs hands
A. Manufacturing defect
B. Design Defect
C. Information Defect
3. Defect was actual and proximate cause of pffs harm
Heading presumption: presume pff would have heeded warning had one been
given. Shifts BOP to def to show that its more likely than not that the warning would
not have been heeded.
1. Damages
Defenses (and employment-related injuries)
Under modern law, courts use comparative negligence doctrine to split damages
according to responsibility
Restmt (3rd): pff has duty to discover and/or protect against harm from defect
(although some jurisdictions do not allow this defense (see Sanchez), and Section
17, comment d of the restmt cautions that reasonable people have little reason to
expect defects)
Generally, express waivers not allowed (i.e., parties cannot contract out of products
liab)
Generally, if modification of the product is foreseeable, then manufacturers can be
held liable for harms caused by modifications if pff can show design or information
defect. But see
Jones v. Ryobi (no liab even if foreseeableminority rule) and
Robinson (cited in Loriano) (manuf not liab for design defect if substantial
alterations render safe product unsafeminority rule)
Most jurisdictions impose post-sale duties to warn

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INTENTIONAL HARM
Basic Doctrine
Prima Facie of Intentional Torts
1. Intent (to harm) OR substantial certainty that harm will result from the
act
subjective standard
1. Impact (changes from intentional tort to intentional tort)
2. Causation (see n. 5 and 6)
a. Actual cause similar to other torts
b. Proximate cause is more inclusive (i.e., foreseeability not required, but
courts have attempted to establish some boundariesbut standards
are vague)
3. Harm (including dignitary harm (aka offense))

1. Intent
Garrett v. Dailey, 897-904
Facts: Five year old Brian Dailey (D) pulled a chair out from under Ruth Garratt just
as she was about to sit causing her to fall and break her hip. Garratt brought suit for
personal injuries and alleged that Dailey had acted deliberately. The trial court
entered judgment for Dailey and found that he had not intended to injure Garratt.
The court nevertheless made a finding of $11,000 in damages in case the judgment
was overturned on appeal. Dailey appealed.

Relevant facts?
first (bench) trial version accepted by the court: Dailey picked up chair
and sat in it. When he noticed that Garrett was attempting to sit in the
same chair, he got up and tried to move the chair so she would not fall.
He was not able to get the chair under her in time. (Daileys version)
Trial outcome?
Dismissed
Dailey did not intend to cause a harmful or offensive contact;
therefore, no liability
Issue on appeal?
Did TC apply the correct rule to determine intent?
What intent rule does the appellate court apply?
Intent element satisfied if either
Defs purpose was to accomplish the invasive result (i.e., the
injurysee Restmt (3d) Liab for Physical Harm 1), or
Def was substantially certain that invasive result would follow
from the action (subjective test; focuses on immediate act at
particular time and place, not on-going activityn. 3)
Does the court hold that Dailey committed a battery?
No! They remand to lower court

102

They lay out rule lower court should apply: battery if, when Dailey
moved the chair, he knew with substantial certainty the pff would be
injured
RULE: substantial certainty that a harmful contact will result is
sufficient to satisfy the element of intent

2. ASSAULT AND BATTERY

Battery
INTENTIONAL INFLICTION OF A HARMFUL BODILY CONTACT UPON ANOTHER
1. INTENT (or substantial certainty)
2. IMPACT = CONTACT
3. CAUSATION
4. HARM

Intent to do What?

General rule: intent to harm (i.e., to produce the consequence) is

required (Restmt 3rd, Section 1)
But, some courts seem to hold that intent to touch is sufficient to
establish intent element
In many of these cases, though, def had knowledge of pffs
wishes not to be touched
This leads to an alternative interpretation of the holdings: acting
against pffs wishes constitutes a lack of consent, which implies
that def intended to offend
Consent normally is considered an affirmative defense, but if pff brings
a battery claim to recover for an offensive contact, most courts require
pff to show that the touching was not apparently consented to (she did
not consent and RP in defs SSC would not have inferred pffs consent)

Assault
1. INTENT (including substantial certainty)
2. IMPACT = APPREHENSION OF
IMMINENT HARMFUL BODILY CONTACT
a. objective (RP) standard AND subjective standard
b. fear is generally not required (although courts often talk in terms of fear)
3. CAUSATION
4. HARM
Picard v. Barry Pontiac-Buick, Inc., 904-907
Facts:

Court says even if the def never touched the pffs person, the act constitutes
a battery. How can this be if contact is required?!?
Contact can be with an extension of the person (e.g., a cane or a
camera)
103

What if the def never actually touched the pff, but she thought he was going
to touch her, and she ducked and injured her neck in the process?
She might claim assault. Would she win?
Must also show RP would have apprehended imminent harmful bodily
contact
And that he intended to put her in apprehension of imminent harmful
bodily contact (or was substantially certain)

Wishnatsky v. Huey, 907-911

Facts:
How does TC resolve dispute?
Dismisses claim
What about the appellate court?
Affirms ruling on motions
No harm b/c a RP under SSC would not be offended by defs conduct
Def caused an inevitable contact of the kind we all expect when were
moving around in world

Restmt (2d) Section 18 (p. 908-9)

Does Section (1) confuse assault with battery??

o NO!
This is the rule of transferred intent: one is liable for battery if one
commits a battery even though one intended only to assault
In addition, one who intends to batter A, but contacts and harms B
instead, is liable for Bs injuries

FALSE IMPRISONMENT
Elements
1. INTENT (including substantial certainty)
2. IMPACT = CONFINEMENT
pff not allowed to go beyond the boundaries fixed by def
Objective and subjective std
3. CAUSATION
4. HARM

Basic Elements

Easy case: def physically restrained pff

Physical restraint, though, is not a necessary condition
Threats of immediate bodily harm can be sufficient
Threats of harm to another person or the pffs property might also
count
Implicit threats are sometimes sufficient (e.g., def creates an
environment in which RP (and pff) fears he will be restrained or harmed
in some way if he tries to leave)
104

Psychological coercion can be sufficient (e.g., pff outnumbered,

isolated, subjected to hostility/verbal abuse)
BUT, defs assertion that the pff must stay is not enough

Lopez v. Winchells Donut House, 911-917

Facts:

What inferences might be drawn from the fact that defs agents closed door
and locked it with the little latch from the inside?
Pff: it was psychological coercion. Closing and locking door in
combination with other acts (sitting directly next to her, raising voice)
would cause RP to believe she was not free to leave (and pff believed)
Def: RP would have believed she could leave room (and pff believed
she could leave room)its just a little latch that can be undone from
inside
The court cites Marcus (p. 913). For what proposition does Marcus stand?
A present threat (as opposed to future threat) can constitute false
imprisonment
Does the court buy the argument?
Court decides no present threat
HYPO: Assume Lopez got up to leave and one of the men said, if you leave
this room, you should walk straight to the unemployment office, compelling
Lopez to sit down. Different outcome?

More Basic Rules

Confinement for any appreciable time, however short, is actionable (no

specific length of time is required)
If the pff has reasonable means of escape, she is not considered to be
confined
Reasonable means (1) readily knowable, and (2) reasonably safe
Some courts require pff to be aware of the confinement
So, if the def confines a baby, no false imprisonment claim can
be brought
Some courts, however, allow a false imprisonment claim if actual
harm occurs (e.g., if baby is physically injured because his
mother was unable to give him medicine, then awareness usually
is not required)

Prime Facie for Intententional Harm Overview

Prima facie elements:
1. Intent to harm
A. Subjective standard
B. Intent satisfied if
i. Defs purpose was to harm, or
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ii.

Def was substantially certain harm would follow from

action
C. Knowledge of lack of consent might imply intent to offend in
battery claims
D. Intent can transfer from intentional tort to intentional tort or from
person to person
2. Impact
A. Battery: contact (can be with extensions of person)
B. Assault: apprehension (and reasonable apprehension) of
imminent harmful bodily contact
C. False Imprisonment: confinement (pff perceived confinement and
RP would have perceived same)
D. IIED
3. Causation (actual and proximate)
4. Harm
A. actual harm (e.g., physical harm to person or property, emotional
harm, econ harm) and/or
B. harm to dignity (i.e., offense)objective (impact would have
offended reasonable sense of personal dignity) and subjective
(pff must have been offended); if battery, pff must show lack of
consent
Defenses

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Introduction, 918-919
Elements
1. INTENT (or substantial certainty or reckless)
2. IMPACT = outrageous or intolerable behavior
3. CAUSATION
4. HARM = severe emotional distress (subjective)

Womack v. Eldridge, 919-923 (n. 4-6)

Facts: Womack, the plaintiff, had his picture taken by the defendant, Eldridge, a
private investigator. The defendant misrepresented herself in taking the plaintiffs
photograph. The defendant then used the photograph in connection with a with a
child molestation case (in which the plaintiff was completely uninvolved), as part of
an unrelated suspects defense. The photograph was shown in court, and, after the
prosecutor questioned as to the identity of the man in the photograph, the plaintiff
was forced to testify in court. As a result of being forced to attend the proceedings
and testify, the plaintiff claimed that he suffered great emotional distress, such as
sleeplessness and anxiety. The plaintiff sued the defendant for compensatory and
punitive damages for the emotional distress caused due to the defendants acts
106

toward him. The jury awarded the plaintiff $45,000, but the trial court set aside the
verdict on the ground that no recovery could be had for emotional distress when no
physical injury was involved.

How did the lower court resolve the dispute?

Jury verdict for pff, but court set it aside b/c pff did not suffer any
bodily injury
Issue: can the pff bring a claim for IIED when bodily injury is not
sustained?
What rule does the high court settle on?
If pff suffers no bodily injury, def is liable only if
1. Defs conduct was intentional (including substantial
certainty (or should have known)) or reckless
Note: objective std is minority rule!
2. Conduct was outrageous and intolerable
3. Defs conduct caused the emotional distress, AND
4. Emotional distress (i.e., the harm) was severe

Recklessness
Restmt 3rd (PH) 2
A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows
facts that make the risk obvious to another in the person's situation,
and
(b) the precaution that would eliminate or reduce the risk involves burdens
that are so slight relative to the magnitude of the risk as to render the
person's failure to adopt the precaution a demonstration of the person's
indifference to the risk.

Outrageous Conduct

Conduct must offend against generally accepted standards of decency

and morality
Something more than bad manners that hurt feelings
Courts consider factors such as:
Whether def abused position of power
Whether def engaged in repeated behavior
Whether def threatened violence to person or property in
which pff is known to have a special interest

Proving Severe Emotional Distress

Most courts do not require medical testimony, although some do

Most courts do not require physical manifestations, but some do
All courts require some kind of evidence of severe distress
107

When conduct is sufficiently extreme, the court will allow jury to

infer severe distress from defs conduct
Otherwise, pff must bring other evidence of severe emotional
distress
Testimony that pff cried and was upset is usually
insufficient
Jury allowed to draw inferences from testimony that pff
missed work, had trouble sleeping, couldnt leave house,
etc.
Does Womack court find that defs conduct was extreme and
outrageous?
Jury says yes; court holds that jury decided reasonably

DEFENSES
TABLE
Hart v. Geysel, 945-949
Facts:

Whats at issue in the case?

Whether engaging in an illegal act precludes using consent as a
defense to an intentional tort claim
How does the court resolve the dispute?
Voluntarily engaging in illegal prize fighting precludes claim to recover
for damages because pff consents to touching (consent is defense!)
To allow pff to voluntarily engage in illegal conduct and then recover in
tort runs counter to public policy
This rule is the modern-day majority rule (although some courts have
rejected consent as a defense in these cases)

Courts Treatment of Consent

Usually, courts treat consent as an affirmative defense

Def has burden of showing
RP under defs SSC would have believed pff was consenting, OR
Pff, herself, consented
Exception: In battery cases involving offense, most courts place BOP on
pff
Some courts treat consent as one factor in the intent determination (part of
PF claim)
Def cannot intend to harm if pff consents
Pff has burden of showing no consent
RP under defs SSC would not have believed pff was consenting,
AND
108

Pff, herself, did not consent

Demonstrating Consent

Pff deemed to consent if appearances created by words, acts and social

conventions led def to reasonably believe pff consented (n. 5: holding up arm
to vaccinator)
If the pff actually consents to the defs conduct, the pff is barred from
recovery, even if the def was unaware of such consent
some courts view actual consent as negating harm, and so they put
the BOP on the pff to show that she did not actually consent
Pffs intoxication does not necessarily negate consent
the question is whether a RP in the defs SSC would believe pff was
consenting (including having the capacity to consent)
Consent must be to the particular conduct or substantially the same conduct
(n. 4)
E.g., consenting to sex is not the same as consenting to sex with HIVpositive partner

Courvoisier v. Raymond, 949-952

Facts:

On what grounds does the def appeal the lower court decision?
LC did not properly instruct jury on the self-defense rule
According to the appellate court, what instruction should have been given?
If (1) the def had acted honestly in using force, (2) his fears were
reasonable under the circumstances, and (3) the means were
reasonable, then conduct is justified

Defense of Self-Defense

Def must use reasonable force

it can extend only so far as reasonably necessary to prevent

harm

if not, then liable for harm caused by excessive

force
if harm from privileged and excessive force is
indivisible, then liab for whole harm

Provocation is insufficient to raise the self-defense privilege

Generally, def must show he subjectively believed self-defense was

required and that a RP under the SSC would believe that self-defense
was required

109

Def is generally not required to retreat (as opposed to defend) even if

its possible

But, some states require reasonable effort to retreat if safe,

unless the defendant is in her own dwelling (castle
exception)

Retaliation does not count as self-defense

Generally, def must show immediate need to prevent an

imminent invasion, or, at a minimum, an immediate
necessity to prevent a future harm

Defense of others follows the same analysis and now extends beyond family
members

Katko v. Briney, 952-957

Facts:

What intentional tort do you think the pff claimed?

Battery
Intruder wins at trial!! What does jury award?
Compensatory damages to intruder
Punitive damages to punish owner for using spring gun
Whats defs theory on appeal?
Jury instructions were incorrect; they should have indicated that use of
spring guns is permitted to prevent unlawful entry
Why does the court reject this theory?
Def exceeded scope of privilege: cannot take human life or inflict great
bodily injury to protect property
Deadly force was not reasonable under the circumstances

Defense of Property

Whats defs theory on appeal?

Jury instructions were incorrect; they should have indicated that use of
spring guns is permitted to prevent unlawful entry
Why does the court reject this theory?
Def exceeded scope of privilege: cannot take human life or inflict great
bodily injury to protect property
Deadly force was not reasonable under the circumstances

Ploof v. Putnam
Facts: pff and his family are caught on his sloop in a storm. Pff docks on the
defs island. The dock owner unmoored the sloop from the dock causing
damage to property and person.
Claim: sloop owner sued the dock owner for trespass to chattels (an
intentional tort we wont cover)
Dock owners theory: the trespass was privileged to defend his property by
using reasonable force to repel the trespassing sloop owner
110

Holding: privilege of reasonable defense of prop is lost in the face of the pffs
superior privilege of necessity

Vincent v. Lake Erie Transportation Co., 957-963

Facts: A steamship owned by Lake Erie Transportation Co. (D) was moored at
Vincents (P) dock to unload cargo. A storm arose and the vessel was held secure to
the dock causing $500 in damage to the dock. Vincent sued to recover damage to
the dock and the jury decided in favor of Vincent. D appealed, alleging that it was
not liable under the defense of private necessity.

How does the court resolve the dispute?

Taking of property in face of private necessity is allowed (so, if
land owner removes you, hes liable for harmsee Ploof)
but (if land owner does not remove) def must compensate pff for
harm
Privilege can be invoked only to avert serious imminent harm to
defendants person or property
Means of protection must be reasonable in light of threat

Coase Theorem

Outcome is independent of the legal entitlement if transactions costs are zero

(or sufficiently low)

If transactions costs are positive, then we allocate legal entitlements in a way

that will minimize transactions costs

Relevance?

Take care when arguing about the deterrent impacts of the law

DAMAGES AND INSURANCE

DAMAGES

Single judgment rule: damages for harm awarded only once

Survival actions allow decedents estate to recover for damages
decedent suffered; wrongful death actions allow survivors to recover for
their losses (in some jurisdictions only pecuniary losses)
Collateral source rule: pff can recover for losses even if covered by a
third party (e.g., family, charity, insurer)
Compensatory damages
Economic damages
Medical expenses must be reasonable
Future medical expenses must be more likely
than not to occur
111

Future earnings are estimated assuming normal

earning power (discount to present value and
inflation are often ignored or offset against one
another)
Non-economic damages
Methods for computing damages vary
If the award shocks the conscience, the award is
excessive
Legislatures and courts have taken steps to
reduce award variability
Punitive damages

Public Necesity

Def not liable if the intentional tort was committed to protect the public good
In these cases compensation is not required
courts dont want to create incentive for potential defendants to
engage in time consuming cost/benefit analyses during emergencies

Punitive Damages: The Basics

Thought to serve
a retributive function (i.e., eye for an eye), and
a deterrent function (but see n. 7)
Typically courts award punitive damages only when the defs conduct was
outrageous in some sense
Arguments often revolve around whether the defs conduct was
sufficiently egregious to warrant a punitive award
Some states, like CA, have established statutory triggers (e.g., oppression,
fraud, malice, evil motive, spite, willful or wanton conduct, etc.)

COMPENSATORY DAMAGES
Seffert v. LA Transit Lines, 710-728 (skip n. 4, 6, 9, 12)
Facts: On October 11, 1957 Seffert (plaintiff) was caught in the door of a bus run by
Los Angeles Transit Lines (L.A. Transit) (defendant), and dragged some distance
before being thrown to the ground. Before the accident Seffert was 42, healthy, and
had been supporting herself for 20 years. As a result of the accident Seffert suffered
severe, disabling, and permanent injuries, and will suffer pain for the rest of her life,
which was estimated to be 34.9 years from the time of the trial. The trial took place
in July and August 1959. After the accident Seffert underwent nine painful
operations and was hospitalized for months. Future operations may be necessary.
Seffert calculated her pecuniary losses as a total of doctor and hospital bills, drugs
and other medical expenses, loss of earning between the time of the accident and
the trial, future drug and other medical expenses, and possible future loss of
earnings, for a total of $53,903.75. Seffert also claimed $134,000 in nonpecuniary
damages including past and future pain and suffering, humiliation from being
disfigured and crippled, and anxiety from fear that her leg will need to be
112

amputated. The jury awarded Seffert all of her claimed damages, totaling
$187,903.75. The trial court denied L.A. Transits motion for a new trial based on its
claim that these damages are excessive as a matter of law. L.A. Transit appealed.

For what sort of medical expenses is she seeking compensation?

See list on p. 713
Medical expenses must be reasonable
Future medical expenses must be more likely than not to occur
Sometimes determination is fairly straightforward
Sometimes parties argue over chance that pff will experience an
unanticipated deterioration or improvement
What if pff discovers a previously latent medical condition after settlement?
No way to recover!!
Justifications for single judgment rule
Decrease in administrative burdens associated with reopening the case
periodically to assess new damages
Difficulties of maintaining jurisdiction over a defendant
Reduction in chance that pffs recovery or return to work might be
consciously or subconsciously impeded, and
Unfair to hold defendant indefinitely responsible for possible changes
in circumstances
For what sort of lost income is pff seeking compensation?
lost earnings from time of accident to time of trial
estimated future loss of earnings
Factors that enter into the estimation of future earnings
normal earning power (consider career path, life expectancy, etc.)
work-life expectancy in years and in potential advancement
the discount rate to calculate present value of future losses
this cuts def a break b/c pff can invest award and earn interest
courts use rate earned by investing in safe investment
inflation adjustment
accounts for the fact that $1 today does not buy the same
amount of stuff as $1 will 10 years from now; est. using
historical trends
Courts often ignore discount rate and inflation adjustment (total offset),
hoping they come close to canceling each other out
Pff computation of pain and suffering damages?
Pff uses formula based on per diem allowance
$100/day for each day between accident and time of trial
$2,000/year for the remainder of her expected life
How does the majority come out on the question of whether allowing the use
of the per diem calculation introduced a prejudicial error?
Not taken up b/c no LC decision to review (def did not object during
trial!)
Despite this, dissent argues method is normatively unappealing

Per Diem Calculations

Courts are split on whether to allow per diem arguments

113

e.g., some allow only if pff does not suggest specific numbers to be
multiplied by number of periods, but simply suggests the method the
jury should apply
sometimes courts allow evidence about awards for similar injuries
The court notes wide variation and difficulty in finding sufficiently
similar cases

CA Jury Instructions
No definite standard, no expert witness required. Use calm and reasonable
judgment; damages must be just and reasonable in light of the evidence

Judging Awards

How do courts determine whether awards are excessive as a matter of law?

An award is excessive if it so shocks the conscience as to imply
passion, prejudice or corruption
Jury awarded Seffert $134,000 in 1959 dollars (thats roughly $1,078,000 in
2013 dollars). Is this amount excessive?
Traynor suggestion?
Consider past awards for similar injuries
Is this better than the shocks-the-conscience test?

Additional Methods for Reducing Variation

Statutory damages cap indexed to inflation

E.g., cap set at fixed amount
E.g., cap set as some function of economic damages
Parties implement high-low agreements prior to trial
def agrees to pay at least X, but no more than Y
If award (Z) falls between X and Y, pff gets Z
If award falls below X, pff gets X
If award falls above Y, pff gets Y

X
Y
McDougald v. Garber,
(skip n. 7)
(lo 728-736(hi
Facts: Plaintiff, 31 year-old Emma McDougald, entered a New York hospital to
w)section and gh
undergo a Caesarian
tubal ligation. In the course of the procedure she
suffered oxygen deprivation, resulting
) in severe brain damage and leaving her in a

permanent coma. McDougald and her husband brought an action claiming medical
malpractice. A jury awarded multiple damages, including damages for loss of
pleasures and pursuits of life. On appeal, the court modified the award and granted
a new trial on non-pecuniary damages on the basis that the trial court had erred in
its jury instructions
114

Med mal case. Whats at issue?

Whether loss of enjoyment of life (hedonic damages) can be suffered
by pff without any degree of consciousness
Whether loss of enjoyment of life is a distinctive element that should
be recognized and awarded separately from other forms of pain and
suffering
Lets assume the pff in this case has no degree of consciousness. Should she
be allowed to recover for loss of enjoyment of life?
How does the court come out?
Awards for loss of enjoyment of life in the absence of awareness are
NOT allowed
Loss of enjoyment of life is NOT distinct from pain and suffering;
therefore, it gets no special recognition

Loss of Enjoyment of Life

Most courts allow recovery for loss of enjoyment in addition to compensation

for other forms of pain and suffering
Most courts require awareness; some dont
The controversy is around whether damages for loss of enjoyment of life
should be viewed as a distinct item, independent of other forms of pain and
suffering
Some courts do not allow distinct category (see McDougald); some do

Damages in the Event of Death, 736-742

Survival Actions v. Wrongful Death Actions
Traditionally
pffs death extinguished pffs claim in tort (dependants could not bring
claim)
Defs death also ended injured victims claim
Modern rules generally are governed by statute
Whats the difference between survival actions and wrongful death actions?
Survival actions: preserve to the decedents estate any personal cause
of action the decedent would have had if she had survived (damages
accruing up until death)
Wrongful death actions: compensate survivors for their losses due to
wrongful death
Recovery
Who gets compensated if pff wins?
Survival: decedents estate
Eventually gets distributed to decedents heirs (usually relatives
and dependents)
Wrongful death: relatives/dependents
Does this result in double recovery?
No! The claims are for different damages for different injuries to
different people

115

Whats Recoverable
In survival claims, any damages decedent could have claimed (up to the
point of death)
Traditionally wrongful death claims allowed only for recovery of pecuniary
losses (e.g., lost wages that would have gone to dependants of decedent)
Many states now allow damages in these actions for non-pecuniary
losses (including loss of consortium)
Is this a normatively appealing trend?
What Happens after Death of Defendant
Some survival statutes allow for claims against the tortfeasor even after the
tortfeasors death

In many jurisdictions, the victims estate is allowed to sue the estate of the
decedent-tortfeasor

Most states deny punitive damages upon defs death

Arambula v. Wells, 742-750

Facts: Arambula (plaintiff) suffered injuries in a rear-end collision caused by Wells
(defendant). At trial, Wells moved to exclude evidence supporting Arambulas lost
wages claim of $50,000. Although Arambula missed work because of his injuries, his
brother, who was a majority shareholder in the family company where Arambula
worked, continued to pay Arambula his wages. The trial court instructed the jury not
to award damages for lost earnings because Arambula was paid his wages, and
there was no agreement that Arambula would refund that money.

What is the collateral source rule?

Allows recovery for losses even though the pff received financial help
from third parties
E.g., the pff is entitled to recover the value of
medical services provided even when those services are paid for
by another (i.e., a collateral source, such as the hospital or the
pffs insurer)
lost wages even when he continues to receive his weekly salary
from his employer while out of work

Damages Overview

Single judgment rule: damages for harm awarded only once

Survival actions allow decedents estate to recover for damages decedent
suffered; wrongful death actions allow survivors to recover for their losses (in
some jurisdictions only pecuniary losses)
Collateral source rule: pff can recover for losses even if covered by a third
party (e.g., family, charity, insurer)
Compensatory damages
Economic damages
Medical expenses must be reasonable
116

Future medical expenses must be more likely than not to occur

Future earnings are estimated assuming normal earning power
(discount to present value and inflation are often ignored or
offset against one another)
Non-economic damages
Methods for computing damages vary
If the award shocks the conscience, the award is excessive
Legislatures and courts have taken steps to reduce award
variability
Punitive damages

PUNITIVE DAMAGES
The Basics

Thought to serve
a retributive function (i.e., eye for an eye), and
a deterrent function (but see n. 7)
Typically courts award punitive damages only when the defs conduct was
outrageous in some sense
Arguments often revolve around whether the defs conduct was
sufficiently egregious to warrant a punitive award
Some states, like CA, have established statutory triggers (e.g., oppression,
fraud, malice, evil motive, spite, willful or wanton conduct, etc.)

Taylor v. Superior Court, 750-760

A drunk driver collides with pffs car, causing injury

Lower court action on the pffs claim for punitives?
Dismisses claim; pff did not allege intent to harm
Issue on appeal?
Whether the LC should reinstate the punitive dmgs claim (is
intent to harm pff required?)
How does the high court rule?
Issues a writ: pff can bring claim for punitives be/c a reasonable
jury might conclude from the evidence that def consciously
disregarded the safety of others; intent to harm not required
Whats the difference between the concurring and majority opinions?
Concurrence says driving drunk is insufficient
Pff must demonstrate repeated incidents, etc.
The dissent goes even further than Bird, listing six arguments against
allowing punitive damages for driving under the influence:
Compensatory damages fully compensate; thus, punitives
unjustly enrich pff
Punishment is criminal laws bailiwick; punitives result in double
punishment
Defs financial status becomes an issue
Punitive damages dont deter in this situation (and in situations
where defs wellbeing is at risk)
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 Awarding punitive damages might trigger loss of insurance

coverage
Intoxicated drivers injured by negligent tortfeasors will be barred
from recovery (but see n. 3: no longer true in some states)

Normative Inquiry
Commentators and judges have argued that courts have gone too far in
allowing punitive damages claims.
Do you think the majority went too far in this case? While the driver certainly
created risk, did he act with malice??
State Farm Mutual Automobile Ins. Co. v. Campbell, 760-776

Pro Posture
trial court awarded $2.6M in compensatory and $145M in
punitives
trial judge reduced to $1M in compensatory and $25M in
punitives
Utah supreme court reinstated $145M punitive award
Rationale for reinstatement?
PP&R policy was reprehensible
the firm had massive wealth
not all claimants would bring claims and harsh punishment in
this case makes up for this
punitives not excessive compared to what they might suffer if
various civil and criminal penalties were applied
Whats at issue?
Whether the Utah court was in error when it reinstated the
punitive award
Specifically, whether the $145M punitive award, coupled with the
$1M compensatory award violated defs 14th amendment
due process rights
Def argues that unpredictability violates notice requirement
Court reapplies Gores guideposts to determine reasonableness
degree of reprehensibility of the defs misconduct
disparity between actual or potential harm v. punitive award
disparity between punitive dmgs v. civil penalties authorized or
imposed in comparable cases (e.g., civil fines; but not criminal
penalties)
Court suggests a reasonable punitive-to-compensatory damages ratio
is likely something less than 10:1
Although they dont establish a firm upper bound
Holding: 145:1 is an excessive ratio (remanded)
Dissent: Scalia and Thomas (textualists) argue that the due process
clause says nothing about excessive or unreasonable damages awards
the court should not read this protection into the Constitution
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What happens on remand? (n. 1)

Utah Sup Ct awarded $9M (9 times amount of compensatory
awards!!)

Phillip Morris v. Williams

Pff: family of smoker who died of lung cancer

Lower court found that Philip Morris had engaged in deceit,
convincing Williams (and others) that smoking was safe
During trial, pff presented a significant amount of evidence of the
effects of the deceit on smokers, including the pff
$79.5M punitive award (appox. 100x compensatory award
($821,000)
Punitive award reversed by TC; reinstated by appellate court; Oregon
Supreme Court denied review; def appealed to USSC
USSC (2003) vacated the judgment and sent back to state court for
further consideration in light of State Farm
State Court of Appeals reaffirmed the award
Reprehensibility of conduct justifies large ratio
Oregon Supreme Court upholds
PM appeals to USSC
Ratio too high
Unfair to punish for actions towards other smokers not party to
suit
2007: USSC decides that the due process clause forbids a state to use
a punitive award to punish for injury inflicted on non-parties
Jurors might have improperly calculated the figure to punish the
cigarette maker for the harm it caused to other smokers
Def has no opportunity to defend itself against claims of harm to
non-litigants
Allowing this would lead to a nearly standard-less dimension and
magnify due process issues
No ruling on excessiveness of award; remanded
Ginsberg dissent
punitives meant to punish for bad conduct, and conduct is
more reprehensible when more people are exposed to risk
In addition to due process concerns, the court argued that
allowing the first pff to take home a huge punitive
damages award might deplete resources necessary to
compensate other victims
State court AGAIN reinstated the award
the focus is on procedural issues related to lack of objections by
PM during trial that Oregon Sup Ct had not noticed previously
June 2008: USSC granted cert
Dec 2008: oral arguments to USSC
March 2009: USSC decided it had granted cert in error
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INSURANCE
Introduction, 776-785

Damages

Compensatory damages
Economic damages
Non-economic damages
Punitive damages
Function: to punish and deter
Egregious conduct triggers award (sometimes trigger is specified by
statute)
Defs sometimes argue that large and highly variable awards violate
14th amendment due process rights
The Gore guideposts and suggested ratios are meant to reduce
variability, although its not clear when courts will apply different
ratios
Courts sometime worry that the jury is punishing for harm done
to non-litigants
Many states have capped or eliminated punitive awards

Basics of Insurance

First-party insurance v. third-party insurance

States sometimes impose contractual and legal restrictions on what
sorts of risks can and cant be insured against
Strategy
Consider insurance before deciding how to frame a claim
E.g., policy might prohibit coverage of intentional torts, so pff might be
better off claiming negligence if def is otherwise judgment-proof
But, sometimes court will disallow pffs scheming

Collateral Source Rule and First Party Insurance

Recall: Collateral source rule says pff can collect even if first-party insurer
covered losses
If insurance contract contains a subrogation clause, insurer can step into
the shoes of the pff for purposes of recovering indemnity payments made to
the pff

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Frost v. Porter Leasing Corp., 785-792 (skip n. 6-9)

Facts: Frost (plaintiff) was injured in an automobile accident, and sued the other
driver for medical costs, pain and suffering, impaired earning capacity, and future
expenses. Under his union health insurance plan, Frost received medical benefits
from his insurer, Union Labor. Union Labor intervened in the case, claiming a right of
subrogation to share in any recovery Frost might receive for medical expenses. Frost
settled the claim, and the trial court found that Union Labor had a right of
subrogation in the settlement for the amount it had paid to Frost, reduced by a
proportion of Frosts cost in obtaining the settlement. The Superior Court certified
the subrogation question directly to this court.

Whats the role of the insurer in the litigation?

Insurer paid medical costs
Then intervened in tort action (after settlement) by claiming
right to a portion of the proceeds from litigation
Trial court recognized implied subrogation rights
Insurer should receive a portion of the proceeds minus its
share of the costs of recovery
Issue?
Certified question: Should subrogation rights be recognized
when the contract does not expressly provide for them?
How does the court come out on the question of whether the insurer
should have a common law right to a portion of the settlement
proceeds?
No common law right to subrogation
Insurer has no right to any portion of proceeds
Rationale?
Personal injury distinct from property injury, and common
law right does not extend to personal injury cases
In property cases, loss can be determined with
certainty (no intangible losses such as pain and
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suffering); in personal injury, not so easy, so

hard to determine whether insured is actually
compensated twice
No double recovery: settlement (after atty fees) is less than
the total loss
Administrative difficulties in figuring out how much insurer
should get
Subrogation played no role in the bargain over insurance
policy
The court suggests an alternative to denying the insurer the right to a
portion of the proceeds. What is this alternative approach?
Apply formula to determine the insurers cut if settlement
exceeds fair compensation
cut should be net of pffs legal costs allocated to insurers
portion
Why does the court reject this alternative?
the costs of figuring it all out outweigh the benefits
Rationale of concurrence?
Shoots down majoritys property/personal injury distinction
Medical costs can be calculated with certainty
We should not use insurer proceeds to make victim whole
Insured did not purchase medical insurance to
cover other losses
Subrogation holds down insurance costs (prevents windfall)
BUT, not what the insured contracted for (we should not
expect insured to be informed about common law rights)

Liability Insurance, 798-803

Today, liability insurance funds a large portion of pff recoveries
Sometimes lawyers will not pursue the claim if the alleged wrongdoer
is not insured!
Def has no assets, so lawyer (working on contingency fee basis)
wont get paid
Defs assets sometimes protected (e.g., homestead exemption)
Liability insurance furthers compensation goals, but what about deterrence??
If potential def is fully insured, why should he take costly precautions??
Insurers use mechanisms to prevent moral hazard
Experience rating, deductibles, coverage limits
Goal: keep some skin in the game
Lalomia v. Bankers & Shippers Insurance Co., 803-811 (skip n. 3, 4, 9, 11)
What prompted Lalomia to file a complaint alleging negligence?
Wife was killed when her car collided with his motorized bike operated
by 12-year-old boy, who also died
Who was allegedly negligent?
Boy
Father (Daniel Maddock) negligently entrusted boy with bike
Lower court requested a declaratory judgment
Determines partys rights, duties, obligations (not liability or damages)
Decision handed down prior to negligence litigation
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Ruling will determine who will end up pursuing and defending against
the claims
Whats at issue?
Whether liability will trigger any of the insurance policies related to the
claim
Which insurers are possible candidates?
Bankers & Shippers Insurance Co.
sold auto insurance policies to Maddock covering different autos
Insurance Company of North America
sold homeowners policy to Maddock
Liberty Mutual Insurance Co.
sold auto policy with an uninsured motorist endorsement to
Lalomia
What does the court decide with respect to Maddocks auto insurer?
Would not be triggered be/c motorized bike was not a private
passenger automobile
Court likely does not want to put the insurer on the hook for a risk it
did not intend to cover
Courts analysis often involves interpreting contract terms
These sorts of cases are also brought as simple breach of contract
claims after denial of coverage by the insurer
What about Lalomias auto insurance policy that included an uninsured
motorist endorsement?
court says its triggered
But, arent the losses from the accident insured??? (i.e., wont the home
owners policy cover the losses?)
The motorbike was uninsured
The home owner policy covering negligent entrustment does not count
as insurance for purposes of triggering Lalomias policy
What happens if the boy (but not the father) is found negligent?
Lalomias insurer must cover damages according to its policy
What happens if both the boy and the father are found negligent?
The court will ask the jury to allocate damages between them
injuries are likely indivisible (so no allocation based on
causation); therefore, allocate according to fault or responsibility
If joint and several liability, then the pff can recover from either
insurer (up to the limits) and the insurers settle up later
If several liability only, Lolamias auto insurer will cover the
damages allocated to the boy and the home owner insurer will
cover the damages allocated to the father
If the policies do not cover all damages, then the father might be on
the hook personally

Insurance Overview

First-party insurance (loss insurance)

Most jurisdictions operate under a collateral source rule
combined with subrogation rights (scenario 3)

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Collateral source rule allows recovery from def

even when a 3rd party (e.g., insurer) covers
some of the pffs lossesmaintains deterrence
Subrogation rights allow the first-party insurer to
step into the shoes of the pff for purposes of
pursuing the pffs claimno windfall for pff
If the insurance contract does not
contain a subrogation clause, court
might not allow insurer to step into
pffs shoes
A few jurisdictions write this term
into every contract as the default
rule (parties can contract around)
The issue in Frost rarely comes up
these days because standard
insurance contracts contain clauses
granting the insurer express
subrogation rights
Third-party insurance (liability insurance)
These policies come with both a promise to indemnify and a
promise to defend
Disputes can arise when the insurer decides it is not
responsible for covering a particular loss (see Lalomia)
Resolved through breach of contract claim
Or declaratory judgment to decide who must
defend def and who can step into shoes of pff

A SURVEY OF ALTERNATIVES
Tort Reform, 820-829
Intended goal: to reduce premiums (often medical malpractice premiums)
Theory: if we reduce both size and variation of awards, price of medical
malpractice insurance will decrease
Other goals
Stabilize access to care
Docs might gravitate toward states with lower med mal
premiums and less litigation
Reduce practice of defensive medicine
Over-utilization of diagnostics, etc. to avoid med mal suit
Shifts away from high-risk areas (e.g., obstetrics)
Reduce the cost of medical care
If producing medical care costs docs less, then medical care
prices will decrease; health care insurance becomes more
affordable

Tort Reform: Does it Work?

1. Small effects or no effect on the supply of physician services
although reforms do tend to increase supply in certain specialty areas
and rural communities
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2. Joint and several liability reform tends to stabilize premiums

total claim payments do not decrease
physician supply is not affected
3. Shorter statutes of limitations/repose might decrease claims frequency and
premiums
although evidence is mixed
Attorney contingency fee limits do not decrease claim payouts, claim frequency,
premiums, physician supply
5. Mandated periodic payment reform does not decrease claim payouts, claim
frequency, premiums, physician supply
6. Damages caps might be effective at lowering premiums but only if economic
damages are capped or non-economic damages caps are severe
punitive caps tend not to lower premiums
caps do not seem to lower the cost of employer-sponsored health care
insurance
caps on non-econ damages and punitives do not increase the rate of
health care coverage, but caps on total damages do
Evidence of impact of caps on defensive medicine is mixed, but recent
evidence suggests small effects if any
Alternative: Sorry Works
If adverse outcome, hospital analyzes cause
If error or negligence
Meet with patient and her attorney
Apologize and possibly admit fault
Explain what happened and offer to fix the problem
Offer compensation
If no error or negligence
Meet with patient and her attorney
Answer questions and open records to prove reasonable care
Vigorously defend against legal claims
Theoretical Benefits of Sorry Works
Reduction in anger leads to fewer lawsuits, lower settlements
Defense costs are reduced
time to close reduced
Number of non-meritorious cases are reduced
Medical errors reduced due to increased information sharing
Doc-patient relationship protected
Some Evidence
First implemented by U.S. Dept of Vet Affairs facility in Kentucky
Annals of Internal Medicine (1999): after implementation, the facility
ranked in the lowest quartile of VA facilities for malpractice payouts
average settlement per case was $16,000 versus the national VA
average of $98,000
All VA facilities have adopted the program
Univ. of Michigan hospital system adopted
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Number of suits cut in half

Although no comparison group so causation hard to infer
Reported saving $2M per year in defense costs (2/3 of defense cost
budget)
Hospital able to lower reserves, which reduces costs
Other health care systems have adopted

Workers Compensation, 829-846 (through n. 8)

Prior to the early 1900s, employees injured on the job were required to file a
tort claim to recover damages from employers
E.g., if the EE could show that the ER acted negligently, the court
might award damages
Often, however, the ER avoided liability by arguing that one or more
affirmative defenses apply. What were these?
Fellow servant rule: no recovery if another EE contributed to
the injury
Contributory negligence
Assumption of the risk of customary and observable dangers
State legislatures began to eliminate these defenses, but EE was still
required to show fault on the part of the ER
1910: NY passed first WC statute
After a couple court battles and an amendment to the state
constitution, the WC scheme replaced the tort system for worker injury
Since then, every state has enacted some form of WC
Mandatory for employers in most states
Some workers are excluded (e.g., domestic workers, agricultural
workers, employees of small employers, etc.)

Quid Pro Quo: Benefits for EEs and ERs

EE benefits

ER benefits
1. Scheduled benefits,
limited in duration and
amount
2. No benefits for P&S
3. WC is exclusive remedy
against ER and coworkers (but EE can sue
3rd parties)

Modern courts have held that these statutes do 1. No need to show

not violate the EEs constitutional rights
fault
because statutes offer a quid pro quo

2. ER cant assert
defenses
3. Immediate
payment

126