Torts Outline: Professor Nolan


Professor Nolan, Spring 2006


I. Introduction

A.    Tort Law and Litigation

1.      Definition: A tort is conduct that amounts to a legal wrong, and that causes harm for which courts will impose civil liability.  Much of formal tort law is an attempt to define what counts as a legal wrong in particular settings.

a)      Some torts are also crimes, but tort law is not concerned with the separate issue of criminal responsibility.

2.      Rule-Based Arguments

a)      Social policy

b)      Deterrence

c)      Compensation

d)     Cost allocation

(1)   Responsibility

(2)   Fractionating losses

(3)   Economic efficiency

(4)   Distribution

3.      Moral Arguments

a)      “As between two innocents, he who caused the harm should pay” vs. “liability w/o fault offends the sense of justice”

b)      Altruism vs. self-reliance

c)      Uphold communal values and expectations vs. protect individual liberty and the letter of the law

d)     Look to substance rather than form vs. rely on legal formalities

4.      Rights Arguments

a)      Institutional competence

b)      Administration of justice (rules vs. flexibility)

c)      Slippery slope

B.     Categories of Torts

1.      Unintentional Tort – not the intent to act, but the intent to harm (vast bulk of torts)

a)      Negligence

(1)   Conduct that creates or fails to avoid unreasonable risks of foreseeable harm to others.

(2)   Hammontree v. Jenner – Injured Bike Shop Owner v. Epileptic Driver (1971)

(a)   An epileptic suffered a seizure while driving his car and crashed through the wall of a bike shop, damaging the shop and injuring the shop owner. RULE: The liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time must rest on principles of negligence, and not absolute liability.

b)      Strict liability

(1)   Does not require a wrongful act (products, ultra-hazardous activities)

(2)   Actor responsible regardless of the precautions he took to prevent the harm

(3)   Most cited concurrence of all time - Note Case: Escola v. Coca Cola Bottling Co. (1944)

(a)    TRAYNOR’S concurrence is the most often cited concurring opinion of all time: “Public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.”

2.      Intentional Tort – actor does have intent to harm (battery/ assault)

C.    Contemporary Damages Issues

1.      Compensatory Damages

a)      Fundamental goal of damage awards in unintentional torts area is to return the P as closely as possible to his or her condition before the accident

(1)   Damages are theoretically to compensate fully for both amount and duration of loss.

b)      Single-judgment approach: P has one shot at it and has to include all of the damages; judgment will reflect past and future sufferings; non-pecuniary and pecuniary

c)      Seffert v. Los Angeles Transit Lines – Lady with the Mangled Foot (1961)

(1)   A bus passenger who was permanently and severely injured when the bus dragged her for several blocks while her arm and foot were caught in the door was awarded a large amount for pain and suffering. RULE: A reviewing court may not interfere with an award of damages unless the verdict is so large it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.

(2)   TRAYNOR dissents: Thinks this is an example of an excessive award for pain and suffering, indicating passion, prejudice, whim or caprice on part of jury.  He is concerned that awarding large awards to individual plaintiffs are going to be too excessive as to sustain the system.  As number of injured parties can recover goes up and then the system gets too heavy that the awards cannot be distributed because the cost trickles down to the consumers, so it becomes too expensive to get (car insurance, medical insurance, etc.) and therefore they won’t get insurance and then loss distribution goal is not achieved.


1.      Spectrum of Risk:

a)      Unavoidable accident:  Risk unforeseeable and harm not avoidable by an exercise of reasonable care.

b)      Negligence:  Conduct that creates foreseeable risk to a reasonable person’s standard

c)      Recklessness:  Conscious disregard of a high degree of probability that harm will occur.

d)     Intentional tort:  The desire to bring about certain consequences that result in harm.

(1)   Intent:  Purpose or desire to create consequences or substantial certainty in the mind of the actor that those consequences will occur

(2)   Intent is a state of mind about consequences of an act.

(3)   Motive:  Motive is also a state of mind or reasons for desiring the consequences.  Although motive is relevant in torts, it is not relevant to establishing intent.

(4)   Transferred Intent Doctrine: If the actor acts with the desire to bring about an intentional tort and accomplishes that act, the intent with which he acts is transferred.

(a)    Example: D attempts to shoot P1 but misses and hits P2. Courts will transfer the intent to shoot P1 over to intent to shoot P2.

(b)   If D believed that P1 was going to kill him and responded with force, there would be no transferred intent because it would be self-defense.

(c)    Key here is not the intent to harm, but the intent to violate the legally protected interest.

2.      Basic Doctrine

a)      To prove intent:

(1)   Prove action was taken.

(2)   Prove D was substantially certain outcome would occur.

(a)    This is done by proving that an ORP would know and proving that D is an ORP. If this cannot be proved, it is negligence.

3.      Assault

a)      Definition: A physical act of a threatening nature or an offer of corporal injury that puts an individual in reasonable fear of imminent bodily harm.

b)      Elements of Assault

(1)   Volitional act

(a)    Ordinarily, words alone don’t constitute an assault (usually requires an overt act, because ordinarily, words don’t place in apprehension)

(2)   Intent

(a)    If one acts with desire or knowledge that either apprehension or contact will occur, it satisfies intent

(3)   Apprehension of imminent contact (harmful of offensive)

(a)    Actor must have apparent present ability

(i)                 A points a gun at B and says “Your money or your life.” The fact that the gun is empty has no bearing on A’s apparent present ability.

(b)   Apprehension must occur at the time of conduct.

(c)    Apprehension must be type of fear a reasonable person would normally experience from such an incident a prima facie case of assault

(4)   Imminent

(a)    Doesn’t include threats of future conduct

(5)   Contact

(a)    The fear can be from another source (i.e., fake snake)

(6)   Awareness

(a)    Victim must be aware of offer to touch to attain the state of mind of apprehension.

(b)   This is different than battery because here awareness is key.

c)      The interest being protected here is the interest in being free from the state of mind of apprehension of imminent contact that is harmful or offensive.

4.      Battery

a)      Definition: Intentional infliction of a harmful or offensive bodily contact upon another

b)      Elements of Battery

(1)   Volitional Act (outward manifestation of will)

(a)    Act done with intent – desire or purpose or knowledge with substantial certainty that result will follow

(2)   Contact (direct or indirect)

(a)    Battery can occur even when there is no intentional and offensive touching when a person has knowledge to a substantial certainty that offensive contact or bodily harm will result from a certain action

(3)   Offensive

(a)    "A bodily contact is offensive if it offends a reasonable sense of personal dignity."

(4)   Bodily harm

(a)    "Any physical impairment of the condition of another's body, pain, or illness."

(b)   Physical impairment is further defined as "any alteration in the structure or function of the body, even if no other injury occurs."  

(c)    Even removing a mole could be considered battery if the other criteria are met.

(d)   Extends to items connected to person (i.e., dog leash or camera).

(5)   Awareness

(a)    No need to establish if victim was aware of contact.

(6)   Lack of consent (may be implied) 

(a)    If the actor believes the victim has consented when he or she has in fact not, most jurisdictions will consider whether the actor relied upon factual information that would have led a reasonable person to believe that there was consent to the touching. If so, then consent will be established.

c)      The interest being protected here is the interest in being free from harmful or offensive contact.

d)     Garratt v. Dailey – Five Year Old Chair Thief (1955)

(1)   A woman brought suit against a young boy when she was injured in a fall that resulted from his pulling a chair out from underneath her. RULE:  When a person has knowledge to a substantial certainty that harmful or offensive contact will result from a certain action, a battery occurs if that action is taken, even if there is no intent to cause harm to another.

(2)   It is either desire/purpose or substantial certainty and both tests must be applied in order to determine intent.

e)      Picard v, Barry Pontiac-Buick, Inc. – Case of the Camera-Poking Mechanic (1995)

(1)   After P took a picture of Barry Pontiac-Buick, Inc’s service worker (D) inspecting her brakes, he became angry, moved towards her, put his finger on the camera she was holding and said, “Who gave you permission to take my picture?” RULE: Assault: Requires an act that puts a person in reasonable fear of imminent bodily harm. Battery: Occurs when a person intentionally causes an offensive bodily contact with another person, which includes contact with an object connected with that person.

5.      False Imprisonment

a)      Elements

(1)   Volitional act or failure to act

(2)   Intent to confine

(3)   Confinement

(a)    May occur by:

(i)                 Actual or apparent physical barriers

(ii)               Overpowering physical force, or by submission to physical force

(iii)             Other duress

(iv)             Asserted legal authority

(v)               Physical restraint/barriers (restraint must be against victim’s will), threat of force or duress

(vi)             Does not exist if victim has a reasonable means of escape (without risk of injury to the victim) for any appreciable amount of time

(4)   Knowledge of confinement or physical harm caused by confinement

(a)    Must be awareness of confinement (i.e.:  boy locked in room sleeping all childhood who was never aware would not be falsely imprisoned), unless there is a physical harm as a result of confinement

(b)   Brainwashing might be an exception

(5)   Lack of consent

b)      The interest being protected here is the interest in freedom from restricted/restrained movement.

c)      Lopez v. Winchell’s Donut House – Doughnut Lady who Wanted to Save Her Reputation (1984)

(1)   P was accused her of selling doughnuts without registering the sales and pocketing the money. She was questioned in a room with the door latched, but was not prevented from leaving. Lopez remained in the room and protested to try to clear her reputation. RULE: False imprisonment requires confinement against a person’s will, which may be effected by physical force, a threat of force, or the assertion of authority, but not by moral pressure or a threat of future action.

d)     Can’t be falsely imprisoned in whole country - Note Case: Shen v. Leo A. Daly Co. (2000)

(1)   “It is difficult to define exactly how close the level of restraint must be, in this case the country of Taiwan is clearly too great an area within which to be falsely imprisoned.”

6.      Intentional Infliction of Emotional Distress

a)      Elements

(1)   Extreme or Outrageous Conduct

(a)    Conduct that offends against generally accepted standard of decency and morality

(b)   Actor knows of and exploits peculiarity or sensitivity on part of victim.

(c)    Abusive position of authority that gives actor actual or apparent ability to affect

(d)   Threats directed at third parties in the presence of the victim can constitute a situation for IIED.

(e)    Insulting or wounding behavior doesn’t count

(f)    No requirement of physical injury from emotional harm.

(2)   Intent or recklessness

(a)    Recklessness: Conscious disregard for a high degree of probability that emotional distress will result.

(3)   Injury in the form of severe emotional distress (distress that no reasonable person can be expected to endure)

(a)    The courts look to duration of the suffering and the intensity/severity of the emotional distress, which can be proven by bringing in medical professionals, associates of the victim, etc.

(b)   No protection for wounded feelings or from insulting language/behavior

(c)    Must be a causal connection between wrongdoer’s conduct and emotional distress.

b)      The interest being protected in the interest in being free from severe emotional distress caused by intentional or reckless conduct that is extreme and outrageous.

c)      The emotionally distressed waste removal specialist - Supplement: State Rubbish Collectors Association v. Siliznoff (1952)

(1)   TRAYNOR: “a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault”

E.     Defenses to Intentional Torts: Self-Defense

1.      Self defense by the use of deadly force is justified when one reasonably believes that one’s life is placed in jeopardy.

a)      Deadly force can be met with deadly force.

b)      Deadly force may never be used to protect property alone.

2.      Duty to retreat if outside the home, except in home & in some western states.

3.      Privilege of self-defense ends once threat ends: passing danger.

4.      2 Fold Inquiry:

a)      Do circumstances give rise to reasonable belief that the use of a self-defending force?

b)      Was the amount of force used reasonable?

5.      Courvoisier v. Raymond – Sorry Officer, I Thought You Were Someone Else (1896)

a)      After being attacked by rioters and unsuccessfully trying to scare them away, P saw D approach him, mistakenly believed he was a rioter, and, fearing for his life, shot him. RULE: A person is privileged to act in self-defense if the surrounding circumstances would lead a reasonable man to believe that he was in danger of losing his life or receiving great bodily harm, and the person does so believe.

II. The Negligence Principle

A.    Historical Development of Fault Liability

1.      Brown v. Kendall – Get Your Dog Off My Dog Or I’ll Put Your Eye Out ~ OOPS, I was only kidding! (1850)

a)      The defendant accidentally hit the plaintiff in the eye with a stick as he was trying to separate two fighting dogs. The state of the law at the time of this case was such that the plaintiff merely had to show that he suffered an injury from the conduct of the defendant. The defendant, in order to avoid liability for this injury, must have shown that he was using “extraordinary care” for a necessary act (burden was on defendant to prove this). RULE:  With this decision, court now says that the burden shifts to the plaintiff to prove not only that defendant's conduct caused his injury, but now also that defendant failed to exercise "ordinary care."

(1)   Ordinary care”: That kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. 

B.     Negligence Defined

1.      Definition: Conduct that creates unreasonable risk of harm to others or falls below the standard established by law for the protection of others.

2.      Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.

3.      Elements

a)      Duty to exercise reasonable care

(1)   If negligence is conduct that creates an unreasonable risk of harm to others, how do we sort out if risk is unreasonable?  (Cardozo found this to be a question for the jury.)

(a)   Foreseeability of risk

(b)   Probability of harm

(c)    Gravity of harm

(d)   balanced against

(e)    Burdens of Avoidance

(i)                 What could be done to make risk less?  Eliminate, reduce?

b)      Breach of that duty

c)      Causal connection between act and injury

(1)   Cause in fact OR

(2)   Proximate cause (legal cause)

d)     Actual loss or damage resulting to the interests of another

(1)   A question of whether or not conduct is negligent involves balancing foreseeable risk of harm (the likelihood of harm occurring) and the cost, probability and foreseeability of injury. When the magnitude of the risk exceeds the burdens of avoidance, we call this unreasonable risk.

C.    The Standard of Care

1.      Unreasonable Risk of Harm

a)      Generally, P must show that D’s conduct imposed an unreasonable risk of harm on P

(1)   It is not enough for P to show that D’s conduct resulted in a terrible injury. P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm.

b)      Adams v. Bullock – Trolley Wire Electrocutes Dummy Swinging Wire Overhead (CARDOZO) (1919)

(1)   A child was shocked and burned when a wire he was swinging over the side of a bridge contacted the trolley wire running below. RULE: Ordinary caution does not involve forethought of extraordinary peril.

(2)   No accident like that had happened before, and no custom had been ignored.

c)      Risk must be foreseeable- NOTE CASE: Braun v. Buffalo Gen. El. Co. (CARDOZO) (1911)

(1)   Cardozo puts it to jury to determine if reasonable to foresee if wires could cause injury. Distinguished because burden in Braun is not unreasonable.  The risk is foreseeable and the burden is less because electricity can be insulated. Trolley wires cannot.

d)     Court will look at burden of avoidance on P’s part - NOTE CASE: Green v. Sibley, Lindsay & Curr Co. (1931) (CARDOZO)

(1)   Woman in store tripped on mechanic’s foot, but failed to establish negligence on mechanic’s part. The court held that it was careless personal behavior because the burden of avoidance was low but not nonexistent.

2.      Balancing/Magnitude of Risk

a)      Test:

(1)   When the magnitude of the risk exceeds the burden to avoid the risk = negligence

(2)   When the magnitude of the risk is less than the burden to avoid the risk = not negligence      

b)      US Carroll Towing (LEARNED HAND FORMULA) – Missing Bargee Contributed to Negligence (1947)

(1)   A barge, without a bargee on board, broke adrift was carried by wind into a tanker whose propeller broke a hole in barge’s bottom, and barge sank. RULE: Without a reasonable excuse, a barge owner’s failure to take reasonable steps to prevent damages should the barge break from her moorings is negligence.

(2)   Purpose:  To assess if the risk is unreasonable

(3)   Formula: 

(a)   Negligence = PL > B

(b)   P: the probability the injury will occur

(c)    L: the gravity of resulting injury

(d)   B: burden of adequate precautions

c)      Must lessen danger whenever feasible - NOTE CASE: Burlington & Quincy R. Co v. Krayenbuhl (1902)

(1)   Even when benefit of use greatly outweighs danger, there is still a duty to lessen danger whenever feasible, especially if lessening danger is as simple as using a lock.

d)     Posner slams Hand formula as being unrealistic and difficult to use - NOTE CASE: McCarty v. Pheasant Run (POSNER) (1987)

(1)   Hand Formula is not as easy to use in every case, where information is often missing, so Posner says juries have to use intuition when determining what is reasonable. So long as their judgment is reasonable, the trial judge has no right to set it aside, let alone substitute his own judgment.

D.    The Ordinary Reasonable Person (ORP)

1.      Objective Standard: Would a “reasonable person of ordinary prudence,” in D’s position, do as D did?

2.      Reasonable Person Standard

a)      An abstract, hypothetical person (an ideal) who embodies community sentiments concerning what constitutes reasonable conduct.

b)      Only represents the general average of the community.

c)      General practice does not necessarily reflect what is careful - standard represents general level of moral judgment of the community (in practice, the two would often come to the same thing).

d)     Any shortcomings to this reasonable person embody the normal standard of community behavior.

e)      Behavior has to conform to the community norm.

f)       The standard is external and objective.

g)      Does not take into account subjective qualities of the person at issue (not making judgment on someone’s moral state).

h)      NOTE: Holmes- Says that don’t have to give up individual characteristics but these are given up when you injure another person.  He does not care about the moral character, he only cares about if the act is unintentional and reasonable, because if so, there will be no liability.

3.      Standard will be subjectivized under certain circumstances:

a)      Physical and mental characteristics: The question is whether D behaved reasonably under the circumstances. The circumstances generally include the physical characteristics of D himself.

(1)   Physical disability: If D has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done.

(a)    Policy rationale: Physical disabilities are easier to determine and be sure of.

(b)   Impaired control not sufficient – must be complete loss of control - Note Case - Roberts v. Ramsbottom (1979): 73-year-old man suffered a stroke a few minutes before going for a drive. He had no previous warning or symptoms, and although his consciousness was impaired he was in sufficient possession of his facilities to be able to drive. This came out differently than Hammontree v. Jenner because in this case, he was not rendered unconscious. The court held that the actions must be wholly beyond control to allow a person to escape liability. Impaired control is not sufficient.

(2)   Mental characteristics: The ORP is NOT deemed to have the particular mental characteristics of D.

(a)    Policy rationale: Courts don’t like to apply this exception because it is too easily feigned, too difficult to draw lines between deficiencies and other variations, and it lets mentally ill people get off too easily for damage they cause.

(b)   Crazy people can be held liable NOTE CASE: Bashi v. Wodarz – Sudden Mental Defect (1996) - D “wigged out” while driving. Court granted summary judgment for D. District Court said that a driver stricken by illness rendering driver unconscious is not chargeable with negligence. The Court of Appeals reversed trial decision, stating that mental deficiency does not relieve the actor from negligence.

(3)   Intoxication is no defense.

b)      Children: A child is held to the level of conduct of a reasonable person of that age and experience, not of an adult.

(1)   However, if a child engages in a potentially dangerous activity normally pursued only by adults, he will be held to the standard of care that a reasonable adult doing that activity would exercise.

(a)    Four year old NOT liable- NOTE CASE: Ellis v. D’Angelo (1953)- ‘Court found that the mental development of a 4 year old had not developed the mental capacity for foreseeing the possibilities of their inadvertent conduct.”

(b)   12 yr old driving a motor boat IS liable- NOTE CASE: Dellwo v. Pearson (1961)- “It would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others.”

(c)    17 yr old NOT liable when skiing- NOTE CASE: Goss v. Allen (1976)- The skier was not found liable because skiing was an activity for persons of all ages and did not qualify as an activity for which minors should be held to an adult standard.

(d)   14 yr old IS liable when driving during driver’s education- NOTE CASE: Stevens v. Veenstra (1997)- Held to an adult standard even though the education class was a minor-oriented activity it should not be judged by the adult standard.  “When the probability of, or potential harm associated with, a particular activity is great, anyone engaged in the activity must be held to a certain minimum level of competence, even though that level may lie beyond the capability of a beginner.”

c)      Special Skills/Knowledge: If D has a special knowledge of the situation or a higher degree of knowledge, skill, or experience than ORP, D must use that knowledge.

d)     Custom: Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care. However, this evidence is generally not conclusive.

(1)   Evidence by D (Shield): Thus where D shows that everyone else in the industry does things the way D did, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent.

(2)   Evidence by P (Sword): Conversely, proof offered by P that others in D’s industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent.

e)      Emergencies: If D is confronted with an emergency, and is forced to act with little time for reflection, D must merely behave as a reasonable person would if confronted with the same emergency, not as a reasonable person with plenty of time to think.

f)       Being held to a subjectivized standard doesn't automatically mean that the person will or will not be held liable.

E.     The Roles of Judge and Jury

1.      Judge decides law: The judge decides all questions of law. Most importantly, the judge decides whether reasonable people could differ as to what the facts of the case are; if they could not, he will direct a verdict.

2.      Jury decides facts: The jury is the finder of the facts. In a negligence case (assuming the judge does not direct a full or partial verdict), the jury decides:

a)      What really happened; and

b)      Whether D breached his duty to P in a way that proximately caused P’s injuries

c)      This means it is the jury that usually decides whether D’s conduct satisfied the ORP standard.

d)     Baltimore & Ohio Railroad Co. v. Goodman – Stop, Get Out, Look, Listen (HOLMES) (1927)

(1)   A man was hit and killed by a train as he crossed the tracks in his truck. RULE: If a driver crossing a railroad track relies upon not hearing a train or any signal, and takes no further precaution he does so at his own risk and will be responsible for his actions.

(2)   Note: Almost a half century before Goodman, Holmes stated his position on the role of jury in negligence cases in The Common Law:

(a)    The jury decides when the judge has no clear view of public policy and is not possessed of sufficient practical experience to lay down rule intelligently

e)      Pokora v. Wabash Railway Co. – Okay, “Stop, Get Out, Look, Listen” was a Dumb Rule (CARDOZO) (1934)

(1)   A train hit a man as he crossed the railroad tracks because other train cars blocked his vision of the tracks. RULE: The question was for the jury whether reasonable caution forbade the driver from going forward across the tracks in reliance on the sense of hearing, unaided by that of sight.  Goodman’s standard of getting out of the car is uncommon and sometimes dangerous, futile even and its judgment is limited accordingly. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal.

f)       Andrews v. United Airlines, Inc. – Look Out Below! Falling Luggage! (1994)

(1)   A woman was injured when a briefcase fell on her from the overhead compartment of an airplane. RULE: Since a jury could make a rational decision either way on the record presented, summary judgment is inappropriate.

F.     The Role of Custom

1.      Definition: Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care. However, this evidence is generally not conclusive.

a)      Evidence by D (Shield): Thus where D shows that everyone else in the industry does things the way D did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent.

b)      Evidence by P (Sword): Conversely, proof offered by P that others in D’s industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent.

2.      Industry does not set its own standard of due care (except medical industry)

3.      Trimarco v. Klein – Guy Who Fell Through Glass Shower Doors From Another Era ~ Ouch! (1982)

a)      A man was badly cut in the defendant’s apartment building when he fell through a glass shower door that was not made of shatterproof glass, as was the custom. RULE: If a common practice or customary usage is reasonable but ignored, and ignoring it is a proximate cause of the accident, it may serve to establish liability.

b)      Evidence of custom and usage by others engaged in the same business is admissible as bearing on what is reasonable conduct under all the circumstances, which is the quintessential test of negligence, as long as the custom is reasonable.

G.    The Role of Statutes

1.      Rule of Law: Standard of conduct laid down by a judge.

2.      The statute sets the standard of care of what an ORP would do under the circumstances and the jury no longer decides whether there was a breach of that standard of care because that was settled.

a)      What still has to be proven is that the breach of statute was the cause of the injury in the lawsuit.

3.      When does a court use a statute, generally speaking?

a)      When the court finds that plaintiff is within the class of persons intended to be protected by the statute; and

b)      When the harm that occurred is the type that the statute was intended to prevent.

c)      If these two criteria are met, then the court MAY accept the statute as a civil standard.

4.      Negligence per se: Most courts apply the “negligence per se” doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is “negligence per se” and conclusively establishes that D was negligent.

5.      Martin v. Herzog – Driving Buggy Without Lights ~ OOPS!(CARDOZO) (1920)

a)      The Martins were driving a buggy without lights at night when they were struck by Herzog’s automobile, which was traveling on the wrong side of the road. RULE: The unexcused omission of statutory signals is negligence in itself. Jurors have no right to ignore statutory laws.

6.      Judge decides if statute sets standard and limits on criminal liability do not equal limits on civil liability - NOTE CASE: Clinkscales v. Carver (1943)(TRAYNOR)

a)      D ran through stop sign and crashed into P, D says that since the stop sign was erected under an ordinance that was not properly published he could not be punished criminally (nor under the civil system) for his action. However, limits on criminal liability do not necessarily apply to civil liabilityThe decision rests with the court. It becomes the duty of the judge to determine if the statute sets the standard for ORPP under the circumstances.

7.      Tedla v. Ellman – Junk Collectors on the Wrong Side of the Street (1939)

a)      A car hit two pedestrians from behind as they walked along the side of the roadway on the incorrect side (as defined by statute) of the route. RULE: Where a statutory general rule of conduct fixes no definite standard of care, but merely codifies or supplements a common law rule, which has been subject to exception; or where the statute is intended to promote public convenience or safety, then in the absence of clear language to the contrary, it is not negligence as a matter of law for one to violate the statute, if by so doing he is likely to prevent--rather than cause--the accident which it is the purpose of the statute to avoid. 

8.      Excuse to break statute

a)      D was unaware of the factual circumstances that made the statute applicable

b)      D made a reasonable and diligent attempt to comply

c)      The violation was due to the confusing way the requirements of the statute were presented to the public

d)     Compliance would have involved a greater risk of harm

e)      There were physical circumstances beyond D’s control

f)       Pure emergency situation, not of D’s making

9.      Rules of the Road v. Safety Statute

a)      Rule of the Road

(1)   Provides pedestrians and vehicles with rule of how they and others should proceed under the circumstances.

(a)   Tedla Statute

(2)   Don’t always have to follow if following it is more dangerous. Following a rule of the road at all times may produce results that violate the actual purpose of the statute.

b)      Safety Statute

(1)   Prescribes additional safeguards to protect the lives and limbs of others

(a)   Martin Statute

(2)   It is never more dangerous to comply with a safety statute. 

10.  Hazard must be one Legislature sought to protect against - NOTE CASE: De Haen v. Rockwood Sprinkler Co. – Falling Radiators (CARDOZO) (1932)

a)       “The hazard out of which the accident ensued must have been the particular hazard or class of hazards that the statutory safeguard in the thought and purpose of the Legislature was intended to correct.” 

11.  Hazard must be one Legislature sought to protect against - NOTE CASE: Gorris v. Scott – Man…Er, Sheep Overboard! (1874)

a)      Statute requiring ship to build pens to keep sheep separated to prevent people from getting sheep flu was violated and during the voyage, sheep were washed overboard. However, the owner of the sheep was not able to win in court because the "damage is of such a nature as was not contemplated at all by the statute, and as to which it was not intended to confer any benefit on the plaintiffs."

12.  Tort cases are intensely fact dependent and the slightest variation on the facts can lead to completely different decisions. Judges have the option of setting rules of law.

a)      When the highest court in a state sets a rule, that case should be followed in lower courts in that state.

b)      To the extent that a judge uses a statute to set the standard, the cases does not have to be followed in lower courts in the state.

c)      Compliance with the statute is not equal to due care. It is evidence, but not conclusive.

III.Proof of Negligence

A.    Constructive Notice

1.      Elements

a)      Visible and apparent

b)      Exist for sufficient amount of time to allow for management to discover and clean up in the exercise of due care.

(1)   Focus on the specific item – not on the general condition of the store.  Evidence of safety or danger in the past is not relevant.

(2)   Condition of item and inference that it was around long enough to be noticed and in the exercise of due care should have been cleaned up.    

B.     Mode of Operations/Business Practice Rule

1.      Elements

a)      Focus is not on specific item, but rather on the mode of operation (i.e., self-service, open bins) chosen by D.

b)      P not required to prove actual or constructive notice

c)      P need only show that business practice creates reasonably foreseeable risk of harm

d)     Proprietor then has duty to use reasonable measures to discover and remove dangers that come with the method of business used

2.      Rationale: By choosing a self-service operation, owner agreed to assume responsibility for the conduct of customers who drop items on the floor.  

C.    Negri Case v. Gordon Case

1.      Negri v. Stop & Shop  -Lady Who Slipped on Nasty Baby Food (1985)

a)      Negri slipped and fell in a grocery store on broken and spilled jars of baby food that the store had failed to clean up. RULE: Plaintiff may make out a prima facie case of negligence by presenting circumstantial evidence that defendant had constructive notice of a dangerous condition which allegedly caused injury to its customers and did not remedy the condition.

2.      Gordon v. American Museum of Natural History – Dude who slipped on pristine wax paper (1986)

a)      A man sued and slipped after he slipped and fell on a piece of paper, which he claims came from a Museum concession stand. RULE: To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it.

3.      Blackened banana peel did not establish constructive notice - NOTE CASES: Faricelli v. TSS Seedman’s (1999)

a)      Fact that banana peel was blackened was not enough for constructive notice.

4.      Cannot admit evidence of prior accident free workplace as defense- NOTE CASE: Moody v. Haymarket Associates (1999)

a)      To determine if evidence is relevant: On the basis of whether there is a substantial similarity in the operative circumstances between the proffer and the case at bar and whether the evidence is probative on a material issue in the case. The court “must then consider whether the probative value of such evidence is substantially outweighed by the countervailing considerations [of the state’s evidence code], “ that is, the danger of unfair prejudice, confusion of the issue, or undue delay.

5.      Look to mode of operation, not events surrounding P’s accident - NOTE CASE: Chiara v. Fry’s (1987)

a)      Court stated a rule that "looks to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise. Jury then decides whether business had exercised reasonable care under the circumstances.

6.      Self-service rule applies to produce, not all self-service areas- NOTE CASE: Randall v. K-Mart Corp. (1998)

a)      Plaintiff slipped on loose birdseed in an aisle and since she was unable to establish constructive notice, he sought to invoke the business practices exception, trying to use a 1970 case that involved a plaintiff slipping on a banana peel in the produce section of a supermarket and an Arizona case about crème-rinse. Randall claimed that Kmart's self-service method of selling merchandise relieved him of the burden of showing how long the birdseed was on the floor. He was not successful because the court said the business practice exception was created to address self-service in produce (even though it had been broadened considerably), and to allow Randall's argument would subject every retailer to the exception and the exception would become the rule.

7.      P has burden to prove constructive notice, but evidence of failure to inspect premises within reasonable amount of time may be sufficient to meet that burden - Supplement: Ortega v. Kmart Corp. (2001)

a)      The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it, but the court also held that evidence of an owner's failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give a person exercising reasonable care the opportunity to discover and remedy it.

D.    Res Ipsa Loquitur (RIL)

1.      Definition:  The thing speaks for itself.  The nature of the accident clearly and obviously proves negligence.

a)      Applying res ipsa loquitur makes the accident a prima facie case for negligence and the burden is on the defendant to rebut the presumption/inference of negligence.

b)      RIL creates an inference that there was negligence, thus allowing jury to determine if the facts support it.

2.      Elements: Under the old common law rule, to use res ipsa loquitur in the context of negligence the plaintiff must prove that:

a)      The harm would not ordinarily have occurred without someone's negligence

b)      The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act

c)      The plaintiff did not contribute to the harm by his own negligence.

3.      Byrne v. Boadle – It’s Raining Barrels of Flour ~ OUCH! (1863)

a)      A man was injured when a barrel of lour fell out of a window and hit him.  RULE: If a person is injured by something falling on him, the accident alone is prima facie evidence of negligence, and if there is any state of facts tot rebut the presumption of negligence, the defendant must prove them.

4.      McDougald v. Perry – You Must Never Break the Chain! (1998)

a)      A spare tire bounced from under a trailer injuring the driver following the trailer. RULE: Such events as tires exiting their cradle do not ordinarily occur unless someone is negligent. The spare tire escaping from the cradle is the type of accident which common experience and general knowledge would conclude does not occur but for the failure to exercise reasonable care by the person who had control of the spare tire.

5.      A defendant can conclusively rebut the plaintiff’s case as to obtain judgment as a matter of law.  NOTE CASE: Leonard v. Watsonville Community Hospital (1956)

a)      A Kelly clamp was left inside a patient.  The court repealed its initial application of the doctrine to only include 2 doctors out of 3, due to testimony that increased the possibility that MD1 and MD2 would be held liable and the “record indicates no rational ground for disbelieving their testimony.”

6.      Plaintiff has the option to take an inference or prove specific facts - NOTE CASE: Abbott v. Page Airways, Inc. (1969)

a)      Plaintiff’s husband was killed in a crash of a helicopter.  Trial judge charged that the jury could properly find negligence in the specific acts charged or they “could infer negligence from the happening of the accident.”

7.      In some cases, the doctrine can be applied broadly - NOTE CASE: Fowler v. Seaton (1964)

a)      Four year-old child came home from day care with a bump and concussion.  Plaintiff did not have an obligation to present such facts as were available to show that the accident was more probably than not the result of the alleged inadequate supervision by defendant. Pg. 99

8.      Doctrine is inapplicable where what caused the injury or damage is unknown or is not in the exclusive control of the defendant - NOTE CASE: Helton v. Forest Park Baptist Church (1979)

a)      Daughter suffered an eye injury during day care but the two adult supervisors could not pinpoint what could have caused it, as all the toys and furniture were not able to have caused the injury.  The court denied the application of the doctrine because a jury would only be able to “speculate, surmise or guess as to how Melissa’s injury occurred, and for this reason the case is one to be decided by the court as a matter of law.”

9.      Ybarra v. Spangard (TRAYNOR) – I had my appendix out, so why does my right arm hurt? (1944)

a)      A man lost the use of his arm due to an injury that occurred while he was unconscious and receiving medical treatment for another ailment. RULE: Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities that might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

b)      Without RIL, a patient who received injuries, obviously the result of someone’s negligence, would be entirely unable to recover unless those in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.

10.  Exclusive control should not necessarily be strictly followed were the purpose of RIL would otherwise be defeated. In these cases, constructive control will suffice.

a)      Example:  Bottler who has delivered bottles, no longer has “actual control,” but still has “constructive control” as the bottles have not been changed since they left the bottler’s possession.

11.  Multiple Defendants

a)      Ybarra Doctrine:  Using RIL against multiple D’s who “constructively controlled the instrumentality”, may stimulate finger pointing among the suspects.

(1)   If there are too many possibilities and too much speculation, doctrine of RIL might not apply.

b)      Solo Doctrine:  RIL cannot be used against multiple D’s when it is inferable that only one has been negligent.

12.  Sweep of Ybarra should been limited to medical cases - NOTE CASE: Raber v. Tumin (TRAYNOR dissenting) (1951)

a)      Warns against the dangers of extending Ybarra too far. Says under Ybarra, a person who is struck on the head by a flowerpot falling from a multistoried building may recover judgment against all the tenants unless the innocent tenants are able to identify the guilty one.

IV. Medical Malpractice

A.    The Special Case of Medical Malpractice

1.      Heart of the Suit: Did D act in conformity with the common practice (custom) within his profession?

a)      A reasonable doctor would adhere to custom, and conversely, non-adherence would be unreasonable.

b)      Evidence of adherence to custom is conclusive proof of reasonableness.

c)      Profession sets the standard (rule came from Robbins).

2.      Prima Facie Case: P must affirmatively prove the relevant recognized standard of medical care exercised by other physicians and that the D departed from that standard when treating P.

a)      Standard based on practitioner’s skills; conduct of medical professionals measured against conduct of like-trained practitioner in their field.

3.      Common Sense Exception: Courts will not require expert testimony when a medical practitioner’s negligence is obvious.

4.      Experimental treatment must be first recognized and respected by reasonably prudent physicians.

5.      “Similar locality rule”: When physician undertakes to treat or diagnose a patient, he or she is under a duty to exercise the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities having due regard for the state of scientific knowledge at the time of the treatment

a)      Is an expanded version of “strict locality” rule, which requires that the expert testifying be from the same community as the

b)      Sheely (modern trend): Measured against someone of like field. A physician expert witness in a medical malpractice case need no longer practice in the same field and the same community as the D

6.      Sheeley v. Memorial Hospital - Injured Episiotomy Patient v. Hospital (1998)

a)      Sheeley sued her doctor and the hospital after she developed complications at the episiotomy incision site after giving birth. RULE: A physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.

7.      Test: Qualification of Expert Witness

a)      “Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard.”

8.      Strict Locality: recognition that conditions may differ between communities. However, it legitimizes a low standard of care in certain communities; conspiracy of silence; no longer relevant with a modern, nationalistic medical profession.

9.      Conspiracy of silence” may make it difficult for some plaintiffs to get expert testimony. Many doctors will not testify against colleagues because they fear retaliation, such as expulsion from the local medical society.

B.     Informed Consent Doctrine

1.      Definition

a)      A legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of any actions.

(1)   The individual needs to be in possession of all of his faculties, such as not mentally retarded or mentally ill), without an impairment of judgment at the time of consenting. Impairments include sleep, illness, intoxication, drunkenness, using drugs or other health problems.

(2)   Need know not only of alternative, but also of medically reasonable alternatives that physician does not recommend.

(3)   Standard obligates physician to inform of medically reasonable treatment alternatives and their probable risks and outcomes to enable patient to make informed decision.

(4)   Ultimate decision rests with the patient.

b)      Focus is on materiality of risk, which is defined as risk that is material to reasonable person in patient’s position.

2.      Standard of Disclosure

a)      Professional Rule

(1)   Doctors set the customary standard, so P has to come forward with the expert testimony.

b)      Reasonable Patient Rule (Modern Trend) – What reasonable patient would want

c)      Elements

(1)   Nature of the ailment or condition

(2)   General nature of the proposed treatment or procedure

(3)   Risks involved in the proposed treatment

(4)   Prospects of success

(5)   Risks of failing to undergo any treatment or procedure at all

(6)   Risks of any alternative methods of treatment

d)     Significance

(1)   No need for expert testimony to set standard, but still may use experts to prove that injury came out of risk

3.      Causation requirement

a)      Decision causation: P must prove breach of duty to inform, measured either by patient or medical practitioner reasonable standard (depending on jurisdiction) and also prove that had she been informed, she would not have undergone procedure or follow course of treatment

b)      Injury causation: P must also prove the injury befallen her grew out of risk that she is arguing was negligently not disclosed

(1)   Objective test for causation: Argument for this standard is neither P nor the fact-finder can provide a definitive answer as to what the patient would have done had the patient known of the particular risk prior to consenting to the procedure or treatment. Most jurisdictions use this test.

(2)   Subjective test for causation: Consistent with the view that individuals, no matter how misguided, should be able to make their own treatment decisions.

4.      Matthies v. Mastromonaco – Feisty Old Woman Who Wouldn’t Have Taken Her Broken Hip Lying Down (1999)

a)      D treated P’s broken hip with bed rest instead of surgery, without consulting with her about her options, and she never walked again. RULE: To obtain a patient’s informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive.

5.      Patient must consent to each treatment individually – no blanket consent - Note Case: Schreiber v, Physicians Ins. Co. of WI (1999)

a)      If patient changes his/her mind about treatment, etc., then new consent is needed. 1st consent cannot be considered blanket consent. Patient has right to deny any treatment desired.

6.      If the risk was 1-1000 and it was not sufficiently explained then it becomes a question for the jury NOTE CASE: McKinney v. Nash (1981)

7.      Surgeon not obligated to reveal inexperience- NOTE CASE: Whiteside v. Lukson (1997)

a)      The surgeon did not tell plaintiff he had never performed surgery.  By the time he was going to perform had done two of them.  The plaintiff’s failed.  The court held that consent need be obtained only for the underlying procedure

8.      If defendant accurately held himself out as what he was and does not claim to be more than he was, there is no duty to disclose anything more- NOTE CASE: Ditto v. McCurdy (1997)

a)      Breast job had complications, surgeon was not a plastic surgeon, but a facial and cosmetic surgeon-question if whether cosmetic surgeons where less trained than plastic surgeons.  Court found for defendant. Physician accurately held himself out as what he was and did not claim to be more than he was, so had no duty to disclose anything more. To prove negligence, P must prove that doctor did not perform the surgery as a customary practice.

9.      Don’t have to tell about illegal drug use- NOTE CASE: Albany Urology Clinic P.C. v. Cleveland (2000)

10.  If patient is conscious, doctor must follow patient’s wishes even if physician does not agree with decision or thinks it is life threateningNOTE CASE: Shine v. Vega (1999)

a)      In a life-threatening case consent was not needed as long the patient was unconscious, or otherwise incapable of giving consent and there is no time to get consent of family member and as long as the doctor has no reason to believe that the patient would otherwise have declined

11.  Risk of 1 in 100,000 was deemed not necessary for disclosure-NOTE CASE: Henderson v. Milobsky (1978)

12.  Sample state consent statute - NOTE CASE: Allan v. Levy (1993) – Physician has conclusively obtained the consent of patient for a medical or surgical procedure if he has done the following:

a)      Explained to the patient in general terms without specific details, the procedure to be undertaken

b)      Explained to the patient alternative methods of treatment, if any, and their general nature

c)      Explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks

d)     Obtained the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment and risks involved, as provided in this section

13.  Class Lecture on Supplement

a)      60-80% of malpractice cases go to defense

b)      $100K is spent on getting a malpractice case to trial

(1)   Cap does not let the firm collect all the money back

c)      How is our current tort system working compared with the goals of the tort system?

d)     ALI-should have more tort claims in order for the system to work properly

e)      2004- current purchase value of $250K is $71K

f)       Screening mechanism of malpractice cap

(1)   Injured children are worth more than dead children

(2)   Lawyers take fewer and fewer cases

(a)    Only take those that have

(i)                  No shred of doubt of failure to exercise due care

(3)   AND

(i)                 Large amount of economic loss

(a)    Screens out housewives and children and unemployed

(4)   Several states have done away with caps

(5)   More sensible ways to go about it

(a)    Sue the hospital

(i)                 Doctor’s negligence does not respond well to the deterrent affect of the malpractice case

(a)    In the new system Doctors would be sued for patient care within the hospital.

(b)   Hospitals are much more likely to take active steps.

V.The Duty Requirement

A.    Introduction

1.      Explanation

a)      Traditional View: Many early cases took the view that a specific relationship must exist to be the base for imposing duties of care.

(1)   No more requirement of privity - NOTE CASE: MacPherson v. Buick Motor (CARDOZO) (1916)

(a)    Does away with privity doctrine, holding that a car manufacturer owed a duty of care to someone who bought a car from an intermediate dealer, and not just to initial purchaser.

b)      Modern View: There is a clear long-term movement towards recognizing a general duty of due care.

c)      A duty is a legal obligation imposed on one person for the benefit of another.

d)     In negligence, the duty owed by D is to conform to the legal standard of reasonable conduct in light of the apparent risk.

e)      Duty is decided by the judge, not the jury; may not even get to the question of negligence

f)       Exceptions

(1)   Protective orders

(2)   Reliance

(a)    Implicit

(b)   Explicit

(3)   Special relationship

(a)    Custody – child

(b)   Disability

(c)    Economic benefits

2.      Elements

a)      Assumption of duty

b)      Knowledge of risk

c)      Direct contact

d)     Reliance (detrimental reliance)

B.     Affirmative Duty (Obligations to Others)

1.      An affirmative duty is imposed when:

a)      The actor has undertaken to act for the protection of another person, or has taken control over the circumstances which determine the other person’s safety (This assumption of duty may be limited, and liability may be imposed only where the actor’s conduct has caused distinct or increased harm)

b)      The actor has a legally recognized (special or pre-existing) relationship with the person who may be harmed, or a person whose conduct may injure the endangered person

c)      The actor has created a foreseeable, non-obvious risk that endangers another person

2.      Farwell v. Keaton – Bad Friend Leaves Buddy in Back of Car to Die (1976)

a)      A man sues his son’s friend when the son died of sever head injuries after he and his friend hot into a fight and the friend, after making an initial effort to revive the son, abandoned him in a car in his grandparent’s driveway. RULE: When an individual comes to the aid of another, he is subject to the duty to take no action that would leave the victim worse off than before; and friends spending time together socially are under an affirmative obligation to come to each other’s aid in an emergency.

3.      If assume duty of care, must act reasonably - NOTE CASE: Haben v. Anderson (1992)

a)      Fraternity member was found to have assumed a duty of care for the drunken pledge placed on the floor of his room and he did not act reasonably to prevent harm to the decedent after decedent’s placement in his room.

4.      Misfeasance v. Nonfeasance: Acting negligently v. failing to act. 

a)      Although a person may be under NO duty to take affirmative action in the first instance, if she undertakes assistance and is thereafter negligent in what she does or does not do, she is liable.

C.    Obligations to Protect a Third Party

1.      Tarasoff v. Regents of the University of CA – Have to Protect Third Party from the Crazies Who Want to Kill Them (1976)

a)      A murdered woman’s parents sued the University because therapists employed there failed to warn their daughter of death threats made towards her by a patient. RULE: Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim from that danger. The protective privilege ends where the public peril begins.

(1)   The therapist need not be perfect; exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.”

2.      Can’t break privilege for mere property damage - NOTE CASE: Bellah v. Greenson (1978)

a)      Tarasoff does not apply where risk is self-inflicted harm or mere property damages

3.      Need to know who intended victim is – general warnings not favored - NOTE CASE: Thompson v. County of Alameda (1980) – Victim must be sufficiently identified. Warnings to the general public are not favored.

4.      May be held liable for injuries to third parties if foreseeable- NOTE CASE: Hedlund v. Superior Court (1983) – Injuries to a child were foreseeable in an assault upon the mother, and consequently fell within the Tarasoff principle.

D.    Landowners & Occupiers

1.      Classifications

a)      Trespasser

(1)   Definition:  One who enters or remains on property without privilege or consent of the owner.

(2)   General Rule: As a general rule, the landowner owes no duty to a trespasser to make her land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way.

(3)   Exceptions

(a)    Constant trespass on limited area: If the owner has reason to know that various trespassers frequently use a limited portion of her land, she must use reasonable care to make the premises safe or at least warn of dangers.

(b)   Discovered trespassers: Once the owner has knowledge that a particular person is trespassing, the owner is then under a duty to exercise reasonable care for the trespasser’s safety.

(c)    Children: The owner owes a duty of care to a trespassing child if all these requirements are met:

(i)                 The owner knows that the area is one where children are likely to trespass (attractive nuisance)

(ii)               The owner has reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing children

(iii)             The injured child does not discover the condition or does not realize the danger, due to his youth

(iv)             The benefit to the owner of maintaining the condition in its dangers form is slight weighed against the risk to the children

(v)               The owner fails to use reasonable care to eliminate the danger.

(d)   Recreational use of land: Almost all states have enacted statutes that limit the liability of owners of land used for recreational purposes. The goal is to prevent persons on open land from suing for natural dangers on such land or demanding that warnings be posted of such dangers.                

b)      Licensee

(1)   Definition: A licensee is a person who has the owner’s consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart from the owner’s consent.

(2)   General Rule: The owner does not owe a licensee any duty to inspect for unknown dangers. On the other hand, if the owner knows of a dangerous condition, she must warn the licensee of that danger.

(3)   Social guests provide no material benefit, so they take the premises as they find them.

c)      Invitee

(1)   Definition: An invitee includes persons who are invited onto the land to conduct business and those who are invited as members of the public for purposes for which the land is held open to the public.

(2)   General Rule: The owner does owe an invitee a duty of reasonable inspection to find hidden dangers. Also, the owner must use reasonable care to take affirmative action to remedy a dangerous condition.

(a)    The owner has a duty to inspect her premises for hidden dangers.

(b)   The giving of a warning of danger will often suffice. However, if the warning will not remove the danger, then the condition should be remedied.

(c)    Reasonable care by the owner may require that she exercise control over third parties on her premises.

d)     Rejection of classifications: A number of courts have rejected the categories of trespasser, licensee, and invitee. These courts now apply a general single ORP standard of liability.

(1)   Other states have partially abolished the categories so that all or most non-trespassing social guests are entitled to reasonable care under the circumstances. Most states have been unwilling to abolish the categories when it comes to trespassers.

2.      Traditional view: Duty determined by entrant’s status.

a)      Carter v. Kinney – Bible Study May Be Hazardous to Your Health (1995)

(1)   A man sues the host of a weekly Bible study group after he slipped and fell in the host’s icy driveway. RULE: A guest at a social gathering in a private home is not an invitee, but a licensee, and the homeowner is not subject to the elevated duty of care owed to persons entering his property in order to do business with him.

(2)   Granting permission to enter one’s property, as a licensee, is not meant to be understood as assurance that the property is safe to visit.

3.      Modern trend: General duty of care owed to all lawful visitors; based on circumstances, not status of visitor.

a)      Heins v. Webster County – Would-Be Santa Fell on His Ass Outside the Hospital (1996)

(1)   A man sues a county hospital after he slipped and fell on hospital property while visiting his daughter, a nurse. RULE: Nebraska courts will no longer apply the common law distinction between invitees and licensees. Instead, landowners will owe a duty of reasonable care to all lawful visitors.

(2)   Abandons the distinction for the policy reason that a visitor’s status should not determine the level of duty that a landowner owes him.

(3)   The common-law distinction should not be able to protect a landowner from liability when he would otherwise be held to a standard of reasonable care.

(4)   Factors to use when considering whether a landowner has exercised reasonable care:

(a)    Foreseeability of harm.

(b)   Purpose of entrant’s visit.

(c)    Time, manner, and circumstances of visit.

(d)   Use to which the property is or is expected to be put to use.

(e)    Reasonableness of the inspection, repair, or warning.

(f)    Opportunity and ease of inspection, repair, or warning.

(g)   Burden on the landowner and/or community in providing protection.

4.      Landlord/Tenant

a)      Traditional view: Landlords were insulated from liability except in a few situations.

b)      Exceptions:

(1)   Hidden danger tenant not aware of

(2)   Premises leased for public use

(3)   Premises retained under the landlord’s control, such as common stairways

(4)   Premises negligently repaired by landlord

(a)    Distinction between bad repairs and no repairs at all is disappearing

(b)   Promise to repair means liability

(i)                 Tenant has expectation of safety

(ii)               Tenant relies on promise of repair

(c)    Landlord has financial capability to make repairs

c)      Modern view: In Sargent v. Ross (1973), court held that a landlord must act reasonably under all of circumstances, including likelihood of injury, probable seriousness of injuries, and burden of avoiding risk, but a landlord is only liable if “the injury is attributable to (1) a hidden danger in the premises of which the landlord but not the tenant was aware, (2) premises leased for public use, (3) premises retained under the landlord’s control, such as common stairways, or (4) premises negligently repaired by the landlord.

5.      Liability for Harm Outside the Premises

a)      Danger must be foreseeable - NOTE CASE: Largosa v. Ford Motor Co. (1999) - Restatement § 368 imposed liability on possessors who create artificial conditions “so near an existing highway” that they realize or should realize that it involves an “unreasonable risk” of harm to travelers using due care on that highway.  The court denied liability to bungee-jumping business because the D’s business “did not pose a foreseeable danger directly to Ps on the highway.”

6.      Criminal Activity

a)      While landlord is not insurer of his tenants, he is in the best position to take protective measures NOTE CASE: Kline v. Massachusetts Ave. Apartment Corp. (1970) – The court imposed a duty of care on the landlord toward a tenant who had been assaulted in a common hallway of the building.  The landlord is best equipped to guard against the predictable risk of intruders and is in the best position to take the necessary protective measures.  The landlord, however, is not the insurer of the safety of his tenants.  His duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants (obligated to protect parts of his premises not usually subject to periodic patrol and inspection by municipal police).

b)      Posecai v. Wal-Mart Stores, Inc. - Mugging Victim v. Sam’s Club (1999)

(1)   A woman sues Sam’s Club for negligence after she is mugged in the store’s parking lot. RULE: Businesses have the duty to exercise reasonable care to protect their patrons from the reasonably foreseeable criminal actions of third parties.

(2)   Foreseeability Tests (Court adopts balancing test)

(a)    Specific Harm: Duty exists only when the possessor is aware of the specific, imminent harm about to occur.

(b)   Similar Incidents: Plaintiff can establish foreseeability by presenting evidence of similar crimes on or near the property.

(c)    Totality of the Circumstances: Considers similar incidents, including the nature, condition, and location of the land, the level of the crime in the surrounding area, and any other relevant factual circumstances that might bear on foreseeability.

(d)   Balancing Test: Weigh the foreseeability and gravity of harm against the burden imposed on business to protect its customers from that harm.

c)      Resisting the Robbery and Apprehending Perpetrators

(1)   Shopkeepers do not owe patrons duty to comply with robber’s demands to avoid injury - Note Case: Boyd v. Racine Currency Exchange Inc. (1973)

(a)    Robber approached bulletproof window, held gun to customer’s head and demanded cash from cashier. Cashier refused, customer was killed. Court held that the cashier had no duty to accede to criminal demands, because business owners shouldn’t be forced to decide whether to agree to criminal conditions, or be subject to civil suit.

(2)   Shopkeepers do not owe patrons duty to comply with robber’s demands to avoid injury - NOTE CASE: KFC v. Sup. Ct. (1997)

(a)    Cashier did not accede to a robber’s demand, and customer held hostage feared being hurt. Court ruled that shopkeepers do not owe a duty to a patron to comply with robber’s demands. Ruling otherwise would encourage hostage taking. Dissenters argued that this should be a jury question, not a hard line rule - juries bring in more practical experience, and they can look at totality of circumstances.

(3)   According to this case, every landlord gets one free crime - SUPPLEMENT: Ann M. v. Pacific Plaza Shopping Center (2000)

(a)    Plaintiff did not recover for the damages incurred by the intruder.  Court reinstated the prior similar incidents test, which had been thrown out in a prior CA case.  Means that every landlord gets one free crime.

(b)   NOTE:  Even though the Court says it is following the Balancing Test-on the surface seems more similar to the Prior Similar Incident Test

(4)   Have to establish reasonably probable causal connection between D’s breach of duty and P’s injuries- SUPPLEMENT: Saelzer v. Advanced Group 400 (2001)

(a)    Plaintiff was attacked trying to deliver a Fed Ex package.  Was not allowed to recover for injuries because she could not identify her attackers and they might have been tenants.

(b)   “Despite establishing the “high foreseeability” that violent crime would occur on the premises, and defendants’ resultant duty to provide increased security, the court found that plaintiff failed to establish a “reasonably probable causal connection” between defendants’ breach of duty and plaintiff’s injuries.

E.     Emotional Harm

1.      Negligent Infliction of Emotional Distress

a)      Definition: Risk of injury towards another person and the person suing was either on the scene or arrived on the scene afterwards and suffered emotional distress.

2.      Direct Emotional Injury

a)      Policy arguments: Courts have problems gauging unobservable injuries and rely on policy arguments to justify decisions:

(1)   Avoiding a flood of litigation

(2)   Eliminating fake Claims/fraud

(3)   Speculation

3.      Physical Impact Rule

a)      Traditionally, there was a requirement of physical injury   stemming from emotional injury.

4.      Zone of Danger (ZOD) Test

a)      Physical injury rule made no sense, so Courts adopted “zone of danger” rule: If a victim were within the zone of danger where an injury might have resulted from D’s conduct, compensation for emotional injuries would be granted.

b)      However, there would still have to be physical symptoms associated with emotional injury.

c)      Elements

(1)   A close relative of victim

(2)   Within the ZOD

(3)   Contemporaneous observation of the accident

(4)   Suffered severe emotional injury

5.      Falzone v. BuschWoman Who Watched Her Husband Get Mowed Down Suffered from ED (1965)

a)      A woman was seated in her car on the side of the road when she was nearly hit by a vehicle that had veered across the highway. The vehicle then struck her husband as she watched.

b)      Rule: A plaintiff may recover damages for bodily injury or sickness that are the result of a reasonable fear of immediate personal injury instilled by the defendant’s negligent act.

6.      Metro-North Commuter Railroad Co. v. Buckley - Employee Exposed to Asbestos Convinced He’s Going to Die (1997)

a)      A railroad employee filed suit under the Federal Employer’s Liability Act, claiming he suffered ED as a result of the fear of contracting cancer or asbestosis. RULE: A plaintiff suing under the Federal Employer’s Liability Act may not recover for emotional distress where he has been exposed to the risk of contracting a disease but has not yet suffered any symptoms of the disease.

b)      Common law permits recovery for emotional distress in limited cases:

(1)   The emotional distress accompanies a physical injury.

(2)   The emotional distress is the result of witnessing the physical injury of a close relative.

(3)   The emotional distress is inflicted intentionally.

(4)   The plaintiff sustained a physical impact or was placed in immediate risk of physical harm – the Zone of Danger – created by the defendant’s negligence.

c)      Allows for recovery for ED based on fear if certain requirements met - NOTE CASE: Potter v. Firestone Tire and Rubber Co. (1993)

(1)   In the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if P pleads and proves that 1) as a result of D's negligent breach of a duty owed to P, P is exposed to a toxic substance which threatens cancer; and 2) P's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that P will develop the cancer in the future due to toxic exposure.

d)     Allowed for recovery for fear of cancer in the future under FELA - NOTE CASE: Norfolk & Western RR v. Ayres  

(1)   Another claim brought under FELA where workers were suffering from asbestosis (1 out of 10 who suffer from this will die from methoselioma (severe lung cancer)). Court held 5-4 that recovery was permissible if the distress was genuine and serious. Court allowed recovery for fear of cancer in the future. The Court made clear that recovery was not for increased risk of developing cancer, but rather for increased fear of developing cancer in the future.  Dissenters were concerned about exhausting all resources and leaving those with serious illnesses unable to recover.

7.      Solely Emotional

a)      Gammon v. Osteopathic Hospital of ME – Hospital that sent bag with severed leg instead of personal effects ~ OOPS! (1987)

(1)   After the decedent died in a hospital, the decedent’s son was given a bag that contained the severed leg of a pathology specimen; as a result, the son suffered severe ED. RULE: A defendant may be liable for any foreseeable emotional or psychic harm he negligently causes. A defendant is bound to foresee psychic harm only when such harm reasonably could be expected to befall the ordinary sensitive person.

(2)   This case illustrates a liberal approach to cases involving emotional distress.

b)      First court to allow mother to recover for ED related to seeing death of child - SUPPLEMENT: Dillon v. Legg (1968)

(1)   The emotional injury to the witness has to be reasonably foreseeable. The criteria set forth to determine whether an emotional injury would be foreseeable are:

(a)    Whether P was located near the scene of the accident as contrasted with one who was a distance away from it.

(b)   Whether the shock resulted form a direct emotional impact upon P from the sensory and contemporaneous observance of the accident, as contrast with learning of the accident from others after its occurrence.

(c)    Whether P and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

(2)   Case 1 (Mazaroff): Three-year-old boy named Danny wandered away from his house and his mom began to search for him. Heard neighbor exclaim "Oh no, it's Danny!" She rushed over because she knew he had fallen into pool and drowned. She went over and tried to help resuscitate his lifeless body, but he died. She was able to recover because she could mentally picture him drowning as she ran over.

(3)   Case 2 (Hathaway): Little boy named Michael was visiting with his parents at a friend's house. Parents heard the following "Let go, Michael. Let go." Rushed outside to see son in puddle of water, convulsing after being electrocuted when he touched an evaporative cooler. Dying from electrocution takes a long time, and they sat there and watched their son die, but were unable to recover because they never saw him touch the coil.

c)      Thing replaces Dillon in terms of precedent - SUPPLEMENT: Thing v. La Chusa (1989)

(1)   Modified rule:

(a)    P must be closely related to injury victim

(b)   P must be present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim

(c)    P must suffer serious emotional distress as a result - a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

d)     Must be aware of connection between injury and injury-producing event - NOTE CASE: Bird v. Saenz (2002)

(1)   Parents of child with curable cancer watched while he underwent radiation therapy. That he was overexposed was not known until he later developed symptoms. At the time they were watching, they did not know it was killing him. Parents argued radiation is invisible anyway, so they couldn't see what was causing injury. The court did not allow recovery because they were not aware of the connection between the injury and the injury-producing event, even though they witnessed it.

e)      Portee v. Jaffee – Poor Mom Watches her Son Die in Elevator (1980)

(1)   After her son was trapped in an elevator shaft and died as a result, a woman sued for the mental and emotional distress caused by witnessing her son’s predicament and resulting death. RULE: A cause of action for the negligent infliction of emotional distress may be maintained where the plaintiff witnesses the death or severe injury of a close relative at the scene of an accident caused by the defendant’s negligence.

(2)   A cause of action for negligent infliction of emotional distress requires proof of the following elements.

(a)    The death or serious physical injury of another caused by D’s negligence

(b)   A marital or intimate familial relationship between P and the injured person

(c)    Observation of the death or injury at the scene of the accident

(d)   Resulting severe emotional parties

(3)   The risk of an extraordinary reaction to a slight injury does not justify the imposition of liability.

f)       Adopts ZOD test over Dillon criteria – NOTE CASE: Bovsun v. Sanperi (1984)

(1)   Recognition of the right to recover for emotional distress attributable to observation of injuries suffered by a member of the immediate family involves a broadening of the duty concept but – unlike the Dillon approach – not the creation of a duty to a plaintiff whom the defendant is not already recognized as owing a duty to avoid bodily harm.

8.      Unmarried couples and emotional distress

a)      Domestic partners cannot recover for the emotional distress - NOTE CASE: Elden (1988) - must be married b/c 1) state interest, 2) easier proof, and 3) bright line rule.  Limits scope

b)      Oh yes they can! - NOTE CASE: Dunphy (1994) - fiancé.  Rejected Elden approach. Looks at 1) mutual dependence, 2) members of the same household, 3) quality of experience, and 4) reliance.

F.     Economic Harm

1.      Note 6: Attorneys and clients

a)      How do you prove malpractice action?  1) breach of duty of care, negligence and 2) that the breach of duty caused damage. 

b)      After accountants, the second largest group involved in these cases is the legal profession.  The duty of care the attorney owes to the client:

(1)   Meeting filing deadlines: One of the two contexts in which questions of legal malpractice tend to arise are cases in which attorneys fail to file complaints within the statute of limitations or in some other way fail to perform a nonjudgmental task.  In such cases, the client may have a good legal claim for malpractice if it is possible to show that the action, if filed, had a good chance for success.

(2)   Making strategic choices: The second type of claim for legal malpractice arises from judgmental decisions that usually occur during litigation, after a strategic choice turns out badly.  Courts are not likely to second-guess that attorney’s decision unless it lacked any plausible justification; an expert is usually needed to show the jury the standard and the deviation.

(3)   Recommending settlements: The strategy question extends beyond how to conduct litigation – to whether and on what terms to settle pending litigation.  Advice to settle a claim for too little money may lead to liability for malpractice.

(a)    NOTE CASE: Grayson v. Wofsey, Rosen, Kweskin, & Kuriansky (1994) – upholding an action where the attorney was alleged to have negligently valued the marital estate as so to induce his client to settle for too little.

(4)   Criminal cases: Clients in criminal cases may face an extension of the requirement of a valid case. 

(a)    NOTE CASE: Wiley v. County of San Diego (1998) – the court held that a plaintiff who had been convicted of a crime could not sue his defense attorney for malpractice without proving that he was innocent of the underlying crime.  “Regardless of the attorney’s negligence, a guilty defendant’s conviction and sentence are the direct consequences of his own perfidy.” 

(5)   Emotional distress: It is unusual for the awards to include recovery for the client’s emotional distress.

(a)    NOTE CASE: Pleasant v. Celli (1993)– attorney missed the statute of limitations on what the jury could find would have been a successful medical malpractice case.  An award for $500,000 for emotional distress was reversed.  The plaintiff in such a case must show that she sustained “highly foreseeable shock stemming from an abnormal event.”  Missing the statute of limitations did not suffice.

(b)   Other courts have suggested that when the attorney is retained for non-economic purposes, such as criminal defense, adoption proceedings, or marital dissolution, damages for emotional distress may be foreseeable and may be recovered as one item of damages.

(i)                 NOTE CASE: Holliday v. Jones (1989) – incompetent counsel permits client to be convicted of involuntary manslaughter

(ii)               NOTE CASE: Kohn v. Schiappa (1995) – lawyer representing client seeking to adopt a child improperly reveals their names to the natural mother

(iii)             NOTE CASE: Wagenmann v. Adams (1987) – malpractice led to client’s involuntary incarceration in psychiatric hospital

(c)    In a few cases distraught clients have committed suicide allegedly due to the attorneys’ malpractice. 

(i)                 NOTE CASE: McPeake v. William T. Cannon (1989) – The court denied recovery when a client found guilty of rape jumped through a closed fifth floor courtroom window, expressing concern that liability here would discourage attorneys “from representing what may be a sizeable number of depressed or unstable criminal defendants.”

(d)   Claims for economic distress do not apply in property cases.

(i)                 NOTE CASE: Camenisch v. Superior Court (1996) – Emotional distress relief should be preserved for cases in which the negligence interferes with the client’s liberty interest (letting client get convicted when innocent) and not for property claims.

2.      Note 7: Attorneys and third parties

a)      NOTE CASE: Biakanja v. Irving (1958) – recovery against notary for difference between what plaintiff got (1/8th of the estate) and what plaintiff was willed (entire estate) because of negligent failure to have the will properly witnesses: “Here, the ‘end and aim’ of the transaction was to provide for the passing of Maroevich’s estate to the plaintiff.  See Glanzer v. Shepard.  Defendant must have been aware from the terms of the will itself that, if faulty solemnization cased the will to be invalid, plaintiff would suffer the very loss which occurred.”

b)      NOTE CASE: Lucas v. Hamm (1961) – The court concluded that the legal error of creating a will that violated the rule against perpetuities did not demonstrate negligence because the rule was so difficult to understand and apply.

c)      NOTE CASE: Heyer v. Flaig (1969) – another will failure

d)     Courts appear willing to extend duties to non-clients when the client has asked the attorney to provide information to the other side or to prepare documents for a deal.

(1)   NOTE CASE: Petrillo v. Bachenberg (1995) – the court imposed a duty of due care on a seller’s attorney in connection with an arguably misleading percolation-test report given to the prospective buyer.  The court extended the opinion-letter line of cases to other kind of information that the attorney knows or should know will influence a non-client because the “objective purpose of documents such as opinion letters, title reports, or offering statements” is to induce others to rely on them.  See Prudential Ins. Co. v. Dewey, Ballantine, Bushby Palmer & Wood (1992) – involving a document prepared by a law firm at its client’s discretion that the law firm forwarded to the relying party at the request of its client.

e)      Small group of states requires privity in will cases.

(1)   NOTE CASE: Barcelo v. Elliott (1996) – grandchildren who lost their inheritance because of an invalid will were denied recovery.  The majority rule extended liability in this situation, however, the court 5-3 preferred the minority view that an attorney owed a duty solely to the client.  Policy: The court was concerned with cases in which the will was valid but did not reflect the actual instructions of the testator or in which the testator did not sign it – the court would not be able to tell whether that was because of attorney malpractice or because of the testator’s change of mind.  “We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent.”

3.      Note 8: Other Professionals

a)      Many of the issues that appear in the context of accountants and attorneys appear in the cases of other professionals as well.

(1)   NOTE CASE: Glanzer v. Shepard (1922) – Public weigher who was asked to weight a load of beans and to certify the results was held liable when he negligently certified a weight that was too high. Justice Cardozo noted that, even though the two were not in privity, the weigher knew that “end and aim of the transaction” was to inform the buyer of the amount to be paid.

(2)   NOTE CASE: Gutter v. Dow Jones, Inc. (1986) – Plaintiff who alleged that relying on information that was misprinted in the Wall Street Journal, he bought the bonds in question and suffered a loss. The court held that the plaintiff did not come within the limited group that could sue under §552.

(3)   NOTE CASE: Duncan v. Afton, Inc. (1999) – Plaintiff was fired after the Defendant testing company reported to the employer that P had tested positive for drugs. Since there was no privity, D argued that there could be no duty. Using an eight-factor duty test, the court imposed a duty of due care since the company knew that its actions would affect the group of workers being tested.

(4)   NOTE CASE: Aufrichtig v. Lowell (1995) – The court decided a physician could be sued for understating the severity of a plaintiff patient’s medical condition in an affidavit that led the patient to settle her case against her insurer for less than its value.

(5)   NOTE CASE: Arato v. Avedon (1993) – Court rejected a claim for economic loss sustained by survivors due to the condition in which decedent left his affairs. Survivors alleged that the physician failed to disclose info regarding the poor life expectancy of patients with that particular type of cancer saying if patient had realized the odds, he would have put his affairs in better order.

4.      People Express Airlines, Inc. v. Consolidated Rail Corp. – Can the Airline Recover for a Work Stoppage Caused by the Railroad? (1985)

a)      An airline filed suit against the owner of freight yard that was the sight of a chemical spill that caused a temporary shutdown in a portion of the airport where the airlines’ operations were based, resulting in severe economic losses to the airline. RULE: A defendant who has breached his duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs comprising an identifiable class with respect to whom the defendant knows or has reason to know are likely to suffer such damage.

b)      Recovery of Purely Economic Loss (Exceptions)

(1)   Special Relationships – when defendant negligently misrepresents something that causes a third party to act at its detriment.

(2)   Private Actions for Public Nuisance – Where a plaintiff’s business is based in part upon the exercise of public right, and the negligence of the defendant impedes on the business of the plaintiff.

(3)   Class not Reasonably Foreseeable - The class of people that would be susceptible to economic loss by a defendant’s lack or duty to exercise reasonable care must reasonably foreseeable by the defendant.

(a)   Ways the Class of People that are Reasonably Foreseeable are Identified:

(i)                 Types of persons or entities comprising the class

(ii)               Certainty or predictability of their presence

(iii)             Approximate numbers of those in the class

(iv)             Type of economic expectations disrupted

VI.  Causation

A.    Cause in Fact

1.      Basic Doctrine

a)      This inquiry seeks to tie the defendant’s conduct to the plaintiff’s harm in an almost physical or scientific way.

2.      Burden of Proof

a)      Causation must be proved by plaintiff by a preponderance of the evidence

b)      This burden of proof does not require the plaintiff to eliminate all other possible causes; it only requires that he establish that the defendant’s negligence was more likely than not the cause of the injury.

c)      Stubbs v. City of Rochester – Hemlock Is the Drinking Water? (1919)

(1)   A man who lived and worked in Rochester filed suit against the city, claiming that the water supply was negligently maintained so that the potable water became contaminated with sewage and that such contamination was the cause of his typhoid fever. RULE: Where there are two or more possible causes of the plaintiff’s injury, one of which is the defendant’s negligent conduct, a plaintiff is required to establish facts allowing for a reasonable inference that the defendant’s conduct was more than likely the cause of his injury.

d)     In cases where causation cannot reasonably be proved with direct evidence, an inference of causation is permissible if the harm to the plaintiff was one of the core risks created by the defendant’s negligence.

e)      Zuchowicz v. United States – Too Much of a Not-So Good Thing Can Be Hazardous To Your Health (1998)

(1)   Although the precise cause of her disease was unascertainable, a woman filed suit, claiming that a hospital’s negligence in prescribing her double the maximum authorized dosage of a particular drug cause her to suffer from the rare disease. RULE: A reasonable inference of causation can be made where the defendant’s conduct is deemed negligent because it creates the particular risk of harm suffered by the plaintiff.

f)       Four-factor test for determining relevance and reliability of proposed expert witnesses - NOTE CASE: Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) - The judge is a gatekeeper, deciding whether or not to admit scientific evidence. Trial judge has the ability to destroy P's case in a toxic tort case by deciding evidence is inadmissible. "The federal rules of evidence permit opinion testimony by experts when the witness is qualified as an expert by knowledge, skill, experience, training or education, and if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."

(1)   Relevant factors from Daubert:

(a)     Whether the theory can be (and has been) tested according to the scientific method

(b)   Whether the theory or technique has been subjected to peer review and publication

(c)    In the case of a particular scientific technique, the known or potential rate of error

(d)   Whether the theory is generally accepted

g)      Standard of review of trial decisions to admit or reject expert testimony under Daubert should be “abuse of discretion” - NOTE CASE: General Electric v. Joiner (1997) - Once a judge rules on admissibility of witnesses or evidence, attorney then needs to prove trial judge abused his/her discretion.

3.      Loss of Chance

a)      Some courts allow causes of action where the defendant has diminished the plaintiff’s chances of recovering from some malady.

b)      Elements:

(1)   P must show loss of opportunity (or reduction of opportunity) of avoiding the presenting problem and achieving a better result.

(2)   P must also show actual physical harm.

c)      Alberts v. Schultz  - Would the leg have gotten better? We don’t know, so you can’t recover! (1999)

(1)   After losing his leg on account of gangrene, an amputee filed suit against his physician on the ground that the doctor’s negligence in failing to order the proper exams and promptly refer the case to a specialist caused the patient to lose a significant chance at saving his leg. RULE: A plaintiff in a lost chance cause of action must show, to a reasonable degree of medical probability that the doctor’s negligence caused a diminution in the chance of recovery.

4.      Multiple Defendants

a)      “Alternative liability” – the rule that relieves the plaintiff of the burden of identifying the defendant that caused his injury when either one of two negligent defendants could have caused the plaintiff’s injury, but the identity of the exact defendant who caused the injury is unascertainable.

(1)   Is only available where there are two defendants. Any more and it becomes impossible to prove which defendant was the cause in fact.

b)      Summers v. Tice – Which one of you jerks shot my eye out? (1948)

(1)   Two hunters negligently fired in the direction of a third man who was struck in the eye and lip. RULE: Where two defendants have acted negligently, a third person is injured as a result and it cannot be determined which defendant caused the plaintiff’s injury, even though the negligence of only one could have been the cause, the burden of disproving causation is placed on the negligent defendants.

c)      “Joint and several liability” – the rule that acts to hold each of multiple defendants liable for the whole of the plaintiff’s injury.

d)     Hypotheticals:

(1)   Suppose there is a forest fire, A’s negligently set forest fire that burns over house that P built.  A is responsible. 

(2)   Suppose that instead B negligently sets a fire also and B and A’s fires join, becoming one fire that destroys P’s house.  Can plaintiff prove “but for” causation against either of defendants? 

(a)    Cannot prove "but for" causation against either Ds because the fires joined. However, even though neither can be said to be "but for" cause, when two independent forces concur to produce a result which either of them alone would have produced, the causation element could be satisfied if P can prove that D's negligence was a material element and a substantial factor in producing P's harm.

(3)   Suppose that forest fire negligently set by A burns and destroys house that P built.  P can sue A. B’s forest fire burns and burns over same part of geography as A’s fire burned but the house is no longer standing because A’s fire burned it down.  So it does no further damage.  Who is responsible?  Which one caused the harm?  Who does P sue?

(a)   “But for” A’s fire, P would have had 10 min more with house before B’s fire came along.  A would pay for entire damage to house.  Suppose that instead lightning had struck the area where house was.  Same outcome.  A should be responsible.

e)      If only one party is negligent then Summers does not apply - NOTE CASE: Garcia v. Joseph Vince Co. (1978) - Plaintiff fencer was hurt by a defective saber.  Plaintiff could not identify which of two manufacturers was the source of the defective saber because there was a putting of it back into a pile of sabers.  His effort to invoke Summers failed.

f)       If the jury can’t allocate damages then it was to make a rough apportionment, if it couldn’t do that then allocate the damages equally among the defendants NOTE CASE: Loui v. Oakley (1968)

g)      If D cannot bear burden of allocating damages between two accidents then should bear full cost of damages NOTE CASE: Gross v. Lyons (2000)

h)      If two independent forces concurred to produce a result and either independently would have produced same result, but for test will not apply NOTE CASE: Basko v. Sterling Drug, Inc. (1969)  Ordinarily cause could be analyzed in terms of a “but for test”: defendant’s negligence is a cause of fact of an injury where the injury would not have occurred but for defendant’s negligent conduct.  However the test will not work, in the situation where two independent forces concur to produce a result that either of them alone would have produced.  Either force can be said to be the cause in fact of the harm.  The causation element will be satisfied by a finding that the defendant’s negligence was a “substantial factor” in producing the harm.

i)        “The single tortfeasor cannot be allowed to escape through the meshes of a logical net.  He is a wrongdoer; let him unravel the casuistries resulting from his wrong.” - Judge Learned Hand

j)        SUPPLEMENT: Sindell v. Abbott Laboratories – Which one of these pills is not like the others? (1980)

(1)   Concert of action theory, enterprise liability theory, and alternative theory of liability (Summers v. Tice) all rejected.

(2)   Court decides to apply market share theory, based on a national market:

(a)    The court chose to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large.  This is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiff's injuries among defendants.  Each pill produced had the risk creating capacity of every other pill because they were all identical, or fungible.  The percentage of market occupied, how many pills, by each D would be fairly good equivalent of risk of harm created and D's overall culpability. 

k)      Hymowitz v. Eli Lilly & Co. – Same as above (1989)

(1)   Several plaintiffs brought separate suits against the several manufacturers of a drug used to prevent miscarriages, which injured the plaintiffs prenatally. Due to the fungible nature of the drug, however, none of the plaintiffs could establish which company manufactured the precise drug take by their mothers. RULE: If the plaintiff cannot prove which of multiple persons caused his injury, but can show that all produced a defective product, all of the defendant manufacturers will be held liable for the plaintiff’s injuries in proportion to each manufacturer’s market share of that product at the time of injury.

l)        D can be held liable even if he could not have caused injury if he was encouraging tortious action of others NOTE CASE: Orser v. George  (1967) - D3 was held jointly and severally liable with D1 and D2 – although his bullet could not have caused the injury – because he knew the others were acting tortiously and encouraged them by doing the same thing.  In this “concert-of-action”, the defendant knew the others were acting tortiously.  See Hypothetical given in class following Summers.  (Also applied in drag racing cases)

m)    Industry as a whole may be held liable depending on certain factors NOTE CASE: Hall v. E.I. Du Pont De Nemours & Co., Inc. (1972) - Defendants, acting independently, had adhered to an industry-wide standard with regard to the safety features of blasting caps, that they had in effect delegated some functions of safety investigation and design, such as labeling, to their trade association, and that there was industry-wide cooperation in the manufacture and design of blasting caps.  Hall was distinguished – “the standards followed by drug manufacturers are suggested or compelled by the government.  Adherence to those standards cannot, of course, absolve a manufacturer of liability to which it would otherwise be subject.  But since the government plays such a pervasive role in formulating the criteria for the testing and marketing of drugs, it would be unfair to impose upon a manufacturer liability for injuries resulting from the use of a drug which it did not supply simply because it followed the standards of the industry.”

n)      Says market share liability should be theory of last resort - NOTE CASE: Conley v. Boyle Drug Co. (1990) - Decided that the market should be as narrowly defined as the evidence in a given case allows (if it can be determined that mother ingested DES from particular pharmacy, that pharmacy should be considered the relevant market).  This is consistent with allowing exculpation by defendants who did not market in the region in which the DES was purchased.  Market share liability was a “theory of last resort” to be used only where need could be shown, after plaintiff showed due diligence in trying to find the specific source of the DES.

o)      Other possible applications for market share liability:

(1)   Asbestos - NOTE CASE: Goldman v. Johns-Manville Sales Corp. (1987) - The court observed that the essential condition required for market share treatment was “fungibility” – all the products made pursuant to a single formula.  Asbestos-containing products “do not create similar risks of harm because there are several varieties of asbestos fibers, and they are used in various quantities, even in the same class of products.”

(2)   Asbestos - NOTE CASE: Wheeler v. Raybestos-Manhattan (1992) - The court extended the market share approach to manufacturers of brake pads that used asbestos fibers because the pads were sufficiently fungible and their asbestos content was similar.

(3)   Lead paint - NOTE CASE: Santiago v. Sherwin Williams, Co. (1993) - Court did not impose market share liability on group of paint companies – some were not making lead paint during part of period in which plaintiff lived in house containing lead paint.  Also, there were other sources of lead.

(4)   Childhood vaccines NOTE CASE: Shackil v. Lederle Laboratories (1989) - Court refused to extend market share liability to manufacturers of diphtheria-typhoid-pertussis vaccine in a personal injury suit in which plaintiff could not identify the producer of the particular dose.  Public policy goals would be subverted by allowing market share liability for producers of vital vaccines.

(5)   Blood clotting factors NOTE CASE: Smith v. Cutter Biological, Inc. (1991) - If all defendants were negligent in their acquisition and production methods, the court thought it appropriate to develop “new rules of causation, for otherwise innocent patients would be left without a remedy.”  The court adopted a national market.

(6)   Paint shop products - NOTE CASE: Setliff v. E.I Du Pont de Nemours & Co. (1995) - Market share analysis rejected because there was no allegation that the products alleged to have caused the harm were fungible in their harmful capacity – only that VOCs (volatile organic compounds that plaintiff claimed he was harmed by) were common to paint and other related products.

5.      The Special Case of Toxic Harms

a)      Environmental Liability and the Tort System (1987)

(1)   Three critical characteristics that are found, singly or in combination, in every case of harm from toxics or other pollutants – these characteristics of environmental liability are problems of identification, boundaries and source.

(a)   Problems of Identification:  toxics of all sorts often breed disease rather than cause immediate injury.  As a consequence, the tort system is severely tested.  Since diseases do not occur instantaneously, there are serious time-lag issues.  And because diseases are frequently a product of background risks of living, technical information is essential to establish attribution.

(b)   Problems of Boundaries: The crux of the matter, again, is the accident/disease distinction.  The claims are potentially unbounded.  The ex ante assessment of limits on liability is often highly open-ended.  The aggregate exposure can be hard to define in advance.  The extent of harm may be unpredictable because the need for post-exposure treatment is extensive and the array of disorders is far more wide-ranging.

(i)                 Boundaries – an ex ante assessment of the magnitude of harm.  There is a challenge of unconfined liability intrinsic to many environmental harms.  Valuation of damages is the crux of the matter. 
It is both the two-party structure of traditional tort litigation and the underlying premise of sudden accidental injury that are confounded by environmental harm.

(c)    Problems of Source:  Environmental torts evoke an entirely different perspective on liability, one that is virtually unknown at common law.  Frequently, environmental harm is a consequence of the aggregate risk created by a considerable number of independently acting enterprises.  It is very often a collective harm.

B.     Proximate Cause

1.      Basic Doctrine

a)      This inquiry, granting that defendant’s negligence has been an actual cause of the plaintiff’s harm, seeks to determine whether the injury occurred under the circumstances that allow the defendant to argue plausibly against being requiring to compensate the plaintiff for that harm. Nothing to do with physical or scientific causation.

b)      Plaintiff has made out the elements of duty, breach of duty, and cause in fact OR

c)      The elements of duty, breach of duty, and cause in fact are sufficiently in dispute that the defendant cannot establish the absence of any of them as a matter of law

(1)   Defendant will argue that even a negligent defendant who actually caused the harm in question should not be liable for the plaintiff's harm.

(2)   The defendant will claim that his admitted or assumed negligence was not the proximate cause (or "legal cause") of the plaintiff's harm

(3)   One common feature of proximate cause – something quite unexpected has contributed either to the occurrence of the harm or to its severity

2.      Unexpected Harm

a)      A defendant is liable for the full extent of any foreseeable type of harm he negligently occasions.

b)      Benn v. Thomas – Introduction of the Eggshell Plaintiff Rule (1994)

(1)   The estate of a man who died fro a heart attack occasioned by a rear-end auto accident filed a suit against the driver who caused the accident for damages flowing from the death. RULE: A tortfeasor whose act, superimposed upon a prior condition of the defendant, results in a greater than expected injury, is nevertheless liable for the full extent of the harm.

c)      Eggshell Plaintiff Rule: This rule requires the defendant to take the plaintiff as he finds him, even if that means that the defendant must compensate the plaintiff for a harm an ordinary person would not have suffered.

d)     In Re Polemis (1921)

(1)   “The consequences which may reasonably be expected to result from a particular act are material only in reference to the question whether the act is or is not a negligent act.  (in contrast to – “those consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable”)  Once the act is negligent, the fact that its exact operation was not foreseen is immaterial…The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapor which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.”

e)      Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. - The Wagon Mound I Case (1961)

(1)   After being sued for causing an oil spill that later ignited, setting a nearby wharf ablaze, a shipping company sought to avoid liability on the ground that they could not be held liable because the fire was an unforeseeable consequence of the oil spill. RULE: A defendant is liable for only those consequences of his conduct that are reasonably foreseeable at the time he acts. 

(2)   This case overrules Polemis.

f)       Foreseeability becomes the effective test – if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was “direct” or “natural,” equally it would be wrong that he should escape liability, however “indirect” the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done.

g)      Wagon Mound does not alter Egg Shell Plaintiff rule with regard to foreseeability - NOTE CASE: Smith v. Leech Brain & Co. (1962) -The judge found that the worker had probably become pre-disposed to cancer by ten years of work in the gas industry earlier in this life and held that Wagon Mound did not alter the principle that a defendant must take his victim as he finds him: The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and he would die.  The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn.

h)      Act of God may enable D to escape liability - NOTE CASE: Blyth v. Birmingham Waterworks Co. (1856) - Defendant’s water main sprang a leak during an unprecedented frost and the escaping water damaged the plaintiff’s house.  “Such a state of circumstances constitutes a contingency against which no reasonable man can provide.  The result was an accident for which the defendants cannot be held liable.”

i)        Risk may be foreseeable but too small to dictate evasive action - NOTE CASE: Bolton v. Stone (1951) - The risk was not totally unforeseeable but rather was judged too small to dictate evasive action.  “But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude.  A reasonable man would only neglect such a risk if he had some valid reason for doing so – e.g. that it would involve considerable expense to eliminate the risk.”

j)        Different P allowed to recover because risk was slightly foreseeable and that was enough - NOTE CASE: Wagon Mound II (1967) - This plaintiff was able to recover against same defendants.  The risk here is slightly foreseeable. WM II brought by owners of ship, arguing risk of fire was slightly foreseeable and also their own conduct was not negligent à able to recover. Allows rule of Polemis to reenter through backdoor of slightly foreseeable. P in WM I, if arguing that it was foreseeable that furnace oil on water burned, then his conduct in creating sparks would make him contributorily negligent.  Contributory negligence at the time was an absolute bar to recovery. 

3.      Unexpected Manner

a)      Basic Doctrine

(1)   The exact sequence of events leading up to the injury does not need to be foreseeable to the defendant in order to hold him liable, so long as the harm caused to the plaintiff was of a foreseeable type.

b)      Intervening Causes

(1)   Where some intervening act, event, or person precipitates the plaintiff’s injury, the defendants whose negligent conduct preceded that intervening cause will only be held liable if that intervening cause was foreseeable.

c)      McLaughlin v. Mine Safety Appliances, Co. (1962)

(1)   When a nurse at a rescue scene used heating blocs in a manner to cause a rescued man to suffer third degree burns, the burn victim filed suit. RULE: A defendant is not liable for the plaintiff’s harm when the defendant could not have foreseen that a third party would negligently intervene to precipitate injury to the plaintiff.

4.      Unexpected Victim

a)      Basic Doctrine

(1)   A defendant is not liable to an unforeseeable plaintiff.

(2)   Palsgraf v. Long Island R.R. Co.(1928) – Most Famous Torts Case CARDOZO

(a)    Palsgraf sued LIRR Co. for injuries sustained when a package fell out of the hand of one of the train passengers and exploded. RULE: A defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger.

(b)   Reasoning by Cardozo: The D’s guard’s conduct was not a wrong to the plaintiff, standing far away.  Relatively to her it was not negligence at all.  Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.  The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.  The plaintiff must show “a wrong” to herself, a violation of her own right, and not merely to some one else, nor conduct “wrongful” because unsocial, but not “a wrong” to any one.  The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.  Wrong is defined in terms of the natural or probative, at lease when unintentional.  Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security.  One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. 

VII. Defenses

A.    Contributory Negligence

1.      Elements

a)      Actual cause

(1)   P’s conduct must be the actual cause of P’s harm.

b)      Proximate cause

(1)   P’s negligence must be a proximate cause of P’s harm.

2.      Traditionally, contributory negligence was a total bar to recovery.

B.     Comparative Negligence

1.      Instead of barring all recovery to a P who is contributorily negligent, the comparative negligence approach reduces the amount of P’s damages. There are three versions of the rule, two of which are lumped together.

2.      Three principle versions:

a)      “Pure” Comparative Negligence

(1)   The plaintiff who is 90% to blame for an accident can recover 10% of the damages from the defendant who was found to be 10% at fault.

b)      Modified” Comparative Negligence

(1)   Not As Great As

(a)    A plaintiff who is at fault can recover as under the pure system but only so long as that negligence is “not as great as” the defendant’s.

(2)   No Greater Than

(a)    A plaintiff can recover as under the pure system but only so long as that negligence is “no greater than” the defendant’s.

c)      Abolished doctrine of contributory negligence and adopted comparative negligence so Ps would no longer be barred from total recovery - SUPPLEMENT: Li v. Yellow Cab Co. (1975)

(1)   Abolished doctrine of contributory negligence and adopted a system of pure comparative negligence. Damages, instead of totally being barred, are now diminished in proportion to amount of negligence attributable to the person recovering.

(2)   Also held that defense of assumption of risk is merged into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of the risk involved is not more than a variant of contributory negligence.

C.    Assumption of Risk

1.      Express Agreements

a)      Exculpatory agreements are those whereby one party in advance holds the other party harmless for any injury or damage sustained.

(1)   Litigation concerning exculpatory agreements usually concerns whether they are enforceable even if clearly drafted, given the type of activity involved, and if so, whether the agreement is clear and unambiguous.

b)      Express assumption of the risk does not abrogate a business owner’s duty to business invitees to correct dangers that could have been foreseen and corrected.

c)      Dalury v. S-K-I, Ltd. – Skiers Must Sign Away Their Lives or No Skiing! (1995)

(1)   Injured skier sought to invalidate exculpatory agreement based upon violation of public policy. RULE: A skier’s assumption of the inherent risks of skiing does not abrogate the ski area’s duty to warn of or correct dangers that, in the exercise of reasonably prudence under the circumstances, could have been foreseen and corrected.

2.      Implied Assumption of Risk

a)      Implied assumption of risk exists for normal use of amusement park rides.

b)      Murphy v. Steeplechase Amusement Co. – The Sordid Tale of the Flopper (1929)

(1)   Murphy sued amusement park for injuries but the court held that he assumed the risk of sustained injuries by electing to go on the ride. RULE: One who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary.

(2)   CARDOZO: The negligence claim was dependent upon a sharp and sudden jerk.  A fall on “The Flopper” was foreseen as one of the risks of the adventure.  There would have been no point to the whole thing, no adventure about it, if the risk had not been there.  The name is a warning to the timid.  The experience of others was also a warning.  There is no adequate basis for a finding that the belt was out of order.  The greatest risk was a fall and that was the very hazard that was invited and foreseen.  It would have been a different case had the inherent dangers been obscure or unobserved.  Nothing happened to the plaintiff other than what common experiences tells us may happen at any time as the consequence of a sudden fall.  Evidence of insignificant injuries on other occasions does not suffice to show that the game was too perilous to be endured.

c)      Murphy would come out different if dangers inherent in the sport were obscure or unobserved - NOTE CASE: Tantillo v. Goldstein Bros. Amusement (1928) - Judgment affirmed in favor of 14-year-old plaintiff who was admitted to defendant’s show without paying in return for his agreement to participate in a vaudeville act.  He was hurt when one of the performers failed to catch him as he was tossed through the air.

d)     Participant in amateur sports would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct - NOTE CASE: Knight v. Jewett (1992) - Game of “peewee” football in which the plaintiff alleged that defendant played aggressively after she told him to “be careful”; plaintiff was knocked over and defendant stepped on her hand.  Appellate court affirmed trial court decision granting defendant summary judgment but split with regard to the right way to approach such cases.  The majority asserted that the crucial analysis was on the duty defendant owed the plaintiff.  If the defendant had met whatever duty was owed the plaintiff, the defendant would not be liable to plaintiff for anything.  If, on the other hand, the defendant had violated the duty owed plaintiff, the defendant would be liable, subject to a reduction for whatever contributory negligence might be shown.  Liability would flow “only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport.”  The defendant’s behavior in this case was at most careless.  The minority argued that the proper approach centered on the notion of the plaintiff’s “consent” to accept specific risks.

e)      Court rejects idea that vigorous participation will be chilled by invocation of negligence - NOTE CASE: Lestina v. West Bend Mut. Ins. Co. (1993) -The court held that negligence should be the governing principle; the majority rejected the notion that vigorous participation would be chilled by invocation of negligence.  They provided a list of material factors to be considered to determine whether a player’s conduct constitutes actionable negligence (or contributory negligence) on page 473.

f)       Duty of care is to avoid infliction of injury by reckless or intentional conduct - NOTE CASE: Crawn v. Campo (1994) - The court unanimously held that “the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.”  Two policy reasons: 1) the promotion of vigorous participation in athletic activities, and 2) to avoid a flood of litigation.

g)      Relied on Knight, but says D has duty to avoid increasing risk of injury - NOTE CASE: Freeman v. Hale (1994) -Court relied on Knight in upholding actions in situations in which prohibiting the conduct in question “would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”

h)      Used Knight to deny recovery when risk was inherent in skiing - NOTE CASE: Connelly v. Mammoth Mountain Ski Area (1995) - Court denied recovery under Knight when the plaintiff, an advancer skier, was skiing down an “advanced intermediate” run when his ski bindings released and he fell and slid downhill into a large metal tower supporting the ski lift.  The risk in this case was inherent in skiing within the doctrine of primary assumption of risk.  Mammoth owed no duty to Connelly to protect him from this inherent risk.

VIII. Hazardous Activity Strict Liability

A.    Doctrinal Development

1.      If you keep something on your land that escapes and causes damage, you are responsible for the damage - SUPPLEMENT: Fletcher v. Rylands (1866)

a)      A cotton mill operator built a reservoir on land adjacent to an underground mining operation. When the reservoir was filled, the water escaped through some old mine shafts and into the operational mines. RULE: The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and be answerable for all the damage that is the natural consequence of its escape.

2.      Court accepts Ryland notion of strict liability- SUPPLEMENT: Siegler v. Kuhlman (1973)

a)      Court felt Rylands rule of strict liability should apply to gasoline transported on public highways, because gasoline, which is in itself inherently dangerous, is even more dangerous when carried as freight and because most evidence will be destroyed in an explosion.

(1)   Six factors to consider:

(a)    High degree of risk to others

(b)   Harm likely to be serious

(c)    Cannot eliminate risk by exercise of reasonable care (most important factor)

(d)   Activity is not common

(e)    Activity is not appropriate for where it takes place

(f)    Danger outweighs value of activity

3.      Contributory negligence is not a defense, but assumption of risk may be

IX. Introduction to Strict Liability for Defective Products

A.    Introduction

1.      The law of product liability gradually developed from the 19th century’s requirement of privity of contract between the parties in order to sue under a theory of negligence, to establishing various exceptions which allowed a finding of negligence, and to the development of implied warranties, and eventually strict liability.

2.      MacPherson v. Buick Motor Co. (1916) (CARDOZO) – Manufacturers beware! Privity is dead!

a)      MacPherson, a purchaser of a car, was permitted to sue the manufacturer for negligence in spite of the lack of privity of contract. RULE: A manufacturer owes a duty to the user of the product even though the user did not purchase the product directly from the manufacturer. No privity needed.

3.      Famous English case required privity of contract in order for manufacturers, suppliers, and repairers to be held liable for their negligence - NOTE CASE: Winterbottom v. Wright

4.      Warranty Law: Before the Uniform Sales Act and its successor, the Uniform Commercial Code, codified the law of sales of goods, the common law of sales was applicable.

a)      NOTE CASE: Ryan v. Progressive Grocery Stores, Inc. – P’s husband swallowed a pin from a loaf of bread. The retailer who sold his wife the bread was held liable for breach of the implied warranty of merchantability, since a loaf of bread with a pin in it was not of merchantable quality.

5.      Escola v. Coca Cola Bottling Co. of Fresno (1944) – The case of the bottle that mysteriously exploded in the poor waitress’s hand

a)      Escola sued bottling company for injuries sustained due to exploding bottle and concurring opinion advocated strict liability for manufacturer. RULE: A non-manufacturing bottling company, which has exclusive control over bottles, can be held liable in negligence for an exploding bottle, even though it is not clear why the bottle exploded, based upon the doctrine of res ipsa loquitur.

b)      Traynor concurrence: A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used w/o inspection, proves to have a defect that causes injury. It is in the public interest to discourage the marketing of products having defects which are menacing. If such products find their way into the market, it is the responsibility of the manufacturer, even if there is no showing of negligence. Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer, who has sought to justify that faith by increasingly high standards of inspection, and a readiness to make good on defective products by way of replacements and refunds.

6.      The courts for the most part limited the warranty doctrine as a basis for strict liability in tort to food products cases until 1960 - NOTE CASE: Henningsen v. Bloomfield Motors, Inc. - In 1960, an implied warranty theory was applied beyond food cases to a defective automobile when the court held “immaterial” the lack of agency between the manufacturer and the dealer who makes the ultimate sale to the customer.

7.      In 1963, the CA SC held that manufacturers are strictly liable for their defective products based upon tort law, rather than an implied warranty based on contract lawNOTE CASE: Greenman v. Yuba Power Products, Inc. – A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

8.      In 1964, the CA SC held that 1) the manufacturer cannot insulate itself from liability by delegating final inspection and adjustment of the product to the retailer and, 2) the retailer is strictly liable in tort for the defective product it sellsNOTE CASE: Vandermark v. Ford Motor Co.

9.      In 1969, the CA SC extended strict liability protections to “bystanders”NOTE CASE: Elmore v. American Motors Corp. – They need more protection because they don’t even know where the product was bought, etc.

10.  Generally, sellers of used good are exempt from strict liabilityNOTE CASE: Tillman v. Vance Equipment Co.

11.  Under Restatement 2d Torts §402A, strict liability was imposed only for injuries caused by products that were defective and unreasonably dangerous. The elements required that the seller be in the business of selling the product, and that the product was expected to and did reach the consumer without substantial change.

a)      The more recent Restatement Third: Products Liability does not refer to strict liability or negligence, but generally requires the same elements as the Restatement 2d, and adding in the case of design and warning defects, that the risk of harm must be foreseeable.

(1)   Courts are split on whether to accept the third Restatement.

(2)   The only part of this Restatement that retains strict liability pertains to manufacturing defects.

b)      CA adopted two-prong approach rejecting Restatement §402A, instead requiring P to prove proximate cause, shifting burden to D.

12.  SUPPLEMENT: Prosser & Keeton on Torts (1984)

a)      Strict Liability of Lessors: Those who are in the business of renting products, such as automobiles, trucks, and the like, are often in an even more critical position than a retailer for affecting in a substantial way the incidence of harm from damaging events due to defectively dangerous defects in products rental.

b)      License to Use: In the future all enterprisers will be subject to strict liability for harm resulting from unreasonably dangerous conditions of things utilized by such enterprisers. Until such time, it would seem that strict liability should not be extended to one who licenses others to use on his premises unless the D is the business of providing the product to the public for such use.

c)      Services: Generally, no liability is imposed for sale of services (especially if the seller is engaged in selling pure services), but there are exceptions:

(1)   Sales/Service Hybrid (Newmark)

(2)   License to Use (Garcia)

(a)   Incidental – Necessary

(i)                 Not something that is just a mere convenience

(ii)               Example:  Using a shopping cart as a convenience in a grocery store.

(b)   Charge

(i)                 Example:  Operator of a Laundromat

(c)    Very different from a bailment/lease

d)     There are three primary factors courts take into consideration when deciding whether to impose strict liability on the D who causes harm in the course of using a defective product:

(1)   The nature of the defendant’s activity;

(2)   Whether the defective product was transmitted by D in the course of rendering a service or only used (sales-service hybrid);

(3)   Whether the service of the D or the product transmitted was the principle thing bargained for.

e)      Nolan’s Way to Determine

(1)   What was the essence of the transaction: sale of services or sale of products?

(2)   Was the defect in the product portion or service portion?

f)       NOTE: Perhaps in the final analysis, the real question is whether or not the service provider is the kind of enterpriser who ought in the public interest to be strictly accountable for harm resulting from the defects in things transmitted in the course of rendering services.

g)      Hospitals, medical doctors, and other health care professionals are rarely held strictly liable when, in the course of rendering health care services, defective products are transmitted.

13.  Hybrid Sales/Services

a)      SUPPLEMENT: Newmark v. Gimbel’s Inc.

(1)    P was injured by a permanent wave solution applied to her scalp by the D’s beauty parlor, NO sale of product. D was held strictly liable. “One who is in the regular course of business sells or applies a product (in the sense of the sales-service hybrid transaction involved in the which is involved in the present case) which is in such a dangerously defective condition as to cause physical harm to the consumer-patron, is liable for harm.” RULE: “When a patron responds to the solicitation she does so confident that any product used in the shop has come from a reliable original and can be trusted not to injure her….The products employed on her are under the control and selection of the operator; the patron is a mere passive recipient.”

b)      SUPPLEMENT: Garcia v. Halsett

(1)   P was injured while using a washing machine in a Laundromat, while his hand was in the machine it resumed spinning. P was permitted to recover against the owner of the Laundromat. RULE: Lack of safety device could constitute a defect in a strict products liability suit. 

B.     Manufacturing Defects

1.      Strict liability applies to products containing manufacturing defects. The defects are usually “latent,” meaning not obvious and easily identifiable.

2.      The law of strict products liability makes a seller responsible for the consequences of selling a defective product even if the defect was introduced without any fault on his part by his supplier or by his supplier’s supplier.

C.    Design Defects

1.      The Restatement 2d of Torts §402A requires that the product sold in a defective condition be “unreasonably dangerous” to the user of consumer NOTE CASE: Cronin v. JBE Olson Corp. – Not all courts require a finding of “unreasonably dangerous” to support a theory of strict liability design defect.

2.      A defectively designed product may be established if: 1) the product failed to perform safely as an ordinary customer would expect when used in an intended or reasonably foreseeable manner, or 2) through hindsight the jury determines that the product’s design embodies preventable danger - NOTE CASE: Barker v. Lull Engineering Co., Inc.

3.      Soule v. GM Corp. (1994) – The case of the defective toe pan and two smashed feet

a)      Soule, injured in a car accident, sued GM for design defect, and the jury was erroneously instructed on “consumer expectation” test, rather than “risk-benefit” test. RULE: Use of the consumer expectations test is not appropriate where the evidence does not permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users, and the jury should therefore be instructed on the alternative risk-benefit test of design defect.