Torts Outline Professor Heriot
Torts Outline
Professor Gail Heriot
I.
Introduction to the Torts Process: Liability for Harmful
and Offensive
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
i)
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.
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)
(i)
An 18 year old prize fighter who voluntarily engages in
prize fighting may recover for a civil action in battery, since the
(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.
(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.
2.
Court,
(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.
(1)
(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)
(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)
(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
(4)
Boyer v.
(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
(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
(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)
(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
(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.
(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)
v)
Overseas Tankship (
(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.
(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.
(a)
Waube witnessed her son being run over by
(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
(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
(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.”
(b)
FEDERAL TORT CLAIMS ACT
(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
(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)
(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)
(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
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.
(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
(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.
(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)
(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)
(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)
(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)
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)
(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
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)
(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)
(a)
Peek bought shares in Derry’s company after
(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.
(b)
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.
(b)