Torts Outline: Professor Nolan
Torts
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
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)
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.
D.
Intentional Torts (NO PROXIMATE CAUSATION ISSUES)
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.
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.
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.”
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.
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.
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 liability. The
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.
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 threatening
–NOTE
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.
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. Busch
– Woman 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.
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 law
– NOTE 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 sells
– NOTE 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 liability
– NOTE 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.