torts - ben zipursky - 2009 intentional torts

8/11/2019 Torts - Ben Zipursky - 2009 Intentional Torts

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A Intentional Torts1 BATTERY (549): iniction of harmful or offensive contact by an actor upon another with the intent to cause such contact

i Elements (prima facie case)a Act: (law)

1 failure to stop a battery is not a battery bc not act2 voluntary act req't

b Intention to cause a harmful or offensive contact ("almost all the action") (fact)1 Intent

intent to make contact, not that contact be harmful (Wagner, Vosburg)Wagner v. State (Utah 2005). p. 566. Mentally ill ward of state attacks woman in Wal-Mart. Battery w/o intent toharm. Statutory immunity. Intent to make a contact.

Legal Issue: Can you have battery without intention to cause harm? yes.negligence claim, but decision is about battery because of sovereign immunity . Wavied by statute exceptretained immunity for assault and battery.Arguments for D (that it is a battery)

2nd restatement (adopted): don't need to intend to cause harm (argument from authority)fact issue that he couldn't intend to cause harm does not demand resolution for summary judgmentbecause standard is intent to cause contact

Arguments for P (to get around sovereign immunity from injuries resulting from assault and battery)Matheson (572), Utah SCt., so binding, says battery requires an intent to cause harm. Prior decision onexact issue. Argument from authority.

court says that case was before restatement was expressly adopted, and overrules it.Federal exemption is from claims of assault and battery, whereas Utah is for injuries resulting from assaultand battery. Utah expands beyond Federal for policy reasons

BZ: case is thin. Not necessarily wrong, but "makeway" argument, so directs to policy argument, which leadsto greater cause for concern.

it's supposed to be about victim's rights, but in context of denying recovery (irony)real issue is how far immunity goes. statutory interpretation question of what legislature of Utah was tryingto do. No reason to think legislature was trying to bar recovery in this kind of case.

Vosburg v. Putney (Wis. 1891), p. 610, kick at school, intent to unlawful touching (not intent to harm); eggshellskull

trial verdict for P for $2,800. circuit court conrms for $2,500.Holdings

general intent to kick sustains cause of action (don't need intent to harm)attention to circumstances (at school, no implied license)

testimony on awed hypo=material errordamages not limited by foreseeability

Famous becauseinteresting take on intent in battery: don't have to intend to harm, but do have to intend unlawful touching.Not any kind of touching (between Wagner and Mathiesen)

if you use offensive instead of unlawfu, would clarify, because trying to dene the actnormative claim that the act is offensive (or, here, unlawful) is supported by common law and/or byextant social norms (rightly decided in this way)requires fourth premise, not just announcing as unlawful but saying that it's offensive and not to bedone. but problems with offensive in that it uses effects rather than language that refers to act

the extent of D's liability for P's crippling (considering previous condition): "eggshell skull doctrine": takeyour victim as you nd him, pay for entire injury caused by your act. everything owing from tort

exception: Spivey . (unwanted hug causes facial paralysis, found to be negligence not battery b/c D didn't knowhe would or could cause).Cole v. Hibberd (OH 1994), p. 613, Hibberd kicks a friend (Cole) in the back, intent to kick sufcient to ndbattery (so claim can't be in negligence and barred by SoL)

woman kicked in the back, charge dismissed on statute of limitations, appeal that the claim is in negligence,not in battery. (holding that it's a battery, so barred).funny case because plaintiff, Cole, alleges that it is a fact-bound issue whether it's negligence or battery,based on the circumstances, and says it's negligence because they're friends with no intent to harm. (bc ofSoL problems)court maintains irrelevance of intent to injuredissent maintains that it's possible to nd negligence under the circumstances, fact q for jury


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negligence does not sufce, nor gross negligence, nor recklessnessknowledge does sufce

subjective standard of knowledgeknowledge of some probability not enough (it is in negligence, but not here). must be certain of result.knowledge as alternative to purpose. sufcient but not necessaryquestions on statistical knowledge (whether you must have knowledge of a specic person)knowing that you'll hit someone with your car even if you'd rather not. Garratt v. Dailey. (kid pulls chair fromunder aunt, tries to put it back, liable bc he was substantially certain that her fall would result)two theories of how knowledge and liability interact

substantial certainty to produce result is legal equivalent of intent ORknowledge of probable result is evidence of intent

If P unduly sensitive and D knew of hyper-sensitivity and undertook conduct to cause offense. (BZ says not sureif correct)

when does recklessness become knowledge?some courts: awareness of high probability enoughother courts: awareness of high probability not enoughboundary: if you know of some probability (1/10,000 cars will have defect) and sell 20,000, not battery

Doctrine of transferred intent same victim, different tort

accountable for unintended consequences of one tort (intent from assault transfers to intent for battery)(Nelson).if you have everything but intent to touch, you may be able to "plug the gap" with the intent for anotherintentional tort, and vice versa. just need intent to invade someone's space

Nelson v. Carroll (558): unintentional nightclub shooting (D intended to pistol whip but accidentally shot).ACCOUNTABLE FOR UNINTENTIONAL RESULTS of battery. RULE: If you're in the process of doing somekind of battery, you're not exculpated from unintentional result

same tort, different victimIn re White (VA 1982), p. 621, bankrupt shooter accidentally shoots neighbor instead of arguer. Underdoctrine of transferred intent: liable for battery (in bankruptcy court. debt will discharge unless it's a battery).RULE: "injury is not required to be directed against the victim," just "wrongful act intentionally done"...w injuriesresulting from that act

from things to personsRice v. Palladin (586): man bought Palladin book on how to be a hit man and then killed ex-wife and child. Familysued publisher for aiding and abetting hit (battery). 1st amendment defense thrown out.; also Doe v. Unocal (IEL)

2 Harmful OR offensive contact (viewed objectively) (fact/jury)Harmful or offensive standard: would a reasonable person nd it offensive?

D protected from really unreasonable sensibilitiesHarm is not an element. Offensive touching is enough (Holbrook)Paul vs. Holbrook (p. 553): 2 occasions of unwanted shoulder massages. whether touching is offensive,should go to jury

trial judge granted summary judgment on all claims, appeal upholds on all except batterywould a reasonable person nd it offensive?

trial court might have thought no reasonable person would nd it offensiveappellate judge doesn't have to rule on this, just says it's enough to go to jury

Wagner states standard.BALANCES between preserving bodily integrity and recognizing/accomodating realities of physical world

Contact: things directly connected to body included (clothes, something you're holding). Line is between things thatare attached to you and things you own.

doesn't have to be touching outisde the body (drinking poison)

doesn't have to be touching by D (giving the soda)Leichtman (566): blowing smoke in someone's face (About invasion of the person)

c Caused such a contact1 unintended consequences covered2 eggshell skull (Vosburg)

2 ASSAULT (579): intentional threat or attempt to create an apprehension of harmful or offensive contact, coupled with apparentability to do bodily harm

i ISSUE SPOTTER CHECKLIST a Voluntary act (not mere words)b immediate apprehension (on reasonableness standard)c was there warning? if not, no assault b/c no apprehensiond intent to create apprehension


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e act reasonably causes apprehension

ii Elementsa Act:

1 question of focus on belief of plaintiff vs. intent/act of defendant (Vetter, Booker, Raess)2 not "mere words," (Booker, phone operator, 580, touching not imminent, Raess, Vetter)

meant to absorb 'regular life' stuff and not let that stuff be tortsVetter , 583, swerving car with threat counts as assault. words sufcient here . evidence enough of each elementto go to jury on assault, and ability to ee does not defeat threats

threats between vehicles. not clearly imminent. Mostly threatening of words, but swerving of car makes assault.Question of working togetherProcedural posture: summary judgment against P at trial court, so court nding if there is sufcient q of materialfact to go to jurycorrectly decided?

swerving indicates threat/assaultGaither swerved, Morgan convictedquestion of acting in concert (Morgan's words and Gaither's actions)swerving is contested

If no swerve, is it a mere words case?even without swerve, apprehension

distinguish from Brooker by immediacy of fearat red light in the middle of the night

court doesn't seem to care much about the words, BZ says unclear whySo why not "words alone" problem without swerve?

actual physical proximity and carcould she move? reversible?

words alone about reasonableness of harm. So intimidatingness in context here (3 men)even if you can repel harm, still can have reasonable apprehensions of harm

courts focuses on belief. 'words alone' doctrine is to reinforce that assault is supposed to be a threatening ACT.Lots of words can give rise to reasonable apprehension. "Harrowing mindset of being almost physically injuredwith contact."

BZ thinks swerve is important in context of what he said, threatening behavior, spitting, ultimate harm.problem: not Morgan's act, it's Gaither's, so court has to nd acting in concertsettlement with driver of car for negligence, but not assault, so this "blood money" from Morgan's pocket

Raess (handout) also looks like words alone case, of doctor yelling threat. Guilty of assault anywaycharge: assault and intentional iniction of emotional distress (IIED).

no liability for the latter at trial$325k from jury for assaultdenied jnovappellate court reversed, saying evidence of other incidents prejudicial to doctor

S.Ct. hears on whether it was appropriate to hear evidence on whether doctor was workplace bully. Court saysit's ne, reinstates verdict.question of whether jury should have been focused on reasonableness of apprehension of physical contact (asopposed to the intentional threat or intent to create apprehension by P).

if appropriate, afrming trial court is rightare damages right? courts usually take hands-off approach. deferential to jury (but more review recently)

intent to create imminent apprehensionissue for jury, BZ thinks case is weak on whether there's enough to go to jury on thisdoctor has to have an intent to cause apprehension.. not an objective test. (by preponderance ofevidence)more pressure on specic intent because inchoate

policy arg that one would expect appellate court to makeHR issue, should be dealt with by employer, and then if they fail, case against employertreat differently from battery at work b/c HR better at evaluating circumstances (how often people yell at eachother, etc.), also bc line of touching not crossedignores words alone doctrine

b Intention to create an apprehension of harmful or offensive contact (by preponderance of evidence) (fact)1 reasonableness standard for immediate apprehension (fact/jury)


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trial court granted summary judgment on trespass claimHolding: reverse summary judgment on trespass because consent to enter home was restricted and did not includevideotaping for tv

3 Koffman v. Garnett (VA 2003), p. 588: middle school football, must allege no consent as a matter of lawwhether Koffman consented was a matter of factcourt: Koffman can only consent to reasonably foreseeable thingsIf there was consent, it should really be a negligence claim. Consent because

"no moving target" for consent, once you consent, to everything requiredlevel of specicity of consent was broad, so no claim for batterypolicy decision for how carefully to scrutinize consent forms under 12b6 motions.would have to be gross negligence, because schools have immunity for regular negligence. P here coulddenitely prove regular negligence, but maybe also gross negligenceharmfulness is key, so hard to go forward on just offensive touching

defensesconsentassumed/implied assumption of risk (doesn't quite t here)

so then have to show gross negligence, you have to have greater risk than assumede Implied Consent (Wagner): the consent implied by the situation; esp. for inherently dangerous activities

use history of partiesused situation

ii Self-Defense or Defense of Another ("awkward t" problem of balancing tort law's intent to protect bodies against itsintent to have legal rather than private redress)a D must actually and reasonably believe force is necessary to injure another to avoid imminent injuries to self (in light of

circumstances)b reasonable mistake of fact doesn't exonerate (although cases including Mullens come out the opposite way)

1 false but reasonable belief that P consented serves as defense in such casesc often not if D precipitates situationd must be proportional (deadly force has conditions)

1 deadly force only justied when actually and reasonably perceives that he is being threatened with death or SBIsafe retreat req't for deadly force (not in dwelling)deadly force for attack in dwelling

2 Haeussler v. DeLoretto (Cal. App. 1952), p. 599. Neighbors arguing about dog. Necessity of force and amount offorce are questions for fact-nder.

e Retreat: courts split on duty to retreat, but second restatement says non-deadly force is ok, but deadly force not, in lieuof retreating

f no defensive use of another (shield)iii Protection of Property (shows limitations of self-help)

a for momentary but not long-term possession (to encourage legal redress rather than self-help). 'recapture,' not againstpeacable possession

b no mistaken belief allowedc requires warningd Katko v. Briney (Iowa, '71) p. 603, abandoned farmhouse with springloaded shotgun. NO DEADLY FORCE TO

PROTECT PROPERTY1 P, burglar, breaks in, gets shot, spends 40 days in hospital, sues for battery, gets $20k in compensatory (incl. pain

and suffering) and $10k in punitive damages.2 Defense failed because D used too much force in curciumstances where it was not allowed (not in face of deadly

force or proportional threat)dependent on denition of threat as losing old bottles or protecting home

fundamental problems even if defending home theoryno warning signs (exceeds privilege)in bedroom, not front doorcovered bedroom window to make sure ppl didn't knownever lived thereboth of the above and others are fundamental weaknesses in fact pattern to show intent to protect rather thanvindictive impulse

3 Dissent: can't tolerate punitive damages, but P didn't bring up damages, so not preserved for appealthinks wrong on compensatory damages, too.D exceeded his privilege, but we should remand for new jury instruction to make nding on intent to injure (P says heonly intended to scare

4 So what should Briney have done?had something posted


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if psych knows of a danger, duty to inform public/conne person (other jurisds)Arguments that there shouldn't be a duty

makes psych 'babysitter' for person he's never met?how many people could he have to warn? what if patient threatens to blow up a neighborhood andthe duty is not discharged by going to the police?

Methods for deciding whether to recognize duty (how should court decide)?not clear what method they used hereon its face, same method as in Rowlandseems like: forget lines of authority on Common Law duty and just say nothing extra besidesunreasonable action, causation, and harm

(deciding if they want a cause of action in certain kinds of situations, and then marking duty or noduty)

p. 111: general duty of ordinary care from everyone to everyone else, with exceptions as justied byfactors (Tarasoff factors):

Major Legal Realist stance of case: Legal duty is just a label, constructive, a policy issue that courts get todecide and then make a policy decision thereby (p. 122)Practical Concerns

greater danger for society if people can't trust their shrinks, are deterred from going, etc. (dissentargues this but we still lack evidence)psychs can't predict behavior that wellworries about violations of privacy/condentiality

in part an issue because of strictness of CA's privacy requirements (from dinstitutionalizationmovements in 60s, 70s, 80s)cynical reading: risks of deinstitutionalization and higher standards of commitment while keepinghostility to psychiatrists (but not police, who are not liable)

Did Dr. do everything he should do? (assuming there was a duty, was there a breach?)conned and contacted policecase has bizarre result, because even if there was a duty, it wasn't breached

vs. Rowland (eliminates categories for landowner liability); vs. MacPherson (eliminates privity)similarities to Rowland

similar languagesimlar decisionopen about policy reasons

Maybe Tarasoff more like MacPherson, very different from Rowlandgiven the picture of degree of danger they perceived, they were situated to save the woman andsociety depends on them to act on it

trying to build on resources already in common law and push law in new way with what's alreadythere

More of a common law/jurisprudential approach than Rowland, but with similarly progressive ideas3 Landowner Liability/Premises Liability (dangerous condition , not dangerous activity) (for tenant, possessor,

landowner)Using 3 (interstitial) categories, liability turns on status of P, even though it's arguable whether the status of P hasany relation to justications in tort compensation/liability)

invitee (highest status, most liability). duty of ordinary carethere for business purposes, mutual advantagepeople invited with the expectation of benet, and come with expectation of beneteven in jurisdictions that have retained the tripartite distinction, might be more open-minded with regard towho is an invitee

once it's open to public, and people are there with permissionchurches, not-for-prots, etc.reliance by invitees on it being a place where they will be safe

families and regular guests of a tenant are generally inviteeslicensee (and trap rule). willful or wanton or trap rule

there with permission, no business (having a friend over)Trap Rule: willful or wanton OR if there are dangerous things that possessor knows or should know, andwouldn't be obvious to a person of ordinary care, duty to warn.

has to be gap between D's knowledge and P's knowledge (or what D should have known)trespasser (lowest status). no duty of care (willful or wanton injury)

intentionally enter and it is, in fact, property over which someone else has exclusive control. can be withoutfault/knowledgebecome a trespasser if you go where you're not supposed to be within a place that you're an inviteeat Common Law, almost no duty of care to trespasser (no right to recover from landowner whose dangerousproperty you had no right to enter). Historical rule that you had no right to sue b/c you're there against right


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incentivizes non-landowners to be vigilantblame argument (P's fault that he was there. P was 'bad' for trespassing). Even with absence of intent or'badness' (as potentially true in Lefer), still on land without right, counts against being able to recover(relevant that you're outside your rights to ability to extract damage reward)

no reason to force possessor to provide compensation (no good reason argument)commensurate with idea of comparative or contributory negligence, which used to completely bar recovery(P's fault is part of chain of events). Comparative negligence still exists

argument that duty of care is not owed to trespasser survives the end of these categories (exceptionsinvolving kids: attractive nuisance)Lefer v. Sharp (Miss. 2005), p. 88: Lefer fell off roof of Quarter Inn (out smoking), was a trespasser, no

duty breachedThree-Pronged Testclassify person

inviteelicensee (permission)trespasser

determine what duty pertainsfor trespasser: refrain from willfully or wantonly injuring the tresspasser

determine if duty breachedP would want to articulate a cause of action without regard to duty. Would say D should have

repaired the roof (lease didn't cover roof)barred the windows (either of them)warned, with better signsgotten the people already outside to come in

P: even if I'm a trespasser, no summary judgment because issue of fact (duty is an issue of law): whetherpermitting people to go on roof that you know is in bad repair is wanton (extreme recklessness). courtrejects this argument (BZ thinks correctly) . too strong to describe actions here. Lefer probably didn'tknow he was a trespasser.If he were a trespasser, benets in still being allowed to sue:

deter activity that makes people think they can go somewhere they're not supposed tomake landowners have safer places

Not an invitee b/c going on the roof was trespassing, so lower court correctly granted summary judgment.D supposedly carries burden of establishing duty, but seems like P did hereBUT window should've been barred. Quarter Inn was negligent. They thought through the issue, realizedit was a problem, made a plan to weld bars to the window, but didn't follow through. BZ says this isnegligence

Free and Quarter don't lease roof. Removes argument that they should have xed roof. Real negligenceis failure to bar window (different theory of the case). Letting invitees do dangerous thing. Obligation toinvitees stands. "Attractive nuisance for drunk people."

Rowland v. Christian (Cal '68), p. 110. Licensee badly hurt on broken faucet. Court strikes tripartite distinction andmakes general duty of reasonable care. Eliminates doctrinal categories in favor of spreading liability. (BZ wants tomake us sympathetic to Rowland court even though it's his 'mission' to defeat it).

Holding: D was negligent, and life and limb worth just as much in houseguests as in business guests. Proper testis reasonable in view of probability of injury to others.

allows recovery in this casecourt doesn't want to keep operating highly nuanced concepts and think that the whole way of thinking iswrongCites statute 1714 (p. 111) and legislative supremacy

usually, common law eshes out statute (BZ says this arg is a lot of bluster bc statute is articulation of basicprinciple and values, doesn't do any real work)

uses to bolster its position bc it's doing something unusualGet rid of categories because:

statutory argumentargument of principle (p. 114), "man's life or limb..." status of the three categories shoudln't determinewhether a person should be able to recoverconsiderations relevant to taxonomy of categories have no plausible connection to values underlyingcompensation for harm to life and limbIs the question of the value of life and limb the right initial question? one could argue that tort law caresabout blameworthiness of D rather than value of life and limb of P. Less blameworthy based on level ofcare dueno reason to cut through categorically, just send it to jury


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latches on to idea that part of the purpose of tort law is to be a system for compensation for people withserious physical injuries, which doesn't vary with reaoson for being on the land ("peculiar assumption thatthat's what tort law's about")

Counterarguments, in favor of categorical rulepeople should have the liberty to make decisions about their premises, what they owe others given thetype of thing they're doing (this cuts both ways)carve out various kinds of spaces for different levels of relationships. Allow different for houseguests andcustomers (don't foster litigation among friends; costs to 1-size-ts-all level of requirement/care)practical considerations (court management; how much insurance ppl need to carry)Common Law has latched on to social norms about duties of care which get at peoples' expectations

Dissent: To promote reasonably stable, predictable rules. To be the oodgatesmajority is upsetting expectations (has authority to change law, but has duty to predictability because of itshigh costs to actors in the system)problem of judicial activism? Dissent accuses majoritysays nobody ever thought that statute governed before

language is too bland to be self-executing, so law only comes from interpretingreexamine text closely for restriction

BZ thinks court wanted to overturn the system. P could have argued that even though he's a licensee, failure towarn of dangerous condition that D knew of falls under trap rule

4 5 Big Issues on duty and legal realism (Rowland Court vs. MacPherson (Cardozo))Rowland Court shows unusual degree of willingness to alter landscape in this area: "activist" Cardozo could be seen as doing a similar thing, or just as getting rid of privity rule but following duty

Duty element in negligence law is makeway, non-essential to understanding the wrong, doesn't do any workCardozo: uses duty element to recognize claim between Buick and MacPherson. Says negligence law is about

failing to take careStructure of negligence law: 3 elements not 4 (carelessness, causation, and injury)Cardozo: toward someone you have obligation to take care for

Nature of Tort Law and Liability and its purposes: injured person entitled to have injury's causer pay. It's a cost-shifting mechanism with fault as its basic principle (using 7 'tarasoff factors' on measuring countervailing intereststhat can defeat)

Cardozo: tort liability not about shifting losses, about one whose right has been invaded, like battery lawPicture of nature of law and adjudication (legal realist view)

court doesn't think it makes sense to believe that words/concepts have any particular content besides those thelawyers argue (ie duty, etc)Myth that law constrains what you can decide in a casealternative: judges are just people, courts are just political institutions, just make judgment calls about reasonablysensible rules to make blameworthy actors liable

Cardozo: we don't want our judges to be philosopher kings/making up moral philosophy, but DO want them topush forward language and concepts already there (or change it but seem to defer to it?)

Distrust of normatively tinged languagespecial contempt for word duty as epitome of bullshitbad faith exercise in rationalizing the limitation of liability

Non-Physical Harm1 Pure Economic Harm : General rule of no duty to take care to avoid causing others pure economic harm

Caveats: must be pure economic harm; must be negligently (not intentionally) caused (intentional wrongdoing withpure economic harm is actionable, but not in negligence)Exceptions: special relationship, then have duty to care for pure economic well-being

Accountants : Ultramares Corp. v. Touche (p. 108) foundational accountant liability, when acct failed andcreditors suffered and acct knew of creditors and their use for the info, they were liableLawyers (sometimes even non-clients, like beneciary of will)

Aikens v. Debow (WV 2000) p. 97. Econo-Lodge operator sues truck driver who broke the access ramp by whichcustomers would access motel for lost prot. No recovery b/c no physical injury and no special relationshipCircuit Court requested certication on: no physical damage but econ can maintain negligent injury action forpure econ loss? (no)Duty factors

foreseeability of riskremotenessidentiabilityprobability of damage

special relationshippolicy

injuryburden


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consequences"scope of the risk which negligent conduct foreseeably entails" (100)

Court is worried about restricting over-expansion of duty as a matter of policy, even though lodge owner gotscrewed. Floodgates issue.

2 NIED: Emotional Harm : General rule of no duty with two exceptionsCaveats

Caveat: there are categories of damages you can get if you have a predicate injury ("parasitic")Caveat: if D was acting intentionally to bring about emotional harmCaveat (possible third): physical harm, as in Robb, with no physical injury

Exceptions/ 3 types of rules limiting/allowing recovery in NIEDSpecial Relationship with obligation to be vigilant of another person's well being (morticians, psychiatrists).Most states don't articulate the special relationship doctrine, even though it exists.

Lauer v. City of New York 95 NY2d 95, '00 (handout). medical examiner did not have any special duty toparents not to negligently inict emotional distress b/c acting in ministerial duty

BZ doesn't like the way the case comes outmajority said NIED case could move forward if four claims met (factors show special reliance/relationship).said factors not met

(1) an assumption by the municipality, through promises or actions, of an afrmative duty to act onbehalf of the party who was injured;(2) knowledge on the part of the municipality's agents that inaction could lead to harm;(3) some form of direct contact between the municipality's agents and the injured party; and(4) that party's justiable reliance on the municipality's afrmative undertaking.

Dissent (Smith) says requirements are met

Dissent (Bellacosa) says obviously there's a duty because the examiner created the peril, thus has duty tocorrectBZ thinks similar to libel claim bc most of the damage is reputationalmoral question of what the guy should've done. (formalism, how formalistic should we be, how intertwinelegal and moral)

old-fashioned rule: impact rule . no recovery unless physical impact (minority rule)ambiguous between 3 ideas: parasitic damages on physical injury ; vs. no recovery unless causalconnection mediated by actual physical touch ( touch as limit/physical proof ); or physical manifestation ofemotional harmWyman v. Leavitt , (1880) p. 700. No recovery for negligently doing construction near P's house whichcaused woman emotional distress about harm to her safety and her child's safety. No NIED action b/coodgates.

bystander /family members (Dillon v. Legg; Thing v. La Chusa)No duty argument frequently fails for secondary actors in accidents who witness harm to loved ones. CA has

stretched and said she doesn't need to be in zone of physical dangerCriteria:

family memberwhether it's witnessedwhether the person is in the vicinitywhether its contemporaneousif contemporaneous, witnessed, and family memeber, then denitely foreseeable

Dillon v. Legg , Cal. 1968, p. 734. Mom can recover for watching daughter get hit by a car, even thoughoutside the zone of danger, because harm to her is foreseeable

kid is hit by a car, sister is with her and almost hit, mom watches but is outside the zone of dangerCA has zone of danger rule. so sisters can recover (one hit and one not hit) and mom can't recover (underAmaya)CA supreme court (had already done Rowland, Tarasoff, limiting negligence law based on idea of nouniversal duty) says they don't believe in duty. what matters is foreseeability. duty is a policy shorthand

in running down a kid, nothing more foreseeable than devastation to witnessing family member,whether or not they're in the zone of dangerno reason not to say there's a duty. as long as there's foreseeability, there is a duty.

Holding: as long as foreseeable and low risk of fraud, then can recover. (RULE)in a case that involves emotional harm, criteria for foreseeability

family memberwhether it's witnessedwhether the person is in the vicinitywhether its contemporaneousif contemporaneous, witnessed, and family memeber, then denitely foreseeable

Thing v. La Chusa , Cal. '89, p. 741. Explicitly limits Dillon recovery to close family members who are presentat the time of the injury and witness (rather than Dillon's 'guidelines' approach)


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terrible injury to child. mom shows up minutes later and sees child suffering and is traumatizedD says no duty b/c not contemporaneousP says that dillon v. legg is about the idea that we shouldn't be erecting fabricated, arbitrary barriers . ifthere's real harm that hasn't happened in a uke way and because of negligence of D, then people shouldbe able to recover, and duty is just a label to organizein principle, valid. recognize authenticity of harmcourt says law is an arbitrary line, so we have to stop hereIssue: Are Dillon guidelines valid/useable? Need clear guidance for courts, Ps, and Ds, with certainty andreasonable limits. Must be more than a reasonable person would sufferlimits are inherently arbitrary but necessary

technically reiterated Dillon but as a practical matter, need to limit beyond foreseeability, so takes Dillonand makes the rule hard and fast

from Dillon and Thing, you get something "distressing" (to BZ): Dillon eliminates an arbitrary line (of the zoneof danger) and Thing brings back a different arbitrary line. BZ thinks these are back-door loss of consortiumcases (want to recognize a right of redress/vindication/symbolic recovery (but no duty not to cause emotionalharm), but don't try to squeeze it into common law framework of duty)

**20 jurisdictions. zone of danger rule . if P was physically imperiled by negligent conduct of D, but only injurysuffered was emotional injury, then P can recover

kind of like assault, the negligent equivalent thereof. near-hit and you recover for the apprehension/frightWaube v. Warrington , (WIS 1935), p. 731. NIED limited to shock caused by peril to P (as limited by duty), sono recovery for shock from witnessing daughter's death through window

P was watching through window as daughter crossed the street. D hit daughter with car and killed her.Issue: can someone not in peril recover for fright? (no)frames as issue of duty, not proximate cause

fear must be of one's own safety, and does not extend to parent/childpolicy balancing question of how far to extend duty: don't want too much liability, but no clear-cut stoppingpoint, so stop with peril to P.

Robb. v. Pennsylvania RR Co. , (1965) p. 701. Woman almost hit by train b/c her car was stuck innegligently created ditch can recover injuries from fright because she was in the zone of danger eventhough there was no touching (rejects 'physical impact' rule)

car stuck in train tracks, runs just in time not to get killed. suffers extreme emotional harm and stopslactating.

(think of it as a physical harm case). she gets physicall ill as a result of the trauma, and trauma onlyoccurred as a result of D's negligencedoesn't really t in the framework abovemechanism of harm is fear. predicate injury is physical harm, but mechanism is fearproperty damage has not supported recovery for emotional harm damages. only emotional harm

damages parasitic upon bodily injuryphysical impact rule based on three ideas (each rejected)fright does not give cause of actionrequisite causal connection unprovablepublic policy/expediency

courts have obligation to provide compensation when it is obviously due, as here. exclusion of this kind ofdamages is arbitrary"where results, which are regarded as proper elements of recovery as a consequence of physical injury,are proximately caused by fright due to negligence, recovery by one in the immediate zone of physical riskshould be permitted."

Consolidated Rail Corp. v. Gottshall , SCOTUS 1994, p. 705. Adopts zone of danger rule under FELA forNIED claims

Facts of (Gottshall and Carlyle, two cases decided together)

Gottshall: P was trying to x RR tracks, working under extreme conditions (really hot, no water), sawanother worker die of a heart attack while workingP got cold sweats, nightmares, got worried that he would suffer the same fatewant to link heedlessness of employer to emotional harm of P. were heedless as to whether guydied, and also to the trauma that everyone else would experience under these circumstancespartly a duty issue: is there a duty to be igilant of the emotional well being of certain people, and isthere a plausible claim here by the P that there is such a duty and that duty was breached?

is there negligence as to emotional well being of these employees under these circumstances? (qfor p's lawyers to be able to answer)

Carlyle: clearer claim that employer was negligent to P's well-beingP worked in train yard as dispatcher, was forced to work crazy hours and couldn't handle the stresscourt doesn't think it's plausible that federal RR statute could cover emotional harm for working toomuch


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Issue: what constitutes injury in emotional distress caused by negligence? (mental distress that is notequivalent to pain and suffering: negligent conduct has caused pure emotional harm). Limit by zone ofdanger testProblems calling for limiting rules

gatekeeper/oodgatespredictabilityvalidity/fraud

Ginsburg dissent: this test is too restrictive, disputes policy reasons necessitating a test so limiting (in FELAclaims, not 'innite Ps'

should Gottshall be able to recover in this standard? (BZ thinks no).Breach (issue of fact/mixed; burden on P to establish) (sometimes called negligence)a four features of standard breach instruction

1 1) negligence = failure to use ordinary care2 2) "ordinary care" = reasonable person standard3 3) jury should consider whether D was negligent in doing something or in failing to do something4 4) consider circumstances and whether care was ordinary for the circumstances

b Considerations for breach (from Adams v. Bullock)1 foreseeability (most important factor)2 no warning to take special precautions. Nothing salient about factual situation. No notice (hadn't happened before)3 no customs had been disregarded (see Hooper, even Hand thinks somewhat important even though custom is not

the be-all, end-all)4 legality (see also in Grand Trunk, where violating speeding law was important)

you can comply with all statutes and still be negligent. NOT DISPOSITIVE5 no feasible precautions that D could have taken at this spot that could have preventedc Not living up to the Standard of Care

1 ordinary care: value judgment of what ordinary care requires , and judging whether D lived up to that standard.mixed question of law and fact

overwhelmingly, we pick standard of ordinary care, dened by reference to reasonably careful or reasonably prudentperson (see p. 140, jury instructions in Meyers, on p. 145, in Grand Trunk)Martin v. Evans (PA 1998) p. 142: tractor-trailer backs into man, trial court overturned jury verdict of no negligence,ct. of appeals overturns because evidence supported claim of ordinary care under circumstances.

Evans (D) won at trial (Martin wanted new trial) jury thought truck driver who hit a guy not negligent jury came out with defendant by making a credibility determination that P was lyingmaybe jury actually thought that it was P's own fault (comparative negligence), and no this read, view of P'sliability colored jury's view of D's liability.

in principle, question of contributory negligence should go all the way through. on this read, you canunderstand what trial judge was diong judge thought verdict "shocks sense of justice,"

appellate court overturns judge's grant of new trial ("wags its nger" at trial judge) because JURY question, not aquestion for court, so granted new trial, not summary judgment, because a jury would have to answer otherquestions on the special verdictP had burden of establishing breach

jury made credibility determination owed deferenceCampbell v. Kovich (Mich 2006), p. 150. Woman hurt by boy lawn mowing with reasonable care. No issue ofmaterial fact. (summary judgment was appropriate)

in some ways in tension with Martin v. Evansnot strong enough to go to jury because nothing showing that action didn't live up to standard of ordinary carecourt of appeals afrms (like in Walter v. WalMart, where pharmacist ruled negligent as a matter of law)ordinarily, fact Q for jury, but 'ripped away' by court here because facts are not strong enough, and so 'only one

way a reasonable jury could come out on this'question of whether this case is what it purports to be. purports to be about what a reasonable fact nder couldnd (probably true) but when taken from jury, takes avor of policy question (like Adams v. Bullock)

Adams v. Bullock (NY 1919), p. 151. Cardozo. Trolley with overhead wire hurt boy swinging wire. Jury verdict forboy afrmed on appeal. No negligence because duty not ignored (injury due to extraordinary circumstances).

Breach is usually a jury decision, but here court says facts not strong enough to go to jury. question of whethertakes from jury for actual reasons or for policy reasonsvery important caseCardozo goes through considerations that P would use to say that there was good care (leaves P empty-handedhere, so no case that withstands jnov motion)

accident unforeseeable (most important factor)kid electrocuted, freak accidentare restrictions on negligence about ferretting out freak accidents where we don't want to assign liability?


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foreseeability a common element in duty analysisforeseeability a common element in breach analysisfreak accidents are a recurrent theme in tort law fact patterns

no warning to take special precautions. Nothing salient about factual situation. No notice (hadn't happenedbefore)no customs had been disregarded (see Hooper, even Hand thinks somewhat important even though customis not the be-all, end-all)legality (see also in Grant Trunk, where violating speeding law was important)

you can comply with all statutes and still be negligentbut here good fact for D that no law broken

no particular precautions that D could have taken at this spot that could have prevented (BZ: not quite true,could have put barrier, at that spot or everywhere. conceivable but enormously expensive. so no feasibleprecautions).

So considerations in breach: notice, custom, foreseeability, legality, feasibility of precautions (keep these in mindfor evaluating breach issues)BZ thinks rightly decidedif P's case so weak, why did P win with jury (case shows importance of idea and practice of comparativenegligence as a defense)

jury decided for Adams, against company, which should have to payif the idea of giving jury breach questions is that they get to decide who pays in tragic accidents, then whyshould appellate judge take that away?sympathy-driven insurance for injured people

2 sometimes, more than ordinary care (common carriers; inkeepers; bailors)Jones v. Port Authority of Allegheny County (PA 1990), p. 148. Man fell on moving bus. Common carriers have

highest duty of care, jury instruction must reect that and not ordinary standard. reversal, new trial because trial judge didn't give instruction reecting higher care for common carriers

3 sometimes, failure to use ordinary care isn't enough to show negligence/breach: Koffman (school football coach)required gross negligence; good samaritan laws; landowner liability for licensees and trespassers

4 Industry Custom and Professional Negligence (performed as a reasonably careful X would have performed)General Rule : industry custom is not dispositive of reasonable care (except in medical malpractice cases).compliance with custom is not dispositive of meeting the standard of care. TJ Hooper.

T.J. Hooper , 1938, p. 171. 2 boats lost in storm. tugs unseaworthy b.c did not have radios, even though industrystandard was not to have radios.

Maritime law governs (federal question). Not in negligence, even though it's an important breach case, notabout breach.Judge Hand discussing liability for tugs, who are trying to escape liability by saying that they lived up to federalstandard (vessel being seaworthy). If vessels not seaworthy, then share liability.

boats don't have working radios

standard for seaworthiness under maritime law: reasonable care in keeping vehicle in condition it shouldhave been in.negligence-like standard

D's argument: nothing is wrong with the vessel, and not negligent not to have a radio because it is notstandard to have radios, and this is sufcient basis for rejecting P's claim (reasonable care bounded bycustomary care)Hand: whole industry can lag behind reasonable care. COMMON CARE DOES NOT EQUAL REASONABLECARE

some boats had radios, which doesn't show that it's custom but does show evidence that it's reasonablycareful to have onecustom is not necessary to show neglectcategorically, you don't have to prove customfact that a lot of people brought their own radios cuts both ways

Johnson v. Riverdale Anesthesia , GA 2002, p. 173. medical expert witness cannot testify as to how he would

have treated P (who died b/c not preoxygenated by anaesthesiologist) b/c not relevant to/indicative of generalstandard of care.

argument that it is relevant: some credibility value on the line, some inconsistency between "what's the norm"and "what do you do?"

this is the only purpose its allowed (impeachment value) before this case. not relevant substantively,is he telling the truth? what do you teach your students? is that question probative of whether he's lying?

case is striking for two reasons.SC of state, doing something at minimum bad form: overrule a precedent precisely on point without givingany reasons (violation of soft norms of stare decisis, one of most striking examples). raw politics, badform.vagueness in question. asking empirical question about pattern of conduct, or request for articulation ofnorm (normative)?


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part of the reason we permit impeachment on this question normally is because its not just a at,descriptive question of the norm, but person is vouching for expert's view of how this is supposed to bedone in the relevant communityroom for normative decision making (what experts think standard of care requirements), so not as anti-TJ hooper as it seems.

Professional negligence : different concept from regular negligencenot higher or lower level of care, but show that D failed to perform as a reasonably careful X would haveperformed.alters question on a different axis by redening who we compare to (instead of reasonably careful person, toreasonably careful person in eld)

Medical Malpractice : opposite rule. breach = failure of D to live up to standard of care for relevant professionalcommunity (so compliance with this standard is dispositive of breach). Anti-TJ Hooper Rule

medical malpractice dominated by Q of breach. on professional community:how big is relevant geographical communityhow specialized is the relevant medical community?

surgeon vs. cardiac surgeon vs. pediatric cardiac surgeon (litigants will ght over this)does D need to be member of the specied community?ghts about individuation

every jurisdiction says in medical malpractice, P cannot go to jury unless P has expert testimony to support aclaim of breach (evidentiary rule). ALMOST every case needs an expert but not really obvious ones, like leavinga scalpel inside a patient:

Other areas for fudge room in expert's standard of care testimonyspecication as to geographical community (most courts are moving to national standard). but tospecialization or sub-specialization? (room for courts to move into normatively demanding standard or tobroader standard)"squish room" in different ways of thinking about what standard of care meansWalter v. Wal-mart, where pharmacist gave patient wrong drug

Why should we have a different rule at all for medical malpractice than for other industriesexpertise argument

limited because other highly technical industries where industry has huge incentive to take the mostsensible, feasible precautions and juries know virtually nothing. why wouldn't the expertise argumentextend to these other indistries?

notwithstanding expertise gap, reasons to think whole profession has fallen behindobvious hypothesis: doctors have lobbied well, blocked developments that other industries haven't

good to have medical malpractice shielded from liability for larger public goodlots of states have med mal tort reform to limit liability to limit cost of malpractice insurance for doctors (policyreason to keep medical care affordable)symbol of esteem in which medical practice was once held (causal explanation, doesn't defend it)most plausible defense: even if drs held to standard of care but no higher, still pretty exacting standard. sohigh potential for liability even with benet of anti-TJ Hooper rule.

Informed Consent has patient rule (info a reasonable patient would want before deciding, like TJ Hooper Rule b/cprofession can't set the standard) or physician rule (information that a reasonable/competent physician would give,like anti-TJ Hooper b/c community dictates standard)

districts vary and ip between patient rule and physician ruleobjective standard for causationInformed consent is a hybrid cause of action

in some ways, a standard of care issue, so similar to malpracticein some ways, the question is one of consent with proper amount of information, so similar to battery

new cause of action so that Ps don't have to worry about labelsLargey , NJ 1988, p. 177. breast biopsy informed consent case; adopts patient rule and rejects physician rule

Issue: standard to instruct jury whether dr. had adequately informed for consent (P wanted patient rule and Dwanted physician rule)

P alleges battery and negligenceCase discards reasonable physician rule and adopts reasonable patient rule. Reasons:

medical custom is a sketchy standard, and industry shouldn't set its own standards anywaynon-medical factors, so can't use purely medical standardphysician's discretion shouldn't limit patient's self-determinationevidentiary concerns (how to get doctors to testify against each other)

NJ used to have 'physician rule' but now has 'patient rule'. the rule dictates how much and what kind ofinformationadopts objective standard of causation (would have to show that a reasonable person in P's position, giventhe information, would have made a different choice)

Professional Malpractice for lawyers works almost the same way as medical. Almost always needs an expert. lessdeveloped eld.


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all that's challenged in this case is the number, on the expectation that homeowner's insurance wouldpay out for kids. BZ sees possibility of collusion

If child is engaged in adult activity, then will be held to standard of reasonable adult (case in notes on motorboat).BZ thinks that also for driving carsfor parents to be liable, must be directly negligent, not vicariously

ex. negligent supervisionex. negligent entrustment

standards for professionals are higher: competent, well-trained professional in the area (Johnson)Disabilities

mental disabilities: same standard (no particularization), so knowingly holding them to standard they can't meet.nothing comparable to insanity. policy reasons:

allocate losses between two innocent parties to the one who caused or occasioned the lossincentive to guardian to control their behaviorno inducement to fakeavoid administrative problems of proving'forcing persons with disabilities to pay for the damage they do if they are to live active lives'

physical disabilities (like blindness): particularize, hold to standard of other blind persone Reasonableness, Balancing, and Cost-benet Analysis. The Hand Test (Burden


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both makes sense in the law and econ sense, and has been the basis of tort law (according to Posner's reading ofHand here)

3 Rhode Island Hosp. Trust Nat'l Bank v. Zapata Corp , 1st cir. 1988, p. 194: bank is using sufcient system fordetecting bad checks b/c it is cost-efcient, and spending more wouldn't produce signicantly better results

Issue: what is the standard of negligence in detecting forged checks?Holding: P did not prove lack of ordinary care on the part of the bank, so no negligence

bank's practices were industry standard or bettermore careful practices would impose big costs and court doesn't think would produce real saving, so wouldn't bereasonable

"not every precaution is worth taking"

4 The Hand Test: (strengths, weaknesses, etc.)frequently criticized for bottom-line/heart lessness approach. If you believe this, you think just calculate risk of suit'immoral'

legal actors should not take precautions except insofar as would be rational and avoid liabilitysuggests negligence means take precautions when you would face liability

Hand doesn't talk about cost and probability of litigation, but cost and probability of injury. Encourages actors tothink outside themselves

nothing to suggest that Hand means cost of litigation.Hand not talking about dollars when he talks about costs. Posner means wealth. Hand means costs morebroadly

Georgia peanut butter with salmonella example: by Hand formula, not about what people should do, just tells uswhat kind of liability should be imposed and connection of liability to what law says should be required. Method ofinterpreting reasonable care.

is reasonably prudent care: business? ethics? t.j. hooper or anti-

B= costs to company in taking the precaution would be wasted product, etc.L= potential losses if you don't take the precaution

(medical billsloss of customers)pain and suffering counts? should count. (Hand would agree, Posner too (he just wants everything in dollarand cents scale so you can analyze))

does the reasonable person, in considering the consequences of his or her action, consider how muchpain and to how many people? YES!adult pain counts

if you don't know how much has gone out and you don't know how many people might be affected, but havereason to believe that non-trivial amount went out, should you recall?

policy-makers POV:moralists POV:

Crit: preferences people who can make money by imposing pain and suffering on others. (If I can make $500 byimposing $200 of pain on you, I will do it).Posner and hand would have said 'I don't know what peanut butter people would do, it depends on how much therecall would cost, whether reasonable care would require it.' There is a cost beyond which reasonable care wouldn'trequire it

cba is a way that we think about a lot of social policy problemstautological once you're doing cbahand and posner are trying to entrench relevance of formula as abstract matter in common law of negligenceassuming that what reasonable care means is what a reasonable person doing cba would dogives components of decision, not what decision should bebasis of thinking about negligence liability at all

In reality, people know of highly dangerous activities and take not-insignicant risk, and thus are required to do recall(without asking how much it costs and if it will be worth it, which would be the next 'hand' question)

is this analysis consistent with the way people in our legal system and in our society understand reasonablecare? is there too much of a ramming of reasonable care (which is meant to be an everyday notion) into bottom-line attitutude toward safety?

BZ: The question of whether CBA is appropriate is an academic question, because the Hand formula is in left eld,and isn't what negligence law is about (even though single most inuential idea for American law professors).

negligence cases go to jury, where breach is an issue before the jury, and uncontested that jury is never giventhe hand formula, even in abstract version, and uncontested that they are given the 'squishy stuff' given in therst section on breach: "what a reasonably careful person would do under the circumstances"a few appellate judges who do what Breyer did in Zapata, which is to use analysis of Hand formula and Posner inthinking about how to interpret ordinary caredoesn't think it's that relevant even though many scholars out there think this is all the worse for a jury system(maybe don't give it to them if we think they're too stupid, but ordinary care is a heuristic that channels them tothe same considerations)some profs think we should get rid of the jury or change the jury instructions to be about Hand formula. or justhave professional judges deciding


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decisive that it's not what the law actually ispro: exible enough to include pain, death, etc.NOT battery even if you know by probability that someone will get harmed. ne line between advertence andinadvertence. But could probably be punitive damages in the peanut case beMethodological Problem with Hand: measuring each of the three variables (for actors and for juries)

problem of incommensurability or incomparability (dollars vs. pain)intersubjectivity problem. we can't measure the values other people place on this. "problem of interpersonalutility comparison"

Posner says that at least in theory, market is pricing mechanism that makes everything fungible, including thingsabove

works interpersonallykeep wealth the medium of value so that market can accommodate, even if it seems desirable to change to painor something more tangible

Calabresi response to untradability arguments: society constantly makes these sorts of valuation decisions, anddraws lines

trade-off is a condition of the whole enterprise of policy-making and it's naive to pretend otherwise. But doesn'tmean that at the end of the day that all we'll be doing is putting things into formulae. Courts and laws havedifferent ways of slicing the problem. juries are making their own decisions

5 Lord Reid's "Disproportionate Cost" testif risk was exceedingly small that the sort of harm at case would be suffered, then no obligation to take precautionsif risk was real but very small, obligated to take precautions unless cost disproportionate to harm riskedif risk of harm was material/substantial, D had to do everything possible to prevent, even if precautions weredisproportionate in cost

f Judges vs Juries deciding breach1 When questions of breach are decided by judges and not juries, we should ask whether the case is what it purports to

be (a case where all reasonable fact nders could only nd one thing) or policy casesAdams v. Bullock is most obvious onebut Campbell v. Kovich also taken from juryWalter v. Wal-Mart Stores, Inc . (ME 2000)

facts: chemo patient was given wrong drug by pharmacist, suffered injuryissue: Did the trial court err in granting judgment as a matter of law? (no)

2 Reasons for judge to take from jurycourts sometimes inate their power to pull breach q from jury for policy reasonsask if the reasons soundDs can also request that jduges consider P's breach of ordinary care as a matter of law

g Proving Breach: Res Ipsa Loquitur (the thing speaks for itself)1 3 conditions for res ipsa in black letter law today

the event has to be of a kind that ordinarily does not occur in the absence of negligenceKambat brings up that this element is the one with expert testimonyinstrumentality of harm exclusively in Ds controlnot due to any voluntary action on the part of P

2 Res Ipsa main ideas, themes, factslargest role: defeating motions as a matter of lawtool for ghting a defense motion as a matter of law that case shouldn't go to jury because P doesn't have evidenceof breach. so doesn't make P win, just allows to go to jury, and D gets a chance to present evidence to rebut.res ipsa frequently used against the Pstandard: "enough that the evidence supporting the three conditions afford a rational basis for concluding that "it ismore likely than not" that the injury was caused by defendant's negligence" (p. 208, Kambat)res ipsa and expert testimony: usually a big issue of contention, and experts used to displace jurors' commonknowledge of whether the type of injury could normally occur without negligence. can use res ipsa even whenexpert testimony is needed to establish that events leading to P's injury wouldn't happen without carelessness

by and large, tort law sticks to evidentiary understanding of res ipsa3 Byrne v. Boadle Engl 1863, p. 205: our falls on guy's head in the street, fact of the accident is prima facie evidenceof negligence, so court invents res ipsa loquitur and burden shifts to D to disprove negligence

you can't have a rule where there's an accident and an automatic presumption of negligence, because P's burden ofproof to PROVE negligence. If injury is enough to win, then it's strict liability. Injury can't be enough in itself.D has the law in his favor but not the facts (under the law at that time, P has to prove breach, but...)key to court's solution: nd a way to deal with oodgates problems: nd a way to constrain the domain within whichres ipsa will work, so manageable set of cases that is predictable. 3 conditions for Ryou might think we don't care whether D was negligent, and that it's a case about evidence like the court says. BUT,do we care if there was negligence by Byrne? So is it evidentiary ideas that drive the concern that he be able torecover, or is it that in certain contexts, something like strict liability seems more appropriate anyawy?

4 Kambat v. St. Francis Hospital , NY 1997, p. 206. surgery pad in P (medical malpractice suit), court should've givenres ipsa instruction

facts and procedural posture


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woman has laporotomy pad(18x18) in her bowelstrial court refused to instruct jury on res ipsa, and hospital won on theory that woman swallowed the pad

case won with expert witness for D, who said she easily could have swallowed the pad jury doesn't have to believe whole defense as a technical matter(on remand, D still won)P was allowed to go to jury anyway, did not face summary judgment motion"where the actual or specic cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may incertain circumstances infer negligence merely from the happening of an event and the defendant's relation to it."standard for P (besides 3 conditions to invoke) is that its more likely than not that injury was caused by D'snegligence (doesn't have to disprove all other possible causes)

h Negligence Per Se (doctrine that breaking law is prima facie negligence). also covers regulations (Bayne)1 doctrine used by Ps to bolster their claims on breach, like res ipsa (device to shift burden of proof from P to D)

also, a few potential excuses for non-compliance with law even if negligence per seif P succeeds in invoking the doctrine, judge can instruct jury that they must nd that there was a breachnot so much about a fact pattern as it is about the law. use it to earn an irrebuttable presumption that there was abreach.as procedural matter, must more powerful tool than res ipsa.

makes pretty strong case on breach into airtight case on breachres ipsa takes a weak case on breach to viable on breachcaveat on powerfulness: only gets you over the breach problem (slight exaggeration), doesn't tell you whetherthe breach caused the injury

2 threshold question in negligence per se cases: is this the right kind of law , given the fact pattern, to triggernegligence per se? (right kind of law, right kind of person, right kind of injury)

4 factors (in restatement 286, p. 340):class of personsparticular interest which is invadedthe kind of harm which has resultedagainst particular hazard from which harm results

4 factors frequently boiled down to 2 factors:is this statute there to protect the class of persons of which the P is a part?is this class of statutes there to protect that class of persons against the sort of hazard that in fact ripened intoinjury in the case before us now?

classic example of statute put in place for safety reasons: young children in car seat. if child not in car seat agitatesand causes accident, then argue:

for negligence per se: by not putting rst child in car seat, breached duty of due carevictim is a childkind of injury is the kind statute meant to protect against

against using negligence per se:hazard in this case was child being annoying and distracting the driver, which is not reason for carseat law

3 Dalal v. City of New York , NY 1999, p. 338. D in accident not wearing glasses against law is negligence per se.statute sets up standard of care, the unexcused violation of which is negligence per se (339)

4 Bayne v. Todd Shipyards corp. , Wash. 1977, p. 339. Violation of administrative safety regulation (requiringguardrails) is negligence per se.

delivery man who was not employee of loading dock area, but injured because platform didn't have guard rail.I1: court said negligence per se from four factors from restatement

P argues: right kind of statute because it's about safety, meant to protect people who are working at these kindsof sitesso right category of P (workers), right category of D, right category of risk (falling), right category of injurywrinkle: OSHA regulation, about protecting employees of the people OSHA is regulating. P was not an employeeof company, so technically maybe outside? (P argues that its to protect all workers at site, and wins)

I2:P can use negligence per se analysis even though regulation, not statute

traditional arg for negligence per se: if legislature has weighed in on standard of care, then true as a matter oflaw, bc legislature is representative, the person to regulate, etc.so under this argument, right kind of statute is one made by legislatureif the body making decision isn't cross-section of community, can you use it the same way? court follows majoritydecision that you can, but court overrules precedent to get there.

5 Victor v. Hedge Cal. 1999, p. 342: parking on sidewalk does NOT = negligence per secourt nds that negligence per se does not apply because P is not of class meant to be protected by the law; not theind of injury law was intended to protect against)not ordinary negligence, either, bc not unreasonable or unforeseeable risk of harm

6 Martin v. Herzog , in notes, about driving without lights at night, uses contributory negl per se. Cardozo says failureto comply with law to use lights is not evidence of negligence--denitely neg.

Causation (issue of fact) (P's burden to prove by preponderance)a Actual Causation/Cause in Fact/But For Cause


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1 issue of fact, under preponderance of evidence standardCircumstantial evidence is used for the preponderance standard (more than 50% chance). It must facilitatereasonable inferences of causation, not mere speculation.

Skinner v. Square D ; (Mich '94), p. 221 defective switch case - causation element decided on SJ (not by jury)because circumstantial evidence not strong enough, and court thought decedent was probably careless- alligatorclips case with phantom part of switchP must present substantial evidence, from which a jury may conclude that more likely than not, but for D ! sconduct, the P " s injury would not have occurredP must prove causation by showing that there was a greater than 50% chance that P would not have sufferedharm had D not acted negligently. If less than 50%, P loses. If more than 50%, P recovers 100% of damages.

2 3 kinds of answers to why we have cause in fact reqtcare about causation, bc in world of deterrence, we don't just ask blunt question, we need right level of deterrence,coming in right time and right way. so amount of liability matters, even from pure deterrence and regulatory point ofview

economists say this is why causation matters. causation is built into logic of deterrence (like Sindell)causation is what we have (for social and other reasons). might not be that logical, but serves a variety of functionsincluding compensation and deterrence, but it would be crazy to get rid of rule bc it plays signicant oodgates rule,predictability rule, etc.

gives predictability and texturepractical/administrative/instrumental conception of causation

holding people accountable for what they've done, for injuring other people is what tort law is about. only whenpeople prove that the person actually injured them can they sue.

causation lies at the core of responsibility that's at the core of tort law3 Loss of Chance : Some jurisdictions, but not all (about 20)

Falcon v. Memorial Hospital (Mich. '90), p. 231. "loss of chance" doctrine. Patient can recover 37.5% of wrongfuldeath damages for loss of 37.5% chance to survive. MINORITY

patient giving birth suffered from amniotic uid embolism. IV not established, patient died.37.5% survival if IV established beforehand (P's expert): so same thing more probably than not would havehappened even if hospital had acted perfectly

Issue: should case be dismissed b/c probability of survival less than 50%?Holding: P gets 37.5% of damages that she would get for wrongful death suit. Injury not just physical harm,but loss of chance to avoid physical harm Michigan undid this case by statuteassuming that it was a breach not to put her on an IV. Court assumes this from the way it states the questionnot about feeling bad for doctors, about access to health care: if you drive up costs for doctors, it will deprivemore people of health care. the more you soften the liability system

loss of chance doctrine allows a weakness in causation to get past summary judgmentcan't come up to the standard of likelier than not. (policy con)

instead, not recovering for injury of 'dying,' but for for injury of 'losing your lottery ticket.'Reasons to adopt loss of chance (usually favoring P):

easier for Psif heightened chance of survival is very reason that person decided to go to this doctor, and that's what theirnegligence takes away, then more plausible that it's a real loss (policy pro)P had right to rely on doctor for this chanceone of the best arguments, supercially: we want people to be accountable, and accountability can mean twothings

moral conception of accountability (hold someone who has injured you accountable to you)system depends on private law to send the right incentive to physicians, hospitals, etc. if we want that systemto work, we can't rely on only cases that go over fty percent (so on interpretation of tort that its a system tosend a message about level of precaution, it's good)

Reasons to reject loss of chance doctrineproblems in consistency in evidenceproblems in giving to juryproblems with not extending it to other areasslippery slope: how low an amount can you recover for? (insufcient argument of the problem)access to health care (falcone): the easier you are with liability standard, the more expensive it is for people toget medical careone of the major problems: if you add loss of chance doctrine to the system and leave everything else the same,then from deterrence perspective, you have too much liability (because person can recover 40% when 40%chance of injury, and 51% chance of injury, you recover 100%

you could correct for that over-deterrence by applying loss-of-chance doctrine to chances over 50%problem with permissiveness of what gets past summary judgment stageother ways for legal system to nesse this kind of problem

BZ problem with above analysis: not clear whether damages that would be assigned to death have anything to dowith what remedy should be. remedy should be for chance, not for death


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MA: 452 Mass 1 (2008): MA adopts loss of chance (Matsuyama v. Birnbaum)4 Substantial Factor test: If several causes could have caused the harm, then any cause that was a substantial factor

is held to be liable (mostly CA)can't be a tiny cause, must be substantial. used in many jury instructions (without explanation of what substantialmeans).Need to be but-for cause before substantial analysis (Aldridge)2d Restatement deals with two problems:

philosophical cause wasn't a real factor in bringing the thing about. wanted to unk these trivial contributions onproximate causewanted not to be stuck with but-for causation for every single cause-in-fact case

Restatement, p. 254-44;341342: something isn't a substantial factor unless it's a but-for cause, unless meets section 2. section 2protects multiple sufcient causes (Anderson).intention to rule out trivial causes, but loss of chance cases, where Ps don't live up to substantial factor test/ but-for cause, and are systematically disallowed

3rd restatement: always but-for cause unless Anderson two res case or something extremely close to the asbestosscenario (signature injury, overload of exposure, each D trying to get out). you can do loss of chance if you want. [totry to pull us out of the quagmire of substantial factor, which was meant to help but made these areas muddy]Balbos (cited in Aldridge): asbestos litigation in MD, Ps sued all asbestos makers. group was sufcient, but each Dalone not sufcient (could argue that the injury would exist without one D's conduct). Not multiple sufcient causes,because some Ds would not have been independently sufcient, but sufcient as a group (multiple necessary).Modied substantial factor test (as a policy matter)Aldridge v. Goodyear Tire and Rubber (1999), p. 242. Without but-for causation, no substantial factor analysis,

and therefore no jury in suit against Goodyear for chemical exposure in tire plant. P fails to demonstrate sufcientevidence of cause in fact to go to jury.5 Multiple Sufcient Causes - where there are 2 sufcient causes, neither is the but-for cause but each can be

treated as a cause ( Anderson v. Minneapolis St. P & SSM Ry. Co.)6 Joint and Several Liability: If two or more persons concur in contributing to and causing an accident, and but for

such concurrence the accident would not have happened, the injured person may sue the actors jointly or severallyand recover against one or all

Ps can recover all damages (or any chosen amount) from either, up to 100% (usually depends on who is solvent) aslong as just one injury.Simultaneous conduct not necessary (Ravo v. Rogatnic)Right of Contribution: one joint tortfeasor has against the other to recover any more than assigned percentage ofliability that P recovers from that tortfeasor (but high transaction costs, and other tortfeasor might not be solvent)Legal System uses to assign risk that one tortfeasor won't be able to pay to other tortfeasor rather than faultless P

joint and several liability was rule of negligence generally in US until 15 years ago, but many legislatures have

eliminated or diminished (eliminated from certain areas like med mal or products liability)McDonald v. Robinson , p. 239: woman injured by two crashed cars sues both drivers as joint tortfeasors, wins, cantry to recover all of her damages from either (collided cars carry plaintiff many feet and severely and permanentlyinjure her; Ds say can't be jointly liable b.c not acting together)Ravo v. Rogatnick , NY 87, p. 513. obs. and pediatrician jointly liable for retardation of child. simultaneous conductnot necessary to a nding of joint and several liability, 80/20 split.

7 Alternative Causation : each D must DISPROVE that his carelessness caused injury. often comes with joint andseveral liability

key in these and res ipsa is nding some sort of limiting principle, so only use this way of nessing the problem in anarrow range of cases, and only doing it by changing burden of proof, not by changing underlying reqts for tortSummers v. Tice Cal 1948, p. 259. 2 jointly liable negligent quail hunters, and P can't locate the fault but clearly thefault of at least one of them. each D must prove the other was sole cause to escape liability. Policy-driven solutionto evidentiary/unfairness problem

narrow view: tie goes to P in tiny universe of cases where two Ds at exactly 50/50 split of negligence. no rights-

based reason. (if 3 Ds, no liability, b/c for each, much likelier that it was the other two)8 Aiding and Abetting and Concert of Action drag racing cases: even without conspiracy, actions that self-consciously coordinated, actionlike a unit, and seemsfair to let P recover from a member of this unit, as it would if there were a conspiracyyes, you can do it without agreement with self-conscious coordination of partiescourts almost never even send it to trial on this theory

9 Market Share liability : P can recover from D's based on their share of the market since it would be unfair to barplaintiff from recovery where it is impossible for her to prove which manufacturer caused her harm and any of themcould have caused it Still requires cause in fact, but allows shift in burden of proof for situations of impossibility of info.

Sindell v. Abbott Labs , Cal. 1980, p. 929. DES drug to moms of Ps, Ds liable in proportion to their market share attime of injury. shifts burden to Ds to prove that they were not part of the market. important that there was ageneration-long latency period and important that the drugs were generics.


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b Proximate cause: arises after actual cause, and measured by: Directness, Foreseeability, and Scope of Risk. Issue offact. Use all 3 tests.1 Directness : clear line between act and result. (Polemis)

Ryan v. New York Central case from NY, p. 273. Railroad re jumping to second house 'too remote' for proximatecause. "Natural and probable consequence"

uses 'natural and probable' consequence as criteria for probable cause: doesn't on its face make any referenceto human mindhere, the spreading beyond one house was not natural and probable, and so would cause oodgates problemuses natural and probable; makes proximate cause hardertrain negligently caused spark that hit structure on property that caused re that spread to next property, who

sued train coPolemis , p. 274. Shipworkers negligence, which unforeseeably causes destruction of ship by re, is nonethelessguilty. Foreseeability doesn't matter, only directness "Directness test."Palsgraf v. Long Island Railroad Co. (NY 1928), p. 299. Cardozo: No negligence to P in railroad injury (packageexploded and scales at end of platform fell on P) because negligence is relational and the negligence was notdirected to her. Andrews dissent: enough proximate cause to go to jury under directness (Polemis)

at trial, jury verdict for P for $6,000 (appellate division afrmed)P's argument on 4 elements

duty: railroad company has duty to everyone there, ticketed customersbreach: it's a fact q, for jury, and the jury thought there was a breach, and appellate div. thought there wasgood enough evidence offered to jury to uphold nding of breachinjury: creditedcausation: there is denitely cause in fact. we can wonder if there is prox cause, but Cardozo assures us thisis not his problem.

Holding (Cardozo): not negligent relative to P, so no recovery (overturned lower two courts). On basis of duty,(no legally protected right invaded).

just because negligent to someone else doesn' t mean she can recover (idea of correlative negligence)"the risk reasonably to be perceived denes the duty to be obeyed, and risk imports relation," dened bynatural or probable consequenceC takes a lot of shit for taking side of train company and, people say, doesn't even make a good argument

*Dissent (Andrews): No such thing as relational duty; it's a proximate cause issue. She is within proximate causeby his judgment, or at least close enough that he thinks it ought to go to the jury.

at a certain point, a judgment needs to be made about where liability is to be cut off. concedes it's a judgmentcall that has to be made in a negligence case

relative vs. direct cause (no matter if foreseeable, etc.)here, not so unforeseeable, and foreseeability isn't the whole ball game. there are ots of other factors (seebelow)looking at strength of connection between the cause and the injury

negligence dened: act or omission which unreasonably does or may affect rights of others, or whichunreasonably fails to protect oneself from the dangers resulting from such actsdue care is owed generallyPolemis is and should be the law (directness as limit). Close enough to go to a jury.

ways in which this situation is indirect: dropped, blows up, gets tracks, hits scales, hits her. the injury is alsoeventual (starts stammering over time).on the other had, negligently hit someone, dropping, explosion, injury. this is good enough for Polemis,which is the law at this time.

if harm results from carelessness, anyone harmed has cause of actionproximate cause=justice/policy based end point. expediency with considerations ("hints"):

natural and continuous sequence between cause and effectwas one a substsantial factor in producing the otherwas there a direct connection between them, without too many intervening causesis the effect of cause on result not too attenuated?is the cause likely, in the usual judgment of mankind, to produce the result?or by the exercise of prudent foresight could the result have been foreseen?is the result too remote from the cause (time and space)?

evaluating the case's arguments (PD: you can skip this)relational aspect of duty; relational aspect of breach

has to be a certain lineup between breach and duty. not enough that a duty exist and a duty exists.why do we need that/how does C justify its necessity?

boundary built into tort law (that Andrews says is falsied by transferred intent)affront to personality; torts are wrongs to person/personality to Psmust be a wrong to person who is standingpurports to be putting forward argument. premises: (1) negligent conduct in this case was not a wrong tothe P; if it was a wrong at all, it was a wrong to 3rd P. P can't recover just because there was some


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wrong. (2) Person can't recover in a tort claim unless the wrong on which they're suing is a wrong tohimself herself.

is the case about duty (Cardozo) or proximate cause (Andrews)?most casebooks treat as prox cause case, and Andrews treated it as thatCardozo did NOT think it was a prox cause case (p. 303: "the law of causation, remote or proximate, isforeign to the case before it."

if there were a tort, he would be ok with giving recovery. wouldn't be worried about how big/direct. citesPolemiss

C's taking it from jury is said to stem from his desire not to let P win this case. BZ disagrees.transferred intent: good for P. Andrews said it destroys Cardozo's argument.

transferred intent is for a+b. it's an intentional tort.Andrews: relationality is not something we exist upon in tort law

thinks its crazy to require relationship to duty that was breachedthinks best arguments for Andrews comes from Cardozo in MacPherson: duty in negligence law is universal.duty to be careful not to act in ways that unduly risk injury to others is a duty owed to everyonewrong analysis of what duty to act reasonably requires

P can recover even if she was not the one to whom the wrong was done (ie recovery of husbands in loss ofconsortium) (right of subrogation, insurers)

loss of consortium and wrongful death are not common law of torts, they are statutoryright of subrogation is not within tort law per se, you need tort claim and the insurance contract giving youthe right (under equity right).

BZ: two things you could mean by duty being universal.Winterbottom: you need a contract for a range of tort/negl claims1. MacPherson: you don't need a contract. duties to all kinds of people regardless of whether there's acontract. anyone who can prove you breached duty owed to them can recover. (Cardozo). willing toexpand duty, but whatever the duty is, has to be a breach of duty owed to that person.

we have to think about whether it's plausible to think about in this way AND whether it's reasonable tothink about it this way

2. a lot of ppl (incl Ca. S. Ct. in Rowland v. Christian): the whole idea of duty is problematic. if you havecareless action, causal relation, and injury, you're good to go. just general duty to use reasonable care.(Andrews)

two different pictures of duty. also two different pictures of whether you can gure out if the wrong has beendonebefore you gure out the relational duty/who the P is. most broad ranging/signicant distinction: theadministrative one

Andrews takes the simpler side: reasonable person standard, and liable for all things that happenedCardozo: can't gure out from looking at conduct standing alone, always have to make sure we can seewhat has happened to P as breach of duty that D owed to P. once that, don't care how much damage thereis, can recover for all of it.

even if you went with cardozo on prox cause, even if you think its cogent to talk about negl relative to P. evenif you thought black letter law of negl required breach of duty owed to p, would still be a normative q at the endof the dayC, 303, the reasons you get to sue at all is because a legal wrong to you was done.

something fundamental about tort law that is private law, as distinct from crimethis is what blackstone and locke thought about why the state had private law

BZ goes with restatement second on negligent: four elements, have to hang together in particular right way.the standard.

2 **Foreseeability : American courts overwhelmingly use foreseeability. If some injury is foreseeable, P can recover forall resulting injuries. Mostly jury. Wagon Mound.

Posner: social waste that goes along with incentivizing people to gather too much info about possible harms that goalong with their behavior.Wagon Mound 1 , p. 275. Foreseeability is key test for proximate cause (because of intuitive relationship tofairness). Shipworkers who did not foresee any risk from torchwork on dock after oil spill not liable for re.Union Pump Co. v. Allbritton Tex '95 (269). No proximate cause as a matter of law for P who slipped afterchemical re, too remote/unforeseeable as a matter of law

Concurring judge (Cornyn): considerations of proximate cause=foreseeability plus policy considerations. Here,not foreseeable.

accuses majority of twisting language of proximate cause by using language of condition. being a necessarycondition doesn't even make something a cause, much less a proximate cause.most jurisdictions use but-for causation as sufcient for cause in fact, and then the mess comes underproximate cause

says majority messes up this nice analytic distinctionfair accusation, but majority had basis for doing that

even though but-for causation an

torts - ben zipursky - 2009 intentional torts

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