Erica BuschFall 2009

TortsKessler

GENERAL OVERVIEW:

Tort: there is no single definition of “tort”. (1) tort is civil wrong committed by one person against another (2) torts can and usually do arise outside of any agreement between parties.

Kessler Tort: The kind of injury or harm for which the courts will order a remedy in a civil proceeding at common law, not contract or criminal law.

Ladder of Abstraction: The law can be very generic and abstract. You apply the law by climbing the ladder of abstraction (or you may want to reverse the ladder so things are more abstract as you climb). Either way, you start with something that is more of an idea, and apply it up the ladder until you can apply it to your particular set of circumstances. At the bottom of the ladder, be very specific as to the facts of the case.

Ex. Only one Bessie the Cow. Going up the ladder of abstraction, things become more generalized. Ex. Bessie--cow--livestock--depreciated asset.

General Points: 

To be guilty in a civil trial: P must prove; needs to prove by a “preponderance of the evidence” (aka “more likely than not”); establish a Prima Facie case.

  If you have the facts, argue the facts. If you don’t have the facts, argue the law. If you

don’t have the facts or the law, argue the policy. 

Sufficient evidence is enough so that one reasonable juror could differ, this makes it enough to go to court.

  Why use juries?

1. How do you know the judge isn’t biasly deciding?a. Hates railroad, landlords, etc.

2. Opinion of the judgea. Judge thinks that this isn’t a good case and there isn’t enough evidence then

dismisses it, in this case has been decided by the judge instead of the jury3. Don’t have a mechanism for preventing certain cases from going to juries, the

defendants might lose because of the jury’s bias 

Some problems that aren’t justifiable Proof Problem Financial liability Don’t know what the right answer is

I. CAUSATION: CAUSE IN FACT: The claimed negligence must be the cause of the injury.

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Cause in Fact: P must prove by a preponderance of the evidence that D’s negligence was the cause in fact of P’s injuries.

Injury wouldn’t have happened at all “but for” the NEGLIGENT, wrongful, act of the D.

Negligence + CIF=Liability

o D is only liable for those damages that were caused by his negligence. Defendant can be held guilty if it appears that his conduct was the probable cause of the injury. This is not an absolute burden, just more likely than not, absolute proof is not necessary.

o P must show that negligence was caused by a preponderance of the evidence. The P must establish a reasonable causal link between defendant’s actions and plaintiff’s injury. Proof is sufficient if reasonable men can differ, then it will go to the jury, and this is half the battle for plaintiff’s attorney.

Cause in Fact:

o Defendant only liable if he caused the injury to the plaintiff.

o Defendant can be found liable if it appears that his conduct was the probable cause of the injury.

o The burden is not absolute proof, only "more likely than not."

o Plaintiff must show evidence of negligence by a preponderance of the evidence.

o Plaintiff must establish a link from defendant's conduct to the harm suffered by the plaintiff -cause in fact. (But for the D’s negligence the accident would not have occurred)

o Proof is sufficient to go to the jury if "reasonable jurors can differ" on the facts.

o Judge -order motion to dismiss if jury is left to speculate on the facts – guessing cannot establish causation.

General Rules – Cause in Fact:

If jury has to speculate then the evidence is insufficient. (Grimstad)

If reasonable jurors can differ then the evidence is sufficient, and makes it to the jury. (Kirincich)

If the causation is sufficiently proven if the claimed negligence [naturally leading to the occurrence] greatly increases the chances of the injury happening. (“Greatly multiplied” the chance). (Reynolds)

If the injured party can testify it elevates a legal fact proof problem. (Reynolds)

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If there is another equal and probable explanation then the case can’t go to the jury because it is too much speculation. (McInturff)

RULE OF LAW: If jury speculation is required to show but-for cause, P cannot meet the burden of proof. Jury speculation as to the cause of an injury or death, absent any evidence, is not sufficient to maintain a verdict in plaintiff’s favor.  The jury is only allowed to determine the facts. (CONJECTURE AND SPECULATION CANNOT ESTABLISH CAUSATION).

Grimstad: F:Employee/Captain fell off barge owned by D. No lifesaving equip. was on board. Wife goes to get rope from cabin, when she gets back he has drowned. Captain was the one who was supposed to place the equipment. P couldn’t swim and he drowned. Issue: Did trial court err in denying motion to dismiss?P argues: D’s failure to provide adequate life saving equipment was CIF of death. Must prove that D’s conduct was the probable cause of injury. (Preponderance of the evidence: More likely than not). D: Insufficient evidence of CIF. P failed to meet their burden, and reasonable men cannot differ, when they can’t differ, no issue for jury. Don’t know where the equipment would have been or if he would have even gotten to it since he could not swim. Move for a Directed Verdict. FYI: Jury could only speculate as to the location of life saving equipment if it had been on board and whether even if it had been accessible if the decedent would have gotten to it. Juries should decide should decide case based on facts. *No proof that if adequate equipment was on board P would have even gotten to it b/c he couldn’t swim. H- D wins a directed verdict. Evidence is insufficient when the jury has to speculate. R- D is only liable for those damages that were caused by his negligence. P must establish a reasonable causal link b/t D actions and P’s injury. The negligence case fails because of insufficient evidence of proximate cause of defendant’s negligence. The lack of sufficient emergency equipment did not cause the P to fall overboard and drown. Judges obligations to protect D in motion to dismiss when P produces facts that will cause jury to speculate – therefore motion to dismiss. P losses due to insufficient evidence.

RULE OF LAW: When a reasonable juror can differ (if one reasonable juror can rationally believe what P has to prove than he differs) - that means it is not SPECULATIVE. If reasonable jurors can differ then the evidence is sufficient, and makes it to the jury. If no, then directed verdict for D.

Kirincich: F: decedent (P) fell off dredge and was carried away by tide. Shipmate tried to save him, but the ropes were not buoyant enough to save him (inadequate lifesaving equipment). P wins. Issue: Did the lower court err in granting motion to dismiss?P argue: Argues that inadequate lifesaving equipment failed to save him, it was thrown, it was within inches of him and it wasn’t buoyant enough. Here, K was above water when rope was thrown, and he could swim. An adequate floatation device would’ve dramatically helped save his life. No speculation here. Distinguishing from Grim. D argue: similar to Grimstad and we should also win. Cannot let jury speculate as to whether equipment would have saved him. No way of knowing if adequate floatation device was on end of rope, and thrown to him if decedent would have actually reached it and therefore have been saved.

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H: Judge erred in granting motion to dismiss – If sufficient evidence is defined in this case that one reasonable juror could believe that the inadequate lifesaving equipment caused his death, it’s enough to go to the jury. If reasonable juror can differ on the facts then evidence should make it to the jury to decide (but not if jury has to speculate).P wins, jury thinks that adequate equipment would have saved him. 2 options in Cause in fact: Trial Judge decides if reasonable juror could decide if it is more likely than not (like in Grim) inadequate life saving equipment was cause in fact of P drowning (without speculation of facts). 1. If NO, (life saving equipment was not cause in fact) directed verdict for D. 2. If Yes, case goes to jury for deciding.

Rule of Law: If facts or evidence presented, by expert testimony or otherwise, establish that the defendant’s negligent act more likely than not caused the plaintiff’s injury, liability will attach.  (LIABILITY EXISTS WHEN THE DEFENDANT’S CONDUCT WAS MORE LIEKLY THAN NOT THE CAUSE OF INJURY).

Zuchowitz: Dr instructed Ps decedent to take double the maximum dosage. She then got PPH and died. To get to a jury all P needs to prove is: that a negligent act was wrongful because that negligent act increased the chances that a particular type of accident would occur. Then P needs to show that that result/accident did occur. D would then need to bring in evidence to disprove this “but for” cause. P: Negligence = prescribing an overdose of Danocrine to P was CIF of death.

Brings in expert testimony (in pulmonary diseases) to prove that the progression and timing of P's overdose supported a finding of drug induced PPH to a reasonable medical certainty (Expert testimony to show that the overdose caused the harm). (aka negligence = why accident occurred and therefore death resulted).

D: Needs to bring in evidence to disprove this “but for” cause (aka didn’t prescribe it in that dosage – or that Danocrine caused was CIF of death not just the overdose. H: The court decided that when a negative side effect of a drug is demonstrated and the drug is prescribed in an unapproved excessive dosage, a strong causal link to the harm has been shown. R: For LIABILITY to exist - it is necessary that the fact finder be able to conclude, more likely than not, that the overdose was the CIF of P's illness and death. The mere fact that the exposure to Danocrine caused is responsible for the disease does not suffice proving that D was negligent in prescribing an over dose of Danocrine to P and was therefore the CIF of death. When the defendant’s act increases the probability of an accident and then the accident happens, the defendant must rebut the presumption of a causal connection between the increased risk and the occurrence of the accident.Incorrect to assume: Increasing the probability of an accident and the subsequent occurrence of that accident is not equivalent to evidence of causation - P needs to prove that it was more likely than not that the overdose was the CAUSE of Ps death.

Slip and Fall Cases:

Rule of Law: Where the negligence of the defendant greatly multiplies the chance of an accident to the plaintiff, and is a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of causation between the negligence and the injury, thus a reasonable juror would find but for

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(negligence must have caused injury -more likely than not) the D’s negligence the P’s injury would not have occurred.

Reynolds v. Texas and Pacific RRF: Fat lady waiting for train. She leaves lighted waiting room to go to train. She trips and falls down unlighted stairs while heading towards train platform. Witnesses say that they were told to “hurry” etc. She “doesn’t know” what caused her to fall (by not knowing she evades contributory negligence).Plaintiff must prove “prima facie” case- a reasonable juror could find that the claim more likely than not to be true.Issue: Did court (JUDGE) err in denying motion to dismiss on the claim? Did inadequacy of light cause the injury - cause Reynolds to fall?P: Negligence (inadequate lighting) created the dangerous situation. Reasonable to think an unlighted area “greatly multiplies” the chances for accident. Forced to stay in waiting room by RR co. When left lighted area, forced to rush down the stairs to make train.

Q: Why didn’t P say what she fell on? A: Could lead to contributory negligence. No explanation leaves her safe. By not knowing she does know if something else did happen (that wasn’t her fault).

D argue: Motion to dismiss due to insufficient evidence of CIF. (With this motion, judge has to assume what P and witnesses said as true). She doesn’t know what she slipped on. Could have been her own feet. Being heavy, could have lost balance so CONTRIBUTORY negligence possibility. CASE –(D)Purely speculation to know what caused fall (Grim) People fall all the time in lighted areas, let alone unlighted areas and (P) reasonable men could differ as to if light would have prevented injury – the fact that there was no light greatly multiplies the chances of the accident happening. (Kirincich). H- the court rejected D’s argument that the act could have happened without negligence, Plaintiff wins. Causation is sufficiently proven if the claimed negligence greatly multiplies the chance of injury occurring. When one reasonable juror can find that P’s injury was the result of inadequate lighting then it goes to the jury to decide. Also, Reynolds can testify that nothing else contributed (she wasn’t pushed, etc.).R- Where the negligence of the D greatly multiplies the chance of the accident (going from lighted to unlighted) to the P, and is a character naturally leading to its occurrence (the lighting led her to fall not that she got some disease), one can connect the accident with the negligence. The mere possibility it may have happened w/out the negligence isn’t sufficient to break the chain of causation between the negligence and the injury, thus a reasonable juror would find “but for” the D’s negligence (not maintaining stairway and light), P’s injury would not have occurred.

FYI: Here it went from lighted to unlighted area so fat lady could not re-focus. Just because something could have still happened, doesn’t mean it should be neglected; consider the natural and ordinary course of events, don’t suppose what if. Insufficient lighting (needed stationary lights), several witnesses testified that they were told to “hurry up”; contribute to her falling by not having enough light, significantly increases the chance of her falling; no speculation, speculation going the other way (defense is asking for speculation, what if it was lit, what if she had misstep anyways, etc.) *Reynolds expresses the legal factual point: which is that plaintiffs testify for you and that eliminates legal factual problems (unlike McInturff).

RULE OF LAW: Unless there is probable cause that an event caused an injury, a jury will not be allowed to decide (judge must dismiss). To show mere possibility is not sufficient proof. Evidence

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must show negligence greatly multiplied the chances of the accident occurring, but also that other factors weren’t equally possible in causing injury.

McInturff v. Chicago: F:decedent fell down stairway and was found dead at bottom. Stairs were shown to be worn, no handrail and in violation of several safety codes. No eyewitnesses to accident. P: The stairs were the cause in fact, had it not been for the stairs being worn and without a handrail, decedent would not have fell. The worn down stairs greatly multiplied the chance of the accident happening (Reynolds). D: (distinguish Reynolds) In Reynolds, testimony of woman and witnesses erased speculation to other causes. Here, decedent couldn’t tell us what caused injury (he is dead and no witnesses), pure speculation. He could have been pushed, tripped etc... we don’t know! Mere possibility does not provide causal connection b/c there are too many other possible explanations. H- Can’t just show that negligence of maintaining stairwells greatly multiplied the chances the accident would happen, but P must show that no other factor could have caused the accident and that the negligence more likely than not was the CIF of the accident. Too much speculation about facts (insufficient evidence) to go to jury. R- (Jury) Cannot assess damage on conjecture (guess)/speculation as to what probably caused the death (Grim). *Insufficient proof due to the possibility of a third party. Evidence must show negligence greatly multiplied the chances of the accident occurring, but also that other factors weren't equally possible in causing injury. Reynolds and witnesses were able to say what it was not (b/c she said she did not know what it was that caused her to fall but she could eliminate possibilities like being pushed) whereas this guy is dead and there are no witnesses to testify. Insufficient evidence leads to too much speculation to go to the jury. Judge must issue direct verdict for D – motion to dismiss.

Joint and Several Liability – Burden Shifting

Traditional approach – joint and several liability - If more than one person is a proximate cause of Ps harm and the harm is indivisible, under the traditional approach each D is liable for the entire harm. The liability is said to be “joint and several”.

Modern approach – tends to cut back on joint and several liability but there has been a very sharp trend in recent decades to cut back, or completely eliminate joint and several liability. This has been mainly due to the rise of comparative negligence as a replacement for contributory negligence.

Joint Liability: Each of the several D is responsible for the entire loss which they all caused in part.

Several Liability: Each D is responsible only for his proportionate share of the loss.

Joint and several liability: if more than one person is a proximate cause of Ps harm, and the harm is indivisible, each D is liable for the entire harm, although P can only recover from one D.

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Joint Tortfeasors

Cannot be a joint tortfeasor with God (Dam Hypo & Kingston)

Plaintiff may be able to recover some damages under the loss chance doctrine if they could show that it would have happened slower and they could have recovered some of their property, etc. (Dam Hypo 2)

Burden of proof in “joint tortfeasor with God” is on the defendant to show that the other cause was nature. (Kingston)

Alternative Liability / Burden Switching

Where 1) P is innocent can show 2) that both people were negligent, and 3) only one person could have caused the injury, the burden of proof will shift to D’s to show that they did not do it.  If they can’t, then they both will be held liable.  (Summers v. Tice)

When the defendant is negligent and it stops the plaintiff from proving causation, then the burden is switched to the defendant to show that his negligent actions didn’t make a difference. (Lone Palm Hotel)

Market Share Liability

To prove market liability 1) Need all potential tortfeasors; 2) fungible product (must all have same defective qualities; 3) can’t identify who caused the injury through no fault of the plaintiff; 4) all the manufactures that created the defective product during the relevant time are named defendants. (DES case, didn’t work on Lead Paint)

 

Pequa Dam HypoF:There’s a dam, doesn’t break but there’s a big flood. (Wickets, drains at the top of the dam, goes down off the sides instead of the top of the dam). Wickets were negligently maintained and got stuffed, flood level gets to be 15 feet above the level of the dam. P’s property is destroyed when water get 15 feet over dam. Downstream homeowners sued claiming the negligence caused the injuriesP: Negligence caused the flood. D should have cleaned the wicketsD: Motion to dismiss. Would have happened regardless of wickets anyways. Lack of causation that wickets caused the damage, act of nature caused this to happen. Even if the wickets would have worked there STILL would have been an overflow of the dam. Blame God. H: Cannot be a joint tortfeasor with God. D, the negligent party, is NOT liable for damages which would have occurred even without their actions. (even if 2 causes and 1 is nature, then the human cannot be held responsible if in combo with nature, D won’t be financially responsible)P losses because can’t be a joint tortfeasor with God. Pequa Dam Hypo 2F: Change hypo to valuable collectibles: Timing issue. With more time, could have saved valuable collectibles. P: Injury is now the inability to get collectibles to safety. If wickets worked, there would have been enough time to save the collectibles.

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D: Same case as before: Lack of causation that wickets caused the injury. Act of nature caused this. Even if wickets worked, there would have still been overflow. Blame G-d. H: P has to do all that he can to get as many valuables to safety as he can- P cannot just let everything go to waste because D is negligent. D is fully at fault here if P did all that he could but still lost a lot of valuables as a result of the time lost by D not cleaning out the wickets. P would be contributorily negligent if he lets everything go to waste because of Ds negligence. (In this case, if there had been warning of time so that the people could get out. If wickets hadn’t been stuff, it would have taken longer for the water to go over the dam, giving them more time to get out or get valuables in the house out.)P could win if it can be shown that he tried to get his valuables out and that more time would have saved more of the valuables.

Rule of Law: When one of two joint tortfeasors is unknown, the other is fully liable. Joint wrongdoers have the burden of proving which caused the injury or both are liable. If D can prove that the other tortfeasor was equal PC of damage/injury and was an act of nature – he avoids liability because damages would have occurred without his negligent action.  

Kingston v. ChicagoF: Two fires destroy P’s property. One was set by D’s locomotive sparks that set a fire and one was almost certainly caused by a third person. Each fire individually would have caused the damage, and both were PC to the P’s property destruction. P: Don’t know what caused the other fire, but it is expected to have been a human cause. D who caused one fire shouldn’t be allowed to avoid liability (Pequa -joint tortfeasor with God), D has burden to prove the other fire was caused by nature.D: Says that the other fire could have been caused by nature and he shouldn’t be responsible (joint tortfeasor with God means D is not liable for damages)H: Distinguished Pequa saying that it doesn’t apply because do not know what caused the other fire and are not going to speculate, the burden of proof is on the D to show what caused the other fire, this is an issue of proof (like an affirmative defense). If you cannot tell who started the other fire, D has to reasonably prove it was natural causes. Burden shifts from P to D to prove who actually caused the fire. If that cannot be done, the D loses. R:Whether a defendant is liable for damages when an unknown third party has acted simultaneous, independent, and is an equal proximate cause burden of proof is on the defendant to show that the other cause was nature. If D cannot prove the origin of the other fire then D is responsible for the entirety of the damages. P wins because D cannot prove (aff’m defense) that the other fire was caused by nature, jury would have to speculate [Policy: wrong doers shouldn’t escape liability while P suffers]

Glass Panel Hypo: P walked into store. Under door, glass pane breaks and glass falls on head causing injury. He then gets malignancy tumor on head and sues for pain and suffering on head because he developed CANCER. P: Your negligence in maintaining glass above door is CIF of me developing cancer. D: Motion to dismiss (summary judgment). Insufficiency of evidence to prove glass negligence is the CIF of your cancer. P has failed to present prima facie case. Speculation and conjecture. Willing to pay for injury of cuts to the head, but pure speculation (Grim) to think cuts caused cancer. Glass falling on your head is not the PC of your injury. No expert testimony either to prove causal link that accident could have caused cancer – no credibility. H- Mere possibility is not sufficient proof. Not enough to prove CIF. Unless there is probable

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cause that an event caused an injury, a jury will not be allowed to decide. To show mere possibility is not sufficient proof. Must rule out other possibilities.

Glass Panel HYPO 2: same facts but P brings in an expert to testify. P: expert testimony proving causal link and that injury was CIF of cancer developing. D: accident not CIF of cancer. (should bring in expert also) H: If P brings in expert testimony then the case cannot go to summary judgment and now there is a case and D has to prove why the trauma injury did not cause the P to develop cancer. Reasonable jurors can differ because of expert testimony proving P’s case and expert testimony proving D’s case and therefore witness credibility comes into play and evidence is sufficient to make it to the jury.

Dr. Ewing Hypo Woman gets hit in the breast. She is hurt, but later also develops breast cancer. She sues. P has Dr. Ewing that will testify cancer is possible when you hit someone in specific area of the breast. D has 4 well respected doctors testify that Dr. Ewing’s idea is ridiculous. D- *(summary judgment – motion to dismiss if P did not bring in expert but P did) P has failed to present prima facia case, like above hypo. Speculation and conjecture. Cannot have jury speculate. Here, it is one Dr. against 4 doctor’s opinions, so P’s evidence is insufficient.Ct -W/directed verdict, look at P evidence. If experts could differ on the facts, so could the jury. Jury can assess the credibility of the witnesses and reasonably make a decision— not as speculative when there is a EXPERT testimony. Policy: The policy behind a decision is key. Look at different contexts for the purpose of the rule and how to best interpret it. Grimstad Policy: Jury to make inference on stipulated facts.Kircinich: If one juror can reasonably differ on facts than it should go to jury. Ewing: Does the same, but also must determine which witness is more credible.

Haft v. Lone Palm Hotel:F: Boy and dad found dead at the bottom of a motel swimming pool, no sign warning that there was no lifeguard.P: Sues says they were negligent for not having a lifeguard.D: Says that they didn’t have to have a lifeguard, statute only required hotel to have a sign – so they were negligent not having a sign. P: You’re liable because you should have had a sign - they violated statute and that greatly multiplies the chance of drowning. D: Motion to dismiss. No reasonable juror could do anything but speculate about whether sign would have made any difference. There’s no causal link between not having a sign and them drowning. Sign did not provide any information that adult would not have already known, adult could have seen that there was no lifeguard on duty, and therefore the sign would have told him something he ALREADY knew. Lack of sign was not CIF of death. (Its now like Grimstad).H: This defense is 100% true but it leads to a bad result: the hotel owner would get off even though they violated both elements of the statute. A stupid statute like this gets passed because there are poor hotel owners who cannot afford lifeguards. The court held that the legislature had the statute for a reason (can’t analyze legislative intent) and this puts the assumption that the sign would have made a difference. There must be an incentive to provide a sign (or no one would follow rule). This is a policy argument that shifts the burden to the D – b/c hotel is negligent by not having lifeguard AND not having a sign (Summers) to prove that the lack of a sign didn’t change anything, and was therefore not the CIF of death. P was deprived of a witness because of the lack of a lifeguard.

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R: Lack of lifeguard caused drowning. Not sure whether sign caused drowning. How do we deal with fact that we know sign was not cause? We cannot hold that signs don’t make a difference because CA legislature says that they do. Signs must have reasonable chance of making a difference. Not impossible that D would win. D must prove that sign didn’t make a difference, not automatically assume that sign provided useless info b/c it could have made the adult reinforce what adult already knew by being reminded by the sign. Policy: we do not want D, the negligent party, getting away with this because P has no info.P wins because D cannot prove that the lack of a sign was not the cause (switching the burden is how courts deal with a situation that is unfair to P).

Alternative Liability – Multiple Tortfeasors (Burden of Proof exception)

The general rule for CIF is that by a preponderance of the evidence, don’t use purely statistics alone and there must be individuating evidence (people are treated as individuals). Burden on P to prove.

EXCEPTIONS to CIF: Summers: alternative liability; & Sindell: MSL (allows for some recovery); chance interest medical survival cases.

Joint liability imposed on multiple tortfeasors when there are simultaneous tortious acts and uncertainty as to which act was the proximate cause of an injury.

Alternative Liability - Rule of Law: P is innocent if he can show 1) that both people were negligent (both identical tortfeasors acting negligent), and 2) only one person (out of 2) could have caused the injury, the burden of proof will shift to D’s to show that they did not do it. If Ds’ can’t prove their innocence, then they both will be held liable. Once the above conditions are met, the burden of proof shifts to the D and they will be held jointly and severally liable. *Nature of injury prevents P from knowing who caused the injury. Ds’ are in a far better position to offer evidence to say who caused the injury and who did not.

Summers v. TiceF: P gets shot in the eye when two of his hunting buddies fire negligently in his direction. Both shots came from the same gun, but don’t know which person the shot came from.P: Not fair for the plaintiff to lose because he did nothing wrong, he was not negligent and he should not bear the burden of figuring out who shot the gun. There was no sufficient evidence to prove which D was guilty and CIF of injury. (Cite Kingston Policy reason – P shouldn’t suffer and not get damages b/c of Ds’ negligence but different b/c Ds’ were independent tortfeasors – it was either one or the other that shot the P). Both fired negligently, were simultaneous actors, and prevent the plaintiff from identifying who did in fact shoot her. D is in the better position to know who did it.D: both will say “it wasn’t me” and why should I have to bear any liability. Insufficient evidence, each D will say that he didn’t do it and both will get off.H: Burden of proof shifts to each D to prove innocence. Their negligence was the CIF and the burden should rest with each to prove their own innocence, they are joint tortfeasors. D is

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responsible for the plight of the defendant (not being able to prove it). Both liable unless they can prove the other person did it. R: When the appropriate situation arises as a matter of fact (identical aspects) the judge can charge the jury that the defendants should prove that they didn’t do it, because the plaintiff’s proof is going to be sufficient to get to the jury (it could have only been one D or the other – each D 50% chance of causing injury).

 

Market Share Liability (burden of proof exception also) :

Market share liability (based on a national market) – P has to show:

Market Share Liability Rule of Law:

1. All Ds are potential tortfeasors.2. Allegedly harmful products are identical (fungible) and share same defective qualities.3. P unable to identify specific D that caused injury through no fault of her (P) own.2. Ds represent a "substantial share" of the manufacturers who produced the fungible

product during the relevant time period are named as defendants in the action

If these requirements are met, a rebuttable presumption arises in favor of the plaintiff, and a court may order each defendant to pay damages equal to its share of the market for the product at the time the product was used.

A manufacturer may rebut the presumption and reduce its market share damages to zero by showing that its product could not have possibly injured the plaintiff (for example, by demonstrating that it did not manufacture the product during the time period relevant for that particular plaintiff).

 General Rule for Market Share Liablity: If P cannot prove which of three or more person caused his injury, but can show that all produced a defective, fungible product, the court will require each of the Ds to pay that percentage of Ps injuries that Ds sales bore to the total market sales of that type of product at the time of injury unless D can exculpate themselves. 

OTHER RULES ON MARKET SHARE:

In market share theory: courts are split on whether each D should be allowed to exculpate itself by showing that it did not make the particular items in question – some more modern cases hold that once a given D is shown to have produced drugs for the national market, no exculpation will be allowed.

Courts adopting the “market share” approach often reject joint and several liability – they allow P to collect from any D only Ds proportionate share of the harm caused. For example, had P sued a single D and showed that D accounted for 10% of the market. If court goes by market share approach and D is found to be negligent, P only gets 10% and D cannot take the full 100% hit for the industry.

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If the product is found to be socially valuable, such as a vaccine, courts will likely not apply the market share approach.

DES Cases -Sindell v. Abbott LaboratoriesF: DES crossed the placenta barrier making kids in the womb exposed get cancer years later (sometimes 20+ years). Traced to DES – mothers took during pregnancy to prevent miscarriage. 200+ DES manufacturers. P: D’s are jointly liable for injuries the drugs caused to unborn fetuses who eventually developed cancer - because they acted in concert – sold a fungible product and collaborated in marketing and testing DES. Simultaneously conduct and fungible drug + the many years that had passed made it impossible for Ps to identify which D had caused the actual harm. P shouldn’t have to suffer because of D’s negligence (and regardless of which D it was they were all jointly and severally negligent).D: Says that it could be any manufacturer – 200+ DES manufacturers at that time. H: any manufacturer who cannot show that it could not have produced the particular doses taken by Ps mother will be liable for the proportion of any judgment represented by that manufacturer’s share of the overall DES market. Burden is on D.R: Court cited Summers as precedent, this was negligent conduct, done simultaneously, and cannot tell who did it because of the simultaneous conduct. Can get all of the major parties in the suit and all of the drugs had the same strength, etc. They were not distinguishable from one another. Court developed market share liability – shifts burden of proof onto D - Must be: 1. The allegedly harmful products were identical and share the same defective qualities (or were “fungible” [interchangeable]) 2. The plaintiff is unable to identify which defendant caused her injury through no fault of her own 3.Substantially all of the manufacturers which created the defective products during the relevant time are named defendants (substantial share of market at that time). P Wins because it is like Summers and had simultaneous conduct and D has the burden of proof.

Lead Paint Cases -Skipworth v. Lead Industries AssociationF: Kid gets lead poisoning several times in the same apartment, has to be hospitalized. House built in 1870, several layers of paint, many manufacturers in the market, don’t know which manufacturer, some have gone out of business.P: First says its market share liability, just like the DES (Sindell), don’t know who did it. Second says, alternative liability (Summers). Third says, conspiracy and concert of actions.D: First, says its not market share liability because the products are not identical (some are more easily ingested and some have different quantities of lead), and all the manufacturers are not listed because it’s a 100+ year span and some have gone out of business, some have moved, etc (DES was a 9 month span), and therefore would hold some manufacturers liable that couldn’t be liable.Second, not alternative liability because not simultaneous in producing and all entities have not been joined over the time period, all potential tortfeasors not named. Third, not concert and conspiracy of actions because there is no evidence of acting in concert and failure of the P to demonstrate malice on the part of D.H: No market share liability (products not identical, all manufacturers not listed), no alternative liability (not simultaneous in production and all potential tortfeasors not named) and not conspiracy (no evidence of malice or acting in concert).P losses because too long a time span, not all defendants named and different concentrations in the product (not identical).

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Contribution and Tortfeasors

Gangrene HypoF:D1 negligently breaks Ps arm. D2 negligently sets the arm, leading to gangrene and then amputation. D1 is liable for all harm, including amputation (as he is but for and proximate case). D2 is only liable for the amount in which his negligence worsened the condition – the difference between a broken and amputated arm.Contribution: D sues a tortfeasor to get the other liable D to pay his share of the total damage (see Dole later on also).H: a court holds that two D1 and D2 are jointly and severally liable to P for $1 million. P collects the full $1 million from D1. D1 may recover $500,000 from D2. If two Ds are jointly and severally liable, and one D pays more than his pro rata share, he may usually obtain partial reimbursement from other D (Contribution). Each D in the end would have paid an equal share. This also works in comparative negligence case: if D1 was liable to P for 2/3 and D2 was liable for a third in the same case for $1 million. If D1 pays it all, he can collect $333,000 from D2.

Dole v. Dow Chemical Dole dies in chemical accident on the job. P sues manufacturer of chemicals b/c can't sue employer due to Workman's comp. rules. Manufacturer impleads employer for not following their instructions. H: Jury finds Employer 90% and manufacturer 10%. P collects the whole thing from manufacturer, who then collects from employer. Look at it as a huge pot- manufacturer puts in 100% of the total money and then collects 90% of it from employer - P takes all 100% because he found an end around loophole.Significance: P provided with an end around the Workman's comp. rule. D's are Severally liable so D's fight among each other to see who is more liable- in this case employer was 90%. Sure beats getting shitty money from the workman’s compensation act.  Limits to contribution: 1) an intentional tortfeasor may not get contribution from his co-tortfeasors (even if they too behaved intentionally). 2) The contribution D (that is, the co-tortfeasor who is being sued for contribution) must in fact be liable (example would be husband driving negligently with his wife as a passenger who then crashes with a negligent D – If wife gets full verdict from D then D may not recover from husband (the joint tortfeasor) since intra-family immunity would prevent wife to recover from husband directly, therefore D cannot get around that).What if one D settles? If D settles, he may generally obtain contribution from other potential D’s (he has

to prove their liability) Where D1 settles, and D2 (later gets a judgment) sue D1 for contribution the

courts are split:1) Traditional approach: D1, the settling D, is liable for contribution (probably the majority view). 2) “Reduction of P’s claim rule – rejects contribution, but reduces P’s claim against D2 pro rata (so D2 comes out the same as with contribution)3) “No contribution rule:” you guessed it; D1 is not liable for contribution. This is popular as it gives Ds strong incentive to settle.

Indemnity case: one of several (in the tort context) wrongdoers cannot recover against another wrongdoer. When two parties act together, the party held responsible for the act cannot have indemnity (or a 100% shift of liability to the second D) from the other because both are equally culpable and damage results from their joint offense. The act is what is wrong for the first

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wrongdoer and the other is liable for failing to discover or correct the defect. Basically, concurrent tortfeasors are liable for the whole of an injury whenever negligence is a proximate cause of the injury.

Loss Chance Doctrine

Doctrine of Loss Chance – Rule of Law: In loss chance whoever has the burden of proof will lose the case. Plaintiff has relaxed causation, only has to prove the percentage loss.

Most jurisdictions have not adopted the loss of chance rule. NY HAS. Doesn’t solve the issue of how much the injury is worth Chance of life is not worth anything unless you survive If you survive the chance is worth the full cost of life Can’t tell who would have survived Loss of chance isn’t compensable whether you live or die Some people who would have survived should get 100% and some other people get 40% and

they would have died anyways Some jurisdictions have adopted loss of chance (like NY) leave it up to the jury and

let them decide how much its worth Some jurisdictions have adopted the loss of chance and then just break it out by percentage Over compensate the people who choose to sue Not a rational solution

o It’s a way of satisfying the “perceived sense of unfairness” HAS NOT BEEN ADOPTED BY MAJORITY OF STATES Not been applied to other kinds of liability only medical malpractice situations Too dangerous - find Ds conduct created it MUCH MORE LIKELY and then therefore it would

entirely change our nature of compensating risks

Hobson’s choice -choice between two bad things This happens a lot in law Lots of cases that are largely intractable

o No matter what rule you make, some people will be treated unfairly by the ruleo Hope to protect the most number of peopleo Badly treat someone who is undeserving, and protect someone who deserves

protection

Cause in Fact – Medical Cases:

Importance of Loss of a Chance:NJ/NY -failure to diagnose cancer cases, decided that if the failure to diagnose increased the risk of a bad result and the jury finds that risk was a substantial factor in bringing about the result, the plaintiff has met his proximate cause burden.

Herskovits v. Group Health CooperativeF: P went to hospital and they didn’t diagnosis the cancer. Thus the delay in diagnosis may have reduced his 5-year chance of survival by 14% (from 39% (at stage 1) to 25% (at stage 2)). He had less than a 50% chance of survival even on his first visit (39%-25%)P: D’s negligence (in not diagnosing in time) greatly multiplies the chance of an injury occurring because failure to detect cancer at the earliest stage clearly increases the chance of dying from

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cancer (Reynolds). Deprived of a significant chance to recover. Need a legal incentive for due care. Must be liable for loss of chance. D: Must show that he “probably” would have survived had it not been for the misdiagnosis (need 51%). Economic rationale -Don’t compensate for people who would have died anyways. More likely than not he would have died anyways.H: Allow the testimony of the expert on the loss of chance to go to the jury. To decide otherwise would allow a blanket release from harm anytime the survival chance was less than 51% (POLICY). Courts main reasoning is not economic – the reason is standard of care for people with less than 50% chance of survival – if doctors thought they could get out of negligence cases if the patient didn’t have 51%+ chance of survival, there would be no incentive to “do their best”. P can only recover for the damages attributed to the premature death (loss of earnings, medical expenses, etc.)P wins, is allowed to go to the jury on expert testimony of loss of life, but can only recover on the loss of life. Doesn’t need to show a 51% chance of surviving.R-P didn’t need to show 51% chance of survival for hospital to be negligent. P lost 14% of his life b/c of the negligent act of D, so award 14% for premature death. [loss of chance doctrine]: otherwise doctor’s would have no reason to be careful when P has less than 50% chance of survival]. Relaxed Causation: Only have to prove part, not the whole thing. So P will get percentage. FYI: Causing reduction of the opportunity to recover (Loss of Chance) by one's negligence - however does not necessitate a total recovery against the negligent party for all damages caused by the victim's death, but rather a percentage caused by premature death.

Typhoid Hypo (more increase of chance, than lost chance)F: Sewer break in a sewer line, private sewer line. Gets into the public water. In Buffalo. 150 people got typhoid on average a year. 275 people get it the next year (after the leak). 55% of the injuries were naturally occurring (150/275), 45% of the injuries were due to the sewer line breaking (125/275), 80% increase attributed to the sewer break Issue is causation.

For LIABILITY to exist - it is necessary that the fact finder be able to conclude, more probably than not, that the contamination was the cause of P's illness and death. The mere fact that the exposure to contamination caused is responsible for the disease/death does not suffice proving that D was negligent

When the defendant’s act increases the probability of an accident and then theaccident happens, the defendant must rebut the presumption of a causal connection between the increased risk and the occurrence of the accident.

P: Ignores the data (b/c it is not more probably than not). Policy argument comes from Herskovits, don’t allow them to get away with contaminating the water (In the stairs and drowning cases, there was no percentage). Ds negligence greatly multiplied the chance of people getting typhoid and more people did get it (stats prove it). Natural consequence of this negligence (natural and probable consequence) Apply Reynolds – if reasonable juror could differ on facts then enough to bring it to the jury). 80% increase is enormous, increase of probability. Have violation of standard of care – CIF of increase in injuries.D: Could say that when there are two equally probable causes then the jury would have to speculate. It is more likely than not that the outbreak was not the CIF of the Ps injuries bc less than half (45%) of injuries were a result of outbreak. Not equally likely because it didn’t double. Less likely that the P is part of the typhus causing group. Less likely than not that they are in the typhus causing group.H: If the burden of proof is switched, the defendant would win. If the plaintiff has to prove, then he loses. Depends on who has the burden of proof, if P has it he loses, if D has it he loses.

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Makeup Artist HypoF: 19th century, a woman paid a “makeover artist” and he guaranteed that she would be a finalist in the beauty contest; she sues him for breach of contract. 5 finalists, winner gets 1000 poundsP: Not fair, he took the money and didn’t do anything. She didn’t get her 20% chance worth 200 lbs.D: Insufficient evidence to prove causation of injury. Injury is not getting the money. Can’t prove that the breach of the contest because she didn’t win the money. Being a finalist isn’t worth anything, only had a 20% chance of winning, less likely than not that his breach caused him not to get the money. More likely than not needs to be 51%H: Court gave her the 20% chance, and awarded her 20% of the winnings.

II. NEGLIGENCE

Negligence Question: Would a reasonable person have foreseen a risk of injury? Generally: the tort of “negligence” occurs when Ds conduct imposes an unreasonable risk upon another, which results in an injury to that other, thus causing a breach of that duty. The negligent tortfeasor’s mental state is irrelevant (all that matter is the reasonable person)! Prima facie case of negligence: Ps case. 4 elements of Negligence -1. Duty: Did D owe the P a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others? D has an obligation to conduct himself according to a standard, so as to avoid against an unreasonable risk of injury to others.2. Breach of Duty: did the D's conduct, whether by way of act or omission, fall below the applicable standard of reasonable care? 3. Causation - CIF/PC: Was D’s failure to meet the applicable standard of care causally connected to P’s harm? 4. Damages/Injury: Actual damage was suffered by P.

 3 Defenses to Negligence:1. Contributory Negligence- any amount of fault on part of P that causes the P’s own injury

will cut off his right to recover against the D.2. Comparative Negligence- recovery for the P is equal to the amount of damages he suffers

minus those damages attributable to him or in essence the amount of his fault causing the relationship. Here the P will recover the percentage to which he did not contribute.

3. Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known risk.

Burden of Proof: In a negligence case (as in almost all tort cases) P bears the burden of the proof.  

Negligence Four Elements of Negligence: 1. Duty, 2. Breach, 3. Cause, 4. Injury. Breach of your duty or violation of standard care that causes injury Must be reasonably foreseeable that the injury would occur (Blyth Water Works case) 

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Hand Formula: B <= PxL (then there’s liability, Burden (B) < Probability (P) x Severity of Injury (L) If the burden of doing something differently is small but it creates unreasonable risk to more people (general population) then there obligation to do it differently. [Can create reasonable risks if it prevents greater harm.] (Cooley) Specifically unforeseeable harm, but generally foreseeable. (Chicken Hawks) If the probability of harm (foreseeability) is extremely low but the severity is extremely high, it is likely to outweigh the burden. (Chicken Hawks) A person in an emergency situation is treated as a reasonable person in the face of an emergency, the emergency must be considered. (Lyons and Eckert) Ignorance isn’t a factor that is taken into consideration when deciding if someone acting like a reasonable person. (Menlove).  Ignorance of a local standard is excused for non-locals, reasonable non-local wouldn’t be expected to know the standard. (Fog horn hypo) Reasonable beginners are held to the standard of what a reasonable beginner knows or should know. (Brake/Clutch Hypo) Newly licensed drivers are held to the standard of licensed drivers, not newly licensed drivers.  Experience doesn’t increase the duty of the standard of care. (Race car driver) Child Standard:Reasonable child is held to the standard of a reasonably careful child of the same age, intelligence and experience. (Child Standard)

Minor engaged in an adult activity is held to the adult standard. (Daniels – 19 year old on motorcycle/ lawn mower). Some jurisdictions apply this to only licensed activities. Some apply it to unreasonably dangerous activities.  Crazy person is required to act like a reasonable person who is not crazy. Policy argument on insane people is that the innocent sane person should not bear the cost of the injury from the insane person (encourages people to take care of the insane person).  (Breuning) A drunk people must act like a reasonable sober person.

Theory of Limited Duty:

Many different ways to look at it: What way determines what is fair?

Injury lies where it falls: whoever got injured should pay for their own injuries.

Reciprocal Risks: Can't live in a society that derives benefits without imposing some risks. People are able to do deeds that can cause injury b/c some benefits cause risks for the common

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good. Recreational acts such as Golf is a benefit we are willing to give people if that means a car might get hit every now and then. After all, it is not foreseeable that his golf ball will hook and then hit the car. Torts involve Negligence and Intent:

Negligence imposes liability b/c D did something wrong and was CIF.

BUT, if injury occurs from Natural and Foreseeable Consequence of conduct, that cannot be avoided by conduct (hitting tennis ball), you are permitted to do the act.

Balance: Want to protect society by people being careful. Impose obligation to think ahead when carelessness will cause injury. Deterrent effect for D's in the future.

How much foresight is Calc. of Risk.

1st – is there a risk of injury2nd – was the chance of injury excessive or not? People can be negligent in a variety of ways at the same time

Can be going 65 in a 55 and that’s speeding Can be driving with you knees (not properly handling the car) Looking at the map (failing to keep a proper lookout) It’s the claimed negligence that we need to look at aka what the P is claiming...

 Rinaldo v. McGovern: Ps car was damaged when D's golf ball left the course and fell on the windshield of P's car, which was driving on a nearby road. H: D is not liable. D was not exposing public to an unreasonable amount of risk. Nor was Ds behavior unreasonable. His actions were reasonable and injury was unavoidable.

NEGLIGENCE – CALCULUS OF RISK:  Defined: Test requires a "balancing of interests" to determine whether risks taken by D are justified. P argues that D is negligent because: Some inexpensive precaution (railing, warning) could have prevented a serious injury that was likely to occur. Ds rationale for not taking precautions: The precaution was excessively costly, redundant, ineffective or counterproductive. Third Restatement §9: it’s a specific factor that the jury can consider in how a reasonable person would act (in an emergency)

Person would act reasonably based on the circumstances Need to take the emergency into account

Driving on Meadow Brook HypoF: Driving on the Meadow Brook going 55 mph, tire blows out and get in an accidentP: Will have to prove that the driver breached his duty (Duty is to take reasonable care to prohibit or prevent creating unreasonable risks of injury)D: Could argue reciprocal risk (Create risk to each other). Creating a whole possibility by driving P: Trying to dump on someone else the expenses that are foreseeably created by driving

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 Blyth v. Birmingham Water WorksF: Blyth was exposed to a risk of the pipes breaking and water leaking into his house. Predicted life of the system is 25 years. It was the most severe frost on record. P: It was reasonably foreseeable that the pipes were burst and D had a duty to ensure that the pipes were maintained, company did not use proper care to prevent the accident because they did not remove ice from plug.D: The frost was not reasonably foreseeable – most severe frost on record.H: The court held that the D was not responsible because no reasonable person could have foreseen the frost would occur.P losses, not reasonable foreseeable. Blyth v. Birmingham Water Works 2F: Forget about the valve, dug system and put it 2 ½ feet in the ground. Ground froze to three feet down. H: Doesn’t change the case because the frost was still not foreseeable. Blyth v. Birmingham Water Works 3F: Now add another fact, and does this make a difference. Pipes were put in 1875, now weather forecasting comes in and there frost is usually 2 ½ feet there’s a 100 year frost and it would be 3 feet. 100 year frost means once in 100 years there would supposedly be an unexpected very cold winter, doesn’t mean that it will happen every year. Could come 2 years in a row and then not come for 200 years. H: This makes it more foreseeable because you do not know when the frost will come, it doesn’t come every 100 years on the dot. It is foreseeable that the frost will come during the life expectancy of the pipes. D must weigh the risks. Could use hand formula: Burden (Construction Costs) </> PL (probability of event occurring and loss – predicted severity of injury -chance of pipes bursting) – see hand formula below

In Blyth the Burden is the cost of the labor to put the pipes half a foot deeper. The Probability is 1/100 (of the 100 year frost occurring). Potential Liabilities (If there’s a fire you won’t be able to put it out, Damage to houses, Potential illness and death) and there are many more liabilities. The foreseeable risk here is vast greater bc there is no water supply if they have to re-dig pipes or TAKE longer it may cause fire…illness etc something.

HAND FORMULA

According to Holmes, negligence has a underlying moral standard, the standard has a deterrent effect by identifying specific conduct that is wrong

What people should think about before they do stuff (duty – not to be negligent)

1. Analyze how likely it is that people will be injured – probability that your conduct will cause injury...

2. How serious is the injury that you think is probable...

3. How burdensome would it be to avoid creating that probability of injury?

Why should an individual pay for cost of an injury that resulted from a financial based individual or corporation activity that is done in an effort to make/save money instead of prevent (possibly foreseeable) injury?

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They take risk of being injured b/c company is doing something to benefit community

 Public water supply case: good to look at: By externalizing some for the injuries that are created as result of this business activity we are stimulating the activity Basis of inviting liability:

o We need this company bc it benefits society. We don't want companies to spend so much more money to reduce risk of injury (inflationary prices) than society is saving. If they spend too much = social cost - raising cost of goods and services.

o If money in the company = money in their pocket to continue to "benefit society" o "Injury causation cost tax" - the money they spend raises prices

HAND goes to the next level : rationalizes -o Identifies point that company's liability ceases at point of diminishing return:

  Can apply the Hand formula Burden (B) < Probability (P) x Injury (L)

B = burden of adequate precautions against the accident=cost of prevention. P = probability of event occurring L = loss, the gravity of the resulting injury,(severity) evaluate the situation as reasonably

foreseen and knowable. predicted severity of the injury (not the actual injury)

Not retroactively, at the time you did it Burden of avoiding the foreseeable injury When you look at the injury: Probability of it occurring and the severity

  B < PL = Liability exists.

  Translates issue into $$$. Because Burden is low for D to take simple easy precautions-

lower than the probability x the loss: D should have taken reasonable uncostly precautions because it burdens them very little anyway to take that better or reasonable care.

  B > PL= No liability. Burden of safety was too large to impose.

  B= PL = No Liability. Burden was too much to take precautions.

BPL ANALYSIS: Jury decides after what companies should have done before the act.

Before: Company is calc./estimating the future (Foreseeability) and how much of a B it is.

After: Jury must decide if company acted carefully. Look @ time before act, Benefits P greatly

BPL is a two tiered approach:

Does D have a duty to P?

If No, then BPL doesn’t apply.

If yes, then use BPL to determine if safety measure should have been taken

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Key question to use to see if formula applies:

Would society be better off if all the D’s in this D’s position were permitted to act as this D did or instead required to change their conduct as to avoid the kind of risk which caused P’s injury?

If you tried everything you possibly could, but bad things still happen...should you be financially responsible for the injuries that happen?

Duty of obligation = to think ahead. By thinking ahead, we can try not to unnecessarily endanger other people. We do not have a duty not to injure other people

Baseball Park HypoF: Park, little league field, tennis courts, bushes, some water fountains. Town decided instead of having tennis nets, decided to have a fence (don’t have to maintain, etc.) If you hit the top just right the ball really flies. Person playing tennis and a person with a baby is watching. The person playing serves the ball and it hits the baby in the eye. Serious physical injury suffered by the injury. Baby sues the tennis player for the injury.P: Says that is foreseeable that the ball would bounce off and injure someone that was watchingD: Says that it’s not foreseeable because he had no way to know that a baby would be watching.H: If only risks that you are not responsible for are the unreasonable risks then you dump the rest of the costs on others (Policy: Baby shouldn’t be responsible for the injury, society is okay with making people pay for this type of injury)  When you take and put it into a commercial setting, we are dividing the risks and injuries

created by the commercial and industrial activities into three categories (1) Industry is liable for people that are injured (2) Industry (even if foreseeable) is not liable (3) External cost

  Cooley v. Public Service CoF: D had un-insulated power lines above and at 90 angles to telephone lines operated by D phone co. Severe storm, power lines snap and fall on lines causing a loud noise causing a rare neurosis in P. Loud noise in the telephone, she fell on the floor in fright and had serious physical injuries as a result of this loud noise.P: D was negligent in putting the power line over the telephone line, if something breaks the power line, it will fall on the telephone line and could create a loud noise. This risk is foreseeable and unreasonable. ∆ did not fulfill the duty of maintaining certain devices, such as cross-overs, that could have prevented one of its falling wires from coming into contact with a telephone wire.

Defendant could have anticipated 1. That its wire could fall for a variety of reasons, 2. That a telephone subscriber, if the wire fell, could hear a load noise, and 3. That, as a result of the loud noise frightening the user, the user would suffer physical injuries (rare contingency, but could have been anticipated)

P claims: D should have set up mesh basket to protect wires from falling on telephone wire.

D: Agreed that they created the risk. The cost (burden) of doing it differently would be greater than the probability of injury doing it this way (more people would be injured if the power line hit the ground).

Defense said the installation of baskets would have caused risk of possible electrocution

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and fire to other people Claimed negligence: Application of BPL:

o B = Cost of putting up safety baskets 1) costs of basket 2) Installation costs 3) Risk of possible electrocution & fire

o P = the probability that these two wires would come in contact making a loud noise & the probability that if that happens, that it would cause the neurosis (Rare chance)

o L = severe neurosesCT: P must show a viable alternative. Here, alternative would have caused a higher risk of electrocution while taking rare chance of neurosis away. Burden too high for D and bad for society. There is no practical device that could be used that would limit the risk of injury to others, the Burden of doing it another way is too great.

***General duty of the defendant = to take ordinary care so as not to expose people to unreasonable risk of injury

**Chicken Hawks Rule of Law: If the probability of harm (foreseeability) is extremely low but the severity is extremely high, it is likely to outweigh the burden. (Chicken Hawks)

Chicken Hawks Hypo {Chase v. Washington Power}

F: Power lines going through the country, at part of the right of way, there is metal fence. The fence is part of the right of way and is supposed to be maintained by the power company. Fence has not been properly maintained, the fence is lying against the guide wires (the triangular wires that hold the pole up). Two chicken hawks are fighting. Gap between the guide line and the power lines. Birds have a 9/10 inch wing span. Two birds have wing span of 20”, they try to fly through, causes the electricity to go through the guide wires down to the fence, through the fence and caused a fire half a mile down the road. The farmer whose crops burn sues for damages. Everyone knows of chickenhawks in aerial battle, too close to power lines, barn burns down.

DUTY = take reasonable care Plaintiff says = By allowing the fence to flop, the ∆ did not take reasonable care ∆ says = it is not foreseeable that chickenhawks would be fighting, so the probability of

injury is zero

P: Farmer sues for damages for crops alleging that the negligence is that not enough space was left. Specific incident that happened wasn’t necessarily foreseeable but the injury was foreseeable because something conductive could have fallen between the space (i.e. a wet branch)D: not foreseeable that two birds fighting chicken hawks getting through the fence. No negligence on not maintaining the fence because couldn’t foresee the birds flying though the gap. Unavoidable injury – would have cost more $ than the probability of this occurring. Not foreseeable that chickenhawks could do such damage. So B >PLH: Specific facts were unforeseeable, but something else generally could have done this (wet branches are clearly foreseeable…maybe improbable but not unforeseeable). Once there is something that is more foreseeable that can cause this harm, even though this event wasn’t specifically foreseeable the D is liable.

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Its PxL (the severity (L) is very large)The burden is maintaining the whole fence (not just this 10 feet of fence), could be 100s of miles of fenceProbability x L (severity) has to be relatively high

P=Unforeseeable Specific injury based on Facts but Foreseeable general injury. o You cannot get off by saying that the specific injury is not foreseeable if an injury of

the same type is foreseeable. (P = foreseeability in this case and it is low) L=High b/c electricity is dangerous/deadly. B=of maintaining fence is high.

***When B & L are high, just need a little P for D to be liable. Here, D was liable for a “foreseeable injury” as this situation was generally too dangerous. Chem Lab HYPO:F: Saconey Oil company decided to send high school samples of all of the (petroleum products) oils in little bottles (crude oil, kerosene, etc.) for display. They are actually dyed waters, used bottles for advertisement purposes. Teacher puts potassium into bottle (not volatile in kerosene) and bottle blows up. H20 & potassium are explosive together, but bottle didn’t say water on label, teacher had no way of knowing it was H20. It explodes because Saconey doesn’t actually send oil products (too dangerous to send them in the mail), but instead makes dirty water that looks like the oils and sends those. The bottles were labeled as if they were oilsOriginal claim: they shouldn’t have had water in bottles; D’s response could be that sending oil would be just like Cooley case – sending the oil would have been worse than water P: Better argument: wrongful act is that the bottles were labeled incorrectly. Mislabeled bottles are dangerous. In real world, H20 is safer than oil, but not in chem lab when mislabeled. Says that it was foreseeable that sending the mislabeled bottles to a chem. Lab would create some type of risk, maybe not this exact one, but foreseeable in an unexpected way. Don’t have to see this injury per se, just some type of injury. In chem lab, D should have foreseen it improperly being used and causing risk— like Chickenhawks, where can’t foresee the potassium accident, but generally can foresee accident under circumstances. The burden is very low, so any probability of injury kills the D’s claim. D: Says the probability of this particular event happening is 0, no matter how great the injury is PxL is zero, so any cost would exceed it. H: There is a probability of some serious risk of injury, maybe not this exact one, but that an injury could occur in an unexpected manner.P wins because D should have known that there was a foreseeable risk of some injury, even if not this exact injury.

Plane flying near Air Force Base, pre-radar HYPOF: Flying in a plain in the 1930s (there isn’t radar) and the plain is designed such that the pilots have 130 degree angle of view. Little air traffic in most areas. Flying near an air force base. See a plane coming at them from the side, dive 500 feet down to avoid being hit. They were near military base and if the pilot leaned forward, they would have been able to see the fighter plane. Leroy isn’t wearing his seatbelt flies up and hits his head on ceiling(passenger).P: Claims that they were negligent in divingD: Claims the Burden of not diving (risk of accident is great) – had to die to avoid plane and save your life. Not liable.P: Antecedent negligence - claims that flying near the air force base was negligent and it caused the risk of diving because there is a greater probability of more plans. Once u knew you were near the military base, you should have been leaning forward to make sure there were no other planes. The B (looking out the window for other planes) is < PL.

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H: Flew near the air force base and they knew there was a probability of other planes, the pilots should have leaned forward to have more view (it would increase from 130 degrees to more like 180 degrees). D was negligent in flying near the air force base.R: Foreseeablility: Conduct is negligent when injury is foreseeable. If Burden of doing something differently is less than Foreseeablility, then there is Negligence. Antecedent Negligence: D did good, but they weren’t Careful. Look at the events BEFORE the act to see how they were put in that position in the 1st place. 1. Did he know? 2. Should he have known?

Rule of Law: Providing a warning of a potential danger may serve to mitigate a finding of negligence only if measures to guard against injury were unavailable or cost-prohibitive.  (WARNINGS DO NOT CIRCUMVENT THE NEED FOR PRECAUTIONS)

Andrews v. United Airlines F: As passengers were beginning to exit the aircraft on landing, a briefcase fell from an overhead compartment and injured P.  There was no evidence as to who opened the compartment or what caused the briefcase to fall.  P: argued that, even in the absence of direct involvement in the incident, United Airlines was still aware of the potential for this type of injury and was obligated to take steps to prevent it.  2 expert witness testimony to show United did not satisfy its duty of care toward its passengersD: United argues that P - Andrews presented too little proof to satisfy her burden (to withstand summary judgment)D sees a low incident of injuries as incontrovertible proof that the safety measures suggested by P's expert would not merit additional cost and inconvenience to airline passengers - B>PxLH: United has demonstrated neither that retrofitting the overhead bins with netting would be prohibitively expensive, nor that such steps would grossly interfere with the convenience of its passengers. And given their awareness of the hazard (135 reported cases) they have not done everything that technology permits to eliminate it. The probability of injury greatly outweighed the burden of avoiding it (HAND) Rule of Law: A person in an emergency situation is treated as a reasonable person in the face of an emergency, the emergency must be considered. (Lyons and Eckert) Lyons v. Midnight Sun Transportation Services, IncF: D was in an accident and negligently hit P bc D pulled out of parking lot and wasn’t paying attention and collided with Ps car who was trying to avoid him. P dies. P: If D had turned properly he would have avoided the accident. Thinks that the sudden emergency jury instruction shouldn’t have been given because he should be judged as a reasonable person.P's expert: D might have been driving as fast as 53 mph. If D had stayed in his own lane and not steered to the left there would have been no collision

he would have avoided the accident.D's expert: Midnight Sun's expert contended that steering to the left when a vehicle pulls out onto the roadway from the right is a normal response and is generally the safest course of action to followH: The court found that the use of the sudden emergency instruction was harmless because it did not change the definition of liability. With or without an emergency the standard of care a person must exercise is still that of a reasonable person under the circumstances.

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Sudden Emergency Doctrine: Rule of law: which states that person confronted with a sudden and unexpected peril, not resulting from that person's own negligence is not expected to exercise the same judgment and prudence the law requires of a person in calmer and more deliberate moments The person confronted with the imminent peril must, however, act as a reasonable person

would under the same conditionsSide Note: Matter of law, as to whether there is a different standard of care to the propriety of actions in an emergency situation versus a regular situation.

Third Restatement §9 (page 184): it’s a specific factor that the jury can consider in how a reasonable person would act (in an emergency)

Person would act reasonably based on the circumstances Need to take the emergency into account

Rule of Law: When a person voluntarily exposes himself to a serious injury when saving a child’s life, unless the act is reckless, it will not be considered negligent.  (A PLAINTIFF’S OWN NEGLIGENCE MAY BE EXCUSED IN AN EMERGENCY).

Eckert v. Long Island R.R.F: Train could run either way – no witnesses heard whistle or bell indicating warning signal. Kid on the railroad, Eckert throws him off the tracks saves his life and gets killed in the process.The legal issue is: Contributory negligence on the plaintiff.P: the railroad was negligent in the speed that it was operating in and failure to stop.D: The P was contributory negligent because he went in front of the train, exposing himself to danger.H: When the exposure to harm is for the purpose of saving a life, it is not negligent unless it can be regarded as rash or reckless. POLICY: Needs to be weighed against the value of his own life, if it had been property (or a cat) that he was trying to save, it would have been negligent. But trying to save a child doesn’t give you time to think. Also connects to Lyon because it’s a sudden emergency.P wins because his risk of harm wasn’t contrib. in attempting to save the life of a child, wasn’t rash or reckless, there was no time to calculate the risk.

REASONABLE PERSON STANDARD – COMMONSENSE INTERPRETATION OF NEGLIGENCE:

Reasonableness - decided by the jury -Subjective/Objective Standard. The question is NOT whether the defendant thought his conduct was that of a reasonable person, but whether you (the jury) thinks so. What would a reasonable _______ person in the position of the defendant do?

You don’t take into consideration: mental traits (unless they are mentally retarded) Children are judged compared to children of similar age and experience. Stupidity is not taken into account because everyone could claim it. It would create the

idea that stupid people could injure someone and get away with it. You breach when you act in an unreasonable way -ALL OF THIS HAS TO DO WITH BREACH OF DUTY (negligence)

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Knew or should have known: Should have known would mean that based upon what has happened in the surrounding

territories he should have known (1) Should have known essentially means that you know enough to know that you

shouldn’t take your next (might be risk) step without investigating (2) Second aspect of should have known is should calculate rationally

The reasonable person is a legal fiction of the common law representing an objective standard against which any individual's conduct can be measured. It is used to determine if a breach of the standard of care has occurred, provided a duty of care can be proven.

* Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

To be free of negligence, a person must exercise the same degree of care as a reasonably prudent person of the same age and maturity.  (THE IMMATURITY OF MINORS IS TAKEN INTO CONSIDERATION).

The question is whether D behaved reasonably “under the circumstances” – the circumstances generally include the physical characteristics of D himself.

Exceptions:

A child should be held to the standard of “a reasonably careful person of the same age, intelligence, and experience” (not that of an adult).

A child under 5 years of age is not capable of negligence.

When a minor undertakes an adult activity , he is held to the duty of a reasonable adult. Lawnmower/motorcycle – any extremely dangerous activity - is an adult

activity and therefore child will be held to RP standard of an adult when a child partakes in these kinds of activities.

The conduct of a person with a disability “is negligent if it does not conform to that of a reasonably careful person with the same disability.” (i.e. blindness)

****While a party may not take advantage of one’s age or infirmities in a showing of negligence, a party charged with contributory negligence is held to a standard that takes into consideration age and maturity.

Emergency is a circumstance to be taken into account in determining whether the actor’s resulting conduct is that of the reasonably careful person – D must merely behave as a reasonable person would if confronted with the same emergency – not as a reasonable person with plenty of time to think.

No Exception:

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The ordinary reasonable person is NOT deemed to have the particular mental characteristics of D (stupid, careless)

There is no reasonable stupid person.

There is no reasonable poor person.

To avoid risk: beginners are held to the standard of care expected of those who are reasonably skilled or practiced in the art.

EXCEPTION – when P has assumed the risk that the D will exercise a lower standard of care (ex – experienced driver agrees to teach a novice how to drive) - The inexperienced driver continues to get the benefit of the lower standard against his driving instructor, but not against an injured pedestrian or other driver who did not assume the risk

But it does not issue any rule, noting that "skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person"

Expresses doubts that higher skilled driver or skier should be held to a higher standard in an accident (this expert standard only applies to doctors or people in a certain profession)

An insane person will be held liable for his negligence under the reasonable person standard. An unforeseen state of insanity is an exception

Intoxication - Being drunk is no excuse - An intoxicated defendant will be held to the standard of the reasonable sober person.

Where Problem arises:

Where D has greater skills than most people: Second Restatement: provides that the D is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities

EXCEPTION : UNLESS He represents that he has greater or less skill than the average (in that field – he doesn’t have to do “more” just has to act like a RP!)

LIABILITY IS STRONGEST WHEN: Similarly holds that the case for the higher rule is strongest when the two parties have agreed to it, or when the D is engaged in dangerous activities

 

Rule of Law: Ignorance isn’t a factor that is taken into consideration when deciding if someone acting like a reasonable person. Objective standard –RP in Ds situation should have known or would have known.

Vaughan v. MenloveF: D put hay rick near the boundary of his property near the P’s property. He was repeatedly warned that it could catch fire. It does and spreads to P’s property, P sues

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P: D was negligent because he knew or should have known of the dangers. D was negligent in leaving the hay because a reasonable person, knowing what D knew would have foreseen that leaving the hay would create and unreasonable risk of fire that could foreseeably spread to neighbor’s propertyD: Not negligent because he’s dumb and doesn’t know about this type of stuff and had no reason to know. Did the best that he could do. I should be judged by my own subjective standard.H: The court uses an objective std. of behavior (what would a RP have done)? A reasonable person knowing what Menlove knew would have acted differently, and thus he is liable for the damage. Defendant acted with gross negligence and the jury can decide.FYI: The RP std. always involves risk avoidance. Must ask “did the D do what a RP would have done? What would a RP have known of available and costs of alternate forms of conducts (cost of avoidance/should have known to do).

Why do we hold someone like Menlove to this objective standard? Policy problem – people will use a defense of dumbness no matter what level of intelligence

they actually are. The reasonable person would have the same knowledge considering the circumstances but not the same mental processing skills.

Should people who are so dumb that they cannot act reasonably so as to avoid unreasonable risk to others keep their money, or should their money go to compensate people who are injured? A standard that allows people of a lesser intelligence to cause injury lets those people keep their assets. How we adjust and define standards tells us who can more easily win and who will keep their asset There is no “reasonable low intelligence person” - Will not consider claims of mental

abnormality (below normal ability) One reason is because it will cause false claims, would be more claims of not

knowing RP should be a person of normal faculties. Need objectivity as there could be incentive to

fake it. Here, D was given a warning. Should have known warning came from someone smarter than him.

Cityslicker Hypo--(Ignorant and RP)F-Guy made a fortune in the stock market. Buys a farm upstate. Workers cut down the hay and he stacks it. Hay catches on fire and burns neighbor’s house down. D-Not dumb, but ignorant. I had no idea hay would catch fire, I’m not a farmer for that long.H- Ignorance: RP based on a person in his position i.e Should stocks person have know about the hay? We look to a reasonable person in the same situation and knowledge and background. We hold him to what a RP in his situation should have known.

Rule of Law: To be free of negligence, a person must exercise the same degree of care as a reasonably prudent person of the same age and maturity.  (THE IMMATURITY OF MINORS IS TAKEN INTO CONSIDERATION).

Roberts v. Ring (Physical infirmities and RP)F-Robert’s, P’s son, age 7 was struck while crossing a busy street by a car driven by Ring, D, age 77. D was driving only four m.p.h., but his sight and hearing were defective. P: D should have been able to stop he was only going 5 miles an hour and therefore it he should have seen the boy and stopped. D: tends that the charge was without error and further contends that as a matter of law, D was without negligence and that the boy was negligent

Contributory negligence for running into street

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R-When driving, the court refuses to lower the standard of care, the old man’s infirmities hurt him. He is held to a standard of care of a driver, a well seeing, hearing person. If he couldn’t see or hear, he should not be driving.

The reasonable man standard is used to determine if there was negligence even if the person charged with negligence is an old man.

His infirmities (sight and hearing defective) do not change the standard of care used (he is held to the standard of the Reasonable prudent person of his age and maturity

Regarding D’s contributory negligence claim, a different standard of care was applied because the boy was a minor. ****While a party may not take advantage of one’s age or infirmities in a showing of negligence, a party charged with contributory negligence is held to a standard that takes into consideration age and maturity.

 Rule of Law: Ignorance of a local standard is excused for non-locals, reasonable non-local wouldn’t be expected to know the standard. (Fog horn hypo)

Great lakes, horn means clear path HypoF: Driving in a dark and stormy night - you see a rowboat heading towards what you know to be rocks (b/c hotel your staying at is near it) - you stop your car and start blaring your horn bc you are a do gooder. Horn = clear signal of where to go - the boat turns around and slams into the rocks. Apparently the custom is that a horn signals a clear path not danger in this area. They sue you.D: I didn’t knowP: you should have knownD: a reasonable person not from this area wouldn’t know, a reasonable person from another area would have behaved in the same way.H: P wins because judged on what a reasonable person not from the area would have known or should have known

Rule of Law: “beginner RP standard for those who assume the risk”

WHEN P has assumed the risk that the D will exercise a lower standard of care (ex – experienced driver agrees to teach a novice how to drive) - The inexperienced driver continues to get the benefit of the lower standard against his driving instructor ( RP standard = what reasonable beginners are held to the standard of what a reasonable beginner knows or should know as opposed to just being held to the same standard of an experienced driver), but this beginner RP standard does not hold up against an injured pedestrian or other driver who did not assume the risk.

Driving Instructor HypoF: Take driving lessons (not a dual operated car). Experienced driving teacher. Student learning to drive on a manual car. Car comes in the opposite direction and student gets nervous (b/c the road isn’t that wide) hit the clutch and get into an accident, teacher is hurt and sues. Assume no indication of contrib. on the teacher’s behalf...D: First says “I’m not negligent” [first level of defense]

Then says that he acted within the standard of care of someone who is learning to drive Did everything a reasonable person would do, took driving lessons

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P: Says that that he should have known the difference between the clutch and the brake. He was negligent for this beginner. He should have thought about it and applied it.H: Even a reasonable beginner knows or should have known the difference b/t the clutch and brake. Mistake was unreasonable for a beginner.P wins because a reasonable beginning driver knows the difference between clutch and brake (despite assuming the risk as a driving instructor – beginner driver “should have known” the difference between a clutch and a brake b/c a RP in the drivers situation being a beginner would have known.

Rule of Law: Newly licensed drivers are held to the standard of licensed drivers, not newly licensed drivers.

To avoid risk: beginners are held to the standard of care expected of those who are reasonably skilled or practiced in the art.

Learning to drive a car and get in an accident HypoF: Learn to drive a car, get in the car, go really slowly. Get in an accident and hit someoneD: Don’t know how to driveP: You shouldn’t be driving, “A reasonable person wouldn’t have gotten on the road if he didn’t know how to drive”H: P wins, reasonable person wouldn’t have gotten in the car – RP of beginner is the same standard of care expected by those who are reasonably skilled – held to the same standard as everyone else on the road.

New Driver, just got license HypoF: Just got license, go around the corner faster than the experienced driver would go around the corner, hit someoneP: D was negligent in hitting me, did not act like a reasonable driverD: I should be held to the standard of a reasonable new driverH: Once you have a license you are held to the standard of the reasonable (normal experienced) licensed driverP wins, all drivers held to the standards of a reasonable licensed driver.

Rule of Law: Experience doesn’t increase the duty of the standard of care, you are still held to RP standard. (Race car driver)

Race Car driver accident on highway HypoF: Assume the driver is an experienced race car driver, has a blow out (going 50mph in a 25 mph zone)H: Reasonable person doesn’t act in violation of safety standards, even if they are a better driver. So “more experienced” people are held to the same standard as a normal reasonable person ***Unreasonably dangerous is cost benefit (violates the Hand formula)

Child Standard – Rule of Law:

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Minor engaged in an adult activity that can result in grave danger and is usually performed by an adult, is usually held that adult standard of care. (Daniels – 19 year old on motorcycle/ lawnmower hypo).

Some jurisdictions apply this to only licensed activities. Some apply it to unreasonably dangerous activities

Daniels v. EvansF: 19 year old P was killed when his motorcycle collided with the car of D.P: Should be held to a reasonable standard of a kid his ageD: Should be held to an adult standard because it was an adult licensed activity.H: The court held that a minor engaged in activities that are usually undertaken by adults should be held to the same standard that is required of adults. Different judges in different jurisdictions apply Daniels differently. Some say it’s a licensing case, and some say it’s a dangerous activity case. Furthermore they apply it to different activities (some many not necessarily be dangerous) *Efficiency argument: A driver can’t see who is driving the other car and is expecting an adult level of care, less accidents. Legislature made all traffic rules apply to all drivers. When minors engaged in activities appropriate to their age and experience, then they are entitled to be judged by the standards of their age and experience.

Reasonable Kids HypoF: Two 13 year-olds out on the lawn. 13 year old (whose father’s lawn it is) is mowing the lawn with a typical push motor. Decide to play lawn mower tag, runs after the other kid trying to bump him with the housing. Mower goes over a bump, pushes it up and takes off part of the other kid’s footDefendant: kid pushing the lawn mower (his father’s lawn)Plaintiff: other kidP: he exposed me to an unreasonable risk of danger.D: says that he should be held to the standard of care of a 13 year old child – (not unreasonable because there are safety devices)P: (Daniels) when the kid is doing an adult activity should be held to an adult standard. In Daniels it was a motorcycle – in this case lawn mower – dangerous activities. should be held to the standard of the activity that he is doing.D: distinguishes Daniels. Saying that driving is a dangerous activity requires a license and requires a uniform standard (License requires that they judge by the same standard of skill) – any 13 year old would not

Defendant Holding: License activity case, defendant was held to an adult standard because it was a license activity case. Is riding a lawnmower an adult activity?

P: That he was acting unreasonably dangerous for a person his age, This is the only thing left if the child standard is to be applied. What a reasonable 13 year old should have known, no reasonable 13 year old would play lawn mower tagH: Judged by a reasonable 13 year old standard, no reasonable 13 year old would think that playing lawn mower tag would be okay - reasonable 13 year old should have known better and would have understood that this game was dangerousSide Note:(Contrib. may have been a problem for the plaintiff in this case)Parents home owner’s insurance policy will pay

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Would be hard to make the parents liable, because you would have to show that it was foreseeable that something like this would act

Rule of Law: We ignore insanity - (standard rule in US just like we ignore stupidity)

Exception to the Rule:

Sudden insanity attack = just like a person suddenly having seizure or heart attack.

BUT it has to have been unknown to D before attack (just like an epileptic driving) if you know you are prone to insanity attacks

RARE: rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence i.e. to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident

**Breunig approach to insanity still governs insanity in automobile cases **Breunig does not apply to institutionalized insane persons

 Breuning v. American Family Insurance CoF: P was struck by a car driven by D, who believed that God was controlling her and told her that she could fly like Batman, etc.P: Should be judged by a reasonable person standard. Should have known due to her condition that something like this could have happened.D: Crazy and don’t know better, should be judged as a crazy personH: Crazy people are required to act like a reasonable person that are not crazy (held to same reasonable person standard as everyone else driving a car). Policy basis of holding a permanently insane person liable for his tort is:

(1) Where one of two innocent persons must suffer a loss it should be borne by the person who occasioned it;

(2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him and

(3) the fear an insanity defense would lead to false claims of insanity to avoid liability

Getting to Hand Formula :

The D did not know but should have known = not held liable Once you identify that the D knows the risk and D may not still be liable A reasonable person depending on risk and in a different scenario might handle it differently

Rule of Law: When creating a danger on a public thoroughfare, the one creating it must give notice of its existence such that all who encounter it will be reasonably protected from injury. Must take necessary precautions to avoid any foreseeable risk (even if the chances of it happening are low – but the severity of injury is high this outweighs any burden you have to

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prevent that risk/injury from occurring   (WARNINGS MUST PROVIDE NOTICE TO THE ABLE-BODIED AND DISABLED ALIKE – EVEN DRUNKS!)

HYPO: Bar and GrillF:You are going to open up the basement and give it a separate entrance by taking off covers so opening is bigger - have to do lots of digging - not a one day job - there's a big hole in the side walk right in front of the restaurant. You say to yourself that during the day its light so everyone can see it and at night there's streetlights so everyone can see it = not dangerous – you balanced the risk and it is small. Someone comes along reading a newspaper and doesn’t see the hole and he falls in. D: I assumed people were acting reasonablyP: it’s foreseeable that careless people (acting unreasonably) are walking down the streetH: Reasonable person has to assume that other people are not going to be reasonable in (foreseeable) ways. She should know that people are walking down street texting and reading.

Metal grate and barricades HYPOF: Metal grate on the street, its broken, need to repair, going to several days on a city sidewalk. Now there’s a hole in the ground. Barricade around the hole. Blind person falls into the hole.P: Even if they didn’t anticipate a blind person, someone drunk or otherwise impaired could have fallen in. A reasonable person assumes that other people act unreasonably because there is no such thing as a reasonable person.D: I put up the proper barricades, not foreseeable that a blind person would be walking there and fall in.H: Don’t have to see the actual injury that occurred, just need to see the possibility of an injury of that type occurring. Don’t need to foresee the specific risk, but just need to see that there is a foreseeable RISK that inevitably exists. Don’t need to predict wholly unreasonable conduct of a person, need to predict some erratic behavior (even smart people do stupid things).

Metal grate and barricades Hypo Variation 1F: The barricades are at a point, so there’s a little sidewalk. One kid comes by and jumps over the barricade and lands on the sidewalk so all the kids have to try it, kid falls in and gets hurt and suesP: Kid will act as a kid his ageD: Yes you have to foresee that people won’t act reasonably but you don’t have to foresee that people will take intentionally clearly unreasonable risksH: Not responsible for the people jumping over

Barricades HYPO #2F: Owner (D) - puts down barricades - painted yellow - so everyone can see them - very noticeable - puts across front and down side around hole. P comes along with kids and they bump into barriers and they get moved a little (moved from where D put them) Person with vision problem is walking down street and goes right in between space that the kids made and falls (the woman with kids walks away so she cant be sued she's gone). Is D negligent?D: To be negligent risk must have been a risk that she knew. She blocked the hole to prevent someone from falling in with barriers - she could not foresee that kids were going to move them.P: Claimed negligence is now either that the barriers weren’t maintained, barriers weren’t sufficient or that the barriers should have been attached in some way so they couldn’t be moved (use something that couldn’t be moved) and should have foreseen they could be moved. D

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should have known and forseen that SOMEHTING could have moved the barriers. D should have secured them (chain them together) so they could not move apart. H: Reasonable person should foresee that someone would bump into it and they could be moved inadvertently (accidentally) (same holding as original hypo with blind person) Don’t have to see the actual injury that occurred, just need to see the possibility of an injury of that type occurring. Don’t need to foresee the specific risk, but just need to see that there is a foreseeable RISK that inevitably exists. Don’t need to predict wholly unreasonable conduct of a person, need to predict some erratic behavior (even smart people do stupid things). Barricades HYPO #3F: P has a drinking problem and she is with friends who drink a lot - are all walking down this street loaded. They see the barrier up ahead and say "track meet" and use the barriers as hurdles…injury occurs for obvious reasons. P: you are negligent because I fell and of course going to SUE…D: had barriers and they were chained together – what more do you want?What should D have done according to P?P: claims barriers should have been higherD: I should not know or anticipate that people are going to "hurdle" themH: Underlying issue dealing with negligence:

What anticipation are you supposed to make about others? Should you assume they will act safely?

IT DEPENDS! DEPENDS on specific nature of conduct... You should have known? Was it a possibility? What should you have done differently? Whatever D didn't do is what they should have done (according to P)….and P claims that

they should have known How much UNSAFE conduct do we have to FORESEE? IT DEPENDS. Use chicken hawks If the probability of harm (foreseeability) is extremely low

but the severity is extremely high, it is likely to outweigh the burden. Not foreseeable - that someone would hurdle barrier. Is it an unforeseeable that someone would use as hurdle but is there something else

that would cause D to need a higher barrier? So think of something that could have happened depending on the height of the

hurdle - someone not paying attention and walked over it…drunks could have been throwing up over barrier and leaned too far

As long as you can find something that would have happened b/c of low barrier other then the drunks hurdling it...

THEN you can foresee that something else could have happened You can’t foresee hurdlers but you can see that someone could bump into them and

put them right over the hurdle - something you should have foreseen. (even if it is low – the severity of someone falling in the hold is high and outweighs the burden the D may suffer in money paying to secure the hurdles or make them higher to prevent this risk.

 Alternate barricades Hypo # 4F: Now hypo where person isn’t looking at the barrier looking at someone else and falls over the barrierP: Claimed negligence is that the barriers were too lowD: Can’t protect everyone from everything, if so you’d need a 6 foot high fence with electricity so no one would climb over (cost benefit analysis says that isn’t the best solution)

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H: This would probably get to the jury Metal grate and barricades Hypo Variation #5F: Used the police barriers because had the police barrier, just don’t have the money to rent a fence or anything else [all assets are being devoted to other activities, remodeling etc.]P: This was foreseeable, wealth or lack thereof doesn’t matter.D: Can the fact that there’s no money (wealth) be a consideration?H: Wealth isn’t a factor in decision. . When we talk about poverty, we don’t really mean poor; you have to have assets to be negligence. Can’t really say that you don’t have the money to build a better fence or repair the fence. Notion of “I don’t have enough money” isn’t a defense because it’s not a true reflection of reality (Asking to be free to allocate the money as you choose)***There is no “reasonable poor person” just a reasonable person standard of care

Brake Failure in February HypoF: D is driving her car going north on the meadow brook coming from the southern state highway. She goes to brake to get onto the meadow book, when she pushes the brake, she notices that something is wrong but there’s no exits between here and Hofstra. She slows down to go 50 mph or so. Someone cuts her off and she slows, but the car still doesn’t stop now she’s going about 40 mph. She goes to get off the exit, brakes again and fails completely and she goes right off the road. Going uphill on the off ramp, hits another car that is on the side of the off ramp (that has a flat). Happens at about 4pm in February, there is ice and its about 28 degreesP: Claimed negligence is that once she knew the brakes were faulty she should have stoppedD: Acted appropriate, she slowed down twice, she didn’t know the brakes were faulty. Also, she’d expose herself to a greater risk of injury than the injury to others, its going to get colder when it gets dark and she’ll have to walk somewhere to get help. Vulnerable to attack by others. Burden of pulling off was greater in terms of risk of injury to me than to others, she didn’t have any reason to believe that the brakes would fail completelyP: Maybe she acted properly the first time, but after the second time she had more notice because that the brakes would have failed eventually. New claimed negligence is that she didn’t slow down enough, this is a better argument. Next one is that she should have known that her brakes would have failed completely because after the second time she should have know that there was rapid deterioration. People walking on side of the road HypoF: Driving east on Hempstead Turnpike. 2 people walking on the shoulder (no sidewalk). Driver (a police officer) recognizes one of the people as being a drug smuggler, but doesn’t know the other person. Driving in the center lane. Sees the criminal and switches to the right lane (near the people walking) and slows down to 30mph (speed limit is 40mph). The non-criminal stumbles and trips into the street. The driver swerves and hits him.P: Will sue the police officer saying that a reasonable person wouldn’t have acted as the defendant acted or should have known that what he did would cause an unreasonable risk of injury. Violation of a standard of care, is to not create unreasonable risk of injury. The defendant was negligent by switching lanes bringing the car close to the people that were walking and he created the risk that someone could be tripped, fall or be pushed into the lane, if he was in the center lane, no one would have gotten hurt.D: The risk wasn’t unreasonable: (use the hand formula). Reasonable purpose and he slowed down to reduce the risk. H: The fact that there is a right lane helps the defendant’s case. He couldn’t be creating an unreasonable risk because he was driving in an authorized lane for travel (And he even slowed down to reduce any risk).

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Amounts to whether the probability of an injury occurring is greater than the burden. The probability of serious injury is low. Side Note: If the person was walking on a sidewalk, the same thing would have / could have happened so having sidewalk doesn’t change anything People walking on side of the road Hypo2F: Changes lanes, doesn’t slow down, knows the shoulder is very rocky. Sees that the plaintiff is walking close to the shoulder (shoulder is full of holes). This time what happens, the plaintiff is pushed in front of the carP: Foreseeable that this type of incident could occur.D: Changes help the defendant. It is less foreseeable that the plaintiff would be pushed as opposed to tripping. Not within the foreseeable risk.H: If the person tripped it would get to the jury. The significance of pushing him doesn’t change too much, it doesn’t change the risk that the driver created as the driver changed lanes and didn’t slow down. The question is whether the push is within the range of foreseeable injuries. Intentional torts may help the defendant.Side Note: Knowledge of risk, burden and probability of serious injury. Foreseeability: Probability of injury and Burden. These facts make the injury more probable, Faster speed and rough ground, makes them more likely to trip, puddles, so they are closer to the street, makes it more foreseeable that that they can fall into the street. Facts relate to specific legal issues. If he was in the right lane and did see someone that was virtually on the line and could see the ground is uneven, you should reduce your speed. Drunk Driving Cases D held to Reasonable sober person standard. Apply by saying not picking a designated driver prior to going to the party is negligent act. Should have known u would get drunk (Antecedent Negligence). Being drunk is no excuse - An intoxicated defendant will be held to the standard of the reasonable sober person standard!

Medical Hypo Young person gets routine eye surgery. General anesthesiologist present. Patient has heart attack. Anesthesiologist pounds on his chest to revive. Also, calls a cardiologist. Takes cardio guy 6 minutes to get there. Child partially brain dead when he does arrive. Cardio guy tells P to sue eye doctorP: Eye Dr. is negligent b/c he knew there is a foreseeable risk with medical procedure and should have 1. Had a chest surgeon present 2. Known the procedure himself. B < PL b/c burden was low in having Dr. around since they are in a hospital and PL is high with chance of death.D: B is huge. Having a Dr. on immediate call is enormous expense. Also, small PL when there is an EYE exam that a heart problem would arise.

Lucy Webb Hayes F: Crazy woman was in a mental hospital b/c she was suicidal. Walking with nurse in a locked ward when she gets away and jumps out unlocked window and dies. Hospital generally had the doors locked and plaintiff alleges that the hospital fell short of its own standard of care when it allowed the decedent to wander into a normally locked and restricted area. P: Sue mental hospital. This was foreseeable. Only sent one nurse, who you knew wasn’t strong enough to restrain the decedent. Should have had better training. Also, knew of danger. Hospital fell short of its own standard of care. B <PL. Small Burden of locking the windows or putting bars up. Should have known and foreseen that this was necessary in a mental ward and standard of care is to lock things up usually. H: The court held that the jury could reasonably conclude that the hospital’s failure to observe the standards it had itself established represented negligence.Since we want to encourage employers to set up rules with a high standard of care, we can’t allow those rules to be held

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against the employer. Lucy Webb, is a more recent case and have shown a willingness to allow the plaintiff to introduce the defendant’s own internal rules on the standard of care in question.

Dirt Road Hypo: F: Many drive on one part of the road. Dirt road in country with few houses. 2 cars hit. D is being sued by passenger in front seat of his car.Guest Statutes in Automobiles: Only in a FEW states: If a non-paying passenger in a car is injured and sues the driver, the driver is not liable UNLESS he is Grossly negligent, reckless. Most States: Guest is owed a duty of ordinary care. CT: Not liable here b/c action wasn’t gross etc.D has less of a duty to a passenger. Policy: This prevents friends from faking accident to collect money from insurance companies.

NEGLIGENCE - CUSTOM Defined: admissible as evidence to demonstrate reasonableness and the standard of care owed, but it is never conclusive. A custom may be found to be negligent.  It can be of great significance to P he shows consistent conduct of an entire industry that D did not implement. Three views on Conduct: 1. If the D shows he conformed to custom, directed V. (Titus)2. Custom is only evidence3. Evidence of custom should not be admitted (Mayhew)

Custom: Rules of Law - *OLD RULE: A business practice will not constitute negligence it if complies with the ordinary standard in the industry; an employer is not required to keep a workplace safe from all harm.  (COMPLIANCE WITH INDUSTRY STANDARDS INDICATES AN ABSENCE OF NEGLGIENCE). (Titus)

Modern view – courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care. However, this evidence is generally not conclusive.

Evidence by D:

Evidence that conduct conforms to average conduct or custom within an industry does NOT, in and of itself, mean that the conduct is not negligent.  (AN ENTIRE INDUSTRY’S FAILURE TO APPRECIATE AND GUARD AGAINST RISK DOES NOT NEGATE NEGLIGENCE).(Mayhew – overturned Titus)

Evidence by P:

Proof offered by P that others in D’s industry followed a certain precaution that D did nto, will be suggestive but not conclusive evidence that D is negligent.

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Rule to follow: Custom is admissible as evidence to demonstrate reasonableness and the standard of care owed, but it is never conclusive. A custom may be found to be negligent. (TJ Hooper) Industry custom does not always establish reasonable prudence, when new technology or methodologies are available and accessible.  (A PRACTICE THAT IS NOT YET A CUSTOM MAY DEFINE REASONABLENESS). (TJ Hooper)

If the company has a safety standard that is higher than the standard of care then the company is held to that standard, not custom standard.

Custom is admissible for the jury to consider, when it is so obviously dangerous it will not be a defense, but it’s up to the jury to decide, better to get to the jury than not at all.

 

 Train Whistle Hypo F: Railroad company, all the engines have whistles or horns. Buys the industry standard which is a 92 decibel whistle. Has on all of her trains, this is the whistle that is sold for all of the trains (all set the same across the country). It’s a dark and stormy night in the middle of winter and a person is in his car. Volume on the car radio was high, if you were in the car next to him, you might have found it loud, windows are closed and heat is on. Railroad track has a sign but does not see it reasonable to have gates. The driver doesn’t see or hear anything and drives across and gets hit, serious injuries. Was D negligent?P: Sue’s the railroad company and says, insufficient safety measure (could say gates / lights / etc. but not enough trains and cars to justify greater warning system, so this isn’t the issue). The insufficient safety measure is that it’s not a loud enough whistle - should have been louderD: It is loud enough and you can prove that because it’s the industry standard - custom is industry standard and therefore custom shows reasonable conduct - MOTION TO DISMISS : insufficient evidence that D was negligent in breaching duty H: Custom – it’s the industry standard. The issue is that this is what everyone does. The burden is too high to impose a different standard. And a reasonable person is judged by what he knew or should have known and the defendant in this case had no reason to know that the whistle wasn’t loud enough. Side Note: Why is custom a defense?  

Evidence that everyone does this strongly suggests that the individual person has no reason to know nor should they know that there is something unreasonable about what they did.

Evidence that it is not unreasonably dan gerous, for everyone who had a responsibility picks 92, is some evidence that 92 is the

right amount. Furthermore the loudest whistle might be detrimental to some people, especially in a

residential neighborhood. Custom tells us something about the burden, maybe everyone’s whistle isn’t loud enough,

or maybe you need a 3 level whistle Titus v. Bradford RR

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F: Employee of RR killed because Broad gauge RR car was switched onto a narrow gauged track.H: Overturns the old rule that no person should be held to a higher standard than the industry standard (this would give a directed verdict). The new rule is that no one can be held liable if it is in conformity with custom so long as it is a reasonable custom. Allows the introduction of a reasonable custom. Mayhew v. Sullivan (overturns Titus)F: Plaintiff fell through an unguarded and unlighted hole that had been cut in a platformP: Claimed that it was negligentD: Claimed that they conformed to the custom in exercising average ordinary care.H: Evidence of Custom should not be permitted. Custom isn’t admissible where the conduct is obviously dangerous. Even if the entire industry does it, you can still be negligent. The hole wasn’t guarded nor lighted, which is unreasonably dangerous. The words custom or average do not belong in the definition of ordinary care. TJ HooperF: Not all tugs are equipped with radios. This tug did not have a working radio when the accident occurred. Most of the radios on tugs were provided by private people.P: Should have had a radio – negligent. D: Radios weren’t required, not everyone had one. Since not all tugs had radios, it was not a custom. There was no industry standard.H: Regardless of custom, D will be held liable if his actions fall beneath the standard of an ordinary prudent man. B (radios) < PxL (danger of an accident without communication). Custom is admissible for the jury to consider, when it is so obviously dangerous it will not be a defense, but its up to the jury to decide, better to get to the jury than not at all. Custom Used Against a Defendant [reverse standards] Plaintiff can use the internal safety standards of a defendant as evidence that they violated

their own standards. i.e that it violated the defendants standards of safety If you have standards as a company and people don’t follow them it increases the cost

If it’s a small company then no standards for anything, but you can get sued for not having standards

If too many people are getting hurt by the industry standard, you might toughen them to save money

If the employee personally didn’t conform to the standard, the suit won’t be successful for the defendant

Modern View: Custom can be introduced as evidence in a case when issues of burden and foreseeability are reasonably presented to the jury.

Assume Custom has been set: Can introduce custom as an element to show reasonable behavior. If D performs higher than the customary level, that adds evidence of D acting reasonable – there is a chance of Directed verdict. Hand’s opinion in Hooper is persuasive. Custom is only evidence and not conclusive. Where D performs at industry level, & Ct. Believes act is negligent they will find it

unreasonable. Where D performs below custom, shows unreasonableness even if the industry is performing at very high levels.

Custom in the Medical Field Medicine is specialized field and need specialized info to determine negligence. Std. becomes one of a reasonable doctor. Std. of care for professionals becomes std. of care for the profession.

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D’s have a higher degree of knowledge, skill or experience than the “reasonable person” – so D must use that higher level

Std. Of Care for a Doctor : Would a reasonable doctor do what this doctor did? (Did the Dr. act w/in the conformity of a reasonable Dr.?)

Custom in industry is standard of care The custom is the duty (standard of care) - to provide reasonable medical care

**Distinction of Std.: Reasonable doctor is what an actual doctor would do, not what a jury thinks a reasonable person w/ knowledge and experience of a doctor would do.

Only rational way to think of it is to compare to what other doctors would do To prove professional malpractice, the plaintiff must produce expert testimony to the standard of care except when the conduct didn’t required the specialized knowledge and training of the professional

Standard of profession needs to be determined by a doctor (expert) An expert in the field is a necessary ingredient in determining negligence. D's professional negligence can ONLY be shown through an expert. Need medical

knowledge to figure out B < PL

 Experts must prove 2 things to get past a DV:

1. There is a standard course of conduct in this situation, tell what it is. . .2. D departed from this standard and was negligent in doing so. Exception to standard of care :

Only when activity has dangers that need specialized training to evaluate *Exception to needing expert: If D's negligence is so blatant that a laymen can determine negligence, no expert is needed.

Ex. Leaving sponges in patient.  *Even if a certain practice is a standard of certain communities, this does not mean it isn't negligent. Specialists are judged by national standards and not the community standard.

Reasonable Doctor Standard – Rules of Law: Doctor is held to the standard of a reasonable doctor, not a reasonable person. There is no locality standard anymore. (Brune) Medical expert is needed to prove the standard of a doctor, standard is not set by the courts / legislation. Doctor performing a “non-specialized” activity (like removing sponges) are not held to a reasonable doctor standard, they are held to a reasonable person standard. Informed Consent

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 Reasonable person in the patient’s position wouldn’t have taken the treatment (NY & Canterbury [D.C])

Need to see if a reasonable patient in the patient’s position wouldn’t have taken the treatment if he knew the risks Need to show that the patient wouldn’t have taken the treatment. (other jurisdictions) Reasonable doctor standards to show what a reasonable doctor should have known Three standards for when a doctor doesn’t have to inform:

1. Common knowledge, 2. Emergency situation where patient is unconscious or incapable of consenting. 3. Patient can’t handle the information (heart condition or mental instability). Patient is emotionally unstable & can hurt his well being not to perform operation.

The physician’s duty to disclose requires that he or she explain all of the potential risks of a producer that a reasonably prudent patient would deem relevant in deciding whether or not to consent to the procedure.  (LACK OF INFORMED CONSENT CONSTITUTES MEDICAL MALPRACTICE).

  Colitheris HypoF: Patient felt very sick, in Springfield, Ohio. Went to the doctor who did a clinical check up. (No blood, no urine tests, no x-rays). Along with the history, immediately realized that he had the dread colitheris which is virtually 100% fatal if not treated in the first 48 hours. Patient has had it for 38 hours, symptoms are similar to that of the flu. There is a test, but it takes 24 hours. Dr. decides that has to give him the medication. The medication nearly kills him, leaves him brain damaged, serious physical injury.P: Sues because it turns out that he didn’t have colitheris. Doctor didn’t have to give me the medication therefore she’s liable. Not informed consent, sue the doctor on the ground that she was negligent because he didn’t have the disease. Sues for Medical Malpractice. Dr. violated the std. of care of a reasonable Dr. b/c he gave her unnecessary medication--Harder to prove.D: First, make a motion to dismiss for insufficient evidence, this time on a particular element, the violation on a standard of care. Lack of evidence that the doctor breached his duty (didn’t perform to the standard of care).H:Motion to dismiss – insufficiency of evidence. P Must prove what the relevant standards of care are. Need an expert to tell what the standard of treatment is, he doctor on trial must have the characteristics of a reasonable doctor.  R: Professional malpractice can only be proved by medical experts – to provce the standard of a doctor, standard is not set by the courts / legislation. If doctor gave treatment that conforms to the medical standard of a reasonable doctor then he wasn’t negligent (didn’t violate the standard of care), and could move for directed verdict because the patient did not present evidence to the standard.

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Lama v. BorrasF: Doctor didn’t order the standard bed rest prior to surgery. Patient had the surgery and had several complications after. Also didn’t give antibiotics right away.P: The defendant didn’t follow the standard of care and was a violation of duty and this omission caused the injury.D: Followed the standard of care, no violation of duty.R: Plaintiff must demonstrate the following to show med mal: 1. the basic norms of knowledge and medical care applicable to general practitioners or specialists 2. proof that the medical personnel failed to follow these basic norms in the treatment of the patient3. A causal relation between the act or omission of the physician and the injury suffered by the patient. Plaintiff need to prove what the standard was, and that it was violatedH:P wins showed the standard of care and that it was violated.Side Note: Interesting in the Lama case is that the most likely failure would be not giving the defendant an antibiotic before the operation (now everyone knows you give the antibiotic). Problem that 20 years ago that not giving the antibiotic an hour before an operation was sufficient causation. Standard has changed now and the antibiotic is part of the standard of care.

 Brune v. BelinkoffH: overruled the locality rule. General standard is one of the average qualified doctor taking into account advances in the profession. The doctor must exercise the degree of care and skill of a reasonably competent practitioner in his field under similar circumstances. Side Note: used to not be fair to hold to the same standard because small town doctors didn’t know what was going on in the big cities because of slow communication. So the standard was compared to a reasonable doctor in that area, and couldn’t bring in a bigwig doctor from Chicago/Boston to testify, because they didn’t know the standard of the area. Sheeley v. Memorial Hospital H: Change in what testimony is admissible.

Makes it easy for plaintiffs to get in front of the jury. It expanded the range of the doctors that could testify and ended the conspiracy of

silence. Allows doctors from different areas, and the doctors don’t necessarily have to be experts

in the area of the case. Appendectomy Hypo (sponge left in patient):F: Patient needs appendectomy and when he’s closed up they leave a sponge in himP: Doctor was negligent in leaving the sponge in, doesn’t take special skills to count sponges.D: wants to bring in an expert to say that this is the standard and that doctors do this from time to time.H: A doctor shouldn’t be judged by a medical standard when he’s doing something that doesn’t require specialized care/knowledge. Counting sponges doesn’t take an advanced degree. This type of activity is judged by the reasonable person standard even though it’s part of medical hospital treatment because it’s a decision that isn’t part of specialized training.P wins, no expert testimony because counting sponges isn’t part of specialized medical practice.

Side Note: Same thing holds if a doctor is driving 95mph to get to the hospital, the court won’t let the jury - judge if they are a doctor or not, they are judged to the standards of a reasonable person driving in the highway.

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 Helling v. CareyF: Doctor doesn’t give routine eye pressure test.P: Doctor was negligent in not giving the testD: the standard of the profession doesn’t require this test, followed customH: The burden of doing the test was less then the probability of injury times the severity. The test is easy and the cost of not doing it is high. CT: B (simple test) < PL (saving injury). Tests are easy and risk is high. D is negligent. P wins, the burden of doing the test was too small to not do it.Helling has been rejected by pretty much every state. Legislature / Courts cannot set the standard of care for the medical profession, it must be set by the doctors. Legislature overruled Helling: test price may be small, but adds up if done everywhere.  Colitheris Hypo2 – lack of consentF: Same facts, except there was no consent. The doctor didn’t violate the standard of care because the standard is that if the clinical diagnosis is colitheris, even if you may not have it, you treat the disease if there’s no time to do a blood test. 95% chance of death untreated, 1/10 who take the medication have serious side effects, 1/100 have permanent serious side effects (99% who have side effects, they disappear), the ones that go away aren’t that good (they can take from a few weeks to a couple years to go away).P: Says that he was not informed of the risks/side effects of taking the drugs. Sues for informed consent. The Dr. must inform patient of risks of proposed treatment. P must show that he or the reasonable patient would have declined treatment if full disclosure was made. H: Depending on the jurisdiction. Some jurisdictions say that you can only get to the jury if you can show that a reasonable person in the same situation wouldn’t have taken the medication.

Other jurisdictions allow the plaintiff to get to the jury if he says he wouldn’t have taken it (this isn’t the best policy because you depend on the credibility of the plaintiff). Also need to know what the doctor would have told the patient if he had given him information about the risks.In NY and Canterbury (D.C.) the reasonable person in the patient’s position holds.Duty is to act reasonably to protect the patient’s right to decide

**If we have a malpractice suit, why do we need a suit on informed consent? Because you might lose the malpractice suit because the doctor was not necessarily negligent BUT there was still a bad outcome.

Canterbury v. SpenceF-Dr. performed operation that hurt P’s spine. He didn’t disclose risk before operation. P-Dr. did not reveal the risk of paralysis, makes out a Prima Facia case of violation of the physician’s duty to disclose. H: Dr.’s informed consent doesn’t have to be full disclosure, but enough to match patients need to make a informed decision about the risks/benefits of having the operation. Rule of Law:  The physician’s duty to disclose requires that he or she explain all of the potential risks of a producer that a reasonably prudent patient would deem relevant in deciding whether or not to consent to the procedure.  (LACK OF INFORMED CONSENT CONSTITUTES MEDICAL MALPRACTICE).

Colitheris Hypo3

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F: Clotheris is an old disease, a doctor has been doing research . The findings have just been published that say there are 7 clinical factors. But there are two factors that are most critical; Degree of discoloration in the iris. No one knew it was the degree of discoloration, just that it was discoloration. Treating doctor hasn’t read the study yet. H: Does the doctor have the duty to tell the patient about risks that she didn’t know. Now the doctor is judged by what a reasonable doctor should have known in his position. If the doctor should have read the study, then the situation would be different. Reasonable Patient/Doctor Standard

There is a reasonable patient standard to see if the information if provided would have caused a different decision

Second is a reasonable doctor standard, to see if the information that the doctor didn’t know, if he should have known

 Reasonable Doctor standard for Disclosing Information:

1. Reasonable doctor determines whether the actual doctor’s decision not to tell the patient (because its common knowledge) was okay

2. Reasonable doctor only has to provide information that they think a reasonable patient would not know

a. Competing interests, between the doctor who doesn’t think that they need to tell anyone anything and the patient that thinks that they should know everything

b. Balance between these two people by creating reasonable entitiesc. Don’t have to tell patients their choices (which vein to use) if they all have the same

risk3. One more reasonable doctor knowing the condition of the patient, “can’t handle” the

information, if the reasonable doctor would have told the patienta. Heart condition so sensitive that any anxiety will lead them to a heart attackb. There’s the people that don’t want to know anything, Studies prove that these

people who go to the hospital and don’t want to know their risks, fair much better4. Emergency situation where patient is unconscious or incapable of consenting.

  Negligence – Statutes and Regulations Reasonable Person does NOT violate the law.

Would a reasonable person violate the law? In certain (special) circumstances you might violate law and be reasonable but violating a safety statute is never reasonable.

 Completely different circumstance than violating law :  A reasonable person can violate a statute if it is not a safety statute - when it has nothing to do with injury - it can’t be used in cases dealing with risks in injury  A criminal statute is good evidence of what the people/legislature in society think ought to be rules governing their behavior. A violation of a statute may be negligence per se. It’s a Strict Liability standard. Once you violate it, it’s Neg. PS. D cannot claim to the jury that their action was reasonable.  Reasonable person would never violate safety statute so if facts show that D violated safety statute then reasonable juror could never find that D did not act reasonably

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Negligence per se: most courts apply the “negligence per se” doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by D is “negligence per se” and thus conclusively establishes that D was negligent.  Rule of law called negligence per se permits P to get a partial directed verdict.  

2 major exceptions to using Negligence per se to get a partial directed verdict - Violation of statute is not a safety statute No emergency/special circumstances

 Steps to use a statute in negligence per se:  Violation of a valid statute The statute is a safety statute Statue must apply to the facts

o P is in the protected class of people that legislature had intended to protecto Whether P is injured in a manner that legislature had intended & foreseen (to

protect against a particular kind of harm) No excuse for violating (would need heavy burden for D to prove being that this is a strict

liability offense). Then one needs to show a causal link between the statute and the harm inflicted.

Negligence – Statutes and Regulations – Rules of Law:

 Negligence per se you need 1. Violation of a valid statute; 2. Statute is a safety statute; 3. person is in the class legislature intended to protect; 4. injured in a manner the legislature foresaw and 5. No excuse for the violation.

A person found to have violated a statute that establishes a duty of care will be found to have acted negligently, without other proof. (NEGLIGENCE PER SE)

Violation of a safety statute (speed limits).  Needs to be the injury that the statute intended to protect against (Gorris v. Scott).

Without specific evidence of legislative intent to provide a private cause of action for violation of a statute, courts cannot infer one.  (THE LEGISLATURE, NOT THE COURTS, MUST PROVIDE FOR A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).

 Violation of the statute needs to be the cause of the injury (Martin – headlights in front) 

Proof of negligence, even in the form of a violation of a statute, without a relationship between the negligence and the injury, does not support liability.  (CAUSATION MUST BE ESTABLISHED IN NEGLIGENCE PER SE CASES)

Don’t need to hold to a safety statute if it puts you in harms way. (Telda – wrong side of road) Most cases a criminal actor is an independent intervening cause, but if the action that you take makes it easier to be stolen, then the thief could be a dependent intervening cause. Two arguments for a statute:

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1. Defendant says not a safety statue, if not a safety statute its not negligence per se. 2. Plaintiff argues that it’s a safety statute and that it has a right of action.  Driving without a license is prima facie in NY, sufficient to get to jury, not negligence per se.  Under the automobile guest statute – a minority of states still have this statute – generally provide that an owner/driver is not liable for any injuries received by his non-paying passenger, unless the driver was grossly negligent and reckless.  Dram Shop and Social Host Laws Dram shop liability varies by state; some states impose it on everyone who served a drink, even the first bar. Some states only impose on bars who serve drunk people. NY does not have a social host duty. NJ imposes a duty to a social host.

 Race Car Driver HypoF: Have a Defendant who’s a racecar driver, has a blow out and gets into an accident, he’s driving 95 in the 55mph.P: Says that it was a violation of a safety statute – negligence per se D: says that he was operating at a reasonable speed (can stop quicker at 95 than most people at 55).H: A jury could find that he was driving reasonably, so we don’t let it get to the jury, its negligence per se. Take the issue of violation of standard of care (breach of duty) away from the jury so that the jurors won’t decide things that are illogical.P wins, violation of the statute is negligence per se for this speeding case because a jury could (erroneously) find that he was driving reasonably.Charge jury that they aren’t supposed to decide the issue of standard of care, if they find he was speeding then they HAVE to find that he violated the standard of care. It is the equivalent of getting a directed verdict on the breach of duty. Jury just decides if the speeding was the cause of the injury. Can charge the jury with two things, either saying if they find that they violated the statute then you have to find causation/injury or you can tell them that the statute was violated and that’s negligent and now they have to find causation/injurySide Note: had this been in the early 1940s, this could have been a different case because the speed limit wasn’t a safety statute, it was there to reduce the consumption of gas. Gorris v. Scott (1874) Safety statute to stop disease spreading in sheep population in England - bc it is a contagious disease so sheep arriving don't infect healthy sheep Did D violate safety statute?  F: Plaintiff had shipped a number of sheep with the defendant ship-owner who failed to pen them in accordance with the requirement of the Contagious Disease (Animals) Act of 1869. Animals were washed overboard in a storm. P: Negligence per se, he violated the safety statute and breaking the statue was the CIF of sheep falling overboard. If D would have followed statute sheep would be fine. D: The statute wasn’t to protect the sheep from washing overboard it was to protect from disease. Legislature intended statute to reduce disease and it has nothing to do with sheep and storms.

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H: If the injury that occurs is not the injury that the statute intends to protect against, the plaintiff cannot recover on a negligence per se basis on a violation of the statute. D wins because the injury that occurred wasn’t the injury the statute intended to protect against did not happen. Even though there was damage and bc of violation of statute it was the cause of injury to sheep BUT  Side Note: Issue of PC -*Kessler: P wants to use this statute as an excuse. By P proving D violated statute they can get to the jury. Can’t get to the jury without the statute because there is no proof of a violation of a standard. There’s nothing inherently dangerous about having sheep on ships without being in pens. Not negligent in regard to obligation to keep the ship safe. By arguing that they violated statute then P does not have to prove negligence i.e. that D acted unreasonably. BUT P can’t prove D acted unreasonably b/c ships have been doing this for centuries (custom). So P can’t prove conduct was Neg. w/out Statute. = Free rider problem – P trying to get undeserved benefit bc the D happened to violate statute (b/c when legislature created stattue they were ONLY concerned about spread of disease and no sheep ship safety)

Ship owner creating two kinds of risk simultaneously Risk of disease Risk of sheep going over board ONLY ONE RISK VIOLATES statute -If that risk occurs then negligence per se If that risk does not occur then not violating statute

o If that risk does not occur then P is trying to be a free rider and jump on that that statute   Hobson Choice: This situation = Hobson choice CHOOSE between a broke down horse or walking Meant that you did not have any CHOICE Now it morphed a little and tends to be a choice between 2 BAD things. That’s what you have here.  R: D does not deserve our affection bc he still violated a statute. P does not deserve our affection bc he is trying to jump on bandwagon of statute for damages unrelated…No body deserves to win but system has to choose. SYSTEM has to go for system cost - less cost -D wins  Issues with Gorris v. Scott: Defendant still did something wrong. But if every statute is the basis for negligence per se, people will be held obligated to do

things to protect interests that don’t need protecting. If those interests get injured because they didn’t do anything different, they will be

held negligent This will result in a Windfall profit

 Dual policy problem1. Shouldn’t collect because didn’t do anything wrong (captain did everything he could to prevent them from getting swept overboard)2. But he violated a statute and shouldn’t get away with it Courts decided that stretching liability is more unfair than letting the statute violator get away with it. Without specific evidence of legislative intent to provide a private cause of action for violation of a statute, courts cannot infer one.  (THE LEGISLATURE,

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NOT THE COURTS, MUST PROVIDE FOR A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).

Drunk watchmen Hypo dealing with statute says that a barge has to have someone on board to watch over it - D hired a drunk he fell asleep and nobody was watching - nothing happened to other boats but it did cause a flood - which did not damage most people's houses bc they had flood protectors but one did not who was 1/4 mile away…Is D negligent? Person that is injured has to be within the people that the statute was meant to protect

 Wawanesa Mutual Insurance Co. v. MatlockF: D sold cigarettes to minors in violation of the statute. The minors lit the cigarettes in the P’s storage facility and it set fire to telephone poles causing $100k in damage P: Violation of the statute, negligence per se.D: The harm of fire wasn’t the type of harm intended to protect against.H: Applied statutory purpose. The statute was to protect minors from the harms of smoking, as the statute stands today it is a health safety statute not a fire safety statute.D wins because the statute protects against early smoking, not fire. Martin v. HerzogF: Plaintiff killed in a collision with a buggy, the buggy doesn’t have lights on the front of the buggy per the statute.P: Negligence per se, violation of the statute. (Contrib. per se)D: Even if the statute was violated, the violation was not the cause of the injury because the buggy was hit from behind and the lights are required in the front, so it wouldn’t have made a difference.H: The violation was not the cause of the injury, this is a jury question. (Grimstad with a statutory violation). P’s violation of the statute – omission to perform a statutory duty could be negligence per se BUT Neg PS does not make the D liable unless: P shows a causal link between the negligence per se violation and resulting accident and the injury. Ex. If D is speeding, Neg PS, but speeding wasn’t the cause of the injury. He will be liable, but not Neg. PS. Statute must apply to the facts of the case.

Rule of Law You can violate a statute if it puts you in harms way Telda v. EllmanF: P walking on the wrong side of the road with her deaf brother. Statute says that you have to walk on the other side of the road.P: That they weren’t negligent, they had to walk on that side of the road.D: Negligence per se, they were walking on the wrong side of the wrong in violation.H: Court found that it was a safety statute and it would be absurd to hold them to the safety statute even if it would mean that they would put themselves at a greater risk of harm. Some excuses for violating the safety statute; Not liable because you have a reason that the law recognizes as valid; Excuse and Justification (self-defense) are defenses; Having a good reason for violating isn’t enough  Brown v. Shyne--Licensing Statutes F-P employed D to give chiropractic treatment although D had no license to practice, in violation of public health law. P became paralyzed after receiving the treatment from the "doctor".R-P must prove D failed to exercise the care and skill that would have been exercised by a licensed practitioner. This may not be inferred from the fact that D was not licensed. Assume

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that D acted as a reasonable Dr. D had to meet that std. even though he didn't have a license, so he met the duty. H: Violation of a licensing statute is not negligence per se. Cannot infer negligence from the violation of the statute.Today: Brown was modified. No license is now admissible for Prima Facie, not Neg PS*Prima Facia: Creates a rebuttable presumption. Legally sufficient to get to jury. Enough to prevent a DV.*Admissible: Judge still looks at all the evidence, so DV is still possible.  Law in NY now:

Violating licensing statutes in New York is prima facie negligence Prima facie negligence gets to the jury

Sufficient evidence to get to the jury Enough to overcome a directed verdict motion

Summers v. Tice This is similar to Summers v. Tice Switches the pragmatic evidence of proof to Brian (the defendant)

Originally thought to be negligence per se (which means that there’s no evidence for the jury, takes away from the jury, partial directed verdict on whether the issue of negligence reaches the jury. The jury will still have to decide cause and injury) and now it’s a prima facie (means that it gets to the jury)

  

Driving without a License HypoF: D is driving and doesn’t have a license. Driving at a reasonable and prudent speed, has a blow out in a brand new tire. Car swerves and hits P, P has serious physical injuries and sues.P: You don’t have a license and licenses are regular safety standards there you are negligent per se. driving without a license is CIF of the injury b/c if following the law, you wouldn’t have been driving at all.D: Even if I had the license the accident would have happened anyways. Lack of a license isn’t basis for Neg PS. (Not even admissible under Brown)H: Depends on the jurisdiction, some say that violation of a licensing statute is not negligence per se (NY), some say that it is negligence per se, but the jury will still have to decide cause and injury. Licensing regulations are useful but not dispositive**Licensing statutes don’t mean you are driving negligently - can't infer negligence from the violation of the statute. – prima facia (it creates a likelihood of negligence so the jury should be aware of it ) – lack of license is enough for it to get to a jury  Need to show causal connection between the negligence per se and the accident and the injury

1. For negligence per se to apply : Yes I was speeding - or yes I did not have license but this did not cause accident - or cause injury…

Social Guest / Party Hypo:F: D has a party, only alcohol, no drugs. Buys a bunch of alcohol and leaves it on the table. People drove to and from the party. Guest drives after she is obviously intoxicated, she hits innocent bystander (P) who is severely injured. The drunk driver doesn’t have a lot of money and the insurance won’t cover much, so P sues the host of the party, D.P: Says social hostH: Depends on whether the jurisdiction has a social host law.   

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Coulter v. Superior Court H: There is liability on the social host Klein v. RaysingerH: There was no common liability on the part of a social host who served alcoholic beverages to adults who later injured persons on the highway Law in NY

No Social Host Don’t know whether NY state applies the duty of protecting those on the road from drunks

to social hosts or limits it to professional sellers As of about 3 years ago didn’t apply to social hosts or open bars

 Law in NJ

There is liability on the Social Host Law in Some States with Social Host

Some states the duty extends not only to the person who buys, but also to the person who consumes it

In some jurisdictions this extends to Social Hosts  No Social Host Justification

Independent intervening cause “Not my brother’s keeper” Not responsible for the actions of someone else

Difficult when its not a bar because aren’t making money and can’t watch everyone Social Host Justification

Social problem, aware that people are drunk and the bar is making money off of it and people are getting intoxicated and in accidents

Dram Shop Laws: Look at it in retrospect. Bar owner may not be able to tell if he is visibly drunk, if he will be driving, if they will get alcohol from another bar— but still liable. So Bar’s get insurance. Employer: If u have open bar, not liable in NY, yes in NJ. Less control over someone w/ open bar.Homeowner: Person comes to house and gets drunk. Not liable in NY, yes in NJ.

Notes on Social Host Bartender can cut you off, but can’t stop you from driving Lots of people with .08, .10 don’t look drunk at all Issue of equity toward bar / bartenders is solved by the fact they all have insurance

Vesely v. Sager: D owned tavern. Sold alcohol to co-D. He left bar, was in a car accident w/ P. Dram Shop Laws Statute: Anyone who sells alcohol to an obviously intoxicated person is guilty. P- D has a duty of care to P or class of persons if which he is a member. Also, Neg PSD-Bar owner didn't do anything to P. No duty. Didn't drive car, wasn't drinking. The driver was an independent (not under control of bar when in the car), intervening (act came after bar) Act.R-P is within class that statute is trying to protect, injuries were ones the statute tried to prevent. D violated statute which is the proximate cause to P's injuries, so D was neg. in serving alcohol

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to P. Not to mention the driver is liable also since intoxication is not an excuse and he is held to the reasonable sober person standard. The driver should have arranged for someone else to drive when he was sober (antecedent crap again). Social Host Hypo 1F: Bartender is behind the bar working. Patron has a drink, leaves and gets into an accident. She blows a .18, obvious that she was drinking before she got to the bar. P: Argues that the bartender shouldn’t have given her more, social host drinkD: Argues that he acted reasonably, that he didn’t know how drunk she was. Not everyone looks drunk when they drink. H: Jury finds that Ed wasn’t careful enough (if he didn’t see she was drunk, he didn’t do his duty)

Superfreak drunk hypo Went to a bar and had 2 drinks in 1 hour. Then went to a house party and had more. Then a final nightcap at Rocco’s bar. Then in an accident. Ct: In NY, can’t sue the homeowner and bar owner will blame the house party. Rocco’s bar will claim he was not obviously drunk when serving him, a defense under the statute.  Key in the Car Hypo:F: Defendant leaves the keys in the car. Plaintiff gets hit by a car thief that has no money. So the plaintiff sues the car owner.P: Plaintiff says negligence per se, left the keys in the car. Says that the leaving of the keys is a causal link. D: Says that there’s insufficient evidence of a violation of the standard of care. Says that its not foreseeable that the car would be stolen. And who says that the thief drives any worse than a 17 year old male driver.H: There is insufficient evidence of a violation of a standard of care and it wasn’t foreseeable that a thief would steal the car and that the thief would drive any worse.A reasonable person may not foresee the car being stolen. Usually the criminal actor is an independent intervening cause. Key in the Car Hypo 2F: Keys left in the car, parked in front of a candy store, at 3pm across the street from a high school. Thief is 16 and doesn’t have a license.P: Says that it was foreseeable and that the burden of doing something differently (taking the keys out) would be less than the risk of injury. D: Says that its not foreseeable.H: A reasonable person in the position of the defendant would know that the burden of doing something differently (taking the keys out of the car) would be less than the risk of injury. A reasonable person would have known that it was foreseeable that the car would be stolen by someone too young to drive.If it is foreseeable that the car could be stolen and you make it easier, then the thief is a dependant intervening cause. Most cases a criminal actor is an independent intervening cause

Key in the Car statute Not a safety statue

Its purpose could be to remind people not to leave their keys in the car and this would deter theft and bring insurance rates down.

If its not a safety statute, no negligence per se Is a safety statute

Need to look to see if its supposed to be enforced by a private right of action

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Is the manner in which the person was injured, the kind of injury in which the statute was designed to protect against

NY is the only state in the country where the car owner is responsible for the negligent driver of the car where it is leased

Rule of Law: Without specific evidence of legislative intent to provide a private cause of action for violation of a statute, courts cannot infer one.  (THE LEGISLATURE, NOT THE COURTS, MUST PROVIDE FOR A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).

Uhr v. East Greenbush Central School DistrictF: The plaintiffs are suing the school district missing a diagnosis of scoliosis during a school test. The issue is whether or not a statute creates a private right of action. And it depends on whether it is a safety statute or not. P: Says that the test is a safety statute.D: Says that its not a safety statute. H: the private right of action is inconsistent with the statute’s legislative scheme and therefore cannot be fairly applied.If a statute is a safety statute, it creates a private right of action. (Relation between how much you are required to do and what the penalty is if you fail).   Negligence – Judge and Jury  Our legal system divides the responsibility for deciding questions of fact between judge and jury 1. A divided system necessarily precludes the possibility that either judge or jury takes complete

control over the individual case unless both parties to the dispute waive a jury triali. The division of the responsibility is not arbitrary

2. Total delegation of responsibility has been rejected for two reasons. i. First: Judges fear that the jury might abuse its unlimited power by deciding cases

contrary to established principles of law ii. Second: Judges believe that unlimited jury discretion repudiates or at least

undermines the central principle of distributive justice - that like cases should be treated alike, no matter what substantive principles apply

 Judicial Control:

Defined: What is the proper balance between judge and jury in deciding cases.

Judge: Judges decides law – and whether a reasonable people can differ as to what the facts of the case are – if they could not then he dismisses the case or grants a DV when facts are so 1 sided that "no reasonable men could differ". Judge must decide if any facts have been established from which Negligence may be inferred.--> If yes, goes to jury.

Jury: Determine facts about which reasonable men can differ. They decide if 1.What really happened (credibility of witness) and 2. Did D breach his duty of care in a way that caused P's injury?

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Whether someone acted carefully or not -Should be determined by community (jury)Judges should take cases away from jury as little as possible. Community standard. What do we expect the person to do or how we expect them to act in that situation.

 Judge and Jury – Rules of Law:

 Judges should only make rules when they have a lot of experience. Restatement §8 says that it’s dicey for judges to make rules. Creating standards protects against potentially unreasonable jury verdicts. Role of jury is to look at the facts and decide if the defendant violated the standard.

Baltimore and Ohio R.R. v. Goodman:F: Plaintiff gets hit by a train while crossing the railroad tracks.H: Court created a special duty that people who cross RR have to protect themselves i.e. duty to stop, look and listen (SLL). Courts created a fact specific rule (FSR) for this case. Courts were concerned with allowing a P that was negligent recover for negligence. The plaintiff didn’t stop look and listen so he’s contributory negligence. Courts played role of legislature. Note: In B. & O. Railroad the standard is a judge specific standard of conductWhen crossing a train tracks you have to “stop look and listen”

Benefit of Fact specific rule: Provides consistency in making sure certain types of cases are decided in certain ways. Easier for directed verdict for the D. Right rule for the act. Ex. Usually for DV— Can RP differ, on preponderance of the evidence, that D was negligent? With ct’s FSR —Did the P SLL before crossing the RR tracks and Can RP differ if person SLL?  Rear Ending HypoF: P is driving his car, he stops suddenly. After he stops D smashes into him. P sues D. P: Doesn’t want the case to get to the jury, wants the judge to say that if you hit someone in the rear that it’s your fault you are negligent (specific standard of care) D: Says that its not negligence per se and it’s a question for the jury if you are on a highway and keeping up with traffic, it is the reasonable thing to do (65 in a 55)P: (Doesn’t want a jury b/c it will most likely sympathize with ∆ because everyone drives over the speed limit) use B&O (stop, look & listen)- should have a specialized standard of care You should not hit another car in the rear – there is no issue of fact here except if it caused injury…should we keep the jury involved?H: Judges can take the case from the jury if they find that the defendant violated a specific standard of conduct. This is done because juries can be inconsistent and irrational. Irrational jury decisions can be avoided by creating a standard. A standard that conforms with our general experience

i.e. if you hit someone in the rear, you are liable and the defendant should be found negligent

standard is keep far enough back (NOT to keep a reasonable distance)Judge will decide whether the Defendant is negligent.

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P will win if no reasonable jury could disagree that the defendant was negligent. [This is like Grimstad, but Grimstad dismissed the case for insufficient evidence. Grimstad could be looked at the other way around, that there was so much evidence that it had to be dismissed]If the standard is to keep a reasonable distance then this would be a question for the jury. If the duty is to keep far enough behind so that you can stop then this would make it easy for the judge to find negligence and a violation of duty and take it from the jury.

Pokora v. Wabash Ry.F: Similar to B&O and the plaintiff did SLL. R-P can’t see everything. Jury should decide if conduct was suitable for the situation where the ordinary safeguards (SL&L) failed him. Ct has no problem doing this b/c SLL is a judge made law.H: Overruled B&O. Said that the rule was stupid and it caused more harm than good. In 1927, you didn’t have all that vast amount of experience of cars crossing railroad tracks and when you don’t have a lot of experience don’t always make the best rule. By the time you would look and listen the train would be coming. When courts don’t have a lot of experience they shouldn’t make rules. Overrules the Stop, Look and Listen Rule. B&O and Pokora – change in the standard of care

Toschi v. Christian "stop look and listen" rule (Baltimore & RR v. Goodman) - urged by Ds will not be applied to factual bases where its application would be unreasonable  Pakora is followed in the Third Restatement: which rejects the idea that uniform rules can decide concrete cases:

o What looks at first to be a constant or recurring issue of conduct is which many parties engage may reveal on closer inspection many variables that can best be considered on a case by case basis (RTT:LPH 8, comment c)

Jewell v. CSX Transportation, Inc.F: Jewell killed and his wife and daughter injured when struck by a train. Crossing was maintained with no lights, bells or mechanical gates.P: says that CSX was negligent in failing to sound a warningD: says that it wasn’t ultra-hazardousH: Court said that since the crossing had no physical obstruction that prevented sight or sound, it was not extra-hazardous. Whether the whistle should have been blown was a question for the jury. Trial court gave a directed verdict about the lack of evidence for an extra-hazardous crossing and the jury verdict for CSX were affirmed.Only ultra-hazardous activities railroad crossings need to have lights, whistles, etc.  

o Can create stupid rules, but you can also create good rules, if they are applied correctly

Courts are hesitant to apply them The Restatement §8: Says that it is dicey for the courts to make rules and should only be done on a case by case basis and the court should be cautious when they use them. 

o Can think of situations in the rear ending case that the defendant shouldn’t be responsible

For instance if the breaks fail 

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Dirt Road Wrong Side of the Road HypoF: Dirt road, two lane road. Tire tracks with grass in the middle. Head on collision. P: “wrong side of the road, negligent driving”H: Plaintiff wins, defendant was negligent. Dirt Road Wrong Side of the Road Hypo 2F: Same dirt road, same accident. Now the passenger is suing the defendant driver. The road was really worn on the wrong side, so worn that grass didn’t grow where the tracks were. Many people drove down the same path and few could have driven elsewhere because of the grass.P: Says negligent driving, wrong side of the road.D: says guest statute.Note: Guest statute prevents fraud between a driver and a buddy where the buddy would sue and get the money from the insurance company. Might have been negligent, but couldn’t be held to be so aware of the risk that he was recklessly disregarding the substantial chance of injuring peopleIn jurisdictions that have the guest statute the driver is only responsible for recklessly caused injury to a passenger that is not a copartner in the trip. In this case it wasn’t reckless because though he knew he was on the wrong side the road was so worn that he had no reason to know it’s dangerous (might have been negligent).

 Guest Statutes in Automobiles: Only in a FEW states: If a non-paying passenger in a car is injured and sues the driver, the driver is not liable UNLESS he is Grossly negligent, reckless, willful, or wanton. Most: Guest is owed a duty of ordinary care.o Standard of care when plaintiff is in another car (not a guest or in a jurisdiction without a

guest statute) is negligenceo Standard of care when the passenger sues the driver is recklessness 5 typical standards of care Negligence, gross negligence, recklessness, willful and wanton, intentional conduct Reckless suggests a different culpable mental state Greater awareness of the risk

Jury Determination in FELA cases:i. Juries are given broad discretion in suits for industrial accidents brought under the Federal

Employers' Liability Act (FELA) 1. FELA makes every interstate railroad liable in damages for injuries to its employees

cause by the negligence of the RR though any of its officers, agents, or employees "a. "or by reason of any defect or insufficiency" in any of it premises or equipment.

Wilkerson v. McCarthy P slipped on board into pit while working. FELA doesn’t allow Contrib. Neg.I-Without Contrib., was the RR negligent or did they put up enough signs?R-Question goes to the jury. Many arguments on each side about if the signs were enough. Since there is evidence D may be negligent, no DV allowed, reasonable people could differ since RR knew people didn’t pay attention to the signs and walked there anyway. D was aware of unsafe area. Contrib not a defense – FELA – eliminated assumption of risk in all its forms and provided that contrib. neg should not bar an employee’s action…

Negligence - Res Ipsa

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The doctrine of res ipsa loquitur – allows P to point to the fact of the accident, and to creat an inference that, even without a precise showing of how D behaved, D was probably negligent.

1. Defined: "The thing speaks for itself". 2. Is frequently invoked when the plaintiff seeks to establish the defendant’s negligence by

circumstantial evidence.3. Sometimes the mere fact that the accident having occurred is evidence of negligence.4. The function of res ipsa loquitor is to aid the plaintiff in proving the elements of a negligence

case by circumstantial evidence.5. Usually res ipsa allows the plaintiff’s case to reach the jury. In some (very rare) instances,

however, the evidence is strong enough to support a directed verdict (Newing v. Cheatham—the court ruled the circumstantial evidence in the case was sufficient to take the case from the jury and to direct a verdict for the plaintiff).

6. Non-delegable duty—applies when the conduct is sufficiently dangerous so that it’s different from normal activity.

7. Multiple Defendants—(Res Ipsa + Summers v. Tice) the D’s unconscious and the doctors and nurses are responsible for making him unconscious.

 *Kessler, only need to prove 2 & 3. Three requirements to prove: (to get to jury) – no direct evidence of D’s conduct – how D behaved in connection with the event

1. Event does not ordinarily occur without negligence 2. Not do to any action on the part of the P - other responsible causes, injury could not have

occurred without negligence of D3. Thing that caused the injury must be caused by an agency or instrumentality within the

exclusive control of the defendant (Indicated negligence was within the scope of the defendant’s duty)

Exclusive custody and control of item

By proving A (specifics of what happened ) you are proving B (proving that D must have done something that caused injury and what he did must have been negligent) This doctrine helps P get to jury

Change of prior rule of law enabling Ps to get to jury You can find him liable without figuring out what he did.

 D’s possible defense:

I showed due care: although just being careful will still get the case to a jury (BUT they won’t be able to give D a directed verdict against him if he proves he was careful)

Offer alternative explanation besides Ds negligence. Show that injuries happen without anyone’s negligence. Show D had no control over the situation or someone else did. **If D can disprove one of the requirements of the doctrine – aka “wasn’t within my control

at all relevant times” then D will get DV (assuming there is not a prima facie case apart from res ipsa)

Overview of Res Ipsa

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Gets you to the jury, In a few jurisdictions gets a directed verdict. Allows you to Prove A (which is that the defendant did something wrong) By proving B (if B

exists then you can infer A) Not an alternative proof like in Summers v. Tice Can’t ever prove which one did it, so switched the burden of proof to the defendants if the

plaintiff met the burden of production

Allows you to avoid proving exactly what the defendant did wrong, but is enough to prove that he must have done something wrong (negligent)

That the burden of doing something different would have been less than the probability of injury!

Has a name for two reasons, 1. because we are going to let P get to the jury without proving exactly what D did

wrong (could have done a number of things wrong) 2. decided that this frequently arises (this kind of fact set) that we don’t want to

take the risk of idiots (like judges) that this type of case falls within a certain type of circumstantial evidence

Don’t have to prove which one D should have done differently, if we prove the elements of res ipsa

Res Ipsa – Rules of Law To use res ipsa: 1. Event does not ordinarily occur without negligence. 2. other responsible causes, including the conduct of the plaintiff and third person are sufficiently eliminated 3. Thing that caused the injury was in the exclusive control of the defendant (Indicated negligence was within the scope of the defendant’s duty) Res ipsa gets you to the jury not a directed verdict, plaintiff can now win on inference because the jury is allowed to infer negligence.  No duty to inspect when you have reasonable expectation that it will be safe. (chair and coke bottle)

**Res ipsa doesn’t apply when you have no notice that it could happen, then you have no duty. The injury must be foreseeable for res ipsa to apply (Larson & Connelly – the two chair thrown out window cases)

**Res ipsa applies when you have notice of an event that could get out of control because you can do something about it, have a duty to prevent it.  

4 Corner Truck Accident HypoF: 4 corner intersection. P is standing on corner. D is driving the truck. For some reason, truck is starting to make a left turn and hits P. P suffers broken ribs and concussion. Investigation after

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shows that the front hub cracks, breaks, and comes off. This is why as a result of that the truck goes through the intersection and hits a pedestrian. Q. How is X going to prove Y’s negligence? – where is she going to find the facts, who is going to testify to the facts, etc... Parties involved: Driver, Truck company, Manufacturer. P: Sue the owner of the truck for failing to maintain his vehicle. Say that it was negligent maintenance of the vehicle.D: Will say Truck was properly maintained fine. I have proof. I drive great. (Will need an expert to say that there was nothing wrong with the truck from the beginning).Note: Would start off suing the driver and then would sue the manufacturer. FYI: B/c P will sue driver and truck company first that truck wasn’t maintained properly by finding out infor about rim maintenance and possibly introducing an expert – but this cost money so P will want to get to the jury on RIL – he will convince judge by possibly easing proof by switching the duty – to sue on negligence per se b/c there must be a statute not allowing a driver to drive on the sidewalk – but P will claim he wasn’t driving on sidewalk not fair (also did driver have “exclusive control”? Not sure - so not a good argument to get to jury. P will sue manufacturer – b/c they are always open targets H: Res ipsa, this wouldn’t have happened without negligence, would need to prove that D didn’t do anything or wasn’t caused by third party and exclusive control. All we know is that the core of what happened is not something that is supposed to happen and generally does not happen if someone is careful. This alters the burden of proof. Bryne v. BoadleF: P was walking along street passing D’s shop when a barrel falls out of a window and hits the plaintiff injuring her, plaintiff doesn’t know how it fell.P: Doesn’t know how it hit her but says D is vicariously liable for employees and alleges res ipsa.D: Not responsible and didn’t do anything negligent. Could have been someone else – no proof it was one of my employees. H: P wins on RIL – it is circumstantial proof of negligence – but circumstances lead to the inference. Court ruled that the barrel was in the custody of the defendant, they were responsible for it and where the P cannot prove anything, it is up to the D to prove that they weren’t negligent.

Res ipsa gets it to the jury, 1. the barrel could have been pushed, dropped on purpose, stacked improperly, etc. (had to be the negligence of the D, couldn’t have happened without negligence), 2. It was in the exclusive control of D and 3. The Plaintiff didn’t contribute, didn’t do anything to make the barrel fall.

Res ipsa gets to the jury. The barrel wouldn’t have fallen without negligence, it was in the exclusive control of the defendant and the plaintiff didn’t contribute.  Honea v. Coca ColaF: Guy works delivering bottles of soda. Has a wooden carton to carry it, he takes two bottles twists them and uses as levers to pick up the carton. One of the bottles explodes and causes lots of injuries. There’s two ways it could have exploded: 1. carrying it wrong or 2. faulty glass or bottles could have been made wrong. P: Says it was in the exclusive control of Coke – RIL. D: Doesn’t have exclusive control and custody.H: It was in the exclusive control of Coke, the guy that is working isn’t supposed to inspect it for defects. The mechanism for inspection is in the exclusive control of the defendant, the inside of the bottle was in the exclusive control of Coke. Res ipsa to get to the jury because the plaintiff isn’t responsible for the inside of the bottle or the inspection mechanism (need someone to testify that this is the way that they always do it). Doesn’t matter if P had current “possession” over the bottle – D

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was responsible for maintaining it and making sure that bottle was in a reasonably safe position.  Benedict v. Eppely HotelF: Woman is sitting on a chair and was injured when a folding chair collapsed after she had been sitting on it for some time. After the accident, it was discovered that some screws and bolts were missing. P: Says that she didn’t do anything wrong, she testified that all she did was sit on itD: Says that they weren’t in exclusive control or custody – she was the one using the chair and in possession o fit at the time of the incident.H: Application of res ipsa loquitor was allowed because, while plaintiff was using the chair and was in possession of it at the time of the incident, the hotel had ownership, possession, and control of the chair under the circumstances and was obligated to maintain it in a reasonably safe condition. (they gave her the chair) Res ipsa gets to the jury because the plaintiff doesn’t have the duty to inspect.

Rule: For possession, do not mean custody and control. D’s still have constructive, custody and control over the internal parts you cannot see. Not immediate control over the object.In Coke: Call customs witness to explain bottle thing and could only happen due to that custom.

Larson v. St. Francis Hotel, 188 P.2d 513, 515 (Cal. App. 1948)F: Chairs being thrown out of the window in a celebration at a hotel, the plaintiff gets hit with the chair.P: Negligence in not supervising what guests do with the furniture. Says they have a duty and if they aren’t doing their duty if the chair comes out the window. Management allowed the party to continue even after they knew what was going on – they had ample notice of the antics - they had a duty to take a reasonable standard of care – RIL because they had a duty to control the party in the hotel, and they did nothing…the chair coming out the window was a result of the management doing nothing RIL.D: Says they had no notice, it was a surprise. It wouldn’t have made any difference if the ∆ did use reasonable care because some events happen anywayH: NO RIL! Res ipsa doesn’t apply because they had no notice b/c chair flew out during surprise celebration. Not in the “ordinary course of events”, guests have partial control. B is too high to put guard at every window!***Res ipsa dosen’t apply when you have no notice that it could happen, then you have no duty. Connelly v. Nicollet HotelF: Again the plaintiff is hit by a chair, but this time there was a convention (a planned party) and the defendant was warned that they might get rowdy.P: Res ipsa, and they had a duty because they knew.D: Not res ipsa, not in their control.H: When you are on notice of an event that could produce accident, RIL can apply. Res ipsa applies with the wild party because they had notice to do something more carefullyRes ipsa applies when you have notice of an event that could get out of control because you can do something about it, have a duty to prevent it.

Res Ipsa with Multiple Defendants

Rule of Law: Multiple defendants with res ipsa

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 Cannot use res ipsa on multiple defendants, you need to have the defendants turn on each other because you can’t prove exclusive control (wooden shoe sign hypo)

Wooden Shoe Sign HYPOF: Store owner has a big shoe sign put over her store. An architect draws the plans, the contract puts it up and the store owner rents the space from a corporation. The shoe falls and hits someone on the head causing serious injury. Examination reveals that a bolt was sheared so could be architect of sign’s fault, maker of the sign, landlord of building in charge of upkeep. Who do we sue?P: RIL – MY injury could not have happened but for the negligence of the landlord’s faulty upkeep. Sues everyone: Building owner didn’t properly maintain it. Architect made a bad plan. Contractor put it up wrong. And the Store owner (but she’s hard to sue because master / servant doesn’t apply to independent contractors). D: All of them say it wasn’t me.H: Can’t use res ipsa against multiple defendants because you can’t prove it was in control - exclusive control of the D if there are multiple Ds. , so you use all the other Ds to get it down to one D. Have the other defendants prove each other out and use it against the one that you have the best case against

Use the lease to show that landlord has the exclusive custody/control of inspections. Have architect, store owner and sign maker all explain they acted perfectly. Landlord only one left!

P-RIL: My injury couldn’t have happened but for the Neg. of the landlord’s faulty upkeep.

Additional: On non-delegable duty could go either way. Delegable because it’s not a issue of public safety, doesn’t have a large potential for danger. Or could say that it’s non-delegable because it’s for the public.

Also res ipsa with alternative liability doesn’t apply because none of the defendants stopped him from seeing what happened or caused him to go under the sign.   Res Ipsa - Non-delegable duty

Rule of Law: Non-delegable duty To have non-delegable duty you need: 1. Sufficiently dangerous; 2. exclusive control; 3. They know it’s dangerous. (Colmenares – escalator) 

Applies when court decides that sufficient danger to justify it’s application Conduct / instrumentality is in exclusive control, and try to avoid negligence responsibility

by saying you relied on someone else Notice situation, since they know it’s this dangerous, it’s not unfair to make them

financially responsible Perfect example of non-delegable duty is when you have an elevator that goes 20 floors,

you cannot delegate the responsibility to maintain the elevator to someone else

Miles v. St. Regis paper Co. (non-delegable duty)

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F: Decedent was unloading logs that are all tied together. While in the process the train moves and dislodges it and kills him. Decedent works for the D Street company that told the engineer of the trial to move the train, engineer relies on D Street. Not suing the D Street Company because he works for them and cannot sue them because of worker’s compensation. Sues the employee (actually the railroad because the railroad is vicariously responsible for the actions of their employees)P: Negligent in moving the trainD: I was told to, I acted like a reasonable person in my position. He relied on the experts (the D Street Company) to tell me when to move the trainH: Movement of the train was in exclusive control of the movement of the rail road. Because driver moved train on reliance of the men; court says RR could not delegate authority and could not rely on anyone Doesn’t matter if it’s reasonable for him to move because in certain limited circumstances the courts have decided that the defendant is involved in conduct that is so dangerous that they cannot rely on other people for safety. In this case moving the train is so dangerous (so heavy and move so fast) that it is unreasonable to rely on anyone else to make a decision.The movement of a train is res ipsa with a non-delegable duty because it is too important to delegate to anyone else.

(Simply stated) Colmenares Vivas v. Sun Alliance Insurance Co.F: Plaintiff was injured on a escalator.P: Says res ipsaD: says that they have a contract for the maintenance H: The maintenance cannot be delegated. Maintenance of an escalator is a non-delegable duty.

Colmenares Vivas v. Sun Alliance Insurance Co.--Application of RILF-P riding escalator in airport when handrail stopped moving while foot platform continued to move. P tumbled down steps and was injured. Port Authority and their Insurance Co. were D’s. D tried to sue Westinghouse who was contracted w/ Port Authority to maintain the escalators.P – Res Ipsa – but for the failure to maintain the escalator properly I suffered injuries. Element 1: Injury is ordinarily the result of negligence

a) Handrail on escalator would not stop working w/o negligence.b) Hint: When there is a mechanical problem, makes a prima facie case for negligence

Element 2: Exclusive control a) Maintaining escalators in a public area is a non delegable duty: 2 possible situations. Doctrine of non delegable duty, expanded version of D

1) Where there is a public authority maintaining a public area2) Business invitees: the owner of the premises is responsible, and not the individual person who made the mistake.

D claims & loses: We are responsible to take reasonable precautions to make sure escalator is safe. It would be negligent for us to do this our-self, so we hire someone who takes on this responsibility. We did everything we should have.H: The maintenance cannot be delegated. Maintenance of an escalator is a non-delegable duty.

Rose v. Melody LaneF: Stool in a soda fountain and sits on the stool and the top falls offP: Says that it’s a non-delegable duty – res ipsa. D: Says that it wasn’t in their control they didn’t make it.H: Cannot rely on the manufacturer (before product liability). Need to ensure for the catastrophe yourself.

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Big man/little stool HYPOF: A “big” man sat on a stool in a store and the top of the stool came off. He fell and sustained substantial injuries. No one knows what cause the stool to fall because scientific knowledge was not very sophisticated. We are suing the store. No evidence that either the π or ∆ did anything wrong.D – we did everything we were supposed to do, we bought the best stools and we did everything we’re supposed to do to upkeep the stools.P – Rule from Colmenares – non-delegable duty to maintain H: In some circumstances, reasonable conduct is not sufficient because then it leaves the P with no one to sue. Takes away the defense that the D acted reasonably by hiring an expert to maintain b/c of non-delegable duty.

The Coke Bottle Example F-Coke makes the syrup and supplies it to bottling co., to seal and package the bottles. Bottler is not Coke, hires delivery trucks who transport bottles to the restaurant storage room. Waitress opens a bottle and it explodes in her face. use RIL to sue Coke??P- but for the poorly designed coke bottles my injury would never have happened - RILElement I: Ordinarily a negligent act

Prove coke bottles don’t explode unless a negligent act by someoneElement II: Exclusive control

Put affirmative evidence that truck driver is not liable, eliminate as a D Eliminate bottler as a D by testing whether the bottle is designed improperly.

o Compare to Colemnares: Coke’s duty to the public is non-delegable. As the escalator is used in a public place, coke is used in public restaurants. The public doesn’t know all the distribution processes, it just know this is coke. Just like public knows this is the port authority; it doesn’t know who maintains the escalators.

Accessibility of Information First associate the bottler w/ Coke through the doctrine of non-delegable

duty and then argue that this expanded version of the D would have better access to what went on in the bottling and transportation operations than would the waitress. This disparity is enough B/c it’s similar to Ybarro where the doctor’s knew who performed the negligent act. Here, by holding Coke responsible, it may help in finding who is specifically responsible for the negligent act.

Furthermore, in this case, the waitress doesn’t know who performed the negligent act. She’s like the unconscious P in Ybarro b/c it is impossible for her to know who caused the act b/c she is a laywoman and does not know the coke process. Coke has the information, as the doctors had the info to know who committed the negligent act. So since D and not P had access to this information, RIL should apply.

Defense: BPL- Coke can argue that the probability of this occurring is so low that the burden to redesign a bottle or manufacturing process would be too great. So they are not negligent.P – rebuttal - But P would come back and say a warning label would cost very little, low B. So D is negligent, and did not act reasonably for not putting on a warning label.

Res Ipsa – Departure from Exclusive Control (Hospital Rule)

Rule of Law: Hospital res ipsa 1. Not reasonably foreseeable consequence of the surgery; 2. Don’t know how the injury occurred (unconscious); 3. Plaintiff wasn’t contrib. 4. Simultaneous conduct. Someone must be found liable and if no one is liable it’s the captain of the ship (head surgeon).

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 It is res ipsa, alternative liability and non-delegable combined.

Hospital Hypo:F: Patient being operated on by a surgeon. During the surgery, the patient has substantial bleeding. They stop the bleeding, but because of the loss of blood he becomes anemic and that leads to further problems and eventually he’s dead.P: Says Res ipsa (needs to know if he did anything wrong, if bleeding usually occurs, etc. first)D: Didn’t do anything wrongH: Not res ipsa because it has to be in the part of the body not involved in surgery.To use res ipsa in a medical situation must have an injury that isn’t in the foreseeable risk of the surgery, and must be on a body part not involved in the surgery. Non-foreseeable, and don’t know who did it. Ybarra v. Spangard – Departure from exclusive controlF: Plaintiff goes in for an appendectomy and ends up with a shoulder problem. 3 doctors, nurses, & anesthesiologist all worked on P. When he awoke, he had a sharp pain in shoulder which he never had before...P: Says doesn’t know who did it, I was not awake during surgery - but has to be negligence. If anyone knows who did it the doctor’s know. D: all say that they didn’t do it and don’t know who did.H: Not fair to the plaintiff because he’ll never be able to recover because he was unconscious. Not fair because he can’t prove it (like Summers v. Tice, but not causation, on negligence instead)

1. If anyone knows who did it, they know 2. Their conduct was done simultaneously 3. The injured shouldn’t be denied relief

In surgery cases Res ipsa applies and the burden is switched, the defendants can prove themselves out and if the jury can’t figure it out then it’s the surgeon (because he’s the captain of the ship). Chief surgeon is in charge of operation and others can be sued under RIL. Med. personnel have better access to evidence and information than the patient, and if they remain silent, RIL smokes out the evidence.

Use Summers v. Tice to switch the burden to D. But someone has to be responsible for all of them - can’t prove themselves out. (Combination of res ipsa and alternative liability). Defendant’s conduct stopped plaintiff from getting the information he needed.

Use RIL to prove negligence-->P was unconscious; injury to unrelated part of body, injury isn’t ordinary unrelated side effect. NOW, who did it? With 4 D’s burden on them to show it wasn’t them. Doctrine of respondent superior so that SOMEONE is held liable if the jury believes all Ds –the person in charge is held responsible.

**Special Rule: Key fact is Unconsciousness and it’s not a known risk. And it is a policy that the ∆s are in a better position to know. Heightened duty b/c of helplessness.

R-It is unreasonable to insist that P, who was unconscious, could identify negligent D. Concert theory: Unit of doctors & nurses had exclusive control over the situation. Anderson v. Somberg (N.J. 1975)F: When operating, scalpel breaks. Dr. slips and damages P’s spine, P paralyzed. P sues Dr., hospital and manufacturer. Took breaks in patient’s back during surgery. It could have been the manufacture for making it, physician for negligence, hospital for maintaining it, previous surgeons could have broke it (Like DES case).

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P: Someone did it and I was unconscious so I don’t know who. Manufacturer had to build a surgical instrument that wouldn’t break and can’t delegate checking to someone else. Doctor has duty to not use a broken instrument and can’t delegate checking to another doctor. Either it had a manufacturing flaw from the beginning OR it got damaged on that day OR it got damaged in the operating room on another dayD: All say not me H: Jury-Found for D b/c under RIL, need exclusive control. Someone has to be responsible, initial jury found none of them responsible. On remand found against the manufacturer because they are least sympathetic - holding that the jury was obligated to impose liability on at least one of the named defendants. (conditional res ipsa)App. Ct.: One of them has to be liable. When the P is incapacitated, someone must be lacc. to RIL. *Usually will choose manufacturer: Most money w/ insurance and least sympathetic.

In operation, res ipsa cases, someone must be responsible.

Combine res ipsa with non-delegable duty and alternative liability. Defendants can’t say not me, it was someone else because its non-delegable (reasonable conduct doesn’t count)All the parties might not be named, didn’t name every doctor that could have used it (like in DES when didn’t get all defendants, its alternative liability/burden switching).  Res ipsa, non delegable duty and alternative liability

Doctor’s can’t delegate the duty of prior surgeons The manufacturer can’t delegate the duty of making non breakable instruments Non delegable duty is a kind of res ipsa, but not the standard ipsa

 Alternative liability – switches the burden of proof & Res ipsa

Must act communally, one must have caused the harm Person was unconscious so doesn’t know who did it And the injury wouldn’t have normally occurred

 Non-delegable duty doctrine is typically limited to dangerous situationsCritical Factor –not a foreseeable consequence of the original surgery, this shows an inference of wrong doing (negligence)  Brain surgery HypoF: P has to have brain surgery. There’s an enormous amount of pressure. Can’t relieve the pressure and he gets brain damage.H: Can’t sue under Ybarra because it’s a foreseeable injury from brain surgery (foreseeable side affect, so you don’t know that they are negligent)If the injury is foreseeable can’t sue under res ipsa with alternative liability because you do not know if they were negligent.  The legal structure has generally accepted Ybarra in many jurisdictions, but have been extremely hesitant to apply it to anything but a person who is unconscious under anesthesia : Almost a medical malpractice Rule   

III. PLAINTIFF’S CONDUCT DEFENSES:  1. Violation of a standard of care

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2. Proximately causing injury P has the burden of proving negligence. 3 Defenses to Negligence: (Plaintiff’s conduct) 1.Contributory Negligence- any amount of fault on part of P that causes the P’s own injury will cut off his right to recover against the D.2.Comparative Negligence- recovery for the P is equal to the amount of damages he suffers minus those damages attributable to him or in essence the amount of his fault causing the relationship. Here the P will recover the percentage to which he did not contribute.3.Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known risk.

Rule of Law: Contributory Negligence

Contributory Negligence : at common law, the doctrine of contributory negligence applies. The doctrine provides that a P who is negligent, and whose negligence contributes proximately to his injuries, is totally barred from recovery.  In jurisdictions that have contributory negligence if the plaintiff is one 1% contributory negligent then they cannot collect.

Court held that contributory negligence is not necessarily a complete bar to recovery when the negligence of the defendant is what caused the injury. Plaintiff was not the proximate cause. So P has to be PC of injuries to be Contrib.

 Contributory Negligence :

To change the natural order of things someone had to act morally wrong (criminal, intentional, negligent) but can’t help someone else who has also acted wrong (they don’t have clean hands)

Individualist values, things are supposed to happen (Devine/God/etc.) Complete defense at common law (if the plaintiff was contributory negligent, couldn’t

collect anything) This changed over times for two reasons:

1. Insurance (not taking from the person, taking from a company and everyone pays) and 2. Some people were only slightly negligent while the defendant was super negligent and the plaintiff couldn’t collect at all.

Has a deterrent aspect, encourages people to mitigate their risks and to act responsibly so they won’t be contributory negligent.

Began to lose favor because someone who did something minor (like jaywalking) couldn’t recover if hit by a car because of contributorily negligent.

Now, contributory negligence defense only applies where P’s negligence contributes to the PC of his injuries. If P’s negligence is not a BUT FOR cause of his subsequent injuries then he is not contributory negligent.

The universal modern rule is that the defendant bears the burden of proof on the issues of contributory negligence and its causal relationship to plaintiff’s harm.

New York does not completely bar plaintiff’s recovery for contributory negligence.

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Claims against which contrib. defense not usable: Since the contrib. negligence defense is based on general negligence principles, it may be used as a bar only to a claim that is itself based on negligence!

Intentional torts – defense not applicable if Ps claim is an intentional tort. Willful and wanton – Ds conduct is found to have been willfull and wanton or reckless

the contrib. neg. defense will not be allowed. (but if Ds negligence is merely “gross” – contributory negligence usually will be allowed) - the idea is that the defense does not apply where D disregards a conscious risk.

Negligence per se when P is protected class – contrib. neg. can usually be asserted as a defense even to Ds negligence per se i.e. his negligence based on a statutory violation – but if the statute was enacted for the purpose of protecting a class of which P is a member, contrib. may not be asserted as a defense)

Karate jump hypo L jumps at car coming at her. She thinks that the only way to avoid it hitting her is by doing this. Car was driving fast & close, but if she didn’t jump, it wouldn’t have hit her. 2 CIF: L jumping up and the D driving dangerously. *Misconduct by both, same nature, acted unreasonably, leading to injury. Common Law Rule: Bars a right to recover for P. CN was an absolute Defense. If the P acted in a negligent manner as well, aka jumping at the car she will get nothing regardless if D was speeding. Come to court with clean hands!If both hurt, whoever was hurt the most will be the one suing. Whoever sues first is the plaintiff – then there will usually be counter claims, etc. With CN< both will pay for their own injuries. This is a Deterrent factor b/c if P won, deterrence from acting negligently.

Stair Hypo: Dangerous stairway that you shouldn’t be walking on, building collapses and causes injury – not contrib. because the contrib. negligence was not the cause in fact of the injuryCommon law: B was less negligent, but still neg, so you get nothing. Then it changed.Negligence Per Se: If A breaks a safety statute, B’s CN isn’t a defense and A is liable.

Leroy Fibre Co. v. Chicago, Milawaukee & St. Paul Railway -(RR cause flax to burn)F-P stored flax on his property about 70 ft from RR’s right of way. D, RR, had negligently operated RR by allowing it to emit large quantities of sparks, causing P’s stack of flax to be destroyed. D- Defendant says they aren’t liable because the plaintiff acted unreasonably and took an unreasonable risk by stacking the flax near the tracks. Says they have an easement. Says that Plaintiff is contrib. because they know how the property will be used and that trains admit sparks. P-It’s my land, I can use it as I like. D doesn’t have an easement (public use) to the land.R-P need not exercise reasonable care to protect against risks from wrongful operation of another’s use of their property. This is not contributory negligence.H- The defendant was negligent in the operation of the train. Railroad says that the plaintiff was contributorily negligent by stacking them too close. Court says, no, that the property right dominates. Says that the plaintiff is allowed to create the risk (simply because it’s their property). Railroad can’t use the property to deposit sparks, they will either have to buy the land, or an easement or make private arrangements. Property interest trumps foreseeable risk when talking about contrib. The court ruled that negligence is a matter of degree and that matters of degree are for the jury. Contributory negligence cannot arise because the plaintiff has done nothing to invade physically the railroad’s right of way.

**Dissent: But the property owner was creating a foreseeable unreasonable risk of injury – he knew these sparks always came onto the property…it’s almost as though he was looking to burn them up so he could sue.

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Driveway HYPO: Two houses close to each other, driveways only a few feet apart…the driveways share a dip at the end of the driveway w/ a strip in the middle. Person A sometimes drives across the strip dividing the two driveways at the end. Person B is not happy about this. Person B buys a statue at a garage sale and puts it at the strip at the end of the driveway. Person A does what she always does and hits it and ruins it. When person B has it removed, she finds out it’s worth a lot of money, so she sues. P – She was contrib. negligent because she knew that I had a tendency to drive there, but she put it there anyway.D - Use the rule from Leroy – I shouldn’t have to take care to protect the wrongful use of my property

Plaintiff’s Conduct Defenses Contrib. Neg. – Last Clear Chance  

Rule of Law: Last Clear Chance Doctrine – acts as a limit on the contrib. neg. defense: Person who has the last clear chance to avoid the peril has the duty to avoid the harm, eliminates the contrib. defense (of the jay walker).

 Last Clear Chance It’s a time sequence analysis that makes the person who had the last chance to avoid the

peril responsible Only thing it does is eliminate the contrib. defense For example the jaywalker would be in peril but the driver that hits him would have the

capacity and the last chance to avoid an accident.

Last clear chance doctrine: permits P to win even though he concedes that he was contributorily negligent. The doctrine that a plaintiff who committed contributory acts of negligence may nonetheless recover damages against a defendant who had the last opportunity in time to avoid the damage and prevent the harm (and P did not have such an opportunity) – the opportunity (this last clear chance) wipes out the effect of Ps contributory negligence. . Very limited applicability in most states. Plaintiff can prove that a point in time occurred, and at that point in time the Defendant became aware of the fact that the Plaintiff was negligent and had the capacity to avoid the accident but didn't. By becoming aware of negligent conduct of plaintiff - being aware of the peril - and then doing nothing about it is called violating the "last clear chance".

*Courts are split about last clear chance – especially when it comes to a comparative negligence jurisdiction.  Texting HYPO: Text sees that speeder is coming so fast that there is no way the speeder can stop and then that person goes back to texting. By texting he is negligent. The speeder by speeding is negligent. BUT defendant texter at a point in time became aware of the speeder (aware of peril) and then negligently fails to avoid the accident.  Kid running in street HYPO: Kid runs into street looking the other way - car comes around a turn and decides to swerve but hits the kid. Both negligent. Kid running in street and looking the other way and speeder coming around the turn. Speeder is negligent and kid is contrib. BUT

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because the speeder had the chance to avoid it (aware of peril) but didn't he had the "last clear chance". Last Clear Chance Driving Hypo 1F: Plaintiff is jaywalking, Driver (defendant) swerves to avoid the plaintiffH: Last clear chance applies because the driver had the last chance to avoid the accident Last Clear Chance Driving Hypo 2:F: Plaintiff again is jay walking, driver hits the breaks and the breaks fail.H: The driver never had the capacity to avoid the accident. Can say that he was negligent in speeding and not maintaining the car and the jaywalking would be a defense. It doesn’t matter if the driver was speeding, he still had the last clear chance.  Train running over a person multiple times HYPOF: Train runs over a person 3 times, they keep stopping and then restarting because they don’t know why the train stopped.The driver of the train had the last clear chance because he should have checked after the first time the train stopped.

**Seat belt defense is increasingly accepted in comparative negligence jurisdictions. In this defense, D argues that Ps injuries from a car accident could have been reduced or entirely avoided had P worn a seat belt.; Ps damages should therefore be reduced.

Contrib. Jurisdiction – In most contributory negligence jurisdictions courts REFUSE to allow the seat belt defense at all. That is, Ps failure to wear a seat belt does not count against his recovery in most courts.

Comparative negligence jurisdiction – But in states that have comparative negligence, the seat belt defense is more successful. There are various approaches but it ends up beign that D is only liable for the injuries that would have occurred if P wore the seatbelt – equal to the % of Ps fault – so D is liable for all injuries – but P’s fault reduces his recovery for the injuries he could have avoided.

o Effect is that 32 states have mandatory seat belt laws. But a majority either prohibit seat belt defense or allow only a small reduction of damages.

Seat Belt Cases: States pass a law making it mandatory to drive with a seatbelt on. P is driving without a seatbelt, but isn’t doing anything else wrong. D is driving drunk and drives to the other side of the road and hits P. P- clearly claims negligence D- P violated the statute, CN per se. I shouldn’t have to pay. P- Not fair to call me Neg PS. That encourages D to speed. Not fair to impose sanction on me when it was D’s actions that were unreasonable (Leroy Fibre)Collateral Benefits Rule: D shouldn’t benefit b/c he was lucky that P didn’t have seat belt on.Cts: View this issue differently. It is a pure question of policy as to how the legislation will look at this. Washington: P aren’t required to buy insurance as a precaution in case of a negligent D. Fact that P wasn’t wearing a seatbelt isn’t even mentioned at trial. NY- CN is a defense to damages. D must demonstrate the connection b/t the P’s non-use of an available seat belt and the injuries and damages sustained. Jury can hear expert testimony on belts.

Derheim v. N. Fiorito CoF: Plaintiff sues defendant after a car accident where defendant made an illegal left turn. Plaintiff wasn’t wearing a seat belt.P: Says illegal left turn, negligence caused the injuryD: Says Contrib. wasn’t wearing a seatbelt.

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H: Contributory negligence doesn’t apply in this case because there is no statutory requirement to wear a seat belt.  Spier v. Barker (N.Y. 1974)F: Car accident, plaintiff wasn’t wearing a seatbelt. P: Negligence caused the injury. D: Contrib., wasn’t wearing a seatbeltH: Wearing a seatbelt isn’t a defense for liability, can’t plead contrib. but it can be used to mitigate the damages. In NY not wearing a seatbelt is not a contrib. defense for liability, but it can be used to mitigate damages.

Plaintiff’s Conduct – Assumption of Risk

Assumption of Risk: A P is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that harm will occur. Where such an assumption is shown, the P is, at common law barred from recovery.

 Rule of Law: Assumption of Risk

 To have assumption of the risk you must 1. have knowledge of the risk; 2. Voluntarily consent to bear the risk; 3. Didn’t have to partake in the dangerous activity. Primary Assumption of the Risk, complete defense (says defendant isn’t negligent or doesn’t have a duty, was just an accident).  Secondary Assumption of the Risk, similar to contrib., affirmative defense to an established breach of duty (treated as comparative in NY) NJ says that there is no assumption of the risk because it is not fair.

Assumption of Risk:  Elements:

1. Have knowledge of the risk Can be implied when the risks are one that the average person would clearly

appreciate (i.e. being hit by a foul ball at a b-ball game) express assumption – explicitly agrees with D in advance of any harm, that P

will not hold D liable for certain harm – expressly agrees. Implied assumption of risk – even if P never makes an actual agreement with

D whereby P assumes the risk, P may be held to have assumed certain risks by her conduct.

There must be an alternative in face of the risk

2. Voluntarily consent to bear the risk 3. Didn’t have to partake in the dangerous activity but CHOSE to.

IF D can show this, he is not liable. Sloppy way of showing P was CN. Based on Free Will theory: One makes their own choices and lives with the

consequences.

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Primary assumption: implied assumption of risk – Its an alternative expression for the proposition that the defendant was not negligent, that the defendant did not breach the duty or had no dutyD is never under any duty to P at all (ex: foul balls at a baseball game - Defendant didn’t do anything wrong, just an accident.)

Secondary assumption: implied assumption of risk – Affirmative Defense to an established breach of duty - D would ordinarily have a duty to P, but Ps assumption of risk caused the duty to dissipate (ex: P injured, asks for a ride to the hospital in Ds car, which P knows has bad breaks) This is contributory negligence (if state has comparative neg statute then most states eliminate the “secondary” assumption doctrine but “primary”).

1. I'm not negligent (primary): not negligent at all; P loses bc D was not negligent2. You're contrib. (secondary): balance negligence of P and D Said to assume the risk if you voluntarily consent to take chances that harm will

occur. When assumption is shown, at common law P is barred from recovery.  

**NJ Says that you can’t use assumption of the risk because it’s not fair (especially when unreasonably dangerous)

Presumption of Risk: Negligence allocates responsibility for certain kinds of risk taking activities We live near airports and if a motor falls off a plane we still chose where to live and

assumed the risk Doesn’t look at reasonable conduct, looks at calculated risk taking. Typical example is flying an ultra-light (hang glider with a motor) which is really

dangerous. By flying it you are assuming the risk, so you can’t recover. This is different than contrib. and once was a 100% defense Must show that the plaintiff knew the risk and did the action anyways Works differently than contrib. but comes to the same result that it’s a 100% defense

 Banging Tree HypoF: Cutting down a (banging) tree. As he cuts it down, it falls right onto power lines. And it bounces right back and squashes him.P: Says he didn’t know that it would bounce, only assumed the risk that he would cut it in the wrong directionD: Says that he assumed the risk of it bouncingH: If you don’t know of the risk, you cannot assume the risk. Amusement Park HYPO.F: Gets hurt on an amusement park ride after watching several people fall and be thrown from the same ride.P: Didn’t know that I could be seriously hurtD: Assumption of the risk, she saw others fall, knew she could fall too.H: Court says that she bears the consequences for her decision. If you assume the risk, you bear the consequences even if they were more serious than you intended.

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Murphy v. Steeplechase Amusement Co. – (Plaintiff and wife stepped onto The Flopper, fell and was injured.) P: alleged that the belt was out of order and caused a sudden jerk. H:The point of the ride was to step on and stand until you fell. He stepped on while it was already in motion; this was the very hazard that was invited and foreseen. Judgment for the plaintiff reversed and remanded.

Minor League Field Hypo:F: At a minor league field watching a game. There’s only about 15 rows of seats and behind the seats is where all vendors are. While waiting in line to get popcorn, you get hit by a fly ball.The courts are split on this, some say this isn’t the area where you assume the risk (you are no longer in the stands) and some say you are in the stadium and you assume the risk.  Greased Pig Race HypoF: Greased pig race. Have greased pig in a pen and the first person to catch it gets a prize, you can’t really catch it, you have to pile on it. Someone gets seriously hurt.NJ would say that its not assumption of the risk, it didn’t create an unreasonable risk of injury (just bangs and bruises), NJ says they weren’t negligent.Other jurisdictions would send it to the jury to see if the risk of injury was unreasonable (was it on a field or was it in a parking lot). Fireworks HypoF: Set of fireworks. One of the people that was supposed to set them gets drunk and puts it in sideways. Plaintiff is over the rope and gets hit in the side of the head.P: Defendant is negligent in letting drunk people set off fireworksD: Says that plaintiff was contrib. in getting over the barrier. They assumed the riskCourt (not NJ) holds that the plaintiff assumed the risk (contrib.) by going over the barrier and putting himself in harms way of the fireworks. Mom Skating HypoF: Mom is a good skater, she goes to a rink with her 2 kids (8&10). Everyone is going the way that they are supposed to except 2 14 year old boys who are going the wrong way and knocking people over. She complains to the rink manager who does nothing so she gets her kids off the ice because its dangerous. But she continues to skate because she’s a good skater. She gets hit and hurt.P: Says the rink was negligent in not getting the boys off the iceD: Says that she assumed the risk, she knew the boys were going in the wrong directionVerdict for the skating mom doesn’t resonate well, she assumed the risk without contributory negligence (because she was a good skater), not a large assumption of the risk.

Lamson v. American Axe & Toll CoF: Guy tells his supervisor that the new racks to hold the hatchet aren’t as good and someone is going to get hurt when the hatchet falls. It does fall and hurts him.P: Sues saying that the employer was negligentD: Says that he assumed the riskH: Plaintiff assumed the risk.If you know of the risk and you stay on a job despite the risk, you assume the risk. But you can still get worker’s comp, you just can’t sue the boss/company.  

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Maddox v. City of New York, (N.Y. 1985):F: NY Yankee outfielder gets hurt while playing in a game. Hurts himself in a hole in the outfield. P: Says the field was negligently maintainedD: Says assumption, he new the field conditionH: He assumed the risk in this case.In Sports, you assume the ordinary risks that are attributed to the sport. (You assume that you can get hit by a ball/pitch, but you don’t assume the risk of someone sliding 20 feet away from the base. Normal breaking of the rules is assumed, but getting hit after the play is blown dead is not assumed and this can be an intentional tort. ) Fireman’s rule: Firemen are paid to do something dangerous and therefore can’t collect when someone

negligently starts a fire (creates the risk). The presumption is you get paid more than someone in a less dangerous job.

 NY, Big Exception to the Fireman’s rule: If the fire is started or made worse by violating a fire safety statute, you may be able to sue

i.e. storing of hazardous chemicals in the building doesn’t apply to a blocked exit, or any other type of violation that is similar, really only

applies to flammable chemicals materials being stored

Comparative Negligence – rejects all or nothing system. Instead of contributory neg being an absolute defense, comparative neg. makes contrib. a partial defense. Jury compares amount of negligence of P to that of D. Attempts to divide liability between P and D in proportion to their relative degrees of fault. P is not barred by his recovery by his contrib. neg. BUT his recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident. (46 states have adopted some form of comparative negligence)

 Comparative Negligence

 Doesn’t bar the action, just reduces the amount of that you can collect. Pure Comparative negligence – (only 13 states) Subtract the amount that you are contrib. from the damages (if you are 10% contrib. you can collect 90%), NY law

50% systems - Modified Comparative negligence – if you are 50% or more contrib. then you are barred from collecting any damages. In NY not wearing a seatbelt is not a contrib. defense for liability, but it can be used to mitigate damages.  Fireman’s rule is that they are paid to do something dangerous and cannot collect when someone negligently starts a fire (creates the risk). NY there is a big exception to the fireman’s rule and the firemen can sue if they are injured by a fire that is started or made worse by the violation of a safety statute (i.e. storing hazardous flammable chemicals). 

Contributory Negligence and Assumption of the Risk are both subject to comparative

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But primary assumption is still a complete defense In those jurisdictions that let you use assumption of the risk This just means the defendant wasn’t negligent Not comparative, it’s a 100% defense (contrib./assumption)

This has increased insurance rates Uninsured drivers still can collect Eliminated contrib. because with insurance no person will be financially ruined.

 Negligence was: Violation of the standard of care causing injuryNegligence is: Violation of the standard of care proximately causing injury  2 types of comparative negligence: Pure (NY + 13 states): JURY looks to facts and looks at what Ds did and they have to come up with a percentage of how responsible each party was. How important is there action in causing the negligence? 

It does not matter how marginally negligent the other party was they will always pay % of damages

Also works with 2 defendants (% split) between P and Ds No matter how small the party can be liable to the more negligent party to the damages!

 Pure system (comparative fault) – allocates proportion of fault to each parties role in causing the accident. (ex. P is 80% negli., D is 20% negli. – P collects 20% of judgement).  50% Modified (IL): Contributory remains 100% defense - only in circumstances in which P is equally or more negligent than the D.  For P to get any money at all (once they have been established to be contributory negligent) they have to prove that D was MORE negligent then they were…aka more than 51%

If D is more than 51% + = P gets damages If less than 51% = P does not get damages

 Modified system –Criticism of Modified system – how can you tell difference between 50% and 51% ??

If P is equally or more negligent than D, P gets nothing.

Problem with Comparative system: It is an illusion to think that there is a rational way of determining the % each party is liable.

NY is a pure comparative state, meaning that it allows the smallest contributor to be solely liable for all damages if the others have no $$.   Multiple D cases: Where there are multiple defendants, comparative negligence is harder to apply. (P collects from one D. D1 then can collect from D2, D3, & D4 their percentage of fault in the accident.)

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1. All parties before court: if all Ds are joined in the same lawsuit, the solution is simple: only the negligence due directly to P is deducted from his recovery. (so if D was 20% negligent and D1 is 50% neg. and D2 is 30% - then P will recover 80%)

2. Not all parties before the court: If not all Ds are before the court, hard questions arise concerning joint and several liability. The issue is whether the Ds before the court, who is/are found to be only partly responsible for Ps loss, must pay for the whole loss aside from that cased by Ps own fault.

a. under common law, in a suit involving joint tortfeasors as D’s, P could decide to collect the entire judgment from one D, (even if this one D is 1% wrong and the other D was 99% wrong) and the D cannot sue the other D’s for his share.

i. Total abolition – 1/3 of states have completely abolished the doctrine of joint and several liability in comparative negligence cases. In these states all liability is “several”. That is each D is ONLY required to pay for his or her own share of the total responsibility.

ii. Hybrid – an additional significant # of states have replaced traditional joint and several liability with some sort of “hybrid” approach, which combines aspects of joint and several liability

**Today under comparative neg., one D can sue the other D for contribution and collect from him the percentage for which he was at fault.

Li v. Yellow Cab Co. of California – (An accident resulted from the negligence of both parties. Plaintiff tried to cross three lanes of traffic and the defendant’s driver was travelling at an excessive rate of speed.) The trial court held that the plaintiff was barred from recovery due to her contributory negligence and the judgment was subsequently reversed. Court initiated a change from contributory to comparative rejecting the all or nothing system.  HYPO: Meadowbrook state parkway: D changes lanes without looking; hits the speeding P sues and says the D did not take reasonable care in operating the vehicle, he failed to look before changing lanes.  Both negligent so instead of knocking P out b/c she was negligent to – court can use comparative negligence to determine damages.

 Plaintiff’s Conduct – Imputed Negligence

Vicarious Liability—provides that in some situations, the tortuous act of one person may be imputed to another, because of some special relationship between the two. As a result the latter will be held liable, even if his own conduct may have been completely blameless. The most frequent situations in which vicarious liability exists are that involving tortuous acts (usually negligent ones) committed by an employee; under appropriate circumstances the employer is held vicariously liable for the tort. Master can either be held directly responsible for the negligence of his servants or can be held vicariously liable

Rule of Law: Vicarious Liability Master/servant rule - [Respondent Superior] doctrine: if an employee commits a tort during the “scope of his employment” his employer will be liable (jointly with the employee).  Master (employer) is vicariously liable for all action of his servants (employees) when they are doing work, if the employee is negligent and causes injury the master is liable.  

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Independent contractors are an exception to the master servant, if you hire an independent contractor you are not responsible for their actions. The independent contracts become independent intervening actors and break the chain of liability.

Fellow servant exception, master isn’t responsible if the employee is hurt by another employee.

Vicarious Liability Tortuous acts of one person can be imputed to another because of the special relationship

between the two Latter will be held liable even if he did nothing wrong

 Master / Servant Liability Doctrine

The master (employer) is vicariously liable for all actions of his servant (employees) when they are doing work for the master.

If the employee is negligent and causes injury, the master can be sued and be liable. Master / Servant – Contractor Exception

If you hire an independent contractor you are not responsible for their actions. They are responsible (if self employed) or the person that employs them is reasonable.

The independent contracts become independent intervening actors and break the chain of liability.

 Master / Servant – Fellow Servant Doctrine

Master isn’t responsible if its another employee that hurts the plaintiff An employ assumes the risks and benefits of working with other people Supervisors are an exception to this rule

 Truck Company Master/Servant HypoF: Truck driver goes out to lunch at a friend’s 15 miles out of the way of his route and on the way back he gets into an accident. P: Says company is vicariously liable for their employeesD: Says he was on a caprice and detour, he wasn’t working at that time. H: Injured plaintiff can sue the owner of the truck company because the action that caused the injury is vicariously attributable to the ownerEmployers are vicariously liable for the actions of their employees on the job, but not responsible if they are on lunch or on their way home.  Truck Company Master/Servant Hypo 2F: Truck driver is helping unload the truck and one of the coworkers that is helping him is drunk and causes the goods to fall on the Plaintiff, seriously injuring him.P: Sues the company saying vicariously liableD: Says Fellow Servant Doctrine, he was a coworker and therefore assumed the riskH: Agrees with the defendant, fellow servant doctrineFellow Servant Doctrine says that you cannot recover from a company (though they are usually vicariously liable) if the person that injures you is a coworker. 

Imputed Negligence Hypo: P and negligent party are in a business relationship.A & B working together. Rush job. B drops window on A’s head. Due to negligence A want to sue boss.

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Ct: Employer-Servant Rule: 1 employee couldn’t recover v. master if other worker caused the injury.Workman’s Comp. Statutes: D took away CN, Assumption of Risk, Fellow-servant rule, *chance for damages. Congress set up a fee schedule for physical losses. Keeps case from court. Benefits employers.

IV. Proximate Cause:

Proximate Cause: even after P has shown that D was the “cause in fact” fo P’s injuries, P must still show that D was the “proximate cause” of those injuries. The proximate cause requirement is a policy determination that a defendant , even on who has behaved negligently, should not automatically be liable for ALL the consequences, no matter how improbable or far reaching, of his act. Today the proximjate cause requirement usually means that D will not be liable for the consequences that are very unforeseeable.

Proximately and foreseeable that they are cause in fact Factually and legally the cause of the event

  

Cause in fact – “but for”, straight line causation from D’s actions to P’s injury. (primary doctrine) --> Everything that is cause in fact is not proximate cause Proximate cause = subset of cause in fact (secondary cause)

Everything that PC is cause in fact   Doctrine of proximate cause is a limitation of liability and deals with liability or non-liability

for unforeseeable or unusual consequences of one’s acts. In addition to being a cause in fact, D’s conduct must also be a proximate cause of the injury.

P has the burden of showing that D is not only the CIF, but also the PC. Doctrine functions as a defense to a claim of negligence and as a limitation

of liability. Deals with liability or non-liability for unforeseeable or unusual consequences of one’s

acts.o D is only liable for Legally sufficient acts, not all acts. o Narrows D's liability. o You are not the legally sufficient cause of the injury unless you are the proximate

cause. Proximate cause Elements:

1. reasonably foreseeable2. P must be a member of a class as to which there’s foreseeable harm3. Same general sort despite unusual manner

Duty: you're going to be libel if you negligently caused the event or bc you were careless unless that negligent conduct did not BREACH the duty to the person who was injured.

 Cardozo: “The risk perceived is the duty defined” risk you can foresee is the only danger you are liable for. You should only be responsible for the consequences that you should have tried to avoid – what a reasonable person would perceive as a risk

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The key to PC is foreseeability: most courts hold that D is liable, as a general rule only for those consequences of his negligence which were reasonably foreseeable. The policy is to limit the liability of the defendant to danger he can foresee. Usually applicable to “unforeseeable plaintiff” problem too (D only liable for foreseeable

consequences) - when Ds conduct is negligent as to X (it imposed an unreasonable risk of harm on X), but not negligent as to P (i.e. does not impose an unreasonable risk of harm upon P) P will not be able to recover if through some flue he is injured.

Unforeseeability: If you trace a chain of events backwards you can probably find the problem. But the event at the end of the chain is too unforeseeable. Must limit the scope of liability. It cannot be beyond the scope of what anyone should be liable for. Too removed.

EXCEPTION: once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any additional unforeseen physical consequences. (skull – “takes P as he find him”)

Proximate or legal causation issues are conceptual not factual.1. Possibility is to ask whether the chain of events that in fact occurs was sufficiently

foreseeable, natural or probable.2. Starts with injury and works backwards towards the wrongful action of defendant’s

directness. 

 Policy: To restrict liability of D to danger he can foresee, so as to avoid Ruinous or unforeseeable liability.

  Ruinous Liability: Enormous Liability. Ex. Chicago fire. Cow knocked over the lamp. This was

unforeseeable. Should not have to pay for all of Chicago to be fixed. Unforeseeability: If you trace a chain of events backwards you can probably find the

problem. But the event at the end of the chain is too unforeseeable. Must limit the scope of liability. It cannot be beyond the scope of what anyone should be liable for. Too removed.

1. Doesn’t mean unforeseen but must be unforeseeable for a reasonable person at the time in the situation.

  

Three Kinds of Proximate Cause :  

1. Pure Policy: (Ryan) Public policy to limit catastrophic liability. Due to ruinous liability.a. It tells people to get insurance.b. Restricts liability in a rational way. c. Protection for D against an unpredictable ruinous liability.

2. Dual Risk Theory: (Palsgraf)3. Remoteness and Intervening causes. (Wagner v. International)

a. Passage of timeb. Intervening Cause (3rd party)c. Unexpected Consequences.

Why are they in different categories?  You have a duty when risk is foreseeable that your negligent conduct will cause injury to the person or type of person that is injured but not only this but injury in the WAY the person got injured - and not only to the person you can foresee and the nature you can foresee but the manner it happened.  Even if injury is foreseeable it is not known that that particular injury would happen from that negligent act

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When I do something it creates risks to people of certain kinds of things happening in a certain kind of way

Person : who? Manner : how? Nature : what?

Only an aid to determining whether or not D is PC to injury - tool to use not a rule :)  

Pure Policy (PP) protects the defendant from unpredictable ruinous liabilityTells people to protect themselves and get insurance. Restricts liability in a rational way. Protection for D against an unpredictable ruinous activity.

Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to everyone. Decision here restricts liability in a rational way because it limits liability to one house on either side.

Ryan – Fires and making people liable and then broke Rule: W/ fires, 1 house is foreseeable and D is liable. Today, 2 houses are foreseeable

Mine / Chain Gang worker – not foreseeable against the specific person  

 Ryan v. New York Central R.R.Facts:  In Syracuse, one of New York Central’s engines started a fire that spread to its woodshed. Because of negligent conduct of D... The shed contained a large quantity of wood, which, of course, also burned.  Ryan’s house was 130 feet from the woodshed and caught on fire from the heat and sparks.  Even though efforts were made to save it, the house was destroyed.  There were several other homes destroyed by the same blaze.P argue: It is foreseeable that my house would be burned. D argue: The damages are too remote and unforeseeable. It was foreseeable that the fire would burn the adjoining house, rule of Ruinous liability is app. here. Not fair to make D bear liability b/c it would effect them in a ruinous way. It was not a Natural and Probable Consequence. Rule: When D is negligent in starting a fire, D is liable for the first building beyond his own (adjacent houses – one on each side). Any other house is too remote and not foreseeable. Many jurisdictions have modified this to a two house rule Liability does not exist when the resulting harm is too remote and unforeseeable to be an ordinary and natural result of the defendants negligent act (NO LIABILITY ATTACHES WHEN THE RESULTING HARM IS TOO REMOTE FROM THE NEGLIGENT ACT).

Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to everyone. Decision here restricts liability in a rational way because it limits liability to one house on either side.

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It is counterproductive - who has a better capacity of protecting X's house and assets?? - X by getting insurance! Spreading the loss over a lot of people.

Duty: Since the ∆ is not liable for damage to “Remote” house, the ∆ has no duty to protect the remote house ***Its really completely foreseeable but when they say "foreseeability" they mean obligation to protect - it is not Ds legal duty to protect the rest of the houses (not next to him)  Ruinous Liability: Enormous liability. Its nice of me to take care to protect you but if my duty is not to protect me and you but to protect everyone then that is going to impose an enormous liability on me.

The group that you are responsible for is a limited group People who bought your product People who die in plane crash

Liability is HUGE but you knew the group that is involved (whether buying/using etc)

You are aware of these people before. What would have been ruinous liability is changed by INSURANCE.

People are not quite aware of it but just because you have insurance - you don't realize that inflation has risen so much in the last 20 years so that million will not really protect you from liability.  

 Policy method: When injury is remote or unforeseeable or like RYAN when we wish to see it as unforeseeable.

Doesn’t really affect a factual history - bc clearly he was well aware that if he started a fire RYAN would burn down the city but it doesn’t matter bc LEGALLY he it is not foreseeable

 Berry v. Sugar Notch BoroughF: Driving a tram in excess of the city speed limits. The guy speeding is negligent (maybe even negligent per se). The tram is hit by a tree that blew down in a windstorm.P: The speeding was the cause in fact of the train being where it was when it was hit. And the defendant was negligent in speeding. D: Says that the harm that occurred is not the type of harm that the statute intended to protect against. Not reasonably foreseeable that speeding would cause this type of injury. H: Not fair to hold them liable because a reasonable person wouldn’t have had the opportunity to avoid the risk. If you can’t foresee the possibility, you can’t avoid it. Its not something that endangered the passengers in this way, and not appropriate to allow the passengers to collect because they weren’t exposed to an unreasonable risk. Not fair to hold people liable for unforeseeable injuries. Plaintiffs shouldn’t be able to collect when they weren’t exposed to an unreasonable risk. In this case the person was foreseeable, and the nature of injury was foreseeable but the manner of injury was not foreseeable (expect speeding to cause a crash, not get hit by a tree) and this breaks the legal chain of causation (not the factual chain)

Pittsburg Reduction Co. v. Horton 649 (Ark. 1908)F: Dynamite cap is left at an abandoned government site. A kid picks it up and brings it home and is playing with it. It explodes and injures the kids. P: Says that this is foreseeable, dynamite caps explode and its foreseeable that a kid would pick one up.D: Says that it was many years later and is not still at the site. The parents were aware that the abandoned site was there and they knew it was a dynamite cap.

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H: Not foreseeable that parents would let the kids play with a dynamite cap and it was so long after that its not foreseeable. Not liable for things that aren’t foreseeable, dangers that were created long ago.

Life Insurance Physical HypoF: Doctor from the life insurance company goes to the woman’s house to take urine sample and do a quick physical for the insurance company. He knocks on the door and tells the woman to undress. She does it. When she tells other people they tell her that’s not normal and that she was assaulted.P: I was assaulted.D: She consented to the naked physicalH: Consent doesn’t count in this case because the consent was induced by fraud.

Proximate Cause and FiresPeople get the benefit of living close together (community, social protection against enemies)

this is a choice that people make and they know the risk Notion of reciprocal risks By not holding the person who starts the fire responsible for all the damage from the fire

(only the foreseeable damage) it encourages everyone to get fire insurance Water distribution systems underground stopped the spread of fires

o But if your house burns down while they are fixing the water system you cannot sue them. Courts adopted a policy of limiting the liability for water companies because we need water companies

 Dual Risk (Palsgraf)

Some jurisdiction reject DR but some accept it...Every case does not raise a DR possibility - the risks have to be created out of the single negligent act.

Theory: D is only liable for those consequences of his negligent conduct which were reasonably foreseeable at the time he acted. You have a dual risk when u can create a situation that would cause the same injury to occur in a non-negligent way. So a Reasonable and Unreasonable Negligent risk is created at the same time.

D was negligent and negligence caused an injury but it was an injury nobody in Ds position would have thought could have occurred..Risk I should know when I do an act v. risks I didn't know about when I committed act. All created at the exactly same time!

What are their DR’s?1. First risk – is foreseeable conduct.2. Second Risk is not foreseeable and not caused by the negligence aspect of the conduct.

look at person, manner, and nature to tell foreseeability

Palsgraf – when there is a negligent and a non-negligent risk and the non-negligent risk occurs, defendant is not liable for the negligent risk

Palsgraf – the risk perceived is the duty defined

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Polemis – if you create a negligent risk you are liable for any consequences, even non-negligent consequences.

Wagon Mound 1, Wagon Mound 2

Proximate Cause – Unforeseeable Person, Manner, Nature (Who, How, What) 2/3 = DR

1. Unforeseeable personLook to see if the person hurt wasn’t foreseeable2. MannerLook to see if the manner of injury was foreseeableGet in car accident, get out of car and bee stings you and you have allergic reaction, the reaction isn’t a manner that was foreseeable3. NatureLook to see if the nature was foreseeablei.e. speeding causing you to be in the position where a tree falls on you, not causing an accident

   

Gorris: F: Sheep were not kept in the statutory proper manner. They were then thrown overboard during a storm. P: First argue negligence PS b/c the D broke the statute, but it was also reasonably foreseeable that this event could occur b/c they weren’t locked up properly.

Knows risk of sheep getting sick because not putting in the pin But created the second risk unknowingly by doing the same conduct - negligence of not

following statute by putting sheep in pen. D argue: Dual Risk: The purpose imposed by the statute was to protect animals from getting a disease. It was not to protect them from going overboard. The PC of injury came from the non neg. cause, so D not liable. H: Risk of being swept overboard was not a foreseeable risk. The risk of animals getting sick was foreseeable. The only reason why he had to use pens was to protect healthy sheep from getting sick NOT to prevent them from flying overboard.  ***Only one was created by a negligent act - because made negligent by statute.

Rule of Law: An act is negligent when a reasonable person could anticipate the risk of any type of harm as a result of the act. (WITHOUT A REASONABLE APPREHENSION OF DANGER, THERE IS NO LIABILITY).

Palsgraf v. Long Island Railroad Key example of Dual Risk!F: Palsgraf was standing on the D’s railroad platform waiting for a train. Another train pulled into the station and two men ran to catch it. The first man jumped aboard as the train was moving, but the second man, carrying a package, seemed as if he were about to fall. A guard on the train reached out to help him, while another guard on the platform pushed him from behind. The man dropped his package, which contained fireworks. A newspaper covered the package, so it was not apparent that it contained fireworks. When it fell, the package exploded and the shock knocked over scales at the other end of the platform where the plaintiff was standing. She was hit by the scales and thereby injured.P: Says that it’s cause in fact.

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D: Says that it wasn’t foreseeable that this could happen. H: Majority says that P should lose because the risk perceived is the duty defined. If the negligent conduct didn’t foreseeably create the risk that happened, the plaintiff shouldn’t recover. (Risk perceived is the duty defined.)Negligent if it is foreseeable that this particular person would have been injured.

Note: Could have sued the scale company and they might have been found guilty because this would be chicken hawks (vibration of the train could have caused the scale to fall) 

Analysis: Risk 1: scales hit Mrs. Palsgraf in headRisk 2: guard pushing guy onto train = risk they knowingly create that could hurt guy these are foreseeable and they were negligent bc a reasonable person in their position would know that their conduct was unreasonable bc person they were trying to get on train was being exposed to an unreasonable risk of injury by falling off/tripping

 Palsgraf: P is hurt by falling scales after an exploding package. P argues : Negligent action of forcing passenger onto train caused my injury. D argues: I was negligent helping the passenger onto the train, but not for your injury. No PC, injury to third party was not foreseeable.

 Was there a non-negligent way to cause the injury? Yes, you could leave the package on the platform, it is thrown out and it explodes.  Person: person getting on train is foreseeably threatened, not P many feet awayManner: Maybe of falling from being pushed on, not dropping explosive boxNature: Injured by falling and being run over = foreseeable

 NOT being blown up and not another blown up far away. Injured by being run over, not from explosion that caused vibration that would knock the scale down.  A reasonable person would not think that this would happen by pushing man onto train.  No one would consider to stop helping the guy bc they could think that such a thing could happen - not foreseeable The injury could have occurred in another way. The risk we created wasn’t reasonably foreseeable to cause injury. Cardozo: “The risk perceived is the duty defined” risk you can foresee is the only danger you are liable for. You should only be responsible for the consequences that you should have tried to avoid – what a reasonable person would perceive as a risk **P cannot benefit because what happened to her just happened to be because of a different negligent act Holding/ Rule: P established negligence and negligence did in fact cause the injury, but negligence didn't breach a duty because he was not the proximate cause due to this nature and manner of the injury.   

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Why should the R.R. Co. get off when they are negligent, just because injury could have occurred in another way?

a. Cardozo – people shouldn’t be liable if they aren’t morally at fault. b. “The risk perceived is the duty defined”c. Risk perceived is the duty defined only applies to actions; not when D doesn’t do

anything.d. Doesn’t want Ps to be “free riders”

 The dual risk theory permits people to be negligent. It does not maximize the deterrent aspect of the law.

Very often no perfect solution:

Hobson's choice: "you either buy a horse or you walk..." means no choice at all but now means choice between TWO BAD THINGS.  P is undeserving of a benefit, but D is undeserving of getting away with negligent act, so the court “has no idea what to do” so D wins The only thing you can do is effect on damages/money... **P established negligence and negligence caused injury, but negligence didn’t breach a duty b/c you weren’t the PC due to this kind/nature of the injury.  How do we distinguish proximate cause from Chicken Hawks where D was liable?

i. Look at whether a reasonable person could have done the aspect of the thing non-negligently.

ii. Chicken Hawks was not specifically foreseeable, but it was a foreseeable manner and nature.

In re Polemis & Furness, Withy & CoF: Defendants drop some timber which causes a fire.P: Says that it was the cause in fact, they created the risk.D: Says that maybe we caused the risk of the falling timber hurting someone, but not the risk of the fire.H: The defendants didn’t cause the risk of injury that occurred.Defendant is negligent if anyone could be injured from the negligent conduct, doesn’t have to be the type of injury negligently caused.

Polemis is not consistent with Palsgraf Polemis – says that you should be liable even if it wasn’t foreseeable because you did a

bad thing Palsgraf – you have too look more carefully (dual risk doctrine created by Cardozo)

 Rat Poison Hypo Box of poison on shelf over stove where soup is cooking. It doesn’t fall in the soup, but the heat makes it explode, injuring P. P: Says that it is foreseeable that it could cause danger.D argue: Not Foreseeable. It is foreseeable that the poison would fall into the soup causing D poisoning, but not foreseeable that putting it above heat would make it explode.H: Not foreseeable that the poison would explode.Not a foreseeable manner and nature of injury, so not liable

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 Handy Test- Dual risk scenario means that someone can do the fundamental conduct that the D did, but do it not negligently.

 Ex. Palsgraf- RR sets off fireworks non-negligently but the scales tips anyway. No neg. then there is a dual risk. - When a ∆ acts and that act creates 2 or more risks of injury, and the π is injured by one of the risks of injury, the ∆ is not liable if that risk that caused the injury was reasonably taken

Doughty v. Turner Manufacturing Co F:One is eating his lunch when a co-worker negligently tosses Asbestos lid tossed into molten metal. The negligent toss created risk of splash, however in this instance, the splash injures no one. Asbestos subsequently explodes causing molten to fly out and nail the bitch eating his lunch in the eye. Explosion and molten flying out was unforeseeable. Same injury would have occurred if the plaintiff had placed the lid in gently.A big vat of boiling metal and a worker is near it eating his lunch. On a catwalk above a worker knocks over an asbestos lid and it falls into the vat. It percolates a little, and then explodes. Molten metal flies out and hits worker in eyes and blinds him. P: Dual Risk involves a D not being responsible for injuries that are unforeseeable but in this case they are foreseeable. If you drop something into a boiling pot then it is foreseeable that it will splash. D: going to say DR: It was foreseeable it would splash but it didn't splashbut the air bubble wasn’t a risk.. No one had any reason to know that this cover - when immersed would explode. The risk of bubbling over was not foreseeable. Rule: Even if D is negligent - A negligent party is only responsible for the probable, or reasonably foreseeable, consequences of its negligent act.H: This is a not a foreseeable manner of injury, the splash is foreseeable but no one was hurt by the splash so no risk. Explosion wasn’t in the risk that a person in his position would foresee, no one knew it would explode.Not liable because its unforeseeable, no one was hurt by the foreseeable risk.Test: whether or not you can think of a different way that another person can create the same risk without the negligent part of it and therefore NO DR. Does not mean P wins bc most of PC there is this remoteness proximate causeIs there a non-negligent way of causing same injury? Yes, worker could have placed it in gently and it still could have exploded. Policy Issue: D is lucky to get away from a negligent risk they created because the actual risk was not the one reasonably foreseen. Holding- D wins anyway.

 

Nitroglycerine Hypo:F: Bucket of nitroglycerine was on a table and the bucket falls and someone breaks their toe.P: Says that nitroglycerine is dangerous no one should leave it around and I was injured by it.D: Says that I shouldn’t be more responsible for any more than what happened. The bucket itself wasn’t an unreasonable riskH: Plaintiff shouldn’t win according to the dual risk theory. The risk that was created wasn’t negligent. If it was a bucket of water it wouldn’t be an unreasonable risk. And plaintiff shouldn’t recover for the risk that didn’t occur (the nitroglycerine exploding).1. Is there a non-negligent way of causing the injury?

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Yes, it could have been a pail of water. The aspect of D’s conduct which was negligent did not cause P’s injury. 2. 3 step analysis: Person: Same Manner: expect explosion, got falling onto foot.Nature: P would expect burns from nitro, got breaking of a foot.

So the Negligent risk from a pail of nitro falling is the possibility of an explosion. Actual risk was heavy can which could hurt foot. This risk isn’t unreasonably taken. Only if there was an explosion would it be unreasonably taken.

There’s both negligent and non-negligent risk. The non-negligent risk of the bucket falling and the negligent risk of the explosion. When the negligent risk doesn’t happen you can’t collect for that risk. Only liable for the risk that caused the injury (only if negligent).

Palsgraf says that its not fair for the person to be liable for the risk of something that didn’t occur in the same conduct there is a set of foreseeable risk and non-foreseeable risks. Policy Issue: the D is lucky to get away from a negligent risk they created b/c the actual risk was not the one reasonably foreseen and not PC of Ps injury.

   How do we distinguish proximate cause from Chicken Hawks where D was liable?

Look at whether a reasonable person could have done the injury in a non-negligent way Chicken Hawks was not specifically foreseeable, but something getting caught in the 17

inch space was a foreseeable manner and nature.

  Rule of Law: When it can be reasonably foreseen that an act may cause harm, the tortfeasor is liable for damages caused, regardless of whether the type or extent of damages are reasonably foreseeable. (A TORTFEASOR NEED NOT HAVE ANTICIPATED THE DAMAGES TO BE LIABLE FOR THEM)

In re Polemis & Furness, Withy & CoFacts: Polemis (P) and his partner chartered their ship to Furness, Withy & Co., which used it to transport various cargo, including benzene and/or petrol. At the time of the fire, the ship was docked in Morocco. Local dockworkers, found by the court to be acting as agents of the defendants at the time, caused a plank to fall into the hold and cause a spark. The spark ignited vapors in the hold and the ship was immediately consumed and destroyed by fire.D: The defense of the loader company is that their negligence was not the PC of the injury. D's claim they are not PC of injury bc manner and nature of injury was completely unforeseeable - plank falling over and starting a spark and therefore burning down ship. FYI: Polemis: Deals with the direct consequence of the negligent act. If the negligence is the direct and immediate consequence of the injury, D should be liable. (P wins) This is the causation test supported by Andrews in Palsgraf. R: Once D is determined to be negligent, the fact that the manner in which is happened was unforeseeable is irrelevant - if what happened was a direct result of unforeseeable negligent act. Court says it wasn't remote and there was no intervening cause - direct result - plank fell and started fire...BC direct result it is not a PC defense and doesn’t matter that it happened in random/strange way. 

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In re Polemis & Furness, Withy & Co : If the negligence is the direct and immediate consequence of the injury, D should be liable. This is the causation test supported by Andrews (the dissent) in Palsgraf. Once D is determined to be negligent, the fact that the manner in which is happened was unforeseeable is irrelevant. Ex. Negligently transported cargo. Reasonable that D would be neg. for it breaking when falling, but here, the cargo fell and a fire ensued, causing an explosion. That was unforeseeable, but you are held liable anyway bc direct result of what happened. Tough luck for Ds...(P wins)

  

Palsgraf and Polemis are 2 views of nature of individual’s responsibility for conduct/PC that differ.

Polemis: criminal law conduct Palsgraf: Negligent if foreseeable this particular person would be injured.

(individual duty of a person, limits duty of free-rider policy – RR did not unreasonably endanger her, risk perceived is the duty defined, if a reasonable person wouldn’t/shouldn’t know they are exposing someone to a risk of injury, then they are not liable)

(cannot be sued b/c did not do what an unreasonable person would do) (fact sensitive)

Palsgraf and Polemis are 2 views of PC that differ (crunch time seems to go with Palsgraf as the binding one but later poison ivy case argues with Polemis thinking). Palsgraf: Negligent if foreseeable this particular person would be injured. Polemis: Negligent if foreseeable that anyone could be injured from neg. conduct.

 Dissent in Palsgraf- chain of causation has to end someplace b/c it’s not fair to hold the D for something b/c there have been intervening causes.

Dual-Risk Theory: negligent aspect of hypo is dropping lid so that it exploded, if lowering it in with a rope & not creating risk of splash, then no negligence, cannot sue b/c a reasonable person would not know that there is an unreasonable risk of injury These cases don’t have to be inconsistent b/c you can read Polemis as making Ds liable when injury was the immediate result. And in Palsgraf, you have intervening factors.

 

 Exceptions to the rule that D is liable only for foreseeable consequences: 1) Once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any additional unforeseen physical consequences (egg shell skull- if D inflicts harm on someone that just so happens to have a thin skull an P dies, D is liable).2) As long as the harm suffered by P is of the same general sort that made Ds conduct negligent, it is irrelevant that the harm occurred in the unusual, unforeseeable manner (example: D gives a loaded pistol to X, an 8 year old to carry to P. If X then drops the pistol on Ys foot, thus breaking his foot but also setting the gun off that shoots P, D would be liable. It was foreseeable that P would get shot by giving the gun to X, even if it did not happen in the manner expected. D is not liable to Y though because the gun falling on his foot was not foreseeable.  

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Thin Skull case/ eggshell plaintiff: If injury is foreseeable the extent to the injury is irrelevant - even though way more than anyone would have thought of it doesn’t matter. = D takes his P as he finds them!

Steinhauser v. Hertz CorpF: Girl in the back seat of a car and the car gets hit and she ends up in a mental hospital b/c of accidentP: Says that they were negligent, and caused her injuries.D: Says that it wasn’t the proximate case, unforeseeable nature of injuryH: Court says that he’s liable because if you are under emotional distress from a car accident you can end up in the hospital. Its likely that you’ll be frightened or scared.People are responsible for unforeseeable extents of a foreseeable injury. You take your victims as you get them (thin skull) Rule of Law: Defendants take plaintiffs as they find them – if you get into a car accident with a 14 year old with severe emotional problems, and the accident tips her over the edge, you take the P as you get them…tough luck – it is not unforeseeable – an unforeseeable extent of injury does not create a proximate cause defense. Thin Skull Case/egg shell plaintiff (D takes his P as he finds them)

Rule of Law: A negligent party is responsible for the probable, or reasonably foreseeable, consequences of its negligent act.

Wagon Mound # 1F: There was an oil spill that released oil into the harbor that’s floating on the water. A supervisor for Morts Dock & Engineering Co., Ltd. (P) asked a manager of CalTex Oil Company about the oil, and the manager assured him that the oil was not flammable, but a fire, caused when welding materials fell through the dock into the oil on the water, oil caught fire and both ship and dry dock = destroyed in the fire. Dry Dock Sues. P: Says that it was foreseeable that the oil would catch on fire.D: Says that it’s not foreseeable - Oil not supposed to catch fire bc assured by manager that oil in water does not burn. At the time they did the act they did not know it would burn - was the fact that it would burn foreseeable. H: Court uses DR and says that the fire was unforeseeable, a reasonable person wouldn’t have known that the salt water would burn. This is like Palsgraft (they were negligent but wasn’t foreseeable). D not negligent. Court holds that it wasn’t foreseeable that the water would catch on fire. Though the Defendant was negligent, they didn’t negligently create the risk of fire.

 Wagon Mound Cases: Suit against the dock. WM#1: Ds ships spill oil into the bay. Some of the old adheres to Ps wharf. The oil is then set afire by some molten metal dropped by Ps worker, which then ignited a cotton rag floating on the water. Ps whole dock burns.D argue: (Defense = DR) We were CIF, but not PC. Dual risk. It is foreseeable that we could cause some beach damage with escaping oil, but an explosion of the dock is not foreseeable from us cleaning out our tanks P: (dry dock suing) In trouble. They were doing work on the dock, if they prove foreseeability, they would be contrib neg. But D spilled the oil into the water, so they were negligent.

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H- D wins. D is not liable because the burning of Ps dock was not the foreseeable consequence of Ds oil spill, and thus the oil spill was not the proximate cause of the damage. This is true even though the spilling of oil was the cause in fact of the burning.Rule: They could not foresee that someone would be scraping flaming paint into the oily water that would start a fire, only foresee contaminating beach (Palsgraf)

  

Wagon Mound #2: Same facts above, P was ship owner whose ship was destroyed. P lawyer brought in new evidence was brought in by P that said that spilling oil creates a foreseeable risk that burning will occur. P (ship) did not want to bring this up initially because then P would be contributorily negligent for dropping molten metal in the water. It was a complete defense in those days so they would have lost. P: No Contrib worry, so they introduced expert evidence that danger was reasonably foreseeable by the oil tanker engineer (should know that spilling that amount of oil can cause a fire somehow – CHICKENHAWKS!) Dual Risk Disappears, No PC, so negligent. D: (Defense = DR) : Still stick to DR doctrine but same law can lead to different results bc of fact changes: If you adopt Dual Risk - then the negligent act must be foreseeable. As a result, the dual risk disappears as the spilling of the oil in the water becomes negligent (is an aspect of Ds conduct) as it is was shown to be foreseeable after all. H:While P is contributorily negligent, it does not get D off for the greater harm of spilling oil in the water when they know or should have known it could burn something. (if everyone knows that they could cause fire by scraping paint into oily water, then they would have been held liable for contrib. Neg) P WON

 Both decisions are consistent w/ Palsgraf doctrine because the risks were foreseen. In #1 it was not shown to be foreseeable, and in #2 they showed that it was foreseeable. Remoteness/ Intervening Cause: Not only time, but the policy of risk created.

Major difference between 1 and 2 is change of Plaintiff.

Wagon Mound # 2 F: Same facts as Wagon Mound No. 1. Ship suesH: This time there’s testimony that it’s foreseeable. And the Ship wins.When there is reliable testimony. This is a change in factual proof. The ship wins because the testimony shows that it is foreseeable.Aside: In the dock case, they couldn’t say that they knew that everything would burn, because they would have been contrib. (they were sitting there watching the guys scrap the paint off) People that own the dock are the same people that are overseeing the burning and the paint scraping. They couldn’t prove foreseeability because then they should have foreseen it too Petition of Kinsman Transit CoF: Ship gets tipped sides, floats down a river, creating a dam and causes floodingH: Doesn’t follow dual risk. Though this risk wasn’t necessarily foreseeable, the defendants should have been alert to any possibility of danger. If it is foreseeable that a risk could be created even if the exact risk doesn’t happen, the defendant is still liable 

Generic PC issues – Remoteness, unexpected consequences & Intervening Causes – Polemis – negligent if its foreseeable that anyone could be injured—REMOTENESS—the immediate consequences of the accident are gone and the remaining ones are non-risk related

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consequences (for ex, driving down the road a half an hour later does not cause risks; if he gets a broken leg and he gets out of the cast he is never the same, he may have a scar, but its not risk related to put him at further harm of risk) different but not in a way that causes harm…the boat is still continuing in ways that create danger, with the car the consequences continue, he’s late, but they don’t carry risks of danger.

Passage of timeIntervening causeUnexpected circumstances

Passage of Time / Remote

Safe Harbor – ripples are quieted, out of the harm created by the negligent conduct.Person that is in a parking spot fixing his car after an accidentWoman in the hotel room that catches on fire

Remoteness / Foreseeability – too far, too long agoDynamite Cap case

Intervening Cause: Two kinds of intervening causes:

Dependant (foreseeable from the point of view of the defendant before the accident) Brower – Wagon that gets in accident with the train and the train has guards but he gets robbed

Independent (something outside of the reasonably foreseeable risks)*Negligent Interveners

--Guy ashes on the ground and there’s an oil spill -Defendant is liable, its foreseeable *Intentional Interveners --Watson – guy purposely drops the match on the oil spill -Not liable for criminals

Unexpected Consequences

Danger (injury) invites rescue – if someone is injured by negligence its foreseeable that someone would come to their rescue *Cousin Herbert *Car still in the building after an accident, person is getting it out Emergency service workers don’t count because they assume the risk, its duty

Tow truck drivers aren’t emergency workers, don’t assume the risk

Andrews: negligent risks created dissipate over time and are mixed with other risks that could happen and once they mix it is no longer fair to go back and say that the person who did it or put it in there is responsible. Chain of causation - so many other things happened that it no longer the same. EX: Pond - someone throws rock in pond - water ripples. Round pond so eventually ripples hit shore and it is flat again. But pond is forever changed - bc now there is a rock there. However the immediate effect of all the ripples is gone. Andrews view is that when someone stubs there toe

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on the rock (that was negligently put into pond) and he trips and drowns. Even though you can track it back to the rock thrower now you are just left with the world being different and it is unfair to hold D liable. Other things intervene that we know about or it was so long ago there there must be many intervening things that we don't know about.  Unexpected that two chicken hawks are going to fight but that is not PC defense - metal fence lying by wire bc something could come in the gap - this is not an unforeseeable risk or this is a unexpected foreseeable risk - problem is it is not so easy to tell the difference.

*Just being in a different place is an end to the ripple - risks end (as long as it is a normal place to be)

What is a PC foreseeable event and what is an unexpected foreseeable event.

City of Lincoln HypoF: Two ships crash and neither ship sinks. One is damage and goes off, but eventually sinks because it can only go left and can’t steer out of danger.P: Says that the damage is what caused the ship to sink. No break in the chain, the same damage continued to afflict. The original foreseeable risk caused the injury, even though it was laterD: Says that it’s too remote, it happened well after the accident.H: Says that nothing interfered in between. Though the incident happened later, the original foreseeable risk caused the injury. There was no break in causation.

Change of facts - damage by storm which was not predicted would that change anything? Storm = remote. Remoteness and intervening cause.  Whether or not the intervening cause is an independent intervening cause and therefore D is not liable but if it is a dependent intervening cause D is liable.  Independent from what? = independent form risks created by D (not foreseeable) not in range of risks created by Ds conduct.  Dependent? Chickhawks = something you would not expect but in the range of risks created by Ds conduct.  Independent = criminal intervention.  Car accident and you are physically injured in the car and someone comes along and mugs you and you are physically injured by mugging. Train wreck and as a result of damage to truck thieves come and steal it all. D did not cause risk bc thieves not foreseeable. Thieves can attack anyone anywhere = ubiquitous.

 Central of Georgia Ry. v. PriceF: Railroad stops running, so they put up everyone in a hotel. The hotel catches fire and one of the people that was on the train gets hurt. P: Says that if it wasn’t for the railroad I wouldn’t have been in the hotel, they are the cause.D: Says that it was too remote. The danger of the broken down rail road had passed.

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H: The foreseeable dangers from the negligence had passed, they had safe harbor.Once the foreseeable dangers of the negligence have passed (ripples have stopped) the defendant isn’t liable for subsequent injury. [Are still cause in fact but not proximate cause]Manner and nature aren’t foreseeable, its foreseeable that you could freeze outside or get attacked by a wolf while outside the train, but not that the hotel will catch fire.

Train/Hotel burn hypo: RR hits the back of A's car but A is not hurt. He is stuck in the middle of nowhere so he rents a hotel room. Hotel burns and he is burnt. P: I was stuck in the middle of nowhere b/c of your neg. RR driving. D: no duty. There was an independent intervening cause. Not our fault. The risk has passed. Not in the situation before, but in a different, supposedly safer situation. H: D will not be liable since we do not want D to be liable for everything. It was not foreseeable that hotel would burn in a safe area.

Can in Manhattan HypoF: Plaintiff is driving his car and due to the negligent driving of the Defendant party, he gets hit. The fender is bent and pressing against the wheel. So he pushes the car into a parking spot on the side of the road. He unbends the metal and goes into his trunk to get the spare tire. While be hind the trunk, a car pulling into a spot 2 cars behind him hits the car directly behind him and it smashes into him and breaks his legs. He doesn’t sue that driver (has no money or insurance) he sues the original driver that hit him and caused him to be on the side of the road.P: Foreseeable that I could be harmed from the accident. Still on the side of the road, haven’t cleaned up for the accident.D: This was a remoteness/intervening cause case. The second guy that caused the accident intervened after the dangers from the original accident passed. Anyone could have been hit getting a package out of the trunk on the side of the road, parking in a legal spot isn’t unsafe.H: Foreseeable risks of an accident don’t include being hit by a car while lawfully parked on the street. Otherwise anything negligent that caused you to be parked on the side of the street would be proximate cause.Foreseeable risks of an accident do not include being hit by a car while lawfully parked on the street.

Rule of Law: If a third person intervenes and acts to contribute to the injurious effect of the original negligence, and if such an act ought to have been foreseen, the first wrongdoers will not be excused from liability (INTERVENING CRIMINAL ACTS, IF FORESEEABLE, DO NOT RELIEVE THE ORIGINAL TORTFEASOR FROM LIABILITY)

Brower v. NY Central & H.R.R:F: Railroad hits the vehicle and the valuables are left on road. They get stolen and the driver of the vehicle sues the railroad.P: RR caused the stuff to fall out of the vehicle. Further it was foreseeable because they had guards on the railroad to prevent theft. They should have guarded my stuff too. Defendant was aware of the risk of leaving unprotected property in that area and an independent intervening 3rd

person will not break the chain. Risk perceived is the duty defined -D: Says unforeseeable. H: This was a dependant intervening cause. The railroad knew and guarded against the risk.The court held that a dependant (unforeseeable prior to accident) intervening cause did not eliminate liability, only an independent (foreseeable) intervening cause did.Because the railroad employed detectives to ride their train to protect against theft,

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the court ruled that theft of the items was foreseeable and should have been used to protect the plaintiff’s items. (RR established that it was foreseeable bc they hired detectives)

Change of facts: Train going 1500 miles to FL - at various stations they have hired security (scattered in cities along the way) but there is a desolate stretch in southern GA - accident happened here about 75 miles north of FL border. I:Is P going to win or D going to win on PC?What fact do we need to make risk foreseeable? H: Close to station. They had security bc they foresee thieves - if property was unsecure then it was likely to be removed or stolen. But it has to be right where it happened. = fact that makes it foreseeable.

Rule of Law: A negligent act can give rise to situations that create additional risks and render the wrongdoer liable for injuries that could not be foreseen. (A CHAIN OF EVENTS TRIGGERED BY NEGLIGENCE CAN INCREASE LIABILITY)

Marshall v. Nugent:F: There’s an accident and the car is stalled on the side of the road. Driver comes around the bend (its dark and icy) and doesn’t see the other car until it is too late and gets into an accident.P: Proximate cause, the original negligence caused the accident. Chickenhawks PC: Maybe unforeseeable specific facts (like P being hit by a flying post), but it is foreseeable general event (when D causes P to skid off the road, it is generally foreseeable that some kind of further injury will occur. “Some kind of danger” *D’s risks are not over after act. They last until the event has passed. D: Says they didn’t cause the second accident, their negligent act was done.H: The ripples were still in effect, the accident hadn’t been cleared.The ripples haven’t cleared after an accident when it has not been cleaned up yet.

Accident 1 Car is pulled out of snow bank and drives away. ½ hour later, the car is hit at a train crossing. P sues original D again. P argues: If the D hadn’t been a negligent driver, he wouldn’t have been a ½ hour late and I wouldn’t have been hit by the train. Your neg was the PCD: Not the PC. Remoteness PC: The danger created by the accident no longer existed. The doesn’t make me responsible. “The ripples ended”, the D will always be ½ hour late, but the D should not be responsible after a period of time. There was intervening causes.P argues back: I may have still emotionally been effected and that strain caused the train accident. . .Nothing broke the chain of causation and D is liable b/c the ripples haven’t ended.  Accident 2 - P got in an accident by another driver...Fender smashed against tire - so pulls into parking space at meter on west side of 3rd ave just north of 80th street...second car - there was a meter behind it (car behind it) and he pulled into corner. He is now getting jack out of trunk and standing in between his car and car behind him. Along comes Mary driving in another car heading north - using cell phone and loses focus for a min and smashes into car behind our guy. That car bumps forward and smashes P in between two cars. Interest is not Mary bc she has no money. Now we are trying to get the initial driver to be liable... D: Not PC - not liable bc he got to the parking spot = safe place. Therefore the causation continued but the PC has been severed and the D is not liable.  

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Accident (change of facts) P was in between two cars and he wasn’t looking for stuff in trunk he was a little dizzy from the accident and he was leaning on trunk of car when Mary comes along...P: ripple effect did not subside yet. Argue that he was not in a safe place D: Ripples end when you are in a safe normal place. Foreseeable risks had ended. H: injuries were foreseeable and were the natural and proximate cause of her him being there. Therefore still not a safe place for him - he wouldn’t have been there if he wasn't physically injured. (credible argument - but prob not going to prevail)  

Watson v. Kentucky & Indiana Bridge & R.R (Ky. 1910)F: There’s a gasoline spill from an accident. Something falls into the gas and causes a fire. P: Will say that it was a negligent intervention, it is foreseeable that someone could ash into a gas spill and cause an large fire. D: Will say that it was malicious / intentional, it was an intervening cause and couldn’t predict that someone would purposely set the gas on fire. Criminals should have responsibility and shouldn’t be able to exploit the situation, can’t protect against them.H: Who will win depends on how the match Not responsible for the intentional intervention (of criminals) if the criminal activity is not foreseeable. Are responsible for the negligent actions of an independent intervener.

The foreseeability of criminal intervention is a question of fact Are you in a dangerous neighborhood? Are there a lot of crimes, etc.?

Railroad Catch Point HypoF: Rail road with a lot of tracks, the car come down one track down a hill. The car can be locked (screwed down so it can’t move), there’s also a catch point. Some teens break into the locked car, undo the screw and push the car down the hill and it hits someone.P: Says negligent should have set the catch point or had better security because there have been a lot of break-ins. The kids are a dependant intervening cause because of the break-ins and the thefts. D: Guards were doing what they were supposed to do, wasn’t the guards. And the kid was an independent intervening cause. They were aware of the break-ins but had no indication that it would bet pushed down the hill, all we could foresee was theft or destruction. Further setting the catch point wouldn’t have mattered, if they were determined enough to unlock the car they would have unlocked the breakpoint too. H: Agrees with the defendant.Being negligent doesn’t necessarily mean that the defendant will lose if it can be shown that the negligence wouldn’t have mattered anyways.

Gas station : Oil leak that starts a fire - any difference if someone looks around and thinks no one is watching them and intentionally drops a match or someone is lighting a cigarette and accidently drops it in the puddle of oil.

Foreseeable that if you have flammable stuff all over something might set it afire Clear that pool of gasoline is a dangerous thing bc it could start a fire If fire could be started accidently then why isn't pyro foreseeable Now all of a sudden there have been a lot of fires bc economy is bad and people are

starting insurance fires In case of arson - person : building that burns nature: fire but manner is not foreseeable

(arson is not foreseeable).Is arson foreseeable? Since it has been prevalent bc of insurance fraud (allegedly?)

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* What if it was intentional? Like a pyro drops match and P's car blows up?If an intentional act is caused by a criminal, the act is not foreseeable and P can't sue tanker.

Not responsible for criminal intervention that causes injury. Reason why Pyro is not foreseeable is bc criminals are ubiquitous and it is not foreseeable unless there are facts that show it is foreseeable. (Aforementioned Watson case).

Pyro hypo: D is driving a oil tanker. Turns too fast and gas falls onto the street. A few hours later, a car is driving down the street and spark is created. Blows all up. D: PC. The spark from P’s car is the independent intervening cause that breaks the chain.P: your negligence was the PC and the risk created doesn’t break the chain of causation.

*Higher duty to take affirmative action to care for people in certain circumstancesHotels have an affirmative duty of care

So do landlords and people who own property

Connie Francis HypoF: Woman in a hotel, someone jumped on the roof to get into her balcony and went in her room and raped her. The balcony had no lock. There had been no previous rapes, but there had been thefts where they didn’t know how people would get in. P: Foreseeable due to the fact that there had been thefts this isn’t a big stretch.D: Not foreseeable that someone would jump on the roof and get to the balcony. H: Court says that it is foreseeable and the hotel should have seen the danger of someone in the room alone. Hotels have a higher duty of care and should foresee the vulnerability of someone in their room alone even if no one has been attacked before and there’s only been thefts.

Wagner v. International RyF: Plaintiff gets injured while looking for his cousin who fell out of a railroad car.P: The railroad negligently caused the injury of my cousin and I had to find him.D: The chain of causation was broken, we did not cause the plaintiff’s injury only the cousin.H: Danger invites rescues, the railroad should foresee that the plaintiff would try to save him“Danger (injury) invites rescue” foreseeable consequence rescuers would be in danger & are intervening causes (injured rescue workers cannot sue b/c they are inviting injury by their rescue efforts)

Virden v. Betts and Beer Construction Company (sole PC case) Construction worker hired to fix an angle iron that had fallen from the ceiling – while fixing

he fell off a ladder and sustained injuries P sues contractors (D Betts and Beer Co) who had earlier installed the ceiling claims PC Injury invites rescue... Court says the injury was not foreseeable – this was a routine repair – the injury is too

remote - their negligence was not the PC of Virden's injuries. Doctrine sole PC: D should not be liable even though he did something wrong -

Danger (injury) invites rescue: Rescue doesn’t have to be people If you are still cleaning up a mess after an accident this counts as danger

o If you are still cleaning up the mess then there’s still a need to help

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Foreseeable that will cause injuries that will cause the intervention of people that will try to help Helpers are foreseeable

Hines v. Garrett, 108 S.E. 690, 695 F: Woman is taken beyond her station on a suburban train. The train was supposed to notify her when her stop came up. She walks home a mile and is raped twice (quintessential bad neighborhood)H: It was foreseeable and everyone knows it, she wasn’t put out of harms way.When an event is foreseeable even though the accident is over, you have not removed the danger.

Henderson CaseF: Guy is a rapist / murder, he’s doing public work on a chain gang and he breaks away and rapes a woman. H: It’s foreseeable that if he escapes he’ll rape someone but its not foreseeable that he’ll rape this particular woman. Plus as a policy argument the gov’t benefits from these people working and doesn’t want to be liable for them. Policy says that we don’t the government to be liable for those who escape from chain gangs because they will eventually be liable for those out on parole. Further the specific person in this case was NOT foreseeable, the manner and nature aren’t necessary foreseeable either (not sure that he’ll rape again only a break-in or physical injury is really foreseeable)

Analysis - Rape cases Henderson and Hines Henderson: The D’s company leases convicts for mining and negligently permitted one to escape. He rapes P. D is not liable.Hines: RR takes P one stop further than they should have. She walks back and she is raped. D is liable.Why the inconsistency?

In Henderson, the “person harmed” was NOT foreseeable. It was too unpredictable. Can’t make the D liable for all acts Henderson might commit. That would be ruinous liability.

In Hines, the “person harmed” was foreseeable. RR had a duty to her, it was foreseeable that she would be assaulted in that area. The RR knew the type of area it was and that after dark she would be exposed to risks bc she is vulnerable and in a dangerous area. The type of person here is Key.

Henderson : Iowa about to sell all prisons to private companies. Coal company had a bunch of prisoners who worked. He escaped and raped victim. Coal company being sued. They were negligent in letting him escape. Defense is PC.

In Henderson, the "person harmed" was NOT foreseeable. It was too unpredictable. Can't make D liable for all acts Henderson might commit. That would be ruinous liability. In Hines, the "person harmed" was foreseeable. RR had a duty to her, it was foreseeable that she would be assaulted in that area. The type of person here is Key. Henderson can also be paralleled with police. If someone escapes, cannot put all the blame on them since it would be provide ruinous and endless liability. Woman raped by convict (still confined) employed by coal company. P: claims PC - uses Hines case - its foreseeable he's a rapist. D: it was not foreseeable - too unpredictable. Not direct result of coal company hiring criminal - criminal who escapes and rapes a woman...

 If everyone is foreseeable then NO ONE is foreseeable

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When you think of defenses you want to every defense that you can use. When you say proximate cause you are saying that I have no duty

o A. because you are too remoteo B. intervening cause

I wasn’t negligento This will be decided by the juryo Hope to not get here and that proximate cause will be thrown out before you get to

negligent

Proximate Cause CategoriesSafe Harbor – ripples have quieted

The person still out on the street, fixing the tire (this is better than the woman in the hotel)

Foreseeability / Remoteness Car stuck in the snow, still trying to get the car out and someone else comes out and slips

on the iceo Could be chicken hawks

Remoteness Dynamite Cap, so far away and so long after that lots of stuff much have happened

Foreseeability based on prior conduct Duerr with the match

Foreseeability based on prior conduct Brower – railroad doesn’t protect the goods

Not a defenseDanger (injury) invites rescue

Cousin HerbertAssume the risk

This is a defense if it is a foreseeable intervening cause of an emergency service workero Tow trucks don’t count as emergency worker

Pure Policy Ryan– Fires and making people liable and then broke Mine / Chain Gang worker – not foreseeable against the specific person

Dual Risk Palsgraf Wagon Mound 1, Wagon Mound 2

o Distance of the dual risk so you can apply Palsgraf (or Gorris v. Scott) Must be a conduct that has not negligently created risk, at the same time a

negligently created risk, and the non-negligently created the risk happens Single action creates both a negligent and non-negligent risk

V. AFFIRMATIVE DUTIES:

Affirmative Duties 

General Rule: No duty of Affirmative Action. There is no affirmative duty to act, even of aware of the risk and have the capacity to help.

 Duty to Rescue: 

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 Expansion of common law - it used to be that you had NO DUTY unless you caused the injury now you have to under these duties:  Affirmative Duties to act if : SCRAP 1. Statute 2. Contract3. Relationship 4. Assume the duty5. Wrongful Peril caused by your actions Exceptions to No Affirmative Duty

1. Statute 2. Contract 3. Relationship 4. Voluntary assume the Duty 5. Wrongful Perils is caused by your actions

1. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking, a moral obligation only, not recognized or enforced by law.

2. Strict liability would narrow the need for creating any fresh duty in tort to take affirmative care, given the prior dangerous situation.

3. If an actor knows or has reason to know that he has caused another bodily harm, the actor is under a duty to exercise reasonable care to prevent further harm.

Nonfeasance – don’t do anything (just watch kid drown)Malfeasances (same as misfeasance) – do something to help but it causes injury

Yania v. Bigan F: D urged P to jump into a well which he did and died by drowning. D did nothing to help P when he was in there. P: You have a reasonable duty to take steps to save another person.D: No legal duty to rescue unless you're legally responsible for placing that person in danger. P voluntarily placed himself in that position of danger & is alone responsible. P argues: The child B relied on the statement that A is a good swimmer. This MAY create an affirmative duty of action. D argues: No duty to act. No violation of duty you don't owe.

Waterfall HypoF: Dangerous water fall. A college kid jumps in after his friends tell him not to. He doesn’t come up so his 2 friends jump in after him. All three die in the water.No duty to rescue because many people who can’t rescue put themselves in peril.

Gratuitous Undertakings: Assume the duty : Gratuitous undertaking and now you are liable when you otherwise would not have had the duty to help (good Samaritan)

Reasons Why There is No Duty to Rescue People don’t know when they can or cannot help You can cause more harm than good

o i.e. moving an injured person

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Officious intermeddlero i.e. interfering when you think someone is getting attacked and it’s a movie set

Doctor Assisting in an Accident Hypo:F: Doctor sees an accident. Can he drive by or must he help?Doctors don’t have a duty to assist when they are not on duty because they are liable if something goes wrong (for ineptly helping) (they probably don’t have their equipment, and it’s not unreasonable that they will cause harm.

Good Samaritan Statutes Not a lot of protection Not in all jurisdictions

Duty to Rescue Exists in Europe Universal medical care & damages are likely to be more modest

Reciprocal Risks Shouldn’t recover millions if you have an injury But you can be on the government dime for life Liability and financial responsibility go hand and hand in law making

Zelenko v. Gimbel Bros.F: Guy gets sick in the store, the defendant puts him in a room. They leave him in the room and he gets worse and diesWhen you assume the duty you to help and you negligently cause additional injuries or prevent the person from receiving adequate help you are liable.

By putting him in back room - they eliminated the possibility of others helping. Not completely clear if you start to help and then stop but your action did not deprive the person of assistance by anyone else that you would be allowed to stop. The problem is that this is not an action that is favored. Even if you are not leaving him any worse off - you still might be preventing him from getting help...

Helping Someone on the Side of the Road HypoF: Pick up a guy on the side of the road, realize he’s bleeding and put him backP: He robbed me of the chance of getting helpD: Not negligent because I put him back in the same position and didn’t cause any additional injuries.H: Can’t prove that you put him back in the same position.If you assume the duty to help, you have the obligation to complete the assistance because if you do not you are taking the chance of rescue away from the person.

Montgomery v. National Convoy & Trucking CoF: Truck stalls on an icy road without acting wrongly. They put out flares but not out far enough. A car comes around and gets into an accident. Have a duty to reasonably prevent injury. Have a duty to reasonably warn (or to avoid), don’t actually have to warn but have to make a reasonable effort.

Moch v. RensselearF: Contract to provide water. While they were fixing the water a house caught on fire and burnt down.

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H: Courts say that there is no duty to a third party beneficiary. There’s only a duty of affirmative action. This is a policy argument to keep the water companies in businessNo duty to third party beneficiary of a water contract in NY (some other states have said there’s a duty)

Prior to the Restatement You didn’t have to do anything if you didn’t wrongly create the injury

Old Affirmative Duty System – Didn’t have to warn because you weren’t negligent This was inefficient because negligence is decided by a jury and the jury doesn’t hear the

case until years after the incident. o Obligations depend on a jury finding years later

 New HYPO (illustrates assumption of duty): P is drowning and D goes in to save them. D then turns around and goes back.P argues: Voluntary Assumption of a duty. When you went out to save me, others saw this and did not think they had to help. I was deprived of an opportunity to be rescued. D argue: I was cramping up and I could not save you.H- once D voluntarily begins, even if he was under no obligation to do so, D must proceed with reasonable care.

Sick guy walks home in the Rain HypoF: P feels sick and works for a very considerate employer, its dark and stormy so the boss drives him home so he doesn’t have to take the bus. About 3 blocks from the house there’s a huge puddle that the P can’t get through so the boss lets him out to walk. He gets extremely sick from walking the distance in the rain and cold. P: Gratuitous under taking, once you assist someone you have to duty to complete it non-negligently. D: No duty to assist and was not negligent. H: Must act reasonably to not cause injury. In a gratuitous undertaking once you assist someone you have the duty to complete it non-negligently and not expose to additional injury.

Robbery Hypo P asks D to lock his door. D forgets and all of Ps stuff gets stolen.D- I have no affirmative duty.P- but you promised.Here there is no consideration so it is merely gratuitous. What if P asked while he was hanging out with D and 10 others? Here we might say P reasonably relied and on promissory estoppel grounds, D would be liable. Accident Hypo: P is in an accident and D stops to help- he puts a towel under his head and goes out to get help. As he is searching, wife calls and tells him to come to dinner.P- you dick, you totally forgot about me, you are liable for my injuries after you left since they were exacerbated by me waiting there. You voluntarily assumed the duty to help once you stopped to help. I then reasonably relied to my detriment. Moreover, others might not have helped after seeing you helping me.H- D is liable here, once he starts he has to continue helping in a reasonable way.   Coggs v. Bernard: Deals with a contract and promissory estoppel.F:  Bernard (D) agreed to move some casks of brandy for Coggs (P). D did not receive any kind of payment for moving the casks.  Due to the negligence of D, some of the casks split open and the brandy was lost.

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Black Letter Law:  A promise undertaken, even if done without consideration, gives rise to a duty to perform the promise without negligence (EVEN IN THE ABSENCE OF DUTY, NEGLIGENCE MAY BE ACTIONABLE)

Erie Railroad v. StewartF:  Stewart (P) was injured when a truck in which he was riding was struck by a train operated by Erie R.R. (D) at an unguarded railroad crossing.  Stewart (P) knew that Erie R.R. (D) normally posted a guard at that crossing.Black Letter Law:  A party who voluntarily undertakes safety precautions that are relied upon by others has the duty to continue the precautions, or to give notice that the precautions have been discontinued.  (A GRATUITOUS ACT, ONCE BEGUN, MUST BE COMPLETED).   Nonfeasance/Misfeasance:  Nonfeasance: when D has an affirmative duty to help, aid, or assist even though the harm did not come from D. (not doing anything)Misfeasance: D has an affirmative duty to act, they take action, but their action is negligent/improper. (doing something) Montgomery: Misfeasance Case. D's truck stalls on icy road. It wasn't their fault. D puts out flares right near the truck. P came over the hill but by the time they saw the flares, it was too late to stop and they crashed. D argues: We owed a duty and we fulfilled it; we put out flares. We weren't Negligent. P argues: There was an affirmative duty to act because your truck was blocking the road, you assumed the duty by putting out flares, but you put them in a negligent place and failed to neutralize the danger you created. H- D is liable in these situations. D would have to put the flares where people can see them and avoid danger. Weird thing though is that if D put out no flares, he would not be liable as long as he took reasonable care by trying to push his car or something, but once he assumed a duty, he had to then take reasonable care, which he did not. Moch Company v. Rensselaer Water CompanyFacts: Rensselear Water (D) agreed to supply water to a city, but failed to supply water to fight a fire that destroyed a building owned by Moch Co. (P).D was a water company which contracted to supply water to city. Ps' warehouse was destroyed by fire b/c no water was supplied to put out the water. P sues D. P: One who assumes the duty to act, even though gratuitously, has an affirmative duty to act. D negligently did not perform their K and should be liable. D: P is not a third party beneficiary as the agreement was b/t D and the city. Also, no duty to act b/c it acted gratuitously. Theory of Ruinous Liability. Cannot hold D liable for all when P had a reciprocal risk to get fire insurance. H- this case falls under nonfeasance, as opposed to misfeasance. Court rules for D, as a holding for P would be ruinous to D and we cannot hold D liable to everything when P had reciprocal risk to get insurance.Black Letter Law: Negligence in the performance of a contract will not result in liability if the negligence results only in the denial of a benefit, and not an active harm. (NEGLIGENT PERFORMANCE OF A CONTRACT RESULTS IN NEGLIGENCE LIABILITY ONLY FOR “ACTIVE HARM”)

 Other times D has affirmative duty: 

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Anyone who maintains business premises must furnish warning and assistance to a business visitor, regardless of the source of the danger or harm.

When Ds own conduct caused Ps injury. D and victim as co-venturers: if two friends went camping or jogging, they might have

affirmative duties to each other. D having a duty to control 3rd persons and not exercising that control: Example, D a

storekeeper, fails to take action when X, and obviously deranged man, comes into the store wielding a knife. P, a patron, is stabbed. D would probably be liable for not taking action.

Would be aforementioned assumption of duty. Once a D starts to help he has to finish otherwise, it sets him up big time since all potential Ps can cry out promissory estoppel as they reasonably relied to their detriment

 

Standard of care owed by owners and occupiers of land  Duty of possessor to those off the premise Natural conditions -- No duty to protect one outside the premises Artificial conditions -- No duty to protect except: Unreasonable dangerous conditions created by the landowner. Duty to protect passersby - landowner has duty to take due precautions to protect persons passing by form dangerous conditions.Conduct of persons on property -- Owner has duty to exercise reasonable care with is own activities and to control conduct of others on this property to avoid unreasonable risk of harm.  Affirmative Duties – Owners and occupiers of land:

Invitee – business guests (there for the benefit of the owner)Duty to inspect (keep the premises safe)Policy – making money off of them

Don’t win solely because they are injured, need to prove wrongful conduct or negligence, there must be a violation of a standard of care.

Licensee – social guests: relatives, visitors, etc.Duty to sufficiently (adequately) warnPolicy –same duty as the owner (owner gets no benefit)

Trespasser – have no permissionGenerally No Duty to Trespassers Policy – they are criminals

Known Trespasser – Are a trespasser but know they are thereHave a duty to warn, like a license

Attractive Nuisance 1. Must be an artificial condition2. And they have to be lured onto the propertyReason that categories are bad is because they are like special duties and its not a good idea to have special duties unless you know enough about the situation

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 Duty owed to Trespasser:

Generally owners do not owe any duty to trespassers. The trespasser is entitled to “humane treatment” but not the ordinary duty of care. You cannot intentionally cause injury. You do not have to make your premises safe for unexpected intruders.

Attractive Nuisance Doctrine the owner owes a duty of reasonable care to a trespassing child if all of these

requirements are met: the owner knows that the area is one where children are likely to trespass the owner has a reason to know that the condition poses an unreasonable risk of

serious injury or death to trespassing children the owner fails to use reasonable care to eliminate the danger

(a) The court is less likely to find liability where the condition is a natural one than where it is artificial because the idea is that a natural pond or something a kid who grows up in the area will know about

Fireman’s Doctrine A fireman, police officer, etc. will not have a cause of action against a homeowner for an

injury occurred in the course of their job, provided the injury occurred in a manner reasonably foreseeable in the normal course of their duty.

Three Categories of Relationships: (eliminated in NY-NY requires ordinary standard of care to everyone; CA has merged invitees and licensees under the invitee duty)

1. Trespasser - No general dutyExceptions:

Constant trespass on limited area Known trespass

o Know or should have known that they were there.o Owe a duty to them.o Legal effect is that these trespassers are treated as licensees.

Trespassing children (owner is more liable than to regular trespassers because of the attractive nuisance doctrine)

o Applies to a non-natural condition.o It must be unreasonably dangerous to a child.o It must have lured them onto the property of their own volition.o The child must be unaware of the danger.o The basic question is whether the owner knew or should have known of

the danger it presented to these children.

2 conditions that make D not liable:

If kid is lured onto the land by someone telling him about it and not because of the attractive nuisance then that is an independent intervening cause and breaks Ds liability.

Pond/trees or natural risks or conditions of the property don't make D liable. Kids should know the risk. Pools are different.

2. Licensees : Social guests or people who have permission (express or implied) to enter the property. Duty to warn of known dangers.

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3. Invitees: Business guests; Person invited as a member of the public; invited onto the premises Duty not to be negligent and protect from known and unknown dangers. Reasonable efforts to inspect are required.

 P must show:

There is a dangerous condition present on the land which the owner is aware. The owner Knows/ should know that Young people frequent the vicinity. The condition is dangerous because of child's' inability to appreciate risk. The expense of remedying the sit. is slight compared w/ the magnit. of the risk. B <PL

CA has 2 categories

NY has one category with the same duty to everyone including trespassers — The condition exposes people to a risk of getting hurt and a criminal should not be excluded from the protected class. P argues that it could have been someone else; the D argues that he may have had planned to have them fixed next week or made efforts to warn everyone who comes in—it becomes an issue of fact.

 HYPO: Someone goes into office building (this was before there was hardcore security) and go to the candy store - if you walk out back door of lobby and go out an airshaft and on one side there is a mail shoot - one day P goes into lobby and goes outdoor of lobby to mail something and a brick falls on his head - D says he is trespassing - P says I'm invited in this space to do business - I'm an invitee - didn’t know about dangerous brick and D has duty to inspect.  Guilford v. Yale: P was in Yale when he went outside to pee, but he falls and gets hurt. D- I owe you shit because you are a licensee.P- wrong bitch- I am an invitee because you are soliciting money from me, therefore you are liable for not asserting a reasonable inspection to find hidden dangers or at least give me a warning. You invited me to give money to the school as an alumni Mother in law HYPO: Mother in law living with you - you left briefcase with papers in it - she cant find it and you think it might be in basement - while going down into basement she falls and trips on a step nobody knew about. She is clearly not a trespasser - normally bc she lives there she is a licensee (like if she was doing the laundry), but bc she was doing it for him and his business purposes she is an invitee. P - she wouldn’t have gone down to basement but for D needing basement papers therefore is an invitee  Rowland v. Christian (California court): P entered Ds apartment upon Ds invitation. While using the bathroom, a fixture broke and severed tendons on Ps hand. There is a generalized duty to keep your property safe for those that you invite on it. I: The issue here is whether P is a licensee or invitee. If P was a licensee, D did not have to inspect for unknown dangers. If P was an invitee, D would be liable.H- court said that the distinction between licensee and invitee is too complex and has no basis for policy. You owe a duty of reasonable care to everyone and thus would be liable.Dissent: social guests ought to take the premises as they find them. **Becomes hard to tell if someone is a guest (invitee) or licensee and especially hard if someone is coming on your property to profit from you. So categories don't really conform to the way people actually live.  Path on Property Hypo

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F: Path in your yard that people cut through. You build an irrigation ditch and someone trips and gets hurt.P: We weren’t thrown off the land, the owner knew we were there and has never stopped usD: They were trespassersH: Known trespassersHave a duty to known trespassers, don’t have to know that they were there at that moment, but have to reasonably know they could be there. Reasonable person knows or should know the trespassers could be there. Have to warn them of unreasonable dangers.

Shooting Trespassers HypoF: People trampling on the property, so guy shoots the trespasser.P: Says can’t shoot people, can’t intentionally cause injuryD: Says no duty to trespasserH: Can’t shoot people who trespass on your landNo duty to trespassers, but cannot intentionally cause injury.

Known trespasser Idea behind is if the owner is affirmatively aware that trespassers will be there, you can’t

say that you know they won’t be there

Path on Property Hypo 2 F: Still a path on the grass so the defendant knows that people are cutting through. She puts up a fence and it gets torn down. She puts up another fence and again it gets torn down. She puts up a third fence and then digs an irrigation ditch. Someone climbs over the fence and gets hurt.P: Known trespasser she knows or should have know the fence wouldn’t stop peopleD: TrespassersH: She knows that people are tearing down the fence and climbing over it. She would have to wait until they stopped before saying that they aren’t known trespassers anymore.Even if you try to prevent trespassers, if you know or should know that the barrier won’t stop them, you are still liable to known trespassers. Have to wait until the trespassing stopped

Kids are a special case They are already treated as a reasonable kid of their age Children tend to trespass

o They are not likely to prevent the same risk as a stereo type trespasser (aren’t typically up to no good)

o Not there all the time Sometimes they are there and sometimes they aren’t there

Sioux City & Pacific R.R. v. Stout, 84 U.S. 657, 661 (1873)F: Turntable - Kids were standing on it, playing on it (it moves slowly and turns), Get caught and crushed, doesn’t die but is hurt.P: Known trespasser.D: RR says trespasserH: The turntable for the railroad isn’t unreasonably dangerous. But the defendant knew that kids could be there. It was an artificial condition, kids like to play on it, it has dangers that the kids might not understand and it lures them on to the property.Attractive Nuisance: Only applies to kids, must be an artificial condition of the property and must lure them onto the property.

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Attractive Nuisance doctrine Only applies to kids 1. Must be an artificial condition

o Because presumably kinds know the danger of natural damageso For example if you have ocean front property, the ocean isn’t an attractive nuisance

2. And they have to be lured onto the property Attractive Nuisances in some areas might not be in other

o Pile of sand at the beach isn’t an attractive nuisanceo But a pile of sand in a construction site would be an attractive nuisance

Sulfuric Acid HypoF: 2 kids walking in the woods, well away from the road. They find an old factory and a pool. They jump into the pool and it turns out to be sulfuric acidP: Attractive nuisanceD: Didn’t lure them onto the propertyAttractive Nuisance must lure onto the property.

Big Tree HypoF: 11 year old, walking down a road in a surb/rural area, cuts through the property to get to his friends house. Sees a huge tree, climbs up it and falls down getting hurt.P: Says that the defendant had a duty to warn himD: Says that 1. Didn’t lure him on, 2. Natural condition of the propertyDefendant wins if the condition didn’t lure the child on the property or if it is not artificial.

Falling Stairs Hypo 1F: A Invitee (business guest) is in a house and the stairs fall on him.Only liable to a invitee (business guest) if wrongful conduct or neglect caused the injury. Must be a violation of the standard of care. Invitees don’t win solely because they are injured must prove wrongful conduct or negligence.

Falling Stairs Hypo 2 F: A licensee falls through the stairs but he is warned.P: Inadequate warningD: The duty of care is to take reasonable care to protect him (knew of the danger so don’t have to deal with inspecting) so the reasonable care is warning himThe duty to a license (guest) is not just to warn, but to adequately warn.

Rowland v. ChristianF: Guest cuts his hand on a faucet.P: Says he was a guest, only had the duty to warnD: Says that had the duty to inspectCourt abolishes the invitee / licensee distinction in California.

California Abolishing the distinction between licensees and invitees Permitted entrants and trespassers

o Permitted entrants were owed a duty of care depending on the circumstances Still no duty to trespassers

Some jurisdictions (i.e. NY)

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Abolished all categories Owe duty of car to every depending on the circumstances

Burglar / Roller stake HypoF: Burglar goes through a second floor window, slips on roller skate and hits headP: Duty to all entrantsD: Roller skate is safe under a second floor window. In NY, even if someone was a trespasser, would have no duty if the risk wasn’t negligent (i.e. roller skate under a 2ndfloor window) – factual finding for the jury.

Burglar / Roller Skate Hypo 2F: Burglar enters the building and exits through the back stairway and the stairway collapses.P: Still owe a duty of care because it could have happened to someone else, it was incidental that I was a theft. D: Not reasonably foreseeable that a theft would enter at midnight and fall through the stairsFactual finding for the jury, likely to weigh in the favor of the thief because of insurance

Criminals and duty of care to trespassers This leads to a lot of criminals getting hurt and jury verdicts in favor of the criminal

o Won’t cost the homeowner anything because they have insurance Criminals don’t assume a risk of permanent injury when rob

o Thief is not assuming a risk if they don’t know the risk existso Only assuming the risk of jail time

Criminal activity is not a element of contributory negligent. Thieves are not negligent simply because they are thieves

REMEMBER: NY a duty of reasonable care to everyone Degree of foreseeablity that the particular plaintiff is going to be injured, is the thing that

leads to the amount of duty that you owe The less foreseeable that that person would be there or that a person would be there in a

more legitimate way, this lessens the duty Standards is whether the thief is one of a group of reasonable foreseeable entrants

(becomes a chicken hawk kind of case)

In California There is no duty to trespassers

If not told where we are on an exam, the default is Nassau county

Pridgen v. Boston Housing AuthorityKid that was hurt in the elevator shaft

Want the system to give them some compensation because the property did something wrong

Ward v. K-Mart Corp Guy walks into a pole outside of the K-mart building that was in a dangerous position and

he couldn’t see it walking out of the store carrying a large object

Affirmative Duties – Special Relations

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Special Relations Sometimes defendants should have greater duty to protect others than the normal duty

(reasonable care) because the normal duty of reasonable care also comes with no duty of affirmative action

The relationship between P and D, that the D knows that P is dependent on D, for certain kinds of support or protection

o Since the D knows this, its not inappropriate to make them reasonable for providing it

Sometimes have the duty of affirmative care to protect from a third party, it depends on the relationships

o If a person comes into a store with a knife the store owner likely has the duty to protect the patrons

Landlords have the duty to protect tenants when the facts show there’s reason to know there may be crime in the area

o Can’t be a resident of the building

Special Duties/Relationships – Rule of Laws - Certain (Special) relationships create an affirmative duty of care to others (this includes a duty to warn).  Duty is to provide reasonable care (and to warn) and the reasonable care depends on the situation. In an apartment building attack, burden is on the plaintiff to show that 1. there was negligence that allowed the person to enter (broken buzzer, etc.); 2. That the person wasn’t a tenant or a guest of a tenant.  Doctor’s duties in special relationships: Doctor owes a duty to a third party in danger due to the relationship to the patient, only have a duty if the threat of harm is reasonable (i.e. quarantine cases or psych cases).

Examples of people with affirmative duties due to special relationships Hotel owners Common carriers (MTA, RR, airline) Stage coach driver in 1880 Prison guards when people escape

o Risk perceived is the duty defined Schools have duty to protect students from harm (i.e. rapes) with sufficient security

NYC Transit Cop Hypo 1:F: Transit Cop in NYC sees a guy slumped on the floor, intoxicated. Cop helps him up and out of the station. Cop goes back to work and the guy falls down the stairs. The guy sues the cop (and therefore the Transit Authority, because of master / servant)P: Cop took gratuitous undertaking to help himUndertake a gratuitous undertaking and you need to ensure that the person is completely out of harms way.

NYC Transit Cop Hypo 2:

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F: Transit cop removes someone again and same thing happens, but this time the drunk guy was in a car. The transit cop has a special duty to passengers on the train.

Trolley and Strikers Hypo:F: Trolley takes a guy through an area where there’s a strike, the strikers jump on the trolley and beat him upP: Says the ticket collector and operator didn’t do anything to protect them and therefore they are liable because they have an affirmative duty of care. D: Says that he couldn’t do anything because of the force the strikers usedReasonable care depends on the nature of the situation even when its an affirmative duty due to a special relationship.

Interracial Couple Bus Trip Hypo:F: In 1961, appears to be an interracial couple (actually aren’t interracial because woman just looks really light. Going north from Florida and stop in Georgia. Some guys that are talking to the bus driver get on the bus and beat up the male because they think he’s a black man with a white woman. P: Bus driver didn’t’ take any action. Also the tour operator didn’t warn them of the danger.D: H: Had a duty of affirmative care, so the thugs beating him up don’t break the chain of causationSpecial relation duties can include the duty to warn.

Apartment Attack HypoF: Woman gets on an elevator in a really large apt building in upper Manhattan . Man gets on and sexually assaults her, she doesn’t know him and doesn’t recognize him.P: Says that there was negligence in the security that allowed the guy to enterD: Says he was a tenant or a guest of a tenant.H: Depends on who the guy wasIn an apartment building attack, burden is on the plaintiff to show that 1. there was negligence that allowed the person to enter (broken buzzer, etc.); 2. That the person wasn’t a tenant or a guest of a tenant.

Kline v. 1500 Massachusetts Ave Apartment Corp.:F: Woman gets attacked in her apartment building. There’s declining security. And there was an attack before. Prevention of attacks in hallways and common areas is in the control of the landlord, the tenant can do nothing to make it better, thus the landlord is liable if there is a history of this type of risk (landlord has reason to know of the crime).

Level of security depends on the area the hotel/motel is in Hotels generally need less security because you go through the lobby The more notice the more duty

Wassell v. AdamsF: Woman is in a hotel and she opened the door to her attacker (thought it was her fiancé)P: Says that the hotel had the duty to warn her. Hotel didn’t have a duty to warn because any reasonable person knows not to open their doors to a stranger.

Tarasoff v. Regents of University of California

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F: Patient sees doctor a few times. Then the patient kills his ex-girlfriend. Ex-girlfriend never knew the doctor. P: 1. Failure to physically secure the patient and 2. failure to warnD: 1. I didn’t have a duty. 2. I can’t tell because of patient confidentiality. Further tried to confine the guy but the police didn’t think he needed to be confined. Doctor owes a duty to a third party in danger due to the relationship to the patient if he reasonably believes that the patient will cause the harm. [Would look at facts, the records etc. to see if the doctor should have reasonably believed the threats of harm. ]

Doctor’s duties in special relationships Doctor owes a duty to a third party in danger due to the relationship to the patient Only have a duty if the threat of harm is reasonable This comes from quarantine cases

o Have a duty to quarantine when patient has a contagious diseaseo Also if a suicidal person jumps out a window of a psych hospital, the hospital would

be liable for failing to secure.

Lawyer’s duties in special relationships If you know your client is about to rob a bank, you have an obligation to tell (this is a

future action)o If he tells you that he did (already) rob a bank, you can’t tell anyone

Estates of Morgan v. Fairfield Family Counseling Center, FFCC (Ohio 1977)F: Patient visits a doctor. He takes him off medication and tells him to come back if there’s a problem. He never comes back and 6 months later kills someoneOnce a person starts counseling the doctor is taking charge of the person.

In Virginia, as well as in some other jurisdictions They don’t follow the holding in Estates of Morgan

Emotional Distress

Negligent Infliction Intentional Infliction

Emotional Distress - Rule of Law:

Negligent Infliction of Emotional Harm Zone of Danger (NY) – 1. Close enough that you could have been the one injured & 2. Need to be a relative Dillon Rule (California) – 1. Need to see it happen & 2. Need to be a close relative & 3. Needs to be foreseeable that the relative would be there Intentional Infliction of Emotional Harm For intentional infliction of emotional harm need 1. Emotional Distress and 2. Extreme and Outrageous Conduct.

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Negligent Infliction of Emotional Harm

2 Key problems of negligent infliction of emotional harm 1. How do you know anything happened? 2. What do you tell the defendant before he acts to avoid creating emotional harm?

Historically Couldn’t collect for emotional harm unless something else serious happens (i.e. had your

leg cut off) because it was believed that serious injuries had emotional consequences Compensated pain and suffering Historically needed contact (even if it was just a cinder) Physical manifestation – this used to be part of the emotional harm (needed an ulcer,

miscarriage (spontaneous abortion), etc.). needed to have a physical manifestation of the emotional harm

o No longer need this

Two Approaches Negligent Infliction of Emotional HarmZone of Danger (NY)

Person needs to believe they could reasonably be hurt and needs to be a relative Followed in NY

Dillon Rule (California) Need to see it happen and be a relative Followed in California

These approaches are virtually identical, they limit the liability to people who are there

What do you tell a defendant in negligent infliction? You tell them not to be negligent, don’t create risk of negligent physical harm Limit liability on the theory that you still can’t prove the emotional harm, but limit the

number of people who can sue that were either in the zone of danger or were close relatives witnessing (Zone of danger or Dillon)

Tell defendant not to be negligent and let the limited category of people collect

Ski Lift HypoF: Woman skiing was stuck on chair liftCourt ruled that you didn’t need a contract and could sue for emotional harm if stuck on a chairlift.

Crossing Street (Zone of Danger – NY) Fact PatternF: Mom and daughter walking together and are 2 feet apart, if daughter is hit mom is in the danger zone. If she’s 10 feet away or on the sidewalk not in the zone of dangerAlso if the car hits a garbage can and the can almost hits the mom she’s in the zone of danger, but if the garbage can goes the other way, can’t argue that the can could have hit her

Crossing Street (Dillon – California) Fact PatternF: Mom’s on the side walk watching and the daughter gets hit, mom can recover. But if it was the live in nanny that had been there for 10 years, she couldn’t recover. Could be safely in the house and see from a window. More liberal than NY.

Mall Parking Lot Hypo

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F: Defendant hits a 16 year old in a mall parking lot. Dad sues because he saw the accident from the car that the kid was running to. In California – If the defendant reasonably can foresee (reasonably know or should know) that the parents or close relative will be around he’s liable (classic example is a school bus stop). Here the kids can’t get to the mall by themselves.In NY – No recovery wasn’t in the zone of danger.

Garage Repair Shop HypoF: Dad is picking up his car at the repair shop and brings his 11 year old son. Guy runs over the boy’s foot, dad doesn’t see it but hears him scream. Negligent in not looking. NY – Zone of Danger: Can’t recover if he was 20 feet away, but if he was 3 feet away with his back turned he was in the zone of danger.California – Dillon: He’s a close relative and saw it happen. And the defendant should know that adults would bring their kids to pick up their cars.

STD Lab Test HypoF: Wife goes to the OBGYN for a check up. The lab then calls and says she has an STD. Husband gets mad, says she’s sleeping around and by the time they figure out it’s a mistake they are divorced. Husband suesP: Husband says negligent infliction of emotional harm. D: Not negligentForeseeable that the husband would be someone reasonably affected by a STD (zone of danger in an indirect way)

Elevator HypoF: 11th floor in a building. Playing ball, the elevator door opened and the kid goes in elevator and there’s no elevator thereZone of Danger (NY): Everyone heading towards the elevator was in the zone of danger, if he wasn’t heading towards the elevator he probably wasn’t in the zone of danger.

Tricycle HypoF: Mom is in the kitchen on the 3rd floor apart driveway is outside kitchen window. She hears a crunch and sees her son’s tricycle crushed and freaks. But the kid was in the back and wasn’t hurt or anywhere hear the accident.In NY she can’t recover not within the zone of dangerDillon: Its foreseeable that the mom would be watching out of the window (but she doesn’t see it happen, this is the reason you have to see in California to limit liability). Also its not foreseeable that if you hit a bike you’ll emotionally distress people (not the proximate cause of the emotional harm)

Funeral HypoF: Car hits the horse drawn hurts and the body falls out.The court said that there wasn’t a hard and fast rule about zone of danger. It said that essentially if you smash into a hearse and the body is thrown onto the street, you have to know that the relatives will be distressed and you know that relatives are there.

Intentional Infliction of Emotional Harm

Intentional infliction of emotional harm is now its own separate tort Outrageous behavior with the intent to cause emotional harm and you cause serious

(severe) emotional harmo Severe emotional distress

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o This is the new tort that didn’t exist before 1. We have decided that we are able to determine who is truly emotionally distressed and

who isn’t 2. There is something identifiable (extremely outrageous) conduct that is so different in

degreeo Apart from its consequenceso Would be extremely outrageous even if no one was distressed about it

To be extreme and outrageous behavior and not a joke you need: Where’s the line between Emotional distress

o Depends on the end result, if an obnoxious person runs into someone emotionally fragile it could end in emotional distress

Extreme and outrageous conducto Depends on judge / jury

This solves the problem of being able to sue for emotional distress But people will get compensated if they are emotionally fragile

o And also people who are good at faking it get compensated

Criminal Assault Intent (purpose) to commit battery Its putting someone in the fear of a battery Has to be offensive conduct, but any conduct not consented to is offensive In tort we understand that if someone swings and misses narrowly you can still have

emotional harmo One reason to compensate is to prevent retaliation

False imprisonment Is a dignitory tort No physical harm Protect emotional state

False Imprisonment – Rule of law - Accidental False Imprisonment: cannot sue for accidental false imprisonment because it involves at least knowledge.  Negligent False Imprisonment: can sue for negligent infliction of emotional harm, because of physical fear of the dark, etc. Also, you are in the zone of danger of the trauma of being locked up. Intentional False Imprisonment: can sue for intentional infliction of emotional harm.

Battery (just contact) requires 1. Intentional

o Not a purposeful act of domination, and the reasonable person should understand that there’s no insult or loss of dignity

2. Express and Implied consento Consent in this case by consenting to the probable consequence that someone

bumps into you

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o In neither case is there a loss of dignity

Dignitary torts Considered to be like assault, even though they were not hitting you (striking the French

ambassador’s cane)

What do you tell a defendant in intentional infliction? Starts with a group of torts: trespassing, mistreating dead bodies, assault (not actually

hitting someone but making them think that you would), false imprisonmento Tell someone not to swing at someone, if you hit them they can sue you if you miss

they can sue you tooo These are cases where it is clear why people will be upset

Damages in a case (like a guy with a “dead” hand on someone’s butt) Intrusion into protected area of privacy Emotional damages For intentional torts you can collect both compensatory and punitive damages (smart

money, as in you are smart enough to sue when nothing happened to you) If someone has a hand on them in the subway, can’t really say that you aren’t going to

ever ride the subway again, but there isn’t a lot to compensate for so you can get punitive damages as well

Can’t get punitive damages in negligence, need to show outrageous conduct, and intentional tort is outrageous

Body on the Front Porch HypoF: Uncle dies and goes to the morgue, you don’t pay the bill. Then 6 months later grandpa dies and they say they won’t bury him until both bills are paid. You don’t pay the bill and they put the body on the porch swing because you haven’t paid for services.Law says that the mistreatment of dead bodies creates the probability that relatives will be emotionally distressed

False claim of naked in front of men Hypo:F: Guy is selling leather goods (saddles, whips, etc.), woman starts to slam the door and he puts his foot in the door and tells her he’ll tell everyone she stands in front of men naked. H: Sue for trespass because now that there’s trespass she can sue for emotional harm.If there’s another tort, then you can sue for emotional harm.

American Law Institute, Restatement (Second) of Torts (1966)§46 Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results form it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

o (a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

o (b) to any other person who is present at the time, if such distress results in bodily harm

(2) is about someone that comes onto the farm and beats up the husband while the wife is watching

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She sues because she’s so upseto The court says “transferred” intent

You intended to battle the guy, but you knew that she was there, so the intent transfers to her

Intent to battery him transfers to an intent to assault her This means that you intend the natural and probable consequences of your

actions

Wilkison v. DowntonF: Case where the wife is told her husband is hurt and to come with pillows

Can’t sue for emotional harmo Must of intended to cause physical harm

Woman and Pixies Hypo (typical case of the intentional infliction)F: Woman gets out of mental hospital obsessed with pixies. People bury a sealed pot and convince her the pixies buried gold and help her find it and make her open it in front of the town. She breaks down and spends the rest of her life in the mental hospital.P: Extreme Emotional harm, intentional inflictionD: Didn’t intend to cause severe harm.H: For a regular person that wasn’t in a mental hospital, then the act wouldn’t have been as cruel. The fact that she was mentally ill is a factor in the outrageous conduct. No doubt that she was distressed because she ended up back in the mental institute. Doesn’t matter that she was mentally ill to begin with because you take your victims as you find them.Outrageous behavior with the intent to cause emotional harm and you do cause serious emotional harm is intentional infliction of emotional harm (needs to be extremely outrageous and still be so even if no one was distressed about it).

Doctor Refuses Care Hypo:F: Kid gets hit a car, they find a local doctor who lets them in, but the doctor doesn’t treat and sends them home. They find a bus and eventually get to the hospital where they find out the kid had a concussion, and the kid is okay a few days later. The extreme emotional harm is the extra worrying on the way to the hospital.This seems to be extreme emotional only because the kid had a concussion

Plane Crash Wrong List Hypo:F: There’s plane crash and Mom calls the airline, saying her daughter was on the plane. The airline says that she wasn’t on the passenger list. And turns out that she was on the plane, even though she wasn’t on the list.This is NEGLIGENT infliction of emotional harm, not intentional.

Debt collectors harass parents Hypo:F: Debt collectors who harass the elderly couple to pay their son’s billH: This is extreme and outrageous, because it was excessive calling, the age of the couple and they didn’t owe the money.

Grocery Store Basement False Imprisonment HypoF: P works for a small grocery store. He’s told to go into the basement to get some stuff up, he goes down there and he’s accidentally locked in until Monday (store closed on Sunday).P: False imprisonment, emotional distressD: Says it wasn’t intentional, and that he wasn’t injured

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Can’t sue for false imprisonment if it is accidental and no harm results. May be able to sue for negligent infliction of emotional harm if P can prove harm.

Woman in the Back Room of the Store HypoF: Woman (employee) was accused of stealing and they put her in a back room for hours. Later that day they fired her. P: False imprisonment and emotional distressD: We were paying her and she wasn’t falsely imprisoned. If you are paying someone to work, you can pay them to sit in a backroom or at a cash register and the backroom isn’t false imprisonment.

If you don’t have the right to arrest someone and you detain them, its false imprisonment (i.e. a store detaining an accused shoplifter).

If the crime was committed then you have the right If you are wrong, then its false imprisonment Police officers get a privilege

o Probable causeo They are allowed to falsely detain someone without having false imprisonment if

they reasonably believe that someone committed the crime Common law prohibits store owners from detaining people Massachusetts has a statute that gives a privilege to the store owner

Coblyn v. Kennedy’s Inc.:F: Massachusetts case where the store owners detain a guy they think was stealing. P: False imprisonment, I didn’t steal it and they found that out. And that they didn’t have reasonable grounds because reasonable grounds means probable cause. D: The statute requires that we have reasonable grounds and we had reasonable grounds and that reasonable grounds means subjective belief (subjectively believed he stole).H: Defendant loses because reasonable means that you have to have a high amount of evidence.Even if there is a statute that says that the store owners can detain accused shoplifters people they still need to have a high amount of evidence because the legislature didn’t intend to give greater authority to store owners and security guards than the police.

Not false imprisonment if you can reasonably escape from the room or if there is no cohesive force to keep you in the room. If you have the option to leave you can’t claim false imprisonment, it also must be intentional.

False imprisonment Has to be intentional Must have cohesive force Can’t be able to leave the room

Assaults Future threat is not an assault, it has to be something that will happen now “I’ll beat you up on Friday” isn’t an assault Need to be put in imminent fear that it will happen

Damages

Damages – Rule of Law

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 Reduce to present worth / Time Value of Money / Discount Rate Theory of Found Money – Willing to give up money that you don’t have yet (but usually regret it later) Rule of 7’s and 10’s (money invested at 10% will double ever 7 years, and money invested at 7% will double every 10 years [compound interest]) Per Diem – Break up into units of time and figure out the worth of moments of time. Don’t pay taxes on compensatory damages, do pay taxes on punitive damages. Collateral Benefits Rule – Benefits that the P gets are not to be used to benefit the defendant (for example if P gets hurt and pays $25 co-pay, he gets the full amount of the medical bills, and double for worker’s comp, etc.). The policy behind this is that the D should not get the benefit of P being cautious and getting insurance.

Subrogation clause – Lots of insurance companies have this now so that if you collect you have to pay them back. Mitigation of damages – don’t need to have surgery if it would be cheaper than the emotional damages, because the Plaintiff isn’t required to take the risk of surgery to mitigate the damages.

Contingent Fee NY have capped attorney fees in certain kinds of cases

o i.e. gets a 1/3 of the first million then after that capped at 10%o The incentive is to get the attorney’s to settle because the additional isn’t worth as

much to them Originally a question of ethics

o Maintenances – giving the client money to liveo Champerty – drum up litigation where there isn’t any

Allows those who couldn’t afford a lawyer to get represented

1/3 seems like an awful lot of money because it doesn’t relate to the amount of work that is done

o Get the 1/3 whether you make 5 phone calls or if you got through trial and appealso This is tolerated because the attorney has to get more money than the billable

hourly rate because some of them aren’t going to win How come 1/3?

o Usually its after that the client’s gripe about the feeo Attorney is taking all the risk

Theory of “Found Money”o Money you didn’t earn isn’t as real, and therefore you didn’t earn it, it doesn’t count

in the same wayo Since it sort of doesn’t count or exist, you are willing to give up a lot because you

don’t have it Regretful afterwards, because we don’t have anything now and don’t expect

to get anything in the future Idea was to compensate the plaintiff for the loss

o The client is left 1/3 short of what they need

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Pain and suffering Compensable but difficult to monetize it There’s both past and future pain and suffering

o Difficult to monetize ito At the time of trial there’s both past and future pain and suffering

Sometimes they are the same (as in when you lose an arm), permanent detriment

Getting hit by a car and having a compound fracture of the leg which heals in about 6 weeks, but it leaves a scar. If there’s no medical expenses and no loss of income the case is worth about $50k in Pennsylvania, about $75k in Nassau county and $110k in Manhattan

Don’t pay taxes on the compensation, so $110k would be worth about $150k because you don’t lose taxes

Greater the advances in medical science, the more horrifying it is to look at someone with permanent inflictions

Per diem Argument Rejected by most jurisdictions

o Leads to huge verdicts Guy has his arm off If he could gain employment for losing your arm, look to see how much this would be

worth an houro Look at 18 hours day x 7 days a week x 12 months x 42 years ($1/hour or nickel per

minute)o How much would someone pay you for this

This rationally relates to how to quantify pain Lousy conditioned jobs get paid more (garbage men get more than secretaries) Don’t know how to monetize past or future pain, so the plaintiff doesn’t really “need” that

money, so think of that money as going to the attorney, and will still have enough to give the plaintiff what he/she actually needs

McDougald v. Garber-cognitive awareness is a prerequisite to recovery for loss of enjoyment of life b/c an award of money damages has no meaning or utility to the injured person and cannot provide such a victim with any consolation or ease any burden resting on him.  Furthermore, loss of enjoyment of life and pain and suffering should not be considered separate categories b/c in general the amount for non-pecuniary damages would increase if we adopted the rule and application of this murky process to two separate legal fictitious categories would not make it more accurate, but would if anything amplify the awards by repetition.

Tangible and intangible Injury Tangible (provable) damages

o Loss of income (past and future) Past lost income is very clear Future expenses are not so clear

o Medical expenses (past and future) Past expenses is very clear Future expenses not so clear

Future expenses in Medical Expenses tend to be proven by expert witnesses

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o Experts can say that some of the injuries can be increase the chance of cancer, so this injury is pre-cancerous, this is very speculative

o Or for a trick knee that dislocates sometimes they could say it will just get worse and the guy will probably need surgery by the time he’s 50

Future expenses in Loss of Incomeo Tend to be proven by expert witnesseso Have to speculate on whether the person will continue to get promoted and get

more money, its speculative but its not like Grimstad because its expert speculation Time value of money, money you get now is worth more than it was in the future

o Because of inflation and because you can invest ito Need to calculate how much you make every year on the money

Take the $40 mil and reduce it on the discount or the interest rate Give the amount of money now that will lead to $40 million in the future

Rule of 10s and 7so Money invested at a rate of 10% compounded interest

Doubles every 7 yearso Money invested at a rate of 7% compound interest

Doubles every 10 years Discount Rate

o The lower the discount rate the more money the plaintiff has to pay the plaintiffo The higher the rate the faster you assume the amount will doubleo Lower rate, the longer it will take to double, so you have to give more

NY State has a statutory rateo The actual rate that exists at the time is not a reliable rate to use because it

changes over time Annuity

o Don’t do annuity, because we want to dispose of cases Attorney’s (except in Texas and a few other states) cannot pay you while you

live in pretrial stageo People have started to loan money against the judgment

This doesn’t have the low interest rates of other loans This is an investment in the judgment Create investment pools, have a prospectus, etc. and only invest in the cases

that the attorneys tell them that they will winMitigation of damages

Also, if you have a scar on the leg you could have the cosmetic surgeryo But the patient won’t have the surgery because then only get paid for the surgery

Don’t have to mitigate if it is life threatening And it is life threatening if it requires anesthesia McGinley v. US-D admitted liability to a stevedore for an accident, but claimed that P

failed to mitigate his damages by not having surgery and not training for a new job.  This court held that an injured party must make a reasonable effort to mitigate his damages and the test of reasonableness is a question of fact.  In this case P has continuously submitted to reasonable medical treatment and has already undergone 2 operations; it is not necessarily recommended for P to undergo further treatment.  Additionally, the court which D would have P follow to obtain employment oversteps the bounds of reasonableness.  P has no duty to obtain employment as a checker. 

Intangible Pain and suffering Loss of earning capacity

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Taxability The jury isn’t told that the plaintiff won’t pay taxes on the money because they would

deduct it themselves and don’t want to punish innocent D The lawyer pays taxes And if there is any punitive damages, you pay on the punitive damages

o But not what you get on the negligenceCollateral Benefits Rule

Benefits that the P gets are not to be used to benefit the defendanto For example when P is hurt it costs $25o He gets full amount of the medical billso His employer paid him and that is a collateral benefit, so P gets double paid (gets

the employer pay and pay from D) Policy

o You get the Medical benefits because you took out the insurance and paid for ito Why should defendant pay less if he hits someone that isn’t prepared and doesn’t

have insuranceo Medical insurance now has provisions where you have to pay money to them if you

collect for the injury Subrogation clause

Damages Reducing to present worth

o Add it all up, then reduce with the discount rateo Income goes up and up, predictive and inflationary increases

Pennsylvaniao Have said why don’t we simplify, take the salary now and multiply it all out and then

don’t reduce (take today’s salary, multiply it by the number of years)o Not exactly true, if the inflation is lower, it will come out to lesso Has decided that the speculative of the increase is always problematico If the increase is close to the discount it will all balance out equallyo Vast majority don’t do thiso Increases go up every year for inflationo When we reduce it, we are reducing based on the interest rateso Interest rates should be close to inflation so it should all balance outo Come to a similar result

Punitive Damages Argued a few weeks ago (Phillip Morris smoking), First case the supreme court has

handled when there is punitive damages in personal injury Not sure that the court will take the ratio 9 to 1 or anything like it in this kind of case Jury was told to limit the damages to the jurisdiction Ratio is enormous something like $76 million to $800k Everything in civil procedure applies here Punitive damages go to attorneys and not the state because it gives attorneys reasons to

go after these caseso Some states have rules dividing the punitive between the state and the plaintiff

Punitive Damages are taxable (they get 35% of this)

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Strict Liability

Strict Liability – Rules of Law To prove Strict Liability: Artificial condition (impoundment), Would cause great danger if it escaped, And it does escape and causes injuryVictims can’t defend against it Trespass is a strict liability offense (not absolute liability because there are defenses to the act, if you are dropped from a plane, it’s not a trespass). The damage needs to be foreseeable (i.e. a toxic leak might not be foreseeable, back in the day)

Strict liability means that there’s no negligent action Not absolutely liable because there are some defenses

o Intervening causeo Inappropriate conduct by victimo Proximate causeo Act of God

Cancels the element of violating the standard of care Injury caused by bringing an artificial substance on the property and then it could escape

and it did escape and injured someone Have to prove:

o Artificial conditiono Would cause great danger if it escapedo And it does escape and causes injuryo [Need to prove this to win]

Trespass Trespass is a strict liability offense, there is no mental state attached If you go on someone else’s property, you are a trespasser, even if you think its your own

property, or have a reasonable basis to think its your propertyo If you cause any damage you are liable

Trespass is a strict liability defense Its not absolute liability, there are defenses There are no mens rea defenses There are actus reus defenses

o If someone drops you from an airplane, you are not trespassing Jurisdictional facts

o If you are charged with assaulting a federal officer, you can’t say that you didn’t know that they were a federal officer

o If you rob a federally insured bank, can’t say that you thought it was a regular bank Strict liability element of trespass is that you are on someone else’s property

Rylands v. FletcherF: Damn breaks and it floods the subsoil that the reservoir was built on damages the defendant’s property

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P: says that they’re liable. And that they don’t have to show negligence that the water shouldn’t have escaped the property D: says no we aren’t liable we are not negligentH: This is an artificial condition of the property that has a lot of danger. The Plaintiff knows that the water will cause a huge amount of damage if it escapes and that the people on other property cannot do anything to protect themselves. Strict liability applies if there is (1) something on your property, (2) you know it is dangerous if it escapes and (3) you know that others are dependant on you to take the appropriate care.

Strict Liability Know something on your property Know its dangerous if it escapes Know people down hill are dependant on you [Doesn’t apply to animals on the property that escape]

Why is Strict Liablity acceptable? Its an acceptable exception to the norm because the person knows that he has a greater

responsibility because others are relying on him and the danger is great. Also the greater foreseeability justifies a higher standard when combined with the high

danger if it escapes

Important that the court combined a group of factors, very similar to other settings, all of them compute to knowledge to the defendant, with helplessness on plaintiff

o Notice to the defendant combined with helplessness to the plaintiff, leads to a change in law, the change is in the actual substantive elements in the tort

o Change the tort to have not a component of negligence, it is strict liabilityo (Increase responsibility to the defendant)

This is like Summers v. Tice with the burden shift, but this is a change to strict liability

According to restatement if it is common then it’s not ultra-dangerous

Strict liability – Means that you can’t defend on saying that you tried hard, you can only defend against a element of a cause of action

Rickards v. LothianF: Toilet leaking downs the wall and damaging tapestry in the apartment belowH: Court finds that Rylands doesn’t apply because its not special and everyone uses itWhen something is a normal artificial impoundment strict liability doesn’t apply

Toxic Leak Hypo:F: Toxic substances escape. Cause injury because it gets into the ground and affects water a mile awayH: Can’t apply strict liability because the defendant didn’t know it could cause damage

Extra Miles Hypo:F: Class action, some guy found that his car consistently overstated mileage by 2-4% . Plaintiff said that this could cause someone to void a warranty or go over the lease milageH: Court held that this wasn’t strict liability but the lawyer got to get attorney fees.

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Fish Tank Hypo:F: Have tropical fish, in a tank (10 gallon) on the 4th floor, D goes on vacation at the same time that the people in the apartment below them. There’s a defect in the bubbler and the tank and it leaks and through the wall and damages the apartment below them.P: Can’t sue for negligence so sues for strict liability because its an artifical condition on the propertyD: Says that she’ll win because this isn’t like a damn. It’s a normal fish tank and it isn’t ultra dangerous. See Rickards v. Lothian, [1913] A.C. 263 [toilet bowl case]H: this could go either way, there are arguments for both sides. Have to determine how low is low, the fish tank is between the toilet bowl and the damn with tons of water.

Ultra Hazardous Activities

Ultra-Hazardous Activity – Rule of Laws

3 Types Ultra Hazardous / Abnormally Dangerous

Activityi.e. blasting a foundationInstrumentalityi.e. dynamite is and a car is notCondition of usei.e. racing a car

The Restatement §522 Says that the person is responsible for the negligence or reckless activity of third parties that are completely unexpected

Also Restatement §523 Says that the plaintiff’s assumption of risk from an abnormally dangerous activity bars his recovery for the harm (if he more than recklessly created the harm)

Damage will need to be foreseeable (i.e. if a plane buzzes a field is it really foreseeable that a stallion will freak out and trample the fowls, can be argued both ways)

Defenses to strict liability: 1. Manner that it escapes (foreseeablity) 2. Acts of God

When you do something of substantial social value and everyone does it, its difficult to say that people are on notice of the danger

Notice relates to commonality of use And the social utility of the use combined with the commonality Difficult to say that a normal activity is ultra-hazardous versus just being dangerous or

hazardous

Ultra-Hazardous activities: Much broader (starts about 1950) Not every jurisdiction follows it Modernizes Fletcher v. Ryland

The Restatement (Second) of Torts, at 520 (must weigh these factors in determining if activity is ultra-hazardous):

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 o Great probability of harmo Potentially serious level of harmo The activity is not a matter of common usageo Harm cannot be prevented by utmost careo The activity is inappropriate for the locationo The social value of the activity is not sufficient to offset the riskso Restatement (Second) of Tortso Abnormally dangerous activity, which causes harm to the person, land or chattels of

another, despite exercising the utmost care to prevent the harm 

Limitations  

o Limited to the use of your propertyo You are liable if the condition on your property is unnatural and it escapeso Must be abnormally dangerous (dynamite, auto racing) as opposed to common usageo Limited to the kind of harmo Does not make a person liable for a stick of dynamite that falls and breaks someone's toe;

it must be the type of injury that would result from the dangerous activityo D will not be liable for his abnormally dangerous activities if the harm would not have

occurred except for the fact that P conducts an "abnormally sensitive" activityo Usually contributory negligence will not bar P from strict liability recoveryo Restatement developed the SL tort of Ultra-hazardous activities:o D's conduct is so dangerous that it puts the D on notice that others can be injured if

something goes wrongo If it is so dangerous that others can be injured, D should have a greater duty HYPO-I have a garden and I spray a ton of pesticide on it.  This kid Charlie is constantly

running all over my flowers even though there is a fence around the garden; I tell Charlie to leave.  One day the kid runs in the garden and inhales the cloud of pesticide over the garden and dies after a lot of pain and suffering.  The fact that Charlie trespassed doesn't matter b/c Kessler has a duty to trespassers.  Under ultra-hazardous you have a duty to protect others from their own negligence or reckless injury.  We don't have to prove reasonable care on the part of Kessler b/c it's ultra-hazardous.

Three requirements to prove: (to get to jury) 1. Event does not ordinarily occur without negligence 2. other responsible causes, including the conduct of the plaintiff and third person are sufficiently eliminated - injury could not have occurred without negligence of D3. Thing that caused the injury was in the exclusive control of the defendant (Indicated negligence was within the scope of the defendant’s duty)

Exclusive custody and control of item  By proving A (specifics of what happened ) you are proving B (proving that D must have done something that caused injury and what he did must have been negligent) This doctrine helps P get to jury

Change of prior rule of law enabling Ps to get to jury You can find him liable without figuring out what he did.

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"Difference from degree can be the difference in kind"

 Mr. Wilson HYPO: Mr. Wilson lives next door to a little boy named Dennis. Mr. Wilson is really into gardening and has a patch of tomatoes, and a very large area of flowers. Real danger with tomatoes and flowers - there are a lot of bugs - he buys pesticide and "sprays the shit out of it all the time" - active ingredient is "chemical". One day he goes outside and Dennis is there cutting Mr. Wilson's flowers for his mother for Mother's Day. They are extremely hard to grow and Mr. Wilson was going to use them in two weeks for a competition. Mr. Wilson yells at Dennis and he runs off. Mr. Wilson goes inside to cool off and goes back outside to spray. He starts spraying and doesn’t know that Dennis is in the flowers - Dennis suffers lung damage. What cause of action can his family bring? Strict liability - created high risk because of an ultra hazardous activity. Negligence. Legal Defense:  D can claim Dennis was trespassing.  Duty the landowner has to the trespasser regard to knowledge the trespass will be there. Mitigates whether the D will know P will be there.  Evaluate the merits of the cause of action  Who has the better case? Mr. Wilson - he wasn’t negligent with the use of pesticides. He used the pesticides in a reasonable manner. He had no reason to believe that anything else but his plants were there - he was reasonable by only spraying it on his plants - and had chased off Dennis who had just left and had no reasonable belief to believe he had come back.  Dennis' case: Mr. Wilson did not exercise adequate care. Mr. Wilson was negligent and he owed a duty to Dennis because Having seen Dennis there already once a reasonable person would make sure he was not there again. Mr. Wilson failed to take reasonable care in taking care to make sure and check to make sure that Dennis had not come back and therefore was not in the garden.  Restatement (Second) of Torts:Abnormally dangerous activity, which causes harm to the person, land or chattels of another, despite exercising the utmost care to prevent the harm  Hazardous care tort - working for Mr. Wilson - 2 problems:

1. Is it common usage or not? 2. Does the value offset the risks? Not dangerous enough and

 Dennis' argument - pesticide is ultra hazardous.  HYPO: Highway case: (Siegler v. Kuhlman)-a woman is driving on the a multi-tiered highway in CA; on the higher road, D loses control of his gasoline truck, it hits the railing and goes over to the lower level and explodes; the flames engulf and kill the woman on the lower level.   

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P argues that this was an ultra hazardous activity and reasonable care on the part of the D was not enough.   The D will argue reasonable care and common usage-we need gas and everyone has cars with gas in them.   The court held that the degree of gasoline in the truck is greater than that of any car on the highway and therefore is not common usage.  The trucking company has a non-delegable duty (can't pass off responsibility) and would lose under res ipsa as well. HYPO Licensed Exterminator: So strong- used to spray half of a building - someone who was asleep on other side of building and it went through wall and injured person asleep. D: It is an pesticide - commonly used - therefore not ultra hazardous activityP: Ultra Hazardous activity!

Luthenger v. Moore:F: Luthenger is sleeping in her store and there’s an apartment behind her. The building behind her has a bug problem so they hire an exterminator. He uses an insecticide that can only be used by licensed exterminators. The exterminator didn’t know that it could get through the walls, thought it could only get through big holes and he checked for those. The insecticide makes the P sick and have permanent lung damage, she sues.P: Can’t say negligence so says that its an ultra hazardous activity and strict liability applies. Says that its not commonly used and its dangerousD: Can’t say didn’t know that it would escape because that’s a defense to negligence. Says that this is how everyone exterminatesH: This is not sufficiently prevalent to be common, its not common enough.To be common, and thus not ultra hazardous, it must be very prevalent.

Hypo:F: Woman is on a multi-layer highway, a tanker transporting gas gets in an accident and blows up in front of her. P: Negligence is that the coupler came apart. Negligence on res ipsa non-delegable duty (1. can either prove some defendants out or non-delegable duty). Strict liability is that it was a dangerous activity because it was such a large amount of gas.D: Not negligence. And that it was common to transport gas, every car did it. Also that everyone transports gas this way, it’s the common way to transport gas.H: The gas in the car is too different. Also though this is the common way to transport gas, its not a common activity. Difference in degree is a difference in kind and a common way of doing something doesn’t make it common if it is still not a common activity.

The Restatement §522 Says that the person is responsible for the negligence or reckless activity of third parties

that are completely unexpected] [but in this they are more than negligent, they are doing it intentionally, purpose]

Also Restatement §523 (page 607) Says that the plaintiff’s assumption of risk from an abnormally dangerous activity bars his

recovery for the harm [in this case the gang of people knew that it was harmful and were assuming the risk of it

blowing up]

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But if it wasn’t the gang that was harmed, but innocent people that were hurt he could be liable

Airplane Buzzing a Field Hypo:F: If you buzz an airplane (and at this time its not common) and planes are an ultra-hazardous activityAirplanes are only strict liability to those on the ground, not strict liability to those that are in the plane.(if cow stops giving milk you can sue)

Airplane Buzzing a Field Hypo 2F: Same airplane, buzzes the field but this time the plane scares the stallion and he tramples the fowls and causes damage.H: Could go either way, you could say that it was proximate cause or you could say that its not foreseeable that the horses would go crazy and trample.

Products Liability

Products Liability – Rule of Law Must be a product, cannot be a service.  SOL runs from the time you discovered the problem or should have discovered it, not from when you buy it. Can sue manufacturer and the retailer. Manufacturing Defect – Rule of Law This particular product is different from the others, the standard is set by the other products, this particular unit has a flaw There is strict liability, doesn’t matter how well you tested it.  Reasonable care doesn’t matter. Do not need to prove the actual defect. Design Defect Focuses on the product, not the person:

Doesn’t matter how good the design is, Matters how it was designedLooks at whether the product was defectively designed (negligence)

 Common / Deluxe Model – you can have both so long as the common model is safe enough for its purpose.  

Warning – Rule of Law

Need a clear warning and the warning need to be understandable

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Warning IssuesCommunication IssueUnderstandability of the warning

Theory of Mass numbers (Unusual things happen when there is large number)

Warning needs to be sufficient for the life of the product, it would be inadequate if you had a short term warning (i.e. tag) on a long term product (ladder).

Having too many warnings so that the warning label, makes it unreadable (ineffective communication).

Warnings can be communicated through a warning intermediary, provided that the warning is adequate.

Massachusetts – no warning is ever adequate enough if the product will be used by kids.

Warnings are not assumed to be read, but even if you don’t read the warning you can still sue if it is inadequate.

Instructions are assumed to be read. Res Ipsa in Products – Rule of Law

Must be defective when it left the manufacturerNothing could have happened to it after it left the manufacturer.

Definition of a defect

Defect unreasonably dangerous (2nd restatement)Negligently or dangerous designed product (3rd restatement) Patent defect – another way of saying assumption of the risk (its an obvious defect)Comparative Causation – Comparative NegligenceRisk Utility – Same as saying Hand Formula (Cost / Benefit Analysis) 

State of the Art – Rule of Law

Subsequent repair rule (applies in negligence cases) – evidence of repairs after the accident are not admissible to make them strictly liable, they can only be used to show the feasibility / viability of alternative designs

Foreseeable Unintended Use – may not be the intended use but it foreseeable that the product could be used this

Misuse – Opposite of foreseeable unintended use, this is when you purposely misuse the product and it wasn’t foreseeable that it would be used this way

California decided that this should be a split burden (2 prong test in Cali)

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1. Plaintiff has to prove the defect2. Up to the defendant to prove that it wasn’t unreasonably dangerous after a risk-utility benefit (Defendant justifies the design)

Naturally occurring items are not defects (i.e. peanut shell in peanut butter) but foreign objects are (i.e. glass in the peanut butter)

 Common and deluxe model – Rule of Law

If only sell the deluxe model then people who could afford only the common model wouldn’t buy anything because they wouldn’t be able to afford the deluxe

Its possible to have a cheaper product that is less safe, so long as its sufficiently safe in and of itself, because if its at a maximum safety it would be unaffordable.

 Unavoidable Dangerous Product – Rule of Law

Dangerous and you can’t avoid it and it shouldn’t be a defect

Two typical examples Pharmaceuticals -All drugs have side effects Gun / Knife -All knives and guns can kill people

Essential nature of the product that gives you the benefit also creates the risk. If you do a cost benefit analysis you can’t get the benefit without the cost and it makes it unavoidable

Generally can’t sue pharmacists in strict liability, only negligence.  How a Plaintiff can overcome worker’s compensation – Rule of Law1. Sue manufacturer and let him interplead the employer and say that it was negligent management of the workplace that caused the injury. Manufacturer would say that it wasn’t a defective product. [P claims foreseeable unintended use]2. Plaintiff just needs the manufacturer to be 1% liable and then they can chose to collect everything from the Manufacturer 3. Then the manufacturer will sue the employer for their contribution (comparative difference).  [Joint and several liability and comparative and joint tort feasors means that you can get money from both]

Three Kinds of Product DefectsManufacturing (Production)

This particular product is different from the others, the standard is set by the other products, this particular unit has a flaw

There is strict liability, doesn’t matter how well you tested it. Reasonable care doesn’t matter.

Design Focuses on the product, not the person

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o Doesn’t matter how good the design iso Matters how it was designed

Looks at whether the product was defectively designedo This is like negligence

Warning Need clear communication and warning needs to be understandable.

Res Ipsa in Products1. Must be defective when it left the manufacturer2. Nothing could have happened to it after it left the manufacturer.

Products Liability Initially could only sue in negligence As time when on more and more was concealed and thus more reliance on the defendant

and the products became more inherently dangerous Took a long time to move to strict product liability because of the idea of autonomy and

individual freedom and liberty. Product liability now runs to everyone that is injured by the product We have strict liability in products Manufacture is liable no matter how careful he was

If it’s a service you can’t sue in strict liability, but you can sue in negligence

Statute of Limitations In Torts - Runs from the time you discover the problem or should have discovered it

(not when you buy it)o This is what we use for strict liability

In Contract - Certain amount of time from the time of purchase Property - No SOL

Statute of Repose Limits the amount of time you can bring a product liability action, in some jurisdictions

Defect Not a defect unless its unreasonably dangerous

o Can’t just have a difference, be different Known as “defect unreasonably dangerous”

o Can’t sue for cutting yourself on a sharp knife Can’t have knives if you don’t have knives that are sharp Can’t sue just because the knife is sharp even though its dangerous, would

be ridiculous Can’t sue a car manufacturer of a car just because it went fast, and going fast

is dangerous, again this would be ridiculous Need to be excessively and unreasonably dangerous Patent Defect – Assumption of risk (knew it was defective and used it anyways)

o Classic case of taking a chain saw and using it to cut their toe nailso This person shouldn’t collect for two reasons:o 1. nothing wrong with the product o 2. contrib.

Comparative negligence – comparative causation Up until the third restatement negligence wasn’t in there, but everyone knew that it really

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was there

Products liability developed over time because initially individual crafts men made products for a specific consumer and liability was easy. Person who made it was responsible to the person who the craftsman sold it to. A third party couldn’t sue. Over time this changed as the store owners didn’t have as much money as the manufacturers and mass production meant that the person who purchased the product might not be the one that used it.

Bridge Hypo:F: Person wants a bridge to go over the stream. The bridge maker says the wood needs to be coated so it won’t rot. The owner opts not to have the coating. Ten years later the wood rots out and someone gets hurt.H: Since the part that rotted is under ground. The person was a licensee so there was no duty to inspect and thus no duty on the land owner. Defense is no privity, built what client wanted.No privity used to be a defense, it meant if you were not part of the original contract you could not sue, can’t go around contractual relationship and sue in tort.

Winterbottom v. Wright, 152 Eng. Rep. 402F: Front left wheel breaks off. Causes loss of control injuring the plaintiff. Carriage is used by the king’s post office.P: Products liability, defective product.D: No privity, the injured driver wasn’t privy to the original contract.No privity, cannot sue in torts when you wouldn’t have a contractual duty. Can sue in negligence, but not strict liability.

Thomas v. Winchester F: 1830s guy goes down to the equivalent of a pharmacy and buys some ground up plant herb for his wife that’s sick, but unfortunately the bottle is mislabeled, its not the herb that he wanted it’s a poison. Wife gets extremely ill.H: Court uses an exception to privity rule saying that if the thing that you sell is imminently dangerous to human life if negligently fabricated then the injured person should be able to sue.If you know that the thing you sell is imminently dangerous then it gives you special responsibilities because its specially made and the person can’t find out that its negligently made until its too late (imminently dangerous to human life.

MacPherson v. Buick Motor Co.F: Front left wheel of the car falls off. Driver is the wife of the purchaser.P: Its imminently dangerous to human lifeD: No privity of contract, then says that its not imminently dangerous and its similar to Winterbottom because it’s a wheel.

Products liability Negligence of tort Discusses how courts can modify the law without admitting that they changed it Thomas and MacPherson were both changes Cardozo says that he was bound by precedent and that he doesn’t change anything Cardozo is arguing on the law

o Poison is mislabeled is imminently dangerouso Car isn’t as dangerous

Cardozo alters the articulation from imminently to inherently dangerous This is a very big difference, imminently dangerous is mislabeled poison, or a locked rifle

with a blocked barrel, or a power grinder that would fly apart

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o Nothing that you can do to protect yourself But the car is not necessarily dangerous, if you use it in the normal way its not dangerous

o Scaffold isn’t dangerous if you are 10 feet up, but is dangerous if its 90 feet upo Says that we always meant inherently dangerous

Losee v. Clute (51 N.Y. 494 (1873))Seller knew that they weren’t being relied on, they were not the final inspection

Buying a Used Grinder HypoF: Person buys a grinder, buys it as is inspecting it first. Then it causes injury.The person who sold it, knew that the buyer was making an independent inspection, wasn’t relying on the purchaser, thus he’s not liable.

MacPherson: Still can’t sue in strict liability, Allows suit in a negligence case Manufacturer only gave an express warranty to the person that they immediately bought

from Fact that you can sue for the inherently dangerous items, doesn’t mean that you can sue

in contract

Coke Bottle Hypo:F: Coke bottle explodes.P: Negligence. D: We weren’t negligent, exercised reasonable care in inspectionA lot of these suits were won by defendants, even though the bottle exploded, they were doing large inspections and they took excessive care

Burden of doing more was in excess of PxL

Escola v. Coca Cola Bottling Co. of Fresno (1944)F: Coke Bottle explodes in the plaintiff’s hand causing severe injury.H: Traynor wrote a concurring opinion, saying that we should have strict liability in products because you can’t look inside the bottle and see what’s there

No implied warranty of fitnessConcurrence in Escola v. Coca Cola Bottling Co. of Fresno, says that it was time for strict liability in products, but no one listened until Henningsen in 1960

Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960) 1960 – first time that they held that you could sue in strict liability Within 13 years ever state had allowed strict liability in product Ever state changed their law

Chysky v. Drake Brothers Co., 139 N.E. 576 (N.Y. 1923)F: Nail in a Drake cake and P bites in and gets inured.D: Owner of the diner, says they didn’t make the cakeH: Still can’t sue even though pre-prepared food has a lot of danger

Hard to look at industry and think that the manufactures need to be subsidized when there are 13 different kids of coffee

o This is the importance of the 100% increase in the GNPo There isn’t a problem with productiono If one company goes out of business because they have to pay for someone’s

injuries, someone else will pick up the market

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Greenman v. Yuba Power Products, Inc. 377 P.2d 897 (Cal. 1963) Part flies off and hits the guy in the eye If Yuba goes out of business, its not like we won’t get this product from another company

Unbelievable developments from 1910s to the 1960so Transatlantic air travelo Radios to color TV

Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960)Talked about product as if it was an easement that “ran with the property”, a warranty of fitness of use, as if it was a property right

Need to guarantee fit for use This is a safety protection If the car is supposed to go 65 and only goes 55, you can’t sue But if the car blows up or wheel falls off and you get injured you can sue This is strict liability, can’t say any longer that you tried as hard as you can Changed the technology and the economy and the social structure, and then legal rules

that made perfect sense in the time, but as things change the legal rules have to change with it

Broken Statute Hypo:F: Person works for the P, the P owns a small statute worth about $1 and the person is taking it from one property to another. There’s a roofer on the rook tarring the surface so it won’t leak. He puts the tar bucket on the edge (which has an angled bottom) and it falls off. P: Sues saying the tar company saying that the bucket has a defect. Can’t sue in negligence because there is no negligent action. D: Economic Loss Doctrine because there was no personal injuryH: This is distinguishable though, because the thing that was broken wasn’t the thing with the defect. This is the kind of thing that contracts is supposed to deal with. Even though there was no personal injury, the bucket could have fallen on the person, not just the property. If a person could be injured, though only property is injured, strict products liability applies.

Vandermark v. Ford Motor Co. (Cal. 1964)If its only property that is damaged, then there’s no strict liability

Steak Knife While Out to Eat Hypo:F: Out to dinner, knife breaks in hands and causes never damageP: Non-delegable duty and res ipsa – this would be to the restaurant. Says strict liability. Cites to Shaffer v. Victoria Station, Inc. (Wash. 1978) where the glass breaks and the court said that it was strict liability and not a service.D: Says that it was providing a service, not a product. H: Hard to prove res ipsa, so would go with non-delegable duty, which would be hard to go throughIf it’s a service you can’t sue in strict liability, but you can sue in negligence

NJ – generally very pro-plaintiff in personal injury cases

Blood Transfusion Hypo:

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F: Person gets HIV from a blood transfusionBlood transfusion is a service, not a sale

Cafazzo v. Central Medical Health Services, Inc.F: P sues after having an implant put in her jaw that malfunctionsCannot hold a hospital/physician strictly liable for a malfunctioned (design defect) part, because they provide the service of putting installing it.

Pay attention to the little stuff about reconditioning and reselling used goods and when you are and are not liable.

Successor Companies are liable for products by the old manufacturer if they are just continuing the business under a new name. If the new company just acquired the assets then they are not liable. [If the company is out of business you can still sue if the new company acquired it in such a way that they are now a successor]

Can still sue the seller under implied warranty of fitness (even though they can’t do anything about the design of the product)

350 lb weight limit Ladder Hypo:F: Have a ladder that is manufactured by K construction company, Normal ladder, the kind that folds up and then opens into a V. P is climbing on the ladder, gets about a 1/3 from the top, the rung breaks, he falls and has serious physical injury. There is no fact that the person who owned the ladder has done anything to the ladder. There was no windstorm etc. that caused him to fall off the ladder. The rung broke because there was a hairline fracture in the aluminum. P: Strict liability, the ladder had a defect. Stress facture that didn’t bear the weight.Can sue in product liability under defect if the product has a hidden design defect that causes injury.

New Ladder Hypo:F: This time ladder just breaks, no idea why it brokeP: Makes a res ipsa argument, but if you can establish that there must have been a defect, you can use res ipsa. Shouldn’t have broken, and if you can’t figure out how it broke then it must have broken

Myrlak v. Port Authority of NY 723 A.2d 45 (N.J 1999)F: In this case it was the mechanism that broke. And also it was used 24 hours a day. This is difference than this case because it isn’t the thing that it was opened and closed, it was a rungH: Can use res ipsa. Must be defective at the time it left the manufacturer,Nothing could have happened after it left. If you have these two then you have res ipsa.

Manufacturing Defects Have integrity because it is reasonable that manufacturers make all their products the

same to the same standard

350 lb. Ladder Hypo 2:F: P is on the ladder and this time weighs 300 lbs. and is carrying him and 90 lbs. of shingles. The ladder breaks because its not made to handle this kind of weight.P: Can argue that the warnings were inadequate and that the design is flawed. Person might not know how heavy they are an extremely heavy person won’t notice 50 extra lbs. and may not know how heavy the package is.

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H: A ladder that is supposed to hold 350 that breaks at 390 is defective, because it’s a foreseeable unintended use. Its foreseeable that people won’t weigh everything that goes up the ladder.If something is designed to be safe at a particular weight, it must be safe over that weight, even with a warning because it’s a foreseeable misuse.

Stove Door Hypo:F: Short person in a nice apartment with high ceilings and has a old stove that is a unit and above it there are cabinets above it that you can’t reach. Flip open the oven door, stand on it and reach the cabinet. As a result, the whole stove tips forward, landing on her.P: Design defect, could have been bolted to the floor, could have been counter weighted, or could have had a door that breaks off at a certain weight. Foreseeable misuse (foreseeable unexpected / unintended use)D: Manufacturer says that they didn’t anticipate this H: This is a foreseeable misuse (not negligent), the P wasn’t contrib.This is considered to be a foreseeable unintended use of the product and therefore the defendant was liableManufacturers are liable for foreseeable unintended uses of their products.

Perfume and Candles Hypo:F: A woman sprays unscented candles with perfume and it flames up causing facial burdenP: Foreseeable unintended use, candle could have been on my vanity.D: Misuse.H: This is chicken hawks: Could have a candle on a vanity table. Could have candles and perfume close together. By accident you could have the perfume come into contact with the candle.Something that could happen accidentally can be a foreseeable misuse.

Second Collision This is the collision that happens with the inside of the car after the accident Everything inside the car is much sleeker and softer than it used to be

Car accident hit on the side Hypo:F: P is driving a car and gets hit by on the side, gets severely injuredP: Sues the manufacturer saying that the company had to make the car safe for side impact crashes, sides weren’t reinforced. D: Has to make it reasonably safe for crashes. Have design limitations. Went with a crumple zone because its safest for front collisions which are the most common. Defendant says directed verdict because if we made the car the way that is being proposed then it would be more dangerous than if designed the other way.H: D loses the directed verdict and it goes to the jury who awards for the plaintiff.Can still get to the jury even if the Defendant shows that the risk utility analysis weighs in their favor. [Somewhat irrational, just means higher insurance rates]

General Motors Corp., 406 S.E.2d 781 (W. Va. 1991)Said that this is stupid, W Virginia isn’t going to change the law because they are a small state

NJ Court says Manufacturer puts these in the stream of commerce for making money and it makes sense

that they should bear the costs because they have the ability to reduce the risks or be capable of paying the costs

Condom Factory Hypo:F: A discontent worker in the condom factory, he puts holes in the condoms and they get

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wrapped and put into the boxes. P uses the condom and gets an STD.P: Sues the store because the condom manufacturer is out of business. Sues under product liability – warranty. D: Store says they can’t inspect the inside of the productH: Store can stop carrying certain brands, they can’t control the manufacturer, but they can control the marketing. It is fair to sue the stores for product liability even though they can’t inspect because the stores have the ability to use market control to ensure safer products. Strict liability will make the store owners more careful / cautious about what they carry.

Pharmacy Hypo:F: Person gets sick from a prescription. Tries to sue the pharmacist.In California, can’t sue the pharmacist because he works for the doctor, they don’t have a choice, they can’t select the a better product.Some jurisdictions hold the pharmacist liable for: 1. Giving too much, 2. A prescription that negatively interacts with the other prescriptions they are on, 3. a medication that is only supposed to be taken 1/month and this is the third prescription, 4. Wrong prescription (quantity or substance). Have a duty to non-negligently distribute the drugs.

Holding Bar in the Back of the Bus Hypo:F: Have bus and manufacture a bus and the back of the bus has seating in a U around the outside of the back, in the middle is a pole for people to stand and hold on to. On day P is sitting in the middle in the back and she’s trust forward and hits her head on the poleP: Sues manufacturer and claims design defect, the pole is the design defect.D: Manufacturer will say that the pole protects the majority of people and that P knew it was there, it was obviously and why wasn’t she holding the pole when the bus stopped. This is perfectly safe when the bus is full, only dangerous when bus is empty.H: Patent (obvious) defects aren’t defects at all, they are about assumption of risk and this pole was a patent defect.Patent Defects say that they aren’t too dangerous because products have to be useable. And if the nature of the design is what makes it useable the product won’t be defective unless it’s so dangerous that it shouldn’t be manufactured at all

Lawn Jarts Hypo:F: Used to be a modern game lawn jarts (darts) that was like a horse shoe that you would try to get it in a circle. It could really go if you had a good arm.So people would throw them over their houses to see how far they could throw themWhen they were thrown from the back yard to the front they could hit people that were 75 or 100 yards awayThis was an foreseeable unintended use, The danger was open and obvious.

Micallef v. Miehle Co., 348 N.E.2d 571 (1976)F: Ink drums in printing press, get blots. They get blotches on the newspaper. Takes too long to slow the press down. Have a sheet of plastic and as the drum comes around it goes fast, but not so fast that you can’t see it. You slap a piece of plastic where the hickie is on it. It comes out with the rest of the newspapers. This is catching the hickies on the run.P: Doesn’t sue employer because of worker’s comp. and doesn’t want scheduled payments, sues the manufacturer and says this is inherently dangerous, should be madeD: Manufacturer says that you were aware of the defect, patent defect (like assumption of the risk)H: Its foreseeable because of the economic incentives to not stop the machine and lose time and productivity. Therefore the manufacturer should foresee that people will do it this way.

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P can still recover when there’s a patent defect if the P can show that it is foreseeable that it will be used this way.

Third restatement adopted Micallef: the fact that it is patent is a factor to consider in foreseeable unintended use

Metal Punch Press Hypo 1:F: Punch press – like a 3 hole puncher, but now its in piece of metal. Big pieces of metal will stay on their own. Small pieces of metal need to be held there, and it could clip their hand. Or sometimes they could misalign and put their hand right under it. Guy does this and his hand gets severely hurt.P: Product defect because its foreseeable that this will happen.D: Not the intended use.P wins because using hands in a punch press is a foreseeable unintended use.

Metal Punch Press Hypo 2:F: Manufacturer learns from last mistake and puts in two levers so you have to hit both buttons. So the worker just rewires it. And gets hurt againP: Defective product, safety feature is too easy to override.D: Designed safelyIf a safety feature is too easily overridden it can still be a design defect.

Metal Punch Press Hypo 3:F: Again manufacturer learns and makes it so it can’t be rewired, so the worker calls his buddy over to hit the second button and again he gets hurt.P: Sues again and says its foreseeable.D: Says cost risk benefit, nothing I can do to make it any safer.A manufacturer is not liable of he makes his product as safe as he possibly can and the P still purposely circumvents the safety features. [D will claim poor workplace supervision.]

How a Plaintiff can overcome worker’s compensation:1. Sue manufacturer and let him interplead the employer and say that it was negligent management of the workplace that caused the injury. Manufacturer would say that it wasn’t a defective product. [P claims foreseeable unintended use]2. Plaintiff just needs the manufacturer to be 1% liable and then they can chose to collect everything from the Manufacturer 3. Then the manufacturer will sue the employer for their contribution (comparative difference). [Joint and several liability and comparative and joint tort feasors means that you can get money from both]

Foreign Matters (which foreign matters are defects?) If its natural matter from the thing involved in the product (shells with peanuts, bones with

chicken) then you lose because its not a foreign substance If you have shards of metal in medicine then you can sue

o You can sue and win when it’s a foreign substance

Burden of Proof Rules If it is a manufacturing defect, the plaintiff will have to show that there was a defect

causing the injury and they win

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o Have to show it was there when it left the manufacturers hands If it is an aspect of the design however – can show that the design aspect caused the

injuryo Can prove that you were injured because there wasn’t a roll bar, or because

motorcycle didn’t have 3 wheels, or because the thing going backwards wasn’t beeping.

Most jurisdictions the burden of proving the defect is on the plaintiff Deal with cost benefit now called risk-utility analysis

o Have a convertible – would look at if the design aspect is unreasonable dangerous What’s the risk of creating it this way What’s the benefit of creating it this way What’s the cost of doing it differently

California decided that this should be a split burden (2 prong test in Cali)o 1. Plaintiff has to prove the defecto 2. Up to the defendant to prove that it wasn’t unreasonably dangerous after a risk-

utility benefit Defendant has to justify the design (reasonable, prudent, etc.)

Doesn’t mean that everything is a defect. Just means that the defendant has to prove reasonableness. Not that the plaintiff has to prove unreasonableness.

Definition of a defect Defect unreasonably dangerous (2nd restatement) Negligently or dangerous designed product (3rd restatement)

Linegar v. Armour of America:F: Cop hit and killed by a bullet while where the vest didn’t coverP: Says design defect, unreasonably dangerousD: Says that there are 2 designs. The cheaper design (which the police station has) has the advantage of allowing more movement so people are more likely to wear it because its more comfortable and that’s safer than not wearing one at all. Further, most bullets come from the front and it protected against that.One way of deciding if something is a design defect is to see if it performs as people expect it to. Or can look at the common / deluxe model analysis.

Common and deluxe model If only sell the deluxe model then people who could afford only the common model

wouldn’t buy anything because they wouldn’t be able to afford the deluxe Its possible to have a cheaper product that is less safe, so long as its sufficiently safe in

and of itself, because if its at a maximum safety it would be unaffordable.

Above Ground Pool Hypo:F: Some people have a deck around it, some have a ladder on a deck, some just have a ladder that hooks. The cheapest model is just the ladder, safety design because you can take the ladder away and people can’t get in the pool. Kid is swimming in the pool and someone takes away the ladder and he can’t get out and he drowns .P: says design defect because it’s the only way to get out of the pool and therefore its unreasonably dangerous. This is a foreseeable unexpected use.D: Unforeseeable that someone wouldn’t look before taking out the ladder.If the model poses a risk that is foreseeable, yet unintended the manufacturer is still liable.

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Harley with Shift Gear Next to Gas Tank Hypo:F: 1952 Harley, not the same as modern motorcycles, the gear shift is right next to the tank. You use a handle to deactivate the clutch and you move the lever. Accident because you have to have one hand off the handle bars to shift the gears.P: Bad design D: State of the ArtIn NJ State of the Art isn’t a defense, because D put it in the stream of commerce to make money and its too bad for them that they couldn’t design more safely.

1934 Chevy with no Seat Belt Hypo:F: 1934 Chevy doesn’t have a seatbelt. Could have had a seatbelt. Go through the front windshield, sue and say no seatbelt it’s a defective.D: Defense is state of the art – we hadn’t thought of itState of the art, consumer expectations.

Bass Boat with Outboard Motor Hypo:F: Bass boat, troll for bass, outboard motor but a little wider. Quite possible that someone can fall off the boat. Design to keep operating even when you standing up, keeps going even when no hand is on the outboard motor control, for ease of fishing. Boats tend to go in circles when no one is handling them. People get run over when the boats go in circles. 8 years after they sold this, they designed a computer chip that operated on a pressure place, so that when the weight was removed the motor cut off.F: Design defect, should have used the new technology.D: State of the art, it was scientifically impossible at the time.If it was scientifically impossible, it can be a defense.

State of the art tends to be what they thought of at the time, not what they could do. Based on the consumer expectations

Seatbelt in 1932 Chevy is not defective because the expectation of the consumer

Evidence Rule Subsequent repair rule (applies in negligence cases) – evidence of repairs after

the accident are not admissible (p. 718)o Idea is to encourage people to fix it so that other people won’t get injuredo If fixing it was able to be used against people then people wouldn’t repair things

because they wouldn’t want to admit there’s a safer way to do it

Tends to be evidence of subsequent design changes to show the design was feasible – this shows that it was possible to manufacture it differently

Subsequent modification Different than subsequent repair This is the punch press issue This is the manufacturer’s duty to make the product safe for specifically unintended uses

when they have a reason to know it will be used that wayo Hickies on the run is another example

Back to the punch machine when the worker rewires the machine Manufacturer is liable if the product is easily modifiable in a way that they know

would make it dangerous If you can’t modify it in a way that would make it un-modifiable, then you are

not liable for making it un-modifiable

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o It gets modified and then 5/6 years later someone gets their hand punchedo Has to be defective when it left their hands

Only liable for post sale changes when the post sale changes were induced by the fact that it was originally defective (i.e. easily modifiable)

o P. 720 – reasonably should have been anticipated by the product seller

O’Brien v. Muskin Corp., 463 A.2d 298 (N.J. 1983) Legislature has overruled the judicial decision O’Brien v. Muskin was altered by statute in NJ which provided that “the manufacturer or

sell shall not be liable if: (1) at the time the product left the control of the manufacture, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product”

The Third Restatement follows the same line by requiring “that the plaintiff show a reasonable alternative design…even though the plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all” RTT:PL §2, comment d

Requires that the plaintiff show an alternative design

Potter v. Chicago Pneumatic Tool Co.F: Vibrations from the tools can cause injury in arms and handsCourt says tough luck to the manufacturer, there was all sorts of expert testimony that told how it could be designed differently. It’s up to the jury to see if it’s defective or not.

Unavoidable Dangerous Product Dangerous and you can’t avoid it and it shouldn’t be a defect Two typical examples

o Pharmaceuticals All drugs have side effects

o Gun / Knife All knives and guns can kill people

Essential nature of the product that gives you the benefit also creates the risk. If you do a cost benefit analysis you can’t get the benefit without the cost and it makes it unavoidable

Sharp knives never get to be an issue

Halliday v. Sturn, Ruger & Co.Bad hand guns (Saturday night specials) are defective and allowed to be banned because they have dangerous that don’t meet consumer expectations (like blowing up in your hands). Good guns are not defective. (A certain design aspect might make it a defective product, but the fact that you point it at someone and it can kill them doesn’t make it defective)

Warnings

Can make an unsafe product safe with a warning. The warning must be adequate (cannot be on a removable tag)

Beach Rescue Hypo:

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F: There is a risk at beaches of people coming close to drowning and being saved, but then get hypothermia. Want to warm up the person after they are saved, so they take a block that’s in plastic and put it on the guy’s chest. The problem is that it was purchased 5/6 years ago and the warning is on the box that is now MIA. The warning on the box said not to use it on the skin. But they use it on his skin and gets 3rd degree burns.In adequate warning if its on a box and it is foreseeable that the box will be thrown away.Might be perfectly okay to put warnings on the box if its something that you use once (shortly after the purchase) the manufacturer can put warnings on a less permanent kind of thing (such as the box).

Super Sharp Steak Knives Hypo:F: Designing a new set of steak knives. This is going to be the sharpest steak knife available. Its made of surgical steel, sharper than a razor. Someone is using it and cuts off their finger. P: says that the knife is too sharp, unsuitable for the kitchen no matter what warning is used.D: says that they gave clear warnings that it was overly sharpIn some circumstances warnings might not be sufficient no matter what you say. An super sharp (scalpel) sharp knife is not unavoidably dangerous, its just too sharp for its purpose.

Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1986)F: Vaccine has risk of injury. Accurate warning (1 out of 3 million). Warning isn’t good enough because it wasn’t understanble. D knows that the consumers aren’t getting properly warned because the message that gets communicated is “almost never” (The warning intermediaries aren’t giving adequate warnings). Warning would have been better worded as ~75 cases per year, not 1 out of 3 million.

Theory of Large Numbers In large enough numbers very unusual things with increasing frequency Bigger the number the more likely unusual things (bad or good [winning the lottery twice])

will happen

Warning Issues Communication Issue Understandability of the warning

Humidifier Hypo:F: In 1940s was a bottle with a screw top, in the screw top is a metal coil and you plug it in and it got the water boiling and the steam came out the hole in the top. Tend to use them in rooms with elderly people and rooms with children. Put the vaporizer by the kid, might put it on a chair and the kid gets up and the water scolds the kid. P: Defective product – the alternative is using a plastic bottleD: Old people want a top that comes right off, they don’t have the hand strength to unscrew the topDefective product, foreseeable unintended use.

Humidifier Hypo 2:F: So now will need a latch on the top, so the top won’t come off. Get complaints from the elderly that they can’t handle the latch. Going to make an old person model. This will have all sorts of warnings not to use near kids. So now grandma buys it and uses it near the grandkid when he visits and the same thing happens

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Massachusetts Court held that the warnings weren’t adequate because no matter where the warning was you would use it near kids sometimes (Vassallo v. Baxter Healthcare Corp.)

Certain products can have warnings and not be sufficient because no matter what people aren’t going to follow it

Crane with Cables Hypo:F: Have a crane with steel cable. Have different size / strength steel cable (thicker is stronger). One day the worker picks up the 5 ton instead of the 10 ton, the cable breaks and people are injured (rainy day and can’t see the cable)P: Fellow servant doctrine – going to sue the manufacturer of the cable. Design alternative that is a color strip. D: The only people that use this is trained construction peopleH: Court said that despite the fact that people are trained, the manufacturer had to realize that it could be used in situations where people don’t have the opportunity to use extreme car in getting the cable (could be dark, etc.)Doesn’t matter if the person using the product is trained, if it is still reasonably foreseeable that someone could make a mistake the manufacturer is liable.

Can of Tile Glue and Pilot light Hypo:F: Can of tile glue and you put it on the floor and put the flooring tiles on it. Comes in a can like a can of paint. One of the warnings says “flammable, do not use near an open flame”. Guy decides that he needs to upgrade the cabin that he uses on the weekend, old cabin, old appliances everything. He fixes up the floor and starts putting the stuff on with the tiles. The whole thing blows up severely injuring. The pilot light in the stove was in side and the fumes were flammable and they got out and the vapors ignited .P: Defective product, the warning was inadequate because the degree of flammability of the vapors was not adequately conveyed because of the manner that this could be used (in the kitchen near a stove, or a concealed flame in the water heater in the basement). If it was that flammable they should have articulated what else could start the flame. D: Warnings were on the product.Warnings need to sufficient to warn of the full extent of the danger.

Can of Tile Glue and Pilot light Hypo 2:F: This time has all warnings that you could possibly have on the can. Same thing happens.P: Says there were too many warnings, couldn’t read them all, didn’t know which ones were the most serious. D: The warnings were there, should have read them, presume that they are read. H: Defendants can presume that the warnings are read. But too many warnings is a warning defect. Even if you don’t read the warnings, you can still sue if they are insufficient.

Inadequate warnings Long term product with a short term warning (on a tag or something) If you have too many warnings so they are so overwhelming that no one reads them

o Can assume that the warnings are read, but even if they weren’t and they are inadequate, the P can still sue.

Drano Under the Sink Hypo:F: Drano used to be sold in a can. Takes the Drano out from under the sink and blows up in her hands. And the chemicals splash allover her face and cause injuries and blindnessWoman sues the manufacturer and the A&P (strict liability applies to the retailer as well). Don’t know why the

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can blew up, but the only way it could have happened is because moisture got into the can (powder kind, not liquid), it expanded. It exploded because it was a metal can with a screw top, and the weakest part of the cans were the seems not the top. Eventually the seems blew and the whole thing blew. If this had been a brand new can, she wouldn’t have had any problem. There was a warning about not getting moisture into the package. She testifies that she didn’t get any moisture into it. P: Two defects: Manufacturing Defect, the moisture must have gotten in the can at the manufacturer because she didn’t do it [if there was a leak in the can the vapors would have escaped and it wouldn’t have blown up]. Design Defect: Moisture must have gotten in (res ipsa – she doesn’t know how it happened) and the top should have been a pop top so that it blew at the weakest point and didn’t explode. P can use the new design with a plastic top to show viability of an alternative design (but not admissible for negligence). She also says that it was foreseeable that this would be stored under the sink, that’s where everyone stores it. So it should have been made so water didn’t get in or warn not to store under the sink.H: She gets to the jury on the defect design, jury finds against Drano, but for A&P. (Jury nullification - Jury didn’t like the idea that the retailer should be liable just for selling the stuff)

Jury Nullification When the jury finds contrary to law, they are nullifying or rejecting the subsistent law

o i.e. in England where the difference between a misdemeanor and a felony was stealing 1 additional pound, the jury would often find people who stole more than a pound guilty of the misdemeanor b/c they didn’t want to convict of a felony.

Dangerous Antibiotic Hypo:F: There’s a pharmaceutical product – antibiotic. High powered antibiotic that’s been approved for certain infections. Approved in a limited use because it has rare and serious side affects. It can cause aplastic-anemia. This drug becomes one of the largest selling antibiotics in the US. Drugs are sold by pharmaceutical companies, used to be sold by “detail men”. 11 year old girl has a cold and goes to the doctors (doctor 1) and the doctor prescribes the antibiotic for 10 days. Mom calls the doctor and he wont’ give another dose, so she calls another doctor (doctor 2) who prescribes it over the phone. Then the girl still isn’t better so the mom goes to the pharmacist and gets a 3rd prescription from the pharmacist. The daughter keeps getting worse and its found out she has aplastic-anemia and she dies. Warnings are on the product that go to the doctor. P: Mother sues doctor 1, doctor 2, the pharmacist and the drug manufacturerDoctor 1 (Defense): Not me it was the other 2. Doctor 2 (Defense): Not me it was the other 2. Pharmacist (Defense): She was already taking the drug, the harm was already done (causation defense), my prescription didn’t matter. [I wasn’t negligent, Pharmacists can only be sued in negligence. ]Manufacturer (defense): Nothing wrong with the product, we gave warnings (doctor 1 ignored the warnings)

P gets around this by saying: very popular, they are responsible because it was marketed extensively through the detail men

o Overly marketed and the information was distributed by the detail men Plaintiff puts together the over-sale with the detail men

o The detail men are undercutting (undermining) the warning of the producto Manufacturer is now responsible for doctor 1

Drug itself can cause aplastic-anemia, undermines the cause in facto Jury can consider

H: The jury finds everyone liable, Pharmacist – shouldn’t give a prescription, Doctor 2 – should have found out that there was a prescription available, Doctor 1 – once you get past the

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causation defense, he had clear warnings and shouldn’t have used it. He’s negligent in prescribing, even though the manufacturer is liable for a warning defect (because the undermined the warning). She just had a cold, didn’t have one of the more serious diseases.

Can’t do anything about the mom because she wasn’t negligent in her care (Her conduct may have been foolish). The defendants have a duty to keep her from practicing medicine.

Plaintiff’s Conduct Contributory negligence and Assumption of the risk, Patent defects, modifying machines

are all plaintiffs conduct Can have two different meanings / implications

o 1. Misuse of the product Daly v. General Motors Corp. Rule of law that causes problems: Requirement that manufacturers that

design products that are safe for foreseeable unintended uses o 2. Foreseeable misuse Comparative law in the area of products, called

Comparative Causation There’s a defect, and the plaintiff wouldn’t have been hurt if he didn’t do

anything Dissenting judge in Daly says that once you permit comparative

constructions in the tort/definition of product defects, you’ll come up with baby splitting rules

o Will come up with a finding that the product was defective as well as misuse

o 3. Can be something wrong with the product and something wrong with what the product did

Clear demarcation between a product that is defective and one that isn’t Defective product – injures someone because its defective and its used in a foreseeable

unintended use Non-Defective product – injures someone because it was misused

o Used in an improper dangerous way

Dissent / Concur in Daly Says that shouldn’t knock out anything

Circus Knife Thrower Hypo:F: Guy joins the circus and talks a girl into joining the circus with her to be a knife thrower. He decides to use regular kitchen knives, but they aren’t balanced for throwing. P: Girl sues the guy for being negligence and wants to sue the manufacturer, saying that it’s a foreseeable unintended use. Throwing kitchen knives is a misuse of the product.

Daly v. General Motors Corp.Using a chain saw to cut your toe nails (in the dissent) is a non-defective product that is misused

Texas Carburetor Hypo:F: Distributes gas through the car. Sits on the engine. The carburetor fails after a few months, it was a bad carburetor. There was a manufacturing defect in this carburetor. This guy is handy, so he takes out the old carburetor and replaces it with a new one. He’s making a left turn and the car stalls and he’s left in the middle of the street. The car stalls because he put the replacement

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carburetor in backwards. The original carburetor has a defect, it didn’t cause the accident, but caused him to replace the carburetor. P: Foreseeable that when a manufacturer sells something with a defect people will try to fix it. D: He modified it, it was an after market item. And its not foreseeable that he’d install the new one wrong.H: Court said that it was a defective product, you will. However you have comparative causation and the jury determines how much of the accident was caused by the negligence backwards installation and reduces the verdictNote: Can’t sue the new carburetor manufacturer because there were clear instructions.Comparative causation can mitigate the defendant’s liability, if the act is so wrongful it can’t be considered a foreseeable unintended use, its just a misuse. [This is a good example of inappropriate plaintiff’s conduct]

What kind of conduct do we compare? What kind of conduct don’t we compare? Have the case where they said that it is as if you read the warnings If the defect isn’t communicated then the manufacturer should be liable if there’s too

much warning, because the most important warning isn’t read Assume that you read the instructions and then look to see if the warning was adequate

Ayers v. Johnson & Johnson Co., 818 P.2d 1337 (Wash. 1991)Presume that an adequate warning would have made a difference (this is like Lone Palm Hotel) can’t defend on the ground that the warning wouldn’t have made a difference.

LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir. 1980)F: Car is going over 100 miles per hour& driver is drunk. Claimed defect is in the tires. There was a warningP: Bad warning, the manual didn’t state whether the tires on the car were or were not of high speed caliber. Not an adequate warning. It also assumed you would investigate to make sure the tires were the right type. D: says he was drunk and he was speedingP: Not just foreseeable, but expected that it would be driven at over 85mph because of the allure of the speed of the car D: says misuse of the product (as far as being drunk), theory is that if he wasn’t drunk he wouldn’t have been going 105mphP: says that everyone speeds and everyone drives after drinking. Can’t sell a car that’s only safe for someone sober to drive. Foreseeable undesired behavior. Drunk driving and speeding are foreseeable misuses of cars. Cannot make vehicles that are only safe for sober, law abiding citizens to drive.

Latch on the Screen Window:– Foreseeable misuseF: Screen window with the bad latch, kid falls through the window and is injuredH: Using the screen as a safety guard is not a foreseeable use, it’s a misuseNot all accidents are foreseeable unintended use. You can have pure misuse if the defect is something that the manufacturer didn’t foresee and didn’t have a duty to protect against. This is a proximate cause issue – the defect is not the proximate cause of the injury because the manufacturer had no duty to make the screen safe as a restraint. Limiting duty to certain design aspects.

Hernandez v. Barbo Machinery Co., 957 P.2d 147 (Or. 1998)F: Didn’t know that the machine was on

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P: Manufacturer is responsible for normal inattentiveness.D: The Plaintiff’s conduct comparative by him not being attentive. Is the plaintiff’s conduct inattentiveness (not perceiving the danger)?H: The court held that inattentiveness is foreseeable unintended conduct and it is not comparative.Inattentiveness can be foreseeable unintended conduct and it is not comparative.

§17 Apportionment of Responsibility Between or Among Plaintiff, Sellers and Distributors of Defective Products and Others

(a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standard of care

o Means that the plaintiff’s conduct is separate conduct to reduce liability when it is the kind of conduct that justifies reducing liability

o Looks at whether it was foreseeable unexpected use or not (b) The manner and extent of the reduction under Subsection (a) and the apportionment

of plaintiff’s recovery among multiple defendants are governed by generally applicable rules concerning responsibility

Kassouf v. Lee Brothers, Inc. 26 Cal. Rptr. 276 (Cal. App. 1962)F: Guy eats the worms and maggots (doesn’t look at the bar while eating it)Question is whether this would violate the responsibility to eat in a normal and prudent manner? Or whether the normally expected rules of the second restatement D: says that anyone who ate it would have notice, and the only people who didn’t notice it would be negligent H: P was under no duty to discover latent defects in D’s productPlaintiffs don’t have the duty to discover latent defects in products.

Warnings and Instructions

Hood v. Ryobi America Corp.:F: Guy removes the blade guard on the saw and the blade comes off injuring him. He thought the guard was just to protect things from getting in the blade. There are warnings about how not to use it. Also in the instructions.Warning and instructions can blur.

Hair Care Product Hypo:F: Put stuff in your hair and you put on the curlers. And then you wash it out. Instructions say to only use for 30 minutes and test before using. It says “no more than ½ an hour”. P leaves it on too long gets burns on his scalp.P: Inadequate instructions, didn’t tell me all the dangers.D: Says that the warnings was in the warnings and instructions and everyone is presumed to read the instructions. H: If you leave it in too long you can’t sue. Note: If the formula changes then there will have to be significant warnings to alert to the changes in the product (if the changes are so severe that it would cause you injury if used in the old manner) Instructions are perceived as more likely to be followed, and clearer limitations on the product and its also perceived that people will read the instructions. Perceived to be read.

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Over Inflated Tire Hypo:F: Tire, says don’t inflate to higher than 60 pounds. When you are driving you only have 30 or so. This is a tubeless tire, they come with no air in them.You usually put in a lot of air (to make sure that there isn’t a leak, over fill it some) and then let the air out to the proper pressure. Guy doesn’t have a gage but he has access to the air pressure pump. Fills it up and at about 80 lbs it blows up causing injury.P: Product liability, the defect is in the warning. The warning of the 60 lb max isn’t sufficient.D: Manufacturer says that on a cost benefit analysis they wouldn’t want a tap that blows out because it would destroy the tire and it would have to be thrown out. Say that they have a sufficiently great toleration that this shouldn’t be a problem. There are no other viable designs. H: The warning is insufficient because it doesn’t say anything about explosion and it isn’t severe enough to give people sufficient incentive to have a guage.Warnings that don’t detail the most severe consequence often are not sufficient because they do not give a significant incentive to take care.

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