Torts = area of the law that deals with claims for legal relief (almost always monetary compensation) Civil case, not an issue of G or NG, involves liability (what is owed to someone when you breach a duty

of care to him)

Purpose of tort action:1. Compensation- someone has suffered a loss or is suffering, and money is an end in itself2. Corrective justice (fault should not go unpunished)

a. Addressing moral balance. When someone suffers a loss, who should be responsible? Who should bear that loss?

b. the party who caused pain should be the source of compensation3. Social control or accident reduction deterrence of negligent behavior

3 Main Theories of TORT LIABILITY:1. Intentional Torts – fault-based concept2. Negligence – fault-based concept3. Strict Liability – liability without fault

Intentional Torts: To bring a case to court, need to establish prima facie case = first appearance of sufficient evidence and

facts to proceed with a case: 1. Volitional act actually occurred – one dictated by the mind (ex. Strike during epileptic attack not

volitional. Being pushed into someone else not volitional. Reflexive motion to help someone from falling volitional.

2. “Intent” – A person acts with the intent to produce a consequence if: 1) the person has the purpose of producing that consequence, or

2) the person knows to a substantial certainty that the consequence will ensue from the person’s conduct (knowledge)

i. Intent does NOT need to include the desire to cause harmii. Intent does NOT need knowledge that the harm will happen

3) Transferred Intentiii. Intentional tort transferred from intended person to another that suffers the harm. So that

victim should not have to bear the burden of bad luck. The intent to commit tort against person A suffices to complete the intent requirement of person B.

iv. Does not apply to intentional infliction of emotional distress 4) "Substituted Intent"- Professor's preferred term

v. Intended to inflict one tort and instead inflicted a different tort. vi. The intent to commit one intentional tort suffices to satisfy the intent requirement for

another intentional tort3. Result: varies depending on tort4. Causation

Reckless (NOT used in Torts, except for emotional distress) Defendant's mindset- getting the terms down:

o Act- volition. Voluntary choice to do something. "choice to move some muscles"o Intent- purpose or knowledge of consequenceo Motive- broader objective/justification. Why you did the act. Might come in as an affirmative

defense. Liability:

o Policy to allow for remedy in the case of an intentional tort

1) Battery: an intentional touching which is harmful or offensive

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a. Intentional i. Since do not need to intend harm- horseplay, pranks, or jokes can be a battery regardless of

whether the intent was to harm (Ghassemieh v. Schafer)- Girl pulls chair out from under teacher with intent to have her fall as a class prank.

b. Harmful or offensive touching i. (offensive to a reasonable person) However, a defendant may be liable if he knows the

person is hypersensitive and proceeds anywayii. The contact need not be actual physical contact, so long as there is contact with clothing or

an object closely identified with the body (Fisher v. Carrousel- Fisher, a black man, is at a hotel standing in line for a buffet lunch, and a waiter grabs a plate from him saying he cannot be served here)

c. Causation is voluntary – accidental touching does not counti. Can be direct or indirect

d. Non-consensual Personal indignity is the essence of an action for battery (Fisher v. Carrousel) A defendant doesn't need to be aware of the battery at the time (ex- unauthorized surgery on

unconscious patient) Transferred intent (applying to assault and battery) = where actual contact occurs but the defendant

intended only an assault (apprehension of contact or confinement), still a battery

2) Assaulta. Intentional act

i. Words alone not enough. Words can constitute assault if together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person

1. (Vetter v. Morgan- woman in car was harassed by 3 drunk men with words, violent hand gestures, spit, and revving engine. Has words + acts to be assault.)

ii. Conditional words are sufficient though- "Your money or your life" would be assaultb. That creates fear or reasonable apprehension

a. Apprehension not the same as fear or intimidation. Apprehension is more like expectation- that the harm will happen.

b. Apprehension must be reasonable i. However, defendant could still be held responsible if he knows of a person's

unreasonable fear and puts them in apprehension anywaysa. Need to believe someone was able to do harm.b. Also, person needs to be aware at the time (duh). Different than battery. But the

person does not need to be aware of the exact identity of the defendant.c. of immediate harmful or offensive contact

i. (can't be a threat for a long time from now Feb. 25th, etc)ii. Just need to appear that there will be no significant delay

d. NOT a defense:i. That the defendant lacks the ability to actually do the harm (ex- still liable for pointing an

unloaded gun at someone, if it was reasonable for them to believe that it was loaded) (Kaplan)

ii. Plaintiff’s ability to prevent the threatened harm by flight or self-defense3) False arrest or imprisonment: an act of restraint on another person which confines that person in a bounded

area. a. Intent to confine or restrain P to bounded areab. Voluntary

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c. Means of Confinement or Restrainti. An act of restraint can be a physical barrier (such as a locked door), the use of physical force

to restrain, direct or indirect threats of force, a failure to release, or an invalid use of legal authority.  

1. Herbst v. Wuennenberg- Woman got mad at republicans for checking mailboxes for voter addresses and so she stood in the doorway and made them stay there until the police arrived. No False Imprisonment found because no real act of restraint. Plaintiffs could have left at anytime.

ii. Insufficient for confinement: moral pressure and future threatd. Confinement

i. Must be within a boundary. Excluding someone from a place is not confinement.ii. Time of confinement does not matter- can be short time

iii. A reasonable and reasonably discoverable alternative means of escape negates a confinemente. Bounded area

i. An area is bounded if freedom of movement is limited in all directions

Confinement/Restraint Plaintiff must prove that he

o know he was confined at the time he was confined OR Example: if doors are locked while sitting in class but you don’t know, it doesn’t count as FI

o the confinement caused harm Defendant must have had the apparent ability to carry out their threats of force unreasonable delay in releasing a person, who is entitled to be released, or such delay in calling, taking him before

or turning him over to proper authorities

Defense:When you can confine:

Getting goods back (protection of property privilege)o Owner of property has right to take action in defense of his property. Owner of store has

right to hold potential shoplifter in store- must have reasonable belief of theft, and confine in a reasonable manner and for a reasonable time for a reasonable investigation

o Teel v. May Dept. Stores Co.- Lady buys stuff from a store, the store thinks she’s shoplifting so they imprisoned her falsely. Holding her after goods were returned was unreasonable. Before was ok.

Waiting for authorities (arrest privilege)

4) Intentional infliction of emotional distress (IIED): One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress

a. Intent to cause or reckless disregard of causing severe mental distress to D i. Generally in torts we do NOT use the word RECKLESS, in this case it is OK :)

ii. Example of IEED because reckless: Dana v. Oak Park Marina- Operator of Marina was taping through its video surveillance system women during different stages of changing their clothes including nudity. The tapes were displayed and traded

iii. Intent requirement softened for this tort. Different than the others (purpose or knowing) Can prove in traditional sense (purpose or know) but then also can prove if person had a reckless disregard of the probability

iv. Can't do transferred intent herev.

b. Extreme and outrageous conduct (objective standard)

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i. Generally offensive or insulting language will not be characterized as "outrageous"- except if special relationship with plaintiff (authority or influence) or known sensitivity of plaintiff (Barbri)

ii. cruel practical jokes, Economic coercion (Eckenrode- Widow was denied life insurance benefits after her husband’s accidental death, the policy covered this type of death)

iii. Act is not immediate threat of harm (or else it would be assault)c. D suffers severe or extreme emotional distress as result of act

d. Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (CAUSATION)

i. In Bystander Cases – when D causes IIED to a third person(P) related to the injured victim1. P must be present when the injury occurred to the other person2. P must be a close relative of the injured person3. The D knew that P was present and a close relative

Other notes:e. New Tortf. Different from parasitic damages

5) Trespass to Land: a person’s unlawful entry onto the land of another, even without damagea. Direct or indirect physical entry by D onto another’s propertyb. Intention to enter (volition to physically commit the action of entering)

i. Just need intent to enter property. Doesn't matter if you thought it was yours or not.c. Without consent of property owner NOTE: Actual damage not required, damages calculated by loss of potential use (applies to Trespass

to Chattel as well) "land"- includes airspace and subsurface space

o Low flying airplane is trespass Plaintiff needs to prove:

o Physical entryo Invasion was unreasonableo Or that it caused actual damage

Trespass of land requires intended entry, which need not be harmful, and which may be direct or indirect (Indirect v. direct was the older view)

o Martin v. Reynolds Metals Company - this is the one where plaintiff dusts the defendants land with microscopic metal particles unknowingly. Trespass found.

When a non-object enters the land (light, sound, smell) that is usually nuisanceo Amphitheaters v. Portland Meadows- light from a racetrack flooded over into a drive-in

movie theater. No trespass found. The mere casting of light upon the premises of another without any proof of actual damage does not render a defendant liable. More like nuisance

The Law of Nuisance: The plaintiff must prove that the defendant caused a substantial, unreasonable interference with the plaintiff’s quiet use and enjoyment of real property. Plaintiff needs not prove a physical entry, but normally must prove actual damages.

Mistake as to the lawfulness of the entry is no defense

6) Trespass to Chattels and 7) Conversion Trespass to Chattels: An intentional interference with the possession of personal property that causes some actual injury to the property. 

Liability exists only when a showing of actual damage to the property interfered with. Conversion:  Viewing the interference of the chattel with a sense of deprivation of the property.

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For both trespass to chattels and conversion, the plaintiff must prove that the defendant intended to interfere with the chattel. Case: Pearson v. Dodd. 417 F.2d 701.

Removed documents, made copies, published them No injury to the property was done=no trespass. No conversion because there was no deprivation of

property.  Trespass to Chattels Conversion

A lesser wrong- Person interferes with the property of another, but not so much as to completely take it over like its their own.

Person has completely taken over that thing like he owns it. So needs to pay for it like it was sold to him.

Measure of damages: the actual diminishment in value of the thing

Measure of damages: the full price/whole value of the property interfered with

Plaintiff must prove: showing of actual damage to the property interfered with

Plaintiff must prove: only nominal damages

Plaintiff must prove that defendant intended the interference with the chattel

Plaintiff must prove that defendant intended the interference with the chattel

Remedy: damages for repairs, loss of use, and incidental damages

Remedy: fair market value of the chattel, plus incidental damages

General Defenses1. Self-Defense

a. Actions must be reasonable (deadly force not allowed if safe retreat is available)Self-Defense- a matter of proportion

Can only be asserted to prevent or resist an attack, not to retaliate Person can only use the amount of force that he reasonably believes is necessary to prevent the attack Deadly force only if he reasonably believes that doing so is necessary to prevent an attack of deadly

force There is also privilege to use force to protect others from attack, without limiting the privelege to

family members when self-defense is not established:o Not jusitified in belief that he was in dangero Defender uses excessive forceo Defender continues to use force after aggressor is disarmed or helpless

 Case: Tatman v. Cordingly 672 P.2d 1286 (1983) p51

Old man and young man battery. Younger man says it was reasonable explanation for what he did. Reasonable response to a reasonable threat. Necessity if one acts in self-defense is both subjective (believe that a real danger exists) and objective (this belief must be reasonable)

b.2. Defense of others

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Defense of Others: Justification is offered for what would otherwise be a battery.

a. For defense of others, must have reasonable belief that the person is entitled to self-defenseb. Court policy choice: that people should go to the assistance of others vs. people should stay out

of other people's business c. Retreat not necessary- for most courtsd. Actor needs to have a reasonable belief as to the other parties' actions (do not need actual

necessity)3.4. Consent

Consent not just a question of fact where we look at words and deeds. We also must look to the public health objective trying to be served.

From books: Express consent- By words or action

Consent by mistake still valid. (unless defendant caused or knew of mistake) NOT express consent:

o When induced by fraudo When given while under duress (force or physical threats of force). Must be threat of

PRESENT action. Implied consent- when plaintiff is silent in a situation where a reasonable person would object to the

defendant's actions Ex- Emergency medical situation Ex- injuries in sports

 O'Brien v. Cunard S.S. Co. 154 Mass. 272 (1891) p45

Ms. O’brien gets in line and holds up her arm for vaccination. She then sues the doctor for battery and negligence for injuries arising out of the vaccination

Consent by Ms. O'Brien can only be determined by her words and overt acts. Her actions show that she consented to being vaccinated

Surgeon and his employer are therefore not liable for injuries arising from the vaccination, because Ms. O’brien consented to the vaccination.

Overall v. Kadella 138 Mich.App. 351 (1984) p47 A fight breaks out after a hockey game and the defendant hits plaintiff from the opposing team,

fracturing the bones around his right eye. Plaintiff sues. Court says that a player is charged with a legal duty to every other player to refrain from conduct

proscribed by a safety rule of the game. The defendant's battery violated this rule and legal duty. Ruling in favor of plaintiff. Contact foul within a game may be a tort because outside the consent of the rules of the game.

However, there may be no tort if rules are customarily broken. Look at both rules and customs. Note:

Analyzing a battery claim arising from a fight:Fighting for sport- defense will be one for sports casesConsensual fighting in anger- defense will be self-defense, though debatableUnconsented attack met with self-defense

McPherson v. McPherson 712 A.2d 1043 (1998) p50Nancy McPherson sues her husband Steven McPherson for assault and battery due to her husband infecting her with a sexually transmitted disease HPV he acquired through an extramarital affair. Steven shows no outward signs of HPV and "did not know or have reason to know" that he might have HPV at the time he infected Nancy"One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it" RS(2d)

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consent may be compromised if the person knew or misrepresented the harm involved. But Steven did not do so in this case. Therefore, no assault or battery here.

5. Necessity (privilege)a. Proportion is a large part of self-defenseb. Body more valuable than propertyc. Necessity can negate the intent of a tortd. Policy: important that people can save themselvese. Public necessity: cases involving destruction of property to protect public (gov't would get

compensation, but an individual would not)f. Private necessity: individuals under an act of God (person must pay for any damage done)g. May assert this defense if a reasonable person under the circumstances would believe it was

necessary to injure the plaintiff's property too Ploof v. Putnam 81 Vt. 471 (1908) p61

h. Plaintiff Ploof was sailing his sloop with his family aboard , when a sudden storm began that put the people and ship in danger of destruction. The Plaintiff docks the boat at the defendant's dock, but the defendant's servant unmoors the ship, which then is destroyed in the storm, leaving his family injured on the shore.

i. necessity will justify entries upon land and interferences with personal property that would otherwise have been trespass. This especially applies when such force or trespass is required to save a human life

j. So here, not a trespass Vincent v. Lake Erie Transp. Co. 109 Minn. 456 (1910) p63

k. Steamboat captain defendant, decided to keep his boat docked during a storm, which damaged the dock. Court decides that the boat owners must pay for the damage.  

l. You can use something that is not yours in an emergency, but must return it/compensate for it when emergency is over

m. public necessity...may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

6. Defense of propertya. But can never hurt someone in doing so, people > property

Katko v. Briney 183 N.W.2d 657 (1971) p55Briney set up a "shotgun trap" in the bedroom of their unoccupied farm house to deter intruders. Plaintiff breaks into collect antique bottles and jars, goes to the bedroom, and is shot and injured by the shotgun trap. There is no right for someone to use force that could cause death or serious bodily injury to prevent a threat to land or chattels, unless there is a threat to the defendant's personal safety. Setting up a spring gun is justified only when the trespasser was committing a felony of violence , or a felony punishable by death, or where the trespasser was endangering human life by his act."Court affirms ruling in favor of injured plaintiff.

7. Defense of right to recapture chattelTeel v. May Dept. Stores Co. 348 Mo. 696 (1941) p58

Lady buys stuff from a store, the store thinks she’s shoplifting so they imprisoned her falsely.False imprisonment is: unreasonable delay in releasing a person, who is entitled to be released, or such delay in calling, taking him before or turning him over to proper authoritiesOwner of a property has right to take action in defense of his property. Owner of a store has the right to detain a person therein, for a reasonable time for a reasonable investigation, whom he has reasonable grounds to believe has not paid for what he has received or is attempting to take goods without payment.

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 Reasonable to hold for

Getting goods back- protection of property privelegeWaiting for authorities- arrest privelege

No other reasons. Anything else is false imprisonment.

Note : In defense (of self, others, property, right to recapture chattel), there exists liability where excessive force is used, proportional to amount of force which is considered excessive

Exam: Intent is proven through showing:

o Purpose to bring about resulto Knowledge that result is likely to occur

------------------------------------DAMAGES FOR INTENTIONAL TORTS-------------------------------------c. 3 Types of damages that can come out of a tort

i. Nominal- symbolic sum in a case with no loss but with a legal wrong done.1. Trivial Sum of money awarded to a litigant who has established a cause of action but has not

established that he is entitled to compensatory damages. Restatement (Second) of Torts 907.ii. Actual/Compensatory- the foundation of tort case

1. Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him. Restatement (Second) of Torts 903

2. Restoration of the plaintiff to his of her pre-injury condition.3. Negligence and Strict Liability- must prove compensatory damages

iii. Punitive/Exemplary- intend to punish. potentially large (not every tort calls for this)1. Awarded to punish him for his outrageous conduct and to deter him and other like him from

similar conduct in the future. Restatement (Second) of Torts 908 (1).   

d. Note: "costs" refers to court costs. Does not mean attorney's fees. Each party pays their own attorney's fees.

e. Parasitic damages- added on to regular damages for pain and sufferingi. Not a separate cause of action

ii. Diff. from infliction of emotional distress, which is its own cause of actionf. Compensatory Damages in Personal Injury Cases:

i. Medical expenses (Special Damages)ii. Loss of Earning capacity (Special Damages)

iii. Physical and mental pain and suffering (General damages) Personal Injury Case: Banks v. Sunrise Hospital.

Facts: Banks suffered cardiac arrest undergoing surgery-> Loss of enjoyment of  life. Application: Damages were not duplicative or excessive.

g. The only intentional tort that needs damages is emotional distress.

Negligence8

1. Negligence if you create a reasonably foreseeable unreasonable risk2. “Negligence” used in two ways:

a. refers to the conclusion that the D failed to exercise reasonable careb. refers to one element of liability theory

3. Claim of negligence requires proof of:a. Duty of care - Does it exist?

i. Actor has a duty to exercise reasonable care when the his conduct poses a risk of physical harm to other people

ii. In most cases, existence of such can be assumedb. Breach of Duty of Care

i. Must show D did not act to the standard of ordinary carec. Causation

i. Cause in Fact (Factual)ii. Proximate Cause (Legal)

d. Damage (Actual harm)i. Kind of the first sign of negligence, because without it, you have no negligence claim

ii. The first component of the prima facie case4. Minor D

a. Child under the age of five is incapable of negligenceb. Held to standard of a reasonable person of the same age

i. Unless engaging in an adult activityc. Other things to take into account:

i. Mental capacityii. Intelligence

iii. Experience

Duty in Negligence Cases1. No Duty Rule, Nonfeasance = clear inaction

a. Typically, cannot be held accountable for one’s inaction (Bad Samaritan rule holds)b. For a court saying that there is no duty- must relate to a category of casesc. Public Policy Justifications:

i. Open floodgates - could sue EVERYONE who didn’t help1. Administrative problem – too many cases to try, Ds to find2. Moral problem – how to decide who is responsible or not?

ii. Danger of creating laws which impose requirement of action on people, purpose of laws is to deter negative actions, not to encourage positive actions

iii. Requires people to make a judgment call – may put rescuer in danger as welliv. Takes away personal autonomy to choose one’s actions

1. Free personal choice will result in the best results – allow those who know how to help to provide it (doctor, rescue personnel, etc)

2. Most states have statutes (Fireman’s Rule) which say if one does help, he will be protected from liability unless his conduct constitutes gross negligence (breach of professional duty)

a. Purpose = to encourage those who are qualified to provide aid to do so without fear of liability

d. Exceptions:i. Volunteer exception, aka “Good Samaritan Rule,” aka “undertaking” exception

1. One who volunteers to assist another undertakes a duty not to make the situation worse (duty of reasonable care)

a. Has duty to continue with help, if volunteer stops nonfeasance9

b. Different from the volunteer does step in, finishes his help, but did so negligently misfeasance

ii. Special relationship with victim exception 1. Special relationships between D and P that may generate affirmative duty of care2. Note: there is a tendency to overuse this exception3. NOTE : Don’t use this exception without explaining why it exists!

a. Certain level of trustb. To keep you safec. control

4. Ex: Tarasoff case, psychologist is held responsible for not reporting dangera. She was in a better position to warn, had ability to get the information

necessary to protectiii. Prior conduct exception

1. Actor who does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, is under a duty to exercise reasonable care to prevent the risk from taking effect

a. Ex: Driver in car accident he caused has duty to help injured party in other vehicle

iv. Perpetrator exception1. Situation in which the P is injured by the affirmative conduct of a third person and

set forth certain relationships between D and the third person that may generate an affirmative duty of care

a. Ex: Prison allows felon to escape, has a duty of care to people who live around the prison to apprehend suspect and warn them of his presence

2. Misfeasance = clearly affirmative misconduct3. Special Cases:

a. Third Party Torts and Crimes (Perpetrator exception)i. Tarasoff v. Regents of U.C.

1. Basically a nonfeasance problema. Cases tend to focus on applying an exception to the nonfeasance ruleb. Principal factor that triggers liability is superior ability or knowledge of D

to control or influence perpetrator’s conduct and relative inability of victim to protect himself

1. Duty - Plaintiff must establish that the defendant had a duty to conform its conduct to a specific standard. Duty of care to avoid creating unreasonable risksSource of duty- your activity that has foreseeable risksObligation to do something carefully because it is foreseeable that you could create some harmNote: more demanding duty of utmost care for common carriers (in some jxs) and hotels/innkeepersArises just from doing something that creates foreseeable risk

Two approaches to establishing DUTY:Hand formula break it down into its comparative components, DUTY EXISTS when:

o B < L P where B = Burden of taking preventative measures against harm P = Probability of harmL = Severity or Gravity of the Loss

o TJ Hooper: Custom sometimes used as a defense, but burden still rests on D to prevent harm if it is easy to come by and cheap to do

Reasonable person standard - were D’s risks acceptable?o Objective standardo Stupidity ≠ excuse

Land Occupier Duty10

1. Owner is typically considered occupiera. If land is leased to another, lessee = occupier

2. Occupier owes duty of reasonable carea. Duty to exercise due care arises out of possession aloneb. Will be liable if negligence, cause in fact, legal cause, and damages are established

i. “Natural conditions” are typically excluded from the occupier’s responsibilities1. Examples: Highway injuries, tree falling injuries, urban land occupiers

ii. NOW: D’s can be held liable for injury incurred on their land1. Someone should be held responsible – cannot sue God so hold landowner liable2. Control factor – D have the ability to control what happens on your property

which no one else hasa. Court reads into that a responsibility to do something (affirmative duty)

3. Allows P to go court to allow a jury to decide, could still end up with D prevailing, but at least gives P a chance at recovery

3. Categories of visitors to occupier’s land:*** Jury decides which category P belongs ina. Trespasser – one who enters w/o any right to do so

i. Occupier only owes duty to refrain from injuring due to willful or wanton conductii. Exceptions:

1. Attractive nuisance doctrine protects injured children2. When occupier knows a significant number of trespassers habitually frequent a

particular and limited part of the land, or when a trespassers’ presence on the land has actually been discovered by the occupier, occupier has duty to exercise reasonable care

b. Licensee – one whose only privilege derives from occupier’s consenti. Occupier liability limited to injuries caused by:

1. Willful, wanton, or reckless conduct (same as for trespasser)2. AND Injury from intentionally exposing to danger

ii. Fireman’s rule - classifies rescuers as licensees and limits protection against injuries accordingly on theory that they are present by virtue of a privilege (are paid to do a job) rather than an invitation

c. Invitee – business visitor, comes on some errand with potential economic benefit to occupieri. A public invitee is a person who is invited to enter or remain on land as a member of the

public for a purpose for which the land is held open to the publicii. A business visitor is a person who is invited to enter or remain on land for a purpose

directly or indirectly connected with business dealings with the possessor of the land.iii. Occupier’s owes a duty of reasonable care w/ respect to activities and with respect to

conditions about which the occupier “should have known”4. Liability to Children:

a. Attractive Nuisance Doctrine – If a child is lured onto D’s property by something that looks like fun, and D has reason to know that something they have is attractive to children, then D has a duty of care to the child who is considered an invitee

5. Duty to Third Partiesa. Determined on case-by-case basis b. Court may determine that an actor has no duty or only duty is ordinary duty of reasonable care,

or leave it up to the jury to decidec. 3 justifications for making decisions on D’s standard of care as matter of fact for jury to decide:

i. There are an infinite variety of circumstances which may surround an event that causes harm to someone, tailor to the specific case

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ii. Allows successive juries to reassess what precautions are reasonable as social, economic and technological conditions change over time

iii. Jury brings a winder array of practical experience and knowledge to that the decision than does a single judge

2. Breach - Plaintiff must prove that the defendant’s conduct failed to conform to the appropriate standard.Decide whether there is a breach by looking at what a reasonable person would doA reasonable person doesn't create unreasonable risks2 ways to determine:o First look at what defendant did. Then compare that to what a reasonable person would do under

the circumstances. o What are the components of the reasonable person's thought process?

Hand's famous formula to determine negligence:o Is Burden greater or less than the Probability times the Loss?o If B < PL, there is negligence.o Iowa 1928 Houser v. Chicago case- woman wakes up in train bathroom against steam pipeso 1951 English eye case. Plaintiff with one working eye. Job involves hammering metal where

chips fly. No protective eyewear custom, but negligent anyways.The reasonable person:o Regularly:

Vaughan v. Menlove 3 Bing., N.C., 468 (1837) p79a. Man stacks hay in a way that increases the probability it will catch on fire. It does

catch fire and burns down neighbor's cottages. Court rules against defendant.b. Cannot hold liability for negligence based on the best judgment of the individual,

because there is so much variability here. We need to adhere to the rule of what a prudent man would do.

c. Need to apply objective testo For a rookie:

Hypo on Vaughan v. Menlove: strong intellect, but no info about hay Still responsible, because should have taken steps to learn

o For an expert: Hypo on Vaughan v. Menlove: for a firefighter Standard of care modified to be more demanding Standard of care includes those superior abilities

o When physically handicapped: In Roberts v. State of Louisiana, a blind man does not use his cane when going for a short

walk at work, and bumps into the Plaintiff, who falls and injures his hip. He was found to not be negligent because he did what a reasonable blind man would do: he had good mobility skills and did not have to use a cane in his familiar work environment.

o When you have mental limitations: not taken into account, unless individual has propensity to lose touch with reality and

knows ito When a child/teenager:

In Strait v. Crary, the 16 year old Strait is drinking, climbs out the window of a moving truck driven by the adult Crary, and the truck runs over and breaks his leg. The court finds that even though Strait was doing the adult activity of drinking, Strait must be held to the negligence standard for a child. He was required to use the same degree of care exercised by a child of the same age, intelligence and experience.

"age, intelligence, and experience"- all taken into account for a child

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If child is engaged in an "adult activity," then they are held to the adult reasonable care standard

o When intoxicated: Compare actions to what a sober reasonable person would have done Intoxication not a defense

To determine negligence and create more consistency:o Courts look to custom- custom usually equates with reasonable careo Courts look to what legislature has said

Negligence per se1. Borrowing the standard of care from the statute2. Presumption that statute violation is negligence in itself. 3.4. Hierarchy:

a. Statutory violationi. To apply, must show:

1. Protected harm (statute meant to protect against the harm caused)2. Protected class (P is within the group of people the statute is meant to protect)3. Prima facie negligence case

ii. Court will adopt the standard of care set about by the statuteb. Local ordinancec. What about a private corporation’s rules/laws? custom

i. More like evidence of what the standard of care is5. Once shown law was violated, do not need to establish any other elements of negligence

Defenses to negligence per se:i. Contributory negligence

ii. And that there was an excuse. In Tedla v. Ellman, it was found that going against a statute designed for pedestrian's safety did not constitute contributory negligence, because following the statute in this situation would have put the pedestrians in greater danger.

1. A defense in violating a statute of negligence- that it was the right thing to do under the circumstances

Res Ipsa Loquitur – “The thing speaks for itself” A way of proving breach and actual cause in a negligence case A way that the P can avoid getting his case dismissed for lack of evidence

Gets you to the jury, and then the jury must decide Burden is on the P to prove more likely than not, D is responsible

o P must show:1. Exclusive control – D is only person who could be responsible

does not mean you have to have actual physical control Can apply even if defendant shares control with another party An exception: If the duty could be delegated to someone. But: was the responsibility so

important that it should not be delegated to another? If so, can't delegate, and you are ultimately responsible.

Resultant harm does not normally happen without negligence Multiple possible defendants where you can't identify the actual person is ok- you can

still apply Res Ipsa loquitor. (Ybarra v. Spangard)

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Don't need to know the exact instrumentality either for res ipsa loquitor to apply. The injuries are enough (Ybarra v. Spangard)

2. Passive P, P did not cause harm directly (completely innocent, had no way of contributing to harm caused to him, ex: surgical procedure, was knocked out)

Special exception to exclusive control requirement: Ybarra v. Spangard (1944)o P could not show that his injury came at the hands of one specific Do D uses defense that P cannot show which D had exclusive controlo Court allows res ipsa to apply, holds that Ds cannot get away with negligence b/c all Ds had a duty

of care to P and actual harm resulted In group res ipsa case, burden of proof shifts to Ds

NOTE: Most courts allow P to plead both negligence and res ipsa loquitur* Objection: If you prove negligence, you don’t really need circumstantial evidence to prove your caseMedical Malpractice

Standard of care: Plaintiff must prove that the defendant failed to exercise reasonable care and that this substandard conduct was a factual and legal cause of the plaintiff's injuries.

Plaintiff must establish this through expert testimony (Melville v. Southward)a. Expert testimony can come from a doctor with a different specialty if:

a. Familiar with the standard of care (like would be an expert)b. The standard of care applies to their specialty too (identical)

b. For expert testimony from witness in same specialty- should the say:a. What people should do? Or actually do? Evidentiary force of custom. Custom only

evidence of due care and is not conclusive (like in TJ Hooper)b. Answer: In medical cases, the medical custom is conclusive on what the standard of care is

1. Custom powerful in medical cases2. Industry custom is controlling in medical situations3. Because ought not to leave it to laymen to 2nd guess how things are done in certain

professions. Would lead to vast unpredictability and doctors wouldn’t know how to act.

4. Very rare for court to go say custom was wrong. They did this in Helling v. Carey (about plaintiff who has vision problems but was not tested for glaucoma because the custom was not to test for it. Court says this was wrong. Cost low, and damage high)

c. Could be from the defendant's own testimonyd. Could be without testimony if the negligence is super obvious to the jury

Medical malpractice- another term for negligence, applied to the medical profession1. Informed consent

3. The info is such that the doctor should reasonably recognize that it is material to the patient's decision

a. 2 standards to determine scope of disclosure requirei. Customary practice- should disclose what a reasonable physician would customarily

disclose ORii. Materiality- the physician should disclose information he should recognize as

material to the patient's decision1. Materiality: the significance a reasonable person/doctor would attach to the risk

in making an informed decision about treatment2. Whether info is material depends on the severity of the potential injury as well

as the probability of its occurrencea. If severity of injury is very minor- then no duty to discloseb. If likelihood negligible- then no duty to disclose

3. Custom not conclusive

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4. What matters is what patients need to know5. Less predictable, so role of expert testimony has less significance6. More respectful of patient's autonomy, right to know7. More latitude to protect patient's interest

iii. Materiality standard does not incorporate a balancing test by the doctor (balancing risk to child/mother). Any material risk must be disclosed for patient to balance.

iv. Because courts are skeptical of this, need to show that a reasonable person would have chosen the alternative with the disclosed info

v.4. The doctor fails to disclose this information

2. Lost Opportunity Doctrine (see below in Causation)

Causation1. Cause in Fact (Factual)

a. But-For Test (used for vast majority of cases)i. The defendant's conduct is a cause of the event if the event would not have occurred but

for that conduct; or conversely, the defendant's conduct is not a cause of the event, if the event would have occurred without it

ii. Requirement is satisfied if D’s conduct is shown more probably than not to have been among the causes of the result the P seeks to attribute to the D

b. Substantial Factors Test (use as a substitute when the but for test fails)i. Use when there are two causes that produced the harm, where either one of them alone

would have been enough. Thus making it impossible for plaintiff to prove the "but for" test.

ii. If two causes concur to bring about an event, where either one of them would have been sufficient to cause the event on its own, both parties are held responsible.

iii. Requires that each D materially contributed to P’s injuryc. Miscellaneous Approaches (Limited Purpose Substitutes)

i. Burden Shifting 1. In these cases, need to shift burden to reach a just result. But-for test doesn’t

work, and substantial factor test does not work either.2. In special cases, court can shift burden of proof to D to prove that he did NOT

cause the harm to P 3. Prime example: Summer v. Tice: two hunters both negligently fire gun, victim

shot by one but by whom? One of them did it. If neither know, neither can prove it was the other, both held liable

a. But-for Test does not work – cannot say but for action of one, harm would not have happened

b. Substantial Factors Test does not work, because both Ds are equally likely to have shot him

ii. Alternative Liability 1. Where the conduct of two or more Ds is tortious, and harm to P was caused by

only one of them but there is uncertainty as to who, burden is upon each actor to prove that he was not the cause of harm

2. Pennfield case – Ds responsible for 100% of damagesiii. Market Share Liability

1. New theory of liability to deal with the causation/proof problem

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2. Permits apportionment of liability among defendant-manufacturers based on each one's share of the relevant market

3. A burden shift to take place4. Each D cannot disprove causation, is held liable for its share of the market5. Restricted to DES cases – If D company had 15% market share pays 15% of

damagesiv. Concerted Action

o Not about shifting burdeno About imposing liability on both who work in concerto all those who actively take part in a tort, further it by cooperation or request, or lend

aid or encouragement, or ratify and adopt acts done for their benefit, are equally liable with him

o P must show D’s conduct is more probably than not the cause of his injurieso Knowledge not enough for concerted actiono Parallel activity not enough for concerted actiono Not about shifting burden- about imposing liability on both who work in concert

v. Lost Opportunity Doctrine 1. Permits P to maintain action in a medical malpractice case when it denied P an

opportunity to avoid the injury, even where opportunity was ≤50%2. Controversial- courts have interpreted differently3. How to calculate compensation for a 5% chance?

a. Most reasonable method would be to award 5% of what total damages would be if 100% chance

2. Proximate Cause (Legal)a. Always comes second to Cause in Fact – without which, it cannot be proved b. Ask: Are the action and the result close enough to draw a connection recognized by the law?c. Ways to show:

i. Direct Causation – In hindsight / backward-looking 1. Ask whether harm was the result directly caused by plaintiff’s negligence2. Start with injury and work backward to see whether any event has severed injury

from the negligent conduct3. Look at the links in the chain of causation4. Focuses attention on closeness in TIME and SPACE of negligent action and harm

ii. Reasonable Foreseeable Risk– forward-looking1. Wagon Mound: a person is responsible only for the probable, foreseeable

consequences of his act. Unfair otherwise.2. D only liable for harms which he could reasonably see as resulting from his

actions3. Ask: Is the result within the risk?4. Look through defendant’s eyes and see whether the injury was foreseeable from

the outset5. P need not prove D’s actions were the only cause of harm—there can be more

than one but-for cause6. Show P’s injury was among the array of risks the creation or exacerbation of

which led to the conclusion that the D’s conduct was negligentiii. Note : Different jurisdictions use different approaches, if you don’t know which, must

argue both sides and show how both tests are fulfilled1. Ex: Palsgraf (box w/ firecrackers carried by train passenger)

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a. Cardozo (majority) argues reasonable foreseeability – DO NOT OWE DUTY OF CARE TO UNFORESEEABLE VICTIMS

i. Railroad negligent in duty to passenger with box who was a foreseeable victim of their actions, not considered negligent to P who was an innocent bystander

ii. There is no duty, therefore no breach, no question of causation (factual or legal) because you can never get to that stage, and definitely no damages

b. Andrews dissent argues direct causation – WHEN ONE ACTS NEGLIGENTLY, OWE DUTY OF CARE TO ALL WHO ARE HARMED

i. Consequences foreseeable to a certain extentii. Railroad’s actions led to P’s injuries, nothing else superseded

iv. Surprise victim case1. P will argue for Direct Causation – D caused P’s injuries2. D will argue for Reasonable Foreseeable Risk – D had no way of seeing that his

actions would harm Pd. When does an intervening cause become a superseding cause (excusing defendants of liability)?

i. When either causation test above fails

Alternative Liability. Apportioning Damages according to causation(Applicable for Substantial Factors Test – more than one tortfeasor)

1. Joint and Several Liability a. Typically brought on by concerted action of two or more Ds who acted with the same purposeb. Burden of Proof shifts from P to Dsc. Judgment is for single sum, represents total value of the P’s injury d. P entitled to collect from either or both of the Ds, up to but not exceeding the amount of the

judgmente. Some states have gotten rid of thisf. Public policy support:

i. Maximizes likelihood that P will get 100% compensation ii. P will get compensation much quicker (burden put on single D, who then can recover

from others he thinks are responsible)iii. Also, if that specific D is broke, the other Ds must pay more to make it up in his place

2. Apportioning harma. Damages should be apportioned by each Ds’ causation whenever there is a reasonable basis for

doing sob. Alternative approach: 4 accidents caused by 4 separate Ds, each D liable for ¼ of damagesc. Policy: “fairness” is key

3. “Single indivisible injury rule”: Indivisible injury, though caused by successive incidents. P can assert claim against all the wrongdoers w/o burden of proof of showing extent of damage or injury caused by each D

a. Burden shifted to each individual D4. Harm caused by combination of an actor’s negligent conduct and other cause (not actor’s fault)

a. If actor’s action alone is sufficient to bring about the harm, can be held liable for whole of the damages

5. Eggshell-Skull Rule: a. Tortfeasor takes his victim as he finds him in his current state b. You are responsible for full extent of the harm you create, even if harm is greater than expectedc. No discount to average the damage caused by tortfeasor and existing damage but…

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i. Corollary: Damages of the eggshell skull victim must be reduced to reflect the likelihood that he would have been injured anyway, from a non-liable cause, even if the D had not injured him.

ii. Not liable for harm that would have happened anyhowd. Unusual value plaintiff- ex break thumb of concert violinist. You are responsible

Negligent Infliction of Mental and Emotional Harm1. History of Tests used to see if recovery is allowed:

a. Impact Limitation Rulei. No recovery for the consequences of fright and shock negligently inflicted absent actual

physical contact, need actual physical contact1. Physical injuries caused by emotional distress do not apply

ii. Reasons Court kept the rule for so long:1. Stare decisis justification – rule has been used for so long, need a good reason to

change it2. Common law, status quo fear of unforeseen consequences if rule is changed

iii. Abandoned in favor of…b. Zone of Danger Rule

i. No reason to require actual physical contact as proof of damageii. Requires P to be in physical proximity of D’s negligent action, P must reasonably fear

harm as a result of D’s actions in order to make case for damagesiii. Abandoned in favor of…

c. Dillon Factors Test / Bystander Recovery Rulei. All three factors must be fulfilled:

1. P was located near scene of the accident 2. The shock resulted from a direct emotional impact upon P from the sensory and

contemporaneous observance of the accidenta. Cannot learn of the accident from someone else or from watching the

news3. P and victim were closely related

ii. Evaluation of these will indicate the degree of foreseeabilityiii. Problems: (3) case of cohabitating partners?

d. Exceptions to Dillon Factorsi. Where P is negligently told a relative has died

1. Ex: Telegraph/Telegram company incorrectly delivering bad newsii. Where P learns about the mishandling of a deceased’s body

1. Ex: Funeral homee. In Pennsylvania: Impact rule still survives today if P fails to make out elements of Dillon Test or

Zone of Danger Test2. Requirement of a physical manifestation of the emotional harm done

a. Some courts (Texas) have abandoned this requirement altogether3. If impact actually occurs, case is made stronger

a. Compensation should be limited to abnormally caused emotional distress

Pure Economic Loss w/o Physical Harm or Damage1. Often arises when one has a dependant economic relationship on another2. Sometimes recoverable, but typically severely limited, in negligent misrepresentation

a. Courts do no like awarding b/c economic relationships are so complex and are intertwined so intimately that disruption of one may have far-reaching consequences

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3. Principle reason for denying recovery = reluctance to allow a tort remedy when P has option of recovering contractual remedy

Mental and Emotional Harm (not super important)1. 2 types:

a. When D caused compensable bodily injury on P, P’s emotional distress can also be compensated by damages that are “parasitic” to damages for the physical injury

i. Parasitic damages – Do not involve creation of new or different cause of action in complaint, are unnecessary for making out original claim

b. When entire claim hinges on P’s emotional distress requiring compensation2. Fear of Illness

a. Typical situations:i. Exposure to toxic product w/ proven statistical risk that some exposed will become ill

laterii. Environmental exposure to disease-causing substances

iii. (fear of AIDS, exposure to diseases which will ultimately result in death) (suggested as 3rd category)

b. How much should the D be held liable? How much in damages should the P be compensated?i. Courts have ruled that P can recover for the mental anguish caused by worrying about

this, but P cannot be compensated for the risk itself1. P fails to show it is more probable than not that physical harm has resulted

(because it has not happened, and may not happen at all)a. Court will not compensate now for a possibility of later health problems

later2. If P later gets sick with a physical injury resulting from the D’s negligent conduct,

then can file another claim because there is a negligence per se claim, statutory violation

Affirmative Defenses to NegligenceGeneral Usage: means any matter that, if pleaded and proved by D, will defeat or reduce the liability that P has otherwise established burden rests on D

1. Vicarious Liabilitya. Arises out of Doctrine of “Respondeat Superior” – liability of an employer (“master”) for the tort

of an employee (“servant”) who was acting in the scope of the employmentb. Allows P to recover from a party for the torts of another

ii. By definition, employer A is not at fault; liability is imposed solely on basis that B is at fault and the relationship between A and B justifies holding A responsible

c. Applies to master-servant, employer-employee, joint enterprise (partnership), parent-child relationships

i. Employer/Employee relationship determined by degree of control over how the work that is to be done

ii. Purpose test – if tortious action occurred in servant’s actions were done with the purpose of serving the master

iii. Does not apply in instances of intentional tortsiv. Must be within the scope of employment. Does not apply when employee acts outside

scope of his employment1. Frolic v. detour

a. Detour = short personal errand, falls within the scope of employmentb. Frolic, e.g. seeing a movie in the middle of your workday, not within the

scope of employmentv. Foreseeable conduct is actionable even if not within the scope of employment

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d. General Rule: One who employs an independent contractor (v. an employee) is not subject to vicarious liability for the contractor’s torts

i. Exception – Inherently Dangerous Work: Employer may delegate the work to an independent contractor, but not the duty – employer is not insulated from liability if the independent contractor’s negligence results in a breach of the duty

ii. Ex: Greif Brothers – D hired contractors to act as security guards work which is known to pose a particular risk of harm to others unless special precautions are taken

1. Ds can be held liable b/c of nature of the inherently dangerous nature of the worke. Exception – Fellow Servant Rule: Employee cannot sue fellow employee if injured while

fulfilling scope of his job descriptioni. Led to creation of workers compensation statutes

2. Contributory Negligence – no longer used in pure forma. Old Rule: If D could prove a negligence claim against P (i.e. D could prove that P was also

guilty of negligent conduct that was a cause in fact and a legal cause of the resulting injuries) D would not be liable at all

i. Holds true even if D’s negligence is far worse than P’s conductii. Inherently unfair due to application of “double standard” to breach issue – w/o P’s

actions, D would clearly be held liable for his negligent actionsiii. Development of exceptions to ensure justice:

1. “Last Clear Chance” Doctrine – negligent P should still recover if he can show D had an later opportunity after P’s negligence to avoid the accident (nullification of P’s contributory negligence)

a. Problem: still an all or nothing approach to recoveryiv. Led to development of loss sharing approaches to negligence

1. 1960s, most states moved from contributory negligence to a form of comparative negligence

3. Comparative Negligencea. Began in 1973 with Hoffman v. Jones where Supreme Court of Florida allowed deceased P’s

wife to recover though her husband had contributed to his own deathb. Two main reasons for rejection of contributory negligence:

i. Was originally adopted to protect essential growth of industries, in modern times, economic and social customs tend towards protection of individual, not industry reason is no longer valid

ii. Best reason : Comparative negligence is a more equitable system of determining liability and a more socially desirable method of loss distribution

c. In practice Hybrid System which takes into account P’s contributory negligencei. P’s recovery amount may only be a proportion of the entire damages P sustained as the

D’s negligence bears to the combined negligence of both P and D1. Ex: Where P’s negligence is equal to that of D’s, amount awarded to P should be

reduced by half from what it otherwise would have been if D alone responsibleii. Left up to jury to decide total value of P’s loss

d. Three types of comparative-fault systems:i. “Pure comparative negligence” system – where culpable conduct attributable to

claimant or decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages

1. Most commonly cited method by state legislaturesii. “Modified 51%” system – where any damages allowed shall be diminished in the

proportion to the amount of negligence attributed to the person recovery. The negligence

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of the P shall be measured separately against the negligence of each person found to be causally negligent

1. P gets nothing if his negligence is >50%iii. “Modified 50%” system – liability shall be determined by comparing the fault

chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages

1. If the fault chargeable to P claiming damages is of less degree than the fault chargeable to the D or Ds, then the P is entitled to recover the amount of his damages after they have been diminished in proportion to his own degree of fault

2. If the fault chargeable to P is equal or greater than any fault chargeable to the D or Ds, then the claiming party is not entitled to recover such damages

iv. NOTE : Therefore, in some systems (i and ii), P can be cut off from recovery for fault assessed at less than 50% in multiparty cases

e. Characteristics of Comparative Negligence i. Assumes P’s pre-accident conduct is a cause of his accident so he should also be held

responsible for the damages he suffered (v. failure to avoid consequences) 1. Ex: intoxication while driving leads to P’s collision with another car

ii. Joint and Several Liability (single D held liable for total damages attributable to all Ds)1. Still exists in 10 states2. Some have abolished it completely – 13 states

a. Each D liable only for his own % share3. Rest of the states have partially abolished

a. Some reapportion insolvent D’s share among solvent Ds and P proportionate to their respective % of fault.

b. Some have threshold % limitation under which that D relieved of liabilityc. Some hold Ds jointly and severally liable for monetary damages, but not

for non-monetary damages (pain and suffering)iii. Benefits:

1. Maximizes likelihood that P will get full compensation as soon as possible2. Does not prevent D1 from taking legal action for reimbursement from other Ds

(risk of possible insolvency placed on D instead of P who deserves compensation)iv. Disadvantages:

1. Places strain on courts Too many cases, motions going on at oncef. Combining Comparative Negligence with Intentional Torts

i. Raises two issues:1. Multi-party lawsuit where one D of many is liable for intentional tort, how to

assign % responsibility?2. Should P’s negligence affect P’s own recovery against the intentional tortfeasor?

a. Also affects allocation of responsibility for single, indivisible injury for other tortfeasors

ii. In intentional tort, tortfeasor is always held jointly and severally liable for his share of the comparative responsibility assigned to him, in addition to the share of comparative responsibility assigned to the victim

iii. No clear solution Courts must use their best judgment to apportion % cause in fact of harm and % fault

g. Combining P’s Negligence with D’s Strict Liabilityi. Comparative negligence is not a defense to strict liability

1. The two can be blended together in apportioning fault2. Since D’s negligence is irrelevant to strict liability, so should the P’s negligence

be irrelevant

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ii. Court holds that there is no substantial or significant impairment of safety incentives of D if they adopt comparative principles

1. However, there is controversy over how to allocate responsibility in a fair wayiii. Most states that have comparative negligence schemes have extended comparative

principles to strict products liability4. Failure to Avoid Consequences

a. P’s pre-accident conduct did not cause the accident but that was a cause of some (perhaps even all) of the injuries or damages

i. Ex: P not wearing a seatbelt when another driver ran a red light and hit him5. Failure to Mitigate Damages

a. Post-accident conduct by the victim causes some of the injuries or damages i. Ex: P sustains broken leg in accident, attempts to walk on it thereby making it worse

b. Doctrine of Mitigation of Damages: precludes recovery of any damages that P could have avoided by taking prudent measures after accident to prevent or reduce severity of his injuries

i. aka “Doctrine of Avoidable Consequences” – similar to duty to mitigate in Kc. Typically communicated to the jury through jury instructions on awarding of damages

6. Assumption of Riska. Defense:

1. Primary assumption of risk => no duty of care, D explicitly relieved of duty2. Secondary assumption of risk => contributory negligence argument

b. Label for D’s argument that he did not owe duty of care to Pi. Rebuttal to P’s assertion that D owed a duty of care

c. Three distinctly different doctrines:i. Express – associated w/ contractual limitations on liability

1. P cannot sue if he signed a contract waiving his rights to sue D iv. Implied primary – no-duty doctrine applies to D

1. Where P expressly or impliedly relieves D of duty to act with care2. D can rebut prima facie case because P assumed the risk3. Ex: Getting hit with a baseball while sitting in the outfield seats at a game

ii. Implied secondary – only affirmative defense based on P’s conduct1. Where P voluntarily chooses to participate in an activity which he knows is

inherently dangerous or risky2. D had a duty and was negligent in some regard3. Ex: Sitting behind homeplate which is protected by a screen but has a hole in it4. No longer a complete defense Many courts will now absorb into comparative

negligenceii. Commonly applied to participation in sports and recreational activities

1. Inherent risk = those permitted by rules, customs and mores of the activity

Common Law Strict Liability

Liability without faultP need not prove negligence or intent

1. Animalsa. Strict liability imposed for injuries caused by wild animalsb. Liability has been extended to domestic animals in limited situation where owner has reason to

know of that particular animal’s dangerous propensitiesi. Otherwise, each animal owner is liable only if negligence or intent shown – “every dog is

entitled to one bite”2. Abnormally Dangerous Activities

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a. Doctrine of “Rylands and Fletcher” (1868) – D who has brought something on his own property which was not naturally there and is harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.

i. Not adopted by all courtsii. Distinguishes between D’s use of land:

1. If D’s use of land is natural, foreseeable and done in an understandable manner, D will not be held liable

2. If D’s use of land is unexpected or “not natural”, cannot say that neighbors should have a reasonable idea of repercussions which may arise, D will be held liable

b. Definition of “abnormally dangerous” – If it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, not a matter of common usage

c. Factors to consider in determination of an abnormally dangerous activity:i. Whether activity involves a high degree of risk of some harm to the person, land or

chattels of others;ii. Whether gravity of harm which may result from it is likely to be great;

iii. Whether risk cannot be eliminated by exercise of reasonable care;iv. Whether activity is not a matter of common usage;v. Whether activity is inappropriate to the place where it is carried on; and

vi. The value of the activity to the communityd. Exception: One good reason to accept abnormally dangerous activities is if they serve a greater

good or cannot be avoided to fulfill their purpose

Products LiabilityA type of problem.3 Theories to approach the problem:

1. Negligencea. Causation:

i. Duty & Breach of Duty: P must prove D failed to use reasonable care in manufacturing, designing, or marketing of their product, AND

ii. Causation: Failure was a cause-in-fact and legal cause of P’s injuriesb. Privity Rule = manufacturer can only be held liable to people who were in privity of contract w/

the manufactureri. Formerly, limited duty rule privity rule protected manufacturers

1. Manufacturer only held liable to direct buyer of the productii. Exception = imminently or inherently dangerous products (e.g. poison)

iii. Now, never required in a negligence case involving a defective product1. Opens the floodgates to potential negligence lawsuits2. Limitations: Does not mean that liability extends to anyone injured by negligently

manufactured products, only extends to reasonably foreseeable Psa. Purchasers, family members, and household guests can recover for breach

of warrantyb. Any foreseeable P who suffers personal injury or property damage can

recoverc. Any foreseeable P can recover, irrespective of the type of injury

c. Justifications:i. To insure that costs of injuries resulting from defective products are borne by

manufacturers of products, rather than the powerless injured person2. Warranty

a. Derives heavily from contract law23

3. Strict Tort Liabilitya. Imposed when manufacturer:

i. Has knowledge of product’s possible defective condition, orii. Has not inspected the product for defects which may cause injury,

b. But still allows the product on the market c. Justifications for strict tort liability:

i. Compensation / loss spreading1. Humane to shift losses to all consumers of the product 2. Force manufacturers to bear the cost of injuries resulting from the defective

products that they put on the market, rather than by the injured persons who are powerless to protect themselves

ii. Cost internalization = more efficient allocation of resources, prices of products will then more nearly include all of the true costs, including accident costs

iii. Deterrence – provides manufacturers with incentive to market safer products1. Strict liability induces manufacturers to do more if the cost of the added safety

measures is less than the potential cost of liability (Hand formula)iv. Proof problems – manufacturer of defective product is negligent, but it may be very

difficult for P to establish such, this relieves P of burden of proving specific acts of negligence

v. Protection of consumer expectations – consumers should be protected from unknown dangers in products

d. P’s Contributory Negligence = Defense or Mitigating factor for damagesi. Restatement (2nd) of Torts § 402A, Comment n – negligence that was merely a failure

to discover or guard against possibility of product defect is not a defense against strict tort liability

1. Consumer should not be denied recovery altogether merely because he or she failed to inspect the product for defects

2. Most courts now count all forms of P’s negligence, including P’s failure to discover or guard against a product defect

e. Protection of Bystanders – Entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable

i. After Elmore v. American Motors Corp. (1969) where P was injured in accident caused by defective part in another party’s car (manufactured by D), bystanders allowed to recover under strict tort liability

ii. Justifications:1. Consumers and users at least have opportunity to inspect for defects beforehand2. Bystander has no such opportunity3. Bystander is in greater need of protection from defective products which are

dangerousiii. Requirements:

1. P must show a strong and fairly direct (close in time and place) causal connection between the harm caused by the defective product and his injury

f. Sale of Goods v. Sale of Servicesi. Restatement of Torts (2nd) §402A deals specifically and only w/ the sale of a product.

Strict liability does not extend to sale of a personal service1. Personal services do not involve mass production

a. There is difficulty, if not inability, in obtaining proof of negligence2. Consumer is usually aware or can determine what work was performed and who

performed it for a serviceii. Services of experts are sought b/c of their special skills duty to exercise the ordinary

skill and competence of members of their profession24

1. Failure to discharge that duty will subject them to liability for negligence2. However, can only expect reasonable care and competence3. P purchases service, not insurance

iii. Those who hire persons to build their products are not justified in expecting infallibility, but can expect only reasonable care and competence.

1. They purchase a product, not insurance.iv. Application of Strict Liability to a hybrid sale of service involving goods

1. When contract between P and D is commercial in character, courts are willing to extend liability w/o fault to hybrid sale-service transaction, provided a defective product is supplied to P or used by D in course of performing the service

2. If only service is considered defective, P cannot recover from D on strict liabilityv. Ex: Pharmacist dispenses drugs, not responsible for defective drugs themselves (product)

1. If drug is defective, P can sue drug manufacturer2. Pharmacist is only acting as an agent to doctor, not actually selling a good

4. Categories of Defective Products (3):Look at problem area as opposed to one specific doctrine of liability

a. Manufacturing Defect or Flaw = Product does not conform to manufacturer’s specs or intentions i. Ex : Soda w/ piece of glass in it

ii. Restatement (2nd) of Law of Torts § 402A(1) (1965): One who sells any product in a defective condition unreasonably dangerous to the consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or his property

1. Comment g: “defective condition” = rule stated only applies where product is, at the time it leaves seller’s hands, in a condition not contemplated by ultimate consumer, which will be unreasonably dangerous to him

2. Comment i: “unreasonably dangerous” = article sold must be dangerous to an extent beyond that which would be contemplated by ordinary consumer who buys it, with the ordinary knowledge common to the community as to its characteristics

a. consumer expectation test – if dangers of product are well known w/in realm of consumers, then it is not unreasonably dangerous or defective

3. Test for unreasonable danger : Product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risk involved or if the risks are greater than a reasonable buyer would expect

a. Allows jury to characterize the productiii. Basic difference between negligence and strict liability for design defect:

1. Strict liability talks about condition (dangerousness) of an article’s design Assumes manufacturer had knowledge of the danger

2. Negligence talks about the reasonableness of manufacturer’s actions in designing and selling article as he did Assumes that manufacture did not have knowledge of the danger

iv. If danger is known but to change design would be cost prohibitive so no one would buy it w/ the safety features added, the flaw is not considered a dangerous defect then

b. Design Defect = Product that is like every other product in the line, but the entire line has a feature that is unreasonably dangerous

i. 2 tests for design defects:1. Consumer Expectation Analysis – manufacturer is strictly liable for any

condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer

a. Draws on thinking of warranty law

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b. Considers how foreseeable user will use the product and what that consumer wants

2. Risk Utility Test – manufacturer bears burden of proving the product’s utility is not outweighed by its risks in light of various other factors

a. Similar to negligence lawb. Looks at whether manufacturer would still be willing to sell the product

NOW, knowing of all its faults and the risks they posei. Difference is here manufacturer evaluates from hindsight

perspectiveii. California gives P “two bites of the apple” – allows both Consumer Expectation and

Risk-Utility testsiii. Factors jury should consider in deciding on the “unreasonableness” of the design risk:

1. Usefulness of product2. Likelihood and severity of danger posed by the design3. Feasibility of an alternative design4. Financial cost of improved design5. Ability to reduce product’s danger w/o impairing its usefulness or making it too

expensive6. Feasibility of spreading the loss by increasing product’s price

c. Inadequate Warning / Warning Defect = Product that is made unreasonably dangerous because of the warning or instructions for use, or lack thereof

i. Deprives potential customer of a full understanding of risks along with the rewards (similar to informed consent)

ii. The gist is negligence. If you know of defect, need to warn. If you don’t, you can’t warn- but liability imposed for what you “should have known about”

iii. If adequate warning given, then no liabilityiv. Comment k of § 402A of Restatement (2nd) of Torts (1965): Public policy should

immunize drug manufacturers from liability for side effects of prescription drugs. Strict liability should not apply to certain unavoidably unsafe products

1. Definition of unavoidably unsafe products – some products which, in present state of human knowledge, are quite incapable of being made safer for their intended and ordinary use

a. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous

2. Manufacturer who knows or should know of the danger or side effects of a product is not relieved of its duty to warn

v. Comment j of § 402A: Directions or warning – in order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. Where the product contains an ingredient whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight, should have knowledge of the presence of the ingredient and the danger.

d. State of the art i. Often used as a defense, but unclear whether the defense precludes a finding of defect

ii. 2 definitions:1. Given state of technology when drug was sold, D had no way of knowing about

its risks. Term refers to D’s knowledge application of foresight test2. Even if a product’s risks were known when it was sold, state of technology at the

time was such that nothing could be done to eliminate or reduce the risks5. Causation

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a. P must prove that defect existed when D sold the product and that the defect was the factual cause (but-for cause) of P’s injuries

b. 3 problems Ps have in proving factual cause in products cases:i. Warning labels – Ps have difficulty proving D’s failure to warn was a cause-in-fact of

their injuriesii. Automobile defects – P’s claim vehicle is not “crashworthy” but have a difficult time in

separating injuries which would have occurred anyway as a result of the crash from aggravated injuries which are caused by the vehicle’s defects

iii. Prescription Drugs – Difficulty in proving which manufacturer of a drug produced the particular lot that injured P

6. Defenses to Products Liability:a. Basic defectiveness of product

i. D says product is not defective relative to its intended useb. But-For Test (Factual Cause) not met

i. Misuse of a product can be helpful to D’s in defeating claimii. P cannot say but-for D’s faulty blade (factual cause), his fingers would not have been cut

(if he stuck them in there anyway)c. Assumption of Risk

i. P knew of dangers, acted with knowledge and got hurtii. D can argue he adequately warned consumer

d. Contributory Comparative Negligencei. D can argue P was negligent in actions in using product, contributed to harm

ii. Reduces P’s total recoverye. Failure to Avoid Consequences

i. If P modified product after it left D, P cannot hold D liable for any harm resulting from the change

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