NEGLIGENCE I. The Negligence Principal 1. What is Negligence. -Generally, it is when Ds conduct unreasonably puts others at risk.

To determine whether it was unreasonable a court will balance the care a reasonable person would take with an activity (compared with the care D took) and the overall utility of an activity. 2. What constitutes the prima facie negligence case? - Duty, Breach, actual cause, proximate cause, and actual damages 3. What are the roles of judge and jury? -Judge decides the law. If judge decides no reasonable person could disagree on the facts they will instruct he jury on the facts. -Judge also determined if the defendant had a duty to the plaintiff. -Jury determines facts, such as what actually occured, whether there was a breach of duty, and whether there was actual and proximate cause. II. Standard of Care 1. What is unreasonable risk? -to show D didnt meet the standard of care, P must show that there was an unreasonable risk of harm. -Not judged by results: the conduct must be viewed as of the time it occured. Hindsight and the fact that there was injury is not enough, burden is to prove at the time of te act an unreasonable risk was imposed on P. -Some objects are more inherently dangerous than others so risk has to be at the time (for example a shotgun lying around is more likely to cause injury than a golf club lying around) - A balancing test is used to determine how a reasonable person would have acted under similar circumstances. - In Carrol Towing, Learned Hand put forward the famous equation to determine if liability exists when B< LxP (where B is the burden on defendant, l is the gravity of the injury, and P is the probability the injury Would occur. - An exact calculation of this formula is often and impossible and is rarely used by courts, however it is a good general way to think about when liability exists. -The Restatement phrases this balancing test as Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act negligent if the risk is of such a magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. 2. Warnings -Failure to warn can be negligent under certain circumstance. As the restatement says failing to warn can be negligent when 1) The defendant knows or has reason to know that a) of that risk and b) that those encountering the risk will be less aware of it; and 2) a warning might be effective in reducing the risk of physical harm. - A warning does not immunize D from negligence. If the behavior is so unreasoanably

dangerous and no other precautions are taken, or if the warning is too vague to be useful it will not be enough 3. The Reasonable Person -Would a reasonable person of ordinary prudence, in the position of the defendant, have conducted himelf as the defendant did. -This is an objective standard and things like clumsiness , weight, insanity, intellegince are not taken into account. -There are some exceptions to this, however.: -A physical disability, such as blindness, will adjust the standard to how a reasonable blind man would act under the circumstances -voluntary intoxication is NOT an excuse -very young children are not capable of negligence, and those still under 18 are held to a standard of someone of the same age, intelligence, and experience. Also, this rule does not apply if a teenager is partaking in an adult activity. -tough to determine the knowledge an ordinary person would have, but generally they are of ordinary experience, of the community(rural vs. big city differences),has a duty to not be ignorant of easily ascertainable things (such as wear on a tire prior to a blowout), reasonably remembers thing, only distracted my major occurences. 4. The Role of Custom -custom is the way a certain activity is habitually carried out in a trade or a community. A plaintiff may point to the fact that defendant did not follow traditional safety protocols,or a defendant may argue that he followed customary safety procedures and therefore was not negligent - custom is not conclusive, the standard is still reasonable person. However if it is custom to do things a certain way, if there is no evidence to rebut that this is areasonable way to do things than it is likely to be found in favor of the custom. - The state of the art, or updated technolgies, is also considered in a similar way. 5. Emergency -In an emergency, the standard of care shifts to how a reasonable person would act given the emergency. -However, if the emergency was caused by the defendents negligence , the defendant is negligent for the creation of the emergency rather than his response to it. 6. The Role of Statutes (Negligence per se) - Restatement gives a good summary of negligence per se: An actor is negligent, without excuse, if the actor violates a statute that iis designed to protect against the type of accident the actors conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. And example ofthis is seen in Herzog -On the other hand, Like seen in Tedla if a statute merely codifies the common law or regulates conflicting rights in a manner designed to promote public convenience and safety, then failure to follow that statute for good cause is not negligence unless there is clear language to the contrary. -there must be a causal link between the violation of statute and the resulting injury

III. Proving Negligence 1. Circumstancial Evidence -In torts cases, it is often very dificult to have direct evidence (i.e. the smoking gun) and therefore will often have to rely on circumstantial evidence. -The plaintiff must prove their case by a preponderance of the evidence. - This evidence must be weighed by a jury, and differing results based on the amount of circumstancial evidence is seen in the verdicts of Negri and Gordon. 2. Res Ipsa Loquitor -Literally translated to mean The thing speaks for itself this type of argument allows a plaintiff to prove a case merely by the fact that an accident happened. -generally it is agreed up that there are four main requirements: 1)There is no direct evidence of the defendants behavior 2) The event would normally not occur without negligence 3) The instrument that caused the injury was in the exclusive control of the defendant 4) Injury was not due to the plaintiffs own actions -a fifth consideration is also whether the defendant is in the best position for the information to be accessible to him. -when there is more than one defendant, relationship is taken into account. As seen in Ybarra plaintiff was a patient in a hostpital for appendectomy. After the surgery his shoulder was seriously injured. The defendants were the whole surgical team, and since plaintiff was uncouncious and couldnt have known who did what, it would be unreasonable for him to have to single out someone from the surgical team. IV. Malpractice -In the medical profession, superior knowledge or ability makes them held to a higher standard -The general rule is that professionals must act with the level of skill and learning commonly possessed by a member of the profession in good standing. -good results are not guarateed, just that minimum skill and competence is used. -specialists are held to a higher standard -often in medical malpractice there is a need for expert testimony, not enough to testify that he would have done differently but that the defendants course of action departed from al lacceptable conduct. It is a difficult standard to meet. -courts have moved away from a local standard to a national standard. -an important part of the doctors duty is getting informed consent. Doctor must disclose all risks and treatments that are material and that any reasonable patient would take into account. depends on whether the courts use a reasonable patient standard or not (most do). DUTY 1. Duty in General -In most tort cases the duty of a defendant is simply to behave like a reasonable person would under the circumstances. There is no general duty to act so unless there are special circumstances no duty to help someone. - There are classes of cases where a defendant owes plaintiff more or less then the

normal reasonable person standard. When you have a special relationship like this, failure to act is a type of negligence. 2. Special Relationships -Common Carriers are held to a standard that they must make things as safe as possible A common carrier must always choose the course of action least likely to expose its passenger to harm. -People who maintain business premises must use reasonable care to furnish warnings and assistance to a business visitor. -Employers have a similar duty to employees -non-negligent creation of risk-if a D puts P in a dangerous position, there is a duty to take reasonable care and reduce risks. -Defendant and victim as co-venturers. An example of this is in Farwell. Since the defendant and his friend engaged in a common undertaking and therefor there was an implicit promise of assistance to the other where this could be done without danger. -Assumption of duty means that if D starts to help P, must proceed with reasonable care and cannot stop helping if doing so if it would leave defendant in a worse off position.

3. Policy Reasons for not not considering a duty -Crushing liability, as seen in Strauss Courts have declined to extend liability to noncustomers when it would open up enormous liability. -Social hosts, as seen in court has been reluctant to extend the same kind of liability to social hosts that is extended to commercial vendors. Social host liability will have more far reaching implications because there are only a limited number of bars, liquor stores, etc., but there are a lot of adult residents that throw parties. Specifically while it still does apply to minor injured, it does not extend to 3rd parties. -Negligent entrustment- as seen in Vince, General rule is that negligent entrustment applies to combined negligence of incompetent driver and car owner who lends car to incompetent driver. This case said that it also applies to those who purchase cars for others. 4. The Duty of Landowners and Occupiers -When talking about injuries on land there are distinction to be made to determine duty. In many states there are 3 categories, trespassers, liscenees, and invitees. Many states have done away with the distinction between liscensees and invitees. a) As a general rule trespasser are owed no duty. An invitee who goes beyond the scope of their invitation is also considered a trespasser. (e.g. employees only sign) -There are exceptions to this general rule: 1)If there is constant trespass on a limited area there is a duty to keep the area reasonably safe or to warn of danger. (for example a common crossing of a railroad track) 2) If the owner discover or has knowledge of the trespasser, the owner is under a duty to take reasonable care 3) There are more liberal rules for the plaintiff it is a child. Factors that are considered are the likelihood of trespass, how unreasonable the danger on the property is, child is ignorant of the risk, the utility of the owner maintaining the risk, and a lack of

reasonable care in removing the risk. -Important note, the dangers are generally only man-made and not natural aspects of the land. b) A liscensee is a person who has the owners consent to be on the property, but has no business being there. -the main class that qualify are social guests. This also includes people that do incidental services such as wash the dishes or cultural or fraternal activites are still licensees. -The rationale for the principal is that guest understand that he takes the premises on the same footing as the owner herself and should not expect the owner to have to look for unknown dangers. -The duties to licensees is that when an owner knows of a danger, there must be a warning. There is no requirement to remove the danger. -This includes natural conditions, but there is no duty to inspect the property. c) Invitees are guests that are invited for the economic gain of the host. -The duty to an invitee is to reasonably inspect and find hidden dangers as well as the duty to licensees. There is also some duty to take control over third persons (i.e a shopkeeper hiring a security guard). -The class of Invitees also includes people who are invited as members of the public for purposes where the land is held open to the public. -This counts for business people with a business history but not currently conducting business, and for door to door salesman but only once they are invited in. -becomes a licensee or trespasser if he goes past the point of his invitation. -Note: firefighters and police officers are considered licensees because these public servants are aware of the risks inherent in the job. Some states have eliminated the rule, while most have not. Causation in Fact 1. Causation in fact-general info - Causation in fact means that the defendant factually caused the injuries to the plaintiff. The but for test is a good judge of this. 2. The but for test - but for the defendants actions, the plaintiffs injuries would not have occured. -This is generally an easy standard to prove -if there are concurrent causes, if either one would have been sufficient to cause substantially the same harm (for example a spark from an engine causes a fire, meets up with a fire of unkown origin and destory p property, then the owner of engine is fully liable) -The above test is known as a substantial factor test because thespark would have to be considered a substantial factor in bringing about the harm in order for there be recovery. -for expert witnesses, the test to allow the testimony is generally whether it is scientific

in nature (i.e. determined by the scientific method). The 4 Daubert factors are (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. 3. Applcations of but for test in other unique situations -The plaintiff does not need to prove wth bsolute certainty that D caused harm, just thatit is more likely then not. In Stubbs, plaintiff claimed contaminated water caused him to get typhoid. D argued there were other ways to get typhoid. If more than one possible causes of harm exist, and the defendant would be liable for one of them, the plaintiff must establish with reasonable certainty that the cause of the injury was the one for which the defendant was liable. He does not need to eliminate all other possibilities. -If a negligent act is deemed wrongful because that act increases the chances that a particular type of accident will occur, and a harm of that very sort does occur, there is adequate support for a finding by the trier of fact that but for the negligent act, the harm would not have occurred. In Zuchowiz P was accidentally prescribed double recommended dosage. expert testimony of Dr. Matthay and evidence of Mrs. Zuchowiczs condition, has met his burden of proof in showing that his wifes death was caused by Danocrine -Loss of chance is also a form of causation in fact. In Matsuyama negligence on the part of the doctor gave matsuyama no chance of surviving. A competent doctor would have caught the disease at a point where matsuyama would have had a 37 percent chance of survival. damages were 37 percent of what a full award would have been. 4. Joint and several liability -Joint tortfeasors are 2 or more individuals who either (1) act in concert to commit a tort (2) act independently but cause a single indivisible tortuous injury or (3) share responsibility for a tort because of vicarious liability. Under common law, each such tortfeasor is jointly and severally liable for the Ps total damage. This means each is fully liable for the entire damage. Have moved away from this recently with comparative negligence the norm...if a defendant is judgement proof however other defendants can still be laible for that amount. -to many this will seem unfair because one defendant may have more money then the rest could have to pay it all even if he is only 10 percent responsible. Because of this some courts have moved away from the concept altogether. 5. Double Fault and Alternative liability. -When the plaintiff can show that each of the defendants was negligent, but only one was responsible for the injury, it is up to the defendendants to prove which caused the harm. -In Summers, P was injured when both defendants negligent shot a gun, but only one actually injured him. burden shifted to defendants to absolve themselves, and when niether could both were liable. Makes sense so plaintiff is not left remediless. 6. The Market Share Theory

-Another way to determine liability for multiple defendants is market share theory, this is often used in cases against drug companies. Defendant must pay the market share of the damages. The question is whether its local or national market share. -In Hymowitz, a drug caused damage to pregnant woman. DES manufacturers are severally liable to a plaintiff in proportion to their national market shares, and a court cannot exculpate a manufacturer who produced and marketed DES for use by pregnant women but can prove that it did not cause the particular plaintiffs injury. They also were not jointly liable. Proximate Cause -Proximate cause deals with the Ds liability for unforeseeable or unusual occurrences or consequences following the Ds act. It is a policy determination: Under some circumstances, it is deemed unfair to hold the D legally responsible for all consequences caused by his wrongful conduct, hence the question, How far does the Ds liability extend for consequences caused by his negligent acts? 1. Intervening acts and the egg-shell plaintiff rule -proximate cause is broken by intervening causes. And example of an intervening cause would be an act of god or of an animal. -what is not an intervening factor is the preexisting conditions of the plaintiff. The eggshell plaintiff rule says a plaintiff must be accepted as he is. In Benn, defendant rear ended the decedents van and caused him injuries and he died 6 days later of a heart attack. D argued preexisting condition led to HA, but court applied the eggshell patient rule. -other things that are not intervening causes: forces set in motion by d, and failure to act by others. -further damage during treatment of injuries is also not considered an intervening cause 2. Direct causation vs. Foreseeability -A pure direct causation test does not take foreseeability into account and only if it is a direct consequence. This is a minority view however most courts will consider the foreseeability of the harm. -This view is articulated in Wagon Mound. In Wagon Mounddefendant ship spilled oil into bay..a few days later molten metal dropped and ignited the oil. Court ruled this was not negligence because A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act. 3. Intervening Factors-Third Party criminal acts -Some courts hold D not liable if the D had no reason to expect intentionally tortuous or criminal acts by a third person, even though his negligence afforded an opportunity for such conduct and the foreseeable harm occurred - In Doe v Manheimer, Doe was raped behind Ds negligently overgrown bushes.Once you've put a plaintiff at risk, you are not relieved of responsibility merely because a third person was the cause in fact of the harm (unless the third person acted intentionally, and the nature of the harm was not within the scope of risk you created). In this case it was intentional and not foreseeable that overgrown bushes would lead to rape.

4. Palsgraff and the unforeseeable plaintiff -A defendant is only liable for negligence if he owes a legal duty to the plaintiff and breaches that duty, and if the resulting harm was reasonably foreseeable. - in Palsgraf, plaintiff was a lady standing on a railroad track...man was running to catch train at other end of platform, jumped on and employees helped him...a package got dislodged and fireworks exploded, a shock caused stuff to fall and hit the P. Cardozo wrote opinion (and it is followed by a majority of courts) Even if an act amounts to negligence, it is not actionable if it does not violate a legally protected interest of the plaintiff. The plaintiff may not sue on behalf of the risk of injury or bodily harm perpetrated against another -Courts do sometimes hold that even ifit was unforeseeable if the same type of harm that would be expected occurs, there may be negligence even if it was in an unusual manner(for example a once in a generation lighting strike causes a fire, and people are trapped in a building because of improper fire escapes, defendant would be liable.) Emotional Harm -In most courts, to recover for emotional harm there must be impact or near-impact combine with a physical manifestation of the emotional distress. As a policy reason this is so there are less fraudulent claims. An example is in Falzone, where a car barely missed hitting P. She became ill and needed medical treatment. The court allowed her to recover -Exceptions to this rulle that danger must be imminent is cases where a corpse is mishandles or P is wrongly told a close family member has died.This is seen in Gammon when P is told he is recieving his fathers personal effects but instead recieves a severed leg. -Some states are abandoning the need for physical manifestation, but it is still the majority rule. 1. The at-risk plaintiff - A plaintiff generally cannot recover from possible exposure to a disease unless there is some form of physical manifestation. In Metro-North, the plaintiff had negligently been exposed to asbestos and sued for emotional distress even though he had shown no symptoms. Court denied recovery because Simple physical contact with exposure and no symptoms or contracting of disease does not equal physical impact. 2. Horror and bystander emotional distress -The old rule used to be that a plaintiff needed to be in the zone of danger in order to recover. That meant parents watching their children suffer but who themselves were not in danger were barred from recovery. Most states have abandoned this though in favor of a dillon factors test. We saw this applied in Portee where a mother saw her kid trapped in an elevator a painfull die. These factors are 1) whether plaintiff was located near the scene of the accident, 2) whether the shock resulted from a direct emotional impact from observing the

incident, and 3) whether P and victim were closely related. The portee court also added the factor of how severe the injury that was witnessed is. -We saw a limitation to this rule in Johnson. In Johnson, Ps are parent of a girl who was born in Ds hospital and was abducted from the nursery by a stranger; she was recovered four months later; P sued to recover for E.D. suffered in the interim, alleging hospitals negligence. Court denied recovery because There was no duty between the hospital and the P to care for Ps child, and that the abduction was foreseeable. The direct injury allegedly caused by Ds negligence-abductionwas sustained by the infant, and Ps grief and mental torment which resulted from her disappearance are not actionable. Forseeability of the abduction does not serve to establish a duty and in the absence of such a duty as a matter of law there can be no liability. Economic Harm - In situations where D behaves negligently toward P in a way that is purely economic, traditional rules generally hold that P cannot recover. This is seen in both Nycal when it was between info from private parties, and in 532 Madison when the loss came from a public nuisance.

Defenses 1. Contributory negligence and comparitive negligence -Plaintiffs are also expected to act with reasonable care. When they dont, they are to some degree contributorily negligent. Historically, this was a complete bar to recovery. However, most states have moved away from this model and on to one of comparitive negligence. -Many states now use the Uniform Comparative Fault act, or some version of it. Comparitive fault apportions the damages based on fault. Some states have a pure model, while others require plaintiff to be less then 50 percent responsible. B. Comparative Negligence Adopted in virtually every state. Attempts to individualize accident recoveries by placing the economic sting on the parties in proportion to their fault. 1. Pure comparative negligence Allows P to recover a percentage of her damages even if her own negligence exceeds that of the D. 2. Modified/Partial comparative negligence Deny any recovery to plaintiff whose negligence passes some threshold level. A) 49% limit plans Some states deny recovery to the P if her negligence equals or exceeds that of the D. If P is 50% at fault, she recovers nothing. B) 50% limit plans Some states allow P to recover if Ds negligence equals or exceeds that of the P. So if P is 50% at fault she an recover half her damages. C) Multiple Defendants If several Ds are negligent, but not jointly liable, most states following the partial approach hold that the Ps negligence must be less than that of any defendant. But some states allow aggregation of the Ds percentages.

3. Impact of comparative negligence on other rules A) Last clear chance Doctrine is abolished under comparative negligence because the Ds negligence as a whole is compared to that of the P, making no difference, whether the Ds negligence occurred before of after the discovery of the Ps predicament. B) Wanton or reckless conduct by defendants Most states have held that the negligent Ps damages can be reduced even if the Ds conduct was reckless, wanton, or grossly negligent. 1) Compare reckless plaintiff In a pure comparative negligence state, a reckless plaintiff may recover some damages from a negligent defendant. C) Avoidable consequences The Ps unreasonable failure to mitigate damages caused by the Ds negligence will serve to decrease the Ps damages rather than bar recovery. 1) Failure to wear safety belt In states with statutes mandating the use of safety belts, evidence of failure to wear one can be admitted. Where no such mandate exists, mist courts have held evidence of failure to wear a safety belt inadmissible on the issue of comparative negligence or avoidable consequences. 2) Religious Beliefs Some argue that the eggshell skull concept be applied. D) Jury Instructions Courts are split over whether the jury in a comparative negligence case should be told about how the law works (so that the jurors will know the consequences of their apportionment. E) Imputation of comparative negligence The availability of comparative negligence has led some courts to alter rules to permit imputation of negligence. 1) From one P to another P a. Loss of consortium Most states that have addressed the issue have treated the claim as derivative and have imputed the negligence of the injured spouse to the other spouse. One reason to treat the action as derivative was that the action of the negligent injured spouse harms not only the marital interest of the other spouse, but also affects the unity of the familial entity which is in fact an economic unity. Second reason was that imputation was the simplest and most efficient way to reach a just result. b. Parent-Child Later courts have refused to impute the negligence of parents to children. F) Rescuers Although some states have concluded that rescuers no longer need any special protection, in light of comparative negligence, most courts have retained the earlier rule. Rescuers conduct that is negligent at most should not permit reduction in award. G) Res ipsa loquitur Most states have concluded that after the introduction of comparative negligence, the P need no longer show freedom from contributory negligence, as part of the res ipsa case. If evidence clearly shows contributory negligence on the Ps part, court asserts that res ipsa could be used if the Ps evidence showed the first two conditions. Then, once the trial court rules that the doctrine is applicable, the jury must then compare any evidence of negligence of the P with the inferred negligence of the D and decide what percentage of negligence is attributable to each party. H) Punitive damages P may not recover punitive damages where the jury has attributed more fault to the P than the D. Permitting it would undermine the purpose of

comparative negligence. I) Reckless Conduct Virtually all states with pure versions have concluded that reckless conduct should be compared with negligence. In states with modified versions, the comparison cannot be made when the P has been reckless and the D negligent. J) Drinking Plaintiff A person who kills himself driving drunk may have a common law negligence action against the licensed vendor who supplied the alcohol. States that have adopted comparative negligence also permit negligent entrustment actions by drinking drivers against the persons who lent them the car although they knew that P were incapable of driving safely. K) Subsequent harm Ps condition aggravated by other factors. A court held that the D motorist was not responsible for the aggravation because the introduction of several liabilities showed a legislative desire to hold Ds liable only for their own fault. L) Economic Losses Court notes that in this type of case public policy considerations underlying the statute may be applied to support a common law rule of comparative negligence, M) Interplay of intent and negligence - Most of the states that have addressed the issue, refuse to compare the negligence of a P with the intentional tort of a D because intentional conduct is different in kind from negligence or reckless conduct and therefore may not be compared. 2. Ps negligence creates need for Ds service -If p is negligent and causes him to need medical services, if there is any malpractice contributory negligence cannot be used by D. We see this in Fritts where P negligently drives drunk and end up in a hospital.The court holds that no matter the reason for being in the hospital, the plaintiff still deserves non-negligent medical care. 3. Assumption of Risk -The assumption of risk defense occurs when D alleges P knew of the risks that ultimately harmed him and consented to do the activity anyway -The two major kinds are express and implied -Express is usually in the form of a contract. These are not always valid though. In Hanks, we saw that an express assumption of risk was not given weight because it would be bad public policy to release businesses from liability for their own negligent behavior -Implied consent occurs when plaintiffs actions demonstrate they knew the risk. In Murphy, P went on an attraction is called The Flopper. It consists of a moving belt that causes passengers to be thrown backward or aside based on its jarring movements. During one jarring movement, P was injured. Court held that One who voluntarily participates in a sport accepts the inherent dangers in it so far as they are obvious and necessary to participation. -In comparitive negligence, assumption of risk is not a complete bar to recovery. Four requirements to establishing a defense of assumption of risk: 1. must have knowledge of the facts constituting a dangerous condition 2. must know the condition is dangerous 3. must appreciate the nature and extent of the danger

4. must voluntarily expose himself to the danger there must also be no reasonable alternatives. In Davenport, it was seen that reasonable alternatives meant there was an assumption of negligence. However, since it was a state with commparitive negligence this was not a complete bar to recovery. - In Levandoski, we saw this defense attempted When P, a police officer, chased D on private property and was injured. The firefighter rule would traditionally hold that a firefighter could not recover here. In this case however it was not a valid defense because the reasons for the firefighter rule did not apply here. Strict Liability -Strict liability is liability regardles of the intent and negligence of D. The 3 major categories of this are wild or other dangerous animals, abnormally dangerous activities, and workers compensation. -In Ryalands, Rylands owned a mill, and built a reservoir on his land for the purpose of supplying water to that mill. This resevoir broke and flooded s land. The court held him strictly liable because A person who lawfully brings something onto his land that, if it escapes, is capable of doing harm, is strictly liable for any harm occurring as a natural consequence of the escape. -Rylands 2 further clarified that a natural use of a resevoir there would not have been strict liability. -As far as dangerous activities go, the restament describes it as an activity that creates a foreseeable and highly significant risk of physical harm even when reasonable care is excersiced by all actors. -Explosives are almost always in this category. InSullivan, explosives were being used to remove tree trunk. A trunk hit plaintiff and injured him. D was strictly liable...a turning point in the case was the fact that P was directly injured.

Products Liability -There are three main theories where a seller can be liable...negligece, warranty, and strict liability. 1. Negligence -similar to general negligence...it was different at first because of privity, but that is no longer the case --Macpherson was a landmark case whose rule has been adopted by all 50 states. Buick sold an automobile to a retailer, who sold it to MacPherson (plaintiff). The automobile contained a defective wheel which had been manufactured by another company. The defect was unknown; however, Buick could have discovered the defect through a reasonable inspection. The court held that A manufacturer of articles that are not inherently dangerous but that may become dangerous when improperly constructed owes a duty of care to anyone beyond the purchaser who might foreseeably use the articles, when it is reasonable to expect no further tests will be performed.

2. Manufacturers defect - A manufacturer incurs absolute liability when an article that he has placed on the market, knowing it is to be used without inspection, proves to have a defect that causes injury to human beings. This comes from Escola, where the bottles were filled by CocaCola Bottling Co. of Fresno (Coca-Cola) (defendant). As Escola was handling the fourth bottle, it exploded in her hand and caused her severe injuries. 3. Design Defect a. Risk/Utility Test The product is defective as designed only where the magnitude of the hazards outweigh the individual utility or broader societal benefits of the product. The R/U test posits, in effect, that only reasonably safe products should be marketed, and defines reasonably safe products as those whose utility outweighs the inherent risk, provided that risk has been reduced to the greatest extent possible consistent with the products continued utility. When analyzing risk/utility cases, comparisons among products must consider only comparable products. Factors In balancing the risks against its utility and costs, jury may consider: 1] The utility of the product to the public as a whole and to the individual user 2] the nature of the product that is, the likelihood that it will cause injury 3] the availability of a safer design 4] the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced 5] the ability of the P to have avoided injury by careful use of the product 6] the degree of awareness of the potential danger of the product which reasonably can be attributed to the P 7] the manufacturers ability to spread any cost related to improving the safety of the design. -This approach is seen in Camcho, where adding leg bars to a motorcycle would have significantly reduced the impact of an injury. b. Consumer expectation Test Under an alternative approach, P must prove that the product did not perform as safely as an ordinary consumer would have expected. Safety of the product when used either in the intended way or in a reasonably foreseeable way. Rule applies only where the product is, at the time it leaves the sellers hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. This test focus on the reasonable expectation of the user and the surprise element of the danger involved, and has been adopted by many courts. Test imputes to the hypothetical consumer ordinary knowledge common to the community as to characteristics. Reserved for cases in which the everyday experience of the products users permits a conclusion that the products design violated minimum safety assumptions, and is thus defective regardless of expert opinion. It was rejected in Soule because a complex product, even when it is being used as intended, may often cause injury in a way that does not meet ordinary consumers reasonable minimum assumptions about safe performance.

C. Reasonable Alternative Design Except in circumstances in which defendants product is so frivolous or dangerous or both as to be lacking altogether in utility, a Ps proof of defect must show that there was at the time of the original manufacture of the product some technologically feasible, safer alternative for it. Under this prevailing approach, the question for the jury is whether D could have removed the danger without serious adverse impact on the products utility and price. RAD looks very much like custom. Take the product in contention and compare like elements of other products. Reasonable if alternative is out there and someone else is using it.

3. Warnings -A product may be held defective if danger is caused by an inadequate warning. Proper warning can save a D when the product is manufactured and designed properly, as long as the warnings are adequate. - Manufacturers do not have a duty to warn against every possible outcome, the warningsjust must be prominent and emphasize the risks. In Hood, warnings were adequate because they properly warned P not to remove guards from the saw and properly emphasized how dangerous the injury could be.

4. Warnings with regards to drug manufacturers -In Karl we saw a state reject the learned intermediary doctrine. It is a rule that has been adopted in about half the states. Under this doctrine, it was the drug manufacturers responsibility to give proper warning to doctors, and then the doctors responsibility to warn patients. -A defendant will not be held liable under an implied warranty of merchantability for failure to warn or
provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. In Vasallo we saw a court refuse to let hindsight make a company liable.

Damages Collateral source rule- P is entitled to recover her out of pocket expenses, even if she was reimbursed for these losses by some third party. Arumbula -There generally must be some physical harm, then a variety of damages can be added -Some degree of cognitive awareness of loss by the plaintiff is a prerequisite to recovery for loss of enjoyment of life. Seen in Mcdougald, where Emma McDougald (plaintiff) underwent a Cesarean section and tubal ligation in 1978. The procedures were performed by Garber (defendant), and anesthesia was performed by Armengol and Kulkarni (defendants). During the surgery, McDougald was deprived of oxygen and suffered brain damage leaving her in a permanent coma.

-as seen in Seffert, An appellate court can only interfere and say that a judgment is too

much if the amount of damages shocks the conscience and suggests passion or corruption on the part of the jury
-majority rule allows the per diem argument -damages are a combo of economic loss, pain, suffering, (must be conscious, lost wages, loss of consortium Punitive damages Punitive damages are sometimes awarded to punish D and deter the behavior in the future. As seen in State Farm said that if punitive damage is more then 10x actual damages, then it probably violates due process.
o

As said in Taylor Court says that malice implies an act conceived in a spirit of mischief or

with criminal indifference to the obligations owed to others. o Regardless of intent, a conscious disregard for the safety of others is sufficient to support an award for punitive damages -therefore drunk drivers can have punitive damages against him.

Case Notes Andrews- A common carrier owes a duty of utmost care and the vigilance of a very cautious person
towards its passengers, and is required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances. A briefcase was placed in the overhead bin

above Andrews seat. After landing, an unknown person opened the bin and caused the briefcase to fall on Andrews. Andrews suffered injury and brought suit against United for negligence on the ground that the injury was foreseeable and the airline failed to prevent it. At trial, Andrews presented two expert witnesses. The first stated that one hundred thirty-five similar incidents had occurred on United flights, and that United had responded by adding a warning announcement. The second witness testified that United could have taken additional steps to prevent the danger to its passengers, such as retrofitting its overhead bins with baggage nets or requiring passengers to store only lightweight items overhead. Trimarco- A party is liable for negligence when a custom or accepted practice is coupled with proof
that such custom or accepted practice was ignored and that this departure was the proximate cause of ones injuries. Vincent N. Trimarco (plaintiff) was injured when a glass bathtub shower

door enclosure shattered in his apartment while he was sliding the door open to exit the tub. The door was made out of ordinary glass, however, Trimarco assumed it was made out of tempered, shatterproof safety glass.