TORTS OUTLINETorts Three Liability Theories1. Negligence: the failure to exercise reasonable care under the circumstances. Negligence is conduct, which fallsbelow the standard established by law for the protection of others against unreasonable risk of harm;2. Strict Liability: liability without fault; and3. Intentional tort: Intending the consequences gives rise to intentional tort. a. Desires to deter, deliberately creating consequences that could hurt other people. Let other peopleknow of the dangers. b. Physical integrity: deter people, punish.

Negligence Prima Facie Case: duty; breach; causation; and damages: It is a reasonably foreseeable risk. The risk is likely, but not always certain. If unforeseeable, may notbe able to recover.a. Subjective standard: What the reasonably prudent person would do.b. Objective standard: Look at group of people and compare individuals to that group. Reasonable care in light of the risk. Causation: Defendant must have caused plaintiff’s injury; Damages: Physical or psychological.

Proof of Negligence1. Real evidence (documentary)2. Direct evidence (eye witnesses)3. Circumstantial evidence (create inference of what happened usually b/c there is an evidentiary problem).

General Rule: All persons are under a duty to conduct themselves in all of their diverse activities so as not to createunreasonable risk of physical harm to others.

In negligence, the actor does not desire the injurious consequences of his conduct; he does not know that they aresubstantially certain to occur, nor believe that they will. There is a merely a risk of such consequences, unlikeintentional torts.

Defenses to Negligence1. Contributory negligence;2. Comparative negligence;3. Multiple parties (fault compared to others);4. Assumption of risk (express or implied).

a. Implied assumption of risk – the conduct must manifest consent, and the risk must be encountered;voluntarily; and with full knowledge and appreciation of the danger (Note: a pedestrian who dashes out intopath of speeding car, fully aware of risk, does not manifest his consent to relieve driver of his obligation toexercise reasonable care for pedestrians safety, nor of his liability for failure to do so. Actor demands thatcare be taken for his safety. He may be contributory negligent, but does not assume the risk).

Contributory NegligenceBehavior on the part of an injured P falling below the standard of ordinary care that contributes to the defendant’snegligence, resulting in P’s injury, which completely bars P’s recovery. Reasons for this: administerability, judicialexpediency, avoids necessary of apportionment. Contributory negligence will lessen or reduce plaintiff’s damages andmay even defeat claim entirely. Contributory negligence is an affirmative defense. The defendant has the burden ofshowing evidence. The old rule was contributory negligence was a complete bar to recovery.

Prima facie case1. D has to show that P created reasonable foreseeable risk to himself;2. P failed to take reasonable care; and3. P failure to take reasonable care was a cause in fact and proximate cause of the injury.

Butterfield v. Forrester p.308 (Plaintiff rides horse negligently through town at dusk). Hits obstruction created bydefendant. Plaintiff doesn't see it, his negligence constitutes contributory negligence and is intervening cause. He can'trecover.

Gyerman v. United States p. 313 (Plaintiff hurt performing dangerous task at work.) Employer alleges cont. neg. bysaying plaintiff negligently did not get himself excused by complaining to boss. Defendant didn't show that it wouldhave made much of a difference if plaintiff had complained; boss may have told plaintiff to keep working. Defendantfailed to show plaintiff's behavior was substantial contributing factor to the injury.

Exceptions to complete bar (even if the P was negligent) 1. D has a mental disability and doesn’t know consequences of actions 2. D was more reckless than P in conduct

3. D had the “Last Clear Chance” to avoid the injury (see page 19 of outline for definition). 4. If P broke a statute b/c it was safer to do so (Tedla v. Ellman).

Defenses 1. Comparative Negligence; 2. Modified Comparative Negligence; 3. Pure Comparative Negligence; 4. Assumption of Risk;

Comparative Negligence A great majority of jurisdictions have adopted some form of comparative negligence in an attempt to abolishthe doctrine for a complete bar to recovery. P is allowed to recover damages, which are reduced by the percentage ofnegligence attributed to P. However, it is often difficult to calculate apportionment, could be pure or modified (jurydecides).(a) Comparative Negligence: P is allowed to recover his or her damages reduced by the percentage ofnegligence attributed to the plaintiff (ex. if recovery is $50,000 and P 20% at fault, recovery is reduced to by 20%, i.e.,$40,000).(b) Pure Comparative Negligence, when P who is 75% at fault, P recovers only 25% damages from D who is 25%at fault. However, this approach leads to a lot of litigation.(c) Modified Comparative Negligence: P who is guilty of contributory negligence, may recover under modifiedapproach, so long as negligence was not as great as D, then P can recover. That is, P must be at 49% at fault or less;If P is 49% at fault, recovers 51% from D. P’s negligence must not be equal to or greater than Ds, or else total bar. Withthis approach, both parties recover (no offset) b/c it is unfair to leave an injured party without “compensation.”i. Arguments against modified: Party more at fault must bear his loss and others. Chaos if multipleparties where P is greater than D1 but less than D2; P who is at fault may recover under last chance rule.(d) Assumption of Risk: It must be shown that P failed to exercise reasonable care, and that such lack of duecare contributed proximately to P’s injury. This requires proof that the P knowingly entered into, or stayed in, a positionof danger. This defense prevails despite the fact that the P’s entering into a position of danger, or staying in a placewhich has become dangerous, was reasonable under the circumstances. This differs from negligence in that it is

subjective and requires knowledge of the danger/risk, and that P reasonably assumes risk, i.e., amusement park rides. Murphy v. Steeplechase Amusement Co. (Injured on Flopper). P was aware of the nature of ride and the risk/consequencesinvolved and thus, assumed the risk. However, if P assumes the risk even if he does not know the risks, but should haveknown, i.e. baseball parks. See Davidoff v. The Mets (P sat behind 1st base dugout and got hit with a foul ball). It iscommon knowledge that foul balls might be hit in that direction. It is not practical to put up a screen all the way around.

Note: To end your discussion of assumption of risk mention that assumption of risk does not preclude recovery andmention that in CA they merged Contributory Negligence with Assumption of Risk into comparative negligence. SeeGonzalez v. Garcia.

Arguments AGAINST assumption of risk-not good for people to give up all rights they otherwise have. One goal of Tortlaw is to prevent accidents, assumption of risk goes against this.

Hammontree v. Jenner (Seizure while driving) An accident caused by a force outside one’s control will not lead toliability if the D had seizures but exercised his due care by taking medicine. However, if the D knew or should haveknown that due care was required and didn’t do anything, then he is liable

Avoidable Consequences Even if the accident was D fault, P’s recovery might be reduced by a failure to exercise due care to mitigate theharm done (in other words, if P took steps to mitigate damages, then P not negligent). Violation of Statute - Negligence Per SePrima Facie case of negligence per se: Violation of safety statute, which exists to protect others (applicable to someone in the position ofdefendant’s class); Statute must have safety purpose (to protect other people); Statute was meant to protect a class of people (injured person must fall within class that was meant toprotect); Injury was the type the statute meant to protect; The violation was the proximate cause of the plaintiff’s injury.

Example: If keys are left in ignition outside school and someone steals the car and hits third person, the owner of car

who left keys in car can be held liable under negligence per se. However, if the car was in a suburban driveway, theCourt might try hard to say that the risk was minimal.

Example: If blood alcohol was substantially above legal limit; not wearing seatbelt.

If you were doing what you were supposed to do, there is no fault and the plaintiff loses. If found negligent, thedefendant pays loss.

Rule: The breach of a statutory duty to a member of the protected class is negligence per se.

Telda v. Ellman pg. 251 P walks on wrong side of road, according to statute, and is hit by speeder. Example of courtinventing an implied exception to a statute to relieve the plaintiff of a charge of contributory negligence per se. Courtrules that common law says that if traffic is heavier in the oncoming lanes, the statute can be violated and one can walkwith the traffic. Today, no such tricks of the law would be necessary because there is comparative negligence.Comparative fault: Some states reduce P’s recovery in strict liability cases by an amount distinguishing those injuriescaused in part by P’s own carelessness. This is where the jury determines who was most at fault and then decidesdamages based on who was more negligent. Even though the peddlers were negligent per se. See page 2 of Outline.

Ross v. Hartman pg 257 Truck driver leaves his keys in truck, truck is stolen and an innocent party is injured

Note: Courts can also find subsidiary victims as well. (If a third party is harmed by a party who violates a statutoryregulation.) Osborne v. McMasters pg. 245 druggist who sells mislabeled poison; Stimpson v. Wellington pg 247 Truckdriver without permit damages underground pipes. Court finds subsidiary purpose in permit statute that was meant toprotect roads in order to establish negligence per se. Sometimes the court finds subsidiary victims, as in a case wherea driver doesn't get car inspected and hits people in a building; statute only mentions protecting pedestrians, but driverliable to injuries for people in building.

Defenses (subsidiary escape clauses): 1. Statute wasn't designed to protect this kind of victim.2. Statute wasn't meant to prevent this kind of injury/damage.

3. Some states write into the statute that it can't be used to establish negligence per se.

Martin v. Herzog p. 250: P’s failure not to have lights on is negligence per se as it violated an existing statute. Cordoza held that this is not evidence (like custom), it is negligence. Rule: unexcused failure to perform a statutoryduty is negligence per se.

Osbourne v. McMasters p. 245 (poison without label): Rule: The breach of a statutory duty to a member of the protectedclass is negligence per se.

Stimpson v. Wellington Service Corp. p. 247 Heavy trucks should not be allowed to drive on the streets in order toprotect the streets from the weight of the trucks. There was a secondary purpose to protect the pipes under the streetsand the adjacent homes. As an attorney, we can look at the general safety purpose and find the subsidiary purpose thatmay be covered.

Ross v. Hartman p. 257 Truck driver leaves his keys in truck, truck is stolen and an innocent party is injured. The Courtheld “that the conduct of defendant or his agent was negligent precisely because it created a risk that a third personwould act improperly.”

Negligence Per Se – Minority ViewViolation of statute is only evidence of negligence. Therefore, it is up to jury to decide, but there are two exceptions: a. You may violate a statute, if it’s safer for you to violate it. Tedla v. Ellman p. 251 The peddlers violated thestatute by walking against traffic, but the driver was driving too fast and swerved hitting them (negligence per se). TheCourt held implied exception: When the traffic is going with you is heavy, then you should walk facing them so that youcan see the oncoming cars. This was not in the statute. The court reached to get this decision so that they would nothurt the innocent party injured.

b. Statutory purpose does not cover the harm that occurred. De Haen v. Rockwood Sprinkler (Man killed byfalling radiator in a elevator shaft); P says violated statute for placing bars around the shaft, but the Court said thatstatute intended to protect people from falling down it, not radiators.

Foreseeability - Social policy: promote entrepreneurship v. preventing unintentional victims

Stone v. Bolton (woman hit on head by cricket ball): Risk must be reasonably foreseeable, not just conceivable. If therisk wasn't reasonably foreseeable, then the p must bear the risk, and the case ends. If the risk is reasonably foreseeable,then we must ask if reasonable care was taken. Court holds that the risk that Stone would be hit was so slight that itwasn't reasonably foreseeable and that the park was not negligent in failing to protect against such a risk.

Hammontree v. Jenner (Epileptic has seizure while driving and drives car into store and injures Jenner and damagesshop.) Last seizure was 20 years before, so risk was not reasonably foreseeable.

Scott v. Shepherd: (Squib case) (1773) Argued on basis of "trespass" v. "trespass on the case," but today could beargued as negligence, intentional tort, or strict liability, but most likely would be argued as a negligence case.

Reasonable CareRPP standard of care (Reasonably Prudent Person) In general, we hold people to a general RPP standard, which is anobjective standard. Under RPP, we look at a group of regular people and ask what they would normally do under similarcircumstances. We never use subjective standards (where the reasonableness of a person's behavior is judged in termsof what is reasonable for him in light of his ability) because of administerability, consistency, and predictability issues.(TJ Hooper).

Blythe v. Birmingham: Water pipes burst during rare severe winter. Defendant town was not found negligent becausereasonable care was taken. To prove negligence, there has to be unreasonable care. We don't eliminate risks, evenif they are foreseeable, as it would be prohibitively expensive for many.

Eckert v. Long Island RR: Good Samaritan case where plaintiff gets hit by train trying to rescue boy he thinks is indanger. Great risks can be reasonable if benefits warrant the risk.

Cooley v. Public Service Co: Plaintiff is injured while talking on the phone when a severe storm downs one of PS'slines. It is OK to leave a risk to an activity to avoid a greater risk.

United States v. Carroll Towing Co: Barge attendant abandons barge for 21 hours. In the interim, barge broke looseand struck and sunk plaintiff's barge. First time reasonable care formula is expressed in algebraic terms, i.e.,"expected loss formula." Person will be found liable if the cost of prevention was less than the cost of the accident,where the cost of the accident is calculated by multiplying the "probability of loss" by the "severity of loss." B<P x L. Or vice versa. This is also a contributory negligence case.(Hand formula - B<PxL) Burden < Probability x Loss / severity. If this is the case, then there is negligence.Burden > Probability x Loss Then there is no negligence.

(If cost of avoiding accident is less than probability of an accident occurring, multiplied by magnitude of loss, Dshould take precautions to avoid accident B<PL; If cost of avoiding accident is more than probability of accidentoccurring multiplied by cost of accident, D should not pay cost of taking precautions to avoid that accident B>PL).

Rule: the risk of injury is so low and the cost of an alternative method is high, D conduct is considered reasonable.

Andrews v. United Airlines: Plaintiff injured when luggage fell from overhead bin. Common carriers (warehouses,airlines, etc., bailees of things and people) are held to a higher standard of care. Almost as high as strict liability,except plaintiff has to point out something that wasn't done or could have been done.

Brown v. Kendall: Parties attempt to separate two fighting dogs with a stick and accidentally hits someone. Caseillustrates principle that people have just as much responsibility to exercise care for themselves. This case marks thetransition from directness (historical trespass approach/strict liability) to modern negligence approach.

RPBP--Reasonably Prudent Blind PersonCourt creates separate standard for blind and handicapped people for many of the same reasons as they do for children,fairness, administerability, deterrence, etc.

Lyons v. Midnight Sun Transportation Services: Truck driver swerves to avoid accident but instead exacerbatessituation. Court relieves him of liability under Sudden Emergency Doctrine, which says that people will only be expected

to act as others would in similar emergencies. RPP standard has made this doctrine redundant.

Reasonable Care by ExpertsQuintal v. Laurel Grove Hospital: Kid is a vegetable after going into hospital for eye operation. Heart and breathingstopped. Majority makes mistake of finding general negligence. Traynor concurring opinion and Latin say that a specificbehavior has to be found negligent, for example, failure to have an emergency plan. Case also shows the need for experttestimony to judge another expert's behavior.

Lucy Webb Hayes National Training School v. Perotti Plaintiff jumps through glass window of mental hospital and dies. Court rules that hospital failed to meet their own standards. If no standard, you need expert testimony to see what thestandard is. Custom A defense that professionals can use to shield themselves from charges of negligence. Used to illustrate reasonable carefor professionals in their industries, such as doctors. "Reasonable care" means what is widely used in that industry, notwhat is good. If the custom is common knowledge or widely used, expert testimony is not allowed. Custom was bindingin all industries in the past. If there are no customs, then experts will argue as to what should have been done (experttestimony). A custom is only evidence of a practice, it is not conclusive.

1. Shield - by defendants (binding) and 2. Sword - by plaintiff (admissible but not binding)

Treatment of Custom: Inadmissible: Cannot bring in what people in industry normally do. Admissible but not binding: Custom not good enough, must bring in expert testimony as well. Binding: Need expert witness, if no industry standard.

Titus v. Bradshaw (Shield case) p.201 (Big train on small tracks).

Mayhew v. Sullivan Mining Co. p. 204 (Unmarked hole in dark mining shaft) The Court ruled if the risk is created byindustry and wholly understood by laypeople, then custom cannot be used as a shield against liability.

TJ Hooper (no radio transmitter on the boat) p. 205. Not a custom case. L. Hands obiter dictum changed rule of customis binding to custom is admissible. Note: Custom is still binding in medical malpractice. Note: Statutes and regulations help to establish or define reasonable care. Example: State speed limit.

Minors (Reasonably Prudent Child)Children and incompetents are responsible for their torts. Where the plaintiff or defendant is a minor, the test is, whatis reasonable conduct for a child of the actor’s age, intelligence, and experience. In many states, children below sevenare legally incapable of negligence. This is a separate standard, which is devised in order to discourage children fromtaking risks. On fairness grounds, we, as a society, tend to be more favorable toward children than dumb people. Predictability and consistency are also important to the court. Exception to Rule: If a child is engaging in an adult activity(flying an airplane or driving car), the actor will be held to adult standard.

Note: Parents are responsible for their own negligent behavior (negligent supervision of child), but are not responsiblefor the child's. You can sue the child if he was negligent under RPC standard.

Strict Liability (no fault liability)Acts that are sufficiently unusual risks that the law requires them to be carried on at the actor’s peril. Certain activities,for reasons of social policy, may be conducted only if the person conducting them is willing to insure others against theharm which results from the risks they create. Strict Liability relieves the Plaintiff of proving negligence, however,plaintiff must still show causation. Strict Liability also allows for compensation for damaged property. Examples: blasting,storing dangerous substances, keeping dangerous animals. Fault is conditional only when actual harm results.

See Restatement, 2nd § 520 Strict LiabilitySix requirements to determine abnormally dangerous activity:1. The activity involves a high degree of risk of some harm to the person, land, or chattel of other people; 2. The gravity of harm, which may result is great; 3. The risk cannot be eliminated by exercise of reasonable care; 4. Activity is not a matter of common usage; 5. The activity is inappropriate to the place where it is carried on; and 6. The value of activity to community.

Defenses to Strict Liability: 1. Assumption of risk by P; 2. Contributory Negligence only when P knowingly and unreasonably subjects himself to risk; 3. An act of God-or natural act that caused injury; and 4. Latent defects in soil.

Abnormal Dangerous Activities (Ultrahazardous Activities):

A. Land Use Cases: SL applies to ultrahazardous activities that are abnormal to the area, and involve a risk topersons; where the risk cannot be eliminated with the use of utmost care.

Fletcher v. Rylands (P’s property is damaged when D’s reservoir broke and flooded land). Defendant’s reservoircollapsed due to soil defect. Although D was not negligent, he is still liable.

Rule: You are liable if you use your property in a non-natural way, which causes something to escape resulting indamage to another’s property.

B. Blasting Cases: (explosives & dangerous activity on property): Sullivan v. Dunham (dynamite used to uproot a tree, and part of it hit a person on highway).

Rule: Use of property is an absolute right, but qualified to a higher right of the safety of persons; so if in the use of one’sproperty one hurts another, then there is strict liability.

Intentional Torts (Battery/Offense Battery; Assault; False Imprisonment; Intentional Infliction of Emotional Distress;Transferred Intent; Conversion; Trespass (Strict liability). Separate liability theory. Must intentionally cause injury oractual harm and be an unlawful act (unpermitted).

Standard: No intent to do harm, but intend the consequences (some degree of foreseeabilty) not just act withoutconsent. Must intend the natural and probable consequences of act.

A. Prima Facie Case: Act (conduct, in the context of his surroundings, and what actor presumably knew andperceived, is evidence from which his intent may be inferred); Intent to commit act (desire to cause certain immediate consequences) Ex. point loaded gunat someone;

Injury (the resulting harm is intended or substantially certain to occur). Causation.

Note: To establish a prima facie case, plaintiff need only prove that defendant intentionally invaded a protectedinterest. The burden then shifts to defendant to show justification or excuse. Actual damages need not be proved. Insum, the defendant’s conduct, the invasion of a legally protected interest, and requisite intent.

Vincent v. Lake Erie Transportation Company (deliberately saves his property at he expense of dock owner and isresponsible for damages inflicted to dock owner’s property).

Ploof v. Putnum (Necessity to save life or property justifies trespass). One may sacrifice personal property of anotherto save life. Privilege to trespass does not negate liability for injury to plaintiff’s property.

1. BATTERY: A remedy for an intentional and unpermitted physical contact with plaintiff’s person bydefendant or by an agency defendant has set in motion. Actionable claims are those that cause physical harm (cut,bruise, burn, etc.). Examples: Intentional touch; Act (touch); no consent; damages.

Mohr v. Williams (p12) Doctor operated without obtaining consent. No harm needs to be intended, just the actualact of touching without consent can be found to be a battery. Rule: If the defendant’s actions exceed the consent givenand he does a substantially different act than the on authorized, he is liable.

Vosburg v. Putney (p.4) Kid kicked in shin. Rule: An action to recover damages for an alleged assault & battery, thevictim must only show either that the alleged wrongdoer had an unlawful intention to produce harm or that he committedan unlawful act, which injured the victim. Plaintiff must prove: (a) wrongdoer had unlawful intention to produce harm,or (b) the person committed an unlawful act.

Rule: You do not have to intend the damage ultimately caused, however, you are still liable. Defendant takes his plaintiffas he finds him and will be liable for all the physical consequences of his tort upon that plaintiff, however unforeseeablethey are, or how sensitive that particular plaintiff may be (“thin-skulled” or “eggshell” rule).

OFFENSIVE BATTERY: Offensive battery does not cause physical harm, but are hostile, such as pokingsomeone with a finger in anger, angrily knocking off someone’s hat, spitting in one’s face, cutting someone’s hair, evenan unwanted kiss. These result from actions without plaintiff’s consent, which result in harm to plaintiff’s dignity.Examples: Invasion of person, protection of integrity; intent to commit act; no consent by plaintiff. Alcorn v. Mitchellp. 65 (Plaintiff spit at defendant) Any reasonable person would have been offended. Rule: Punitive damages may beassessed for highly offensive conduct, to provide an alternative redress to physical retribution.

ASSAULT: An act which arouses in plaintiff a reasonable apprehension of an imminent battery. The actionprotects one’s right to his bodily integrity, in this case against psychic harm, and deters conduct which often leads todisturbances of the peace. Apprehension is required. The tort is committed when plaintiff perceives the threat, eventhough he is too courageous to be frightened or intimidated. Elements: Apprehension of imminent harm or touching; noconsent; intent; causation; damages. Examples: lifting a fist or cane in a threatening manner; punch and miss; gun in face. Note: words alone are not enough, must be coupled with act.

A. Consent violenti non fit injuria: One who consents cannot receive an injury. Consent can beexpress or implied. Consent to an illegal abortion may bar a claim of malpractice against doctor for negligence. B. Self-defense: Force used as a defense against force threatened must be reasonable. Also if oneuses force beyond what is threatened may become the assaulter/batterer and thus liable. C. Protection of property: Reasonable force may be used to thwart theft. Note: Spring Guns are never allowed as a defense D. Insanity: Insanity is never a defense b/c it is better to protect/preserve right of the victims torecover. E. Public Necessity: Protection of the general public is better than to have one person suffer. SeeVincent v. Lake Erie Transportation Co. (Boat was moored down to dock during a storm, but the storm threw boat ontodock and damaged it). F. Discipline: Parents have privilege to discipline their children by force or confinement to the extentthat they reasonably believe necessary.

RULE: the public safety was threatened and dock owner acted properly in light of circumstances.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: Defendant’s conduct was intentional andsufficiently extreme and outrageous to be likely to produce a strong emotional response in a normal person. There is asufficient assurance that the alleged harm is real together with a strong public interest in deterring such conduct.Plaintiff’s emotional response must be severe. If emotional anguish is great, Courts will allow the action regardless ofwhether there is a physical manifestation of the mental suffering or bodily harm. (See Restatement, 2nd, § 46 – conductmust be intolerable, and not merely insulting, profane, abusive, annoying or even threatening. It must go beyond allreasonable bounds of decency, unless defendant is aware of plaintiff’s supersensativities. Mere verbal abuse, name-calling, rudeness, and threats are generally not actionable).

Elements: Intent; no consent; experience emotional distress; behavior must be “shocking and outrageous” to the socialconscience or general public. Examples: Person calls parent and says that the child is seriously injured when the childis fine. 5. TRANSFERRED INTENT (BATTERY): When attempting to cause harm to one person, you inadvertentlycause harm to a third person. Actor will be held liable. Example: A throw rock at B and C is injured. A is still liable.Examples: Touching; Intent to touch; No consent. Talmage v. Smith p. 9 Defendant intended to hit one trespasser witha stick and hit plaintiff in his eye. Court held that even thought defendant intended to hit trespasser, it does not matter. Plaintiff intended to inflict harm.

6. CONVERSION: Intentional conduct which deprives another of his property permanently or for an indefinitetime or the intentional exercise of dominion or control over a chattel which is inconsistent with another’s property in it.In trespass to chattels and conversion, the traditional common law rule has been that the action must be brought by theperson who had actual possession of the property at the time of the tort, or at least by the person entitled to immediatepossession. Even if you take property that you think it’s yours, but it belongs to someone else, you are still (strictly)liable. Note: No intent necessary to prove prima facie case. Examples: Take property; Intend to do act; no consent Kirby

v. Foster p. 46 Boss gave employer money. The employee deducts what the boss owes him although the boss did notask him to deduct what he owed him from the money, he took it upon himself to take his share. Court held that this is stillconversion.

7. TRESPASS: Unauthorized and direct breach of the boundaries of another’s land was an actionable trespass. All that is necessary is that the act resulting in the trespass be volitional, and that the resulting trespass be direct andimmediate. No actual damage need to be shown. Elements: Intent to enter land or property (reason does not matter);on property; no consent.

Note: If a person was pushed onto someone else’s property, the pusher would be strictly liable for the trespass sincethe person pushed did not intend to go on land. However, the person who pushed him, intended to push that personon the land. One could be found liable for trespass if something on his land encroaches upon someone else’s land, i.e.,water (pipe breaks). Additionally, a trespass who builds a fire, digs a hole, or merely leaves a door or gate ajar may beliable for resulting physical harm.

Fletcher v. Rylands (1868) Man-made reservoir’s water escapes through unknown underground mineshafts and floodsneighbor's adjoining mine. Although Rylands was not negligent the court found that he was still liable, if harm is causedthen strict liability is enforced

Rule: A person using his land for a dangerous, nonnatural use, is strictly liable for damage to another’s propertyresulting from such nonnatural use. Many American courts later rejected this. During the 1900’s the government wantedto encourage people to expand their land

McCarthy v. Pheasant Run (lady almost raped, argues that signs needed to warn people to lock door)If preventive measures could be put in at a reasonable cost with regard to probability and loss, then D will be held liable. However, in the case at hand, D never put up evidence showing the cost of preventive measures. P must bring up theBPL and give specific numbers. A critique of BPL is that it cannot gauge probability and severity of injury

Defenses to Intentional Torts:

1) General: If the defendant can eliminate one element of prima facie case, plaintiff will lose. 2) Affirmative Defenses: (Defendant says “yes, I did, but…” Self-defense; Consent; Defense of third party; Defense of Property; Discipline Public Necessity (where public necessity is established, there is no recovery for private propertydestroyed); Private Necessity (A privilege is created to trespass to avoid serious harm, coupled with anobligation to pay for damages). See Restatement (2d) § 197.

I de v. D (assault upon woman-Hatchet case) p. 61 Man banged on door of tavern, swung hatchet but did not hit thewoman. Actual touching is not necessary in order to prove assault.

Hudson v. Craft (boxing prize fight) p. 22 P injured in unlicensed boxing match and sued concessionaire.

Medical Malpractice Only in the medical practice is custom still binding (shield).

Professional Negligence: is the failure to exercise that degree of care and skill which is exercised by reasonably well-qualified professions in that field. Negligence conducted by persons practicing a particular profession(dentist/lawyer/health care provider/accountant/engineer/architect, etc).

Reasonable Care: Doctors are held to standard of widely-used practices within a school of medical treatment. Theplaintiff needs to show that the doctor did not perform the proper procedure within their school of medical practice. Since custom is binding, the plaintiff would have to find expert testimony from a doctor that uses that school of medicine. The judge determines what practice is actually a school of medicine, and if it is an accepted practice.

The standard of care is established by what the reasonable well-qualified professional ordinarily and customarily doesin fact. The profession itself sets the standard by its own custom and practice through “schools of medicine.”Historically, the standard of care is limited by the “locality rule.” Now, it is measured through expert testimony.

Lama v. Borras (Sword case) p. 211 (Back surgery): The plaintiff would need to show that the doctor did not use theproper procedure within their own school of medical practice. Since custom is binding the plaintiff would have to findexpert testimony from a doctor that uses that school of medicine. The judge determines what practices are actually aschool of medicine, if it is an accepted practice.

Helling v. Carey p. 223. The Court balanced the cost of doing the glaucoma test vs. the cost of going blind. The testwas so cheap that the court decided that it the doctor was negligent in not performing it (unreasonable care).

Policy Arguments Supporting Binding: We would like doctors to maintain some level of custom, but in order to promote innovation, we hold itonly as admissible. (Since doctors have the better information, they are limited from going beneath thestandard, but can go above). Give doctors consistency and predictable exposure in volatile areas of practice; It is difficult to determine whether adverse conditions are due to external forces or doctor’s incompetence; To limit jury from finding for P due to sympathy; We want doctors to take risks; don’t want them to practice defensive medicine; and To avoid war with experts.

Policy Arguments Against Binding: 1. Discourages doctors from adopting leading edge technology; 2. Stifles risk taking and prevents doctors from developing new practices; 3. The focus is on custom rather than “best reasonable care.” 4. We want doctors to pick a standard and want them to do better. 5. Courts have a hard time trying to decide whether it is custom or “moving target.”

Note: Courts do not want to put the weight on whether a procedure is a custom. It should be determined based on whatis the best medical or reasonable care. Treatment is changing so rapidly, courts must now determine when somethinghas become a custom or is no longer a custom.

Medical Disclosure Debate is between autonomy of patients vs. just "enough information for the ordinary patient" to understand the risks.

Pro "Autonony" The patient, and not the doctor, should have the final say in what medical risks they are exposed to.

Policy arguments: Doctors are not experts on what to disclose; once juries know what the risks are, they whether or notit's material.

Pro "RPP": The doctor has to provide enough information for the ordinary patient. The measure of adequacy is thatthe doctor gave reasonable disclosure so that the average person could understand the warning. Plaintiff would haveto show that average person would have changed his behavior if a certain piece of info had been disclosed.

Canterbury v. Spence p. 226 People should have a right to determine what risks they are willing to take so that they cancontrol their own bodies. Doctors should have informed consent. 1. Professional Rule: Doctor has duty to disclose to patient all material risks involved with medical procedurebased on professional judgment.2. Patient Rule: Patient has right to exercise control over their body in making an informed decision concerninga medical procedure.

Four things patient must show for lack of informed consent: a. Material risk of procedure was unknown to him (objective); b. doctor failed to disclose risk c. Disclosure would have led reasonable person to reject procedure and choose an alternative; d. Show that an injury resulted.

Doctor’s defenses against patient rule:a. Disclosure may be detrimental to physical or psychological well being of patient b. Patient incapable of giving consent c. Emergency made it impossible to get consent d. Risk is so obvious, that is unnecessary to inform e. Procedure is routine and simple, the danger is remote f. Doctor was unaware of the risk

Medical Malpractice cases and Res Ipsa Liquitor “RIL” (three requirements):1. Standard of care of the doctor is set by 2. Medical custom of minimum standard of skill and knowledge commonly possessed by members of thatcommunity; a. Local standard (this is favored), but b. National standard is adopted when it is the same as local standard today there is a movement

towards national standard b/c of AMA guidelines, standardized education, etc. 3. Plaintiff will put on EXPERT WITNESSES to establish the Medical Custom, which is used to bridge gaps injury’s knowledge See Connors v. Univ. Assoc. Two requirements: See Jones v. O Young a. Witness must be licensed member of that “school of medicine” (this is tricky as an oncologist cantestify in a ob/gyn case if familiar with the procedure); b. Familiar with the procedure, methods, and treatments ordinarily used by other physicians in Dcommunity or similar community. Ybarra v. Spangard (Plaintiff’s shoulder injured after an operation for appendicitis,led to paralysis).

THINGS TO ALWAYS MENTION with RIL and Medical Malpractice cases: RIL used to overcome the wall of silence, where doctors won’t testify against one another (anevidentiary problem) Ybarra; Plaintiff will shotgun all possible defendants in medical malpractice b/c he doesn’t know whospecifically was in charge or in exclusive control (Ybarra); Some doctors are Experts for Hire (Henning v. Thomas).

Way to attack custom defense: there are not enough people following that "school" to make it valid. Judge decides this.

Locality Rule--compare practices in that locality with like or similar localities.

Brune v. Belinkoff p. 221 Small town doctor held to locality rule standard, but appeals court overrules and appliesnational standard: any board certified doctor from anywhere can testify. Court can consider the equipment andexperience of the local doctors, if they couldn't get the patient to a better hospital.

Respondeat SuperiorSurgeon is responsible for servants/assistants under him who had care and custody of the patientYbarra expands the traditional guidelines of RIL b/c the element of exclusive control is not certain

An employer is responsible for the negligent and intentional acts of their employees, as long as the action grows outof the work he was involved in, even if employer did nothing wrong himself. Reason being is that employers usuallyhave insurance and deep pockets, whereas employee is usually broke.

Dram Shop Statute – Specific to liquor casesStatutes that intend to prevent inebriation in order to protect society and person. The bar owner is held strictly liablesince we cannot determine whether or not they were reasonable. Deliberate policy choice that puts the burden on thepeople selling alcohol. Only defense is that you didn’t sell alcohol at all or that the drinks you sold to that person didnot put them over the limit. Many states have extended this to caterers and hosts of private parties.

Note: If go into 10 bars, you would sue the LAST bar (easier to prove he was over the limit by the last one). Also,testimony of witness who might say he was weaving after the third bar. Not impossible to get back further than thelast.

Veseley v. Sagar p. 261 Plaintiff injured when a drunk driver crashes. P sues bar owner and bartender.

Causation (Whoever causes lost has to bear lost unless legally valid reason for shifting the lost). 1. “But For” Causation: Necessary but not sufficient to cause the injury by itself. P must show that theinjuries were the actual, factual, and resulted from the D’s uninterrupted actions. The injury would not have happened“but for” D’s negligence. Note: Do not use “but for” when there are concurrent causes (two independent forces occur). That is when there are two acts and each standing alone would have produced the injury, instead use substantial factor.

(a) Exception: When the defendant’s conduct cannot be considered the cause of the plaintiff’s harmif such harm would have occurred even had the defendant not so acted. See Dillon v. Twin States Gas & Electric (fallfrom bridge and subsequent electrocution). The Court held that the trial judge correctly refused to direct verdict for thedefendant. If the defendant’s negligence caused the decedent’s death by electrocution. What might have happenedwhen the decedent struck the surface was relevant on the issue of damages, but not on the issue of liability.

2. Substantial Contributing Factor: (Cause-in-fact) The defendant’s conduct is a cause of the event if it wasa material element and substantial factor in bringing about the event. This rule is used in cases where the “but for” test

would allow defendant to escape liability because other causes contributed to the accident. See Summers v. Tice – onlyone actually caused the harm, but you do not know who. Burden shifts for then to prove they didn’t injury P.

3. Proximate Cause: Deals with how much responsibility for damages a tortuous defendant should be liablefor. It is the natural sequence of events without which an injury would not have been sustained. Must show substantialcontributing cause. There are two tests to determine proximate cause: See Butterfield v. Forrester.

(1) Foreseeability: A defendant can only be responsible for damages foreseeable. One must foreseesequence or magnitude of harm. Every jurisdiction uses a forseeability test to see if whether the acts weresuperceding/intervening cause. Must come between defendant’s act and plaintiff’s injury. When it is not foreseeable,it is a superceding/intervening cause (direct analysis) and no liability. Courts talk about proportionality and defendant’sculpability and liability. This reduces likelihood of disproportionate. Leaves people seriously injured with no recourseand no compensation when their injuries were not foreseeable to defendant; and (2) Directness/Remoteness Test: Defendant was wrongful, they should be liable for direct/actualconsequences. This test could be disproportional. Compensates those actually harmed. Must identify some boundarywhere directness turns into remoteness.

Standard for finding foreseeability in proximate cause:1) Sequence of events must have been foreseeable (most restrictive)2) The actual consequences must have been foreseeable (Cardozo and Palsgraff)3) The consequences of the same type and comparable magnitude must have been foreseeable4) Consequences of a different type and comparable magnitude must have been foreseeable 5) Consequences of a different type different magnitude, must have been foreseeable6) Any harmful consequences to anyone must have been foreseeable (least restrictive) also (close to Kinsman).

Note: New York favors forseeability of potential harm of victim due to Palsgraf case, decided by Cardoza. California favors directness test.

Ryan v. NY Central RR p. 480 Spark from Central's engines set fire to a woodshed, which burns down Ryan's house.

Court says too remote (spatial, temporal circumstances make events too remote from one another). The court usedforeseeability to help show the remoteness.

Berry v. Sugar Notch Borough p. 484 Tree falls on speeding car. Driver sues city. City tries to establish contributorynegligence. Court finds that the speeding was a substantial contributing factor, as speeding did play a role, as the carwouldn't have been there. But, it wasn't proximate cause, as there is no relationship between the speeding and theaccident that occurred. He can only be held liable if his speeding increased the risk of his being injured. Plaintiff winsin a directness jurisdiction. Even if the speed was no the sole efficient cause of the accident, it at least contributed to itsseverity and materially increased the damage. Burden on P to show proximate cause of injuries by presenting director circumstantial evidence that it is more probable than not that injury occurred by the negligence of D.

In Re Polemis p. 497 Defendant drops plank in the hold of a ship and causes explosion that destroys ship and cargo. Defendant created foreseeable risk and didn't take steps to avoid it. Defendant found liable for damage to ship and cargobut not to delays in cargo's arrival in directness jurisdiction.

Palsgraff v. Long Island RR p. 501 Women on platform gets hit in head from an explosion a distance away. Defendantemployee of railroad knocks package out of hand of person he is trying to help onto a moving train. Package explodes,causing scale to hit plaintiff on head.Cardozo (relational theory)--a narrow foreseeability argument Defendant must create a foreseeable risk to the plaintiff. Defendant must take reasonable care to protect the plaintiff or the plaintiff's class. 1. Cardozo (majority view): no liability for actions outside of foreseeability, there is zone of danger. Thus noduty, no negligence - foreseeability2. Andrews (dissent) Used directness argument: There is a duty to the public at large for any and all injuriesresulting, foreseeability is not needed - no zone of danger. Defendant responsible for injury to anyone caused byforeseeable risk created by him. Factors to decide if it's proximate or remote: closeness in time and space, foreseeability,intervening factors, badness/severity of risk created vs. injury caused, ability of more remote victims to absorb thelosses.

Judge Andrews: Factors in drawing boundaries between directness and remoteness: Closeness in time Closeness in space Factors outside of defendants control (i.e. weather) Badness of the risk(No one factor is the decisive factor).

Petition of Kinsman Transit Co. p 525 defendant's boat negligently gets stuck under bridge and blocks traffic on theriver and floods everything upstream. Judge friendly says that any harmful consequence to anyone should have beenforeseeable.

Pittsburgh Reduction Co. v. Horton Kid finds blasting caps in lot. Trades them with other kid. Second kid injured. Directness court holds no liability by construction company because there were too many intervening factors, i.e., tradeand parents' opportunity to confiscate them. Time alone, however, was not enough of an intervening factor.

Intervening or Superceding CauseUsed to determine whether there is a subsequent act that is the real proximate cause of the damage (has to be a humanact and foreseeability is key). If the intervening cause was reasonable foreseeable to the defendant, claim of liabilitywould not be cut off (no intervening cause), and the defendant would still be liable. If the intervening cause was notforeseeable, usually defendant is off the hook, but sometimes, in tough cases, we have to look at other factors such asfairness and badness.

Oil truck driver spills oil. Negligent smoker ignites fire. Truck driver could have foreseen, so still liable. Same scenario,but smoker intentionally ignites fire. Smoker is intervening/proximate cause because a) not foreseeable to driver and b)badness of smoker's act won't let court let him get away.

Union Pump v. Albritton p. 527 plaintiff trips on pipe after putting out fire. She takes shortcut on way back from fire. Court says the risk created by the defendant had receded, and the fire wasn't threatening, and the plaintiff did not haveto walk on the pipe.

Wagon Mound #1 p.517 Negligent oil spill into water. Welder consults engineer, who tells him that no fire possible.

Spark ignites fire. Court finds welders not intervening cause because they did not know water could catch on fire. Courtrejects directness principles of Polemis and switches to foreseeability standard.

Wagon Mound #2 p.523 Same scenario, years later, so engineer should have known that water can catch on fire. Welders found to be intervening cause.

Contrary-to-Fact SpeculationWhen defendant does something tortuous, it must be the cause of the harm, by the preponderance of evidence. What did the plaintiff have after the defendant's tortuous behavior? What would the plaintiff have had if the defendant had behaved in a non-tortuous way? Show that tortuous behavior was substantial contributing cause (cause in fact) of the injury.

Facts necessary to establish Contrary-To-Fact Speculation: Time frame; Try to reduce uncertainty

Note: Only impose liability when neglect caused harm, not just because defendant behavior was culpable. Must haveboth causation and culpability.

NY Central RR v. Grimstad p 435 Man falls overboard and wife claims he could have been saved if there were lifesavingequipment. Plaintiff lost because lawyer did not reduce uncertainties (plaintiff couldn't swim, fitness/experience of wife,position of wife, type of equipment that would have required). Standard is "more likely than not" or "preponderance ofthe evidence."

Kirinich v. Standard Dredging Co p. 436 Man dies after he falls overboard, despite fact that others on board landeda one-inch rope within two feet of him. The rope sank. Negligence was due to breaking of the statutory rule that theymust provide life preservers on the barge. Case analysis: Need to establish evidence of the time sequence, the prospectthat he could be saved, how long does it take to unhook the life preserver? This makes it clear that the plaintiff’sattorney must prove one based on time. There were too many uncertainties.

Rule: Must prove that it is more likely than not to have been the cause of the accident or injury.

Note: Plaintiff won this case as the lawyer specified what kind of rope could have been used to change the outcome andreduced uncertainties. The plaintiff’s attorney eliminated a lot of the uncertainty, thereby allowing the jury to see thathe would have had a reasonable chance had the defendant provided an adequate rope to be thrown to the plaintiff. Onthe other hand, the defendant tries to increase the amount of uncertainty in order to weaken the plaintiff’s argumentsregarding causation. Detail by detail to narrow down the uncertainty, so that at the end you are left with as littleuncertainty as possible.

Note: Standard –Plaintiffs’ attorney must prove that it is more likely then not to have been the cause of the accidentor injury.

Expert Testimony/Scientific EvidenceFry Doctrine: (p 450) (old doctrine) For scientific evidence (epidemiology, animal studies, and cell studies) to beadmissible, there must be a general acceptance in that specific scientific field (or methodology). It is hard to use doctrinesince there are so many theories and none may be widely accepted. Fry test deals with toxic torts. The Supreme Courtwas ruling cases using the Federal Code of Evidence. Used to decide what kind of scientific evidence is allowed to bepresented. Scientific evidence must not only be relevant but reliable as well. However, no longer used.

Epidemiology– human exposure/ human illness vs animal studies. Animal Studies Cell studies

Daubert Doctrine: (p 446) (newer) Judge looks at the evidence and decides whether to allow it in based on hisdetermination of the evidence's reliability. Allows more expert testimony to make it in--doesn't have to be generallyaccepted. The judge should be the “gate-keeper” based on his impression of whether or not the evidence is reliable andbased on expert testimony and whether it has developed as a matter of science or in the context of litigation. This givesjudges the right and responsibility to give sweeping opinion on the adequateness of scientific evidence Jury then mustdecide how much weight to give that evidence. This is done on a case by case basis. Mini trials are held on theReliability/Relevance of the evidence.

Expert TestimonyExpert testimony needed when the topic is one in which lay people would not understand. Rarely ever inadmissible andthe testimony binds the jury. When two conflicting experts jury left to decide which to accept but the jury has to acceptone or the other. Jury can’t combine or through them both out.

Note: Each behavior in question must be looked at separately. Look at the actions that were taken and separate themfrom the facts. (See Quintal)

Quintal v. Laurel Grove Hospital (Boy with fever)3 issues of behavior that should be analyzed in order to determine negligence1) Decision to operate Apprehension Temperature Pre-op medication Elective surgery2) Conduct of operation Should ophthalmologist do thoracic surgery Tried for one minute to do external They went to find a thoracic surgeon3) Failure to have an emergency plan Doctors stood in the operating room deciding on what to do

Burden Shifting: When there is uncertainty as to who may be liable for plaintiff’s injuries, the burden shifts to thedefendant to prove he/they were not the proximate cause. The court tries to help a plaintiff by shifting the burden ofremoving uncertainties to the defendant. When the act itself causes the uncertainty and the other party has nothingto do with creating the uncertainty, we should tend to find causation. Defendant has to do the contrary-to-factspeculation.

Summers v. Tice: p. 398 Two hunters shoot in direction of what they believe is a wild animal, and injured plaintiff. Onlyone shot hits plaintiff. Plaintiff met all three elements of joint and several liability, so he doesn't have to show individualcausation. (Where two events cause harm and only one would be sufficient in causing injury, argue Joint and SeveralLiability since there are multiple D’s and there will always be a rebuttable presumption of Negligence. It is up to theD’s to show otherwise.)

Zuchowicz v. United States: p. 438 Plaintiff claims that negligent overdose of Danocrine caused death. Regular dose ofDanocrine can cause death. Plaintiff won by bringing in expert testimony to establish that Danocrine itself was thecause. Court shifts burden to defendant to show that overdose did not cause death.

Haft v. Lone Palm Hotel p 437 Father and Son drown after hotel fails to post statute-mandated "no lifeguard" sign orprovide a lifeguard. No witnesses. The burden is shifted to the hotel because they created the uncertainty, and it wasforeseeable that an accident could happen. Burden of proof is on the defendant to show that the plaintiffs would havedied even if there were a lifeguard there. Defendant created the uncertainty. a. Uncertainty was foreseeable b. They should eliminate uncertainty

Herskovits v. Group Health Corp p 453 Smoker dies of cancer. Plaintiff's family sues doctor for late diagnosis thatreduced chance of survival from 39% to 25%. Lost better chance of survival doctrine: A way for juries to awardcompensation for reduced survival due to wrongful diagnosis. Prior to this, it was all or nothing, which meant that if youdid not cross the 51% survival threshold you got nothing. Find defendant liable although their negligence was "morelikely than not" the cause of the plaintiff’s death.

Joint & Several LiabilityJoint Liability: Implies that each of several defendants is responsible for the entire loss that they all caused inpart.Several Liability: Holds each defendant responsible only for his proportionate share of the loss. If the plaintiffsues two defendants, a jointly liable defendant can be held liable for the full loss, while the severally liable defendantscan only be held liable for half. Joint and Several Liability: If two people are the contributing cause of damage, they are each responsible foreverything. This is a way for the plaintiff to shift the burden when the defendants' actions are tortuous, and they arethe ones who created the uncertainty. Plaintiff can always recover 100%. D’s must determine who caused the injury.

All parties must be tortuous actors (if one is a natural actor, plaintiff cannot recover) All of the tortuous actors or causes have to have been identified Defendants' acts caused the uncertainties

Defense: If one party can show his negligence was not the cause, he is no longer a defendant.

Kingston v. Chicago RR p 461 Plaintiff property destroyed by two fires--one tortuous and one whose source isunknown. The court shifted the burden to the known tortuous actor to prove that the other fire was natural and not atortuous act.

Defendant’s Mitigation of Damages For Contributory Negligence: 1. Statutory Rule: The injured person is so dependent that the law must protect them.2. Doctrine of Gross Negligence: This doctrine tried to compensate for harshness of contributory negligenceby saying that defendant can't use contributory negligence if he himself was grossly negligent. See Hudson v. Craft (p.22) Boxing Match: youth voluntarily gets into a ring and gets injured. Promoter is sued. Tries to defend self by chargingassumption of risk and contributory negligence on part of youth. Court twists and turns in order to negate hiscontributory negligence because cont. neg. would have barred him from any recovery. Court found for youth by citingstatutory laws that promoter had violated 3. Last Clear Chance: If P is successful in establishing that D had the last clear chance to avoid injury to P,then P will have full recovery despite her own contributory negligence. P must prove 1) D was aware of P’s presence;2) aware of P’s ignorance of her peril or of her inability to save herself; and 3) D could have avoided the accident, if useddue care. In several jurisdictions, which enacted comparative negligence statutes, the courts have ruled that this Ruleis no longer appropriate. This rule was designed to mitigate the harshness of the doctrine of contributory negligenceas a complete defense. However, since comparative negligence does away with the harshness, the LCC doctrine is nolonger applicable. See Fuller v. Illinois Central RR p.331 train conductor sees car moving slowly across the track. Heshould have honked his horn or stopped. Court stretches doctrine to say that defendant should have fixed brakes sothat he could have stopped on time. "Last clear effective chance."

4. Assumption of Risk: 1. Actual, subjective knowledge of risk (It must be shown that P failed to exercise reasonable care, andthat such lack of due care contributed proximately to P’s injury).2. Voluntary exposure to the risk (knowingly entered into and stayed in position of danger).

This differs from negligence in that it is subjective and requires knowledge of the danger/risk, and that P reasonablyassumes risk, i.e., amusement park rides. Murphy v. Steeplechase Amusement Co. (Injured on Flopper). P was awareof the nature of ride and the risk/consequences involved and thus, assumed the risk. However, if P assumes the riskeven if he does not know the risks, but should have known, i.e. baseball parks.

Note: Assumption of Risk is no longer a bar in cases of secondary assumption of risk, but has become a sub-genre ofcomparative negligence with apportionment (majority in most jurisdictions).

Primary Assumption of Risk: An express contract that says, or the court decides, that one party should not beresponsible for another. For example, sitting close to the field at a sporting event. If you choose to engage in an certainactivities, it's at your own risk.

Secondary Assumption of Risk: 1. Defendant has duty to protect plaintiff 2. Defendant fails to protect plaintiff 3. Plaintiff goes ahead and assumes the risk anyway

Market Share Theory: Based on the premise that the liability of each manufacturer would be proportionate to itsresponsibility for the injuries caused by its products. Plaintiff establishes two elements of joint and several liabilities,but is not asked to establish the third (does not have to find all the tortfeasors).

Sindell v. Abbot Labs p. 476 DES ingested by pregnant women caused cancer in their offspring.

Skipworth v. Lead Industries: Lead paint Manufacturers found not liable because of difficulty in finding all thetortfeasors, lead paint is not fungible, there were so many manufacturers over such long period of time, andmanufacturers did not know of dangers at the time of manufacturing.

Contribution: Defendant who has to pay damages can sue all other tortuous parties in a separate trial. All parties splitthe damages evenly.

Dole v. Dow Chemical p. 399 employee injured at work. Collects workers' comp. Sues supplier (Dow) of chemical thathurt him and wins. Dow sues employer for "contribution" and wins. Employer has to pay Dow 50% of the damages Dow

owes to employee. Employee has to reimburse employer for workers' comp.

Comparative Partial Indemnity/Equitable Apportionment among Joint Tortfeasors: Defendant who has to pay damagescan sue all other tortuous parties in a separate trial. All parties split the damages according to their liability.

Inter-Family Immunity Doctrine: Family members can't sue one another for indemnity. A defendant cannot indemnifyone family member in order to recoup a damage award he has paid to another family member. Example: driver paysdamages to child for negligently hitting them. He can't then try to sue the child's parents for negligent supervision ofchild because he'd be, in a sense, taking money from the child.

Frolic and Detour Doctrine: If the accident occurs outside of the overall relationship between the employer and theemployee, the employer can get off the hook. Bakery driver hits someone while taking a detour to his girlfriend's house.

Comparative Negligence1. Pure: Full apportionment of spectrum. Plaintiff can be more than 50 or 51% liable and still collect. If plaintiff 90%guilty, he pays 90% damages. Downside is even if plaintiff is overwhelmingly liable, he can still get a big award. SeeLi v. Yellow Cab Co. of Cali p. 362 Li negligently tries to make left into gas station against 3 lanes of oncoming traffic. She is hit by speeder. Landmark case for comparative negligence. Courts decide fairness overrules administerabilityconcerns. This case officially ushered in the comparative negligence doctrine. See also page 2 & 37 of outline.

2. Impure: 50% (NJ): Defendant just has to show that plaintiff was more responsible than all of the defendants. Plaintiff barred from recovering if plaintiff is 50% OR more liable (50% or 51% Rule). Plaintiff has to show he is lessresponsible than the defendants. Defendant liable if he is more than 50% responsible.

Policy Argument: This case simplified the doctrine, juries were already doing apportionment, but in an inconsistent way.There was also a fairness issue of apportionment figures juries and judges were implementing. The pros outweighed thecons. The courts preferred that the all or nothing go away. Once California did this it spread throughout. 1980 at least48 out of 50 states had adopted the comparative negligence case.

Locality RuleMust look at the locality that the tort occurred in as well as similar localities. See Brune v. Belinkoff p. 221 (NewBedford/pregnant women case). On appeal, locality rule was thrown out and a national standard was implemented.

Res Ipsa Loquitor “The Thing Speaks for Itself” This is a way of shifting the burden of proof to the defendant on the negligence and causation issue. It’s a logicalinference for the plaintiff to meet the burden of proof. A type of accident that does not ordinarily occur withoutnegligence from a specific class.

Restatement (Second) Torts § 328. (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when:a. The event is of a kind which ordinarily does not occur in the absence of negligence;b. Other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminatedby the evidence; andc. The indicated negligence is within the scope of the defendant’s duty to plaintiff;(2) It is the function of the Court to determine whether the inference may be reasonably drawn by the jury, or whetherit must be necessarily drawn;(3) It is the function of the jury to determine whether the inference is to be drawn in any case where differentconclusions may be reasonably reached.

Three Effects of RIL: 1. Creates an inference of negligence (in absence of proof of negligence) 2. There is a REBUTTABLE PRESUMPTION; once RIL is proved the BOP is on the Defendant to put onevidence to prove otherwise (Bauman v. LIRR). 3. The BOP is shifted to D. See Anderson v. Service Merchandise (lady hit with lighting fixture that fell fromceiling) Question is of exclusive control, but resolved in that Service Merchandise had day-to-day control. Byrne v.Boadle (sack of flour landed on P).

Res Ipsa is used in both negligence and products liability. Example: Car brakes that fail after a trip to the mechanic. Manufacturer or professional user could be liable.

Byrne v. Boadle p. 281 plaintiff hit by barrel of flour being lowered from warehouse while walking on sidewalk. Plaintiff

wins by arguing that normally, barrels don't fall out of warehouses without negligence on the part of warehousemen.

Wakelin v. London SW Ry p. 283 car crossing tracks hit by train. Court rules element #1 not met because sometimes carshit trains.

Larson v. St. Francis Hotel p. 286 chair flies out of window and hits someone below. Court rules chair not withinexclusive control of hotel.

Benedict v. Eppley Hotel woman injured when broken chair she was sitting in collapses. Court rejects defendant'sargument that they did not have exclusive control of the chair because she was sitting in it for 30 minutes. Court says"effective control" is enough.

Ybarra v. Spangard p. 297 (P-patient gets back injury after having surgery.) This is a medical malpractice case wherethe plaintiff is unable to establish the elements necessary for a variety negligence case and uses res ipsa loquitur to "getover the hump" of establishing the prima facie elements. He uses expert testimony to help establish that negligence hasoccurred. Since case did not fit Rstmt 2nd §328(d) or Rstmt 3rd §15 definitions, court bolstered case by policy arguments:uncertainty was created by the doctors and hospital, expert testimony established that injuries probably came fromnegligence, we entrust ourselves to doctors and expect not to be injured, doctors only ones in position to know whathappened since patient was unconscious.

Strict Products Liability – Only applies to commercial sellers!Most jurisdictions today, a manufacturer or supplier of a product that is defective and unreasonably dangerous can beheld strictly liable in tort when the product causes injury to the user or his property. Liability is strict, but not absolute!P must prove that the defect caused the injury that it attributable to D. Almost all strict liability claims are based oncommon law principles (See Restatement (Second) Torts § 402A); however, statutes may explicitly or implicitly createa strict liability cause of action. The rationale behind the theory is that it D is better able to insure against loss so it isunfair to have P bear costs; increase safety incentive; difficulty of proving negligence. See page 36 of Outline as toexpress & implied warranties.

“Liability without Fault” is imposed as a matter of public policy, due to the grave risk of harm in placing defectiveproducts in the “stream of commerce.”

Note: This is stricter than negligence, because the manufacturer’s product must be used by someone other than thebuyer, without further inspection and it must put life in peril. Harm has to be foreseeable to the manufacturer. It is aregular negligence test with the added elements. Does not apply to buyer because he can negotiate the risk.

Escola v. Coca Cola Bottling Co. of Fresno p. 729Bottle of Coke explodes in waitress’ face. The courts found for the plaintiff. In this case the doctrine from MacPhersonwas used again. This time, Judge Gibson invoked res ipsa loquitor to force the manufacturer to find out why the accidentactually occurred. RULE: not sure why bottle broke, but it could have been avoided with adequate inspection;manufacturer incurs ABSOLUTE LIABILITY. Policy demands liability be placed on the one who can bare the costsefficiently

Pouncey v. Ford Motor Co. p. 769 (Car fan blade breaks off and injures plaintiff). This was a negligence case since it wasprior to strict liability, so reasonable care or quality control was an issue. Today, construction defects are analyzed under402A it is irrelevant as to reasonable care.

Sovereign Immunity: State created courts and state cannot be sued in courts unless voluntarily agrees to be sued onlyup to the level the state will agree to be sued.

Privity of Contract: Should control of dangerousness of product be determined by agreements between parties v.society/legislature.

No Defenses: Doesn’t matter if mfr was reasonable or foreseeable in making product – strictly liable/no defenses! Nomatter what type of case (construction/design/warning) must show P is using product in intended way or foreseeableuse or misuse. Example: Drano can explodes; allowed moisture to enter (showed rust). Should investigate all theoriesto find out which aspect lead to injury.

History of Strict Product Liability

Winterbottom v. Wright P injured while driving defective mail coach, which the govt. had bought from Wright. Courtrules that Winterbottom cannot sue manufacturer because of privity of contract, which says that only people in thecontract, and not third parties, can bring action for breaches, and they are only liable for what is agreed for in the contract(price, quality, risks). Powerful force for limiting scope of liability. Promotes entrepreneurship and limits legal exposureof companies.

Proving Deviation To get the manufacturer’s specifications (clearly discoverable) – sometimes too broad; Purchase a few comparable models and inspect to analyze range (show how mfr normally makes productand how it deviated from standard); Use RIL when this type of accident normally occurs, it does because there’s a defect. When this type ofproduct breaks off,

Three Approaches: Negligence, Warranty, Strict Liability

(1) NEGLIGENCE: Duty to avoid foreseeable danger to others beyond the purchaser. MacPherson v. Buick Motors (defective wheel that was made by another company collapsed and entire car fell apart). Landmark decision allowing negligence to determine products liability, provided it was used as expected, foreseeabledangerous (if negligently made) and foreseeable that someone other than the purchaser will use product and mustforesee that it will be used without inspection or test. Further, mfrs cannot market unsafe products on the rationale thatbuyers may want to purchase less safe products at lower prices.

RULE: one who negligently manufactures a product is liable for any injuries prox caused by his negligence; manufacturer(of final product) has obligation to make responsible inspection of product Court abandons the privity of K (i.e. betweenMacPherson and wheel manufacturer) requirement. The rise of industrial age/specialization where products are not madeexclusively from components made by the same manufacturer.

(2) WARRANTY: Liability without fault; negligence does not need to be proven b/c liability is implied from warranty(strict liability)

General Rule: manufacturers are strictly liable in tort when an article is placed on the market with knowledge that it

will be used without inspection for defects, if defects exist there is liability *warranty theory was used to get around thearcane requirement of privity in contract. There is an implied warranty of defective products especially on food.(3) STRICT LIABILITY (liability without fault): Most states have adopted some form of this. P must prove that productwas “unreasonably dangerous” under consumer expectation. (Restatement (Second) Torts § 402A) If yes, then liability. Note: Person selling used goods are not Strictly Liable. See Tillman v. Vance Equip.

RULE: One who sells product in defective condition unreasonably dangerous to user or consumer or to his propertyis subject to liability for phys harm thereby caused to ultimate user or consumer or to their property subject to: A. Seller is engaged in business of selling such product, and B. It is expected to and does reach the consumer without substantial change in the condition it wassold.

The Rule (stated above) applies although: A. The seller (applies to retailer also) as said in Vandermark v. Ford has exercised all possible carein preparation and sale of his product, andB. The consumer or user has not bought the product from or entered is not a contractual relation withthe seller.

Note: The Second Restatement is silent as to (a) people other than consumers, like bystanders; (b) seller of a productexpected to be processed, or substantially changed before it reaches ultimate consumer and (c) sellers of componentparts.

Modifications made to product by consumerManufacturer liability is not extended to products that are modified. See Jones v. Ryobi Ltd. (P injured her hand in astamping machine after her boss removed a plastic guard to increase production) RULE: modifications to products madeby any party beyond the manufacturer eliminates strict liability on manufacturer’s part, even if the modifications madewere foreseeable

Note: This case also demonstrates break in causal chain & superseding cause!

Most Courts DISAGREE with Jones v. Ryobi, but various state statutes support no liability for modifications, and others

create liability for modifications when they are foreseeable

Three Types of product defects: MANUFACTURER DEFECT-not in intended condition; DESIGN DEFECT-condition intended, but presents undue risk; and WARNING DEFECT-in condition when leaves Mfr’s control and does not present undue risk if usednormally, but its packaging or accompanying literature fails to warn of unexpected dangers from foreseeablemisuse.

Design Defect (similar to negligence-also sue for Defective Warning)Negligence may be found, even if a product meets the specifications of its designer, if the design presents an undue risk. An undue risk should have been discovered and prevented by due care. It requires a careful consideration of whetherthe defendant could have reasonably foreseen the danger, the extent to which the technology in existence at the timeof its mfr could minimize the risks, and the degree to which the consumer could be reasonably expected to appreciate andprotect himself from harm.

Failure to comply with applicable government safety standards automatically renders a product defective in design orwarning. However, compliance with such standards is evidence (although not conclusive) that the product is notdefective See Restatement (Third) of Torts – Products Liability § 4.

These types of cases differ from manufacturing defect cases in that the final product is exactly what the manufacturerintended. Imposing strict liability for so-called defective design creates greater problems than in other defective productcases. All of defendant’s products made to that design are the same. Whether the particular design is unreasonablydangerous involves a weighing of such facts as the fortuitousness of the injury which occurred, whether the designchange would destroy or substantially impair the utility of the article, and whether the cost of the design changenecessary to alleviate the danger would price the article out of the market.

Prima Facie Case for cases that follow Restatement (Second) 402A (p. 743) The product was used in its intended foreseeable use or misuse (must show on every case); The products fails CET; The product fails RUB; Causation – Product caused injury.

Tests For Reasonableness of Design: (Various subjective tests have been developed to determine whether the designis unreasonably dangerous): 1. “AND TEST” Restatement (Second) Test adopts consumer expectation test (see below). This theory is weaksince CET are determined by juries (must fail CE “and” RUB). (NJ & CA reject this) This test is commonly used. Linegar case (Bullet proof vest). 2. “OR TEST” (California) Product must fail either CE “or” RUB (least used-only 5 or 6 jurisdictions use this test)Barker case; and3. Risk Utility Balancing (see below) Majority test where the risks exceed benefits when compared with probablerisk/benefits of alternative designs—product could be made safer (must show 2&3 in Restatement);

Note: NJ uses risk utility balancing (RUB) test, no separate consumer expectation test needed, but it is weighed. Somejurisdictions use the 3rd which requires that the jurisdiction have a separate test done, consumer expectation test. Eachstate abides by its own doctrine.

Note: Proving both 1&2 makes it hard for courts to hold D liable, because the dangerous product may be very useful.By just using the RUB test, some widely used products would be found defective because risk out weighs benefits, i.e.,tobacco, alcohol. Wade’s Risk Utility Balancing test (The RUB) pg 796

RULE: consumer is justified in expecting that a product placed into commerce is reasonably safe for intended use. Courtadopts Crashworthiness Doctrine that imposes liable on Mfr. for failure to design its product minimizing foreseeableharm caused by other parties (a different design would have prevented its collapse, i.e., roof, door, waterbed over-pressurizing). Ex: Auto mfr may be liable for not designing its cars to withstand crashes caused by negligent drivers. See Larsen v. General Motors.

Consumer Expectations Test: The Court looks at the dangerousness of the product from the point of view ofthe ordinary, prudent purchaser or other foreseeable user with respect to the contemplated uses of the product. Productmust be riskier than expected and the risks must outweigh benefits in comparison to alternative designs. Under this

approach, P must prove that the product did not perform as safely as an ordinary consumer would have expected: a. Used as a shield by D (Linegar v. Armour of America) case pg 782. No more dangerous thenconsumers expected it to be; therefore, it is not defective or unreasonably dangerousb. Used as sword by P, riskier then people expected (Barker case)c. Just Relevant: Looked at in light of other factors in the RUB test.

2. Risk Utility Balancing (RUB) Test: This method weighs the danger of the design against its benefits. TheCourt will consider the feasibility of safer alternative designs. Some courts require the plaintiff only prove that the designof the product proximately caused the injury. The burden then shifts to the D to show that the utility of the designoutweighs its inherent danger. There are a number of factors associated with this test as indicated in Cepeda, such as:

1. The usefulness and desirability of the product (its utility to the user and to the public as a whole);2. The safety aspects of the product (the likelihood that it will cause injury, and the probable seriousnessof the injury).3. The availability of a substitute product which would meet the same need and not be as unsafe;4. The mfr’s ability to eliminate the unsafe character of the product without impairing its usefulness ormaking it too expensive to maintain its utility;5. The user’s ability to avoid danger by the exercise of the dangers inherent in the product and theiravoidability, because of general public knowledge of the obvious condition of the product, or of theexistence of suitable warnings or instructions; and6. The feasibility, on the part of the mfr, or spreading the loss by setting the price of the product orcarrying liability insurance.

Courts presume if deviation, product is unreasonably dangerous. If follow Restatement, must show riskier than expectedand that the risks outweigh the benefits in comparison to alternative designs. See Linegard (bullet proof vest). D didnot fail consumer expectation test because it did not do its own independent testing, deferred to Police Department’sreasoning for purchase. Note for Exam: Must argue all competing theories as you do not know which jurisdiction you’llbe in!

Risk Utility Balancing Test for design defects (policy issue):

Marketing/Time of Trial (recent effects on risks-greatest info.) NEGLIGENCE STRICT LIABILITY (actual conseq.)Risks: M TBenefits: M TAlternative Design: M MSubstitute Products: M MUser ability to avoid: M MConsumer expectations: M MLoss-spreading ability:

Note: Some things evaluated at the time of marketing and some at trial. Each analyzed. Question is what to do withrisk/benefits. If marketing, then it relates to foreseeable risks/benefits. At the time, we know what consequences theproduct actually caused at trial.

Several arguments for trial (actual damages), easier for P to get current information as to what the product caused thento find out what was foreseeable at the time of marketing. This gives P the advantage. Cts sought to increase liabilityfor products that cause harm. If wait until trial, product has excessive harm. If at marketing, much less.

Hindsight test: If he knew then what we know now, would he have put the product out the same way? (imputing-purenegligence approach). Ex: Mfr for vaccine for Asian flu. No flu epidemic. Only people who got the flu, had the vaccine. Mfr would not have liability due to possibility of flu epidemic. Another example: Asbestos (installation and fireretardant...good for ships at war). No alternatives at the time of marketing. At time of trial, the risk are thousands ofasbestosis mostly affecting ship workers during WWII. People didn’t realize the risks, but the benefits outweighed theharm. Legal system not effective in discovering toxic substances.

How Mfr could have avoided danger in the Design defect? Ex: Should have had a mechanism to avoid dangerouspressure build up.

Note: Fundamental difference between full negligence and strict liability – As of what time you consider differentproperties, when the manufacturer puts the product in the stream of commerce, or at trial. Whether the product that was

made is comparable to the product that should have been made. The difference between negligence and design defectare very small. In Negligence era (Cardozo and strict liability), a P could not recover unless the product was being usedas intended.

In Pinto, when rear ended at low speed and explodes in flames it is riskier than ordinary consumers’ expect.In Cepeda, followed Wade/Keeton Risk Utility Analysis of Strict Liability, and extended strict liability to include notonly intended, but also reasonably foreseeable uses of the product. Can be outweighed by risks or benefits by otherfactors.

We look at how it affects all of society, the risk of all of these types of products. We would get information from expertsand statistics from consumer monitoring organizations. Compare risk that would be reduced by the better design v. thecost to implement them. How many risks will be removed at what costs? CE “consumer expectations” Latin believesNJ is best.

Note: In design defect cases, you must argue that there is a safer, alternative design that is better than current design!This was an attempt to eliminate RUB. New Jersey uses the § 3rd Restatement. Consumer expectation can balance thisi.e., Porsche that went too fast, but that is what the consumer expected. Do not have to show what the overall harm ofthe product and D does not show overall benefits. They compare the benefits and utilities of product the way it wasmade by the benefits and cost of the products if it was made in an alternative way.

Volkswagon of America, Inc. v. Young p. 774 (Crashworthiness case). The car was not built with the intention of beingcrashed (intended purpose or use threshold limitation.) The defect did not produce accident, but once accident occurredit made it worst. Expanded the use of intended use to common foreseeable use.

Linegar v. Armour of America p. 341 State trooper dies despite wearing bulletproof vest. Court finds that product is nomore dangerous than people expect it to be, and therefore, not defective or unreasonably dangerous. Uses the ConsumerExpectations Test to protect the manufacturer from liability (CET as shield).

Barker v. Lull Engineering Approach p. 788 (Barker injured while operating loader). Court finds D liable as product

excessively dangerous for its intended use (which was preventable) as determined when a jury concludes that theproduct’s risks outweigh the design’s benefits after conducting RUB. Courts require the plaintiff only to prove that thedesign of the product caused the injury. The burden then shifts to the defendant to show that the utility of the designoutweighs its inherent danger. This case illustrates major expansion of concept of product defect by abandoning"intended use" standard for "foreseeable use or misuse" standard. New Jersey and California changed the rules andused foreseeable misuse.

Policy arguments against design defect liability1. Restricts consumer choice; 2. Restricts capitalism; 3. Reduces research and development; 4. Increase the price ofproduct, may be putting it out of range with consumer; & 5. D must carry insurance, which may difficult or impossibleto get.

Policy arguments for design defect liability: 1. Place liability on the party who can best prevent injury; 2. D is best cost spreader; 3. D is best risk allocator; & 4. Pneeds to be compensated

P could argue “Reverse Robin-Hood” effect (Latin - Liability for SUV Collision Risk, p. 1167). “SUV buyers are typicallyaffluent people who normally could afford to purpose slightly more expensive vehicles that provide greater safety…”

RULE: Exclusive reliance on consumer expectation is inappropriate where safety must be defined by technical, scientificinfo. REMEMBER this is an argument for the D, but the P can counter saying that technical info only applies to drugmanufacturing cases.

Camacho v. Honda Motor Co. (P bought motorcycle without crash bars-crashed and his legs were seriously injured).Motor vehicle manufacturer can be liable or Strictly Liable for injuries sustained in accident where manufacturing ordesign defect, though not the cause of accident, caused or enhanced the injuries. BUT remember that if the safety optionwas available to P, and he rejects; there can be argument of assumption of risk available to D. Manufacturer’s Defenses

1. Contributory negligence by P: Contributory negligence is not a defense when such negligence is merely afailure to discover the defect in the product or to guard against possibility of its existence from RS 2nd Comment to §402A. However, if P is in an industrial setting, contributory negligence applies (Suter). 2. Assumption of Risk by P: If P knows of a defect and is aware of the danger, and nevertheless proceeds touse product, this breaks causal chain and may bar recovery 3. Abnormal misuse of the product by P: P uses the product in a way not normally intended. This breaks causalchain and may bar recovery 4. Comparative Fault (not comparative negligence) Contributory negligence and strict liability is merged intoComparative Fault. The Court is allocating the loss according to the percentage of causation of injury by each party. This is the choice method because: 1. P recovery will be reduced only to the extent his own lack of reasonable care contributed to theinjury. The injured P is compensated. 2. Manufacturer’s incentive to create safer products will not be reduced because: A. Manufacturer is still liable (though partly)B. Manufacturer cannot assume user of defective product will be blameworthy C. Assumption of risk as a complete bar is eliminated 3. Jurors can measure P’s negligence or fault to D’s strict liability *the DISSENT disagrees saying thatmajority dilutes the defectiveness of a product with the conduct of the defendant***this is the choice method adoptedby Courts and most appropriate in strict liability.

Daly v. General Motors Corp. (design defect was a car door latch that allegedly allowed the driver-side door to fly openas a result of the crash-although door latch had nothing to do with causing crash) P was also alleged to have been drunkand not wearing a seat belt.

Damages(1) Contribution: Created by legislature, some by Courts, it is equal shares. Takes the number of culpable Dsand divide them equally. If one D paid $300,000 can file suit against the other D for $200,000, provided they are culpablejoint tortfeasors. Courts do not recalculate based on the number of insolvent defendants. Right to recover fromremaining Ds the same amount. If one person cannot pay, it is not divided amongst the remaining defendants. Example:If P rec’d $300,000. 3 joint tortfeasors. Under contribution, P can recover from any D. The one D who paid P, has a

separate cause of action against the Ds or other causers not in case. (2) Indemnification: Limited remedy for D that was much less culpable than another D. “All or nothing”recovery. You can get everything back from other defendant. Risk is on D who paid them. Could recover $300,000.(3) Equitable Indemnity (“fair” indemnification): One D did not play a major role and the other D was far moreculpable. Such a large disparity in fairness that he should be able to recover from the other D the entire amount (all ornothing/no apportionment). (4) Comparative negligence splits fault and allocates loss according to faultiness of those who caused theinjury. Then courts went to equitable apportionment. See p. 2, 20, 37 of Outline.. (5) Joint & Several Liability: Each defendant only liable for that defendant’s share. If didn’t name alldefendants, P would lose the percentage of that D. For instance, if D was 20% liable and not named, P can only recover80 from those named Ds. See Sindell case. P sues 3 defendants and one settles with P. What does he recover from therest? The remaining balance, under equitable apportionment, (6) Privileges/immunities: Intra-family Immunity (spouses cannot sue spouses/children cannot sue parent)purpose to guard against collusion and to prevent strive from occurring within the family unit.

Note: In Workers Compensation, employee does not have to show that an employer was negligent. Assumption of riskdoes not apply. No rules apply. Employer cannot be sued and losses limited to what the pool requires and losses arepredictable.

Reasonably Alternative Design Test: Part of all four approaches. Plaintiff compares the risks and benefits of the productthe way it was made and the risks and benefits of the product if it was made in an alternative way. You do not comparethe overall risks and benefits of the product. (“RAD”)

Approaches--Except 3rd Rstmt, all RUB tests performed at time of trial. All RAD tests performed at the time of marketing.

Restatement 2nd Section § 402ASpecial liability of seller of product for physical harm to user or consumer p. 743(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or tohis property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to

his property, if(a) The seller is engaged in the business of selling such a product, and(b) It is expected to and does reach the user or consumer without substantial change in the conditionin which it was sold. (2) The rule stated in Subsection (1) applies all possible care although(a) The seller has exercised in the preparation and sale of his product and (Eliminates quality controlargument)(b) The user or consumer has not bought the product from or entered into any contractual relation withthe seller. (Eliminates privity)

California and New Jersey both rejected. Jurisdictions that follow 402 A Refers to commercial sellers (including car rental companies) “dcud “is the heart of the section. defective condition unreasonable dangerous Manufactures could be liable no matter how much care is used Eliminates privity.

Hindsight Test: Looking at the time of trial and looking back at what happened.

Imputing knowledge: Assuming that the Defendant (seller) knew of the dangerous (Risks) condition. Would he haveput the product out in the same way?

Judge Treynor’s holdings (Concurs, but for policy reasons) The only thing that the Plaintiff would have to show is that the injury was caused by the product itself. Itmeans product caused the injury therefore the manufacturer is liable (Absolute liability. Many courts havegone to strict liability, but P must still show defect. Under Treynor analysis no defect, just injury.)

Judge Treynor argued that the manufacturer is in the best place to prevent accidents. He thought that it wasin the interest of public policy to prevent such accidents. Loss spreading – Manufacturer in the best position to spread the cost to everyone. Deterrence of preventive – Manufacture can better anticipate and prevent the product related accident. Fairness- People rely on manufacturer ( i.e. advertisements, consideration of fairness) Administerability – Minimize the number of suits (administrative costs) Information Access – Manufacturer knows better what caused the accident.

Note: Traynor’s doctrine is called absolute liability. If the product caused the injury then the manufacturer is liable.

All that is needed is causation. THIS DOCTRINE HAS NEVER BEEN USED OR ADOPTED ANYWHERE OR ATANYTIME EVER!!

Example of standard test:Lucy Web case Hospital was held up to its own standards. As would the manufacturers in these cases. Due to strictproducts liability it does not matter how much care is taken under this circumstance. The individual unit, which causedthe accident, did not conform to the manufacturers standard. It is liable regardless to how much care was used.

If we can’t find out what the defect was or the product had been destroyed. We can use Res Ispa Loquitur – The factthat it exploded proves negligence or that the accident occurred. The Ð can reach the jury without identifying the specificdefect. Pouncey v. Ford Fan blade broke due to high level of occlusions. Tried under both manufacturing and design defect. This is actually a negligent product liability case, so Ford could have won the case if they had presented evidence abouttheir quality control practices. Causation was difficult to prove. Pouncey used expert witness to say that defect wasalready in the product at time of manufacture.

Moore v. Jewel Tea p.772 Exploding Draino can case. Case illustrates use of res ipsa loquitur because evidence wasdestroyed. Also shows that manufacturing defect can be proven when there is a propensity in the product for the riskto occur when it is manufactured and not actual risk. P won on mfg and design b/c better design would have prevented.

Design Defect for Drugs: You do not compare the overall risk and benefits or foreseeable risks when you put it out atthe time of trial. Instead, you compare the drug with the risk and see if it can be reduced without losing its effectiveness. Must compare with competitors.

Manufacturer DefectsStrict liability applies when a product containing a manufacturing defect, or is unreasonably dangerous to the user,results in a product that does not conform to the manufacturer’s specifications; the flaw occurred in the manufacturingprocess, making the product more dangerous than it was intended to be. (Defective food products fall into this

category.) The plaintiff need not prove negligence in creating or failing to discover the defect. Reasonability does notapply. However, the manufacturer must be engaged in the business of selling such a product; the product is expectedto and does reach the user or consumer without substantial change in condition in which it is sold;

The strictest type of strict liability is construction or manufacturing defect (this is where a particular unit deviates fromwhat the manufacturer intended). This is relatively strict liability, negligence does not matter, no reasonableness balance,no measure of cost vs. benefits.

Prima Facie elements1. Product had a deviation from the manufacturer’s products design (Cepeda case)2. The deviation was in the product when it left the manufacturer (hardest to prove). Must get specifications (see page 23 of Outline).3. The deviation had to have caused the injury(proximate cause)

Restatement 3rd Products Liability(a) Contains a manufacturing defect when the product departs from its intended design even though all possiblecare was exercised in the preparation and marketing of the product.

Defenses 1. Assumption of Risk: If the user or consumer discovers a defect and is aware of the danger, and neverthelessproceeds unreasonably to make use of the product and is injured by it, he is barred from recover. In most comparativenegligence states, they apply the same comparative negligence rules negligence cases. 2. Comparative Fault: In jurisdictions that have adopted comparative negligence, a plaintiff who is found guiltyof contributory negligence will have her damages reduced by the extent to which (percentage wise) the plaintiff’s ownnegligence contributed to her injury, despite the fact that the P is suing on strict liability theory and despite the fact thatP’s contributory negligence did not involve an assumption of risk and therefore, was not a defense prior to the adoptionof comparative negligence (See Daly v. General Motor Corp.). Comparative negligence does not constitute a completebar to P’s recovery, as courts may be more willing to look at P’s conduct.

DisclaimersContractual disclaimers of liability generally have been held invalid as against public policy-at least as to products

liability claims involving personal injury arising out of consumer transactions. However, courts may upholdcontractual disclaimers as between two business concerns with equal bargaining power.

Warning Defects – Easiest to prove“The duty to warn in the strict liability cause of action is based on the notion that absent a warning or adequate warning,a product is defective, in that it is not reasonably fit, suitable, or safe for its intended purposes.” Freund v. CellofilmProperties, Inc., 87 N.J. 229, 242 (1981)-leading case on strict liability for failure to warn. Also applies if a product doesnot otherwise contain a defect, but is unreasonably dangerous and the manufacturer fails to give proper warning orproper directions as to its use. “When a plaintiff sues under strict liability, there is a no need to prove that the mfr knewor should have known of any dangerous propensities of its product-such knowledge is imputed to the mfr.” [Freund]Supplier may defend against a strict liability action with the fact that the “state of the art” was not such that he shouldhave known the danger. The statute now limits the information to adequate or reasonable warning.Three types of warning defects No warning – easiest, not common; Warning should have been “graphic” or “symbolic warning,” or be reasonably placed in sight of consumer-open/obvious); “State of the Art” Better warning could not have been given because risk could not have beenknown or knowable.

Prima Facie elements: The P was injured using the product (in all products liability cases). Used in a reasonable foreseeable use or misuse (in all products liability cases). The warning was defective and could have been better. The instructions did not give an adequate warning ofproduct risk or handling of the product (general: for foreseeable users); Risk is not “open and obvious” in sight of consumer (some jurisdictions); 5) Causation: would a better warning have made a difference to P? What did the P have after the warning (injury)?There is a heeding presumption presumed, but it is rebuttable. Burden on defendant to show persuasively that the betterwarning would have made a difference.

RUB- How much cost to increase safety of product? B<PL If burden, low, any chance would outweigh risk of “printing”another word. Negligent not to have better warning.

Heeding Presumption: Evidence is self-serving. If a warning is found to be defective because a better warning waswarranted, then the courts presume that P would have followed better warning and reduced injury. D must do moreexpressing incredulity. Coffman v. Keen (asbestos case) P was a bystander exposed to asbestos when working inconfined quarters on a naval ship and later was diagnosed with pulmonary asbestosis. No warning was given as tohazards. There is a rebuttable heeding presumption that P would not have exposed himself to asbestos had he knownthe risks and avoided injury. This may constitute proof that defendant’s failure to warn contributed to his injuries).In this case, P had to prove that the defect existed when the product left D’s control and that the defect caused theinjury to a reasonably, foreseeable user. More importantly, P must prove that the defect in the produce proximatelycaused his injury (Michalko v. Cooke Color & Chemical).

Restatement 3rd Products Liability 2(c) (1999) is defective because of inadequate instructions or warnings when theforeseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonableinstructions or warning by the seller or other distributor, or a predecessor in the commercial chain of distribution, andthe omission of the instructions or warnings renders the product not reasonably safe. Restatement 3rd – Pro industry Advocates retaining the “state of the art defense” See O’Brien v. Muskin Corp. It wants to limit the scope of liability, by not requiring manufacturer to only warn the average user instead ofthe people who would actually use the machine or product. The manufacturer does not have to warn about a product’s risk which was obvious. (“Open and ObviousDoctrine.”) Information Overload – If courts require mfg to warn of open and obvious risks it will distract from moreimportant stuff. Courts rejected manufacturers giving too much information.

Note: Reasonable means comprehensible to average user giving a fair indication of nature and extent of danger toreasonably prudent person (RPP)

Two interpretations of reasonable: 1. Average User: Warning has to be comprehensible to the average user, and giving a fair indication of the

nature and extent of the danger to an RPP. (Pro-defendant). See Campos v. Firestone & Rubber Handout (pg.202)Warning case. Tire explodes while employee is filling inner tube. A duty to warn is not automatically extinguishedbecause the injured user or consumer perceived the danger. A better warning could have been given.2. Best Possible Warning: The risk is reduced to the greatest extent (Pro-Plaintiff). Now, NJ state statutereplaces "best possible warning" with "adequate warning. See Bashada v. Johns-Manville handout pg. 45 Class actionsuit for asbestos. Judge Pashman tries to create landmark case by saying “State of the Art Defense” doesn't matter. Institutes imputing knowledge/hindsight test. This case was widely criticized because it forced manufacturers to warnof risks that were not knowable at the time. Totally irrational. Latin says that policy arguments were strong for holdingmanufacturers liable, as they are in best position to find and deter risks and they benefited from the product and shouldalso be held liable for its dangers. The court tried to decide the case on a warning defect theory. The warning in this casewas not defect b/c the risks were not foreseeable to the manufacturer. The court in this case should have used a policyargument to hold the manufacturer liable. The manufacturer is in a better position to spread the cost and also it is notfair to impose liability on an innocent P.

P should have the right to show that the harm out weighs the benefits The risks can be reduced to the greatest extent possible without lessening the value of the product. The product is unsafe if the better warning is cheaper then the risk.

Note: (Latinism) Plaintiff attorney will always have a better warning. Given the vagueness of warnings themanufacturer should never be able to have a bad product design and fix them with a warning. Warnings are soineffective that the manufacturer should not be excused from making a product that is safe. A good warning is not anexcuse to protect companies from liability.

Warnings have different effects on different people, we are looking at the reasonably prudent person. There is no reallymeaningful or effective standard. Instructions or directions on how to use the products is also considered under warningdefects. Note: Virtually all design defect cases are warning cases.

Damages

(1) Compensatory damages – Compensate the injured P for the tortuous or illegal lost that was suffered. UseB<PL. If burden low, any chance would outweigh risk of printing another word, etc. If better warning could reduce therisk, then the cost of the warning is negligible; any additional safety outweighs the additional cost.(2) Punitive Damages (New Jersey Statute pg. 72). Intent is to punish bad behavior. Very few cases, compensatory damages are not needed for punitive damages. Statute does not tie the two damages togetherThere is a doctrine problem that knowledge of risk and leaving of risk in product is enough to warrant punitivedamages.No clear legal boundariesWe want to know of every riskMust remove some of them (balance the costs and risk to save $)

Two separate trials: Products liability tort suit for compensatory damages Then have another trial for punitive damages a. Prevents evidence of badness and wealth from going into first trial. b. In general awards are infrequent.

Behavior: D’s behavior was sufficiently bad that the jury would find that the words were descriptive of behavior(wanton/reckless/malicious; evil).

Gillham v. Admiral handout p. 99 Television sets that exploded into flames and injured P. The D Knew of the risk andleft it in knowing of the danger of fire. Here, the D had to pay punitive damages, even on appeal.

Grimshaw v. Ford Motor Co. p. 916 Pinto case: Knew of the risk and analyzed the cost of fixing the problem and decidedagainst it. Not a clear case of punitive damages. Cheaper to pay injured parties than to fix it. Here, there was also punitivedamages, but Latin, was not sure if this was right.

Note: This led to workers compensation. The employee gets a recovery from the pool if he is injured in a work-relatedcapacity. P cannot sue the employer so they sue others. If an employee injures a third party then the employee is liable.If an employee injures another employee, the injured employee can’t sue the employer, they must sue the other employee.(Fellow Servant Rule)

Note: Virtually all design defect cases are warning cases.

Latinism: In no cases are the medical risk found by the manufactures or FDA. Independent doctors, and scientist whosee a problem and mobilizes the medical or scientific community find the dangers. Manufactures spend time denyinginformation and not finding problems.

Meistrich v. Casino) p 350 Ice skating rink had duty (responsibility) to keep ice smooth, P exposed herself to the unevenice, although she knew it was not safe. Court decided to treat as secondary assumption of risk or comparativenegligence.

Feldman v. Lederle Labs (handout) Father, a pharmacist, gave daughter Declomycin for UR infection that cause teethto turn gray. No warning as to side effect. This case rejects Bashada's hindsight/imputing knowledge test and imposesa foreseeability test and a post-sale duty to warn. Court finds that defendant should have told plaintiffs aboutdiscoloring of teeth once they found out about it. The risk was not known when the infant first started taking themedication, but was later realized. Imposed a foreseeability requirement. Ridicules the notion of not being able to warnwhen there is no way to warn. Shreiber did not address the policy arguments that Bashada used. Manufacturer mustwarn about the risk that became known after the sale. An important and powerful holding. This is the post “duty towarn” doctrine.

Latinism – When product was marketed out the level was 10 by trial it was at 1000. What is the treatment when therisk was smaller (If risk is knowable, but actual risk turns out to be much higher).

Defendant’s Defenses to Warning Defects1. Open and Obvious Doctrine: Part of Rstmt 3rd: Manufacturer doesn't have to warn if something is open and obvious,as the extra words bog down important warnings.

2. Learned Intermediary Defense: Says that manufacturer owes a duty to reasonably inform the doctor or expert, butdoesn't have the responsibility to warn the user. It's a defense against inadequate warnings for drugs. Still accepted by2/3 of jurisdictions when it comes to over-the-counter drugs, but not prescription drugs. McDonald v. Ortho rejectedthe rule because birth control pills were marketed without full consultations. Not part of Restatement (Third).

3. State of the Art Defense: Defendant is required only required to warn of dangers that were or reasonably should havebeen know to him at the time of delivering the product. The supplier may defend against a strict liability action with thefact that the “state of the art” was no such that he should have known the danger. Rest 3rd the risks of unknowablerisks fall upon the Plaintiff. Negligence test-risk must be foreseeable.

Restatement (Third) Torts 2(b) p 749: Attempts to change by putting in “forseeability” language to convey adequateinformation and eliminate heeding presumption and oppose the “open & obvious” factor. It protects the “state of theart defense.” It takes a pro-defendant approach, but have not persuaded the courts by doing so since it is not Law andwritten by ALI. (Basically, it says no to the 2nd Test and Barker test and incorporates the consumer expectation test intotheir statement. This will take it back to “pure” negligence, because it loses hindsight and adds forseeability.)

O'Brien v. Muskin Corp handout #4 pg.176 Removed “State of the Art defense” (temporarily) in NJ. State of the Artevidence is implicitly included in the factors employed in the risk/utility analysis adopted in Cepeda. Court finds thatpool maker cannot use State of the Art defense to escape liability. Court allowed plaintiff to argue overall benefits/risksuperceded “State of the Art” defense, a controversial ruling because many products take this defense like cigarettes,alcohol, and certain chemicals.

Cepeda v. Cumberland Engineering Co: Plaintiff employee was injured using machine without safety guard. EstablishedRUB Test in NJ. The courts were not interested in an alternative product. The D used consumer expectation as a shield.The product did what was expected of it to do. They used the Wade factors and now it’s known as the Cepeda factors.

Suter v. San Angelo Foundry and Machine Company: Handout Plaintiff injured at work when hand gets caught in sheetmetal rolling machine. Court changed DCUD language to "fit, suitable, and safe for intended or foreseeable purposes." Also overrules Cepeda in holding that contributory negligence is a viable defense when an employee in an industrialsetting uses a machine in an intended or foreseeable manner.

Plaintiff's Line of Attacks

Post-Sale Duty to Warn: Manufacturer puts out warning even though there was no know risk at the time ofmanufacturing, but a risk later develops. Pro-consumer.

Causation in Warnings: The plaintiff has to show that a better warning would have made a difference for that particularplaintiff. See Campos v. Firestone: Court rules plaintiff would have stuck hand in cage even if graphical symbols warnedhim not to, as he had been injured before and ignored dangers.

Heeding Presumption: (p 820) If the manufacturer gave a defective warning, the jury can presume that the plaintiff wouldhave heeded a good warning if one had been given. This allows the plaintiff to get over the hump of causation. Createsa rebuttable presumption that the plaintiff would have followed the better warning. RST (Second) comment “j” rejectsthe heeding presumption. RST (Third) also rejects heeding presumption, but majority of jurisdictions continue to useit. Important in proving causation. Rebuttable presumption (by the D) that says that they would have done something different if the warningwas good. Restatement third rejects the heading presumption. N.J. and majority of jurisdictions use this.

To overcome heeding presumption in failure to warn cases involving a product in the workplace, the manufacturer mustprove that had an adequate warning been provide, the P-employee with meaningful choice would not have heeded thewarning. (Coffman v. Keene Corp.)

McDonald v. Ortho p. 805 Plaintiff suffers stroke from using birth control pills. Jury decides for plaintiff on grounds ifword "stroke" were on the package, it would have stopped her from using the pills.

Jackson v. Coast Paint & Lacquer Co. (p 818 note 5) P painting in an unventilated area. A/C inhaled the fumes into thekitchen where fumes came into contact w/ pilot light and fumes ignited. P proved D should have provided a betterwarning.

Risk Utility Balance – If this was used 100% of warning cases would win. The risk would be reduced to the greatestextent. Then any safety improvement would mean that it was not the best warning.

Legal ContinuumReasonable Best feasible warningRisk reduced to greatest extent

Note: Hindsight. Good for P. Based on the most recent information of risks known, but in negligence it is at the timethat the P was exposed to the product. Treatment of comparative negligence under strict liability (Products Liability).P’s Behavior/Effect on recovery. When P behavior voluntarily or unreasonably exposes themselves to knowndanger:

Contributory Negligence Comment N Daly (Majority) Suter (Minority)

ScopeAny unreasonable behaviorP voluntarily andunreasonably choseto encounter a knownrisk; must know of thedanger.

Any unreasonablebehaviorComment “N” Workplace injury notvoluntary, cannotfind comparativenegligence.EffectBar to recoveryBar to recovery(Lee case)ApportionmentCrashworthiness “pure”comparativenegligenceApportionment

Comment “N” Three requirements: Knowledge of the dangers; Unreasonable; Voluntary act and/or exposure;

Once all 3 requirements are met, then comparative negligence is met. New Jersey must meet “n” requirements, otherwise,no apportionment and D must pay all. See Suter (did not know he could start machine by bumping into it). Suterreversed Cepeda and applied “n” factors since D knew the hand-guard was not there and operated machine anyway. This was unreasonable. Must have trial to determine if requirements were met. Suter said act was voluntary in theemployment context. In O’Brien, “n” factor may apply since he voluntarily jumped into pool, which was unreasonable. Question is whether he knew risk. If so, he meets all factors.

Contracts 1. Express Warranties: When a manufacturer makes a specific claim that a product or some attributes of aproduct is safe. Expressed representation of safety.

The manufacturer should be held to the explicit representation. Courts have to draw the line between puffery and explicit representation.

In some jurisdictions consumer must have read and relied on the express warranty.

2. Implied Warranties: In the 1940’s the courts started using implied warranties. Implied habitability(landlord/tenant). If nothing is said regarding a warranty or an explicit statement to the contrary, an implied warranty ispresent. Many manufacturers now include disclaimers to protect themselves against the implied warranty.

Implied Warranty of Merchantability: Under UCC 2-314, every commercial seller warrants that the goods he sellsare of “fair average quality within the description” and “fit for the ordinary purposes for which such goods are used”unless this IWofM is clearly disclaimed or modified (must be reasonably safe, no forseeability required).

Implied Warranty of Fitness for a Particular Purpose: Under UCC 2-315, when a seller knows of the buyer’s

particular purpose for certain goods and that the buyer is relying on the seller’s skill or judgment to select a productappropriate for such needs, the seller impliedly warrants that the goods are fit for that use. This IWofF applies whetheror not made by a commercial distributor. The other issues are essentially the same as those applying to the UCC theories(fit for intended purpose).

Henningsen v. Bloomfield p.739 Landmark case in New Jersey Supreme Court implied warranty of habitability andfitness meaning that the product must be reasonably safe and making it disclaimer proof. Now the manufacturer isliable to buyer, and dealership or an expected user.

Privity of Contract

Should control of dangerousness of product be determined by agreements between parties v. society/legislature?

K Torts Privity Negligent PL (product liability)

Res Isp Loquitor- If it went wrong it was negligence.When a product malfunctions it is more likely than not the manufacture fault.

A powerful force for limiting the scope of potential liability. The only party that they are liable to are those who theyhave the contract with, since they bargained for it. (This was to promote business and entrepreneurial ventures)

Privity is dead for consumer contracts, But still enforced for commercial contractsWinterbottom v. Wright pg 719 Coach driver tries to sue manufacture, can’t sue employer or the Post MasterGeneral. The manufacturer has no liability due to privity of contract.

The government cannot be sued unless it allows it. It is rationalized because people should not be allowed to sue thegovernment since its money comes from the people.There is an agreement that the coach would be in good condition and the P is arguing that it was not in goodcondition and did not live up to the standards agreed upon.

McPherson v. Buick Motor Co. Wheel spoke crumbles, D did not manufacture product, but failed to inspect.

Fundamental difference between full negligence and strict liability – As of what time you consider differentproperties, when the manufacturer puts the product in the stream of commerce or at trial.

Wrongful Death CasesTwo Views: 1. No recovery for lost opportunity unless it was probable that “but for” D’s negligence P would have lived;this is a 50% or greater probability. P can recover 100% 2. P can recover for lost chance/opportunity, if the loss of chance was a substantial factor; that is 49% orlower. P only recovers his lost chance 37.5%

Miscellaneous

MODE OF OPERATION Owner assumes responsibility for customers who dropped something on the, floor and an accident is caused. Plaintiff doesn’t need to show actual or constructive notice if store owner could anticipate.

GOOD SAMARITAN SITUATIONSGeneral Rule: there is no duty to act affirmatively for the benefit of another; law will distinguish betweennonfeasance (there was a duty and you failed to act) and misfeasance (there was a duty to act, but you did it wrong)malfeasance (you just do the wrong, regardless of duty, you are not legally obligated to be a Good Samaritan, unlessthere is a statute, i.e., Vermont GS statute; there are more, but you don’t have to know them).

Why Good Samaritan is not universal? 1. It is impossible to enforce2. Political Argument- gov’t should not interfere with personal autonomy3. Helping out someone is the RIGHT thing to do as compassionate human beings

OBLIGATIONS TO OTHERS1. When there is a Special Relationship (as in innkeepers/guests and carrier/passengers-these types are ahybrid w/contractual duty, b/c/ there was a money exchange). See Harper v. Herman(guy dove off a boat and hit his head on lake bed. He was invited by another person, not the ship captain)RULE: no duty [to warn] unless there is a special relationship.

2. When there is Contractual Duty. Where there is reliance or elements of consideration, a K relationship existsso as to legally impose a duty to act or prevent harm. Strauss v. Belle Realty See also Moch Warehousev. Rensselaer Water Co. (guy slipped on common area stairs during a blackout, and sued Elec. Co.) RULE: Elec. Co. owedduty to landlord and not the tenant. To find for the tenant would allow unlimited liability for accidents during blackout.

3. When there is an Assumption of aid/risk on a social venture. See Farwell v. Keaton (guy was beat up whenhe and his friend hit on some girls; his friend put an ice pack on him and dumped him off at his grandmother’s house.RULE: if one voluntarily starts to assist another, the person voluntarily enters into a relationship and is thus responsiblefor a failure to provide reasonable care [not extraordinary ER kind of stuff]

Restatement, 2nd § 325: If you voluntarily aid someone, you can’t leave that person in a worse condition priorto your aid.

FIREFIGHTER RULE: Civil servants, i.e. police, fireman, etc, cannot recover injuries suffered on the job evolved fromthe line of thought that public servants are licensees and took the property as they found it to today, here they assumethe risks that come with the job. Policy dictates that they should not be compensated for hazards that create aneed for their service b/c they are hired for that purpose. See Zanghi v. Niagra Frontier Trans (Police man slips andfalls on a steel plate as he was attempting to reach a picketer packing a snowball.) RULE: officer was in the line of duty;no recovery, it was part of his job.

OBLIGATION TO CONTROL CONDUCT OF OTHERSThere is a duty to warn [or to take reasonable action to prevent the danger, like calling the police] once a personknows or should know that his patient presents a real danger to a 3rd party. See Tarasoff v. Regents of the Universityof California There was a duty to warn, in addition the 3rd party was foreseeable and identifiable.

Arguments against disclosure of danger 1. Warning may give rise to arrest under false pretense; 2. Warning victim can cause personal adverse effects;

3. Breach of confidentiality can harm doctor/patient relationship; 4. Difficulty in predicting violent tendencies and possible harm - advice does not equal reasonable control;Conboy v. Mogeloff. Duty to warn to also extended to non-medical relationship;

See Vince v. Wilson (harm to people also counts); Pamela v. Farmer (grand aunt bought a car for nephew, but nephewwas a bad driver, criminal, and drug addict; he eventually was injured in the car).

RULE: person who supplies a chattel is liable if he knew or has reason to know of impending dangers due toinexperience, youth, or otherwise incompetence; negligent entrustment doctrine: negligent in entrusting the car withsomeone who negligently operates the car. If alcohol is served, there may be liability (Kelly v. Ginwell).

BYSTANDER CLAIM - EMOTIONAL HARM 1. No zone of danger required but must meet Portee/Dillon Test. See Portee v. Jaffee 2. There was a death or serious bodily injury caused by negligence 3. P was in near perception of accident [seeing it on TV doesn’t count] 4. There must be a close relationship to the victim (sometimes extended but close family members are OK, i.e.in Hawaii) 5. There must be a shock (physical manifestation) resulting from witnessing the accident

Portee v. Jaffee (a mother watched her trapped son get crushed by an elevator; she later sought psychiatric counseling.)

Social Policy Arguments in Detail: 1. Deterrence or preventative Imposing liability for risky behavior; 2. Loss spreading/compensation (spreading the cost of an accident throughout the entire business) a. Enterprise liability – costs of accident should be spread out through the entire business. b. Raising costs to cover insurance. 3. Reduce Transaction/administrative costs.Rand Agency Investigation (asbestos case). They determined that for every $1 spent, only $0.37 wasreaching the plaintiff and the other $0.63 was being consumed by transaction costs. 4. Fairness Always try and turn this around. If it can be done, the argument is not successful. 5. Retribution (as punishment for bad actions or behavior) Ford Pinto case. 6. Information access

a. Persons with more access to information should be more liable than those who do not have access.b. Subcategory of deterrence or fairness (baseball stadium/statistics as to injuries depending uponwhere you sit-statistics). Justice a. Coherence: Understanding outcome of the case law;b. Consistency: Like cases should be treated alike;c. Predictability: People should be able to make judgments based on liability of risk taken; Judicial administerability d. The court must be able to enforce.