TORTS: COURSE OUTLINE

INTRO: LEGAL PROCESS, INSTITUTIONS, THEORIES OF LIABILITY 3

EXAM ADVICE 3
GENERAL 4
REASONABLE PERSON STANDARD 5
CASEBOOK INTRODUCTION-- NEGLIGENCE v. STRICT LIABILITY 7
VICARIOUS LIABILITY/ APPARENT AGENCY 8
Respondeat Superior 8
Apparent Agency/ Authority 9
THE NEGLIGENCE PRINCIPLE 10
Foreseeability-- Three Cases by Judge Cardozo 13
The Hand Formula 14
EVIDENCE OF NEGLIGENCE / PROVING NEGLIGENCE 19
The Role of Custom in Establishing a Standard of Care 19
Negligence Per Se: The Role of Statutes in Establishing Standard of Care 22
Defenses to Negligence Per Se 23
Proof of Negligence-- Circumstantial Evidence 24
Res Ipsa Loquitur (RIL) 25
Procedural Effects of Res Ipsa Loquitur (RIL) 29
MEDICAL MALPRACTICE 32
Informed Consent 35
THE DUTY REQUIREMENT (PHYSICAL HARM) 38
Special Relationships 39
Circumstances that may establish duty 40
Duty to Third-Parties 41
Duty of Psychotherapists. Physicians to Third-Parties 42
Role of Statutes in Creating Duty 44
Limitation of Duty to Third-Parties on Public Policy Grounds 44
Social Host Liability 45
Negligent Entrustment 45
Duty of Land Possessors 47
Landlord/Tenant 49
Problems of Collapsing Duty and Breach 50
THE DUTY REQUIREMENT (NON-PHYSICAL HARM) 51
Negligent Infliction of Emotional Harm 51
Pure Economic Harm 54
Economic Loss Doctrine 56
Attorney to Client Harm 56
Wrongful Birth/ Wrongful Life/ Wrongful Pregnancy 57
CAUSATION 60
Cause in Fact 60
Multiple Sufficient Causes (But-For still a prerequisite) 61
Multiple Defendants- Dealing With Questions of Causation 63
Market Share Liability 64
Loss of Chance (Medical Malpractice) 66
Joint & Several Liability 67
Proximate Cause/ “Legal Cause” / “Scope of Liability” 68
Eggshell Plaintiff Rule 68
Intervening Cause v. Superseding Cause 70
Unexpected Plaintiff/ Unexpected Victim (Palsgraf) 72
DEFENSES 74
The Plaintiff’s Fault 74
Comparative Negligence 75
Comparing Plaintiff’s Conduct in Medical Malpractice Cases 81
Avoidable Consequences 82
Assumption of Risk 83
STRICT LIABILITY 87
DAMAGES 93
PRODUCTS LIABILITY 97
Manufacturing Defects 102
Design Defects 103
CHART: DUTIES LANDOWNERS OWE (TRADITIONAL APPROACH) 107
​ INTRO: LEGAL PROCESS, INSTITUTIONS, THEORIES OF
LIABILITY

Tort:
● French for "wrong” - civil wrong/wrongful act
● Intentional or accidental, when an injury occurs to another.
​ Civil / Private / Judge-Made (Common Law)
● Not criminal – implications?
● Mostly private claims rather than public agencies – implications?
● Common law based rather than statutory (consistency of judgments, etc)
​ Why Have a Tort System?
● Other sources of compensation already exist – insurance, charity, state-sponsored aid
● Tort comp for unintent'l harm covers small %-age of comp for nonfatal accidts (7% per
RAND)
Goals of Tort Law
● Compensation; Fairness– help victim over tortfeasor
● Deterrence – greatest amt of accident prevention at most reasonable administrative/social
cost
● Economic efficiency – deep pockets, insurance, spreading losses
● Social welfare, utilitarianism – maintain social liability
Why Not Let Losses Lie? (No-Liability System)
● Costs: would not deter injury, lack of fairness(people injured can't get compensated)
● Benefits: administrative ease
Why Not Adopt a Full-Compensation Social Insurance System?
● Costs: limited resources and administrative complexities; Benefits:fairness
Attorney Compensation in the Tort System – Contingency Fee (Generally)
● Pros: ensures broad access to courts, even “small” cases of harm will find lawyer, lawyer
and client share financial risks and incentives, possible specialization of counsel
● Cons: encourages frivolous litigation (easy for client to file lawsuit); discourages early
settlement (doesn't cost client to continue litigation)

Single Judgment System: plaintiff gets only a single recovery, providing compensation for not
only past but also future losses. Plaintiff loses future recourse even if her symptoms
worsen as a result of D’s tortious conduct. Pros: 1. Finality, 2. Discourages fraud once $
is obtained 3. efficiency
EXAM ADVICE

-State the claim

-Define the terms
-Analyze the elements of the cause of action, including potential defenses
-Cite relevant cases, compare and analyze
-Use the facts
-Argue different sides
-Note any mentions of statutes

GENERAL

Three possible bases of tort liability:

-intentional conduct
-negligent conduct that creates an unreasonable risk of causing harm
-strict liability (liability without proving intent or negligence)

Torts goals:
- Compensation
- Why $$?
- Are there other forms of compensation?
- Fairness
- Justice=Treating like cases alike
- Moral intuitions of right and wrong?
- Deterrence
- The greatest amount of accident prevention at the most reasonable administrative
and social cost.

General
-NJ and Cali are progressive torts courts
-Generally, plaintiff wants case to go to jury
-Burden of proof on plaintiff
-Tort law not about subjective motivations of individuals
-As P, if can “get” intent, that’s better than negligence (more $ most likely)

Roles of jury vs. judge (Goodman and Pokora)

● Jury: determines
 ○ facts,
○ credibility of witnesses,
○ evaluates conduct,
○ makes value judgments
● Judge: determines
○ legal duties and standards,
○ sufficiency of the evidence,
○ jury instructions

REASONABLE PERSON STANDARD

External:
- We consider D’s conduct rather than state of mind.
- That D did her best or acted in good faith is no defense.

Objective:
- D’s conduct is measured against reasonable person rather than D’s own capacity.
- Doesn’t include the incapacities or limitations of D.
- THIS MEANS Mental/psychological capacity CANNOT BE ACCOUNTED
FOR
- Seeing hallucinations, for example, would not count

POLICY: Why a Reasonable Person Standard?

1) Administrative ease
2) Deterrence
3) Concerns over fraud or deception
4) Represents community norms
5) Jury comprehension
The Reasonable Person Standard (Restatement § 283)
Restatement Definition: Unless the actor is a child, the standard of conduct to which he must
conform to avoid being negligent is that of a reasonable man under like circumstances.
Represents the general level of moral judgment to community, what ought ordinarily to be done,
not necessarily what is ordinarily done”
External:
We consider D's conduct rather than state of mind
That D did his best or acted in good faith is no defense
Objective:
D's conduct measured against reasonable person rather than D's own individualized
capacity
Doesn't consider the incapacities or limitations of D
POLICY ISSUES: Why Use Reasonable Person standard?
● Admin ease (one-size fits all standard for the courts to apply when determining
negligence)
● Concerns re: fraud / deception (i.e. people saying they lacked the capacity to exercise due
care)
● Deterrence (makes people know the standard to which they'll be held if negligent)
● Represents community norms

I. Reasonable Person Standard: Objective standard that asks the jury whether a
reasonable person of ordinary prudence, in D’s position, have conducted himself as D
did.
a. General Rule: External (objective standard of what a reasonable person would
do) versus the subjective (circumstances of the given situation).
i. Does not ask in regards to D’s intent. D’s conduct is the determining factor
and their conduct should be measured against the external norms rather
than subjective abilities of the individual.
ii. Generally, you do not owe a duty of care to strangers. However, when
you begin to administer care, you must do so reasonably.
b. Standards:
i. State of mind irrelevant; focus on conduct because its too hard to judge a
person’s state of mind.
ii. Measured against an external person, or average person most similar to D.
iii. Benefits: Creates community norms for behavior to regulate deterrence
and fairness, judged by jury as a reflection of the community, and more
administratively feasible to judge conduct rather than state of mind.
iv. Negatives: May lead to opportunities to discriminate, and the community
may not share one’s reasonable view.
c. Methods: Determining risks acceptable to the reasonable person.
i. Courts invest the imaginary reasonable person with certain mental and
physical characteristics.
ii. Courts may avoid general standards by adopting specific rules about
specific types of conduct.
iii. Courts may attempt to estimate how the reasonable person would behave
more directly by weighing risks or benefits involved with D’s conduct
against risks or benefits of behaving more safely. Customary community
behaviors are persuasive evidence.
 d. *THE IDIOT STANDARD* Vaughn v. Menlove: D owned two cottages and due
to spontaneous ignition of hayrick, fire spread to P’s cottages and burned them
down. P argues standard of reasonable care is inapplicable because D is stupid and
fulfilled his duty to best of his abilities.
i. Holding: Stupid individuals are held to same standard as those of ordinary
intelligence.
ii. Holmes: Should exist firm standard for reasonable due care.
1. Too difficult to inquire about individual capacities of each party on
case-by-case basis.
2. Shifts focus from D to P’s rights because fairness between the two
parties requires objective standards and what we should reasonable
expect from others.

Bethel v. NYC Transit Authority (1998)

F: P injured on common carrier. Issue regarding jury instructions for necessary degree of care.

Holding: Rules of extraordinary care are no longer relevant and the reasonable person standard
should always be applied.
● Reasonable care standard takes into consideration that the more risk one takes, the more
care one should take.
Rule of Law: Under basic tort doctrine, a person must exercise the same degree of care as a
reasonable person of ordinary prudence under all the circumstances of the particular case.
● “Instead, common carriers should be held to the same standard of care as all other
tortfeasors, that is, the degree of care a reasonable person of ordinary prudence would
exercise under all the circumstances of the particular case.”

CASEBOOK INTRODUCTION-- NEGLIGENCE v. STRICT

LIABILITY

Hammontree v. Jenner (Cal. App. 1971) [BIKE SHOP CRASH CASE]: Choice between
negligence or strict liability standard for an epileptic D who crashed car. Strict liability has a
non-fault standard. Court opts for negligence standard. D was “model” reasonable person.
(doctor visits, etc).
● NEGLIGENCE: RPPUSC - if the harm is foreseeable but acted reasonably, no liability.
● STRICT LIABILITY: (usually products liability): makes a person legally responsible
for the damage and loss caused by his or her acts and omissions regardless of fault (P
argues that D bears liability in epilepsy-related accident b/c knew he was epileptic and
 drove)
Rule of Law: No absolute liability for damages exists for a driver who experiences a sudden
physical illness that renders him unconscious and causes an accident during that time.

Waschek v. DMV (Cal.App.) - Ct found DMV only liable if it concluded 96-y/o driver was
unqualified but issued the license anyway; otherwise, DMV immune for discretionary decision to
issue the license

VICARIOUS LIABILITY/ APPARENT AGENCY

Respondeat Superior

1) POLICY:
a) Gives employers an incentive to carefully select and effectively supervise
employees to try to reduce employee negligence;
b) Gives employers an incentive to discipline negligent employees;
c) Gives employers an incentive to consider alternatives (mechanization, reducing
scale or location of dangerous activities).

SCOPE OF EMPLOYMENT: Employers liable if employees negligent in scope of employment

Christensen v. Swenson (UT 1994) –
F: Swenson (defendant) worked as a security guard for Burns (defendant) at the Geneva
Steel Plant. During their shifts, guards at the plant were permitted to take unscheduled
lunch and restroom breaks lasting 10 to 15 minutes. The only restaurant accessible during
these short breaks was the Frontier Cafe, located across the street from the plant and
about 150 to 250 yards away from Swenson’s post. While returning from the cafe,
Swenson collided with Christensen (plaintiff). Christensen sued Swenson and Burns
 (respondeat superior), claiming that Swenson was negligent in her driving.

Rule of Law: An employer may be held vicariously liable for an employee’s actions that
occur within the scope of employment.

Scope of Employment(Birkner Test) =

1. conduct generally kind hired to do;
2. within hours/spatial boundaries; and
3. conduct motivated to serve employer
Policy justifications: Ensure that the employer adopts policies that deter from employee
negligence – (1) better hiring practices; (2) better on-the-job safety policies; (3) better
supervision; (4) deters employers from allowing employees from behaving negligently.

Foster v. Loft, Inc. (Mass.App.1988): Bartender w/crim history punches customer in

face, complaint is not regarding bartender acting within scope of employment, but for
employer negligently failing to do background check for employer who would be in a
stressful environment
Rule of Law: Employee faces Direct Liability, which is a separate fault and does not
include the employer

Apparent Agency/ Authority

APPARENT AGENCY / AUTHORITY = typically a question for the jury to answer,

1. representation by principal;
2. reliance on that representation by 3rd party; and
3. change in position from the reliance
Note: Subjective understanding of 3rd parties or appearances created by agent are
irrelevant:“apparent authority exists only where the principal creates the
appearance of an agency relationship.”

Independent Contractors – employer generally not liable

Exceptions: nondelegable duty, peculiar risks, employer’s own liability

Roessler v. Novak (Fl. App. 2003) – [Radiologist Subcontract]

F: Roessler (plaintiff) was admitted to Sarasota Memorial Hospital (defendant), where his
diagnostic scans were read by Dr. Lichtenstein (a principal). Roessler underwent surgery,
and suffered severe complications. Roessler brought suit against Sarasota Memorial,
 alleging that Dr. Lichtenstein was negligent in misinterpreting Roessler’s scans. Roessler
argued that Sarasota Memorial was vicariously liable because Dr. Lichtenstein was acting
as the hospital’s agent. At the time of the incident, Dr. Lichtenstein was associated with
SMH Radiology Associates, an association of radiologists. SMH Radiology had an
independent contractor agreement with Sarasota Memorial, and provided all of the
hospital’s radiological services. SMH Radiology and Dr. Lichtenstein both had offices
solely within Sarasota Memorial. The trial court granted summary judgment for Sarasota
Memorial after finding that Dr. Lichtenstein was an independent contractor, and not an
agent or employee of the hospital.

Rule of Law: A principal may be held vicariously liable for an agent’s actions, if those
actions occur within the scope of the agency.

DISSENT – Need for Judge-Created Rules Rather than Jury Determinations (:

“Utilizing case-specific decisions by individually-selected juries to determine whether a
hospital is or is not vicariously liable…is inefficient, unpredictable, and perhaps most
important, a source of avoidable litigation…The uncertainty of the current system…does
not work.”

1. Parent-Child: parents are usually not vicariously liable for the negligence of their
children.
Exceptions: The parent was negligent in supervision – but that's different than vicarious liability
(generally, children are sued directly for their negligence).

THE NEGLIGENCE PRINCIPLE

Prima Facie Showing for Negligence Claim (Restat § 328A):

In an action for negligence the plaintiff has the burden of proving:
1 – facts which give rise to a legal duty on the part of the defendant to conform to the standard of
conduct established by law for the protection of the plaintiff [DUTY]
2 – failure of D to conform to standard [BREACH]
3 – failure is a legal cause of harm to P [CAUSATION -”BUT FOR” AND “PROXIMATE”]
4 – P has in fact suffered harm legally compensable by damages [DAMAGES]

Proving Negligence
Plaintiffs typically try to prove negligence by showing
1 – what the defendant did; and
2 – that what D did or failed to do did not constitute reasonable care (misfeasance v.
nonfeasance); and
3 – what would have constituted reasonable care under the circumstances (some untaken
precaution).

BURDEN OF PRODUCTION – MAKING OUT A PRIMA FACIE CASE (PRE-TRIAL)

● P has burden of bringing evidence
● After all P's evidence is introduced, evidence must be capable of supporting an inference
by jury that D was negligent
● Satisfying the burden of production is sometimes called making out a prima facie case
● The decision of whether the P has satisfied burden of production is made by the court on
ruling the “legal sufficiency” of the evidence

BURDEN OF PERSUASION (IN TRIAL – PERSUADING JURY)

● Once burden of production met [survive MSJ or directed verdict] evidence goes to jury
● P bears burden of persuading jury (aka preponderance of the evidence)
● P must persuade that D was “more probably than not negligent” or burden not satisfied
● D may rebut and jury might find the D's arguments more persuasive and return verdict
for D

THE STANDARD OF CARE

For standard of care, question to jury is generally what a reasonable person would have done in
the same or similar circumstances (Restatement 283: To avoid negligence, actor must act as a
RPPUSC. This is an objective standard; subjective belief of D @ time is immaterial.

Standard of care
● What constitutes “unreasonable conduct”? Who decides, judge or jury? What evidence
considered?
● Impressionistic, fact-based, contextual approaches to foreseeability in Adams, Braun,
Greene
● A more “scientific” approach with the Hand formula (B<PL)

Cost-Benefit Analysis:
In deciding whether a defendant caused an unreasonable risk of harm, the courts will look at
several issues (ad-hoc; used to assist conceptualization):

ROLES OF JURY AND JUDGE IN NEGLIGENCE ACTIONS

Jury: Judge:
1) Determine facts 1) Determine legal duties / applicable standards of care,
2) Weigh cred of witness 2) Probative v. prejudicial → whether evidence admissible
3) Draw inferences from evidence 3) Sufficiency of evidence → whether P met evidentiary
standard
4) Evaluate conduct → 4) Instructs the jury (“jury charge”)
whether conduct caused harm / damages

Mixed Question of Fact and Law (Restatement Section 328): Liability for negligence is … a
mixed question of law and fact. The court and the jury have an important part to play in the
determination of liability, and that separate functions are assigned to each, but, further, that these
functions to some extent overlap and are interdependent.

Restatement § 328B – Functions of the Court in a Negligence Action

In an action for negligence, the court determines:
a – whether there's a cause of action;
b – whether such facts give rise to legal duty on the part of D;
c – the standard of conduct required of D by his legal duty;
d – whether D has conformed to standard of care, if jury does not come to a reasonable
conclusion;
e – applicability of any rules of law determining whether D's conduct constitutes a legal cause of
harm for the P; and
f – whether the harm suffered by P is legally compensable.

Restatement § 328C – Functions of Jury in a Negligence Action

In an action for negligence, the jury determines, in any case in which different conclusions may
be reached on the issue:
a – the facts
b – whether the defendant has conformed to the standard of care / conduct required by law
c – whether the defendant's conduct is a legal cause of harm to the P;
d – the amount of compensation for legally compensable harm

Reasonable Precautions (not overturned by Pokora, but Pokora IS more useful)

Baltimore & Ohio Railroad Co. v. Goodman (SCOTUS 1927)
Holmes Rule: “[I]f a driver cannot be sure otherwise whether a train is dangerously near,
he must stop and get out of his vehicle at train crossings.” Holmes thought judges
should do this to impose rules and wrest discretion away from the jury – favored
consistency. Value of consistency and predictability in tort cases corresponding
preference for rules over standards. “We are dealing with a standard of conduct, and
when the standard is clear, it should be laid down once and for all by the courts.”
OTHER POLICY: (1) Concerns re: RR liability; (2) administrative ease of bright-line
rule
 F: A plaintiff driver approaching a railroad track may be liable for contributory negligence
and thus completely barred from recovery if he fails to take reasonable precautions, such
as getting out of his car and looking for oncoming trains, to guard against a risk of which
he is aware.
● Why lay this down as a rule “for all time”?
○ Because “we are dealing with a standard of conduct, and when the
standard is clear, it should be laid down once for all by the Courts.”
○ Other reasons?
■ Judicial subsidy of RRs?
■ Suspicion of juries?
● Rule of Law: A plaintiff driver approaching a railroad track may be liable for
contributory negligence and thus completely barred from recovery if he fails to
take reasonable precautions, such as getting out of his car and looking for
oncoming trains, to guard against a risk of which he is aware.

Train/Get out of Car

Pokora v. Wabash Railway Co. (SCOTUS 1934)
F: P driving, approached railroad tracks. He could not fully see tracks, so stopped, looked as best
as he could, listened for bell, then slowly drove ahead. Was hit by train and killed. D said P
should have gotten out of car to look for train.
- Old rule was that P had duty to get out of the car and look for train. Duty “thrown out” by
Cardozo because wasn’t good rule. To get out of car/look would be uncommon precaution, likely
to be futile, and possibly dangerous. By the time a driver got back to car, train could be coming.
I. P injured when sight and hearing were obscured by boxcars on train tracks. Trial
judge initially entered directed verdict for D because P failed to use “stop, look,
listen” standard developed in Goodman.
a. Cardozo: Rule is unreasonable, and must depend on circumstances, although
Goodman was decided correctly. P did follow rule and it still failed to protect him
from injury, thus D isn’t entitled to a directed verdict, and the case should have
gone to a jury. Not directly overruling, but same value.
i. the question of standard of care is appropriate for the jury to answer,
i.e. no need for directed verdict
b. Extraordinary situations may not wisely or fairly be subjected to standards that are
fitting for ordinary situations.
c. Effect: Created a standard of law, to change as determined by the jury on a
case-by-case basis. Cases generally follow Pokora standard.
- Rule of Law: An individual approaching a railroad track in a private car is not required to stop,
get out of the car, and look for oncoming trains before crossing the track if doing so is not
customary and may ultimately be more dangerous.
Baseball Spectator Injury
Akins v. Glens Falls City School District (NY 1981) (Woman Hit by Foul Ball):
Ct of Appeals dismissed the case; majority says that litigation should be cut off where
there's no real question of negligence; in Akins, dissent is concerned that this is
“rulemaking”-- the dissent believes that the jury is responsible for deciding negligence as
a question of fact rather than question of law.
Rule of Law: In the exercise of reasonable care, the proprietor of a baseball field need only
provide screening for the area of the field behind home plate, where the danger of being struck
by a ball is the greatest.

Rule in Davidoff v. Mets (NY 1984): Where a pro-ball park furnishes screening for area of
field behind home plate where danger of being struck by a ball is greatest and that
screening is of sufficient extent to provide adequate protection for as many spectators as
may reasonably be expected to desire such seating in the course of an ordinary game, the
proprietor fulfills the duty of care imposed by law and cannot be held liable in negligence
(Dissent / criticism: screen provides artificial means to exculpate from potential liability).
D didn't breach a duty to spectator by failing to screen the entire stadium (generally
portion behind backstop, where flying balls and bats go)
Is the a B>PL situation? Incidence rate of harm in stadiums is super low, correct?
Hypo: What about a foreign P who knows nothing about baseball? Did the foreign P have
actual knowledge of a baseball game?

Common Carriers: Airlines

Andrews v. United Airlines, Inc. (CA9 1994) – Justice Kozinski:
F: Briefcase fell from overhead compartment and injured P, who claims accident was foreseeable
and could cheaply be prevented.
a. Pokora method; P satisfied burden of proof to overcome judgment and send case
to jury decision. Case may be decided either way and be acceptable, thus a rule of
law should not be invoked.
b. Classic Hand case, because D will try to prove risk is minimal in comparison to
the cost incurred in minimizing the risk, or using industry standards, as burden of
proof shifted to them in sending the case to jury.
Rule of Law: A common carrier owes a duty of utmost care and the vigilance of a very cautious
person towards its passengers, and is required to do all that human care, vigilance, and foresight
reasonably can do under all the circumstances.
- is it a bad mode of operation to not secure luggage from falling on passengers? Was a
question for the jury because the plaintiff was able to show some facts that entitled her to
a jury.
 - Show evidence of: alternative business practices and their feasibility or costs,
actual probability of risk, severity of risk, if business has notice of risk, etc.
[Can ALSO be viewed as CUSTOM CASE (Bag nets used by other airlines)]

Foreseeability-- Three Cases by Judge Cardozo

Liability imposed according to foreseeability → Significant likelihood of damage occurring. No

expectation to guard against causing completely unforeseeable harm or harm that is so unlikely
as to be commonly disregarded. Issues relating to the court's incursions on role of the jury in tort
system.

Critique: Hindsight Bias: Things often look foreseeable in hindsight, ORDINARY care is all
that is required. Incursions on the role of the jury in a tort system.

Adams v. Bullock (NY 1919) [Cardozo]: boy swings 8-ft wire on bridge, electrocuted by
trolley wire. Ct reverses jury verdict for D. Not foreseeable: D took “ordinary caution” and is
not liable for accident that would have required foresight of “extraordinary peril,” anything short
of shutting down train wld be insufficient. Ct finds D acted with reasonable care as a “matter of
law.
F: Bullock (defendant) operated a trolley line. At one point in the line, the overhead trolley wires
ran below a bridge often used by pedestrians. The bridge had a protective railing, and the trolley
wires ran more than four and a half feet below the top of the railing. Adams (plaintiff), a
12-year-old boy, was injured on the bridge when a wire he was swinging came into contact with
the trolley wires below the bridge. Adams was successful at trial, and his verdict was upheld by
the New York Supreme Court, Appellate Division. Bullock appealed to the New York Court of
Appeals.

Rule of Law: A person who has taken reasonable precautions against foreseeable dangers may
not be held liable in negligence for injuries caused by extraordinary circumstances.

Braun v. Buffalo General Electric Company (NY 1911) [Cardozo]: exposed electrical wire in
vacant lot in a busy area where buildings are going up electrocutes construction worker. Cardozo
reverses lower courts' dismissal, remands for jury trial. Cardozo in Adams: Accident was “well
within the range of prudent foresight.”

Green v. Sibley (NY 1931) [Cardozo]: woman trips over a working mechanic in plain view. C
reverses trial and appellate award for P finding only a duty for reasonable care. Law only
requires “ordinary prevision … in a busy world.”
Critique – Hindsight Bias: Things look foreseeable in hindsight, ORDINARY care is all
required.
Hindsight bias particularly useful in cases where: 1) there is small to moderate risk; 2) serious
injury has occurred; 3) absence of fault by P; 4) no prohibitive cost associated with safer
precautions
● Adams: “Only some extraordinary causality, not falling within the area of ordinary
prevision, could make it a thing of danger”
● Greene: “Looking back at the mishap with the wisdom borne of the event, we can see
that the mechanic would have done better if he had given warning of the change of pose.”

The Hand Formula

Carroll Towing (CA2 1947) – The Learned Hand Formula:

F: Charter required that barge owner (Conners) provide bargee for ship carrying flour for certain
amount of time, but bargee gone for 21 hours. Carroll’s servants negligently shifted boat lines,
barge floated away, was damaged, lost flour.
- Conners partially responsible (for not having bargee) and Carroll partially responsible
- Using duty formula, Conners responsible mostly because burden not too high

The Learned Hand Formula= formula used to establish negligence liability (B<PL)
- B= Burden of Precaution
- P=Probability of Harm
- L=Costs of Liability

Justice Posner’s Economic Theory of Negligence Liability-

- “If, on the other hand, the benefits in accident avoidance exceed the costs of prevention...
the enterprise is made liable, in the expectation that self-interest will lead it to adopt the
precautions in order to avoid a greater cost in tort judgments.”

POLICY: Benefits of an Economic Approach to Negligence

- Weighing costs vs. benefits of D’s conduct creates incentives to invest the right amount in
safety;
- Imposes liability for economically inefficient risk-taking, but protects conduct that is
efficient;
- Fairer than an intuitive approach?;
- Gives lawyers guidance on what types of cases are worth bringing, evidence to introduce,
etc.
 - Constrains judges to explain their conclusions about negligence determinations clearly.

POLICY: Problems with B<PL

- Information costs: costs of obtaining reliable info about the variables can be expensive;
- Incommensurability: even if complete and accurate info can be obtained, variables are
not comparable;
- Ex ante vs. ex post determinations: when are the variables valued?

Rule of Law: Liability for negligence due to failure to take safety precautions exists if the burden
of taking such precautions is less than the probability of injury multiplied by the gravity of any
resulting injury, symbolized by B < PL = negligence liability.

If the harm could be avoided for less than the cost of the harm (B is less than PL), then D should
take the precautions, rather than allowing harm to occur. If precautions were not taken, we find
that a legal duty of care has been breached ( = negligence), and we impose liability on D to pay
for harm.

B < PL [B = burden of precaution; P = probability of harm; L = cost of liability]

B = D's burden to avoid / prevent the risk / injury
P = probability of injury
L = amount the injury would cost

Posner: moral indignation often corresponds with finding there is a cheaper alternative to the
accident.
Utility of Conduct: Court will look to the social utility of creating a risk when determining if
the creation of the risk is unreasonable. (If PL are low, economically efficient to forego accident
prevention)
Moisan v Loftus (1949): Justice Hand admits that it is difficult to use the Learned Hand
formula

Public Policy Rationale: Hand Formula (Weighing costs vs. benefits or risk vs. utility)
generates liability rules that give actors incentives to invest an appropriate amount on
safety.

Problems of Hand Formula

Posner: “Greater analytic than operational significance.”
Information costs: costs of obtaining reliable information about the variables is
expensive, or impossible
Incommensurability: even if complete / accurate information is obtained, variables are
not comparable in all cases; weighing property damage vs. human life not easily
monetized
Ex ante vs. ex post determinations: when are variables valued (before accident or after
 accident? most things seem preventable in hindsight

Foreseeable risks of injury: The “reasonable” person considers those risks in light of the utility
of the conduct (i.e. lighting a fire around dry brush to prevent a brush fire from spreading;
releasing large amounts of water from a dam to prevent a collapse of the dam)
Consideration of the extent of the risks posed by conduct: conduct may be reasonable if it
threatens minor property damage, but unreasonable if it creates a risk of serious personal injury
Likelihood of a risk of actually causing harm: it makes sense to do a useful thing that imposes
low-probability risks, but not if the risk is greater (placing a gas tank in a particular place if
there's a one-in-a-million chance of explosion, but not one-in-a-thousand)
Alternatives to proposed conduct: Are there alternatives to the proposed conduct that present
less risk? (i.e. a live vaccine poses risk to one in ten thousand, whereas a dead vaccine presents
risk to one in a million)

STANDARD FOR CHILDREN:

● Restatement Standard for Children (§ 283A): If actor is a child, the standard of
conduct to which he must conform to avoid being negligent is that of a reasonable person
of like age, intelligence, and experience under like circumstances.
● Parents rarely vicariously liable.
● Price v. Kitsap Transit (WA 1994): Children < 7 may be presumed incapable of negligence,
7-14 rebuttable presumption.
Conduct for Children Engaging in Adult Activity: An exception to the standard of conduct
for children may arise where the child engages in an activity which is normally undertaken only
by adults, and for which adult qualifications are required.
Dellwo v. Pearson – 12-year old kid driving a motorboat-- Court holds that child will be
held to usual, adult “reasonable person” standard because people outside of the boat
would be unable to ascertain whether the person driving it was a minor-- influential in
automobile cases
Ellis v. D'Angelo (1953): finding that 4-y/o lack mental capacity to support negligence
finding

Mental Deficiency/ Mental Illness (§ 283B): Unless the actor is a child, his insanity or other
mental deficiency does not relieve the actor from liability for conduct which does not conform to
the standard of a reasonable man under like circumstances.
Vaughn v. Menlove (England, Court of Common Pleas 1837): idiot who piles hay
hazardously, causes fire. Atty argues that he acted to the best of his judgment, and should not be
held responsible for not being the most intelligent. Ct rejects: to allow idiot standard would
make the standard of care infinitely various.

Insanity: Insane persons are generally held to a reasonable person standard. Policy rationale:
encourage guardians to supervise insane wards, avoid evidentiary issues/line drawing: fraud &
floodgates & make party who actually caused the loss responsible.
Bashi v. Wodarz (Cal.App.1996): D claimed she had no control over her actions & fam
had history of mental illness. Ct held unless the actor is child, insanity or mental
deficiency doesn’t relieve the actor from liability for conduct that doesn’t conform to the
standard of a reasonable man under like circumstances. Ct listed 4 justifications .
Roberts v. Ramsbottom: 73yr D, has a stroke before driving and is able to clumsily
operate his car, hits P courts find liability bc Foreeeable--prior misadventures in the week
that should have tipped him off.
Jules Coleman POLICY:: Don’t hold mentally impaired tortfeasor morally responsible
for wrongdoing, better to lay the liability on him than on innocent victim. Loss must be
absorbed by someone.
Trend in law has been toward imposing liability even in the face of lack of capacity.
Most of these cases are driven by policy considerations. Courts know that insurance
companies are in the background to pay the damages.

Physical Disability (§ 283C): If the actor is ill or otherwise physically disabled, the standard of
conduct to which he must conform to avoid being negligent is that of a reasonable man under
like disability.

Professionals (Restatement § 299A): Unless he represents that he has greater or less skill or
knowledge, one who undertakes to render services in the practice or trade is required to exercise
the skill and knowledge normally possessed by members of that profession or trade in good
standing in similar communities. The professional must also use such superior judgment, skill,
and knowledge as he actually possesses. Thus, a specialist might be held liable where a general
practitioner would not. For medical specialists, a “national” standard of care generally applies .
a. Knowledge: One is assumed to have the knowledge of a reasonable person of ordinary
experience (strangers in a community must meet community norm.)
b. Superior Attributes: In addition to exercising the care of a reasonable person, the
defendant must exercise any superior attributes he may have.

Emergency Doctrine: “Person confronted with a sudden and unforeseeable occurrence,

because of the shortness of time in which to react, should not be held to the same standard of
care as someone confronted with a foreseeable occurrence.”

Common Carriers: CCs are held to a higher standard of care b/c demand is inelastic and
consumers have no alternative. Assumes carriers in higher bargaining position (note standards of
reasonable care have changed for certain common carriers, as the creation of tort liability
occurred at a time when travel was extremely dangerous).
Andrews v. United Airlines (CA9): utmost care and vigilance for CCs. A bag fell on P’s
head causing her injury. Compliance w/ industry standards not sufficient for MSJ.
Bethel v. NYC Transit (CC standard abolished in NY): see above.

EVIDENCE OF NEGLIGENCE / PROVING NEGLIGENCE

GENERALLY: Proving a breach of a duty of care requires two elements:

1) proof of what actually occurred; and
 2) a showing that D acted unreasonably under those circumstances.

KINDS OF EVIDENCE: Two key forms of evidence that P can use in establishing negligence
by D
● Direct evidence: evidence that comes from personal knowledge or observation.
● Circumstantial evidence: proof that requires drawing an inference from other facts. So
long as jury can draw a reasonable inference (as opposed to speculate) circumstantial
evidence will be admitted.

● Plaintiffs try prove negligence by showing:

○ (1)what D did or didn’t do caused P’s injury;
○ (2)that what D did or didn’t do constituted a failure to use reasonable care; and
○ (3)what would have constituted reasonable care (an untaken precaution).
● PLAINTIFF’S EVIDENTIARY BURDENS
○ Burden of production: the burden of making out a prima facie case:
■ After all the plaintiff’s evidence is introduced, it must support an inference
that D was negligent.
■ The judge decides whether plaintiff has satisfied this burden of production
by ruling on the “legal sufficiency” of the evidence (on motions for
summary judgment or directed verdict).
○ Burden of Persuasion: Once the burden of production is met and the case goes to
the jury, P bears the burden of persuasion.
■ The jury must be persuaded that D was “more probable than not
negligent.”
■ “preponderance of the evidence” = >50%

The Role of Custom in Establishing a Standard of Care

GENERALLY: Proof of industry custom can be evidentiary of the standard of care owed, but it
is never dispositive. These are questions for the jury.

WHEN CUSTOM ESTABLISHES STANDARD OF CARE:

Customary Practice in Establishing Reasonable Standard:
Trimarco v. Klein (1982)
F: P fell through glass door in apartment, alleging door did not meet customary (was considered
“custom” to replace old glass with shatterproof glass) safety standards. D argues no duty because
he received no notice of change in custom.
● Holding: Evidence of custom is highly relevant in establishing reasonable standard of
due care and changing people’s expectations of care, but does not define the scope of
negligence. D was not held liable because he had no prior knowledge of danger and no
need for a new installation before time of accident.
 ○ Majority: “What usually is done may be evidence of what ought to be done, but
what ought to be done is fixed by a standard of reasonable prudence, whether it
usually is complied with or not.”
● Hand: Cost of adapting to the custom must be less than the cost of potential accidents.
● Court Interpretations:
○ Non-conformity to custom may be no evidence at all.
○ May be some evidence, and would make summary judgment for D erroneous and
allows the jury to draw and inference of negligence.
■ Trimarco standard.
○ May create presumption of negligence. Burden of proof shifts to D to prove
reasonable care was taken.
○ May be conclusive evidence, decided as a matter of law.

Rule of Law: A party is liable for negligence when a custom or accepted practice is coupled with
proof that such custom or accepted practice was ignored and that this departure was the
proximate cause of one’s injuries.

Common Carriers: Airlines

Andrews v. United Airlines (1994)
F: Briefcase fell from overhead compartment and injured P, who claims accident was foreseeable
and could cheaply be prevented.
a. Pokora method; P satisfied burden of proof to overcome judgment and send case
to jury decision. Case may be decided either way and be acceptable, thus a rule of
law should not be invoked.
b. Classic Hand case, because D will try to prove risk is minimal in comparison to
the cost incurred in minimizing the risk, or using industry standards, as burden of
proof shifted to them in sending the case to jury.
Rule of Law: A common carrier owes a duty of utmost care (at least in CA) (remember,
Bethel only applies to NY but may be persuasive elsewhere) and the vigilance of a very
cautious person towards its passengers, and is required to do all that human care, vigilance, and
foresight reasonably can do under all the circumstances.

WHEN CUSTOM DOES NOT ESTABLISH STANDARD OF CARE:

Customary Practice in Establishing Causation:
T.J. Hooper v. Northern Barge Corp. (boat radio case)(D argued no negligence for lack of
warnings for dangerous weather changes because there was no custom of having radios onboard.
● Holding: Customary practice is not always reasonable; while there was no general
custom of having radios, the custom itself was negligent and D thus is liable.
● Hand: D negligent under Hand formula also. Radios are relatively inexpensive and
reliable and greatly less than the cost of losing a boat in an avoidable accident.
1. Where B<PL, but there is no custom or law requiring the behavior, sufficient
conditions will develop over time to bring behavior into customary practice.
 2. Market decisions will adjust themselves to the most cost beneficial reasonable
behavior.
3. Legally permissible to send cases of conformity to jury because you’ve only taken
reasonable care when you’ve spent the last dollar on accident prevention that
allows the most protection (B=LP).
Rule of Law: A business may be liable for failing to adopt new technology, even if the industry
has not widely adopted it, if the use of the technology constitutes reasonable prudence.

Garth v. Rupert-- individualized customs are not allowed to be used as evidence since it is not
widespread enough to be considered a “custom”

WHEN IS CUSTOM ADMITTED?

1 – Custom: Industry must not establish own standards of care that are less than that of
reasonable care and assert the defense that the behavior is customary to escape liability.
a. Although prevailing custom does not establish the standard of care, adherence to
and deviation from the custom proves important in determining whether party
acted reasonably.
b. Party’s able to prove adherence to a prevailing custom may eliminate a potential
jury question and alerts courts to the following:
i. If industry adheres to a single method or performing, the court may be
wary of P’s assertions that’s there are safer ways of acting and may have P
demonstrate feasibility of asserted alternatives.
ii. Where P is able to show a feasible alternative, the fact that it was not a
prevailing custom might suggest the behavior is not unreasonable for D to
not have partook in it.
iii. Existence of customs that involve large fixed costs may warn the court of
the social impact of a jury or judge’s decision that determines the custom
is unreasonable.
POLICY:
● P introduces evidence: The following may be accomplished simply by proving others,
even if not customary, deviated safer manners of behavior.
iv. D fell below industry custom because others, usually competitors, found it
feasible to act in a safer manner than D.
v. that the practice is widespread enough to constitute a custom; and
vi. That D departed from the alleged custom.
● D introduces evidence:
○ that the practice in question is not a custom;
○ that D did not depart from the practice; and
○ that even if the practice is a custom, and even if D did depart from the custom, this
departure was not negligent.
 II. Non-Conformity: Non-conformity or sub-conformity does not always necessitate
negligence because the custom may not even be reasonable, which is paradigm
necessity of a behavior.
i. Custom is not conclusive of negligence.

Exception in MED MAL: we allow compliance with custom to be determinative in med mal bc
it shows what reasonable doctor would have done. Otherwise fundamental mistrust for allowing
other industries to set their own standards—corporate goal is to maximize profit.

Industry customs useful bc it shows: (1) Others found it feasible to do something in a safer
manner than D; (2) D had ample opportunity to learn about the alternative; (3) No great social
upheaval will follow a judicial determination that D’s failure to follow custom was negligent.
Negligence Per Se: The Role of Statutes in Establishing Standard of Care

Negligence Per Se: act is considered negligent [breach of a standard of due care] because it
violates a statue or regulation. Prima facie case of negligence per se, P must show that: 1) D
violated statute, 2 ) act caused harm statute was designed to prevent, 3) P was a member of
statute's protected class, 4) fits within legislative scheme

Unexcused violation of statute= negligence per se

Martin v. Herzog: (1920)
F: Couple (P) buggy at night, didn’t have lights on (violating statute.) Car struck by D’s car
coming from opposite direction, husband (P) killed. Wife (P) alleged that D was not driving on
right side, D claimed contrib. negligence. P liable for contrib. negligence so could not recover.

● Cardozo: Jury should have been instructed to determine who was more negligent and
whether there were reasons the statute was violated, since both were violating statutes
and thus guilty of negligence per se.
● Exception: May be times when two negligent acts and breach of statutory duty are kept
distinct.
Rule of Law: An omission, or failure to perform an act required by statute, constitutes negligence
per se.

Standards of Care in Statutes: legislatures routinely enact statues establishing standards of

care for common situations, and their violation can sometimes prove a breach of that standard

“Presumption” of Negligence: Certain jurisdictions hold that proof of a statutory violation

creates a “presumption” that violator was negligent, but the violator is still free to rebut the
presumption (burden of proof remains on plaintiff)
Evidence-of-Negligence Probative, Not Dispositive: treating the violation of statute as
evidence of negligence, but the jury is not compelled to find negligence even in the absence of
rebutting evidence from the defendant; jury is free to find D's non-negligence even if no excuse
were offered (Ex: driving 57 mph on a road with 55 mph speed limit; per se/presumption
approaches require finding of negligence, whereas evidence-of-negligence approach does not
require it)

Criminal statues: Normally, small criminal penalty for violation, but statues often don't say
anything about whether violation of the statute establishes negligence in a civil action for
damages

Clinkscales v Carver (Cal. 1943): “Whatever the effect of the irregularity on defendant's
criminal liability, it cannot be assumed that the conditions that limit it also limit civil
liability”. Even if a criminal statute does not create criminal liability for the defendant, it
may create civil liability. Where a statute is not applicable in a criminal setting it can still
be adopted into the common law as evidence of the reasonable standard of care. Stop sign
was run; although D is not criminally liable, his violation of the statute may indicate that
he breached a standard of care.

Licensing: Generally do not set standards of care – purpose of statute is to protect the public
from the unlicensed. In these cases, P must prove that the P lacked the skill

Brown v. Shyne (NY 1926): Violation of an administrative statute related to licensing of

professionals is not negligence per se. Court held that defendant to standard of physician,
but ruled that jury should not be told about violation of licensing statute. Chiropractor
hurts plaintiff by undertaking medical treatment for which she claimed to be qualified,
but was not.

Some Jurisdictions - Barring Evidence of Non-Licensure: In many jurisdictions,

judges will refrain from admitting evidence about non-licensure into evidence
because it's usually prejudicial, and not probative.

Other Jurisdictions – Admitting Evidence of Non-Licensure: Some

jurisdictions have found that a person practicing medicine without a license is per
se liable (this is done through statutes).
Statutory purpose: Evidence of a statute’s violation will not constitute negligence if it is not
related to preventing the type of harm that has occurred
i. Gorris v. Scott (1847) Contagious disease act requires shipowners to build pens on deck
to keep sheep separated. He did not and a few sheep washed overboard. Plaintiff was
unable to sue under violation of the statute since the statute is not intended to prevent
 that sort of loss.
De Haen v. Rockwood Sprinkler Co. (1932) [Cardozo]Though the statute is to protect workers
from falling into the shaft, the barriers erected may protect workmen from being hit by falling
objects. Wrong to interpret something too rigidly, legislatures may have had other things in
mind when they wanted the shafts to be protected.
DiPonzo v. Rordan (1997) statute requiring customers to turn of their engines while pumping
gas. Gas station (defendant) allows customer to leave the car running and someone is pinned
when the car inexplicably rolls backward. The statute was not allowed to apply since its purpose
is to prevent a fire hazard. Example given in Restatement: a defendant gives a loaded pistol to a
child who lets it drop on a playmates foot—but it does not fire a bullet.

Policy Concern: Do we allow juries to determine the customs for entire industries based on tort
litigation?

Defenses to Negligence Per Se

Emergency: as where a driver swerves across the center line to avoid a child in the street
Incapacity: actor is a minor unable to comply with the usual standard of care
Lack of knowledge of the need to comply [lack of knowledge of non-compliance?]: where a
driver's tail light goes out while he is driving and before he has the opportunity to discover it
Inability to comply: where blizzard makes it impossible to comply with a stature requiring a
railroad to keep its fences clear of snow
Non-compliance is safer than compliance:: As where a pedestrian walks with her back to
traffic due to unusually heavy traffic going to other way (Tedla v Ellman – see below)

Violation of Statute but in accordance with the class of risk it wished to protect
Tedla v. Ellman (1939)
F: Ps hit by car while walking on wrong side of highway, in violation of state statute, to avoid
more traffic.
Holding: Violation of the statute occurred in keeping with the spirit of the statute to protect from
harm and injury due to traffic, and D thus held liable.

Rule of Law: A person who violates a statute governing conduct is not always negligent per se.

Relevance Standard: A statute is only relevant in establishing negligence if it is meant to

protect persons like the plaintiff from the type of harm which actually occurred;

Statute Must Protect the Class of Persons to Which the Plaintiff Belongs: Example--
building code is meant to protect the occupants of a building, not the building's construction
workers
 Failure to Establish Relevance: Does not require that P must lose case, but rather that the
breach of standard of care must use the burden of showing negligence through the reasonable
person standard

Proof of Negligence-- Circumstantial Evidence

Slip & Fall Cases / Role of Constructive Notice:

Defect (1) must be visible & apparent & (2) it must exist for sufficient time before accident to
permit D to discover & remedy it.
● Some jxns permit the P to try to make a case without proof of actual/constructive notice
on part of D.
● Courts recognize a “mode of operation” basis for liability by which the P bases the D's
liability on methods used by D to run the business.
“Circumstantial” evidence: evidence of facts from which a jury could infer that a defendant was
negligent (i.e. at scene of car crash, 3 or 4 nuts are found on each wheel, upon return to the
garage where the wheel repairs were performed, two nuts are found on the ground)
Circumstantial Evidence: When Defendants Should Have Known of the Danger (enough time to
notice)
Negri v. Shop and Shop, Inc. (1985)
F: P slipped and hit head on floor; nearby were broken jars of baby food. Aisle had not been
cleaned 1-2 hours prior and nearby witness heard breaking 20 minutes earlier.
● Holding: Circumstantial evidence may be sufficient to permit a jury to constitute a
dangerous condition existed long enough to provide constructive notice.

Rule of Law: Dismissal of a plaintiff’s negligence claim is inappropriate if there is evidence that
the defendant had constructive notice of a dangerous condition that allegedly caused the
plaintiff's injury and failed to remedy the condition.

Circumstantial Evidence: When Defendants Could Not Have Known of the Danger (not enough
time to notice)
Gordon v. American Museum of Natural History: (1986)
F:P slipped on stairs outside of a Museum, and saw piece of wax paper as he fell. P presented no
evidence in the record to support Gordon’s claim that the Museum had actual notice or
constructive notice of a dangerous condition created by the paper on the Museum’s steps. Unlike
Negri because there is no reasonable way to assert that paper was outside long enough for D to
have known of its presence.
● Holding: General awareness is not sufficient; must provide evidence to prove
constructive notice; D had no evidence or indication that D knew about the paper and the
dangerous condition it may have presented.
Rule of Law:Dismissal of a plaintiff’s negligence claim may be appropriate where there is no
evidence in the record that can support the plaintiff’s claims.

Kelly v. Stop and Shop (salad bar case) courts found that a customer need not establish
constructive notice when the business practice of the store—in this case a self-service
salad bar—provided a “continuous and foreseeable risk of harm to customers.”
● Business Practice Rule – a customer need not establish#actual or constructive notice
when the business practice of the store (in this case, a self-serve salad bar) so long as
it does not violate a reasonable person standard

Res Ipsa Loquitur (RIL)

Note: Remember, RIL does not indicate negligence by itself, but diverts a motion for directed
verdict or something similar so that the case goes to a trier of fact. It is merely used to identify
that there is something wrong and the Plaintiff should have their day in court

I. Constructive Notice: Notice arising out of presumption of law from the existence of
facts and circumstances that a party had a duty to take notice of. D may not actually
be aware, but they should or reasonably be expected to know.
a. Conditions:
i. Visible and Apparent: Defect must be noticeable.
ii. Time: Defect must exist for a sufficient period of time prior to the accident
to permit D to discover and remedy it.
b. Importance: P must show that a reasonable person would have noticed the defect
and remedied it, and that in failing to do so, D was negligent. Essentially an
extension of a reasonable person’s scope of knowledge.
c. Res Ipsa Loquitur: “The thing speaks for itself.” D is presumed to be negligent if
they had exclusive control over whatever caused the injury even though there is no
specific evidence of negligence because without negligence, the accident would
never have happened.
i. Note: Res ipsa usually doesn’t apply in auto cases.
ii. Factors
1. Defendants' "exclusive" control
2. Incident usually only occurs when someone is negligent
3. Generally passive plaintiff
a. Ex: Ybarra under anesthesia, Byrne- just walking down the
block
4. “Smoking out" of evidence: D knows everything, P knows nothing
a. Ex: Ybarra: Ds have to speak up
b. “[W]e should not forget that the particular force and
justice of [res ipsa], regarded as a presumption throwing
upon the party charged the duty of producing evidence,
consists in the circumstance that the chief evidence of the
true cause, whether culpable or innocent, is practically
 accessible to him but inaccessible to the injured person.’’
(Ybarra)
5. Plaintiff not negligent himself (not always a formal rule, depends
on jurisdiction)
iii. Scenarios
1. Where an object that should be contained or stationary escapes,
moves, or becomes an active source of harm (Bryne, McDougald)
2. Where an object is supposed to move, but takes an unexpected turn
(car swerving);
3. Custodial Cases (Ybarra)
iv. Permissible inference rule:
1. When elements of RIL are met:
a. P survives D’s motions for summary judgment and directed
verdict, and case goes to the jury.
b. But P still has the burden of persuading the jury to draw an
inference of negligence.
v. Presumption rule:
1. After P’s presents case based on RIL, D must present some rebuttal
evidence to even get the jury.
2. Otherwise, directed verdict for P.
d. Evidence: Exception in P having to provide evidence of D’s specifically negligent
conduct. P’s injury and the immediate surrounding events themselves show
negligence, even where P cannot prove another specifically dangerous or
negligent.
i. “Smoking out” the evidence in RIL (like in Ybarra)
1. Smoking out evidence?
a. Byrne: D’s employees unlikely to come forward with
testimony on what really happened;
b. McDougald: evidence destroyed or spoiled;
c. Ybarra: effort to extract evidence from one of the Ds who
witnessed malpractice (or from the D who actually
committed the malpractice).
2. Two Factors Must Be Met
a. 1) One or more of the defendants must have actual
knowledge about the cause of the plaintiff’s injury; and
b. 2) Any defendant who does have evidence useful to the
plaintiff must be willing to lie under oath at a deposition but
tell the truth under oath at trial.
e. Requirements: The conditions must be satisfied, in addition with the general
terms of negligence (duty, breach, causation).
i. Unique: Accident may seldom occur without negligence. The event must
be of the kind that ordinarily does not occur except where there is
negligence of fault by someone.
ii. Contribution: P must show the injury was not due to their own actions,
3rd parties, or some act of nature; must rule out contributory negligence.
 iii. Control: P must show the instrument causing the injury was at the
relevant time in the exclusive control of D or within their scope of duty.
f. Byrne v. Boadle: P struck by barrel falling from window while walking past D’s
shop. Witness saw barrel fall, but not cause.
i. Holding: Applied RIL. Barrel was in control of D and its fall was prima
facie evidence of negligence. Burden of proof shifts to D to prove he was
not negligent.
ii. Asks: 1Whether this type of accident is not likely to occur unless someone
has been negligent, 2D is in exclusive control of instrumentality of harm,
3
between P and D, D is in a better position to explain what happened, and
4
no contributory negligence.
g. McDougald v. Perry: P driving behind D’s tractor-trailer with tire secured with
nut and bolt underneath, which came loos and injured P.
i. Holding: RIL applies because this is the type of accident that does not
occur without negligence, and D was in exclusive control of the tire’s
circumstances.
h. Samson v. Reising: Salmonella poisoning from turkey salad at luncheon, P
brought action against 11 mothers involved in preparations.
i. Holding: Prosser approach. No RIL because although seemingly strong
case, reasonable care was likely taken and no way for D to prove they did
in fact act reasonably.
i. Accessibility: Some courts further require P show there is an explanation of the
events more readily accessible to D than themselves. It also frequently occurs that
the source of negligence lies within a group of individuals that are unwilling or
unable to divulge the direct source.
j. Indirectness: RIL is used as an indirect means of inferring that D was probably
negligent, thus direct evidence of D’s negligence negates the necessity of using
the doctrine. P also need not show that the events never occur but for negligence,
but just that generally negligence causes them. P further does not need to show
there were no other potential causes of the incident; simply that there was a >50%
chance D was negligent and provide evidence negating other possibilities to a
great probability.
k. Multiple Defendants: P may allege multiple parties were negligent. If P can
demonstrate the probability that the injury was caused by the negligence of at
least one D, but not which specific one, RIL may still be applied.
i. Ybarra v. Spangard: P received appendectomy and after surgery felt sharp
pain between neck and shoulder, leading to paralysis and atrophy. P sued
all involved parties based on RIL.
1. Holding: Wigmore theory. Number and relationship of Ds alone
does not determine applicability of RIL, and may be applied to
multiple Ds where any number of them may have caused the
incident (provided there is a finite group), especially because D
was unconscious and could not have identified a single actor
anyways.
 2. Multiple Ds must usually have a special integrated relationship to
one another, and RIL usually cannot be applied to groups of
strangers with ordinary duties of care.
3. Prosser: Focuses on D and exclusivity of control to instrumentality
causing harm.
4. Wigmore: Focuses on P. RIL meant to correct access to evidence,
but has become outdated due to modern discovery practices.
l. Outcomes of RIL: Different states apply different views of invoking RIL.
i. Presumption: CA. P has provided evidence to survive summary judgment
if D cannot submit rebuttal evidence; i.e. burden shifts. In absence of
evidence, jury must find D negligent.
ii. Permissible Inference: NY. P has burden of proof even if D presents no
rebuttal evidence, and case will likely go to jury where they may or may
not find D negligent.
m. Defenses to RIL: Once P has applied doctrine and presumption of D’s
negligence, burden shifts to D to prove he was not negligent. General evidence of
due care is not sufficient to rebut P’s allegations and case will proceed to jury
decision. More prudent for D to rebut an element of RIL through:
i. alternative explanations for injury,
ii. illustrate injuries occur without anyone’s negligence, or that
iii. D had no control over the situation.

“Foundation Facts”: must support an inference of neg; to support this, P must 1) show that he
was injured in accident that would not ordinarily happen without neg, and 2) that the neg is more
likely than not attributable to the D, rather than to P or 3d party.

RIL - “The thing speaks for itself” (Restatement 328D)

Can be invoked when:
1 – No direct evidence of D's conduct.
2 – Injury to P is one that ordinarily occurs because of negligence [P's burden is to show more
probable cause was negligence, doesn't need to rule out alternate causes]
3 – The instrumentality causing harm was within exclusive control of D;
4 – The injury was not due to any negligence on the part of the plaintiff.
Possible post-Ybarra Add-on: the evidence as to true cause of the injury must be more
readily available to D than to the plaintiff.

Res Ipsa Loquitur-- Flour Injury

Byrne v. Boadle (1863) (245)
F: P walking on street past D’s shop when barrel of flour fell on him from window above,
causing injury. P cannot show evidence as to exactly how barrel fell. D liable.
- Barrel was exclusively in D’s control, and generally, such an accident does not occur without
negligence, res ipsa loquitur applies.
 ● Holding: Applied RIL. Barrel was in control of D and its fall was prima facie evidence of
negligence. Burden of proof shifts to D to prove he was not negligent.
● Asks:
○ Whether this type of accident is not likely to occur unless someone has been
negligent;
○ D is in exclusive control of instrumentality of harm;
○ between P and D, D is in a better position to explain what happened; and
○ contributory negligence?
Rule of Law: If injury of a type that does not typically occur without negligence does occur,
negligence is presumed from the mere fact of the occurrence.

3d Requirement [Instrumentality Causing Harm Requirement] Not Always Strictly

Enforced: where the instrumentality of harm can’t be determined, e.g. Fowler v. Seaton (CA
1964): where P child was injured in day school but it couldn’t be discovered how, ct held that
this was a sufficient res ipsa showing. Cf. Helton (99) opposite holding in church day school.

NO RIL - Larson v. St. Francis (Cal.App. 1948): chair flew out of a hotel room window, P
proved this through injuries and rested; D's motion for nonsuit granted. P didn't meet the
requirement that the instrumentality was within the exclusive control of the defendant.

Connolly v. Nicollet (Minn. 1959): Hotel knew things were being thrown out of the window
prior to accident; management admitted that it needed to turn other cheek; court held for P (res
ipsa argument? Probably not, more like a constructive notice argument.).

Procedural Effects of Res Ipsa Loquitur (RIL)

Permissible Inference Rule (Certain Jurisdictions):

When the requirements of res ipsa are met, the jury is permitted (but not required) to find that the
defendant was negligent.
A – P should survive the defendants' MSJ and for directed verdict, and case should go to jury.
B – But the P still has the burden of persuading the jury to draw the inference of negligence and
will lose unless the jury concludes that negligence is more likely than not.

Res Ipsa Loquitur-- Tire/Windshield

McDougald v. Perry (1988) (249)
F: D driving tractor trailer, P behind. Trailer’s huge tire fell off, hit P’s windshield. Res ipsa
applies.
- D admitted security of tire was lax, and Court noted that this type of incident usually does not
happen without D’s negligence.
Rule of Law: The mere fact of an accident occurring may be sufficient to maintain a claim of
negligence.
Why not require P to have evidence? (Rationale for RIL)
● Smoking Out – forces D to come forward w evidence/tell us what happened
● Spoliation of Evidence - concern evidence was destroyed/spoiled; why should
innocent P bear burden of coming forth w evidence

Res Ipsa Loquitur-- Turkey Salad/Food Poisoning

Samson v. Riesing
F-9 members of a high school band mothers group individually cooked turkeys in their own
homes, from which turkey salad was made by some of them at a church kitchen. P ate turkey
salad and suffered food poisoning. Res ipsa didn’t apply because the Ds were cooking separately
and independently at home. They were not working together in any way (unlike Ybarra at
hospital.) Seems that only one mother was careless (unlike Hill, where both Ds were careless.)
-Different than Hill, where both Ds were careless, here, seems that only one mother was careless.

Presumption Rule (Other Jurisdictions) D must present some evidence in rebuttal in order to
even get the jury. (Burden almost shifts to D, and jury must find negligence if it finds the 2 RIL
requirements are met.) In the absence of rebutting evidence, P is entitled to a directed verdict.
The purpose is to force D to come forward with evidence and information which only he can
know about the incident and is inaccessible to P.

Res Ipsa Loquitur-- Injury During Surgery

Ybarra v. Spangard (1944) (258)
F: P sued hospital staff for injuries resulting from allegedly improper treatment during surgery.
During his appendectomy, his shoulder was injured (while he was unconscious.) P doesn’t know
exactly what instrument caused injury and which staff member caused it, but could demonstrate
that at least one of the staff was responsible.
- Res ipsa applies, staff had exclusive control.
-Evidence more available to D than P, since P was unconscious when injury occurred
-Each of Ds who had control over P had burden of rebutting inference of negligence, but none of
staff exonerated themselves or “told on” negligent party = joint and several liability.
- If during medical treatment, an unconscious patient receives unusual injuries, all people who
had any control over his body/instrumentalities which might have caused injury may properly be
called upon to meet the inference of negligence by giving an explanation of their conduct. Each
D needs to prove it wasn’t his fault (burden shift.)

Rule of Law: Where a plaintiff receives unusual injuries while unconscious and in the course of
medical treatment, all those defendants who had any control over his body or the
instrumentalities that might have caused the injuries may be held liable in an action based on res
ipsa loquitur. (of course, here, could not have had pinpointed who was negligent exactly)
 Barrett v. Emanuel Hospital (Or.App.1983) - rejects Ybarra as “modern
discovery practice” casts doubt on it. “[W]e do not think the objective should be
pursued by stretching a permissible inference beyond the point where there are
underlying facts other than the result from which it can reasonably be drawn.”
Leonard v. Watsonville Hospital (98),Under presumption standard D may
produce rebutting evidence to eliminate the presumption: and move to an
inference basis, or even have case dismissed, e.g. where D doctor showed he
could not have left the clamp in P and granted SJ.
Inouye v. Black, (Cal. App.1965): P has surgery, wire fragments into multiple
small parts; P files suit against surgeon only based on res ipsa theory – judgment
of nonsuit for D, appeals court affirms, holding that res ipsa did not apply because
only surgeon was before court.

“Smoking out the Evidence” Theory Underlying RIL?

Byrne: D's employees unlikely to come forward with testimony on what really happened;
McDougald: evidence destroyed or spoiled [spoliation of evidence in tort];
Ybarra: effort to extract evidence from one of the defendants who had witnessed
another's malpractice (or from the defendant who actually committed the malpractice).

Two Necessary Preconditions for smoking out the evidence (as in Ybarra):
1 – 1 or more Ds must actually have knowledge about cause of Ps injury that would be useful as
evidence;
2 – Any defendant who does have evidence that would be useful to the plaintiff must be willing
to lie under oath at a deposition (pre-trial) but then tell the truth under oath at trial.

Possible RIL scenarios:

1 – Object that should be contained/stationary escapes, moves, becomes source of harm (Byrne,
McDougald)
2 – Object is supposed to move, but it takes such an unexpected course that negligence remains
the strong likelihood (car swerving)
3 – Custodial cases (Ybarra): The importance of the second prong is diminished because person
unconscious during surgery cannot say precisely when/how the neg occurred, who had control of
instrumentality.

Spoliation of Evidence: destruction of evidence

Some jxns bar negligent spoliation claims bc: (1) Endless litigation; (2) Difficulty of telling what
impact the missing evidence might have had on original case; (3) Costs of preserving evidence
after all evidence
Killings v. Enterprise Leasing Co. (AL 2008) 3rd party negligent spoliation claim
conditioned on: (1) actual knowledge of pending or potential litigation on part of spoliator (2) a
voluntary undertaking, agreement, or specific request establishing a duty(3) evidence that the
missing evidence was vital to the underlying claim

MEDICAL MALPRACTICE

GENERAL INTRODUCTION TO MED MAL

Crisis? Evidence on both sides
● US Med mal premium rates have increased about 10,000% in the past 50 years
● Per judgment med mal awards increased during this period (largely because of ED
awards)
● P's only win 4% of med mal cases that go to trial ( most don't even get filed, 1 out of
every 6)
● Median payment to victims in 2009 was $194K – punitive damages awarded in <1% of
cases.
● In 2009, only 1100 of 18,222 payouts topped $1 mm; med mal claims declining 2% per
annum

Rise of Medical Malpractice Liability

● Legal changes permitting more suits;
● Increases in the cost of health care (which is component damages awarded for medical
mal)
● Greater willingness to sue doctors (some of which has to do with the lack of a
longstanding relationship between doctors and patients);
● The increased specialization and greater ability of plaintiffs' attorneys;
● (Ironically) medical advances themselves create greater opportunities for medical “error.”

I. Medical Malpractice: Malpractice has unique standards because it involved

technical jargon and juries are not able to say what constitutes reasonable medical
care in absence of experts. D must act in conformity with the standards and customs
of members of the profession in good standing.
Note: “Defensive medicine” – where doctors feel compelled to order unnecessary
tests and procedures to protect themselves if a patient sues them -- costs the United
States $650 billion per year, about 26% of every dollar spent on healthcare.
a. Conditions: P must affirmatively prove:
i. Custom= Standard of Medical Profession
 ii. Relevant recognized standard of medical care exercised by other
professionals.
1. Must be established via expert testimony (generally 2 testifying
physicians):
a. Establish customary practice and appropriate standard of
care.
b. Rely on medical publications etc to show relevant practices,
protocols, rules.
iii. D departed from that standard while treating P.
iv. But for the departure, P wouldn’t have been injured.
v. Jurors determine whether dr’s conduct conformed to the “medical standard
or custom in the relevant community.”
b. Using Experts in Res Ipsa Loquitur Medical Malpractice Cases
i. Common knowledge rule (minority view):
1. RIL only available in cases where jury can rely on common
knowledge to determine negligence.
ii. RIL Allowed (majority & Rstmt. 2d view):
1. Where medical injury is the type that doesn’t ordinarily happen
without negligence, RIL is allowed.
2. Acknowledges that expert testimony may be needed to “bridge the
gap between the jury’s knowledge and an issue common only to
experts in the field.” Rstmt. 2d
c. Same of Similar Locality Rule
i. Requires a doctor to act consistent with the way an ordinary physician of
the same skill would act under similar conditions in a similar community.
1. Resembles traditional tort standard of the reasonable person.
ii. POLICY: STRICT LOCALITY RULE
1. Protects rural and small-town practitioners
a. less adequately informed and equipped;
b. fewer opportunities to keep abreast with the advances in the
profession;
c. lack the most modern facilities for treating patients.
2. Public health concern/ medical coverage
a. Few would be willing to practice in small communities if
there was a real prospect of being held to a stringent
liability standard.
d. POLICY: A NATIONAL STANDARD OF CARE?
i. Pros:
1. Fairness: everyone is offered same standard of care;
2. Allows plaintiffs access to more and better testifying experts;
ii. Cons:
1. Socio-economic diff’cs in access to health insurance, preventative
care, etc.;
 2. Different family/cultural attitudes towards care: esp. as patient
nears death;
3. Training and experience of doctors: despite standardization of
medical education, actual training and experience depend on
practice.

PRIMA FACIE MED MAL CASE : As part of his prima facie case, P must affirmatively
prove:
1.) the relevant recognized standard of care exercised by other doctors and 2.) that D departed
from that standard. 3) But for the departure, P wouldn’t have been injured. Expert witnesses are
usually required to prove the accepted standard of care. Robbins v. Footer (D.C. Cir. 1977)

PROVING MEDICAL MALPRACTICE

P's proof: consists of evidence that D violated a standard of the profession
D's case: consists of evidence that the defendant complied with the standards of the profession.
Most jury instructions: “whether D's conduct conformed to the med standard/custom in the
relevant community.”

STANDARD OF CARE IN MEDICAL MALPRACTICE (Restatement§ 299A):

● Standard must be established via expert testimony (gen 2 testifying docs –1 for P, 1
for D)
● Standard of care is established by the community of doctors, themselves: reliance upon
medical publications, experience, documentation of practices, protocols, rules, etc.
◦ Self-regulating-- note how this differs from T.J. Hooper)
● Jurors determine: “if D's conduct conformed to med standard/ custom in relevant
community”

CUSTOM IN ESTABLISHING STANDARD OF CARE IN MED MAL

No Similar Locality Rule
Sheeley v. Memorial Hospital (1998):
F: Sheeley (plaintiff) gave birth at Memorial Hospital (defendant). During the birth, Dr. Ryder
(defendant), a family practice resident, performed a procedure that later caused complications.
Sheeley brought an action for medical malpractice. Rhode Island law limits expert testimony to
someone who is qualified based on knowledge, skill, experience, training or education. At trial,
the court excluded the testimony of Sheeley’s expert witness, Dr. Leslie, who would have
testified as to the alleged malpractice and the applicable standard of care. The trial court relied
on the fact that Dr. Leslie is a board certified obstetrician/gynecologist (OB/GYN), and not a
family practitioner, like Dr. Ryder. Without such expert testimony from the plaintiff, the trial
court entered a directed verdict for the hospital and Dr. Ryder.
Rule of Law: A physician has a duty to practice with the same degree of skill and diligence as
other members of the profession in the same type of practice.

Gala v. Hamilton (115): a doctor can choose either of two schools of thought (even a
minority approach), so long as both are recognized as being legitimate by experts and
within the bounds of a respected and well-recognized view.

1 – STRICT LOCALITY RULE:

Pro:protects rural and small town practitioners from liability
● Small town practitioners are less adequately informed and equipped;
● Fewer opportunities to keep abreast with the advances of the profession;
● Lacking the most modern facilities for treating patients;
Con: Allows smaller-town docs to adhere to lower standards; docs in community have “circle of
silence”
Public health concern re-medical coverage-- few would be willing to practice in small
communities if there was a real prospect of being held to a stringent (i.e. nationally-established)
liability standard.

2 – SAME / SIMILAR LOCALITY RULE:

Doctor must act in a manner that is consistent with way an ordinary physician of the same skill
would act under similar conditions in a similar community. Resembles reasonable person
standard.

3 – ADOPTION OF A NATIONAL STANDARD:

Pros: Fairness (everyone is offered the same standard of care)
● Allows plaintiffs access to more, and better-testifying experts;
Cons: The are differences in American medical care system which courts/juries should take into
account:
● Socio-economic: Access to health insurance, preventative care is different within
different localities (even within different socio-economic strata in those localities)
● Family attitudes toward care: different standards among social groups (especially near
death)
● Training / experience of doctors is different
RIL IN MED MAL CASES
Majority View:
● Where the injury is the type that doesn't ordinarily happen without negligence, RIL
allowed;
● The common knowledge rule is too too rigid because sometimes the “knowledge” to too
advanced for a jury to readily know-- doctor must establish what is “common knowledge
among a community of other doctors;
● If the doctor's due process rights would be violated if he were unable to present a witness
 in a res ipsa case, why not afford the plaintiff the same opportunity?

MinorityView (8 States incl FL, MD, NC, ND, TX, WY, ID, NV)
● RIL can only be used in those cases where a lay person is able to rely upon common
knowledge and observation in determining negligence;
● If expert is needed, specific evidence of negligence is needed.

Sides v. St. Anthony's Medical Center (2008): P has back surgery; complication lead to E.coli
infection, P sues and attempts to invoke a RIL theory through expert testimony to make prima
facie neg showing. Ct ONLY holds that P's are not prohibited from relying on expert
testimony in attempting to make out RIL theory. The presentation of expert testimony in res
ipsa cases merely allows a P to make a prima facie case to show that their injury would not have
occurred without negligence; it is still up to the jury to decide, and the D may rebut.)

Holding: Medical malpractice cases may be decided on RIL where P provides expert testimony
that the injury wouldn’t have occurred “but for” negligence.

Rule of Law: The majority of courts permit expert medical testimony in medical malpractice
cases based on a theory of res ipsa loquitur.

Informed Consent

Negligence Liability Requirements for Informed Consent:

1)Failure to Disclose;
2) Injury Suffered;
3)Causation (patient would’ve chosen alternative if presented)
4) Jurisdictions Adopt Either Subjective or Objective Causation Standard:
Subjective: What would this patient had chosen? (principally, this is sounder bc
more matter of fact)
Objective (Majority): What would reasonable person have chosen if given
choice? (subj. prone to hindsight🡪only evid. is P’s). Objective approach is
favored.

Standard of Care
Before medical intervention, doctor must describe and answer patient's questions re:
● Nature of procedure-- purpose, site, invasiveness, duration, and instruments used; and
material risks (i.e., risks that a reasonable patient in P's position would consider
important)
● Materiality is determined through expert testimony-- the facts that you would need to
know in order to prescribe a course of treatment ( subjective vs objective patient
 standards)

TEST:
1 – Doctors must disclose to patients significant risks known to accompany medical
treatments.
2 – Includes a continuing duty to disclose subsequently discovered risk information to
former patients
3 – Must disclose reasonable alternative courses of action to the patient (with risks).
4 – May also have obligation to describe benefits of a diagnostic or therapeutic procedure.
5 – Health risks associated with failure to follow doctor's recommendation.

a. Informed Consent:
i. Before medical intervention, dr. must describe and answer patient’s
questions re:
1. Nature of procedure;
2. Disclose any significant risks -- inc. risks associated with the
failure to follow the dr.’s recommendation.
3. Disclose reasonable alternative courses of action.
ii. Doctors must disclose to patients all the risks involved in a proposed
treatment plan that a reasonable person would take into account in
determining whether to undergo treatment. Critical when methods of
treatment are mutually exclusive.
iii. Courts determine not what the patient did/actually would have done, but
what a reasonable patient would have done had they known about the
particular risks involved before consenting.
iv. 2 Approaches of Materiality
1. Patient Rule
a. What would a reasonable patient want/need to know?
i. Promotes individual autonomy;
ii. Patient should be making life-or-death decisions;
iii. Patient should be making quality of life decisions.
2. Professional Rule
a. What would a reasonable physician believe to be material
to a patient in this position?
i. Promotes professional ethics;
ii. Dr. should be making major medical decisions.
v. Conditions: P must prove 1nondisclosure of required info, 2actual damage
3
resulting from the risks of which patient was not informed, 4cause in fact
(that P would have rejected treatment had they known), and that a
4
reasonable person would have rejected the proposed treatment if properly
informed.

Matthies v. Mastromonaco: (1999)

F: D prescribed bed rest for P without informing of other options, and P’s condition got worse.
● Holding: Doctors must explain risks and alternatives to both invasive and non-invasive
treatment options regardless of which they believe is proper. P must also prove causation
of injury; i.e. but for failure to disclose, they would have changed their mode of
treatment.
Minority approach (NY) considers what a reasonable doctor would have told a patient.
Rule of Law: A physician must ordinarily obtain a patient’s informed consent before taking
action.

Two views of informed consent (post-injury or pre-injury?)

Patient Rule (Majority) Professional Rule (Minority - Seen as
paternalistic)
What would a reasonable What would a reasonable physician
patient want/need to know? Believe to be material to a patient in this position?
- Value of individual autonomy; -Value of professional ethics;
- Patient should be making life- -Dr. should be making major medical decisions
or death decisions
-Patient should be making quality of life decisions.

Exceptions: There’s no duty of disclosure in an emergency situation, or where full disclosure

could reasonably be determined to be detrimental to patient (e.g. when patient is distraught or
unstable).
(Unlikely that there's a viable tort claim without an injury)

Howard v. University of Medicine and Dentistry of NJ (NJ 2002) – Ct held P may claim lack of
informed consent bc of false answers given – D misrepresented credentials & experience in
performing procedure
******Albany Urology Clinic v. Cleveland (GA 2000) - Doctors do not have to volunteer
information that is not directly relevant to the procedure at hand! D wasn’t obligated to tell
patients of illegal cocaine use
Ashe v. Radiation Oncology Associates (TN 1999) – Subjective vs. Objective Standards:
Subjective Standard – consistent w the view that individuals, no matter how misguided, should
be able to make their own treatment decisions. Objective Standard – neither P not fact-finder can
provide a definitive answer as to what the patient would have done had the patient known of the
particular risk prior to consenting
Shine v. Vega (MA 1999) – If & only if the P is unconscious could the physician would
persume that the patient would want lifesaving treatment / otherwise incapable of giving
consent, & either time or circumstances don’t permit the phys to obtain the consent of a fam
member, may the physician presume that patient, if conscious, would consent to life-saving
medical treatment (2nd Rest. §892D)
Cruzan v. Director, Missouri Department of Health (1990) – Constitutionally protected liberty
interest in refusing unwanted medical treatment

THE DUTY REQUIREMENT (PHYSICAL HARM)

All the cases in ch. 3 present instances where P argues the no-duty rule should be abrogated for
various reasons, and the D asserted they did not owe a duty to the P:
● Because the P was a third party (Tarasoff, Randi W., Posecai, Reynolds)
● Because the defendant did not act (Randi W., Uhr, Harper, Vince, Reynolds)
● Because the P was not in a contractual or other relationship with the D (Strauss, Harper,
Vince, Carter)Because the P lacked the status necessary to be in a SR with the D(Harper,
Farwell).

Duty: does the law impose some sort of legal obligation on the D creating some sort of
responsibility toward the P? [where you have affirmative, risk-creating conduct, you have
duty to plaintiffs-- duty is only owed to foreseeable plaintiffs]
Chapter 3 – Duty Review
1. Duty is to take an action or to refrain from taking some action (very often, duties
presumed to exist → thus, taken as a second question in this court)
2. Traditional no-duty rule in the absence of a fault act (misfeasance) or a special
relationship (nonfeasance), one person has no affirmative duty to another.
3. Classic example of the indifferent observer of the infant on the railroad tracks who
refuses to take essentially costless action to save the child.
4. What justifies this rule? Individual freedom and free will; admin difficulties and
line-drawing.

TRADITIONAL NO DUTY RULE

Duty of care is an issue for the court, not the jury. A duty must be established before liability can
flow.
Prosser-- a question of duty is entirely a question of law to be decided by the court.

NO GENERAL DUTY TO ACT - RESTATEMENT 314: If D sees P in danger, he is under no

legal obligation to attempt even an “easy rescue” –No liability will flow from nonfeasance unless
there is a superseding special relationship

POLICY RATIONALE FOR NO-DUTY RULE:

● RATIONALE: Individual freedom / free will; no moral obligations; no duty to control
others.
● RATIONALE: Administrative ease.
● Arguments in favor imposing a duty to act: (1) utilitarian argument that society should
compel action because social gains exceed the costs to the indifferent observer (Epstein).
● Arguments against: (1) protection of individual autonomy (libertarian argument); (2)
fear that imposing a legal obligation to act will create disincentives to take on
relationships that might incur such obligations; (3) jurisprudential concern that we lack
the ability to find boundaries between liberty and duty.

General Exceptions:
Creation of a Reliance: if defendant has created an expectation that she will rescue plaintiff,
then there exists a duty to rescue (take reasonable steps).

Tortious Conduct Creates Danger: then there is a duty to rescue (take reasonable steps)

Prisons and Psychotherapists: Prisons have a duty to prevent convicts from escaping. Where a
psychotherapist knows or should know of a patient's dangerous propensity, the psychotherapist
should take reasonable steps to warn about dangerous behavior (Tarasoff v. Regents of UC).

Generally – Alcoholic Providers (Social Hosts), Unless there's Dram Shop Act : Significant
number of jurisdictions (but not all) have found duty for social hosts

NONFEASANCE V. MISFEASANCE
● Nonfeasance: not acting, which may itself be negligent
● Misfeasance: affirmatively acting in ways that might be negligent

Special Relationships
TRADITIONAL SPECIAL RELATIONSHIPS – RESTATEMENT 314A:
like innkeeper-guest, common carrier-passenger, possessor of land open to public, inmate-jailor
Where D has taken custody over P such as to deny P of the normal ability for self-protection.

MODERN VIEW OF SPECIAL RELATIONSHIPS

 1. The ability of one party in the relationship to protect herself is compromised [one cannot
self-protect] and the other has better means for doing so;
2. The parties have voluntarily entered into the relationship; and
3. The party on whom the duty of affirmative action is placed has obtained a benefit, often
economic, from the relationship.

GOOD SAMARITAN STATUTESAny person who renders emergency care at the scene of any
emergency or accident in good faith shall be immune from civil liability for acts or omissions in
rendering such care:
1. Emergency care must be rendered at the scene of the emergency;
2. The care rendered must be emergency care; and
3. Any emergency care must be rendered in good faith.

Harper (P) v. Herman (D) (Minn. 1993): D boat owner owes no duty of care to warn P
passenger of the shallowness of water if he has no special relationship (SR). SR would have
existed b/w the parties only if D had custody of P under circumstances in which P was deprived
of normal opportunities to protect himself. D’s knowledge that water was shallow doesn’t
impose duty to warn; P wasn’t in custody, wasn’t particularly vulnerable, didn’t lack ability to
protect himself, did not expect protection from D. Case arguably involved non-negligent risk
creation (majority did not find this persuasive).
Thin line b/w misfeasance and nonfeasance: person announces they're going to dive,
boat driver willingly says nothing-- notice this would be affirmative – tenable claim of
duty here

Circumstances that may establish duty

1- DETERMINING A SPECIAL RELATIONSHIP

Bjerke v. Johnson (MN 2007): D owned a stable & had minor-P live with her. P had sexual
relationship w D’s bf. Ct found a special relationship based on the surrogate parent/custodial role
to which D agreed when she invited P to live w her

2 – NON-NEGLIGENT INJURY
Maldonado v. Southern Pacific (135) P fell out of D's train, D's employees did nothing to help
P.
Rest. 322: if D knows or has reason to know his conduct (whether tortious or innocent) has
caused an injury which is in danger of worsening, D has affirmative duty to exercise reas care to
prevent further harm.

3 – NON-NEGLIGENT CREATION OF RISK → DUTY

 Simonsen v. Thorin (Neb.1931): defendant motorist without fault (non-negligently)
knocked into utility pole into the street; court held that defendant had an affirmative duty
to remove pole.
Menu v. Minor (Colo.App.1987): taxi driver picks up a car whose car crashed, car left
in road; court held taxi driver non-liable. [no special relationship] Distinction is that
defendant in Simonsen created hazard, defendant in menu did not (the suit was against
the taxi driver). No special relationship existed. Knowledge of danger alone did not
create special relationship / duty.

4 - DUTY ARISING FROM A PROMISE

Morgan v. County of Yuba (137) (sheriff promised to warn lady about release of stalker,
but didn’t, and then stalker killed her.), D could be liable if P could prove she relied on
the promise and would have acted differently had the promise never been made.

5 –“COMMON UNDERTAKINGS”
Farwell v. Keaton (Mich. 1976): D drove P's son around after attack, left @ house, where he
son died (death preventable). Held: D had a duty of care – duty to protect someone in “common
undertaking,” and was negligent by failing to follow through on his responsibilities to care for
him, leaving him unconscious in the back of a car. Special Relationship: companions engaged in
a “common undertaking.” Dissent: court is creating liability for nonfeasance. Question of
whether duty owed is matter of law to be determined by judge.
Existence of duty is ordinarily a question of law, however, factual circumstances give rise to a
duty & the existence of those facts must be determined by a jury

Two Theories of Liability in Farwell:

● misfeasance: because D voluntarily undertook rescue and then acted negligently;
● nonfeasance: through affirmative duty bc of “common undertaking” as social
companions.
Ronald M. v. White, (Cal.App.1980); suit brought against members of the group who
had not been drinking or taking drugs; alleged negligence against those in the car who
were sober b/c they had a duty to restrain the intoxicated driver. SJ granted for D's →
NO DUTY.
White v. Sabatino, 415 F. Supp.2d 1163 (D. Haw. 2006) the court said that a person who
agrees to act as a designated driver does owe a duty, but the duty arises only if the
performance begins. Thus, a broken promise to serve as a designated driver cannot be the
basis for a duty. Cf. Yuba, supra.
Mixon v Dobbs Houses Inc. (Ga.App.1979)(p141)- here, mgr. Says that he will
employee about wife going into labor, but doesn't-- held liable for not fulfilling promise
(not doing what he said he was going to do)
6 - ASSUMPTION OF DUTY BY RENDERING ASSISTANCE– Rest 323/324.
Farwell also holds that where D has voluntarily begun to assist P, he assumes duty not to leave
him in a worse condition than he found him in (by leaving P unattended and unconscious
overnight in a car).
Restatement 323: D may stop rendering assistance at any time, so long as doing so will
not likely worsen P’s condition.
Voluntary Assumption of Rescue – Two Views:
1 - That a continuing obligation of due care arises once a voluntary undertaking occurs
2 - That a duty arises only if the rescuer's change of heart has worsened the victim's
position

Duty to Third-Parties

Restatement Section 311 – Negligent Misrepresentation Leading to Physical Harm

1- One who negligently gives false information to another is subject to liability for physical harm
cause by action taken by the other in reasonable reliance upon such information, where such
harm results
(a) To the other, or
(b) To such 3d persons as the actor should reasonably expect to be put in peril by action
taken.
2- Such negligence may consist of failure to exercise reasonable care

Randi W. v. Muroc Joint USD (California 1997): Negligent misrepresentation; prior school
employers write glowing letters of recommendation for teacher who had a history of serious
alleged sexual misconduct in prior schools. Negligent Misrepresentation leading to Phyiscal
harm applies to third parties if those third parties could have been foreseeably harmed by the
misrepresentation. (TENSION: liability for defamation for full disclosure – incentivizes
reporting nothing in letters)
Garcia v. Superior Court (Cal.1990) Although the parole officer had no duty to volunteer
information re: parolee, he had duty not to affirmatively speak falsely (parole officer tells woman
that parolee is “not going to come looking for you” → parolee murders her.
Post-Randi W. What Factors to consider in deciding whether to impose a duty?
1. Foreseeability of harm to plaintiff;
2. Degree of certainty that the plaintiff would suffer injury.
3. The closeness of the connection between the D's conduct and the injury suffered.
4. The moral blame attached to the defendant's conduct.
5. The policy of preventing future harm.
6. The extent of the burden to the defendant and the consequences to the community of
imposing a duty exercising care with liability breach.
7. The availability, cost, and prevalence of insurance for the risk involved.
Duty of Psychotherapists. Physicians to Third-Parties

Duty to Warn: Cannot be under a duty to warn when the third party’s existence or identity is not
known at the time of the negligence. Not possible to know the identity of every potential victim.
This imposes an impossibly broad duty
Duty to Control: requires some relationship btw D & 3rd party; Must have knowledge of the
need to control and must be in the position to exercise control.

Tarasoff v. Regents of UC (Supreme Court of California, 1976):

● The special relationship between therapist and Poddar (doctor-patient) is sufficient to
impose a duty of affirmative care upon the therapist w/r/to the victim.
● Where a therapist believes a patient poses a serious danger of violence to others, he bears
a duty to exercise reasonable care to protect the foreseeable victim.
● Special relationship bw therapist and Poddar sufficient to impose duty of affirmative care.
(1)Case based on pure nonfeasance and there’s no relationship between D and victim,
the court establishes this duty on policy grounds. Doctor is in the best position to know
about, through his special relationship, and prevent the harm.
(2) Tarasoff contrasts with Strauss – here, public policy expands duty, in Strauss in
contracts one.

Historical Context for Tarasoff (CA Court Decisions)

Greenman v. Yuba Power (1963): establishing foundation for shift from negligence to
strict liability in defective product cases;
Tunkl v. Regents of CA (1963): limiting circumstances where exculpatory clauses could
be relied on to impose waivers of liability for negligent conduct;
Dillon v. Legg (1968): lowering the bar for recovery for negligently inflicted emotional
distress.

Arguments for Not Imposing a Duty to Warn on the Therapist

● Harm to therapist-patient relationship and value of confidentiality
● Inability of therapists to accurately predict violence in others
● Concern that therapists may avoid treating (potentially violent) patients most in need of
care
● Line-drawing (we have to limit duty somewhere; why not here?)

Tarasoff: Effects on mental health profession

● 1980 study found most therapists knew of the case and believed it required them to warn
a potential victim of possible harm (not that it required only reasonable care).
● Therapists review confidentiality issues and mandated breaches at outset of treatment;
● Instances of warnings to police remain significant.
 ● Cal. Civil Code Sec. 42.92 : Therapists immune from liability for failure to warn “except
when the patient has communicated to the psychotherapist a serious threat of physical
violence against a reasonably identifiable victim or victims.”

Post-Tarasoff Developments
● Majority of jxns limit therapist's duty to protect potential victims to situations where
patient has made serious threat to an identifiable individuals
● In approx. half of states, therapist's duty to warn of potential danger is mandatory; in
others, duty merely permissive (DC, AL, CT, WI, OR, RI); A few jxns impose no duty at
all (TX, VA, NC)
● Jaffee v. Redmond, 518 U.S. 1 (1996): federal psychotherapist-patient privilege
protecting a patient's confidential communication with a psychotherapist in the course of
treatment.
● Less to do with the professional's training, more w fact that they're last contact b/w
patient and victim
Duty to warn of possible medical dangers – duty arises out of spec relationship b/w dr and
patient.
Reisner v. Regents of UC (Cal.App.1995): 12-y/o receives blood transfusion. Dr does
not tell patient about HIV. Girl, has sex with P. Two years after sex, doc tells girl abt
HIV, and she dies. Holding. Per Tarasoff, ct holds that dr owed duty to P despite lack of
physician-patient relationship. Causal aspect – if girl knew she had HIV, would have
warned P.
Tresumer v. Burke (Cal App.1978): P injured from IUD; never consulted with doctor
after insertion of IUD; medical information about dangers became available year after
insertion. P was unaware of risk and suffered injury because of delay. Court held that
there was a cause of action after D became aware of new dangers.
Thompson v. County of Alameda (Cal. 1980): D released violent juvenile offender to
mom's custody. County knew that juvenile had threatened to kill unidentified child in
neighborhood. W/in 24-hrs of release, juvenile offender killed child in neighborhood
Issue / Holding / Reasoning: Trial court dismissed, Sup.Ct. Aff'd. Reason: no identified
potential victim. Warnings to general public ineffective- public usually tries to avoid
general violence. Warning to mother would do no good – she wouldn't be effective and
might stigmatize herself and the community
Hedlund v. Superior Court (Cal.1983): Young child harmed during violent assault on
mother stated a claim, based on threats of violence against mother that had been
communicated by pyschs; injuries to child were foreseeable in assault upon mom.
Pate v. Threlkel (Fla.1995)Facts: D, surgeon, operated on patient. D should have known
that adult children would contract carcinoma. Carcinoma = genetically transferable.
Issue / Holding: Ct imposed duty to D's patient's child (3d party). Cancer would have
been discovered sooner/treatable if mother had been warned abt genetic situation. Duty
 imposed if D knows of 3d party.
Hawkins v. Pizarro (Fla.App.1998): D physician incorrect told patient she was hep C
negative. Patient later met, married, man who tested positive for hepC. Held – no duty to
3d party in this situation. 3d party's existence or identity must be known at the time of
negligence.
Palka v. Servicemaster Management Service Corp (NY 1994)

Role of Statutes in Creating Duty

Uhr v. East Greenbush Central School District (NY 1999) -

Formula for Right of Action Question (a.k.a. Sheehy factors):
1. Whether P is member of class for whose particular benefit statute was created. [Yes in
Uhr]
2. Whether the recognition of a private right of action would promote the legislative
purpose.
● What was legislature seeking to accomplish w/statute?
● Would pvt. right of action promote objective of statute?
3. Whether creation of such a right would be consistent with the legislative scheme.
Prong 3: inconsistent with leg scheme; already legislation immunizing schools from liability--
statute protects from misfeasance-- accordingly, shouldn't be extended to nonfeasance. If school
feared private right of action, it would seek waivers.
Everitt v. General Elec. Co (NH 2009) – Employer had policy that impaired employees couldn’t
drive themselves home. Rule didn’t create duty to 3rd parties
Cuyler v. U.S. (2004) – Babysitter fatally abused P’s child. A month previously, federal naval
hospital violated IL statute by not reporting suspicions that babysitter abused another child. P
sued U.S. claiming it owed duty bc of statute. Ct held there was no common law duty to report &
no pvt right of action in statute
● Distinguish from negligence per se [Martin v. Herz]: In M v. H, statutory violation
determines whether there's breach of duty; here question is whether the statute creates a
duty.

Limitation of Duty to Third-Parties on Public Policy Grounds

Concerns re: crushing / indeterminate liability: for government, municipal, or public utility
Ds.

Moch v. Rensselaer (NY 1928): Cardozo calls neglig failure to provide fire hydrant water
nonfeasance, “at most the denial of a benefit,” but not malfeasance/commission of wrong. D
didn’t contract directly with P (like in Strauss, was not in privity, the city was). Finding
otherwise → unlimited liability for the water company (similar concerns for Belle). Keep in
mind that P had insurance on property.
Strauss v. Belle (NY 1985): (blackout in common area of apartment – landlord, not P, had K
with D, ConEd) Contractual obligations may engender a duty to those not in privity, but not here.
Nevertheless, courts must restrict against parties' crushing exposure to liability. Court says there
is precedent for considering the proliferation of claims. Liability exposure might raise utility
rates - should the court be doing this?
Dissent: since P was a foreseeable victim of D's gross negligence, argues that to bar duty, D
needs to show that liability would be catastrophic (how would D prove this?). Perverse outcome
→ the more people that ConEd harms due to its negligence, the less likely it is that it will be
liable later.

Public Duty Doctrine: Generally, courts will not find duty, will not tell enforcement
agencies how to do their job, and will not dictate how limited government resources
should be allocated, unless there is a special relationship created with a private citizen (no
duty w/out privity). Is
Court Uses MSJ Offensively: 1) Estops relitigation of ConEd's gross negligence; 2) uses
this initial case in the docket as a way to establish whether there was duty (“smoke
signals”)
Moch v. Strauss (ConEd Case) Differences?
Insurance rationale that underlies these cases and impacts ability to recover:
● Strauss that the old man who is an apartment dweller has renters insurance or any
accident coverage besides hospitalization. Renters insurance 20% of NYers have it and it
covers property loss and not personal injury. PERSONAL INJURY.
● In MOCH probably had insurance b/c plaintiff was a warehouse owner. PROPERTY
DAMAGE.
● Breach of contract damages are different than tort. Tort question is how much would it
take to make a person whole. Contract will limit recovery to insurance amount.

Social Host Liability

GENERAL NOTE: Consider role of Dram Shop Acts in restricting social host liability.

Reynolds v. Hicks (WA 1998): policy concerns of burden of monitoring on social hosts despite
statute prohibiting service of alcohol to minors. Statute makes it unlawful to supply liquor
person >21, but prior law has held that a violation of the statute creates a pvt cause of act when
minor injured from alcohol consumption.
HELD: Statute ONLY designed to protect minors from their own injuries from intoxication
(third parties not in the protected class). Commercial vendors do have such a duty. Social host
liability thus does not extend to social host provision of alcohol to minors.
 Estate of Templeton v. Daffern (Wash.App.2000): court refused to impose a duty of
due care on social hosts where a minor brought his own alcohol to a party, defendants
observed minor drinking, and kid was killed in an auto accident.
Marcum v. Bowden (S.C. 2007): duty not to knowingly and intentionally serve someone
under 21, and that those who did so would be subject to liability to all who were injured
as a result.
Dram Shop Acts: GA dram shop statute requires seller's knowledge that the person
served alcohol will soon thereafter will be driving a car. Thus in Delta Air Lines v.
Townsend (Ga.2005) – the airline that served the passenger until he was intoxicated;
court held that DAL had no duty because
didn't know passenger would be driving after he got off the plane.
White v. Sabatino (D.Haw. 2006) – A person who agrees to act as a designated driver has
a duty to 3rd parties after performance has begun

Negligent Entrustment

Vince v. Wilson (Vermont 1989): both Aunt (who gave $) and car dealers (who aunt TOLD
about recklessness of nephew) can be found to owe duty to P hit by car of nephew. Dealers had
no duty to inquire, but if they knew the risk, they can be liable. Neg. entrust can apply to loans
and sales.

RESTATEMENT H

COMMON THREAD? [MORE FUNGIBLE D → NO LIABILITY?]

● D entrusted a firearm and ammunition to his child, who fired the gun and killed P.
Liable.
● D entrusted car to an incompetent operator who hurt P. Liable.
● Father sold a car to his alcoholic, unlicensed son. Father not liable.
● Auto dealer returned a car to obviously intoxicated owner after repair. Dealer not liable.
● Father co-signed financial note so adult daughter could get financing for car, she makes
all payments, injures someone while drinking & driving. Father not liable.

WAYS OF RECONCILING NEGLIGENT ENTRUSTMENT CASE LAW

● Refusal to impose liability where there is lack of ownership/control over the
instrumentality of harm by D entrustor? Doesn’t explain auto dealer / Vince
● Refusal to impose liability where D could not have foreseen the injury because the D
lacked knowledge about or a sufficiently close relationship with the injurer? Doesn’t
explain father who sold car to son or auto dealer.
● Do courts refuse to impose liability if the D is fungible? Maybe [kids can't get a gun
from anyone (parent less fungible); adult woman can get loan from someone other
 than dad).

HANDGUNS AND NEGLIGENT ENTRUSTMENT:

● Some courts permit recovery by families of children injured by negligently-stored guns
(typically when another minor finds weapon and shoots). Jacobs v. Tyson; Reida v. Lund
● Some courts have required recklessness / gross negligence before imposing liability.
● Guns kept in plain reach of young children; guns provided to children to defend
themselves.
● Courts have held gun retailers liable, but generally on negligence per se theory where
sales in violation of state or federal law (i.e., sales to minors, sales without b/g checks,
etc.).

Jacobs v. Tyson; Reida v. Lund Traditional neg entrustment scenarios where kid finds
gun/shoots
Peterson v Halsted (Colo.1992): Action against father who co-signed for an auto loan
for daughter – daughter made all payments – father knew of daughter's drinking issue –
drunk driving accident 3 years after the co-signing ; HELD: father had no duty of care to
3d party injured because of variables involved in co-signing, parents did not have duty to
prevent their daughter from purchasing a car.
Lydia v. Horton (S.C. 2003): D lends P driver a car while driver was intoxicated, ct held
that driver could not hold that entruster of car had a duty – but there was also a statute in
SC about comparative fault and driver was more at fault than entruster.
Osborn v. Herz (Cal.App.1988):– Ct holds that car rental company has no duty to
investigate driving record of sober driver who later had accident while drunk.
West v East Tennessee Pioneer Oil Co (Tenn.2005): Obviously intoxicated person
needs help purchasing gas – Court held that D (gas seller) owed a duty based on conduct
in assisting the driver in his purchase of gasoline and thereby creating a risk of harm

KEY IN IGNITION CASES (DUTY TO 3d PARTIES?):

Palma v. U.S. Industrial Fasteners (Cal.1984): Held: car owners have duty under
“special circumstances”; here, there was duty b/c there were “special circumstances” –
big truck left in area frequented by drunks, truck was parked, length of time to be parked
there, size of vehicle.

ENTRUSTMENT OF GUNS v. ENTRUSTMENT OF AMMUNITION :

● Kitchen v. Kmart (Fla. 1997): Drunk K-mart customer buys gun, shoots gf. D had duty
to 3d party girlfriend.-VERSUS- Buczkowski v. McKay (MI 1992): Drunk K-Mart
customer buys ammunition, shoots 3d party. Held: no duty to 3d party,no neg
entrustment; ammo not inherently dangerous.
“ENABLING TORTS” [No Entrustment of an Implement, But Suggesting Dangerous
Behavior]
● Weirum v RKO General, Inc (Cal. 1975): D radio station conducted a contest where
the first person to reach a traveling radio show host would win a prize-- two minor
drivers followed disc jockey to the valley, on the way, ran a driver off the road, killing the
driver. Judgment for P.
● Rice v Paladin Enterprises, Inc. (CA4 1997): D publisher released book hit man book.
MSJ granted based on First Amendment, CA4 reversed in light of D's stipulation of D's
knowledge and intent that book be used to assist criminals and contract murderers.

Duty of Land Possessors

1 - INVITEES
Duty Owed: Landowners owe a duty to exercise reasonable care, to protect against both known
dangers and those that would be revealed by inspection.
Definition: Invitees upon the land with express or implied consent of possessor to confer
economic benefit; those who are invited as members of the public where the owner's premises
are open to the public.
“Open to the public”: Open to the public branch of invitees covers those who come onto
the property for the purposes for which it is held open, even if these people will not
confer any economic benefit onto the owner.
“Scope of invitation”: If the visitor's use of the premises goes beyond the business
purpose or beyond the part of the premises held open to the public, person changes from
invitee to licensee.
Presho v. JM McDonald Co., (Neb.1967): There, the court held that a customer
of a retail store was not an invitee when she entered a back room with the
permission of the store manager to retrieve an empty box-- court held that she was
a licensee because the P was on a personal errand, not because she was doing
something connected to D.

2 - LICENSEES
Definition: On land with express or implied consent, but without a business connection to the
landowner (generally no commercial gain).
Duty Owed: Owners have duty to make land safe from dangers they know of. No duty to
inspect for unknown dangers.
Carter v. Kinney (Missouri 1995): Court holds that social guest was invitee (despite
evidence showing that D had sign-up sheet, D did not solicit contributions or issue
general invite to the general public to attend – only chuch members), holds that P was
licensee, no duty to check for unknown dangers, in this case ice frozen that caused P to
slip and break leg.
 Stitt v. Holland Abundant Life Fellowship (MI 2000): P, non-church member, went w/
friend to attend bible study @ D church; P tripped over concrete tire stop in parking lot,
claiming that lighting was inadequate. Issue / Holding: Court treated P as a licensee, not
a “public invitee” No higher duty, because the church did not allow P onto the premises
for commercial gain. “
Rest. of Torts §330, comment h (3) – Reason for social guests classified as licensees →
common understanding that the guest is expect to take the premises as the possessor himself uses
them & doesn’t expect & isn’t entitled to expect that they will be prepared for his reception, or
that precautions will be taken for his safety, in any manner in which tpossessor doesn’t prepare or
take precautions for his own safety
3 - TRESPASSERS
Definition: person on landowner's property w/out express or implied consent – duty to avoid
infliction of willful/wanton harm (with the exception of the child trespasser / attractive nuisance
doctrine, non-obvious and highly dangerous, usually “unnatural”)
Duty Owed (Generally):Landowner owes only a duty to refrain from wantonly and willfully
injuring.
Bennett v. Napolitano (R.I. 2000): P walks his dog in park @ 2 AM, while park is
closed (trespasser) → tree limb falls on him HELD: Only duty of care to trespassers is no
willful or wanton harm → no duty because there's no evidence that the branch's weakness
was known and disregarded (PROBLEM: what if the man walked his dog while the park
was open?)

4 - ABOLITION OF COMMON-LAW DISTINCTION BETWEEN LICENSEE AND

INVITEE
Arguments for Abolition:
● An entrant’s status shouldn’t determine duty landowner owes.
● Harsh common law rules have led to complex & unpredictable judicial “exceptions.”
Heins v. Webster County (NE 1996): P breaks leg while visiting daughter who works
at hospital; D says it owed no duty, because P was there for social visit, not as invitee.
HELD: Court abolishes invitee/licensee distinction, requires landowner to exercise
reasonable care → reas care determined by jury. Common law distinction shouldn't shield
those who would otherwise be held to duty.
PREDECESSOR - Rowland v. Christian (Cal.1968): abolished traditional duty
classification for licensees, invitees, and trespassers and replaces w/ ordinary neg
principles.

1. Jusitifcations and Criticisms of the Tripartite system

i. Justifications: 1) Predictability, 2) Lessens burden on landowners (“kings of their
castle”)l Public interest – encourage people to own property (as opposed to intense
landowner liability)
 ii. Criticisms: Life and or injury is not of lesser or greater value depending on these shifting
categories (deterrence); Not predictable or easy to apply, immensely complicated to
determine a status, not necessary in urban environment

Landlord/Tenant

Landlord/Tenant:
Sargent v. Ross (NH 1973) – landlord is liable in tort only if injury attributable to (1) a hidden
danger in the premises of which the landlord but not tenant was aware; (2) premises leased for
public use; (3) premises retained under the landlord’s control - ex: stairways; (4) premises
negligently repaired by the landlord
Putnam v. Stout (NY 1976) – Ct imposed a duty where a promise was made – must consider: (1)
the lessor agreed, for a consideration, to keep premises in repair; (2) the likelihood that
landlord’s promise induced tenant to forgo repair efforts which he otherwise might have made;
(3) lessor retains a reversionary interest in the land; (4) various social policies factors: tenant’s
financial inability to make repairs; incentive to make repairs is less bc possession is for a limited
term
Kline v. 1500 Mass Ave Apartments Corp. (1970) – Ct imposed duty of care on landlord of apt
building to tenant who has been assaulted in common hallway of building. Duty is to take
measures of protection that are within his power that can reasonably be expected to mitigate the
risk of intruders assaulting tenants

DUTY OF LANDOWNERS TO PROTECT AGAINST HARM BY THIRD PARTIES

Business Owners and Crime – RESTATEMENT 315(b): imposes duty to protect patrons
(invitees) from foreseeable criminal acts of others.
Four “Reasonable Foreseeability” Tests for Determining Landowner Duty:
(1) Specific Harm Rule – landowner does not owe duty unless he is aware of specific,
imminent harm (Considered too restrictive, severely limits duty). [Link to Tarasoff?]
(2) Prior Similar Incidents Rule – foreseeability established by evidence of crimes on
or near premises. Idea: past history of crim conduct gives landowner notice of future
risk. (Considered arbitrary: applied w/ different standards regarding # of previous crimes
& degree of similarity req'd to give rise to duty – is a purse-snatching analogous to armed
robbery? etc). [Randi W? Much of tort law is based on the “one freebie” model]
Sharon P. v. Arman (Cal.1999) [“FREEBIE” CASE]: P attacked in parking
garage, no assaults in the lot in previous decade, thus no duty. Although
concurring, Judge wrote that “ landlord is not, as the prior similar incidents rule
would have it, entitled to one free assault before” liability is imposed.
(3) Totality of Circumstances Rule - Takes other considerations such as the nature,
 condition, and location of the land-- also, level of crime in surrounding area is precursor
to more violent crime. (Problems: too broad, unqualified duty to protect customers in
areas w/ crim activity) [But aren't these sole questions of fact? Why are
determinations only left to the court?]
(4) Balancing Test – balance foreseeability and gravity of harm with burden of
protection [a la Learned Hand BUT that was a way to establish breach, NOT DUTY].
● The approach gives all power to judge, collapses duty / standard of care. Broad
policy determinations by courts (forcing pvt businesses to perform policing);
misapplication of evidence as indicators of “foreseeability” of crime (i.e. the mere
fact that security guards were hired could suggest “foreseeable” crime)
a. Adopted in Posecai v. Wal-Mart (LA 1999): There was high crime in the
neighborhood, but not on the premises, so not foreseeable. “High” burden (Note:
Gilles, Wal-Mart suffers burden?) of hiring security guards compared to low
risk of an actual attack. Additional policy concerns for vigilantism.

Problems with the Balancing Test:

1 - Blurs the distinction b/w duty and breach: B<PL is framework for determining breach, not
duty.
2 - Broad public policy determination by courts: Concern that landowners will suffer too
heavy a burden, esp. since violent crime not their “fault”
3 – Incoherence of test: What does hiring security guards have to do with foreseeable anything?
Is Tort Liability Bad for Residents?
● Businesses operating on a small profit margin might not be able to meet the duty to
provide security in a high-crime area.
● If businesses recoup costs of tory liability / provision of additional security by raising
price of goods sold, how will (often poor) residents meet their basic needs?
● Does regime single out poor as only ones forced to pay for own police protection?

Problems of Collapsing Duty and Breach

A.W. v. Lancaster County School District 0001 (NE 2010): Kid molested by intruder into
school. P sues, D moves for summary judgment, b/c a matter of law, the sexual assault was not
foreseeable, and thus there was no duty. Court reverses. Concern with Collapsing Duty and
Breach of Duty; Questions for the Judge (is there a duty?) vs. Questions for the Jury (was there a
breach?). Concern that if there's a breach, there may be a problematic, automatic
presumption of duty.

Restatement (Third) Section 7(b): Creates a default duty of reasonable care whenever a
D's conduct causes physical harm, providing exception only “[i]n exceptional cases, when
an articulated countervailing principle or policy warrants denying or limiting liability in a
particular class of cases.”
 Restatement (Third) Section 7, cmt f: “Judicial reliance on foreseeability under
specific facts occurs frequently … [T]endency even more pronounced in cases in which
the alleged duty involves protecting P from 3d parties, especially criminal acts of 3d
parties. Sometimes, courts develop specific rules or balancing tests about the qty, quality,
and similarity of prior episodes required to satisfy foreseeability … Invoking no duty in
these situations is more comfortable for courts because duty remains a question of law for
the court. Yet determinations of no breach as a matt of law more accurately reflect that
the court is pretermitting jury consideration of an element of the case traditionally left to
jury.”

THE DUTY REQUIREMENT (NON-PHYSICAL HARM)

CHAPTER 4 WRAP UP
● Scenarios raise PP concerns re indeterminate / disproportionate liability, necessitating
line-drawing
● Pure ED, physical impact rule, zone of danger, Portee btystander emotional distress test,
objective manifestations of distress
● Negligent misrepresentation: privity / near-privity rule, or reasonable foreseeability as to
a limited number of people for a limited purpose.
● Creation of dangerous condition: economic loss rule

Negligent Infliction of Emotional Harm

Test for deciding negligently-inflicted, pure emotional distress claims:

● Physical impact rule
● “Fright from a reasonable fear of immediate personal injury” (Falzone);
● Zone-of-danger test (Buckley)
● Exceptions to zone-of-danger where facts assure genuine and serious emotional injury
(Gammon, ordinarily sensitive person test);
● Bystander test (Portee).

Efforts to allow some emotional distress claims have fallen back on reasonableness
inquiries:
● Falzone: rejecting the physical impact rule and replacing it with a “reasonable fear”
standard (reasonable fear of physical danger)
● Gammon: Rejecting the physical impact rule, and replacing it with an inquiry into the
emotional impact of D's behavior on an ordinarily sensitive person
● Portee:Dismantling of zone of danger analysis for a multi-pronged reasonableness
 inquiry.
BUT see Johnson: returning to a direct duty requirement

Fear of fraud, floodgates, and proof means courts search for guarantees and genuineness:
1 – Physical impact or injury
2 – Emotional response is so universal that trauma itself is a sufficient guarantee of genuineness
(Gammon)
3 – Objective symptoms that can be observed or tested
4 – P must be emotionally normal and response must be reasonable
5 – Fright (with physical manifestations)
6 – Zone of danger
7 – Bystander emotional damages

A) OLD / TRADITIONAL “Physical Impact Rule”: physical impact upon P is necessary to

sustain negligence action. Emotional harm only recoverable if directly caused by physical harm.
Recovery barred for pure emotional harm.
● (PROBLEM: Speeding car almost hits your child: not physical impact. Hit someone at 2
miles an hour: ED can proceed under physical impact rule. Porter v. Delaware
Railroad (NJ 1906): allowed ED recovery for P who had seen bridge collapse, and dust
hit her eyes).

B) ZONE OF DANGER:
● P can recover for negligently-inflicted ED if within “zone” where physical injury
threatened.
● P must sustain “phys impact” or be placed in immed risk of phys harm as result of D's
negl [traditional physical impact rule?]
● Reas fear of imminent physical danger where fright is adequately demonstrated to have
resulted in substantial bodily injury or sickness – ED = physical, clinically-diagnosable
manifestations.
● NO RECOVERY where fright does not cause injury, it will be considered too lacking in
serious / speculative to warrant the imposition of liability.
● Recovery under Z-o-D doctrine limited to emotional harm that creates risk of physical
injury [line-drawing = arbitrary?]
Falzone v. Busch (NJ 1965). P nearly hit by a car (husband hit) and suffered
sleeplessness and tremors, etc. The court discarded the “physical impact” rule and
adopted the zone of danger rule. The court did not adopt a general foreseeability test.
Mere fright or paranoia will not sustain recovery. Physical, diagnosable manifestations
must be present and P must have had reasonable fear of imminent physical harm.
Policy Concerns Against Stand-Alone ED Claim in Falzone:
● Not “probable/natural” for “normal people” to suffer phys symptoms of fright,
 such that D has no notice of the claim
◦ Falzone ct finds this issue shouldn't be decided as a matt-of-law instead
properly determinable by medical evidence
◦ P's undue delay in bringing claim can be used in weighing veracity (how
would you disprove allegations that your negligent driving from a year
ago caused you emotional harm?)
● Case of first impression - “common law would have atrophied hundreds of
years ago if it had continued to deny relief in cases of first impression”
● Fraud / floodgates: courts are good at dismissing bad cases, unclear why
there'd be flood of lit (even if there is, shouldn't deter courts from granting
relief to good cases)
ED for Airline Passengers (Emergency Landings / Die in Crash):
Quill v. TWA (Minn.App. 1985)– airline passengers were reasonably placed in fear of their
lives and the courts allowed recovery.
Shatkin v. McDonnell Douglas Corp (CA2 1984): insufficient evidence for recovery for
passenger who was on right side of plane and probably didn't see the engine fly off. Cf. Shu-Tao
Lin v. McDD Corp (CA2 1984): judgment for deceased P who would have seen the engine fly
off.
CA bars ED claims for dead P's

C) DISEASE EXPOSURE (FAILS NO ZONE-OF-DANGER TEST) (Varies Based on

JXN)
Metro-North v. Buckley (SCOTUS 1997) [p268]: Held: direct contact with asbestos dust did
not constitute a threat of imminent physical harm, thus NOT in zone of danger. NO recovery for
“fear of cancer” unless he actually got cancer. Pub Policy Concerns for Z-of-D Rule: 1)
unlimited liability for gov, 2) frivolous cases, floodgates/clogging courts, no $$ left for truly sick
P's. Court cites Gotshall in which RR employee’s c-worker dies in front of him from heat
stroke. Gotshall P ordered to continue working in this heat. Gotshall becomes mentally ill.
Gotshall allowed recovery for P in the zone of danger (hot work area).
Norfolk & Western Railway v. Ayers (SCOTUS 2003) [p274]: Workers suffering from
asbestosis, non-malignant respiratory disease, asserted FELA claims for emotional
distress at the prosepct that they might contract cancer in the future. Split court allowed
for recovery if P's could prove emotional distress = “genuine and serious.” (no
physical manifstation req, but concern for fraud as in Buckley).
Where exposure makes P “more likely than not” to contract a disease, some courts
allow recovery, e.g. Potter v. Firestone (Cal. 1993): In absence of present physical
injury, recovery permitted when 1) as a result of D's negligence, P is exposed to a toxic
substance that causes cancer; 2) P's fear stems from a knowledge corroborated by reliable
medical opinion that more likely than not P will get cancer, 3) P has “serious” fear.
 HIV needles – Most courts require P to be in zone of danger, i.e. the needle was actually
infected. BUT Williamson v. Waldman (NJ 1997)allowed recovery to compensate for
fear a reasonable person with ordinary knowledge about HIV would suffer where needle
was not infected.
D) NO ZONE OF DANGER / BYSTANDER CLAIMS (PORTEE)
In General: Harm to a third person (i.e. parents watching their child get run over) –
easier to collect [traditionally, courts deny bystander recovery – fraud & floodgates, how
do we figure out who actually suffered emotional distress?]
Second Restatement § 924(a): often permits recovery for distress suffered by a close
relative who witnesses the physical injury of a negligence victim

Portee v. Jaffee (NJ '80): Mom witnesses son get mangled in elevator. RULE from Dillon v.
Legg (Cal.1968): 3 factors to determine if ED = compensable b/c “foreseeable”: 1) Proximity
– P was near scene where another injured; 2) Visibility – P knew of / witnessed injury; 3)
Relationship – P closely related to injured person [Z-of-D wouldn't allow recovery]; 4) Portee
ADDS – severe physical injury /death.

Post-Portee: Movement to rule-based treatment in Thing, Entergy, requiring strict application of

visibility and other factors. Viewing the consequences alone not enough.
o Rigid: Scherr, Thing, Entergy Elden – Where cases fail an element.
o Loose: Ochoa, Marzlof, Dunfy – Cases succeed despite failing an element.

E) “FORESEEABLE TO ORDINARILY SENSITIVE PERSON” E.D. CLAIM: in “corpse”

and “telegram” cases, the foreseeability of emotional harm is so obvious that accompanying
physical manifestations or presence in the zone of danger is not required. This is a
foreseeability-based rule.
Gammon v. Osteopathic (ME 1987) – P received dead dad’s leg. D is bound to foresee
psychic harm only when such harm reasonably could be expected to befall ordinarily
sensitive person.

F) THE PROBLEMS OF DIRECT VS. INDIRECT VICTIM CHARACTERIZATION

MAIN POINT: Is distinction b/w direct and indirect victim unnecessary/lead to perverse
outcomes?
Johnson v. Jamaica Hospital (NY 1984) (GILLES DISAGREES): Held- parents cannot
recover for as indirect victims. Bosvun limits recovery to plaintiffs who were in the zone of
danger. Therefore, P's have not stated a cognizable cause of action. Policy rationale: to allow
recovery by parents would allow open-ended liability for indirect emotional injury. Direct versus
indirect cases of emotional distress - indirect harm, as the parents were not in the zone of
danger, nor did they observe the abduction of their child.
 Kalina (NY 1963): Ps, Jews, gave express instructions to hospital that newborn son not
to be circumcised. Hospital circumcises. Ps sue for ED caused by assault / battery of
son. Court of Appeals no direct duty to parents. [Johnson court uses this precedent]
Johnson: Hospital notifies a relative that relative is dead – there, duty to transmit
truthfully info concerning a relative's death or funeral. [EXCEPTION]
Lando: mishandling or failure to deliver dead body with consequent access to family
[PROBLEM / PERVERSITY-- duty to deliver a dead body, no duty to deliver a baby].

Larsen v. Banner Health S (Wyo. 2003): D hospital switched babies (diff races),
daughter / mom separated 43 years, mom suspected of adultery. Held: Recovery
permitted “in limited circumstances where K relationship exists for services that carry w/
them deeply emotional responses in event of breach.” Contract breach by D in Larsen;
Court in Johnson could have found that D did not breach K w/mom b/c of 3d party crime.
Huggins v. Longs Drug Stores (Cal.1993): P parents sue for ED damages on account of
giving child wrong dosage because of mis-labeled medicines. No direct harm, NO
RECOVERY. Dissent – one dissenter thought Ps were “direct victims,” since they were
necessary parties to administration of meds to baby.

LOSS OF / NEGLIGENT INTERFERENCE WITH CONSORTIUM: recovery by relatives

of injured for loss of companionship; LOC is Derivative of a Neg Claim: if the negligence
claim fails → LOC claim fails (Problems: How do courts draw line for eligible relatives?
LGBT individuals barred from legal marriage? People in long-term relationships?)

Pure Economic Harm

GENERALLY: Economic harm accompanied by physical harm has always been recoverable at
common law. The more difficult question is freestanding economic harm. Why sue in tort
versus in K? P might not be in privity with with the defendant (3d party configuration as in
Nycal)

Pure Economic Harm: Two Scenarios

1 – 3d-party Negligent Misrepresentation. D is negligent in providing some service
(auditing, legal, architectural) to 3d party and as a consequence of this negligence, the P
suffers economic loss. (Nycal)
2 – Creation of Dangerous Condition: D creates a dangerous condition / causes phys
harm to 3d party. As consequence, P suffers econ harm – even though there no
relationship between P and D.

NEGLIGENT MISREPRESENTATION [NYCAL (MA 1998)]

Four approaches to negligent misrepresentation:
1 – Foreseeability Test (incl NJ) [Rejected b/c of floodgates / crushing liability]: an
accountant may be held liable to any person whom the accountant could reasonably have
foreseen would obtain/rely on accountant's opinion [court rejects this b/c of possible massive
liability]
Client (and not D): retains effective primary control of financial reporting process.
Auditor prepares report from info supplied by client. Client disseminates reports.
Other fraud: people who make bad investments could blame reports they did not use

2 - Near-privity Test (NY Approach) [Too Restrictive in Nycal]- accountant's liability

exposure to those with whom the accountant is in privity (K) or relationship “sufficiently
approaching privity.” Liability if accountant 1) knew financial report would be used for a
particular purpose, 2) in the furtherance of conduct on which known party was known to rely,
and 3) there was some conduct on the part of accountant creating a link that party [In Nycal,
conduct by D to create link]

3- Actual Privity (small group of states)

4 - Restatement 552– [balance b/w 1 & 2] One who 1) in course of biz, profession, or
employment, or in any other transaction in which he has a pecuniary interest, 2) supplies false
info for guidance of others in their biz transactions, 3) is subject to liability for pecuniary loss
caused to them by their justifiable reliance upon information, 4) if he fails to exercise reasonable
care or competence in communicating info.” (POTENTIAL IMPLICATION – potential that
defendants will simply “remain blissfully unaware” of the report's proposed distribution and
uses; court rejects this argument – Restatement would not have excused willful ignorance)–
Nycal p302)
Restatement 552(2): “loss suffered (a) by person / one of limited group of persons for
whose benefit & guidance he intends to supply the info or knows that the recipient
intends to supply it; and (b) through reliance upon it in a transaction that he intends the
information to influence or knows that recipient intends to use in substantially similar
transaction.”

Hypo 1: Acct hired to conduct audit for client negotiating with Bank 1 for loan. Acct
agrees to make audit w/ express understanding that audit to be transmitted only to Bank 1.
Client shows audit to Bank 2. Liable to other bank? No, even if audit was negligently
made.

Hypo 2: Acct performs audit for a corp 1 w/ knowledge that the corp intends to show the
audited balance sheet to corp 2 for the purpose of purchasing goods on credit. Based on
report, the corp 2 decides to buy shares corp 1. Liable? No. Transaction was for a credit
purchase.
 Sain v. Cedar Rapids Community School District (IA 2001): High school college
counselor mistakenly told P student that a senior course would meet NCAA req's for
sports eligibility; P lost full tuition scholarship. Court imposed duty under Section 552;
similar to that of other professionals who give advice.

LINE-DRAWING PURE ECONOMIC LOSS CASES – PREVENT “CRUSHING

LIABILITY”

532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc. (N.Y. 2001)
● No duty for freestanding economic loss. Must be accompanied by physical harm.
● Concerns re unlimited liability and fraud. No duty to stores that suffered lost business
only.
● Pure adoption of the econ loss doctrine – no recovery beyond physical injury and
property loss [Likeness to physical impact rule in ED cases because line-drawing is too
difficult]

CONTRAST WITH- Particular Foreseeability – People Express v. ConRail (NJ 1985): D

had a chemical leak and P’s airline terminal had to be evacuated. D’s emergency plans included
plan to evacuate. The NJ court held that a duty of care existed to take reasonable precautions
against harming an identifiable class that is particularly foreseeable. Not a general duty to
passersby, just to foreseeable Ps like airline / biz in terminals. MINORITY APPROACH.

Economic Loss Doctrine

Bars pure economic harm recovery due to:

● Difficulty determining scope of potentially massive liability;
● D still likely faces property damage liability by other injured Ps (deterrence gap, but prob
small)
● Broad Loss Distribution: Pure econ losses distributed among large groups of people
who experience some loss, so no individual is forced to bear the costs alone (incentivizes
self-insurance: losses can be better insured by victims, themselves).
● Cost to prevent massive liability would prevent useful but high-risk activities from
existing.
● D is still liable for property damage and personal injury.
Other Note Cases Re: Economic Harm Doctrine
Koch v. ConEd of New York (NY 1984): Held that City had stated cause of action for damages
caused by looting and vandalism of its propety, but dismissed P's claims for recovery of
emergency wages paid to city personnel such as police & fire & municipal revenues lost as a
consequence of blackout
Union Oil v. Oppen (1974): Ct permitted recovery for commercial fishermen for loss of a
resource (fish) in ordinary course of their business from oil spill off the coast of California
Robins Dry Dock & Repair Co. v. Flint (1927): Charters of a boat were denied recovery for
loss due to D's negligent repairs. Holmes states damage to the ship & subsequent loss arose only
from the K with the owners (question of privity)
Rickards v. Sun Oil Co. (NJ 1945): D's barge negligently destoryed a bridge that was the only
means of access to the retail business of 6 P's. Ct denied recovery because it was concerned
about the disproportionate liability for the negligent act committed.
Phoenix Professional Hocket Club v. Hirmer (AZ 1972): P's regular goalie was injured in car
accident due to D's negligence. P sued for out-of-pocket expenses incurred in hiring substitute
goalie. Court agreed that claim wasn't speculative but dismissed - “Although negligent
wrongdoer should be held responsible for natural / probably consequences of his wrong, to
prortect K interests from negligent interference would place an undue burden on freedom of
action & impose a severe penalty on one guilty of mere negligence.”

Attorney to Client Harm

a. Meeting Filing Deadlines: P may have claim if atty would have filed winning claim on-time
b. Making strategic choices: Courts will not second-guess attorney decision unless it lacked
plausible jusitifcation - expert opinion for atty is needed
c. Low Settlements: advising clients to settle for too little may lead to malpractice liability;
attorneys have absolute ethical obligation to convey settlement offers to clients – failure to do so
= malpractice
● Grayson Wofsey, Rosen, Kwestkin & Kuriansky (CT 1994): Ct upheld an action
where the attorney was alleged to have negligently valued the marital estate so as to
induce his client to settle for too little
d. Criminal cases: P convicted of crime can't sue defense atty for malpratice w/o proving
innocence; regardless of atty negligence, guilty P's conviction / sentence are consequence of own
actions Wiley v. County of San Diego (CA 1998)
e. Emotional distress: very difficult to collect (Pleasant v. Celli (Cal.App.1993) – P could not
collect on emotional distress claim when atty missed statute of limitations on what the jury could
have found to have been a successful med mal case); sometimes permissible when damages for
ED are foreseeable
f. Attorneys and 3d parties:– Jxns split on improperly executed wills; Courts appear willing to
extend duties to non-clients when client has asked attorney to provide information to other side
or prepare documents for deal; some jurisdictions require privity

Wrongful Birth/ Wrongful Life/ Wrongful Pregnancy

A) WRONGFUL BIRTH
● Med mal claim brought by parents of “wanted” child that is born with a defect
 ● Allegation is parents were denied chance to make decision of whether to abort fetus
● Injury: parent's weren't given a right to decide / choose
● Three theories of liability:
1. Failure to inform parents of risk of conceiving child with genetic defects;
2. Failure to perform prenatal diagnostic testing;
3. Failure to report results of diagnositc testing accurately
● Parents seeks damages for costs they will incur over the course of the life of the child,
beyond normal cost of raising a child, as well as ED damages.
● BUT CAUSATION PROBLEM: had the plaintiff discovered the defect, would they
really have elected to perform an abortion (ex-post issue)??

B) WRONGFUL LIFE
Note 11 - The Child's Claims [To Nonexistence]
● Courts unanimously decline to recognize these claims.
● Medical malpractice claim brought by genetically impaired child
● NOT a claim that the doctor's negligence caused defect. Rather, two theories:
1. Failure to recommend tests for determining risk of conceiving child w/ defects
2. Failure to perform prenatal testing to detect medical condition
● Some courts recognize an action where the condition is not life-shortening and the child
is likely to incur extraordinary medical expenses as an adult → damages limited to
economic ones.
● Harbeson v. Parke-Davis, Inc. (Wash.1983); Tuprin v. Sortini (Cal. 1982) (Congenital
deafness).
● CA, WA, NJ among some of the very few jurisdictions that recognize the cause of action
but none have explicitly stated whether a defective life is worse than nonexistence.
● Flowers v. District of Columbia [not in text]: harmful for child to know that his
parents, had they known of his impairments prior to birth, would have aborted him

C) WRONGFUL PREGNANCY
● Traditional med mal claim for negligence in performing sterilization → unwanted
pregnancy
● Claim is that doctor's negligence caused a child to be born
● Distinguished from wrongful birth b/c here, the pregnancy and delivery are wrong, not
the child

Emerson v. Magendantz (RI 1997): Cause of action under RI law when a physician
negligently performs a sterilization procedure and the patient subsequently becomes pregnant
and delivers a child. RI adopts limited recovery rule to measure damages. Types of
compensation are:
1. Limited recovery rule (30 States): grant compensation for medical expenses of
 sterilization procedure, pregnancy costs, add'l sterilization, wages, ED, loss of
consortium, sometimes prenatal delivery [no child-rearing costs]
2. Recovery of cost of child-rearing WITH Benefits Offset
◦ Offset benefits: the “benefits” [emotional / economic] derived by parents of
raising a healthy child
3. Full recovery rule
◦ Full recovery rule allows for all itemized damages under limited recover PLUS
cost of childrearing (NM, WI)
◦ Restatement Section 920 allows full recovery, but offsets damages against
emotional benefits from having a child (MA, CT)

● Constitutional Implications: No cause of action because…

○ Bader v. Johnson (IN):
■ No “right to an abortion” was affected by doctor’s negligence
○ Grubbs v. Barbourville Family Health Ctr (KY):
■ “Loss of abortion opportunity resulting in impaired human life” not a
cognizable legal injury”
○ Willis v. Wu (SC):
■ Deprivation of abortion opportunity not a cognizable claim
○ Wood v. University of Utah Medical Center (UT):
■ Upheld state law prohibiting cause of action “based on claim that, but for
act of another, a person would not have been permitted to have been born
alive, but would have been aborted.”

2nd Rest. §920 – When D’s tortious conduct caused harm to P or his property & in doing so has
conferred a special benefit to the interest of P that was harmed, the value of the benefit conferred
is considered in mitigation of damages, to the extent this is equitable
● Comment B – damages resulting from an invasion of 1 interest aren’t diminished by
showing that another interest has benefited

Public Policy Reasons for NOT allowing recovery of child rearing costs for healthy child:
● Decision to forgo adoption is persuasive evidence that the parents consider the benefit of
retaining the child to outweigh the economic costs of raising the costs
● However, if physician is made aware that parents have reasonable expectation of giving
birth to handicapped child, then the entire cost of raising such a child is within the ambit
of recoverable damages
Public Policy Reasons for ALLOWING recovery of child rearing costs:
● Carving out an exception to the normal duty of a tortfeasor to assume liability for the
damages that he proximately caused would impair the exercise of a constitutionally
protected right
● Parents have a constitutionally protected interest to employ contraceptive techniques to
limit the size of their family
CAUSATION

(1) Was D the cause-in-fact or of the harm to P?

(2) Was D the “legal cause” or “proximate cause” of the harm to P?
1) Injury Beyond Type of Harm to Be Expected [FUNDAMENTAL]: If the P's injury
is truly beyond the type of harm to be expected from the D's conduct, P will go
uncompensated.
2) Where Injury to Plaintiff Foreseeable, Defendant Liable: Applies even when the
defendant is responsible for an injury that is more serious than might have been
anticipated (take P as D finds her);
3) Unforeseeable Consequences of a Negligent Act v. Foreseeable but Take Place in
Unusual Manner: Cases distinguish unforeseeable consequences of a negligent act from
consequences that are foreseeable but take place in an unusual manner.
4) Injury does not have to be likely or probable in order to be “foreseeable” in
proximate cause analysis: “Foreseeability is not to be measured by what is more
probably than not, but includes whatever is likely enough in the setting of modern life
that a reasonably thoughtful person would take account of it in guiding practical
conduct.” (i.e. liability imposed on a person throwing a flower pot out of a third-story
window, even if probability of hitting someone on the head is quite low).

Cause in Fact

● Loss of chance: recovery where D caused reduced/destroyed chance at recovery/better

outcome, even where that loss is <50% (Masuyama) [distinguish from burden of proof]
● Joint and several liability: when two or more Ds are liable to the P for the same harm, P
can recover full damages from the other D [modern changes have blunted unfairness to
deep-pcket D]
● Alternative Liability: P is injured but cannopt prove which of several possible Ds was
more probably than not the actual cause of his injury (Summers v. Tice) [burden shifts to
Ds to disprove case]
● Market Share Liability: D has clearly injured some but not all of Ps, and they cannot
prove which of them the D injured (Hymowitz) [Proportionate liability based on overall
participation in the market] → Note that it was denied in lead paint, and denied in MBTE
– is this unique to DES and Hymowitz?

Basic Doctrine of Causation: D should not have to compensate an injured P unless the
plaintiff’s injury is causally connected to the defendant’s negligence conduct. Alternatively,
practical difficulties in identifying the negligent actor may prevent recovery.

“But-For” Test (sine qua non) usual test for causation. If X would not have occurred
but for Y, then Y is a cause-in-fact of X. If the harm would have occurred anyway w/o
negligence, we assume no cause-in-fact.

Multiple Sufficient Causes (But-For still a prerequisite)

SUBSTANTIAL FACTOR [Stubbs & Zucho: proving but-for causation = near-impossible]

● More inclusive test for multiple sufficient & successive causes where each can
completely cause harm.
● For outcomes in which the “but for” test does not work, the D would be a cause in fact of
the damage if the jury found that its act was a “material or substantial element” in
producing it.
● To show that D's behavior was substantial factor in causing injury, P must generally
show: (1) D's negligent act / omission was a but-for cause of injury; (b) negligence was
causally linked to the harm; (c) D's negligent act / omission was proximate to resulting
injury
● Requires jury to make intuitive judgment about 1) what degree of causation is
“substantial” and 2) whether defendant's negligence reaches that level.
● PROBLEM: Does this lead to confusion b/w causation & correlation?

Stubbs v. City of Rochester (NY 1919): D supplied 2 separate H2O systems. Systems
intermingled, sewage contamination. P contracted typhoid, alleges that it was caused by the
tainted H20, BUT many other potential causes.
● D's Argument: there were a number of other possible causes which D did not
elimitate
● Held: If 2 or more possible causes exist, for only 1 of which a D may be liable, and P
establishes facts showing w/ reasonable certainty that the direct cause of the injury
was the one for which D was liable, P may recover.
3 GENERAL REQUIREMENTS IN TOXIC SUBSTANCES CASES:
1 – Exposure
2 – General causation: is the agent capable of causing disease in the human population?
3 – Specific causation – did the agent cause this P's disease?
Issue in Stubbs → there had been a clear act of negligence, and thus a presumption of
causation

Concerns With Appropriate Liability Under Substantial Factor Regime

Suppose all Ps similarly situated to Stubbs recover even though 50% of these Ps would come
down w/typhoid anyway, but no way to identify which Ps deserve recovery against D.
● All recover: over-compensation/deterrence, Disproportionate liability for D
● Suppose instead that all the Ps fall just short of the “reasonable certainty” threshold. So
none recover, even though a certain number of the affected Ps did suffer harm from
exposure to the contaminated water? If none recover = under-compensation and
under-deterrence

Anderson v. Minneapolis (Minn.1920): If 2 or more causes occur to bring about event, then
cause-in-fact of injury is established by the “substantial factor” test. The jury instructions direct
jury to determine that if they found the fire set by the D’s train to be materially or substantially
responsible for the Plaintiff’s damage, either alone, or in connection with the other fire, then the
D is liable.

Note 7 - Probabilistic Recovery for harm in the future.

D's negligence creates the risk that P will suffer more serious harm in the future, but current
evidence of harm is minor. If P seeks prospective damages for future injury and emotional
distress for fear of future harm), cases below reflect THREE APPROACHES:
Simmons v. Pacor (Pa. 1996): adopts a 2-disease rule
● no recover for enhanced risk; recovery only when anticipated, more serious disease
occurs
● Defendants could become insolvent before the plaintiff can sue after contracting disease
● Policy Arguments Against: (1) too much recovery / limited pool of $; SoL rule; can take
40 years to develop medical problem; will need to keep attorney on reainer to preserve
evidence.
Mauro v. Raymark Ind. (NJ 1989) – allows present recovery; P must show “reasonable
medical probability”exists that disease will develop to get full damages now
● Policy Arguments For:
Dillon v. Evanston Hospitali (IL 2002) (p340): allows recovery for increased risk of future
harm
● Present probabilistic recovery, no apparent threshold
● Policy Arguments Against:

SUBSTANTIAL FACTOR CONTINUED: ZUCHOWICZ

Zuchowicz v. United States (CA2 1998): Woman given double Danocrine dosage, gets PPH,
needs transplant, gets pregnant, worsens PPH, dies. No known studies on the connection.
Burden shifs to D to prove that the negligent overdose (not just the drug) didn’t cause PPH.
1. Expert Witnesses – little known abt connection b/w specific Dano dosage and PPH.
 Experts not permitted under Daubert test, but trial ct allowed it. Judicial discretion in
allowing experts.
● Standard of review for COA reviewing evidentiary issues, “Manifest Abuse of
Discretion”
◦ Daubert factors – “General acceptance” in sci community is not “an absolute
prerequisite for admissibility” - aka inquiry beyond “scientific orthodoxy”
◦ DAUBERT CRITERIA [Interpreting Fed.R.Ev. 702]
1. Whether the theory can be tested according to the scientific method;
2. Whether the theory has been subjected to peer review/publications;
3. The known or potential error rate;
4. Whether the theory is generally accepted in the field
2. Proof – Negligence wasn’t necessarily sufficient, though there was strong evidence it
was the cause. symptoms fit temporally w/ other known cases of drug-induced PPH; drug
likely caused hormonal changes which cause PPH; violation of FDA statute limiting
dosages.
3. Burden shifts to D - “Increased Risk Presumption” to prove the negligent overdose
(not just drug) was not the “but for” cause in fact of P's death. (p349) Invoking Traynor
and Cardozo (Martin v. H): if (a) a negligent act deemed wrongful b/c it increased the
chances that particular type of accident would occur, and (b) a mishap of that type
occurred, there's enough to support finding that neg caused harm.
4. Causal linkage is given great weight here b/c “but for” causation is so difficult to prove
in a case like this. Usually both are required. This is very radical and not the majority
rule. Justified on public policy grounds.

Zuchowicz Causation Analysis [Comparing to / Distinguishing from Res Ipsa]

Already proof of negligence (RIL), this is a question of presumption about causation
1. Was D's negligence a but for cause of P's injury? [N/A with multiple but-for causes]
2. Was D's negligence a “substantial factor” in bringing about P's injury?
● When neg act increases risk of harm, that is enough to provide inference of
causation.
● With inference, D must rebut by showing wrongful conduct was not substantial
factor.
Cf . Wolf v. Kaufmann (App. Div. 1929) [Post hoc, propter hoc]: denying
recovery for death of P's decedent, who fell down a flight of stairs

Williams v. Utica Coll. of Syracuse U (CA2 06) – Unknown intruder sexually assaults P in
dorm; sued college alleging should have better security to keep intruders from entering. Causal
issue whether better security would have prevented attack. Attacker could be resident of dorm or
outsider. Ct rejects Zucho; SJ appropriate due to P's inability to prove causation. 3 factors bear
on whether P can satisfy burden of proof on causation based only on negligent act &
interference: (1) circumstantial evidence; (2) the relative ability of parties to obtain evidence
about what happened; (3) whether the case is one in which there is reason to have diff concerns
about errors favoring Ps as opposed to Ds
Wolf v. Kaufman (AK 1991) – Tenant found injured at the foot of flight of stairs proved only
that the stairs were unreasonably dangerous & that she was found injured at the bottom. P
introduced no further evidence showing that the condition of the stairway contributed to her
injuries. Ct stated a reasonable inference is that the dangerous condition more likely than not
played a substantial part in the mishap. The absence of evidence that P fell, rather than jumped
doesn’t negate the reasonableness of the inference

Multiple Defendants- Dealing With Questions of Causation

ALTERNATIVE LIABILITY THEORY [Note: NARROW]:

● P injured but cannot prove which of several Ds was more prob than not actual cause of
injury.
◦ Burden shifts to Ds to exculpate negligence can be proven

◦ Exculpation: produce evidence of (1) no fault, or (2) less liability than other D

◦ If, with 2 Ds, both are equally probably of causing injury, both held liable
● Limited application – only can be used if all possible Ds are before the ct. If P fails to
join all possible Ds, P will be precluded from recovery under theory [Ybarra evidence
smoke-out?]
● Limited to negligence that is “substantially concurrent in time and of a similar nature.

Summers v. Tice (CA 1948):

● P & 2 D's were hunting when both D's fire in direction of P causing injury.
● Rules: (1) P must not have access to evidence; (2) evidence must be in D's control; (3)
likelihood of Ds to conspite.
● If D deprives plaintiff of proof (a la Ybarra), burden shifts to Ds to rebut
● Apportionment dilemma - multiple Ds can contribute to injury but cannot determine
how much injury was caused by each, one can have caused some while another caused
more or one could have caused all and others none (discomfort w/alt liability increases as
# of Ds increases)
● Narrow holding: only 4 when “but for” analysis fails; usually when 2 Ds do exact same
thing.
● Distinguishing Ybarra Presumption: Not all Ds neg in Ybarra; both Ds in Summers
were.
● Procedural Effect of Summers: Doesn't matter whether acting together unless they can
rebut.
RATIONALES FOR SHIFTING BURDEN TO D IN SUMMERS:
1. P is so close: able to prove 50% for each D (P is so close to meet its burden)
2. Fairness: D's were negligent, 1 clearly responsible, conventional “but-for” immunizes
both
3. P is an innocent victim: negligent Ds should bear the loss
Garcia v. Joseph (Cal.App. 1978): defective saber injures fencer who puts sword back into a
pile and can't figure out which is liable for defective product (all sabers were defective). Ct
refuses to impose liability as in Summers b/c (1) P had good access to evidence, (2) not in D’s
control, (3) do not know that both Ds were neg as we do in Summers, (4) D's in Summers more
likely to protect one another as companions.

Dillon v. Twin State Gas & Electric Co. (NH 1932) – boy lost balance – to avoid falling grabbed
negligently exposed wire & electrocuted. Ct held that if the jury found the boy would have been
killed by fall w/o regard to the wire, any award against D for exposed wire should be drastically
reduced [issue of “but for” causation – couldn't boy have arguably survived had wire been
insulted?]
Loui v. Oakley (HI 1968) – P was hurt in car accident caused by D’s negligence. P had hurt same
area of her body in 3 subsequent accidents before case went to trial. Ct held that if jury couldn’t
allocate the harm/damages among the 4 accidents, must apportion damages equally among 4;
arbitrary system, but better than totally barring D's recovery. Ct noted in future best procedure is
to litigate all 4 accidents together.

Market Share Liability

Hymowitz v. Eli Lilly & Co (NY 1989): Where identifying mfg of drug that injures P is
impossible, NY cts apply market share theory, using nat'l market to determine liability /
damages. Post -Sindell (Cal. 1980)
● PROBLEMS: (1) impossible to ID mfg of DES ingested (; (2) latency barred claims due
to SoL
◦ Legislation: (1) change SoL from exposure to discovery; (2) barred claims allowed
1-yr window
◦ SoL could be an easier issue for the legislature to deal with, instead of the question of
 causation → “punted” to the judiciary to resolve rest of problem [does legislation
guarantee P's recovery?
● Rejection of alternative causation theories:
◦ Alternative Liability: wouldn't allow recovery b/c (a) D not in better position than P
to identify mfg since many years since ingestion; (b) Causation – D might be neg, but
not necessarily against particular Ps suing; (c) Fairness disappears w decreasing
probability that any 1 of Ds caused injury; (d) Large # of potential Ds – Alt liability
premised on small # of Ds
◦ Concerted Action: wouldn't permit recovery b/c parallel activity w/o more is
insufficient to establish agreement element necessary to this type of claim Orser v.
George (Cal.App.1967)
● Exculpation permitted if no production of DES for pregnant women. (Gilles:
Impossible)
● Dissent: (1) Unfair to D; (2) removes civil B-of-P; (3) no causation req; (4) judicial
legislating.
o.a.NEW YORK MTBE CASES (NY 2005) MBTE shown to pollute ground water
eaily. Tracing MTBE is nearly impossible Ct found that product was fungivle,
unable have used market share in “Comingled products theory”: gaseous or liquid
products were present in a comingled state and it causes single indivisible injury.;
WISCONSIN LEAD CASE: used market share liability

JUSTIFICATIONS OF MARKET SHARE LIABILITY

● Culpable Ds; Fungible product: every mfg used same drug recipe; DES was never
patented
● Long latency period [lack of evidence of causation – Ps who ingested can't remember
specific pills
● Imposing liability in proportion to mkt share approximates harm; 20% of mfgs out of biz
or bought
● Near optimal deterrence Ds not underpaying (P's can't otherwise recover), nor
overpaying [P's can't collect 100% of damages])
● Greatest admin ease, poor records of Ds; will even out over litigation to be the most
fair; national market is easier to calculate than smaller regional units, which creates more
litigation
● “Signature Disease”: asbestos (Mesothelioma); DES (clear cell vaginal carcinoma)
100% of the product causes 100% of the disease. Holds D liable for risk they put out into
market.
● D liable for %-age of judgment based on mkt share (proportionate to harm created by
own product)
● Substantial segment of market has to be joined as defendant (Need good sales data)
 ● Courts generally require: (1) Mfgs representing substantial share of market at time
product was used be joined before the court;
● Exculpation: allow mfg to escape liability by proving its specific product could not have
injured P

CRITICISMS OF MARKET SHARE LIABILITY

◦ Smaller pools = greater accuracy, wrong to have some states enforcing nat'l and
some regional
◦ While the Ps recover, they are not necessarily recovering from the D that injured them

NY Approach (Hymowitz)
● Justice Mollen Dissent allowed exculpation – problems behind barring D the option of
exculpation But would allow joint / several liability (BUT how many Ds would be able
to exculpate?).
● Several liability only: Sev liability is where parties liable for only their respective
obligations.
● Exculpation permitted in CA case, which led to flood of D litigation trying to exculpate

Loss of Chance (Medical Malpractice)

Matsuyama v. Birnbaum (MA 2008):

● P may recover if he can show to a reasonable medical probability (>50%) that D's
medical mal caused loss of chance of survival, and the harm that might have been
avoided in fact occurred.
● Recovery based on %-age value of P’s lost chance, traditionally can only recover if
medical error more likely than not caused the death (preponderance of evidence
standard)

LOSS OF CHANCE CLAIMS (Recognized in 24 Jurisdictions)

● Med Mal Claim: Arises in a failure-to-diagnose context (LOC in Farwell? Typically
only med mal)
● Originated w/ Dissatisfaction w/ Prevaling “All or Nothing Rule”: P may recover
damages only by showing D's neg more likely than not caused death; if P meets burden,
recovers 100% damages.
◦ Under Prior All-or-Nothing Rule: if P's chance of survival before med mal was
<50%, logically impossible to show that neg was but-for cause of death, and P would
not recover anything → Provided blanket release for negligence of med care
providers if chance of survival <50%
 ● Permits recovery of damages for destruction or reduction of prospects for achieving a
more favorable medical outcome, even if possibility of recovery was <50% even prior to
the negligent act.
● P must still prove LOC claim through preponderance of evidence.
● Justifications?
◦ Life is precious and loss of even a small chance of survival deserves compensation;

◦ Negligence against patients with poor prognoses shouldn't go unredressed

◦ Unfair to deny recovery where the uncertainty of outcome was created by D

Increased Risk NOT Recognized (Probs w/ Causation Proof – Correlation =/= Causation):
– occurs when D’s neg increases risk of P's later injury, traditionally no recovery without actual
damage unless P can show more likely than not the harm will occur, some jxns allow recovery
based on probability of damage.
● If Matsuyama can beat cancer, does he recover? If not dead, he can't collect. No injury.
● If injury is the reduced chance – not the death – courts are uncomfortable awarding
damages.
● MAJORITY RULE: deny recovery for survivors who invoke a “fair chance” cause of
action.

Matsuyama court's damages calculation (p.361) a.k.a. “Proportional Damage

Approach”
Step 1: “full” wrongful death damage = $600k Calculate total amt wrongful death
damages
Step 2: P had 45% chance of survival before med mal Calculate P's chance of survival
pre-med mal
Step 3: D' negligence reduced chance to 15% Calculate P's chance of survival
post-med mal
Step 4: P's chance reduced 30% (45% - 15%) Pre-chance minus Post-Chance
(“Lost Chance”)
Step 5: P's loss of chance damages are Multiply pre-post difference times
Step 1
$600K x 30% = $180k
Joint & Several Liability

BASIC DOCTRINE: Plaintiff can collect damages from two tortfeasors against just one of the
drivers;
Smoking Out Theory: puts the burden on the defendant of pursuing other potential
tortfeasors involved in a particular dispute.
Ravo v. Rogatnick (NY 1987): It is sometimes the case that tort-feasors who neither act in
concert nor concurrently may nevertheless be considered J&S liable. This may occur in the
ainstance of certain injuries which, because of their nature, are incapable of any reasonable or
practicable division or allocation among multiple tort-feasors. This “aspect of the jury's
determination of culpability merely defines the amount of contribution defendants may claim
form each other, and does not impinge upon Ps right to collect the entire judgment from either
defendant.”

● When 2 or more tortfeasors act concurrently / in concert to produce 1 injury, may

be held J&S liable
● Applies to: (1) substantial factor (multiple sufficient causes); (2) alt liability; (3) vicarious
liability
● J&S Protects P from insolvent Ds – don’t want P to get nothing bc 1 D judgment
proof (cf several)
● Each D liable for entire harm when more than one D is negligent
● Ds free to seek indemnification or contribution from each other
● Situations where it’s not fair to deep-pocketed Ds:
◦ Business partners (BP & Haliburton) o Employer/Employee

SPECIFIC LEGISLATION
● Abolish J&S completely (15 states)
◦ In these jxns, bring 1 lawsuit and jury will have to engage in comparative negligence
and decide which D has to pay what amount; Each D only liable for their neg
(effectively several liability)
● Abolish J&S where D<50% at fault (NJ)
◦ D liable only pays the 40% - can't be held liable for 100% of damages [Gilles: Does
this seem like fairer standard?]
● Retain J&S except for ED damages (5 states, including NY)
◦ CA / FL allow several liability for non-economic damages

◦ Gilles: ED hard to insure, also is usually the biggest awards in judgments

● Abolish J&S where P is partially at fault (5 states, WA)
 ◦ Whole point of J&S is to protect innocent P – drive to protect lessens when P less
innocent
● Abolish J&S except for toxic / environmental torts, vehicle accidents (NY)
◦ [NY rationale – deterrence – deter toxic torts]

SEVERAL LIABILITY
● D liable only for own share of harm – applicable more to comparative negligence regime
● PROBLEM: risk of D's insolvency is put onto P

CONTRIBUTION: Right to be reimbursed by other D's in proportion to their fault. An

equitable sharing of the loss among joint tortfeasors. Comparative contribution became
important aspect of tort system once comp fault regimes gained acceptance.

INDEMNIFICATION: Shifting of the entire loss from one tortfeasor to another, either by prior
agreement of the parties (i.e. an employment K) or by equitable considerations

Proximate Cause/ “Legal Cause” / “Scope of Liability”

LEGAL CAUSE =Legal cause that seeks to limit liability for consequences too remote.

Test for cause in fact (“but for”): would the injury have occurred were it not for the actor's
conduct.
(+ PLUS +)
Proximate cause (“tempers cause in fact”): “an actual cause that is a substantial factor in
resulting harm.”

2 faces of Prima Facie Negligence Claim:

● A) General inquiry into whether: (1) owed a duty; (2) breached the duty by acting
unreasonably; (3) was the factual cause of P's harm.
● B) Specific inquiry into nature of relationship between D's neg & what actually happened
to P.

TESTS FOR PROXIMATE CAUSE:

● Foreseeability / Substantial Factor Test [Quickly Abandoned] – D's neg is a
proximate cause of P's harm if causing that harm was foreseeable result of D's actions
(too limited)
● Direct Consequences -D's neg is proximate cause of even unforeseeable harm, so long as
the harm was a “direct consequence.” (Easy admin of rule; very little line-drawing;
 applicable to eggshell Ps)
● Harm w/in the Risk – If D creates special risks that P wouldn't be subjected to
otherwise, D is liable.

Eggshell Plaintiff Rule

A) EGGSHELL PLAINTIFF RULE:

● Take P as D finds him REGARDLESS OF FORESEEABILITY
● D therefore liable for injuries brought on by P's pre-existing condition,
● Only applies to physical injuries (no direct ED claims)
Benn v. Thomas (IA 1994): The “eggshell plaintiff” rule is allowed to calculate
damages for neg, even if, because of P's pre-existing condition, the extent of the damages
unforeseeable . P died of a heart attack after a car accident (prior diabetes / heart issues).
Tortfeasor may be liable full damages.
RATIONALE: 1) manner of harm foreseeable even though extent of harm not; 2)
deterrence
ISSUES RAISED W / EGGSHELL PLAINTIFF THEORY: (1) What if the D
argued that the guy would have died in no time at all? Reduces damages, but not
causation. (2) Why not require the P (ie hemophiliac) to self-insure? Not all Ps know
they are eggshell P. P is innocent victim.
Restatement (Second) § 461: “The negligent actor is subject to liability for harm
to another although a physical condition of the other … makes the injury greater
than than which the actor as a reasonable man should have foreseen as a probable
result of his conduct.”
Stenhauser v. Hertz Corp. (2d Cir 1970): No bodily injury in a minor auto accident, but P
develops schizophrenia after ; Held: trial court erred in failing to charge jury that P entitled to
recover if schizo was “precipitated” by accident; however, D' had opportunity to “explore
possibility” that schizo would have developed w/o accident (would reduce damages, but would
not bar causation finding)
Bartolome v Jeckovich (N.Y.A.D. 1984): P slightly injured from accident; P's experts testify
that accident exacerbated schizo. Trial judge cut jury award from $500k to $30k, but App.Div.
Reinstated, noting D's argument that accident “precipitated” onset.
Suicide & Proximate Cause: Cts reluctant to impose liability in cases of suicide. Recent shift
→ cts imposing liability for D's who cause injury resulting in P's suicide.
Fuller v. Preis (N.Y. 1974): Accident causes 43-y/o surgeon seizures, also had wife w/polio, and
mom w/cancer. Jury instruction allowed jury to find that the “irresistible impulse” that “ caused
the decedent to take his life also impelled the acquisition of the gun and the writing of the suicide
notes.”
Stafford v. Neurological Medicine (8th Cir. 1987): D liable for suicide after negligently
permitting patient to receive mail indicating incorrectly that she was suffering from brain tumor.
SECONDARY HARM: D may be liable for harm caused by medical treatment brought on as
consequence of original injury caused by D. In general, the law holds Ds liable to full extent
of damage suffered as a result of injury caused by Ds neg. Rescue, treatment (outside of a
hospital), medical treatment are not superseding unless there is gross mistreatment
Pridham v. Cash & Carry Building Center, Inc. (N.H. 1976): P, seriously injured by
D's neg, died when ambulance swerved into tree. D liable for further injuries resulting
from “normal efforts of 3d persons rendering aid … irrespective of whether such acts are
done in proper or in neg manner.” If med services “rendered negligently, rule based on
question of policy makes the negligence of the original tortfeasor proximate cause of
subsequent injuries suffered by victim.”
Miyamoto v. Lum (HI 2004): Irrelevant whether hospital staff undertakes care
negligently
Wagner v. Mittendorf (NY 1922): D neg breaks P's leg; P re-breaks, D liable for
aggravation
ED claims: harm must be such to cause distress to ordinarily sensitive/reasonable person
Stoleson v. United States (CA7 1983): P suffered heart problems after being negligently
exposed to nitroglycerine. Effects temporary but P developed hypochondria after
receiving medical advice, recovery permitted
Harm Within The Risk (3 rd Restatement 30) – Only responsible for harm resulting from the
negligence that increased the risk of harm, no liability from harm caused by an entirely different
hazard Ambulance type cases

DIRECT CONSEQUENCES (TRADITIONAL POLEMIS APPROACH ) –

● D liable for all direct consequences regardless of foreseeability. (as long as it is not too
remote)
● Traditional rule and now courts generally use foreseeability test (policy reason: fairness)
● Prioritized responsibility over foreseeability
Direct Consequence Test of In Re Polemis (1921):
● D’s negligence is proximate cause of even unforeseeable harm, so long as harm
was “direct consequence.” D's employees negligent in causing plank to fall;
benzene on ship explodes /burns ship down.
PROBLEMS W/ DIRECT CONSEQUENCES TEST:
● “Directness” suggests lack of later cause after D's negligence, suggests liability cut off
where subsequent conduct contributes to accident
◦ Ex: 1 driver negligent, 2d driver negligently fails to avoid accident, 1st driver still
liable.
● Does not help judges/Juries draw line b/w consequences the D should / should not be
responsible for.

FORESEEABILITY TEST (Closer to Modern American View/ Wagon Mound / Overrules

Polemis)
 ● D’s neg is prox cause of P’s harm if causing that harm was foreseeable result of acting
as D did
Wagon Mound (Privy Council, 1961): D leaked oil from ship; floated on water. P
decided to continue performing work with flames falling. Days later, oil ignites burns P’s
ship and wharf.
● no liability for unforeseeable consequences; even if direct result, D not liable if
unforeseeable
● Re: directness, can argue indirect due to separation in time / space (fire happened
2 days later)
● foreseeability is limited by the type of harm that follows from the type of
negligent act

Smith v. Leech Brain (1962) – through D’s negligence in providing inadequate shielding, a
worker was burned on the lip by a piece of molten metal. It didn’t heal properly and later
developed into cancer. Judge found that the worker had probably become pre-disposed to cancer
by 10 yrs in the gas industry. Held that Wagon Mound didn’t alter principle that D must take
victim as he finds him
Darby v. National Trust (2001) – Owner of historic house failed to warn guests not to swim in
lake bc of possibility of contracting Weil’s disease, which is fatal. P swam & drowned. Ct held
that proximate cause was absent - disease foreseeable, but not drowning. Focus on Note 20 on
P407
Intervening Cause v. Superseding Cause

INTERVENING CAUSE
● D liable with an intervening act if the result is foreseeable or the result is in the scope of
risk
● Intervening act becomes superseding if the manner is egregious or very reckless (policy
reasons)
● Danger foreseeably invites rescue (further harm suffered = superseding act creating
liability)
SUPERSEDING CAUSE
● not liable if the result not foreseeable and outside the scope of risk, may shift blame
completely,
● Where risk of injury so remote that it isn't factor taken into acct when determining if D
negligent → subsequent act of a 3d party is a superseding cause
● D will be relieved of liability for consequences of actions if superseding cause exists after
SCOPE OF RISK (3d Restatement 29)
● type of harm must follow from risk created by neg, argue risk is broad (if P) vs. narrow
(if D)
 INTERVENING CAUSE: VS. SUPERSEDING CAUSE:
Foreseeable intervention by 3rd party 3d party breaks causal chain
D1 still liable D1's neg not prox cause of
P's harm

Doe v. Manheimer (CT 1989) [Rape in the Bushes Case]:

● Restatement (2d) § 442B: A negligent D, whose conduct creates or increases the risk of
a particular harm & is a substantial factor in causing that harm, is not relived from
liability by the intervention of another person, except where the harm is intentionally
caused by the 3rd person & is not within the scope of the risk created by the D’s conduct
● POSSIBLE EXAM TOPIC: Consider this proximate cause case as a potential extension
of respondeat superior; negligent entrustment; jxns that hold D liable for leaving keys in
ignition.
● Court rejects various theories of liability:
◦ Catalyst Theory: the condition of the property could be a catalyst for a criminal
assault; Court rejects → catalyst would treat rape as intervening event, instead of
superseding case
▪ Ct seems to assume rape would have occurred elsewhere if it didn't not on the D's
property
▪ Analogy: parents of violent adult might be held liable for child't crime if 3d party
victim can establish link between poor parenting and violence; too attenuated
◦ Past Similar Criminal Activity: Prior crimes were vagrancy / public alc
consumption; there isn't evidence on the record of any violent crimes in public (prior
rapes / binding and gagging of the D's mother occurred indoors)
● POLICY (POSECAI LINK): Is this the beginning of the end of property ownership if
we assign liability? Gilles: by assigning liability in Doe, property ownership could
become font of tort liability

Third persons – liability may be shifted completely to the third person, third person’s failure to
discover and prevent danger is not superseding, unless he does discover and fails to warn
Criminal/tortuous acts of others generally superseding unless foreseeable (actor should have
known) within the scope of risk, or negligence itself increases risk of criminal/tortious acts

Hines v. Garrett (Va. 1921): train improperly took 18-y/o P mile past stop. Conductor told her
to walk through disreputable stop. Court held that intervening criminal conduct did not insulate
RR from liability. (Misfeasance of P here, vs nonfeasance in Doe?). Railroad was found liable.
Within the scope of risk?
Addis v. Steele (Mass.App.1995): guests at an inn were injured were forced to jump from
window to escape late-night fire. Claim for negligent failure to provide lights or reasonable
escape paths withstood D's claim that it was not liable because fire was set by arsonist. Court
holds that D is responsible for preventing fire from whatever source. Within the scope of risk?
Inkeeper?
Phan Son Van v. Pena (Tex.1999): Court holds that negligent sale of alcohol to minors, who
later raped and murdered girls, was not foreseeable. Are there issues related to race and
foreseeability?
Hines v. Morrow (TX 1921) – “An advocate who pushes too far hurts rather than helps his case.
A P’s lawyer who insists on too general a description seems to be trying to suppress important
facts whereas D counsel who insists on too-specific description appears to be taking advantage of
mere technicality.” Identifying the Scope of the Risk

PROXIMATE CAUSE RECAP:

Substantial Factor Test - reflects fundamental inquiry to all proximate cause questions: whether
the harm which occurred was of the same general nature as the foreseeable risk created by D’s
negligence → in applying test we look from injury to the negligent act for the necessary causal
connection
Scope of Risk Analysis/ 2nd Rest. §442B – a neg D, whose conduct creates/increases risk of
particular harm & is substantial factor in causing that harm, isn’t relieved from liability by the
intervention of another person, except where the harm intentionally caused by 3rd person & not
w/in scope of risk created by D’s conduct
● Reason for rule precluding liability where the intervening act is intentional or criminal is
that3rd person deliberately assumed control of the situation & all responsibility for the
consequences of his act is shifted to him

Unexpected Plaintiff/ Unexpected Victim (Palsgraf)

UNEXPECTED PLAINTIFF / UNEXPECTED VICTIM

Restatement (Second) of Torts § 281 - Foreseeability/Scope of the Risk: 1) if D should have
anticipated a particular risk at time he acted, and 2) negligently failed to avert risk, D would be
held liable for P's harm.
Palsgraf v. Long Island Railroad (NY 1928):
● Foreseeable plaintiff (Majority – Cardozo): Only liable for members of a class of
foreseeable victims within a zone of danger
● Unforeseeable plaintiff (Minority – Andrews): P does not have to be foreseeable; duty
to the world. Here, there was clearly a connection and almost no remoteness in time and
space.
● Gilles: P was clearly owed some duty of care. What duty?
 ◦ Common Carrier liability would have occurred ON train. But not on platform.
● Proximate cause / Scope of Liability – less about causation, and more about the scope
of liability. Like duty, more about a policy consideration. (See Andrews dissent in
Palsgraf)
● DISSENT: Andrews says proximate cause is arbitrary and supplies a balancing test that
considers many factors, the cases will likely go to the jury (Cardozo’s approach is more
for the judge)
◦ Line-drawing: the law arbitrarily declines to trace a series of events beyond a certain
point.
UNEXPECTED PLAINTIFF / UNEXPECTED VICTIM – NOTE CASES
Wagner v. International Railway Co. (NY 1921): CARDOZO P hurt while trying to rescue
cousin who had fallen from train due to negligence from crew. Trial ct rejects liability unless
train crew induced P to rescue. Cardozo REVERSES: “Danger invites rescue... Law does not
ignore ... reactions of mind in tracing conduct to consequences.” For Cardozo, Doesn't matter if
rescuer acts on impulse or has time to reflect.
Firman v. Sacia (App.Div.1959): P alleged that as the result of D's negligent driving, he hit a
three-year old child, who sustained serious brain injures, inducing him to shoot P 3 yrs later.
Dismissal at trial, and on appeal. Where do we draw the line? What if the child was older, and
shot the P day after? Court holds that the risk was not within “the range of apprehension.”
Moore v. Shah (1982): Recovery denied to P who donated kidney to father, after father needed
transplant due to D's malpractice. Reasoning: Donor's actions were not spontaneous or
instantaneous; decision made after period of reflection.
DEFENSES

DEFENSE REVIEW
Contributory negligence
● Total bar to recover
● Only 4 states retain CN, but relevant to comparative fault analysis
Comparative Fault
● P's negligence is compared to D's negligence to determine recovery
● Multitude of policy questions
● Mainly imposed through legislative fiat, but sometimes through common law
Avoidable Consequences
● Even if accident is D's fault, P's recover reduced for failure to mitigate harm
● Generally: failure to follow medical advice; failure to wear seatbelts; failure to wear
helmet
Assumption of Risk (Express & Implied) – Two Versions
● Contractual exculpatory clauses (upheld unless public policy questions – Tunkl factors)
● P's conduct evinces knowledge and willingness to encounter risk

The Plaintiff’s Fault

1 - CONTRIBUTORY NEGLIGENCE
● Failure of P to exercise reasonable care to protect himself from harm
◦ P's conduct must be actual cause of P's harm – this is a jury question
● Total bar to recovery: Even if P was only 1% at fault
● Affirmative defense: D bears burden of pleading and proving facts to support claim
◦ Common law elements are the same as a negligence claim, except duty owed to
 oneself
● Justifications
◦ Unfair to impose liability on D where P has also been negligent

◦ Perceived administrative difficulties in measuring degrees of fault b/w P and D

Conduct must be actual cause of the P's harm → Hightower v. Paulson Truck Lines (Or.
1977): P's recovery not affected, despite his having followed too closely on highway, because he
wouldn't have been able to have stopped in time anyway] - DO P's have a more lenient
standard for contributory neg?

EXCEPTIONS TO CONTRIBUTORY NEGLIGENCE

Recklessness – Restmt 500: Only a defense in cases of neg; not a defense if D's conduct more
serious
Safety Statute Precaution: If a statute is enacted as an effort to protect some group against its
own inability to protect itself, the statute may bar a defense of contributory negligence in event
of D's statutory violation
● Chainani v. Board of Ed (NY 1995): Statute of flashing bus lights was to protect school
children against their own negligence. That purpose would be thwarted if kids'
contributory negligence were used as a defense for violation. Cf. Feisthamel v. State
(App.Div 1982): girl walks into glass drum not marked in violation of statute; “not
enacted for protection of definite class of persons from hazard from which they
themselves are incapable of avoiding.”
Last Clear Chance: P, through their negligence, put themselves into danger, but D, through
neg, failed to utilize “last clear chance” to avoid injury
Jury Refusal to Impute Contributory Negligence: “Nullification” - think regime is unfair

Comparative Negligence

P's neg does NOT create complete bar to recovery; figure out %-ages of fault; D pays appropriate
%-age
● Pure Comparative Negligence: generally developed by the courts
◦ P recovers % of D's negligence notwithstanding seriousness of P's negligence

◦ See Uniform Comparative Fault Act (p.440)

● Modified Comparative Negligence 1: Modified regimes generally developed by
legislators
 ◦ P recovers so long as her negligence was not as great as D's (P<D)

◦ If P's negligence is greater than or equal to D's → complete bar to recovery

◦ If P's negligence is less than D's, P recovers exactly what he could recover under pure
regime
● Modified Comparative Negligence 2:
◦ P recovers so long as P's negligence was no greater than D's (can be equal – key
difference)
◦ If P's negligence is greater than D's negligence, complete bar to recovery

◦ If P's negligence is less than or equal to D's, P recovers exactly what he would under
pure
◦ S. 668.3 of IA Act is Modified 2 regime (p443)
● Policy Reasons: fairness, safety incentives for doctors to treat, deterrence, administrative
ease
● Policy Questions: Should we instruct juries on the compensatory effects of their
decisions?
◦ Generally, the verdicts in New York go toward 50% / 50% - - the impact is huge

◦ Courts are split– In most jurisdictions, there's a veil of ignorance.

● Comparative Contribution: Adoption of comp fault requires adoption of comp
contribution
● BIG PICTURE MESSAGE: Small percentages make a huge difference in terms of
recoverable damages depending on the comparative negligence system in place in the
jurisdiction.
● Cts generally reluctant to reassess fact finder's allocation of percentages unless totally
indefensible.

Arguments Against Modified Comparative Negligence:

1. Party more at fault than the other has to bear own costs & is in worse position than
common law
2. If P whose fault is greater than D's is barred from recovery under modified statute but
permitted to pursue traditional common law claim (eg last clear chance), P might recover
full damages
3. If P is not permitted to pursue common law claim, may be worse off than under the
modified comparative negligence statute than with contributory negligence
Policy Questions
● Pure v. Modified 1 v. Modified 2
● Aggregation v. Non-Agg of D's negligence (if aggregate, P recovers more often than
non-agg)
● Contribution – All but 2 jurisdictions have adopted comparative contribution
● Settlements
● What gets compared

Uniform Comparative Fault Act [PURE REGIME]

(a) In an action based on fault seeking to recover damages for injury to person or harm to
property, any contributory fault chargeable to P diminished proportionately the amt awarded as
compensatory damages, but does not bar recovery
● A claim & counterclaim wont be set off against each other, except by agreement of both
parties
● A right of contribution exists btw parties jointly & severally liable upon the same
indivisible claim for the same injury whether or not judgment has been recovered against
them
● Settlements & Contribution: available to parties who have settled w P only when (1)
liability of person against whom contribution sought has been extinguished (2) if
settlement paid was reasonable
Iowa Code Chapter 668 [MODIFIED 2 REGIME]
● Contributory fault shall not bar recovery in an action by a P to recover damages for fault
resulting in death/injury to person unless P bears a greater % of fault than the combined
% of fault attributed to D
● J&S liability shall not apply to Ds found to bear less than 50% of the total fault assigned
to all parties

HYPO (p440): There's an accident in which A has suffered damages of $40,000 and is suing
B,C, and D. The trial has established that the relative shares of fault are:

Recovery for A under Pure Statute?

A (Plaintiff) is 40% responsible
B is liable for $12,000 (30% of $40K)
C is liable for $4k (10% of $40K)
D is liable for $8k (20% of $40K)
Thus, A would be able to recover $24,000 from B, C, and D together.

What recovery for A under either Modified 1 or 2?

1. Aggregation or non-aggregation? (for cases with more than one defendant)
 ◦ POLICY DECISION: do we compare the Ds' fault aggregated, or do we engage
in a set of singular comparisons?
◦ Most states aggregate → likelihood that P will always be less liable than D; if no
aggregation, possibility that P would not ever be able to recover.
◦ If liability of all Ds is aggregated, the result is the same as under the pure statute.

◦ D's combined liability > A's liability

◦ 60% (combined) > 40%

2. With non-aggregation, no recovery at all for the plaintiff.

Let's now say that fault percentages are now. What is A's recovery under a modified
statutes?
A: 30%
B: 40% → B is liable for $16,000 (40% of $40K)
C: 10% → C is not liable (<A)
D: 20% → D is not liable (<A)
A's total recovery = $16k

DEALING WITH INSOLVENCY IN A COMPARATIVE NEGLIGENCE REGIME

● In states that retain J&S but don't follow UCFA, loss due to D's insolvency will be spread
among remaining D's
● With several liability, P will bear the loss

What if “D” (one of the defendants) is insolvent?Approach # 1 (Pro-Rata Basis)

● Under J&S regime, Plaintiff A bears no burden in the reallocation of liability [ note
unfairness]
◦ B and C are liable for the entire portion of the damages owed by defendants ($24,000)

◦ But, instead of the denominator being 100% (or 10), it is now 40% (or 4) because
both D and A's fault is not included (20% + 40% = 60%);
● So B & C now share liability out of a 40% pool:
◦ A collects ¾ of $24,000 from B

◦ A collects ¼ of $24,000 from C

Approach # 2
Revoke joint and several liability and hold each D liable according to a several liability regime
● A collects 30% of 40,000 from B
● A collects 10% of 40,000 from C
● Total recovery = $16,000 [same as modified comparative negligence regime]

Approach #3
● Hold all parties, including the P, joint and severally liable
◦ Instead of the denominator being 100% (or 10), it is now 80% because D is insolvent

◦ A, B, & C now share liability out of an 80% pool rather than a 100% pool

▪ A collects 3/8 of $40,000 from B = $15,000

▪ A collects 1/8of $40,000 from C = $5,000

● Total Recovery: $20,000

C is injured = $25,000
C v. A: set off or no set off?
Set off smaller award against larger award; net goes to party with larger award
A is liable for 40% of $25,000 = $10,000
C is liable for 10% of $40,000 = $4,000
Net to C = $6,000

C's recovery from other parties

B is liable for 30% of $25,000 = $7,500
D is liable

CONTRIBUTION
Suppose after judgment, A says to B, “pay me $24,000.”
Does B have to do that or can B tender $12,000 and satisfy her obligations under the judgment?
● If joint and several liability has been retained (½ of all US jxns), B could be forced to pay
the entire judgment. [Whatever defendant population owes, collectively]
● B can seek comparative contribution against C and D, after paying the judgment.
● If B is sued alone, must implead C and D.
● POLICY RATIONALE: Encourage Ds to implead as many other potential Ds as
possible so at the close of the proceeding, the Court has arrived at some type of “truth”
through judgment.

SETTLEMENTS
 ● A has claims against B and C for $50,000 damage.
● Suppose that prior to judgment, A settles with B for $10,000.
● Can B get contribution from C?
● UCFA Section 4(b). Contribution is available to a person who settles with claimant only
1) if the liability of the person against whom contribution is sought has been extinguished
and 2) to the extent that the amount paid in settlement was reasonable.

● After settling with B, A gets judgment against C for $30,0000 at trial with the jury
finding that B and C were each 50% at fault for $60,000 of damage.
● Can C seek cotntribution from B?
◦ Under Section 6 of Uniform Act, no contribution once the party has settled

◦ But A's judgment against C (non-settling D) is reduced by B's (the settling

defendant's share.
◦ So C gets no contribution from B, but A's judgment against C is reduced to
$25,0000 ($50K - $25K).

Policy Q's in Comparative Fault:

1. Pure v. Modified 1 v. Modified 2
2. Aggregation v. Non-Aggregation of D's fault
3. Dealing with Insolvency
4. Contribution
5. Settlements
6. What conduct gets compared?

ASSIGNING FAULT TO NON-PARTIES

Many jxns employing form of several liability permit comparative fault to be assigned to a
non-party.
Taylor v. John Crane, Inc. (Cal.App.2003): comparative negligence properly assigned to U.S.
Navy, regardless of whether Navy is immune from suit).

4 – Reckless Conduct
Virtually all states with pure versions of comparative negligence have concluded that reckless
conduct should be compared with negligence
[Sorensen v. Allred (App.1980): comparing defendant's drunk and speeding driving (55%) with
P's careless left turn in front of defendant]
Courts reluctant to follow follow logic of comparison when P's conduct is thought tobe socially
offensive [Barker v Kallash (NY 1984): no recovery for boy whose pipe bomb, which he made,
explodes in his hands, even though NY has pure comparative negligence
[Problematic outcome? Alami v. Volkswagen of America, Inc (NY 2002): person sues car co
for poorly made car – duty does not arise out of the illegal act, but out of the general duty to
design an automobile with reasonable care]

5 – The interplay of intent and negligence

Most courts refuse to compare negligence of P with the intentional tort of D because intentional
conduct different “in kind” from negligent or reckless conduct.
Veazey v. Elmwood Plantation -might be appropriate to compare negligence and intentional
fault in some cases, but here, was inappropriate (rapist attacked plaintiff in apartment building
where D's are landlords)
1 – D's duty to protect tenants from risk encompassed P's injury; 2 – comparisons b/w intentional
conduct and negligence would go against public policy considerations, would reduce incentives
to ensure safety, because “rational jurors” would apportion most liability to rapist; 3 – Intentional
torts are “fundamentally different” from negligence and the two cannot be compared in many
situations, including the instant case

6 – The Impact of Several Liability

Courts that permit comparison are motivated by countervailing concern – to cushion the
negligent tortfeasor from bearing most or all of the plaintiff's damages [Chianese v. Meier (NY
2002): despite anomaly in comparing intent and negligence, court was concerned that to do
otherwise would deny benefit of several liabiolity to a negligent defendant when another party
committed intentional tort)

7 - Apportioning fault to negligent and intentional tortfeasors.

Restatement Third: Apportionment of Liability, section 14, which provides that D who is
negligent because of a failure to protect the[P] from the specific risk of intentional tort is jointly /
severally liable for the intentional tortfeasor's share of fault.

8 – Plaintiff no duty rules

Courts can rule that P has no duty to protect himself [Christensen v. Royal School Dist.
(Wash.2005): 13-y/o student sued school for having consensual sexual relationship w teacher;
Held: consent cannot be held to be contributory negligence – policy reasons: same concerns for
protection of minors that mandate statutory rape / school district had “solemn duty” to protect
students.]

9 – Should the judgments be set off against each other?

Concern about preventing fortuitous windfalls for insurance companies; UCFA Section 3: “A
Claim and counterclaim shall not be set off against each other, except by agreement of both
parties.”

15 – Damage caps.
Statutory caps on damages create question of statutory interpretation when the jury's award of
damages is above the cap but the P's comparative negligence would reduce the recovery below
that statutory cap [Hall v. Brookshire Bros. Ltf. (La. 2003): court imposed cap to address
maximum amount plaintiff could recover and thus held that P's comparative share should first be
deducted from verdict amount and then cap applied]

16 – Other changes wrought by comparative negligence. Elimination of last clear chance.

a – Res ipsa – Montgomery Elevator (Colo. 1980): court asserted that RIL could be used
if P's evidence showed only rhe fist two conditions, once court views that RIL is applicalbe,
jury must compare any evidence of negligence of P with inferred negligence of D and
deicde which percentage of neg is attributable to each party.
b – Proximate cause -???
c – Rescue – since the introduction of comparative negligece, Ds have argues that
rescuers – who were not barred from recovery by their negligence ealier unless rash or
reckless – no longer need special protection.
d – The drinking plaintiff
Use of safety belts.
Some legislatures make it a crime not to wear a safety belt, and have added provision that the
violation is inadmissible in civil actions. Some jxn allow for reduction of civil damages but in
small percentages. In jurisdictions that criminalize no seatbelts but provide no guidance re:
comparative negligence, courts ask jury to determine comparative negligence given lack of
seatbelt.

Sawlani v. Mills (Ind.App.2005): D radiologist committed malpractice in failing to diagnose

stage 1 breast cancer after mammogram; 20 month later, P was diagnosed with stage 2 breast
cancer with 10-year chance of survival; D argues that there was contributory negligence b/c P
never underwent followup which he advised. Held: this is a case of avoidable consequnces
rather than CN (temporal element?)

Comparing Plaintiff’s Conduct in Medical Malpractice Cases

Fritts v. McKinne
 ● When can patients be contributorily negligent in med mal cases?
◦ Failure to reveal medical history or providing false information

◦ Failing to follow doc's advice

◦ Delay or failure in seeking recommended medical attention

◦ Usually no comparative fault in med mal cases because patients conduct is

probably not relevant to the physician’s procedure
◦ BUT NOT where patients negligently injure themselves in way necessitating med
intervention
▪ Why? Creates negative incentive for doctors to absolve themselves of liability to
patients
▪ Patients who negligently injured themselves are entitled to non-negligent medical
treatment

Fritts v. McKinne (OK 1996):

Decedent's drunk driving was not relevant to the medical negligence claim and comparative
negligence should not have been submitted to the jury. The substance abuse history were relevant
to consideration of life expectancy regarding damages.
Patients who negligently injured themselves nevertheless entitled to non negligent medical
treatment and to undiminished recovery if nonnegligent treatment not afforded/ A physician may
not avoid liability for negligent medical treatment simply because the patient’s own negligence
caused the injury necessitating the medical treatment. It was appropriate to bring in the issue of
the anatomy.
Decedent of drunk driver sued doctor whose negligence during a surgery 5 days after accident
may have caused death.
● HYPO: What if D gets held liable; could he seek contribution from the driver?
● Argument that the decision reflects the negligence of the doctor @ time that P enters
hospital, injured.(LINE DRAWING EMPHASIS).
● Bifurcation: Looking at liability, and then looking at damages.

Should reluctance to compare P's conduct as in Freitts be limited to medical mal cases?
Wolfgang v. America Motorsports (CA10 1997): P professional car racer had negligently
crashed on D racetrack. He sued only for harm due to subsequent fire that was not extinguished
quickly b/c of the track's alleged negligence. Court, using KS law, held that since P was suing
only for the excess harm by the late rescue, the D could not show how the P had been hurt.
Plaintiffs who consicously create danger that created medical attention
Harding v. Deiss (Mont.2000): girl knows that she's allergic to horses, has allegic reaction,
CPR, dies; on appeal, court holds that pre-treatment conduct should not b considered in the
liability phase of this type of case. The alternative would lead to the “absured result” that in any
hospitalization due to the patient's fault, “the treating physician would not be liable for negligent
treatment.” (why not comparative negligence?)

Comparative Negligence – failure to lose weight – (p456)

Tanberg v. Ackerman (Iowa 1991): P sustained a back injury due to defendant's negligence.
His physician advised him to lose weight to mitigate the back pain. A jury P failed to make a
reasonable effort to lose weight, and that the P was 70% at fault for his damage compared to 30%
for the tortfeasor.
● Point in class: why don't we hold the plaintiff responsible, when in proximate cause
cases, we hold the defendant liable for a cascading set of harms that occur after a
negligent act.

Avoidable Consequences
(Generally from Era of Contributory Negligence)

Clearest form of avoidable consequences issue involved O's failure to obtain med attention or
follow med adivce. Courts refused to award damages to complications for failing to follow
medical advice.
(Generally, P's not required to undergo medical treatment to mitigate the harm created by P's
negligence)

Procedural Question: What if we have a synergistic case? IE asbestos installer plus long-term
smoker? How to avoid trial?
● Summary judgment: how do we prove causation?

Champagne v. Raybestos – Manhattan, Inc. (Conn.1989): guy was exposed to asbestos, got
asbestosis, x-rays showed changes in lungs, advised to stop smoking, continued smoking; held;
jury could reasonably have conlcuded that decdent knew or should have known that conduct was
unreasonable and consequently there was no basis for jury's decision. Jury awards some
damages, but reduces by 75%.
● Even if causation is established, there's an avoidable consequence (compare to synergistic
 hypo above, where causation has not been firmly established)

Hypo p.456
D is driving negligently, crashes with P who fails to wear seat belt. P suffers $200,000 in
damages instead of $20,000 that would have occurred with seat belt. What should P's
damage award be?
● P will recover 20,000 minimum, but $180,000 will be reduced (down to zero? If
the court is really harsh) because the injuries were avoidable consequences had
the plaintiff worn a seatbelt.
● What if the defendant is a drunk driver? Battle of the social policy (seatbelts
v. drunk driving). Comparative fault regime. Courts stick with the as above, and
they let the criminal law deal with the liability of the drunk driving defendant.

Are Comparative Fault and Avoidable Consequences at harm? Avoidable consequences

does not go away from “Ordinary Harm” - even in a comparative fault regime.

How do courts deal with Ps who refuse necessary medical treatments because those
treatments are in contradiction with their religious beliefs? Cardozo L.Rev Article (1994):
“decdent's decision to honor religious beliefs is not unreasonable, but D has no duty to subsidize
life in the name of religion.” Freedom of choice and individual autonomy.

Assumption of Risk

● Defense from early-20th century business owners related to plaintiff's knowing choice to
assume a risk would completely absolve defendant of responsibility.
● Express assumption of risk: exculpatory agreements / hold-harmless agreements
● Main issue of litigation around these agreements is whether these types of agreements are
enforceable

Arguments in favor
● Moral: people should be responsible for themselves (indivduals' freedom of choice)
● Cultural: some people prefer a fun life and to assume risks (we believe in individuation)
● Allocating risk through contract is efficient (as opposed to ex-post civil litigation)
● Market related: believe in desirability of markets to allocate risks

Policy questions on enforcing Exculpatory Agreements

● Had consent to accept risk been freely given? Illusory consent
● Had P accepted particular risk that led to injury? (you can never sue us for anything,
anytime, anywhere – exculpatory clauses need to be very specific about risk that you're
trying to protect against)
 ● Were there social / public interests involved? Indispensable services? Arguably this
is the catch-all, giving courts the opportunity to flex public policy muscles – find things
unenforceable as a matter of public policy. Hospitals and schools are pretty easy cases
for the courts to decide
Arguments against
Critics argue that markets are flawed or an inappropriate mechanism for allocating malpractice
risk
1. EXPRESS AGREEMENTS – EXPRESS ASSUMPTION OF RISK
General Questions Arising During Litigation of Exculpatory Agreements :
(1) Will the courts enforce even the most clearly drafted K given the type of activity
involved;
(2) is the K in question sufficiently clear?
Hanks v. Powder Ridge Restaurant Corp (Conn. 2005): Hyson rule: “better rule is that a party
cannot be released from liability for injuries resulting from its future negligence in the absence of
language that expressly so provides.” (“satellite litigation” - trial court finding before the issue is
actually litigated)
Arguments:
1) in signing the release, P was only signing to release D from liability for damages inherent to
the activity of snowboarding. In the instant case, the K expressly releases D for liability from
negligence. (The “NEGLIGENCE” language, however, was all over the K, so the court rejects
this).
2) Signing exculpatory releases violate public policy and are therefore unenforceable (undermine
“prophylactic factor” of tort system).
The “bargaining power” issue wasn't so much about a take-it-or-leave it type scenario, but rather
(the fact that patrons don't read Ks, but the court cant expressly say that, b/c it's presumed that
parties read Ks) [PATERNALISM ON THE PART OF THE COURTS?]

Tunkl Factors (policy)– waiver of assumption of risk agreements invalid if it has

1) business suitable for public regulation
2) important service to public
3) open invitation to the public
4) unequal bargaining power
5) adhesion contract (offering no negoitation or insurance against negligence)
6) under control of seller and subject to their carelessness;
Court also considers totality of circumstances. - Court wants to uphold agreement
here.

Dissent: P's werent always in the control of D's, and the services that D's were rendering
weren't so essential as to preclude P's from walking away. Dalury v. S-K-I (Vt. 1995): It
is illogical to undermine public policy underlying business invitee law and allow skiers to
 bear the risks they have no ability or right to control.” Maybe we've made the world
safer, but maybe that's not what the law should be doing. This isn't healthcare,
banking, or insurance (exculpatory agreements there take away parties' ability to
act as fully “righted” persons).

Releases Signed by Parents, split between jxns that hold unenforceable (policy interest
of protecting children's rights); other jxn enforce ethem
[LOOK AT THE FACTORS THAT GILLES PUT INTO THE POWER POINT]

Parking lot exculpation notices: Sometimes held that such “park at your own risk”
notices are unenforceable without expressly drawing plaintiff's attention to the notice.

2. IMPLIED ASSUMPTION OF RISK

Even if the K is barred, there might be an implied assumption of risk argument (Wilcon)
Argument used by manufacturer employers as defenses for employees trying to sue for
work-related injuries
Defense of implied assumption of risk involves: (1) P's Knowledge of Risk [if there's an inherent
danger of which the P cannot be expected to be aware, NO DEFENSE] (2) P's willingness to
Encounter the Risk
Risk: (1) probability harm will occur; (2) magnitude of harm that occurs

Murphy v. Steeplechase Amusement (NY 1929):[Cardozo] One who takes part in such a sport
accepts the dangers that inhere in it so far as they are obvious and necessary. Plaintiff is injured
while riding an amusement park ride called The Flopper and is injured. “The timorous may stay
at home.”
● Argument: – D didn't breach a duty of care, even if duty owed
● Burden on D for defense: Must prove that the P was aware of the risk
● Impose a “reasonableness” standard for what knowledge would be known for
“knowledge” of normal risks – thus foreigner would likely be barred; not whether risk
known but whether risk should have been known
● This is a no-negligence finding as opposed to a pure assumption of risk finding
● P's argument was that a jerk happened, causing injury – Even if a jerk happened, the risk
of falling “was invited and foreseen” [at the same time that P went down, the rest of the
parties that he was with also went down; some circumstantial evidence was admissible;
Cardozo – victims never know]
● Easily disposed case: credibility issue re: the evidence of the jerk; imagine a guillotine,
do we still bar a plaintiff from assumption of risk due to negligence?
● Most litigation centers around whether P has assumed normal risk associated with the
normal scope of the activitty
 ● Third Restatement REJECTS any assumption of risk defenses

Participants in Amateur Sports

Knight v. Jewett (Cal.1992): touch football game, D injures P while playing rough.
Court holds that liability would flow “only if the partcipant 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.”
Lestina v. West Bend Mutual Ins. Co. (Wis. 1993): To determine whether a player's
conduct constitutes actionable negligence (or contributory negligence), factfinder should
consider material factors of sport involved (ie types of contact and level of violence
generally accepted).

Baseball spectators
Rule in Davidoff v. Mets (NY 1984): Where a pro-ball park furnishes screening for area
of field behind home plate where danger of being struck by a ball is greatest and that
screening is of sufficient extent to provide adequate protection for as many spectators as
may reasonably be expected to desire such seating in the course of an ordinary game, the
proprietor fulfills the duty of care imposed by law and cannot be held liable in negligence
(Dissent / criticism: screen provides artificial means to exculpate from potential
liability).
● D didn't breach a duty to spectator by failing to screen the entire stadium
(generally portion behind backstop, where flying balls and bats go)
● Is the a B>PL situation? Incidence rate of harm in stadiums is super low, correct?
● Hypo: What about a foreign P who knows nothing about baseball? Did the
foreign P have actual knowledge of a baseball game?

“PRIMARY VERSUS SECONDARY ASSUMPTION OF RISK”

Davenport v. Cotton Hope Plantation (SC 1998): Secondary assumption of risk is allowed for
a comparative negligence jurisdiction unless plaintiff is greater at fault. Plaintiff took a dark set
of stairs out of 3 after using it for two months and was injured. Assumption of risk reqs: 1) P has
knowledge about dangerous condition; 2) P must know condition is dangerous; 3) P must
appreciate nature and extent of danger; 4) P must voluntarily expose himself to danger
Primary implied assumption of risk – defendant has no or limited duty, arises when
plaintiff implied assumes risk inherently in a particular activity (student injured in
football drill) [not so a defense as but rather a question over whether D had a duty]
Secondary implied assumption of risk – plaintiff knowingly encounters a risk created by
D's negligence, comparative negligence applies, reasonableness of plaintiff’s conduct can
be taken into account regarding comparative negligence
STRICT LIABILITY

Generally, development of strict liability doctrine that is contrary to ordinary negligence standard
Applicable to cases where activity is ultrahazardous or abnormally dangerous activity

INTRODUCTION OF A SPECTRUM OF CONTROLS ON RISKY ACTIVITY

● 1) Outright banning extremely dangerous activities
● 2) Strict Liability for Abnormally Dangerous Activities
● 3) Applying negligence law to somewhat risky activities

Rylands v. Fletcher (Exchecquer – Intermediate Appellate Court - 1866): [“The Rylands

Exception”]
● P's property floods with water which broke out of a reservoir constructed on D's land.
Causation – coal carved out, created defect in subsoil. (Trial court, no claim for which D
can be held responsible)
● Respondeat superior was not a legal doctrine at the time of this decision.
 ● No finding of negligence; carelessness was on the part of contractor, not D; trespass
needs to be direct and immediate, was not direct and immediate here; no nuisance –
nothing offensive to senses.
● Rule (Blackburn @ Exchecquer) (508-509): person who for his own purposes brings
on his lands and collects and keeps there anything likely to the mischief if it escapes must
keep it in at his peril, and, if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of the escape.
◦ Overarching rationale – fairness, prioritizing one group's interest over another
● Negligence Standard Applies When: circumstances show that P took the risk upon
himself.
● Strict Liability Standard Applies When: Plaintiff could not in any way control the Ds, or
hinder their building what reservoirs they liked, and storing up in them what water they
pleased, so long as the defendants succeeded in preventing the water which they there
brought from intervening with P's property. Here, then, no need to consider whether
there was a breach of care.
● House of Lords [CAIRNS] (1868): If a person brings, or accumulates, on his land
anything which ,if it should escape, may cause damage to his neighbor, he does so at his
peril. If it does escape, and cause damage, he is responsible, however careful he may
have been, and whatever precautions he may have taken to prevent the damage.
Anything non-natural and causes harm is subject to strict liability – hugely
controversial decision; P's in England argue that everything is non-natural; the
non-natural argument (trying to impose strict liability) begins to swallow up
negligence law.
● Split between Blackburn and Cairns as to the natural and non-natural
Early Concerns about Strict Liability:
Putting a penalty on activities that are necessary to contemporary society
Losee v. Buchanan (NY 1873): concern that strict liability will slow U.S.
development; we want to become everything that we can become; if we impose
strict liability. “We must have factories, machinery, dams and railroads. They are
demanded by the manifold wants of manking, and lay at the basis of all our
civilization.”
Later Doctrinal Adoption - State Dept of Environmental Protection v.
Ventron Corp. (NJ 1983):“In a frontier society there was little likelihood that a
dangerous use of land could cause damage to one's neighbor. Today our life has
become more complex. […] Though there are still many dangerous activities that
are socially desirable, it now seems reasonable that they pay their own way.”

Policy Concerns about Strict Liability:

● If you're going to rely on the Losee basis for strict liability, you're always going to have it
 in your back pocket – think about the Losee argument within the current context of the
shaky U.S. economy.
● Arguments against strict liability and the tory system in the US

Sullivan v. Dunham (NY 1900) – Rationale is Fairness, But it's Still A Choice by the Court
● Right to undisturbed possession of property – more important than → Right to use of
property (i.e. digging canal or blasting something) – P probably could not prove
negligence
● Right to beneficial use of property > Right to particular use of property
● “Use of land by the proprietor is not therefore an absolute right, but qualified and limited
by the higher right of others to the lawful possession of their property.”
● Safety of the person is more sacred than the safety of property
● Holding: Where the injury is not direct, but consequential, such as is caused by
concussion which, by shaking the earth, injures property, there is no liability in the
absence of negligence.
● “The accident in question was a misfortune to the defendants, but it was a greater
misfortune to the young woman who was killed. The safety of travelers upon the public
highway is more important to the state than the iprovemeent of one piece of property, by
a special method, to its owner.”
● Sic utere tuo ut alienum non laedas. So use your own as not to injure another's property.

Note 4 – Difference in Treatment of Harms in New York

Booth v. Rome (NY 1893): Court held the Hay case inapplicable to harm suffered by concussion
because there, the D's act had caused direct harm to P's property and was thus a trespass. In
Booth, court emphasized that no “direct harm” was done by concussion [i.e. movement of the
land, movement of the air, the physical manifestations of a blast activity, other than flying debris,
which would otherwise create a “technical trespass.”]

Distinction between debris and concussion ends in 1969, Spano v. Perini Corp (NY 1969): The
question was not whether it was lawful or proper to engage in the blasting but who should bear
the cost of any resulting damage.”

Restatement (Second) § 519 - 520 – One who “carries on an abnormally dangerous activity is
subject to liability for harm … resulting from the activity, although he has exercised the ustmost
care to prevent the harm.”
● Defined as involving risks that “cannot be eliminated by the exercise of utmost case” and
activities which are “not a matter of common usage.”
● Argument for strict liability – usually the catastrophic nature of these accidents makes it
impossible for Ps to obtain evidence of negligence
● Deterrence / incentive to carry out activity in a different place
 ● Generally applies to explosives, water or flammable liquids collected or stored in
dangerous places, fumigation, pile driving (vibrations), crop dusting, drilling oiling wells,
fireworks / rocket launches; factories emitting dangerous toxins. This has implications on
the way that these industries actually operate.
● CONCERNS
◦ Inconsistent decisions & unpredictable outcomes: different courts focused on
different factors to reach different decisions;
▪ Factor 3 (inability to eliminate risk) tended to dominate all other factors; created
a high evidentiary burden for Ps;
▪ Factor 6: should value to community be part of the SL calculus at all?;

▪ Catch-22: pleading negligence & strict liability in the alternative creates

problems for Ps.

Factors to determine whether an activity is abnormally dangerous [Question of Law for the
Court] – Not All Factors Need Be Satisfied – Guille Factors, as described in Cyanamid:
(a) existence of a high degree of risk of some harm to the person, land, or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
[Doesn't this look like a “balancing” test?] [Catch-all; no strict liability – negligence ]

Prosser: “The essential question is whether the risk created is so unusual, either because of its
magnitude or because of the circumstances surrounding it, as to justify the imposition of strict
liability for the harm that results from it, even though it is carried on … [FINISH FROM
SLIDES]

Controversies Surrounding 520

● Inconsistent decisions and unpredictable outcomes: diff't court focus on diff factors to
reach diff decisions
● Factor 3: tends to dominate all tother factors; creates a high evidentiary burden for Ps
[P's need to prove the “negative” of Part c above]
● Factor 6: should value to community be part of the SL calculus at all? [Catch-all; no
strict liability]
● Catch-22: pleading negligence and strict liability in the alternative creates problems. [on
the one handing saying that the D failed to exercise reasonable care, and then also saying
 that on a theory of strict liability, you're conceding that it would be impossible to prevent
risk with the exercise of reasonable care]

Proliferation of strict liability principles

● Respondeat Superior (fault of the employee upon which we impose employer liability)
● Res ipsa?? We are not asking P to prove the negligence; it can be a proof issue, but since
we're not requiring proof, we're not making it strict
● Workers' comp statutes – if you're injured on the job, that's all you need to collect a
remedy (i.e. Comprehensive Environmental Response, Compensation, and Liability Act
“CERCLA”)
● Defamation, trespass, nuisance
● Products liability (sort of)

Indiana Harbor Belt RR Co. v. American Cyanamid Co. (CA7 1990):

● Toxic acrylonitrate leak after shipping materials from LA to IL; D loaded materials in its
factory in Louisiana, but the leak itself happened in transit in IL
● Posner: negligence is a default; give me a reason to up-shift to strict liability
● @ Trial court, P permitted to collect on strict liability;
● Issue: Should a strict liability or negligence regime govern the instant case? No. MSJ on
strict liability reversed, remanded for a finding as to defendant's negligence.
● When it is a workable regime, because the hazards of an activity can be avoided by being
careful (which is to say, nonnegligent), there is no need to switch to strict liability
● Court looks to Siegler (gasoline explosion case), in which strict liability standard was
applied to a case in which all of the evidence was destroyed
● Accidents that are due to a lack of care can be prevented by taking care; and when a lack
of care can be shown in court (unlike Siegler), such accidents are adequately deterred by
the threat of liability for negligence.
● “It is easy to see how the accident in this case might have been prevented at reasonable
cost by greater care on the part of those who handled the tank car of acrylonitrile. It is
difficult to see how it might have been prevented at reasonable cost be a change in the
activity of transporting the chemical. This is therefore not an apt case for strict liability.”
● Also different than products liability: P is not suggesting that that D should go into
manufacturing an entirely different product.
● Posner on economic rationale for strict liability: “By making the actor strictly liable –
by denying him in other words an excuse based on his inability to avoid accident by
being more careful – we give him an incentive, missing in a negligence regime, to
experiment with methods of preventing accidents that involve
● Think to spoliation of evidence possibility in things like explosions, etc which usually are
the incidents in question from strict liability
● P's argument: Hard case to prove; Posner's response: many cases hard to prove
 ● Assumption of the risk by living by a railway station – hazard of vibration,
chemicals, etc [Somewhat classist / racist implication]

Economic rationales for applying strict liability to dangerous activities

Where an activity is very risky and its risks can't be eliminated through reasonable care

Why Strict Liability Rationale Doesn't Apply in Indiana Harbor

The leak could have been prevented by exercise of reasonable care in inspection and/or
maintenance
Difficulty of routing rail-transported material away from metro areas that serve as railroad hubs
We probably don't want the rail transportation of hazardous chemicals altogether
P 525 - Rerouting is not panacea; there's also a difference between the shipper and the carrier.

Potential advantages of strict liability over negligence

● Fairness?
● Deterrence?
● Greater accuracy [promoted R&D rather than having businesses engage in ex post
determinations through court decisions, also settlements are usually confidential
and not available to the public]
● Administrative cost savings [usually settled with insurance companies];
● Promotion of research and development;
● More extensive loss distribution.

Strict Liability: “Activities” versus “Acts” G.J Leasing Co. v. Union Electric Co. (CA7
1995):
Keeping a tiger in one's backyard would be an example of an abnormally dangerous activity
Hazard is such, relative to the value of the activity, that the concern is not just to prevent the tiger
from escaping, but to consider getting rid of the tiger altogether

Note 8 – Strict Liability and Emotional Distress,

Birmingham Coal & Coke Co. (Ala. 2008): D was subject to strict liability for blasting; while
Ps could recover for property damage to home, could not recover for emotional harm (AL
requires physical injury or Z-of-D for ED recovery).

3. Strict liability does not replace negligence Advantage of strict liability over negligence?
i. Fairness?- strict liability is an effort to achieve fairness. Activities that ought to pay their
own way.
ii. Deterrence?-will promote safety. Greater efforts to deter dangerous activity take better
safety precautions. Assumes negligence doesn’t do enough (not clear this is true.
iii. (above arguments similar to negligence policy)
 iv. Greater Accuracy: jury variations. No evidence in these cases. No consistency between
decisions
v. Administrative cost savings: some cost savings on individual cases, not a net savings.
vi. Promote more research and development: negligence creates some incentives. More
pressure.
vii. More extensive loss distribution: spread the risks. True in negligence law MORE true in
negligence.

4. Defenses:
i. Contributory Negligence: Contributory negligence is not a defense unless the party
knew of the abnormally dangerous activity.
ii. Assumption of Risk: If the party unreasonably exposed itself to the risk, fully aware of
its existence, the defendant will not be liable.
iii. Comparative Negligence: Comparative negligence will be used to reduce damages.
DAMAGES
I) Why award damages?
1) To achieve corrective justice by compensating P for losses resulting from D’s tortious act
2) To promote deterrence by threatening Ds with liability for costs resulting from their
tortious acts; and
3) To recognize significance of P’s loss and confirm weight of D’s responsibility for that
loss
II) Damages = Special/pecuniary damages (medical expenses + lost income) + Pain and
Suffering
III) Standards for Reviewing damage awards on appeal:
1) “Shocks the conscience.” Majority in Seffert v. Los Angeles Transit Lines (CA SC ’61)
(P caught in door of bus run by D & dragged before being thrown to ground. Before
accident P was 42, healthy, & had been supporting herself for 20 years. As a result of
accident P suffered severe, disabling, & permanent injuries, & will suffer pain for rest of
life, estimated to be 34.9 years from time of trial. After accident P underwent 9 painful
operations & was hospitalized for months. Future operations may be necessary. P
calculated pecuniary losses as total of MD & hospital bills, drugs & other medical
expenses, loss of earning between the time of accident & trial, future drug & other
medical expenses, & possible future earnings loss, for a total of $53,903.75. Also claimed
$134,000 in non-pecuniary damages including past & future P&S, humiliation from
being disfigured and crippled, & anxiety from fear leg need amputation. Jury awarded P
all claimed damages, totaling $187,903.75. Denied D’s motion for new trial based on
claim damages excessive a matter of law. Affirmed.)
A) Verdict is so excessive as to suggest “passion, prejudice or corruption on the part of
the jury”
B) Highest standard of review: trial judge and jury sat through trial, award of damages is
discretionary, warrants broad deference
2) Previous awards for similar injuries. Traynor dissent in Seffert.
A) Treating like cases alike
 B) Enables some predictability of damage awards
C) Helps to establish rational policy of deterrence
IV) Pain and Suffering Damages
1) Compensatory Damages
A) Three components in a typical personal injury case:
(i) Special or Pecuniary Damages
a Medical expenses
o Past medical expenses are documented in bills
o Future expenses are predicted based on length of treatment, life
expectancy using actuarial tables, etc. (experts needed)
b Lost income
o Past lost income documented
o Future lost income predicted based on normal earning power, work-life
expectancy in years and in potential advancement, and the discount rate
(ii) General Damages
a Pain and Suffering
● Arguments for P&S ● Arguments against P&S
● In some cases, money may be a rough ● P&S is meaningless when awarded for past
substitute for intangible loss pain
● P&S is real and should be compensated ● Impossible to administer in an even-handed
● Failure to compensate for P&S could result in way (hard to quantify)
under-deterrence ● Adds unpredictability to the system
● In a contingency fee system, P&S damages ● May result in over-deterrence
permit the plaintiff to pay her attorney and be
made whole

2) Should P&S damages be awarded if not conscience?

A) Yes…
(i) Don’t want to create windfall for defensive medicine
(ii) Worry about business end stuff (like lawyer’s fees)
(iii)Ways to distribute to estate
B) No…
(i) Goal is to restore to prior position, but if not conscience then nothing can resotre
you.
3) Should loss of enjoyment be a separate injury category? McDougald v. Garber (NY Ct
App ’89) (P had C-sec & tubal ligation performed by Ds. During surgery deprived of O 2
& suffered brain damage, permanent coma. P husband brought malpractice derivative
actions. Jury awarded P $9,650,102 in damages, including $1 mil for conscious P&S &
separate award $3.5 mil for loss of pleasures & pursuits of life. Husband received $1.5
mil. Remainder damages for economic loss. Post-trial motion, reduced P’s award
 $4,796,728 by striking award future nursing care & reducing separate awards for
conscious P&S & loss of pleasures & pursuits of life to single award of $2mil. Affirmed.
Held some degree cognitive awareness of loss by P is prerequisite recovery for loss of
enjoyment of life.
A) Yes…
(i) Can argue for more $ (maximizing damages)
(ii) Greater accuracy of full compensation if things are specific and categorized
a The use of more and narrower categories helps jury understand exactly what
claimed damages it is addressing. Adds more clarity and objectivity to this
part of jury determination. Fantozzi v. Sandusky Cement Products Co. (OH
’92) (Court approved separate jury charge addressing P’s inability to perform
usual ADLs).
B) Court says no because…
(i) Fearful of over-compensation
(ii) No measuring stick
V) How do you calculate damages?
1) Past pecuniary losses (take in account taxation! Physical injury awards are not taxable but
emotional damages awards are)
2) Future pecuniary losses
A) Future medical expenses
B) Future employment earnings
(i) Promotions/merit raises? COLAs? Medical coverage/pensions/retirement plans?
(ii) Un/underemployed workers: entitled instruction on lost earnings capacity based
on prior employment nurse’s aide
(iii)Lost opportunity for great financial success can be claimed
(iv)Discount to present value (discount rate = estimated return on prudent investment)
(v) Consider legal impediments to employment (immigration status, incarceration,
legal disability)
3) Per diems/ and other monetary guides. Courts divided over wisdom of giving jury
monetary guidelines. Most states permit arguments using guidelines, a few permit
argument without numbers.
4) Damage caps. Hall v. Brookshire Bros., Ltd. (LA 2003) (Statute imposing cap should
address maximum amount P could recover. Held P’s comparative share should first be
deducted from verdict amount, then cap applied.
VI) Damages in the event of death
1) Survival statutes: provide recovery of damages P could have recovered before
death—medical expenses, lost wages, P&S from the time of injury to time of death
A) Court can award P&S.
(i) Ex Yes…
 a Colella v. JMS Trucking Co. of Ill, Inc. (Ill. App. 2010) (Upheld award
$1mil pre-death P&S despite evidence decedent construction worker
conscious at most 3-4 minutes after being struck and dragged by dump truck.)
b Sander v. Geib, Elston, Frost P.A. (SD ’93) (D negligently read pap smear
test, failure to detect cervical cancer, died after radiation therapy. Rejected
claim of excessiveness, considered knowledge of impending, unalterable
doom, confusion, fear, misery, depression, helplessness, physical pain and
mental terror, knowledge would never see children grow old, or old age with
husband.)
(ii) Ex No…
a Glaser v. County of Orange (NY App Div ’93) (Court overturned jury award
for $1mil as excessive for decedent whose windshield struck by axle came
loose from D’s truck and survived 2-3 minutes.)
b CA bars by statute in case where victim dies before judgment.
2) Wrongful death statutes: provide that where P dies as result of another’s negligence,
person or entity that would have been liable had death not ensued continues to be liable
The Collateral Source Rule
● D Responsible for loses even if loses being paid from other sources
Arguments For: Arguments Against:
● P should not be penalized for foresight ● Double recovery/ windfall to P
(insurance) or other connections (family, (not an argument against CSR but against P
charity, etc.) benefiting, as opposed to insurer or medical
● Compensatory damages may not make P provider)
whole in any event (attorney’s fees)
● Public Policy should encourage charity
● Deterrence
​
​Arambula v. Wells (CoA of CA 1999) - P was injured in car accident. He owned part of the
family business, brother owned most. He couldn’t work but his brother still paid salary. No
requirement to reimburse the business, but he wanted to. Court held Collateral source rule
applies to gratuitous payments of wages, P can still recover full damages.

Henningsen v. Bloomfield Motors (products liability- warranty)

Kubert v. Best (someone who texts another person liability)

If an award is reduced by an incredible amount, then mention that the judge may not be
comfortable awarding it

PRODUCTS LIABILITY

A. Introduction
● Duty previously decided by privity, requiring K to establish duty (Interplay between K
and Tort)
● Over time, negligence principle began to dominate
● Then, courts began to construct a system with elements of strict liability
● Fundamental issues of compensation and deterrence issues underlying tort liability
● w in shaping approach to subject
● Historically, difficulty for consumers to sue manufacturers because of lack of
privity.
● Courts' general desire to get rid of privity bar for these types of product liability
cases

HISTORICAL PREDECESSOR, Winterbottom v. Wright (1842): K relationship or direct

relationship. Stood for proposition that manufacturers, suppliers, and repairers of chattels could
be liable for their negligence only to those with whom they had vcontracter.

MacPherson v. Buick Motor Co. (NY 1916): [Cardozo] – Situate this in the Evolution of the
Doctrine
● While driving, P's car collapses and P is thrown out of car and injured; wheel made out of
defective wood; D did not make the wheel, bought it from mfg. Car was sold to dealer,
not P.
● Defects could have been discovered thru reasonable inspection; inspection omitted.
● Issue: Whether D owed a duty of care / vigilance to anyone but the immediate purchaser.
● Lineage of New York Cases re: Products Liability [Court Extends Prior Holdings]:
◦ Thomas v. Winchester (1852): mislabeled poison , b/c danger foreseeable, and
anyone (USER) who comes into contact w/ poison likely to suffer harm → duty to
avoid injury, recovery permitted
◦ Loop v. Lichtfield (1870):Buyer of machine knows defective, owns for 5 years,
leases machine to P; mfg not liable to injured lessee (P)
◦ Losee v. Clute (1873): Finality of safety test bears on measure of diligence [due
care] of defendants
◦ Devlin v. Smith (1882): Held that D contractor, not in privity w/workmen, liable for
injury for negligently constructed scaffolding b/c he knew that workmen would use
the scaffolding, and poorly built would create trap
◦ Statler v. George A. Ray Mfg. (1909): Exploding coffee urn “of such a character
inherently that, when applied to the purposes for which it was designed, it was liable
to become a source of great danger to many people if not properly constructed.”
● Principle of Thomas v. Winchester NOT limited to “implements of destruction.”
● RULE OF LAW: [Foresight of Consequences Creates a Duty, W/Foreseeability, No
Privity Bar]
(1) If nature of a thing is such that it is reasonably certain to place life and limb in peril when
negligently made, then it is thing of danger. It's nature gives warning to expected consequences.
(2) If mfg knows that persons other than purchaser will use it, then there's a duty to users.
(3) Knowledge of danger must not be merely possible, but probable.
(4) Proximity or remoteness of relation, unnecessary to go to mfg of component parts, b/c
independent cause intervenes – mfg of final product fails in duty of inspection (Cardozo leaves
question of component part liability open in the instant case).
● Abolished Privity Doctrine to Establish Duty, but P must still prove fault (still hard).

GETTING RID OF PRIVITY

 ● Forseeability of harm increasingly viewed as a better measure of duty's reach than
one-on-one Ks
● “Inherently dangerous” exception in the case law was showing sings of conceptual
instability (as more and more products were make their way into this category)
● In an era of mass-produced, nationally-distributed products, privity seemed increasingly
arbitrary, unfair, anticonsumer, and a holdover of the past.

HOW DO YOU PROVE NEGLIGENCE IN A PRODUCTS CASE?

● How would a person sue Buick, the largest employer in the company
● You can point to D, and say that there was inadequate inspection in their cars
● Hard to come by expert testimony about auto construction (hard today – even harder
when Buick decided)
● Main point: Extremely difficult to prove under negligence; proof that defect existed at
the time of sale (not that the owner of the car had it for five years); how would you prove
a defect in quality control?
● THUS: this is why we introduce a products liability standard
● Think about this in relation to med mal evidence (expert testimony); why not “custom”
evidence here? We generally don't defer to corporate actors to set their own standards
[notice the “trust” of medical practitioners] Courts don't trust commercial industries to
set their own standards of care, see Andrews v. UAL
● Why not sue the component part mfg? Usually, there's an indemnity agreement;
● Usually, in discovery, there's ex-post proof; Ps in discovery were proving D's points for
them
● Why not res ipsa? D not in control of the implement of harm, even if we're liberal to
say that the D was in control of the implement when the P took posession of the
implement of harm

Note 9 – Warranty Development:

● Generally, law relating to products that did not meet purposes for which they were
bought, or were otherwise unsatisfactory
● Warranties: agreements that you purchase items that work as you expect them to work. K
claim that allowed for recovery; mere proof that you breached the K. Privity bar between
the seller and the purchaser.
● Ryan v. Progressive Grocery Stores (NY 1931) [CARDOZO]: Ryan asked D
storekeeper for Ward's bread. Shopkeeper not liable for breach of implied warranty.
Double privity problem; Mrs. Ryan buying it for her husband; also the bread is not mfg
by supermarket. First food case to find that privity was not a bar. Strict liability here.

Escola v. Coca Cola Bottling of Fresno (Cal. 1944):

● P waitress injured while moving coke bottle from the case to fridge Wins at trial / appeal
 under RIL.
● Cal Supreme Court affirms RIL holding – but there's an issue related to exclusive
control (Coca Cola not in control of these bottles the entire time)
Traynor Concurrence [Introducing Strict Liability Ideas]:
● “In my opinion it should now be recognized that a mfg incurs absolute liability when an
article that he has placed on the market, knowing that it is to be used w/o inspection,
proves to have a defect causing injury.
● Policy Argument [Relationship b/w Producer and Consumer Altered – Up Until
Then, Strict Liability for Food Cases Only]: Even if no negligence, public policy
demands that responsibility be fixed wherever it will most effectively reduce hazards.
Reasons:
(1) Discourage marketing of products that have defects / are a menace to the public;
(Deterrence)
(2) Place responsibility onto manufactuer who, even if not negligent, responsible for product
reaching market
(3) There should be a general / constant protection against risk; mfg best situated to afford
protection;
(4) Injured consumers not in position to refute mfg's non-negligence b/c not involved in mfg
process;
(5) Retailers of commercial goods can't bear liability burden, more sense to make mfg liable;
(6) Retailers can't test the safety of products they sell;
(7) Mfg liability to consumer must change b/c of increased marketing / consumer faith in mfg
goods.

Escola v. Coca Cola Bottling Co. (1944)

Traynor's justifications for strict liability:
1) Deterrence
2) Loss-spreading
3) Changed circumstances in the relationship between manufacturer and consumer
4) Modern Marketing: “The manufactuer should not be permitted to escape liability merely
b/c the marketing of a product has become so complicated as to require one or more
intermediaries.”

Later California Developments in Strict Liability:

Greenman v. Yuba Power Products (Cal.1963): [Escola Concurrence Becomes
Majority Opinion] [Decision is Highly Influential on ALI, which is about to Release
Second Restatement]
● CA warranty statute required that notice of alleged breach of warranty be given
“within a reasonable time” after it is discovered.
● Held by Traynor: Warranty notice requirements should not apply when the P and
 the mfg haven't dealt directly w/ one another b/c injured party would be unaware
of such obligation
● Mfg strictly liable when he puts defective product on market, knowing that it will
not be inspected for defects, and proves to have a defect that causes injury to the
consumer
● Most jurisdictions have followed this decision, rejecting warranty law

Vandermark v. Ford Motor Co. (Cal.1964):

● P bought car from retailer Maywood Bell Ford. Brakes locked, causing crash into
pole.
● Jury verdict against retailer Maywood Bell, but nonsuit against manufacturer,
Ford
● Traynor: Verdict against retailer Maywood Bell upheld, but reversal of nonsuits
against mfg Ford.
● Maywood Bell did not have the final inspection responsibility
● M Bell was “integral part of overall producing / mfg enterprise,” and strictly liable
for cars sold
● Reasoning: Provides max protection for P, but does no injustice to Ds as they can
adjust costs of such protection b/w them in the course of their continuing biz
relationship.”

Ellmore v. American Motors Corp. (Cal.1969):

● Held: Bystanders injured by defectively mfg cars are entitled to the same strict
liability protections as those in the Plaintiff car.
● If anything, bystanders should have greater protection than user, since the user is
afforded the opportunity to inspect for defects, whereas bystander does not have
such opportunity.

Extensions to Others – Does SL Extend to Persons Other than Commercial Sellers of New
Goods?
Used Good Sellers [GILLES:Online Used Goods Sellers Haven't Been Found to Be Strictly
Liable]
Generally courts do not impose strict liablity on used goods sellers, but CAN be liable for
negligence
● Tillman v. Vance Equipment (Or. 1979): Of three reasons for strict liability (1)
spreading the risk; (2) satisfying reasonable buyer expectations; (3) risk reduction; only
first applied to dealers in used products. Second N/A since sellers make no particular
representations about quality of goods. Third N/A since sellers have no relationship to
manufacturers or distributors of goods.
● Wilke v. Woodhouse Ford, Inc. (Neb.2009): “[A] commercial dealer of used vehicles
 has a duty to conduct reasonable inspection of the vehicle prior to the sale in order to
determine if there are any patent defects which would make the vehicle unsafe for
ordinary operation.”

(GILLES)Successors
● Question about liability of successor corporations for liability of predecessor corporation
marketed defective product before they were bought by the successor.
● Products Liability Restatement § 12: Imposes liability if the acquisition: (a) is
accompanied by an agreement for the successor to assume such liability; or (b) results
from a fraudulent converyance to escape liability for the debts or liabilities of the
predecessor; or (c) constitutes a consolidation or merger with the predecessor; or (d)
results in the successor becoming a continuation of the predecessor.”
● Semenetz v. Sherling & Walden (NY 2006): If successors liable for predecessor's torts,
the market for small businesses would dry up, and those businesses would be forced to
sell their assets piecemeal and then dissolve, thereby reducing the number of small
businesses.

(GILLES)Other Nonsellers (Including Commercial Lessors)

Strict liability on franchisors who impose quality control upon their franchisees.
Kosters v. Seven-Up Co (CA6.1979): Imposing strict liability on franchisor for franchisee's
defective design of a carton for carrying soda bottles where the franchisor had consented to the
use of that type of carton.
Strict liability for commercial sellers who give products away or give free samples.
McKisson v. Sales Associates (Tex.1967): Strict liability for breach of warranty, despite absence
of sale
Reluctance to apply strict liability on companies that finance purchases by others.
Nath v. Equipment Leasing Corp. (Pa. 1981): Refusal to impose strict liability in a suit by a
worker whose hand
Irregular Sellers
Sprung v. MTR Ravensburg (NY2003): P sued the custom fabricator of a custom retractable
floor. Even though the D did not usually sell these products, the D was subject to strict liability
because it was in the business of designing and constructing custom sheet-metal products.

Government Contractors
Boyle v. United Technologies Corp. (U.S. 1988): Held that private contractor who followed
government specifications in making a product could not be held liable for inadequacies in the
deisng as long as certain requirements met. Imposition of strict liability in government Ks would
“directly affect the terms of the government K: either contractor will decline to mfg according to
gov specs, or will raise price.”
● Liability for design defects in military equipment cannot be imposed under state law
 when (1) U.S. approved reasonably precise specficiations, (2) equipment conformed
those specifications; (3) the supplier warned the U.S. about the dangers in the use of the
equipment that were known by the supplier but not the U.S.”

Causation and Strict Liability

In products liability cases, factual and proximate cause are just as important as in negligence
cases.
Trull v. Volkswagen of America (N.H. 2000) – Majority Rule: Once P establishes the defect
was a substantial factor in producing damages over and above those that were porbably cause as
a result of the original impact, burden of proof shifts to Ds to show which injuries were
attributable to the initial collision and which to the defect.
Stahlecker v. Ford Motor Co. (Neb.2003): Ps alleged that defective tire failed and rendered
car inoperable in remote area, thus allowing a stranger to assault and murder decedent. HELD:
Proximate cause still applies to products liability.

Emotional Distress
Bray v. Marathon Corp. (S.C. 2003): P and co-worker worked together in plant for 15 years.
Were fixing an accident made by the D. Compactor allegedly malfunctioned and P saw
co-worker crushed to death inside compactor. HELD: P was a user of the defective product
because he was pushing buttons to help fix the compactor. Barriers to recovery for ED claims do
not apply in products liability cases where P was not a bystander but a product user.

Restatement (Second) Section 402A (p568)

(1) One who sells any product in a defective condition unreasonably dangerous to the user
consumer or to his propety is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in
the condition in which it is sold.
(2) The Rule Stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual
relation with the seller.

Restatement (Third) of Torts: Products Liability a.k.a Products Liability Restatement,

Section 2
Note: Doesn't use “unreasonably dangerous” or strict liability
“One engaged in the business of selling or otherwise distributing products who sells or
distributes a defective product is subject to liability for harm to persons or property caused by the
defect.”
Section 2, Restmt.3d. Three types of defects:
(a) manufacturing defect when product departs from its intended design even though all possible
care was exercised in the preapration and marketing of the product;
(b) defective in design when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor [and so forth], an the omission of the alternative design renders the product not
reasonably safe.
(c) is defective because of inadequate instructions and warnings when foreseeable risks of harm
posed by the product could have been reduced or avoided by the provision and omissions renders
product unsafe.

Manufacturing Defects

● Not intentionally put into the design – abberations

● Dangers are almost always latent. Not many open and obvious cases because (1) modern
mfg process can identify incipient problems; (2) retailers who find them while preparing
goods for sale will take them off the shelves; (3) users discover the defects before the
defects cause harm.
● Issues with litigation are practical – what actually caused the design defect?
● Pretty Simple: P doesn't need to bring much more that the product was defective;
understanding of consumer expectations; and failure of product expectations are pretty
straightforward
Welge v. Planters Lifesavers Co. (CA7 1994): Glass peanut jar smashes while P is
trying to screw it onto jar. Ds were jar mfg, Planters Peanuts (jar fillers), and K-Mart, the
seller of the peanut jar. Held that MSJ against P inappropriate when P's evidence
“suggested nothing untoward” happened to jar after purchase.; Seller subject to strict
products liability is responsible for consequences of sellingg defective product even if the
defect was introduced without any fault on his part by his supplier or his supplier's
supplier.
● Concern about the self-serving nature of the evidence
● Generally settle v. quickly – when they do come up, evidence is very “he-said,
she-said”
Price v. General Motors Corp. (CA1 1991): MSJ for D. Car had been “inadvertently
destroyed” before any major investigation could be conducted (think of evidentiary
skepticism by courts).
Daniels v. GNB, Inc. (Miss.1993): P's testimony about two-month-old auto battery,
together with expert's testimony that P's version of the accident, if accurate, was sufficient
to survive summary judgment.

Design Defects
 ● Not a problem with one unit, but with the entire product line
● Chemicals, prescription drugs, power saws, ATVs, pressure cookers, etc.
● How do we determine the standard? Maybe the mfg wanted the design to be the way.
And maybe given cost, market, other factors, this is appropriate – consider how this
extricates us from the strict liability regime. No product can ever be risk-free:
● Plaintiff must meet:

(1) Ordinary consumer expectations test: the rpdocue failed to perform as safely as an
ordinary consumer would expect when used in an intended or reasonably foreseeable manner;
[Foreseeability?]
-OR-
(2) Risk-utility Test: the prdouct's design embodies “excessive preventable danger,” such that
the risk of danger inherent in the challenged design outweighs the benefits of such design.
[B<PL?]

Cronin v. J.B.E. Olson Corp. (Cal.1972): Bakery truck driver injured when, in a crash, trays
came forward and struck him in the back. D appealed judgment for P on ground that trial judge's
charge on strict liability omitted requirement that any defect in product must be found
“unreasonably dangerous” under Restmt.2d Section 402A. HELD: Rejection of the
Restatement's “unreasonably dangerous” standard in context of a product's design as well as mfg.
Barker v. Lull Engineering Co, (Cal.1978) – NOTE THAT THIS IS A MINORITY RULE:
Forklift overturning on slope case. Reversal of trial court for applying “unsreasonably”
dangerous standard, and limitation of liability in situations where the product was being used in
its “intended” manner.
● Consequences of Intended Manner Standard. Prevention of liability in cases of auto
crashes or in situations in which products are used in ways that are not intended (ie car
crashes)
● Two standards for Ps to show defective design:
◦ A) “Ordinary Consumer” / Foreseeable Manner Standard: P must show how the
product failed to perform as safely as an ordinary consumer would expect when used
in an intended or reasonably foreseeable manner.
◦ B) Excessive Preventable Danger/ Risk-Utility: jury finds that the risk of danger
inherent in the challenged design outweighs the benefits of such design.”
Considerations:
▪ (1) gravity of the danger posed by challenged design; (2) likelihood that danger
will occur; (3) mechanical feasibility of a safer alternative design; (4) financial
cost of an improved design; (5) adverse consequences to the product and to the
consumer that would result from an alternative design.
 ▪ Burden shifts to DEFENDANT to prove that product should not be judged
defective.
▪ P's concern that this begins to look @ a negligence showing; but inquiry is
directed at the product itself, and not at the reasonableness of the manufacturer's
conduct.

Problems with Risk-Utility Test

1. In cases involving technical deisgn choixes for complex products such as motor vehicles, the
risk-utility trst in effect asks jurors to engage in a tssk for which they have no relevant expertise.
2. Any complex product is a combination of many design choices regarding safety, cost,
attractiveness and functionality. But thre risk-utility test focuses on only one feature of the
design.

Soule v. General Motors Corp. (Cal.1994)

● Car accident → wheel breaks off, car floorboard collapses into P's feet
● P alleges defective automobile, GM (D) claims force of collision caused injury
● Question 1: May a product's design be found defective on grounds that product's
performance fell below the safety expectation of the ordinary consumer (Barker)?
● Held: Trial court erred by giving “ordinary consumer expectations” instruction in
complex case, special instruction was needed. Reversal warranted where erroneous jury
instruction causes prejudice; here, no prejudice caused by the jury instruction.
● Issue with Ordinary Person Standard: D may not present expert evidence re:the
design's relative risks and benefits; For complex products, a jury has no idea how a
product should perform in certain foreseeable situations → thus, turn to “Excessive
Preventable Danger Standard”
● RULE 1: Where the minimum safety of a product is within common knowledge of lay
jurors, expert witnesses may not be used to demonstrate what an ordinary consumer
should expect.
● RULE 2: Unless the facts actually permit an inference that the product's performance
did not meet the minimum safety expectations of its ordinary users, the jury must engage
in the balancing of risks and benefits required by the second Barker “Excessive
Preventable Danger” test [second prong].
● Here, ordinary consumer expectations improper bc of technical questions about what
was going on with the component parts of the automobile; BUT error was harmless,
didn't change outcome
● Footnote 8: Imposing burden on defendant to prove reaosnableness of design is
appropriate in that considerations that influenced design of defendant's product are
“particularly within” the defendant's knowledge. [PROBLEM – requiring D to “prove a
negative” - that is, the absence of a safer design.]
 ● Depends a lot in the level of generality that you want to get the case to be decided – if we
start getting into the nitty gritty of why the plane blew up, you start to realize that you
have to go to the risk-utility
● What arguments are the defendants supposed to make against the consumer expectations
test?
● Surveys are flawed, using evidence of marketing as creating evidence of consumer
expectations could potentially create First Amendment issues
● Crashworthy: reasonably safe in a collision; hindsight bias is far too strong

GM's Arguments for Abolishing Consumer Expectations Test

1. It defies definition;
2. It focuses on the subjective, unstable, and unreasonable opinion of consumers instead of on
the objective condition of products;
3. Consumers don't know anything about how safe the products they use can or should be made;
[California Supreme Court unwilling to sign off on a decision to that consumers
unreasonable]
4. The jury focuses on a particular consumer, component, accident and injury instead of whether
the product meets general expectations. [GM focuses on big-picture, P is focusing on specific
component of the manufacture that was defective and caused injury]
5. Eliminates balancing of risks and benefits that are inherent in any product design.

Whose Expectations are We Judging?

A consumer base is not monolithic – consumer expectations are not uniform.

Campbell v. GM (Cal.1982): Woman thrown from seat in bus during a sharp turn. Claim of
defective design bc no “grab bar” within easy reach of her seat. P presented no expert testimony,
but presented photos of the bus interior. Held: Enough to show “objective conditions of
product” bc jurors can employ their own sense of whether product met ordinary expectations
under the circumstances. [Consider case under second Barker prong instead]

Pruitt v. General Motors Corp (Cal.App.1999): P hurt when airbag deployed in “low impact
collision.” HELD: no “Consumer Expectations Charge” bc minimum safety standards are not
part of lay juror common knowledge. Expert testimony [second Barker prong] needed.

Morton v. Owens Corp. (Cal.App.1995): Mesothelioma case brought on product liability

theory, using “consumer expectation” standard. Cal. App. holds “consumer expectations” test
applicable, and question was whether “the circumstances of the product's failure permit an
inference that the product's design performed below the legitimate, commonly accepted
minimum safety assumptions of its ordinary consumers.”
Note 5 - Weighing Risk-Utility Factors:
Banks v. ICI Americas, Inc. (Ga.1994)
1. Availability of alternative designs – existence of safer / equally efficacious design
diminishes use of challenged design
2. Reasonableness of design choice – whether design chosen was a reasonable one among
the choices

Note 6 – Reasonable Alternative Design Factors, Products Liability Restatement S. 2 [RAD

Requirement]
1 – Magnitude and probability of foreseeable risks of harm
2 – Instructions on the warnings accompanying the product
3 – Nature and strength of consumer expectations re: product (including product portrayal thru
marketing)

Note 9 – Dreisonstok v. Volkswagen (CA4 1974) GILLES: Bus crash, passengers injured; Ps
sue on the grounds that the passenger compartment was at the very front of the bus, unlike the
passenger compartments in American buses where compartments are in the middle, and the
motors in front. Judgment for P at trial reversed. HELD: “If a person purchases a convertible,
… he cannot expect and the Court may not impose on the manufacturer the duty to provide him
with the exact kind of protection in a rollover accident as in the 'standard American passenger
car.'” Court goes on to continue discussion of risk-utility balancing – problems with Risk-Utility
Balancing – PINTO CASES.; different cars have diff risk-utility profiles → but what about
price-point concerns? Why would we want the law only to protect the wealthy?

Bittner v. American Honda Motor Co. (Wis.1995): D, Honda, permitted to introduce

evidence re: overall safety records of ATV with other products to suggest that the accident was
more attributable to the operator than to the product. D not permitted to introduce evidence
about the risks of “dissimilar products and activities” to show that ATV not unreasonably
dangerous. Manufacturer's obligations persist whether or not product has a high rate of injury
associated with it.

Irreducibly Unsafe Product – O'Brien v. Muskin (NJ 1983): If there's no design alternative,
recourse to a unique design is defensible. Evaluation of product also involves relative need for
product (i.e. critically needed product vs. luxury item) [this dissuades certain products from ever
entering the market]. Rejects argument that just by placing a warning on potentially dangerous
products, mfgs should be able to insulate from liability.
● Some jurisdictions reject O'Brie through N.J.S.A. 2A:58C – 3:
◦ No liability when there is no “practical and technically feasible alternative design that
would have prevented the harm without substantially impairing the reasonably
anticipated or intended function of the product.”
 ◦ Exceptions allowed if P can show through “clear and convincing evidence” that:

▪ (1) the product is egregiously unsafe of ulta-hazardous;

▪ (2) the ordinary user or consumer of product cannot reasonably be expected to

have knowledge of product risks, or product poses risks to those other than the
user;
▪ (3) product has little or no usefulness

Strict Liability Wrap-Up

Two ares remain strict:
1. Abnormally dangerous activities Section 520's 6-factor test gauges whether an activity
Two areas rely in negligence principles (whether mfgs met the standard of care)
Design defects
Defective warnings and safety labels: warn of risks that reasoanbly foreseeable users would want
to / need to know [think of connection to informed consent with warning labels].

CHART: DUTIES LANDOWNERS OWE (TRADITIONAL

APPROACH)

Inspect your land for Warn of any hidden Make Safe of any
hidden dangers? dangers?* hidden dangers?

Natural Artificial Natural Artificial Natural Artificial

“Unforeseeable” X X X X X X
Trespassers

Discoverable X X X ✓ X X
Trespassers

Licensees X X ✓ ✓ O** O**

Invitees ✓ ✓ X X ✓*** ✓***

*Only have duty to warn Trespassers of things that would cause serious bodily harm or death.
Think exposed wires.
**For Licensees, you owe them either a duty to warn OR a duty to make safe. You can have
both, but only need to fulfill one section or the other. If you only warn or make safe of an
artificial danger and someone is injured by your failure to make safe or warn of a natural danger,
you may be liable for negligence.

***For Invitees, you owe no duty to warn because you have a duty TO MAKE SAFE of any
natural or artificial dangers.

Unforeseeable Trespassers= You don’t owe them any duty, except maybe under an attractive
nuisance doctrine,

Discoverable Trespassers= repeat trespassers/ those you know of or have trespassed previously

Licensees= think of a social guest. You gain no benefit from this person being on your land, but
they gain some benefit from being on yours.

Invitee= patron at a restaurant, PATIENTS/VISITORS AT A HOSPITAL; these are the people

who you invite to your land

***AFTER DISCUSSING THIS ON A TORTS ESSAY, YOU WANT TO APPLY THE

REASONABLE PERSON STANDARD OF CARE ANALYSIS. ***
● Some jurisdictions have adopted this standard, but you might have similar results
anyways.
○ Remember, the reasonable person standard holds that the “reasonable person” is
one of the biggest nerds that you will ever meet. They take all of the precautions.