Torts Outline Professor Heriot

Torts Outline

Professor Gail Heriot


I.       Introduction to the Torts Process: Liability for Harmful and Offensive Battery

A.    Some General Observations

i)        The Lawyer as Part of the Legal Profession

ii)      A Bird’s Eye View of the Law of Torts

B.     A Preliminary Look at the Adjudicatory Process

i)        The Investigation

ii)      The Pleadings

iii)    The Trial

iv)    The Appeal

(1)   Mechanisms for Resolving Disputes: Adjudication

C.     The Substantive Law Governing Liability for Battery

i)        Battery is the intentional, unprivileged, and either harmful or offensive contact with the person of another.

ii)      The Prima Facie Case

(a)    Act by the defendant

(b)   Intent

(c)    Harmful or offensive touching

(d)   Causation

(e)    (Lack of consent)

(2)   Act by Defendant

(a)    Must be volitional movement by the actor of some part of his body

(i)     Unconscious acts- i.e. the movement of persons having an epileptic seizure are not generally considered sufficient acts for the purpose of establishing liability

(3)   Intent

(a)    Whether the defendant had the requisite intent is measured by whether he acted with the desire to cause the result, or believed that they result was substantially certain to occur.

(b)   What Consequences Must the Defendant Intend?

(i)     Vosburg v. Putney

1.      The victim of a battery must only show either the alleged wrongdoer engaged in an unlawful act, or that he is at fault

2.      Whether or not Putney intended to cause harm is irrelevant.  Vosburg need only show that Putney had an unlawful intention or that Putney’s act was unlawful.

3.      Putney had to intend the physical contact, i.e. foot to knee, but he did not have to intend the resulting harm.

4.      Putney’s act was unlawful because he kicked Vosburg in a schoolroom, during school hours.  Vosburg did not consent.

(c)    Which Mental States Constitute Intent?

(i)     Garratt v. Dailey

1.      The defendant must have the desired harmful or offensive touching or believed that such a touching was substantially certain to result from his act.

(ii)   Transferred intent doctrine

1.      If the defendant acts intending to cause any one of these harms to a person, the defendant will be liable on an intentional tort theory if any of the five harms occurs to that person or to another person.  I.e. the intent is transferred to the person who ends up receiving the harm.

(4)   Contact

(a)    What Constitutes Contact?

(i)     To make out a case for battery, the plaintiff must show that the defendant’s intentional act resulted in the infliction of a harmful or offensive touching of the plaintiff’s person, or something so closely associated with the plaintiff as a to make the touching tantamount to a physical invasion of the plaintiff’s person.

(b)   Which Intended Contacts Are Wrongful?

(c)    Harmful or offensive touching

(i)     A touching is harmful if it injures, disfigures, impairs or causes pain to any bodily organ or function.

(ii)   A touching is offensive if it would offend a reasonable person’s sense of personal dignity.

(iii) Fisher v. Carrousel Motor Hotel

1.      Battery was found where defendant grabbed a plate out of the plaintiff’s hand.

2.      Actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body.

3.      Other examples include knocking a hat off of the plaintiff’s head, etc…

(iv) Leichtman v. WLW Jacor Communications, Inc.

1.      Contact that is offensive to a reasonable sense of personal dignity is offensive contact.

2.      For a trivial battery, nominal damages may be awarded.

iii)    Privileges

(1)   Consent

(a)    Consent is willingness in fact for conduct to occur.  It need not be communicated to the defendant.

(b)   There are two basic types of consent: consent based on the plaintiff’s behavior and consent implied by law.

(i)     Consent based on plaintiff’s behavior

1.      The plaintiff may consent by

a.       Actual express consent—when the plaintiff actually communicates to the defendant a willingness to submit to the defendant’s conduct; or

b.      Apparent consent—implied from the plaintiff’s conduct in light of the circumstances, i.e., plaintiff, by conduct, has led defendant reasonably to believe that plaintiff is willing to submit to defendant’s act.

(ii)   Consent implied by law

1.      The plaintiff’s consent may be implied by law to a bodily contact (e.g. surgery) that is necessary to save her life or some other cardinal interest in person or property, if:

a.       The plaintiff is unconscious or otherwise unable to consider the matter and grant or withhold consent.

(c)    O’Brien v. Cunard Steamship Co.

(i)     Silence and inaction may imply consent to defendant’s acts if the circumstances are such that a reasonable person would speak if he/she objected.

(ii)   O’Brien consented by showing her arm to the doctor while in line to be vaccinated.

(d)   For one to surrender the right to be free from intentional interference from others, one must have the mental capacity to consent.  Absent such capacity, courts hold the defendant legally responsible for the consequences of his tortious actions, despite the fact that the plaintiff was subjectively willing and communicated that willingness to defendant.

(e)    Barton v. Bee Line, Inc.

(i)     A female under the age of 18 has no cause of civil action against a male with whom she willingly consents, if she knows the nature and quality of her act.

(ii)   The court is upholding public policy and discouraging young girls to have sexual intercourse with men, by removing the profit incentive for young girls to sue.

(f)    Hudson v. Craft

(i)     An 18 year old prize fighter who voluntarily engages in prize fighting may recover for a civil action in battery, since the California statute was intended to protect youth from their own ill advised participation in an unregulated match.

(ii)   Consent from a minor may be invalid based on Public Policy by removing the profit incentive from the promoter.

(g)   Informed consent problem I:  A physician is given consent to perform a certain medical operation or treatment and thereafter extends the operation or treatment beyond the boundaries of the consent given (Kennedy v. Parrot).

(i)     Restatement §892 Conduct that injures another does not make the actor liable to the other, even though the other has not consented to it if

1.      an emergency makes it necessary, in order to prevent harm to the other, to act before there is an opportunity to obtain consent.

2.      the actor has no reason to believe that the other, if he had the opportunity to consent, would decline

(h)   Informed consent problem II:  Cases in which a doctor fails to explain to the patient the risk of side effects of a treatment to which the patient has consented.

(i)     Where treatment is unauthorized and performed without consent, the doctor has committed a battery.

(ii)   Where the doctor obtains consent but has breached a duty adequately to inform the patient of risks, the patient has a cause of action in negligence.

(i)     Bang v. Charles T. Miller Hospital

(i)     Where a physician or a surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation.

(j)     Kennedy v. Parrott

(i)     Where an internal operation is indicated, a surgeon may lawfully perform, and it is his duty to perform, such operation as good surgery demands, even when it means an extension of the operaton further than was originally contemplated, and for so doing he is not to be held in damages as for unauthorized operation.

(k)   Hackbart v. Cincinnati Bengals, Inc.

(i)     Football player sues for battery.  Issue of implied consent. By agreeing to participate in a violent game of football, does the Π consent to being hit?  The court rules no.  While participants consent to the violence in football, they do not consent to conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

(2)   Self Defense

(a)    Using non-deadly force

(i)     When acting in self defense, a defendant is privileged to use force that is not likely to cause death or serious bodily harm, subject to the following conditions:

1.      Reasonable apprehension of any bodily contact

a.       The plaintiff must have acted in a way that led the defendant to reasonably believe (either correctly or by reasonable mistake) that the plaintiff was about to inflict imminent harmful or offensive contact upon him; and

2.      Reasonable means used

a.       The defendant used only those means that appeared reasonably necessary to avoid or prevent the contact threatened.

(b)   Courvoisier v. Raymond

(i)     Where a defendant in  a civil action attempts to justify on a plea of necessary self defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances and also to the reasonableness of the means made use of.

(c)    Defense of Others

(i)     Usually the court will not recognize a reasonable error as to the defense of a third party.

(d)   Defense of Property

(i)     What you do to defend property is less than what you can do to protect self.

(ii)   Katko v. Briney

1.      Spring gun case.  Δ set up a spring gun on his property.  The spring gun injured Π, who brought suit against Δ.  Court held that Δ was liable even though Π was trespassing and burglarizing Δ’s property.

2.      Reasoning:  The law has always placed a higher value upon human safety than upon mere rights in property.  It is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels.

(e)    Necessity

(i)     Can look at tort law as a substitute for contract law, no chance to bargain so court imposes a deal.  Deal that ought to happen

(ii)   Ploof v. Putnam

1.      Putnam committed a battery when his servant untied Ploof’s boat as Ploof sought refuge from a violent storm.

2.      Necessity will justify entries upon the land of another and interferences with personal property that would otherwise have been trespasses.

(iii) Vincent v. Lake Erie Transportation Co.

1.      Lake Erie moored ship to Vincent’s dock.  After unloading cargo the ship stayed moored to the dock to wait out a storm.  During the storm the boat damaged Vincent’s dock.

2.      Court, Erie had every right to use dock, but must pay for damages incurred.

(f)    Miscellaneous Privileges

(i)     Parent child, although courts have partially or wholly abrogated near absolute tort immunity of parents at common law.

II.    Negligence

A.    The Origins and Early Development of the Negligence Concept

i)        For negligence to be found, the conduct must involve a risk of harm greater than society is willing to accept in light of the benefits to be derived from that activity.

ii)      The risk of harm must be unreasonable.

iii)    Brown v. Kendall

(1)   Kendall accidentally hit Brown in the eye with a stick while attempting to stop their dogs from fighting.

(2)   Shaw applied the negligence standard instead of the strict liability standard.

(3)   Each person owes a duty to behave as a reasonable person would under the same or similar circumstances.

(4)   Π has the duty to show by a preponderance of evidence that the Δ was acting without reasonable care.

(5)   No recovery for Π if:

(a)    Δ acted with care

(b)   Π didn’t act with care

(c)    Both Π and Δ didn’t act with care

B.     The General Standard

i)        § Reasonable Standard of Care

(1)   The standard of conduct to which one must conform to avoid being negligent is that of a reasonable man in like circumstances. 

ii)      United States v. Carroll Towing Co. (Learned Hand)

(1)   Barge attendant left a barge unattended for 21 hours, during which time the barge broke free and sank, due to the negligence of Carroll Towing.  The burden of having an attendant on the barge, at least during the day light hours, was less than the probability multiplied by the anticipated loss/harm.

(2)   An act is negligent if B<PL.  Burden must be less than the probability of the harm occurring multiplied by the anticipated harm/loss.

(3)   An act is reasonable when the benefits outweigh the cost.

(4)   Problems with the Carroll Towing formula :

(a)    What if the loss is death?  Then no matter how careful you are, you would always be negligent because PL would always  be greater than B (Loss is infinite)

(b)   Apply the formula backwards:  How much would you pay to have your arm broken?

iii)    Washington v. Louisiana Power and Light Co.

(1)   Π was electrocuted when his CB radio came into contact with Δ’s electric power lines.

(2)   Court overturns the jury verdict for the Π and rules in favor of the Δ.

(3)   According to the Carroll Towing formula, the risk poised by the electric company’s positioning of the power line was not unreasonable.

(4)   The positioning of the power line could not be characterized as an unreasonable risk and the power company’s failure to take additional precautions against it was not negligence.

C.     Special Rules Governing the Proof of Negligence

i)        Violation of Criminal Statutes

ii)      Statutes and Negligence Per Se

(1)   Statutes can fill in the standard of reasonable care with concrete requirements.

(a)    General elements judges apply to determine whether the statute is the standard of care:

(i)     Statute must be intended to protect the particular class of plaintiffs in question

(ii)   Violation of the statute must be unexcused—there must be no mitigating reason for breaking of the statute’s provision

(iii) Causation: failure to adhere to the statute must have caused the accident

(2)   How to determine whether a statute is meant to protect the class of plaintiffs of which the plaintiff is a member:

(a)    Gorris v. Scott

(i)     Sheep washed overboard since defendant failed to keep sheep in pens on ship.  Statute prevented keeping sheep in pens on ship.  Purpose of statute was to prevent spread of disease however, and not to prevent sheep from washing overboard.  Thus per se negligence cannot be applied.  Note:  This does not mean the plaintiff lost the case, it just means that the negligence per se case has become a case applying the normal negligence standard.

(3)   Martin v. Herzog

(a)    Case in which a buggy traveling along a road at night is hit by a car.  The buggy had failed to carry a light as required by statute.

(b)   The unexcused violation of a statute is per se negligence

(c)    Cardozo rules that violation of the statute constitutes negligence in itself.  This is so because the statute specifically sets a standard of care for this situation.

(4)   Tedla v. Ellman

(a)    Failure to observe a statutory rule does not constitute contributory negligence when:

(i)     Compliance with the statute increases the danger

(b)   Two junk collectors were pushing baby carriages full of junk along right side the road.  Statute provides that pedestrians must walk on the left side of the highway, against traffic.  Following the statute in this particular situation would have exposed them to greater danger, since much more traffic was going westwards at the time than eastwards. 

(5)   Brown v. Shyne (minority case)

(a)    Shyne employed Brown, a chiropractor to treat her.  Brown was practicing in N.Y. without a license and was guilty of practicing medicine without a license.  After several treatments, Shyne became paralyzed.

(b)   A licensing statute intended to protect the public against incompetent practitioners creates no liability against an unlicensed practitioner unless he is shown in fact to be incompetent.

(c)    Mere violation of a statute doesn’t constitute per se negligence, the harm must be within the risk thought by the legislature.

iii)    Custom

(1)   Trimarco v. Klein

(a)    Π injured himself when he fell through glass enclosing a tub.  Π offered testimony that installing tempered glass had become standard protocol by the date of the accident and that Δ did not comply with this practice.

(b)   Custom should be given strong deference. 

(c)    When proof of an accepted practice (custom) is accompanied by evidence that the Δ conformed to it, this may establish due care.

(d)   When proof of a customary practice is coupled with a showing that it was ignored, and this departure was a proximate cause of the accident, this may serve to establish liability.

(2)   The T.J. Hooper (Learned Hand)

(a)    Tug loses the barges that it was towing when it doesn’t hear about the oncoming storm since it had no incoming radio.  Most tugs at this time do not have radios, making the custom cut in favor of the Δ tug company. 

(b)   Regardless of the custom of an industry or trade, a Δ will be held liable if his actions fall beneath the standard of the average prudent man.

(c)    Learned Hand finds that in this case custom does not set the reasonable standard of care.  The tug could have easily had a radio, but failed to do so.

(3)   Helling v. Carey

(a)    Glaucoma case.  Δ ophthalmologist never administered a simple test for glaucoma.  Π developed glaucoma and lost a majority of her eyesight.  It is custom that the test for glaucoma is not administered to people under the age of 40 since glaucoma is so rare in such instances.

(b)    A physician who fails to give a simple test to a patient for a serious, though relatively rare disease is liable for the aggravation of that disease in that patient, where the patient is under periodic care of the physician.

(c)    No custom and no statute, so Π is left prove negligence by a cost benefit approach.

(4)   Medical Malpractice, Errata

(a)    For most courts in medical malpractice cases, professional custom is not just evidence of the standard of care; it is the standard of care.

(b)   The trend in recent years has been to depart from the “locality rule” and to turn to the country as a whole to determine medical custom, at least with respect to specialists.  Brune v. Belinkoff

iv)    Res Ipsa Loquitur

(1)   The thing speaks for itself.

(2)   Elements

(a)    This kind of accident does not ordinarily occur without negligence

(b)   The instrumentality was in exclusive control of the Δ

(c)    No contributory negligence on part of the Π

(3)   Byrne v. Boadle

(a)    Π was hit by a falling barrel of flour while walking by a shop.  Barrel fell out of the window in Δ shop.  Δ was a dealer in flour.  The Court ruled that negligence must be found.

(i)     Court reasons that accident could not have occurred without negligence.

(ii)   British barristers consider the doctrine of RIL vitally important because British law does not have as liberal discovery civil procedure rules as the United States.

(4)   Boyer v. Iowa High School Athletic Ass’n

(a)    Π was a spectator in the Δ’s gym when a section of the bleachers collapsed causing the Π’s injuries.

(b)   To invoke the doctrine of RIL, it is not necessary to show that evidence as to the cause of injury is accessible only to the Δ and not to the Π.

(5)   Shutt v. Kaufman’s Inc.

(a)    RIL does not apply if a Π has the means to establish negligence on the Δ behalf.

(b)   Shutt was injured at Kaufman’s shoe store when attempting to sit down on a chair.

(c)    Court held that the jury unreasonably applied RIL.

(d)   Since there were four possible negligent scenarios, no need to apply RIL.  Can’t have any direct evidence of how defendant behaved in connection with the event.

(6)   City of Louisville v. Humphrey

(a)    The RIL doctrine does not apply where the injury may have been caused by someone other than the Δ.

(b)   If an injury is caused by a person under the control or in the custody of a Δ, it must be shown that Δ knew of the violent propensities of that person.

(7)   Escola v. Coca Cola Bottling Co.

(a)    Majority affirms trial court’s use of a RIL instruction in case involving a waitress who was injured when a glass coke bottle burst in her hand.

(b)   RIL may apply where an accident occurs sometime after a Δ relinquishes control of the injury-causing instrumentality, if Π shows that the condition of the instrumentality did not change after it left Δ’s hands, and that Π handled it with due care.  RIL may apply if the accident is of such a nature that it would not ordinarily occur in the absence of negligence.

(c)    Traynor’s concurrence argues that strict liability should be used in cases like this rather than warranty or tort. 

III. Actual Causation

A.    Did the Defendant Cause the Plaintiff’s Harm?

i)        Plaintiff must prove that the defendant’s conduct caused the harm of which the plaintiff complains.

(1)   But for the defendant having acted at all, would the plaintiff nevertheless have suffered the same harm?

(a)    If no, then defendant’s conduct is established as a necessary condition of plaintiff suffering harm, and defendant’s was an actual cause of harm.

(b)   If yes, then the defendant’s conduct was not an actual cause.

ii)      Hoyt v. Jeffers

(1)   Jeffers mill was not safeguarded from emitting sparks.  Hoyt offered 8 years of circumstantial evidence of wind blowing sparks in the direction of Hoyt’s hotel and of houses catching of fire from the sparks. 

(2)   Circumstantial evidence is admissible to show causation, and it is for the jury to determine how much force and weight is to be given to such evidence.

(3)   Some connection between cause and harm is necessary, but direct evidence may not be necessary if circumstantial evidence is sufficient.

iii)    Smith v. Rapid Transit Inc.

(1)   Causation cannot be shown by mathematical probabilities in the absence of other convincing evidence. 

(2)   Probability alone is not sufficient to prove causation.

(3)   Smith collided with a parked car when a large bus forced her off the road.  Smith has the burden to prove the bus was a Rapid Transit, Inc. bus and she did not meet that burden.

B.     When One of Several Defendants Did It, But We Can’t Tell Which One: Alternative Liability

i)        Situations where but for cause cannot be determined, but still suffices for actual cause.

ii)      Summers v. Tice

(1)   When two or more persons by their acts are possibly the sole cause of a harm, and the plaintiff has introduced evidence that one of the two persons is culpable, then the defendant has the burden of proving that the other person was the sole cause of the harm, otherwise both defendants will be held as joint tortfeasors.

iii)    Ybarra v. Spangard

(1)   When an unexplained injury occurs during a medical procedure to a part of the body not under treatment, all of the doctors and medical personnel who took part in the medical procedure are held liable.

(2)   Court fears a conspiracy of silence

(3)   If you can prove that potential Δ’s have an incentive to be silent, Ybarra rule can be applied.

(4)   Often thought of as a RIL case, however this is not so.  Element 2 is not met.  You cannot apply RIL if you are not absolutely certain the act was caused by an agency of instrumentality in the exclusive control of the Δ.

iv)    Market Share Theory

(1)   Sindell v. Abbott Labs

(a)    Market share theory of liability is applied when companies lack the comparative advantage in determining which company’s drug had caused the cancer, and when the number of defendants is great and not all the possible defendants could be joined in one legal action.

(b)   Allocating liability equally overlooks the reality that some companies produced many times the quantities of the teratogenic compound compared with other small companies.

(c)    The burden shifts to each defendant to prove they did not actually cause the injuries.  Each defendant’s market share would approximate the probability that is caused the plaintiff’s injuries.

(d)   Many defendant’s, don’t know who did it, divide liability among them according to their market share, it is up to each defendant to prove their innocence.

C.     When Two or More Causal Agents Would, Independent of Each Other, Have Caused Plaintiff’s Harm: Concurrent and Successive Causation

i)        Dillon v. Twin State Gas & Electric Co.

(1)   Π was electrocuted from grabbing onto power lines when playing near them.  If he hadn’t been electrocuted from the lines, he would have fallen to his death upon the rocks below.

(2)   In this case Δ is liable for the loss of value of life for the period of when the Π was electrocuted to the point where he hit the ground.

(3)   The court is saying that Dillon would have died regardless.  It would be unreasonable to award the entire life damages when the electrocution only damages part of the life.

ii)      Kingston v. Chicago & N.W. Ry.

(1)   Δ locomotive caused a fire which joined with another fire of unknown cause in burning down Π’s property.

(2)   If the concurrent acts of two or more joint tortfeasors cause a wrong, each is individually responsible for the entire damage.

(3)   If both fires were started negligently, but the second fire occurred a month later, the initial fire starter would be liable for all of the damage, since the second fire caused no damage.

(4)   This case is distinct compared to Summers v. Tice because both fires are the actual cause of the total harm.  In Summers v. Tice, it is unknown which Δ caused the harm.

D.    Relationship Between Actual Causation and Vicarious Liability

i)        Masters, Servants, and Independent Contractors—Respondeat Superior

(1)   General Principles

(a)    Masters are vicariously liable for the torts of their servants, as long as they are committed while the servants are acting within the scope of their employment.

(b)   When determining whether Respondeat Superior applies, courts will ask if the employee was acting in a matter to serve the employer.

(c)    Deep pocket, sue the employer because more often than not, they can pay.

(2)   Distinguishing Servants from Independent Contractors

(3)   Relationship Between the Servant’s Conduct and the Scope of Employment

(4)   Exceptions to the General Rule of Nonliability of Independent Contractors

(5)   The Master’s Right of Indemnity Against the Servant

ii)      Other Forms of Vicarious Liability

(1)   Joint Enterprise

(2)   The Family Purpose Doctrine

E.     Proximate Cause—Directness and Foreseeability

i)        How far is the defendant liable in the chain of his causation.

ii)      In re Polemis & Furness, Withy & Co.

(1)   Liability for unforeseeable consequences.

(2)   While unloading P’s ship, worker D negligently knocked a plank into the hold.  This was negligent because of the unreasonable danger posed to cargo, to anyone working below, and to the ship’s hull.  Unknown to D, gas fumes were present in the hold. When the plank hit the bottom, it created a spark that ignited an unforeseeable fire, which in turn destroyed the hsip.  D was held liable, primarily on the theory that a negligent defendant should be liable for all harm he has directly caused; the fact that the actual risk created by D (explosion) differed from that reasonably to be anticipated (minor impact damage or plank hitting person) was immaterial.

(3)   Foreseeability of some harm is necessary in order to prove a breach of the duty of due care; Foreseeability of actual harm is not necessary to establish proximate cause if actual harm is the direct result of the negligent act.

(4)   2 potential acts could have bre

iii)    Palsgraf v. Long Island R.R.

(1)   In order for the Π to prove the Δ is negligent, the Π must prove that they are in a class of persons that would be foreseeably injured by the act.

(2)   Plasgraf was standing on a platform waiting for a train. The train came toward the station and a person chased after the train trying to catch it.  While attempting to board the train, to workers helped to pull the man aboard and in so doing dislodged a package from his arm.  The package was full of fireworks which went off once the package hit the ground.  The explosion of the fireworks was such that it dislodges some scales which in turn injured the plaintiff.

(3)   Cardozo view:

(a)    Relative to the plaintiff, the actions of the guards were not negligent at all.

(b)   This case is about duty.  The guards owed no duty of care to the woman on the other end of the platform since it was completely unforeseeable that the package would be explosive, and that she would be walking by the scales at that moment.

(c)    This is not proximate cause according to Cardozo, but rather one of duty.

(d)   Duty only extends to the “range of apprehension” of the defendant under the circumstances, unless three are other interests that justify cutting down the range.

(e)    This entire problem could be solved if Palsgraf had sued the railroad for not securing scales that may fall over.

(4)   Andrews view:

(a)    Andrews refocuses on proximate cause, finding that  duty doesn’t matter since everyone owes everyone a duty of care.  Proximate cause should be traced to the negligent action when there is between negligence and damage a:

(i)     Natural and continuous sequence, and

(ii)   The negligence was a substantial factor,

(iii) There is a direct connection,

(iv) The negligence was likely to produce the result; or

(v)   The negligence was too remote from the damage.

(b)   These are various characterizations he uses for the test he’s trying to nail down.  He suggests not using logic, but rather practical politics.  He suggests that issues like there are therefore jury questions.

(5)   Split between Cardozo and Andrews comes down to institutional views on the role of the jury.  Cardozo does not mind taking a case out of the scope of jury decision, while Andrew does.

iv)    Marshall v. Nugent

v)      Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (Wagon Mound (No. 1))

(1)   No liability for unforeseen consequences; Foreseeability of harm is required to establish proximate cause.

(2)   In Wagon Mound, D negligently discharged furnace oil into the bay.  A fire resulted and P’s dock was burned.  D was not held liable because, under the circumstances, only minor cloggage damage to P’s dock could have been foreseen; fire was not a foreseeable risk created by negligence.

(3)   Most courts reject the approach of the Polemis court and its rigid reliance on direct causation.  The majority emphasizes foreseeability and asserts that when an unforeseeable result occurs, it is unfair to hold the defendant liable—no matter what causation pattern has transpired.

F.      Proximate Cause (Herein of Duty)

i)        Proximate cause is asking how far is the Δ liable in the chain of his causation.

ii)      Physical Injury

(1)   Anticipated Harm

(a)    Always ask 2 questions for all unintentional torts

(i)     Why do we as community members regard this conduct as negligent?  By saying something is negligent, what is society trying to prevent?

(ii)   Is this the actual harm that happened?  Does the actual harm coincide with the anticipated harm?  If not, then no proximate cause.

(b)   For medical malpractice, use the customary standard and ask:

(i)     Why do the doctors (as custom) hold this procedure as unreasonable?

(ii)   Is this what happened?  If not, then not negligent under customary standard.

(2)   Ryan v. New York Central R.R.

(a)    The possibility of financial devastation is a factor that is taken into account when a court determines if a party is negligent for the harm caused by their actions.

(b)   A fire negligently caused by the defendant destroyed a woodshed.  The fire spread to Ryan’s property who sued N.Y. Railroad.  Ruling in favor of the defendant.

(c)    Not modern law but reflects the policy soup.

(d)   Polemis court would find in favor of plaintiff because no human intervention aided the spread of the fire, it was direct.  Don’t use the term ‘intervening cause’ in the exam.

(e)    If the Ryan court was decided today, 2 factors would likely persuade the court the other way:

(i)     Fire insurance

(ii)   Liability insurance

(f)    Bankruptcy laws

(3)   Berry v. Sugar Notch Borough

(a)    The harm must be that of what the society was trying to prevent by calling it negligent.

(b)   Π was driving his cart in excess of the proscribed speed when a tree branch fell and he hit the branch.  Speeding is held as negligent because speeding can cause the driver to lose control of the vehicle.  The anticipated harm however, never occurred.  The Π did not lose control of the vehicle, rather the motorman was simply in the wrong place at the wrong time.  The speed did not contribute the injury.

(4)   Brower v. New York Central & H.R.R.

(a)    Δ’s train ran into Π wagon, spilling Π’s goods across the tracks.  Later, thieves came and stole Π’s goods.  The court ruled in favor if Π, holding that the theft of the goods was foreseeable because the Δ employed 2 detectives in order to prevent theft of the Δ’s goods.

(b)   The act of a third person intervening and contributing to a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer, if such an act ought to have been foreseen.

(5)   Wagner v. International Ry.

(a)    Plaintiff and his cousin were riding in a train when the plaintiff’s cousin was thrown out onto a trestle.  Plaintiff then began to search for his cousin’s body.  In searching for his cousin’s body plaintiff fell through the trestle.

(b)   Danger invites rescue, where the negligent act of the defendant has put one in peril and where another is in the process of attempting to rescue the person in peril; the defendant is liable for injuries sustained by the rescuer.

G.    Special Instances of Nonliability for Foreseeable Consequences

i)        Mental and Emotional Upset

(1)   Waube v. Warrington

(a)    Waube witnessed her son being run over by Warrington and the resulting shock caused her death.

(b)   Waube lost the case because the resultant emotional harm wasn’t for her own safety and she wasn’t within the zone of danger.

ii)      Bystander Liability

(1)   Dillon v. Legg

(a)    Dillon’s infant daughter was struck by Legg’s vehicle.  Dillon witnessed the accident first hand, but was not within the zone of danger.

(b)   The zone of danger rule does not bar recovery for negligent infliction of emotional distress where a close family member outside the zone views an accident causing an injury or death to another family member.

(2)   Thing v. La Chusa

(a)    Thing’s son was struck and injured by an automobile driven by La Chusa.  Thing did not witness the accident, but suffered emotional distress after she came upon the scene of the accident.

(b)   Damages for emotional distress to a non injured party should be awarded only if:

(i)     The plaintiff is closely related to the injured victim

(ii)   Is present at the scene of the injury producing event to the victim

(iii) As a result, the plaintiff suffers normal emotional distress beyond that of a disinterested person

iii)    Direct Victims

(1)   Burgess v. Superior Court

(a)    After delivering her baby, Burgess was told something was wrong with her newly born infant and given sedatives.  The baby suffered permanent brain and nervous system damage. The plaintiff felt distress about the condition of the baby for the first time several hours later when she awoke from the sedative.

(b)   Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother breaches a duty owed directly to the mother.

iv)    Injury to Personal Relationships

(1)   Loss of Consortium

(2)   Feliciano v. Rosemar Silver Co.

(a)    Unmarried persons who are cohabitants may not recover for loss of consortium.

(b)   Feliciano lived with her partner for 20 years before her “husband” sustained personal injuries due to a wrongful act by his employer, Roseman Silver Co.

(c)    Firm rule, either you are married and you can recover for loss of consortium, or you aren’t married and you can’t recover.

v)      Purely Consequential Economic Loss

(1)   Barber Lines A/S v. M/V Donau Maru

(a)    Donau negligently spilled oil in Boston harbor.  This caused Π to unload at a different port and incur added expenses.

(b)   Damages for negligently caused financial harm are recoverable only upon a showing of physical injury to the plaintiff or his property.

(c)    Some physical injury is necessary to Π or property in order to collect for economic damages.

(2)   People Express Airlines, Inc., v. Consolidated Rail Corp.

(a)    Purely economic losses are compensable without physical injury or property damage if the negligent act results in economic harm that is particularly foreseeable.

(b)   Δ negligently allowed toxic chemicals to escape from a railway tank car requiring People to evacuate their airline at Newark.

(c)    If it is more than just foreseeable, i.e. foreseeable in the particular, then the economic harm that results from the negligent act is recoverable.

(d)   Evacuating a small crab shack that is located adjacent to the (airport or rail corp???) is not foreseeable in the particular.

H.    Contributory Fault

i)        Contributory Negligence

(1)   Contributory negligence is a complete defense to an UNINTENTIONAL TORT (it is NOT a defense to an intentional tort!!!)

(2)   The burden is on the defendant to prove contributory negligence

(3)   Causation, actual and proximate cause are just as important.

(4)   Butterfield v. Forrester

(a)    A plaintiff will not be able to recover where his lack of due care contributed to the occurrence of the accident.

(b)   Forrester was making some repairs to his house and laid a pole across part of the road.  Butterfield was riding his horse fast and hit the pole, injuring himself.  Had Butterfield not been riding so fast, he could have avoided the pole and the injury.

(5)   Davies v. Mann (Last clear chance)

(a)    The plaintiff had shackled the legs of his mule and set it to graze near a road.  The defendant was driving a horse drawn cart at a high speed and hit the plaintiff’s mule, killing it.

(b)   A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for the harm caused if immediately preceding the harm the defendant is negligent in failing to utilize with reasonable care and competence his opportunity to avoid the harm.

(c)    The Π may argue that he is contributorily negligent, but that the Δ had the last clear chance to prevent the harm that occurred. 

(d)   I.e. the last clear chance doctrine is a defense to a defense.

ii)      Assumption of the Risk

(1)   The second big common law defense to unintentional tort

(2)   Elements of Assumption of Risk

(a)    A has actual knowledge of the specific risk

(b)   A understands the magnitude of the risk

(c)    A freely and voluntarily encounters the risk

(3)   Meistrich v. Casino Arena Attractions, Inc.

(a)    Assumption of risk is not a defense independent of contributory negligence.

(b)   Meistrich was injured when he fell on the Δ ice rink which was prepared in a too slippery manner.  Π was aware that his skates were slipping, but proceeded to skate until he fell and injured himself.

iii)    Comparative Negligence

(1)   Uniform Comparative Fault Act

(a)    Handout

(2)   Knight v. Jewett

(a)    A participant in an actives sport breaches a duty of care to the other participants only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

(b)   Knight was injured in a touch football game when Jewett collided with her.  Jewett argued that Knight assumed the risk of injury by playing in the game.

iv)    Immunities

(1)   Governmental Immunity

(a)    Stems from the old common law adage that “the King can do no wrong.”


(i)     When and how one can sue the government, sets standards which are more restricted than normal tort proceedings.

1.      For example:

a.       Must first file claim against the agency which you seek to bring action.

b.      Only if the agency turns a deaf ear can you THEN take your claim to Federal court.

c.       In court there is no jury, only judges.

(2)   Charitable Immunity (?)

(a)    It used to be that we did not want to waste the charities expenses in lawsuits.  I.e. if you are hit by a Goodwill truck, you couldn’t sue Goodwill.

(b)   Today there are statutes that deal with recipients of charity, i.e. if you get sick from a soup kitchen, you cannot sue them because they are trying to help you.

(3)   Intrafamily Immunities

(a)    Parent/Child

(i)     Immunity is not based on a single legal entity, but rather that parents are better able to raise their children than juries are.  Sometimes it is important to batter children, i.e. spank to make them take medicine.

(b)   Spousal Immunity

(i)     Spousal immunity is significantly reduced, but not entirely gone.

(ii)   18th Century common law was such that married people could not sue each other because they were a single legal entity.

(iii) When women were given separate legal status the courts developed other reasons to justify the common law spousal immunity.

1.      Lawsuit between marital partners would interfere with the marriage

2.      Collusion

a.       It is very easy for a married couple to collude liability insurance companies.

I.       Modification of the General Standard Arising Out of Special Relationships Between the Parties

i)        Responsibility of Possessors of Land for the Safety of Trespassers, Licensees, and Invitees

(1)   Licensees

(a)    A social guest; a person who is permitted to enter upon property expressly or impliedly, but without a business purpose.

(b)   DUTY:

(i)     Duty to refrain from willful, wanton, or intentional injury

(ii)   Duty to use reasonable care to warn of hidden dangers known to Landowner or Occupier

(iii) Duty to refrain from committing affirmative acts of negligence

(2)   Invitees

(a)    A business guest; a person who expressly or explicitly enters upon the land for the purpose, directly or indirectly connected with the business of the property owner.

(b)   Example:  If you own a department store, customers, employees, and plumbers are the invitees.

(c)    Can be divided into public and private.

(d)   DUTY

(i)     Duty to refrain from willful, wanton, or intentional injury

(ii)   Duty to use reasonable care to warn of hidden dangers known to the Landowner or Occupier

(iii) Duty to refrain from committing affirmative acts of negligence

(iv) Duty to use reasonable care to keep the property reasonably safe.

(3)   Trespassers

(a)    Anyone who does not have authorization to be on the property, not just burglars, but it could even be a child who is taking a shortcut to school.

(b)   DUTY

(i)     Duty to refrain from willful, wanton or intentional injury, there is no duty to the trespasser to prevent harm.

(ii)   Exceptions:

1.      §335: Artificial Conditions Highly Dagnerous to Constant Trespassers on Limited Area
§337: Artificial Conditions Highly Dangerous to Known Trespassers
§339: Artificial Conditions Highly Dangerous to Trespassing Children

2.      These sections do not apply to natural conditions on the land!!!!

(4)   Rowland v. Christian

(a)    The plaintiff was a social guest in the defendant’s apartment.  The plaintiff asked to use the bathroom, and while he was in the bathroom, a cracked handle of a water faucet broke in his hand, causing severe injuries.  The defendant was aware that the handle was cracked, and had so informed her landlord and had asked that it be replaced, but she did not warn the plaintiff of the condition of the handle.

(b)   Where the occupier of land is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

(c)    A licensee may recover for damages that result from the defendant’s negligence.

(d)   Policy:  The court decided to sweep away from the old common law categories and adopt the rule of reasonableness for every category.  This approach may be simpler but makes every case a question for the jury.  The judge can’t dismiss.  Example, the burglar who is injured by falling through the glass roof of the school could recover under Rowland.

ii)      Responsibility of Common Carriers for the Safety of Their Passengers

(1)   In most states, common carriers are held to a duty to their passengers higher than that of reasonable care.

iii)    Responsibility of Operators of Motor Vehicles for the Safety of Their Passengers

(1)   A few states have laws that lower the standard of care owed by operators of automobiles to their non-paying guests.

J.       Limitations on Liability

i)        The Absence of a General Duty to Rescue

(1)   Erie R. Co. v. Stewart

(a)    A party who voluntarily assumes a duty not imposed upon him by law may be deemed negligent if, without prior notice, he discontinues his performance of the duty.

(b)   Δ employed a watchman at the crossing where the Π was struck by an oncoming train.  The train company was not required to provide a watchman.  The plaintiff was aware of the fact that the watchman was normally on duty.

(2)   Tubbs v. Argus

(a)    One who has reason to know that his conduct, whether a tort or innocent, caused bodily harm to another so as to make the victim helpless and in further danger, has a duty of reasonable care to prevent foreseeable additional further injuries.

(b)   Tubbs was riding as a guest passenger in the right front seat of an automobile owned and operated by Argus when it was driven over the curb and into a tree.  After the accident the Argus abandoned the automobile and did not render reasonable aid and assistance to the injured Tubbs.

(c)    When the Δ has created a risk, he has a duty to exercise reasonable care to prevent the harm from being aggravated.

(3)   Tarasoff v. Regents of University of California

(a)    Poddar told Therapist that he intended to kill Tarasoff.  The Therapist thought Poddar was serious and he notified authorities.  Poddar killed Tarasoff, and Tarasoff’s parents brought a wrongful death action against the Therapist.

(b)   Rule:  Once a therapist knows, or should know, that his patient presents a real danger to a 3rd party, he has a duty to warn or take reasonable actions to prevent the injury to the 3rd party.

(c)    Paradox of confidentiality and disclosure

(i)     The Therapist not only has a duty to use reasonable care to protect Tarasoff, but the Therapist also had a duty of confidentiality to the patient.  Thus the therapist is either required to disclose or is forbidden from disclosing.

IV. Trespass to Land and Nuisance

A.    Trespass

i)        Trespass involves real physical impacts

ii)      Trespass to real property is analogous to batter

iii)    Trespass requires an intent to move upon someone’s land, it doesn’t require an intent to be knowingly a trespasser

iv)    The reasonableness standard is not taken into account

B.     Nuisance

i)        Nuisance involves harm from things such as noise, smell, and vibrations.

ii)      The law for nuisance is closely analogous to physical impacts, but not fully.  The reasonableness of the conduct is taken into account.

iii)    The burden of nuisance is greater than that of trespass, and greater than that of other unintentional torts.

C.     Judicial Applications of the Substantive Law           

i)        Peters v. Archambault

(1)   Peter surveyed his land and found that his neighbor Archambault had built a structure encroaching upon Peters land.  Peters sued to get the encroachment removed.  The court granted the removal.

(2)   Not a nuisance but a trespass case.

(3)   A landowner is entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or unreasonable and the cost of removal is substantial.

(4)   The intent to build upon the land is sufficient to satisfy the tort of trespass, even though Archambault didn’t intend to be trespassing.

ii)      Adams v. Cleveland-Cliffs Iron Co.

(1)   The law of trespass does not cover airborne particulate, noise, or vibrations.  These irritants are considered nuisance.

(2)   An act cannot be both a trespass and a nuisance.  Jury found no nuisance, and they should not have been instructed on the trespass claim.  Ruling for the defendant.

iii)    Davis v. Georgia-Pacific Corp.

(1)   The court ruled that the deposit of airborne particulates constituted a trespass even though the particulates were so small as to be invisible in air.

(2)   The court found for the plaintiff, but Heriot notes that this is the wrong approach.  The intrusion of fumes, gas, and or smoke should be nuisance, and not trespass.

iv)    Waschak v. Moffat

(1)   Where the utility of the defendant’s conduct outweighs the gravity of harm it causes, and plaintiff injury did not result from the defendant’s intentional conduct, no liability may be imposed for the maintenance of nuisance.

(2)   The intentional nuisance claim is subject to the rule of reasonableness in restatement §826.  The gravity of the harm did not outweigh the conduct, and the harm is not serious.  Ruling for the defendant.

v)      Boomer v. Atlantic Cement Co.

(1)   A court may award permanent damages in lieu of an injunction where there is a marked disparity in economic consequences between the effect of an injunction and the effect of the nuisance.

vi)    Spur Industries, Inc. v. Del E. Webb Development Co.

(1)   The party benefiting from the injunction must indemnify the business for a reasonable cost of moving or shutting down once the injunction is enforced.

(2)   “Coming to the nuisance.”  A party’s claim may be weakened when a plaintiff moved to the defendant’s established locale.

V.    Strict Liability

A.    Strict liability is as old as tort law itself,, it became arcane, but is making a comeback

B.     History

i)        Under the first restatement, the key term was “ultrahazardous activities.”  Under the first restatement an activity was ultrahazardous if it involved a risk of serious harm to the person, land, or chattels of others that could not beeliminated by the exercise of utmost care was not a matter of common usage.

ii)      Under the second restatement “abnormally dangerous activities” is the standard used to determine SL.

(1)   Factors to be considered

(a)    Whether the activity involved a high degree of risk of some harm to the person, land or chattels of others (Siegler)

(b)   Whether the gravity of the harm which may result from it is likely to be great

(c)    Whether the risk cannot be eliminated by the exercise of reasonable care

(d)   Whether the activity is not a matter of common usage (non reciprocal risk factor)

(e)    Whether the activity is inappropriate to the place where it is carried on

(f)    The value of the activity to the community (Turner v. Big Lake Oil)

C.     SL is causation based; there is no need to show duty, breach, etc.  An SL situation is arises when the Δ through his activities, imposes excessive risk upon the plaintiff, without the plaintiff imposing any risk upon the Δ or himself.

D.    Maintaining Custody of Animals

i)        Strict liability applied to the keeping of wild animals on ones property

ii)      Also applies to domestic animals if you should have known that the animal was dangerous.  A mix of SL and negligence.

E.     Abnormally Dangerous Activities

i)        Fletcher v. Rylands

(1)   A person who brings something onto his land which is potentially harmful if it escapes is strictly liable for all the natural consequences of such escape.  Ruling in favor of plaintiff.

(2)   The true rule of law is that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it as his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of his escape.

(3)   Stems from common law rule about keeping animals.

ii)      Rylands v. Fletcher (House of Lords)

(1)   A person using his land for a dangerous, non-natural use is strictly liable for damage to another’s property resulting from non-natural use.  Ruling in favor of plaintiff.

(2)   Emphasis that Δ should be strictly liable for “non-natural” uses of the land when damage results to a Π’s land or to the Π when upon his land.

iii)    Turner v. Big Lake Oil Co.

(1)   Absent proof of negligence, there is no liability for injuries caused by ordinary usual activities.

(2)   Refuses to apply the rule in Rylands v. Fletcher because reservoirs were necessary for life in the arid western Texas plains.

iv)    Siegler v. Kuhlman

(1)   Hauling gasoline as freight involves such a high risk of serious harm which cannot be eliminated by due care, that strict liability must be imposed for damages resulting from an explosion or ignition.

(2)   A young girl drove into a gasoline loaded truck that had crashed.

v)      Foster v. Preston Mill Co.

(1)   Strict liability is only imposed for those injuries resulting from the natural consequences of that which makes an activity ultra hazardous.

(2)   Blasting operations carried on by Preston Mill Co. frightened the mink on Foster’s mink farm, causing the mink to eat their kittens and Foster to lose money.  Ruling in favor of Preston Mill Co.

VI. Damages and Insurance

A.    Background

i)        The burden is on the Π to prove damages

ii)      Nominal damages are not allowed for unintentional torts

iii)    Goal of damages

(1)   To put the Π in as good a position had the tort not been committed

iv)    Common Damages

(1)   Medical expenses (past and future)

(2)   Loss of wages and other economic damages (past and future)

(3)   Pain and suffering (past and future)

B.     Compensatory Damages

i)        Jones & Laughlin Steel Corp. v. Pfeifer

(1)   Issue is how court will award future damages

(2)   Included in pain and emotional suffering is some loss of enjoyment of life.

(3)   For most damage awards, reliance v. expectation measures does not become an issue because they are one and the same.  Nobody expects a tort to happen.

(4)   The tort of misrepresentation differs from normal torts

(a)    The traditional view was to award reliance damages to put the injured party in a position where they would have been, had there been no tort.

(b)   The 20th Century court has awarded expectation damages to put the injured party in the position they would have been in had the misrepresentation been true.

ii)      The Lump Sum Rule

(1)   A lot of speculation is involved in determining future medical expenses and future lost wages

(2)   The lump sum rule requires the court to determine what the total damages are and awards total damages in trial

iii)    Present Value

(1)   In large awards the court will insist some calculation be taken to reduce the damage award to present value.

(2)   There are two methods used to determine the present value.

(a)    Market Rate Method

(i)     Making predictions about the future, including inflation

(ii)   Mark up award to account for inflation, and then mark down the appropriate interest rate.  This will always result in a net loss because money is always more valuable now rather than later.

(b)   Real Rate of Interest Method

(i)     This method does not take into account inflation

(ii)   This involves a hypothetical interest rate that will prevail in an interest free economy

(iii) Normally 1-3%

(iv) Inflation and interest rate do not cancel each other out

iv)    Seffert v. Los Angeles Transit Lines

(1)   Jury awards $134,000 for pain and suffering after Π was severely injured trying to catch a bus

(2)   Traynor dissents.  Although Traynor agrees with the liability issue, he feels the award for pain and suffering is too extensive.

(3)   Traynor is a compensationalist.

(4)   Traynor is broad on liability and narrow on damages.  He views tort law as a means of avoiding financial devastation.

(5)   Judges who agree with the collateral source rule are narrow on liability and broad on damages.  These judges see deterrence as their main goal.

v)      Collateral Source Rule

(1)   If a victim receives benefits from insurance or a 3rd party for damages, then Δ is still responsible for a full recovery for the Π.

(2)   Rationale:

(a)    Deterrence.  We want people to fully internalize the loss they impose on others.

C.     Introduction to Insurance

i)        Loss Insurance, Collateral Sources and Subrogation

(1)   Frost v. Porter Leasing Corp.

(a)    In the absence of a subrogation clause agreement between the insurer and the insured, an insurer that paid medical expense benefits had no right to share in the proceeds of the insured’s recovery against the tortfeasor.

D.    Cases Involving Dead People

i)        Background

(1)   In the 18th century the common law rule was that if a person died, all causes of action died as well.

(2)   This led to perverse incentives to the Δ’s, so British Parliament adopted two kinds of statutes, Survival Acts and the Wrongrul Death Act.

ii)      Causes of Action

(1)   Causes of action include any and all causes of action the decedent may have had, including outstanding litigation and litigation resulting from the accident which caused death.

(2)   Includes causes of action brought by the decedent or someone else.

(3)   Survival Acts; Wrongful Death; Loss of Consortium

iii)    Survival Act (basic negligence cause of action)

(1)   Cause of action that occurs once the accident occurs; perfectly routine, does not involve death

(2)   Under the normal negligence cause of action, the injured party can recover for 3 expenses

(a)    Medical expenses resulting from the accident

(b)   Lost wages from the period of the accident until death

(c)    Pain and suffering for the conscious period of time while suffering from the period of the accident until death.

(3)   Grief itself isn’t ordinarily recoverable but the loss of guidance is, especially for a child who loses their parent(s)

(4)   Completely statutory, usually the damage goes to the spouse, children—people who relied up on the decedents resources who are identified in the statute.

iv)    Wrongful Death Cause of Action

(1)   Does not come into being until the moment of death

(2)   It will include whatever the statute says it will include.  (DOES NOT include medical expenses, but DOES include post death loss of consortium and funeral expenses.)

v)      Loss of Consortium

(1)   Only for loss of consortium from the period of accident until death

(2)   Any loss of consortium for after death is included in the Wrongful Death Act

VII.          Products Liability

A.    In the Beginning There Was Privity: The Negligence Action

B.     4 Historical Phases of Products Liability

i)        Winterbottom v. Wright Phase

(1)   A contract existed between a post office and a carriage company.  There was also a contract between the post office and the Π.

(2)   Π brought action against the carriage company, of which there was no contract between them.

(3)   Court held that since there is no privity between Π and carriage company, there can be no cause of action for products liability.

(4)   This is a departure from the ordinary tort notion of directness, foreseeability, reasonableness, and actions without a contract.

(5)   2 Reasons why no products liability if no K

(a)    Without such a requirement too many lawsuits would be filed

(b)   If we were to enforce products liability without privity of contract, this would force the Δ to go beyond what he contracted to do.

ii)      MacPherson v. Buick Phase

(1)   Justice Cardozo slays the privity dragon, no longer a requirement of privity of contract to recover for products liability

(2)   Negligence still required

(3)   Δ was an automobile manufacturer who obtained wheels for its automobile from a separate manufacturer. Δ sold its vehicles to dealers.  Π bought vehicle from dealer and Π was riding in the car when it collapsed causing injury.

(4)   In affirming the lower court, the Δ was responsible for the finished product and was not at liberty to place the finished product on the market without subjecting the component parts to ordinary and simple tests.

iii)    Escola/Greenman Phase

(1)   No proof of negligence, no privity of contract requirement

(2)   Application of strict liability

(3)   Escola v. Coca Cola Bottling Co.

(a)    Majority affirms trial court’s use of a res ipsa loquitur instruction in a case involving a waitress who was injured when glass Coke bottle burst in her hand.

(b)   Traynor’s concurrence argues that strict liability should be used in cases like this rather than warranty or tort. 

(c)    Public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products.

(4)   Greenman v. Yuba Power Products

(a)    Traynor applies strict liability reasoning to a case involving a man who was injured using a power tool.

(b)   Manufacturers and supplies of defective products are held strictly liable in tort to consumers and users for injuries caused by the defect.

(c)    Liability without fault is imposed as a matter of public policy, due to the grave risk of harm in placing defective products in the stream of commerce.

(d)   Rationale:  A defendant manufacturer is usually better able to distribute the risk of loss than is the innocent consumer, i.e. the manufacturer can better estimate the risks and spread the costs over his operations or pass it on the public in the form of higher prices.

(5)   2d Restatement 402A

(a)    Not only the manufacturers but also the sellers may be SL for product defects.  Bystanders are still omitted.

(b)   Flaw of 402A

(i)     No distinction among manufacturing defects, design defects, and failure to warn.  Also its intent was to cover unreasonably dangerous products only, but it allows for defective products as well.

(ii)   Note that it must cause physical harm.  If the product just harms itself, it is no longer treated by tort law, but treated in contracts as breach of warranty.

iv)    3d Restatement Phase

(1)   The restatement takes a different approach, allowing for SL where one or more of three types of defects are present

(a)    Manufacturing defect—departs from intended design

(b)   Defect in design—but only if there is a reasonable alternative design, and such defect must render product “not reasonably safe”

(c)    Defective by reason of inadequate instruction or warning—such as to render it not reasonably safe

(2)   A product is defective when there’s a manufacturing defect, when an alternative design could have been adopted to reduce foreseeable harm, and when there is an omitted failure to warn which otherwise would have reduced the harm.

C.     The Implied Warranty of Merchantability: The Contract Action

D.    Strict Liability: Combining Contract and Tort

E.     The Hard Work: Defining and Proving Defect

i)        Manufacturing Defects

(1)   In a manufacturing defect case, the product is not in the condition the manufacturer intended at the time it left his control; i.e.; the product does not conform to the manufacturer’s own production standards.

(2)   Welge v. Planters Lifesavers Co.

(a)    Posner reversed the lower courts summary judgment in favor of defendant.  Posner held that a seller who was subject to strict products liability was responsible for a defect even if the defect was introduced  without any fault on his party or by his suppliers, supplier.  The court found that the plaintiff consumer’s accident was not due to mishandling or misuse after purchase but to a defect that had been introduced earlier by the manufacturer.

ii)      The Restatement and Case Law on Inference of Defect

iii)    Design Defect

(1)   In a design defect case, the product was in the condition intended by the manufacturer or supplier, but was designed in such a way that it presented an undue risk of harm in normal use.

(2)   Risk-Utility Balancing: Reasonable Alternative Design

(a)    Prentis v. Yale Manufacturing Co.

(i)     Supreme Court reverses appellate court’s applying a negligence standard. Supreme Court applies negligence standard to defective forklift.

(ii)   The court is stating that there is no difference between a breach of an implied warranty and a negligent design; they are indistinguishable.

(iii) In order to prove strict liability, still must prove proximate cause and damages, just not duty or breach of duty.

(3)   Does Risk-Utility Balancing Require Proof of a Reasonable Alternative Design (No according to Vautour)

(a)    Vautour v. Body Masters Sports Industries, Inc.

(i)     This is a products liability case arising out of an injury that the plaintiff received while working out using the defendant’s leg press machine.  The plaintiff was doing calf raises without the upper stops engaged.  During the exercise the weight sled slid rapidly up to his chest, bending his knees and injuring him.

(ii)   The injured person presented sufficient evidence that the leg press machine was unreasonably dangerous pursuant to the risk-utility balancing test, therefore the manufacturer is held to strict liability.

(iii) A risk-utility test is the proper measure for determining whether a plaintiff may recover in a design defect case.

(iv) The burden was to present evidence regarding the risk-utility factors; the injured person did not have the duty of proving a safer alternative design.

(4)   Consumer Expectations Test

(a)    Potter v. Chicago Pneumatic Tool Co.

(i)     The availability of a feasible alternative design is a factor that the plaintiff may, rather than must, prove in order to establish that product risks outweigh its utility.

(ii)   Modified consumer expectation test; Provides jury with the product’s risks and utility and then inquires whether a reasonable consumer would consider the product unreasonably dangerous.

(5)   The Two Pronged Test for Defect

(a)    Soule v. General Motors Corp.

(i)     Π car’s toe pan collapses when the left front wheel is struck, injuring her ankles.  What test should the court use for determining whether the toe pan was defective?

(ii)   Two choices:

1.      The consumer expectations test: does it meet normal safety expectations of a reasonable consumer?

2.      Risk-Utility test: does the risk of danger inherent in the design outweigh the benefits of such a design?  Is there excessive preventable danger?

(iii) To apply consumer expectations here would be to invite total jury discretion.  They have no expectations about the safety of a toe pan.  Therefore the court finds that in this case a risk-utility instruction should have been given to the jury instead.  The court refuses to abolish the consumer expectations test entirely: in some cases, the normal consumer will still be well-informed enough to determine reasonable safety.

(6)   Should Product Categories Be Declared Defective

(a)    O’Brien v. Muskin Corp

(i)     Π was seriously injured when he slipped on the liner in a swimming pool manufactured by Δ.  Π sued claiming Δ’s product was defectively designed.

(ii)   Δ shows that there was no way to make a less-slippery bottom for above ground pools.

(iii)   The court held that a jury could reasonably find that despite the lack of alternative feasible designs, above-ground pools are simply so hazardous that their risk outweighs their utility s that Δ’s design is defective.

(7)   Failure to Warn

(a)    Should we force companies to warn about everything?  No, because it is expensive and each extra warning diminishes the effect of more important warnings.

(b)   Anderson v. Owens-Corning Fiberglass Corp

(i)     Warnings are to be judged on a reasonableness basis. 

(ii)   Π sued Δ over Δ’s failure to warn over the carcinogenic effects of asbestos.

(iii) The court held that knowledge, actual or constructive, was a prerequisite for imposing SL.  Δ were allowed to present evidence at the time of the trial of state of the art, so that they could argued that the particular risk of harm was neither known nor knowable by the application of scientific knowledge available at the time of manufacture.

(8)   Proximate Cause

(a)    Union Pump Co. v. Allbritton

(i)     Allbritton was injured when she slipped off of a pipe rack.  The rack was wet and slippery due to a fire that had just been extinguished.

(ii)   The court held that legal cause was not established because Δ’s product did not more than create the condition that made Π’s injury possible.

(iii) The court held that in order to be a proximate cause of another’s harm, Δ’s negligence had to have been a substantial factor in bringing about Π’s injury.

(9)   Comparative Fault

(a)    Murray v. Fairbanks Morse

(i)     Plaintiff was installing electrical control equipment in an oil refinery.  While working on the installation the plaintiff pushed against a metal bar on the equipment which then gave way. Plaintiff fell 10 feet and severely injured his spine.  It is said that the defendant was negligent in failing to weld the metal bar appropriately to the device the plaintiff was installing.

(ii)   Once it is found that the defendant is liable because his product is defective, the damage award may be reduced by the percentage of fault incurred by the plaintiff.

(10)                       Express Warranty and Misrepresentations

(i)     A seller may expressly represent that her goods have certain qualities.  If the goods turn out not to have those qualities, the purchaser may sue for this breach of warranty.

(ii)   Baxter v. Ford Motor Co.

(iii) P buys a Model A Ford from St. Johns Motors, a Ford dealer.  Before the sale, Ford had given its dealers brochures, one of which describes the windshield as being made by shatter-proof glass.  While P was driving the car, a pebble hits the windshield, making the glass shatter, in turn damaging P’s eyes.

(iv) The court held that Ford expressly warranted that the glass was shatter-proof, and that P had a right to rely on those representations, particularly since the falsity was not readily apparent.  Furthermore, P may recover from Ford for breach of the warranty, even though he purchased not from Ford, but from a dealer.

VIII.       Compensation Systems as Alternatives to the System of Tort Liability Based on Fault

A.    Workers’ Compensation

i)        Alternative to a tort

ii)      Heriot doesn’t like it because it involves broad liability and narrow damages

iii)    Pain and suffering is not recoverable

iv)    Employee must prove

(1)   Injury arose out of employment; and

(2)   In the course of employment

v)      Anderson v. Save-A-Lot, Ltd.

(1)   The plaintiff was a co-assistant manager at a grocery store.  Plaintiff alleges that she was sexually harassed by her immediate supervisor.  As a result of the harassment plaintiff alleges that she suffers from psychiatric impairment including post-traumatic stress disorder and depression.  Plaintiff is seeking reimbursement for medical expenses incurred.

(2)   In order to recover workers’ compensation benefits from the employer a plaintiff must prove by preponderance of the evidence that (1) the injury arose out of her employment; and (2) the injury occurred during the course of the employment.

(3)   Should have been brought as a sexual harassment claim.

vi)    Defenses to Workers Comp

(1)   Contributory negligence

(2)   Assumption of risk

(3)   Common employment (can’t sue a fellow coworker) Overturned in 20th Century

(4)   Employer wasn’t negligent

B.     Compensation for Victims of Automobile Accidents

i)        McKenzie v. Auto Club Insurance Association

(1)   While on a hunting trip plaintiff slept in a camper/trailer attached to the back of plaintiff’s pickup truck.  The camper/trailer was equipped with a propane-fueled heater.  Carbon monoxide fumes from the heater leaked into the camper/trailer and overcame the plaintiffs.

(2)   An injury arises out of the use of a motor vehicle as a “motor vehicle” arises when the injury is closely related to the transportational function of motor vehicles.

C.     No Fault: Beyond Work- and Automobile- Related Accident Losses

i)        New Zealand has a no fault system of compensation.

IX. Defamation

A.    Elements

i)        Statement of Fact

ii)      Published

(1)   Must be of harm to ones reputation

(2)   That statement must be made public, to a 3rd party, it cannot be made to

iii)    Defamatory

(1)   Has to cause people to think less of Π

iv)    Of and concerning the plaintiff

v)      False

(1)   The statement must be false

vi)    Damages

B.     Libel

i)        A written statement or an oral statement that is broadcast

ii)      Damages are presumed

iii)    Libel per se

iv)    Libel per quad

(1)   Statement that is defamatory if you know other facts as well

C.     Slander

i)        Oral

ii)      Have to prove special damages, unless slander per se

D.    Slander Per Se

i)        Loathsome disease

ii)      Criminal conduct

iii)    Unchastity of a woman

iv)    Slander of trade or profession

E.     Qualified Privileges

i)        Δ liable only if Δ acted with malice

(1)   Δ had a legal or moral duty to communicate info believed to be true to a person who has a material interest in receiving it.  For example, an employee witnessing another employee steal.

(2)   Δ and recipient have a common interest in and reciprocal duty to provide information of this nature.  For example, a member of a club may tell other members that a proposed applicant should not be admitted because he is a thief.

F.      New York Times v. Sullivan

i)        Defamation case involving a public official

ii)      Court took the position that if you publicize a defamatory statement towards a government official, and you thought it was true, not actionable unless it was with malice.

iii)    Actual malice= with knowledge it was false or with reckless disregard whether it is true or false.

iv)    Defamation has shrunk to give breather room under the 1st Amendment.

G.    Invasion of Privacy

i)        4 different types of invasion of privacy

(1)   Intrusion into Π’s seclusion

(a)    Peeping Tom

(b)   Intrusion must be highly intrusive/offensive to a reasonable person

(2)   Public disclosure of embarrassing facts

(3)   False Light

(a)    Somebody portrayed as a hero, who isn’t.  Must go around telling everybody that they are not, in fact, a hero.

(4)   Appropriation of Π’s identity for commercial purposes

(a)    Local woman goes into store and sees that her face is on the side of the packaging for bread.  She finds it offensive and sues.  She won because the value of her image has been exploited to gain profit.

X.    Emotional And Dignitary Harms

A.    Assault

i)        Act by Δ

ii)      Intent

(1)   Δ must intend to inflict a harmful or offensive touching on the plaintiff or a third person; or

(2)   Put the plaintiff or a third person in apprehension of an imminent harmful or offensive touching

iii)    Apprehension

(1)   The apprehension requirement means that the plaintiff cannot complain of an assault unless she was aware of the threat at the time thereof.  This rule is different from battery.

iv)    Causation

v)      Lack of Consent

vi)    I. de S. and Wife v. W. de S.

(1)   There is a harm

(2)   Language taken from trespass

(3)   Even common law recognizes a COA for emotion harm

(4)   Why bother?

(a)    Δ is culpable

(b)   Keep the peace

(c)    Person who swings a hatchet one day, will probably swing it on another day if unpunished

vii)  Tuberville v. Savage

(1)   It is assize time and the traveling judges are in town.  P gets into an argument with D, puts his hand on his sword, and says, “if it were not assize time, I would not take such language from you.”  D then attacks P, injuring him.

(2)   The court holds that P has made no assault, because these words make it clear that despite his gesture of reaching for his sword, he had no intent to commit a present battery or assault.  Therefore D cannot claim self defense, and is liable for P’s injuries.

B.     Offensive Battery

i)        There is no unintentional counterpart to an intentional offensive battery.

ii)      Alcorn v. Mitchell

(1)   Δ spat in the face of the plaintiff and the court would rather have Δ sue than spit back in the Π’s face.

(2)   Court may instruct jury to award "vindictive damages where there are circumstances of malice, willfulness, wantonness, outrage and indignity attending the wrong complained of."

C.     False Imprisonment

i)        Act by Δ

(1)   Words alone may be sufficient

ii)      Intent

(1)   Act must have been done by the defendant with the intent to confine the plaintiff or some third person.

iii)    Confinement

(1)   The defendant’s intentional act must result in the confinement of the plaintiff within boundaries fixed by the defendant for some period of time, however short.  Confinement requires that the plaintiff be restricted to a limited area without knowledge of a reasonable means of escape.

iv)    Causation

v)      Lack of Consent

vi)    Cases

(1)   Bird v. Jones

(a)    Where Π is prevented from going in a certain direction, there is not a sufficient confinement to constitute false imprisonment because P is not bounded and can go in other directions.

(2)   Coblyn v. Kennedy’s Inc.

(a)    Elderly man (plaintiff) purchases coat in department store and puts his ascot into the pocket. Store employee (defendant) blocks the exit, suspecting larceny, and grabs elderly man by the arm. The elderly man suffers shock and is hospitalized.

(b)   Forced detention constitutes false imprisonment unless the grounds for restraint are reasonable under the circumstances. Note that the standard is objective, rather than subjective.

D.    The Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct

i)        Act by Defendant

(1)   Unlike assault, words alone may be a sufficient act to make out a prima facie case of intentional infliction of emotional distress.  Liability may also be predicated on another gesture, conduct, or action by the defendant.  Courts require that the conduct be “extreme and outrageous.”

ii)      Intent

(1)   The defendant must have intended to cause severe emotional distress or mental anguish to the plaintiff.  Reckless conduct will also suffice.

iii)    Causation

(1)   If the defendant intentionally and successfully causes severe emotional distress to the plaintiff, recovery is allowed even if the plaintiff suffered no demonstrable physical injuries.

iv)    Severe Emotional Distress

v)      Wilkinson v. Downton

(1)   D, as a practical joke, tells P that her husband has been badly injured in an accident, and is lying the hospital with both legs broken.  D suggests that P go to the hospital to fetch her husband with two pillows.  As a result P suffers nervous shock with consequent serious physical illness, and is at one point in danger of going insane.

(2)   The court held that P may recover from D for her emotional suffering and physical harm.

XI. Commercial Torts: Misrepresentation and Interference With Business Relations

A.    Misrepresentation

i)        The Nature of the Defendant’s Representation

(1)   Adams v. Gillig

(2)   Plaintiff agreed to sell a parcel of her land to the defendant.  During negotiations for the sale, defendant stated that he was purchasing the land in order to build houses.  After the sale of the land, the defendant reneged on the oral agreement and built a multi-car garage on the land.  Plaintiff then sued the defendant.

(3)   Any statement of an existing fact material to the person to whom it is made that is false and known by the person making it to be false and which is made to induce the execution of a contract, and which does induce the contract, constitutes a fraud that will sustain an action to avoid the contract if the person making it is injured thereby.

(4)   Vulcan Metals Co. v. Simmons Manufacturing Co.

(a)    The defendant sold vacuum cleaners to the plaintiff claiming that they were highly effective and that they had never been marketed before.  In reality, the vacuum cleaners did not work as well as they had been advertised, and a very few units had actually been sold.

(b)   An opinion is a fact, and when parties are so situated that the buyer may reasonably rely upon the expression of a seller’s opinion, the fact that it is an opinion is not a defense to an action in deceit; but, there are some statements that no sensible man takes seriously.

(5)   Swinton v. Whitinsville Savings Bank

(a)    The plaintiff purchased a home from the defendant.  The defendant did not disclose the fact that the house was infested by termites.  After the purchase of the house the plaintiff brought suit against the defendant.

(b)   There is no liability for non-disclosure.

(c)    To enforce liability for non-disclosure would make every seller who fails to disclose any non apparent defect known to him liable.  The law has not reached a point where it would impose such an idealistic duty.

(6)   Ingaharro v. Blanchette

(a)    The plaintiff, after buying a house and a lot from the defendants, brought an action against the defendants for negligent misrepresentation concerning the adequacy of the water supply serving the new home.

(b)   Negligent misrepresentation cannot be based on an omission to inform.

ii)      Scienter, Negligence, and Strict Liability

(1)   Scienter

(a)    Scienter refers to the defendant’s knowledge of the falsity of the representation made, or knowledge that the had an insufficient basis for determining the truth of the representation.  I.e. recklessness in making the statement.

(2)   Derry v. Peek

(a)    Peek bought shares in Derry’s company after Derry had issued a prospectus stating that its tramway was authorized to use steam power.  Peek relied on this representation when deciding whether or not to purchase stock in Derry’s company.

(b)   There must be proof of fraud to sustain an action for deceit.

(c)    Innocent misrepresentation. 

(3)   International Products Co. v. Erie R.R.

(a)    International Products insured it’s imported goods, relying upon Eerie Railroad’s misinformation that they were located at dock F; the goods were later destroyed by fire at dock D and International Products could not recover because they had mislabeled the location when filing their insurance.

(b)   An action for damages for negligent misrepresentation will lie where the speaker owes a duty to give correct information.

(4)   Johnson v. Healy

(a)    Johnson bought a house from Healy and within three years the house settled so that the foundation cracked and the sewer lines broke and the jury awarded Johnson 5,000 for Healy’s breach of warranty, but rejected the negligence claim.


iii)    Reliance and Contributory Negligence

(1)   Pelkey v. Norton

(a)    Pelky, a car dealer, sold a car to Norton.  As part of the purchase price, Norton traded in a used truck, which Norton claimed was a 1949 Model.  Pelkey made a mistake in checking the serial numbers for the truck, and believing it to be a 49 model, credited Norton for a ’49 trade in.  Pelkey then sold the truck to a third party who then sued Pelkey for damages because the truck was actually a 1947 model.  Pelkey sued Norton for damages in an action for fraud.

(b)   One guilty of fraud may not excuse his wrongful acts by claiming that the person defrauded was guilty of contributory negligence.

(2)   Corva v. United Services Automobile Association

(a)    Did not talk about

iv)    Liability to Third Persons

(1)   Ultramares Corp. v. Touche

(a)    In reliance upon an audit  of Fred Stern & Co. prepared by Touch, Niven & Co., Ultramares Corp. made several loans to Fred Stern & Co.  The audit showed that Fred Stern & Co. was worth 1 million dollars, when in fact they were bankrupt and insolvent.

(b)   Negligent words are not actionable unless they are uttered directly, with knowledge or notice that they will be acted on, to one to whom the speaker is bound by some relation of duty, arising out of public calling, contract, or otherwise.

B.     Interference with Business Relations

i)        Intentional Interference with Contractual Relations

(1)   Wilkinson v. Powe

(a)    Powe refused to purchase milk from farmers unless they broke their contract under which Wilkinson made the deliveries to Powe.

(b)   Contract rights are generally regarded as property rights and damages are recoverable for interference for those rights.

(2)   In order to recover in these cases, the plaintiff must show that the defendant’s interference with contractual relations was intentional—it is not enough that the defendant acted negligently.

ii)      Intentional interference that does not result in liability

(1)   Restatement both the purpose and the means used are relevant to the issue of whether the actor acted improperly

(a)    Factors

(i)     The nature of the actor’s conduct

(ii)   The actor’s motive

(iii)  Interests of the other with which the actor’s conduct interferes

(iv) Interest sought to be advanced by the actor

(v)   The social interests in protecting the freedom of action of the actor and the contractual interests of the other

(vi) The proximity or remoteness of the actor’s conduct to the interference

(vii)                       The relations between the parties

(2)   Brimelow v. Casson

(a)    Wu Tut Tut case

(b)   Valid reason to get out of contract

iii)    Intentional Interference with Prospective Contracts

(1)   Tuttle v. Buck

(a)    Tuttle alleged that Buck set up a barber shop and attracted customers from Tuttle’s barber shop for the sole purpose of maliciously injuring Tuttle.

(b)   The privilege of competition does not extend to situations where a defendant is not seeking to further his own interests, but is seeking only to injure the plaintiff.

(2)   Wal-Mart Stores, Inc., v. Sturges

(a)    Sturges entered into negotiations to lease a vacant lot next to a Wal-Mart store to a grocery store.  Wal-Mart contacted the grocery store and made certain representations (that they would relocate their store if they could not purchase the tract of land being negotiated over by the grocery store and Sturges), and then the grocery store ended its negotiations with Sturges.

(b)   To establish liability for interference with a prospective contractual or business relation, the plaintiff must prove that it was harmed by the defendant’s conduct that was either independently tortious or unlawful.

(3)   Baker v. Dennis Brown Realty, Inc.

(a)    One who, without privilege to do so, induces a third party not to enter into a contract relation with another, is liable to the other.